Public Trustee slammed for gagging vulnerable older person, depriving him of personal records

31_3_23 ward of the state HC

Public guardianships and Trustees have received scrutiny for their gag orders, lack of transparency and inclusion of the older people they care for. 

This week, investigative ABC journalist, Anne Connolly, broke the story about a 70-year-old Western Australian man being kept in an aged care facility against his will.

Dan* is single, estranged from his family, lives with suspected dementia and wants to live in his home again but is under the control of two West Australian Government agencies: the Public Trustee and the Office of the Public Advocate (OPA). After moving into a facility and then changing his mind, the tribunals deemed him unfit to look after himself and are keeping him there.

Dan is now under the protection of the State, where protocol to protect him prevents him from seeing his own personal medical and financial information.

“It’s not fair on me… I’m treated like I’m a criminal. I’m not,” he told ABC.

“I’ve got no rights at all and I haven’t done anything. I’ve been in business all my life. I’ve paid my taxes and done everything.

These tribunals exist in every State and Territory and are required to assess whether someone has the capacity to make decisions to manage their health and finances or whether they need help.

Each State and Territory — except the ACT — have similar laws and approximately 50,000 Australians with brain injuries, dementia, mental illness or intellectual disabilities live under guardianship.

Older Persons Advocacy Network (OPAN) Chief Executive Officer (CEO), Craig Gear, told HelloCare other cases like Dan’s have been reported to OPAN where Public Trustees haven’t properly assessed someone before taking them into guardianship.

He acknowledged that Public Trustees are “resource-constrained” but that older people in the care of the State still need to be a part of the decision-making process regarding the important aspects of their lives.

“As we saw in the case of Dan, he wanted to have his voice which can be really challenging with some of these restrictions. They are meant to be protecting people from exploitation but it does mean that sometimes it’s hard for older people to raise their voice to say that they’re not happy with the process being undertaken,” Mr Gear explained.

“Sometimes, even when they have seen the person, they really need to be working under a supported decision-making approach which takes time but takes the wishes and preferences of the person into account.

“That person needs to still be part of those decision-making processes and know about things that really affect your life, even if you have a cognitive impairment. You should be supported in how you’re taken through that information.”

HelloCare contacted OPA and a spokesperson said they are bound by the confidentiality requirements set out in the Guardianship and Administration Act but that the medical documents they hold regarding people under guardianship “cannot be shared by OPA with other parties” including the individual. 

“Requests from a represented person to access copies of such reports are assessed on a case-by-case basis and focus on the best interests of the person. The best interests of the represented person and any potential risk to them will be considered when assessing these requests.”

Even for older people living under Public Trustees, the Charter of Aged Care Rights grants anyone access to a free, independent advocate to speak on their behalf.

Mr Gear said he would like to see these older people be given priority access to an advocate to work with them, the providers and the Public Trustee to uphold their rights.

“We need to see a system that actually understands that taking human rights away from people is a really big deal,” he said.

“We see that for mental health cases, there’s very strict authorisation, oversight, and review and we need to see the same for older people as well.” 

At the hearing in February last year, the Public Tribunal ordered Dan to be assessed by specialists to determine his cognitive ability and his care needs.

The assessment showed that Dan could return to his home with 24/7 care but the Public Advocate allegedly rejected that option because he couldn’t afford it.

Anne Connolly has been investigating the state of our aged care sector for five years and frequently heard stories about guardianships in Western Australia, describing the system as “particularly draconian” by denying those in their care access to financial and medical records. 

“All of these people are gagged, they cannot be identified – supposedly to protect them. But the argument, of course, is that unfortunately they have a lot of complaints, these people, about the system and they can’t speak out about it,” she said on ABC News.

The Department of Justice has a Customer Feedback Management System where Represented Persons or their family or supports can provide their feedback directly to the Department so that their concerns can be resolved.

*Pseudonym 

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  1. It is unfortunate that public servants who exercise power over the vulnerable often seem to choose to protect themselves, rather than the vulnerable person.

    Transparency, with an independent Advocacy agency to assist the vulnerable person is the minimum acceptable standard.

    As we get older it is apparent that we are seen as a burden on the bureaucracy.

  2. This is sad. People like Dan should not lose their human rights because they go into care, or later decide that this is not the right choice. WA needs to lift their game here. The represented person has a right to contribute to an assessment of what is ‘in their best interests’. Secrecy shades transparency.

  3. For information videos please refer to https://youtube.com/playlist?list=PL-6y85FvhV4rgFSE_NJwgltLflR9-9OmS

    Public Guardianship targets you if a burden on Governments’ Budgets or if your assets are accessible through a Tribunals removing your legal voice and say in your life. An appointed Public Guardian overrides EPOA/spouse/partner’s/family protections.

    Without proper support victims within the devil’s den of corruption and conflicts of interest face the reality that bad Tribunal Orders are a sentence for life for no crime. Victims are targeted by Governments’ Business Enterprises for budgetary cost saving and/or for GENERATIONAL THEFT.
    Happening Australia wide – recognise that bad State/Territory Government Legislation, facilitated through untouchable excessively discretionary Tribunals are the CAUSE of the many ‘symptoms’ exposed of Public Guardianship exploitation (PT are simply the Governments’ money collectors). Recognise the facades: Australian Government SELF Reviews, Inquiries and Royal Commissions appear intentionally slow/protective to raise the need to modernize profitable/exploitive $Billion State and Territory Guardianship ‘Business Enterprise’ systems: recognise the profits made while Governments delay the legislation required to bring their Business Enterprises into line with article 12 of the UN Convention on the Rights of Disabled Persons and to enforce the principle of equal recognition before the law?
    Reports raise the financial reasons why Australian governments abuse their own citizens under Public Guardianship – ‘Australia is about to experience its largest intergenerational wealth transfer – $3.5 trillion in the next two decades. By 2050, Baby Boomers are expected to leave $224 billion in inheritances to Millennials and Gen Z’. Australian Governments want a piece of ‘this’ and Public Guardianship provides means for this generational theft from Australian Boomers; if legislated UNCRPD Supported Decision Making (SDM), ratified by Australia in 2008, would be an ‘Achillies heel’ that decimates the current predatory/exploitative Government business models.
    Governments ‘solution’ to its own wrongdoing for decades continues through ensuring NO Rule of Law applies to Public Guardianship, instead, extreme self-protection is demonstrated particularly for the facilitators, being the untouchable State and Territory Tribunals: then only limited exposure of wrongdoing by the business control agents, the Government Public Guardians and Public Trustees and then only if backed into a corner.
    Public awareness and pressure on Governments, SDM could return to people made dead under the law under Public Guardianship, a legal say in their life and SDM would limit Government’s opportunity to Abuse, Neglect and Exploit People with Disability.
    Greater media exposure of the abuses under Public Guardianship and how the abuse stories they run could be prevented under legislated SDM: please awaken the public to both the cause and a solution that could end 30 years of the same horrific stories. Expose the hidden conflicts of interests, Human Rights violations protected by secrecy laws: expose the conflicts of interest within sister State and Territory Offices of the Tribunal, Public Guardian, Public Trustee that Abuses, Neglects and Exploits People with Disability under their Attorney-General’s protection.

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