The Evolution of Guardianship Law: A Historical Overview

Introduction

Guardianship law, an essential aspect of legal systems across the globe, has evolved significantly over the centuries to protect the rights and interests of individuals who are unable to manage their own affairs. This article provides a comprehensive overview of the history of guardianship law, tracing its origins in ancient civilizations and its development in response to societal changes and ethical considerations. We will also discuss the challenges and future implications of guardianship law in an increasingly interconnected world.

Origins in Ancient Civilizations

The concept of guardianship dates back thousands of years to ancient societies such as the Roman Empire, where the role of a guardian, or "tutor," was established to protect the interests of minors and those deemed incapable of managing their own affairs. Similarly, the Babylonian Code of Hammurabi, one of the earliest legal codes, contained provisions for guardianship that recognized the importance of protecting vulnerable individuals.

In ancient Greece, guardianship law evolved to cater to the needs of the time, with guardians appointed for orphans, unmarried women, and individuals with cognitive impairments. The role of the guardian was to manage property, finances, and legal affairs, ensuring that the best interests of the person under guardianship were preserved.

Development in the Middle Ages and Early Modern Period

During the Middle Ages, guardianship law continued to evolve in response to societal changes and religious influences. In the English common law system, for instance, the concept of "wardship" was introduced, wherein the Crown held the responsibility of managing the estates of minors and those deemed unable to manage their own affairs. This system placed a strong emphasis on protecting property rights, which laid the groundwork for the development of modern guardianship law.

In early modern Europe, the Age of Enlightenment brought about a greater focus on individual rights and the protection of vulnerable populations. In response, guardianship law began to prioritize the well-being of the person under guardianship, rather than just property management.

Modernization and Reform in the 19th and 20th Centuries

The 19th and 20th centuries saw a wave of legal reform that led to the standardization of guardianship law in many countries. This period marked a shift from a property-centered approach to one that emphasized the personal rights and welfare of the individual under guardianship.

In the United States, for example, the Uniform Guardianship and Protective Proceedings Act was introduced to create a consistent legal framework for guardianship across state lines. This act provided guidelines for the appointment of guardians, their duties, and the rights of the person under guardianship.

The 21st Century: Balancing Rights and Protection

In recent years, the focus on individual rights and autonomy has prompted a re-evaluation of guardianship law. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) has played a significant role in promoting the rights of individuals with disabilities, urging nations to adopt legal frameworks that prioritize supported decision-making and the least restrictive alternatives to guardianship.

As a result, many countries have reformed their guardianship laws to promote a more person-centered approach. Such reforms have introduced alternatives to guardianship, such as limited guardianships and supported decision-making, that empower individuals to retain greater control over their lives while still receiving the necessary support and protection.

Conclusion

The history of guardianship law reflects the evolution of societal values and the growing understanding of the importance of protecting the rights and interests of vulnerable individuals. As our world becomes increasingly interconnected and diverse, it is vital that guardianship law continues to adapt to the changing needs of society, striking a balance between the protection of vulnerable individuals and their right to autonomy and self-determination.

The Crucial Role of Geriatricians in Guardianship Matters

As a guardianship lawyer in Western Australia, I have the privilege of working alongside various healthcare professionals, including geriatricians, who play a crucial role in guardianship applications and hearings at the State Administrative Tribunal.

I wanted to take a moment to shed some light on the role of geriatricians and how they contribute to these processes.

👩‍⚕️ What is a geriatrician?
A geriatrician is a medical doctor specializing in the care, diagnosis, treatment, and prevention of diseases and health issues affecting older adults, typically aged 65 and above. They focus on promoting healthy aging, managing chronic conditions, preventing disease, and maintaining independence and quality of life for their patients.

📋 Geriatricians in Guardianship Matters:
In guardianship applications and hearings, geriatricians often provide invaluable medical reports and expert evidence. They help the Tribunal determine an individual's capacity to make decisions and assess their ability to manage personal, medical, and financial matters. Their expert opinions can guide the Tribunal in making decisions about appointing a guardian or an administrator.

📞 Providing Evidence at Hearings:
Geriatricians often participate in hearings, typically via telephone, to present their findings and answer questions from Tribunal Members, legal representatives, and other parties involved. Their expertise ensures that accurate and relevant information is considered when making critical decisions about the welfare and best interests of vulnerable adults.

Geriatricians play a vital role in guardianship matters, providing essential medical expertise to help safeguard the rights and interests of older adults.

If you have any questions about guardianship matters or the role of geriatricians in these cases, feel welcome to contact me.

#Geriatricians #GuardianshipLaw #ElderLaw #alzheimers #dementia #StateAdministrativeTribunal

When Less is More: Importance of Considering Less Restrictive Means in Guardianship and Administration

I am pleased to share a decision published by the State Administrative Tribunal of Western Australia in which I acted for the Subject of the application, "DJJ", who is 94 years of age.

The decision highlights the importance of finding the most suitable and least restrictive means of decision-making for individuals in guardianship and administration matters.

📄 Key takeaways from the decision:

1️⃣ Administration: The Tribunal found that although DJJ was in need of an administrator, a less restrictive means was available for managing her estate. Consequently, the Tribunal chose not to appoint an administrator and instead reinstated the enduring power of attorney (EPA) that had previously been revoked.

2️⃣ Guardianship: The Tribunal determined that DJJ required a guardian and found no less restrictive means available for making decisions on her behalf. CTJ (the Daughter) was deemed suitable and was appointed as DJJ's guardian.

This decision serves as a reminder that each case is unique and requires careful consideration of the Subject's individual needs and circumstances. It also emphasizes the importance of exploring less restrictive options when determining the best course of action for the Subject's well-being.

#Guardianship #dementia #alzheimers #EnduringPowerOfAttorney #LeastRestrictiveMeans #administration

The Montreal Cognitive Assessment Test: An Essential Tool for Guardianship Applications

The decision to seek a guardianship for a loved one is a challenging and emotional process.

As a guardianship lawyer, I understand the importance of ensuring that the best interests of your loved one are protected.

One of the essential tools in evaluating mental capacity for the purpose of guardianship applications is the Montreal Cognitive Assessment (MoCA) test.

In this blog post, I will provide a detailed explanation of the MoCA test and how it can be an invaluable tool in the guardianship process.

What is the Montreal Cognitive Assessment (MoCA)?

The MoCA is a widely recognized and respected cognitive screening tool designed to quickly assess cognitive functioning in adults. Developed by Dr. Ziad Nasreddine in 1996, the MoCA test evaluates various cognitive domains, including memory, attention, language, visuospatial abilities, and executive functions.

The MoCA test consists of 30 questions that are scored on a maximum of 30 points. It is relatively quick to administer, taking approximately 10 to 15 minutes. A score of 26 or above is considered normal, while a score below 26 may indicate mild cognitive impairment (MCI) or dementia.

Why is the MoCA test important in guardianship applications?

In guardianship applications, it is crucial to determine whether the individual in question has the mental capacity to make informed decisions and manage their daily affairs.

The MoCA test provides an objective evaluation of cognitive abilities, offering valuable insights into the individual's cognitive strengths and weaknesses.

Here are a few reasons why the MoCA test is essential in guardianship applications:

1. Objective assessment: The MoCA test provides an unbiased evaluation of cognitive abilities, minimizing the risk of subjectivity and personal bias.

2. Comprehensive evaluation: The MoCA test covers various cognitive domains, allowing for a well-rounded understanding of the individual's cognitive functioning.

3. Quick and efficient: The test is relatively brief, making it an efficient tool for initial cognitive assessment in the guardianship process.

4. Widely recognized: The MoCA test is respected by healthcare professionals and the legal community, making it a reliable indicator of mental capacity in guardianship proceedings.

How is the MoCA test used in guardianship applications?

The results of the MoCA test can be used to support the determination of whether an individual requires a guardian. It is important to note that the MoCA test is just one part of a comprehensive evaluation. Additional information, such as medical records, input from healthcare professionals, and a thorough understanding of the individual's daily functioning, is also essential in making an informed decision about guardianship.

The MoCA test may also play a role in determining the scope of the guardianship. If the test results reveal specific cognitive impairments, the guardian's powers may be tailored accordingly to ensure that the individual's rights and autonomy are respected to the greatest extent possible.

Key takeaways

• The Montreal Cognitive Assessment test is an invaluable tool in the guardianship application process.

• It offers a comprehensive, objective assessment of an individual's cognitive functioning, providing crucial information to make the difficult decision of seeking guardianship.

• By using the MoCA test and other relevant information, we can ensure the well-being and protection of our loved ones.

If you have any questions about the MoCA test or the guardianship process, please do not hesitate to reach out to my team or myself. We are here to support you and your loved ones, offering guidance and expertise in navigating this complex legal landscape.

7 Simple Ways to Reduce Fall Risk for People with Dementia

7 ways to prevent falls for people with dementia

A hospitalisation from a fall is a common theme in my guardianship cases where the Subject of the SAT application has dementia.

Did you know that falls are one of the leading causes of hospitalisations for people with dementia?

A study showed that 26% of individuals with Alzheimer's were hospitalised due to falls, and people with dementia experience 8 times as many falls as those without dementia.

To help prevent falls in your loved one with dementia, here are 7 simple ways you can reduce fall risk:

1️⃣ Review their medications with a healthcare provider, as some medications can increase the risk of falls
2️⃣ Consider their medical conditions and diagnoses, such as Parkinson's disease or changes in blood pressure
3️⃣ Talk to their doctor about the best time of day to take medications to decrease falls risk
4️⃣ Be extra alert and vigilant during concerning times for falls
5️⃣ Do tests to assess their fall risk, such as closing their eyes while standing
6️⃣ Implement safety measures in the bathroom, such as using a shower chair or bench
7️⃣ Reduce fall risk by being mindful of when blood pressure changes can occur

When I speak to clients, concerns about falls risks come up time and again, and are a top-of-mind risk for Public Advocate Investigators when doing reports in advance of a hearing. Something to be mindful about when caring for people with dementia.

The Risks of Using a Generalist Lawyer in Guardianship Matters

Guardianship and administration cases can be complex and emotionally challenging, requiring specialized knowledge and understanding of the laws and procedures involved.

In these situations, having a lawyer who is familiar with the process can provide important guidance and support.

Here are some of the risks of using a generalist lawyer in guardianship and administration matters:

1️⃣ Lack of familiarity with the laws and procedures involved, leading to mistakes and costly delays.
2️⃣ Difficulty in advocating for the client's rights and interests, as the lawyer may not be fully aware of the relevant laws and regulations.
3️⃣ Lack of understanding of the emotional and personal issues involved in these cases, which can make it difficult to provide the necessary support and guidance.

As a lawyer specializing in guardianship and administration in Western Australia, I have a deep understanding of the legal and emotional challenges that my clients face, especially in the context of an aging population. In Western Australia, the population is rapidly aging. According to the Australian Bureau of Statistics, 21.8% of the population was aged 60 years and over in 2021, and this number is expected to increase to 24.7% by 2031.

My goal is to provide clear and concise information about the process and help clients make the best decisions, at such a difficult time in their lives.

The Importance of Properly Evaluating Mental Capacity in Legal Matters

There is no single legal definition of mental capacity in Western Australia. As a lawyer specializing in guardianship cases, this question is frequently top-of-mind when dealing with some of my clients.

It is important to understand the nuances of determining mental capacity in legal matters. The definition varies depending on the type of decision or transaction involved.

There are various legal tests for mental capacity, such as the test for testamentary capacity.

Despite the many different legal tests, the fundamental issue is whether the client is able to understand the general nature of what they are doing. If there is ongoing difficulty in this level of understanding it may indicate a lack of mental capacity which requires further exploration by the lawyer.

Any work done for a client who it later turns out lacked mental capacity could be invalid and expose the lawyer to potential legal and ethical issues.

For example, a client may appear to have the mental capacity to create a will, but in reality, they may be suffering from dementia and unable to understand the consequences of their actions. This could lead to the will being challenged and the lawyer facing potential legal repercussions.

Another example is, a client may not have the mental capacity to make a contract, but have mental capacity to make a will. A lawyer should be aware of this and should not proceed with the contract if they suspect the client lacks mental capacity. If a lawyer fails to do so, it could lead to the contract being challenged and the lawyer facing potential legal repercussions.

See a publication produced by The Law Society of New South Wales entitled “When a client’s mental capacity is in doubt – A practical guide for solicitors”, dated 2016" for more information.

Navigating Guardianship Applications: Some “signs” for Families Affected by Dementia

GUARDIANSHIP ... it is important to be aware of the early signs of dementia and the difference between dementia and Alzheimer's disease.

Dementia is the term used to describe losing one's memory and speech, with Alzheimer's disease being the most common cause.

In the early stages, it may appear as exaggerated forgetfulness, but as the disease progresses, memory loss, changes in thinking and speech, and changes in behavior may occur.

Other diseases that can cause dementia include vascular dementia, caused by small strokes, and Lewy body disease, which also presents symptoms similar to Parkinson's disease.

Although dementia is not hereditary, an early diagnosis is important as there are treatments that can be offered and it is important to prepare for the future.

Keep an eye out for extraordinary forgetfulness and out of character behaviour, such as putting food in the wrong place or tripping over words in conversation.

If you notice these signs, encourage your family members to seek medical attention for a proper diagnosis.

If you or someone you know needs help applying for or dealing with a guardianship application at the State Administrative Tribunal of Western Australia, please don't hesitate to contact me for assistance. I'm here to help, having acted in more than 100 such applications during the last 5 years.

Financial Elder Abuse: A Serious Issue Affecting Older Australians

As a guardianship lawyer, I've seen first-hand the devastating effects of financial elder abuse on Australian seniors.

If you are a financial advisor, read this blog for signs that financial elder abuse may be happening to your clients, and what role you can play in protecting your clients.

Financial elder abuse is a serious issue that affects many older Australians every year. Elder abuse can take many forms, including financial exploitation, physical abuse, and emotional abuse.

As financial advisors, you are often in a prime (and sometimes ‘only’) position to be aware of the signs of elder abuse and to take action when you suspect that a client may be at risk.

The following are 5 signs that financial elder abuse may be happening:

• Sudden changes in financial arrangements, such as the appointment of a new power of attorney or the transfer of assets to a new account.

• Unexplained withdrawals from accounts or the use of an elderly person's funds without their knowledge or consent.

• The appearance of new "friends" who are taking an interest in the elderly person's financial affairs, especially if they seem to be trying to isolate the person from their family and trusted advisors.

• Changes in the elderly person's demeanour or behaviour, such as increased confusion or agitation, that may be caused by financial stress or exploitation.

• Unexpected changes in the elderly person's financial situation, such as sudden debts or unpaid bills.

To help protect your clients from elder abuse, there are several steps you can take:

1. Stay in regular contact with your clients. This will help you to stay informed about their financial situation and to identify any changes that may be cause for concern.

2. Be aware of the signs of elder abuse. If you notice any unusual activity in your client's accounts or if you have concerns about the well-being of an elderly client, it's important to take action.

3. Work with other professionals. If you have concerns about a client, consider reaching out to other professionals, such as lawyers or social workers, for guidance on how to proceed.

4. Educate your clients about the dangers of elder abuse. Help your clients to develop strategies for protecting themselves, such as setting up a power of attorney (if they have capacity) or working with a trusted family member or friend.

By taking these steps, financial advisors can play a critical role in protecting their elderly clients from financial elder abuse. If you have any questions or would like to discuss how I can assist, please don't hesitate to contact me.

Successful Review of Guardianship and Administration Decision in Western Australia

We recently acted for the applicants in a review of a decision made under the Guardianship and Administration Act 1990 (WA). You can read the full decision here.

The applicants, MD and DM, applied for a review of a decision made by a single member of the Tribunal, Member Conley, on 6 September 2022.

In the original decision, Member Conley declared that the represented person (NA) was unable to make reasonable judgments in respect of matters relating to her estate, person, and health and safety, and therefore needed an administrator of her estate and a guardian. The Tribunal then made orders revoking the enduring powers of attorney and guardianship in place and appointed the Public Trustee as plenary administrator and the Public Advocate as limited guardian.

On our clients behalf, we then applied for a review by the Full Tribunal.

After reviewing the case, the Full Tribunal decided to revoke the original orders and reinstate the enduring power of guardianship and power of attorney in favour of MD and DM.

In relation to guardianship, the Full Tribunal found that NA was unable to make decisions regarding her own health and safety and needed oversight, care, and control. However, the Full Tribunal also found that a less restrictive means was available in the form of an enduring power of guardianship (EPG) previously made by the individual. As a result, the Full Tribunal revoked the orders appointing a limited guardian and reinstated the EPG, naming two of the individual's daughters as joint guardians.

In relation to administration, the Full Tribunal found that NA’s vascular dementia rendered her unable to make reasonable judgments in relation to matters concerning her estate, but that the appointment of an administrator was not necessary as the less restrictive option of the enduring power of attorney in favour of MD and DM was available.

We are proud to have been able to assist MD and DM. A job well-done by Isaac Priddis, who appeared for our clients at the hearing.

If you would like to hire a lawyer to act on your behalf in a guardianship matter, please don't hesitate to contact me. I would be happy to discuss your options and how I can assist you.

I acted in 30 separate such matters in 2022 alone and offer a specialist service.