Advocacy and Investigation: OPA information

The Public Advocate has a team of investigators who conduct investigations.  When carrying out an investigation, these investigators gather as much information as possible. This usually involves seeking the views of the person who is the subject of the application or community referral, as well as interviewing friends, family and service providers. 

When conducting an investigation, the Office of the Public Advocate will:

• examine if it is in the best interests of an adult with a decision-making disability to have a guardian or administrator appointed
• advocate for the appointment of a guardian or administrator when there is no other way of meeting the person's needs
• investigate complaints or concerns from the public that indicate a person with a decision-making disability may be at risk of neglect, exploitation or abuse and may be in need of a guardian or administrator, or be under an inappropriate order
• investigate whether a person held in custody under the Criminal Law (Mentally Impaired Accused Act) 1996 is in need of a guardian and/or administrator.

Least Restrictive Alternative

Investigators play a key role in seeking less restrictive alternatives to the appointment of a guardian and help family members become better informed about the role of substitute decision-makers.

Investigations may identify ways of resolving a problem without resorting to a guardianship or administration order – referred to as an ‘informal process’.  This is consistent with the principles set out in Section 4 of the Guardianship and Administration Act 1990, which advocate resolving matters in the least restrictive way (see Case Study - Least Restrictive Alternative below).

The Office of the Public Advocate is involved in two types of investigations:

• community-referred investigations
• investigations referred by the State Administrative Tribunal.

The most commonly investigated concern involves the accommodation of a person with a decision-making disability. 

Almost half of all investigations conducted by the Office involve people with dementia, a trend that looks set to continue as our population ages.

Investigations can involve allegations of abuse. The most commonly reported form of abuse is financial, followed by neglect, psychological abuse and to a lesser extent, physical and sexual abuse.

Community-referred investigations

Individuals in the community and service providers who are concerned about the welfare or well-being of a person with a decision-making disability, often refer their concerns to the Public Advocate.

If a case warrants further attention, an investigator from the Office of the Public Advocate examines all relevant information to determine whether an application to the State Administrative Tribunal, seeking the appointment of a guardian or administrator, is required.

Alternatively, concerned individuals or service providers can make an application directly to the Tribunal. This may be more appropriate if the matter is considered urgent.  If the concerned party is unsure about what action to take, they can call the Telephone Advisory Service on 1300 858 455 or on 61 8 9278 7300.

Investigations referred by the State Administrative Tribunal

The Tribunal may refer matters to the Public Advocate for investigation before it makes a decision on whether to appoint a guardian or administrator. The Office of the Public Advocate's Liaison Officer also conducts brief investigations, often limiting the need for a full investigation by the Public Advocate.

Investigators play a key role in seeking less restrictive alternatives for resolving the concerns outlined in an application for the appointment of a guardian or administrator. This may include advising on what community services could help the person with a decision-making disability.

The investigator will prepare a detailed report to assist the Tribunal with its deliberations about a person's best interests.

There are a number of issues to be explored before concerns about someone's welfare translate into the appointment of a guardian or administrator.  Investigators from the Office of the Public Advocate play a vital role in helping to establish the extent of a person's decision-making disability and determining whether they are victims of abuse, neglect or exploitation.

People who have concerns about the physical, financial and psychological well-being of a person with a decision-making disability, or about someone's capacity to make reasoned decisions, are encouraged to contact the Telephone Advisory Service on 1300 858 455.

The Guardianship and Administration Act 1990 states that every adult should be assumed to have capacity to make a particular decision unless it is established that they lack capacity to do so.  When considering a person's capacity to make reasoned decisions, family, friends and neighbours should be aware that making a decision considered to be unwise does not necessarily mean that the person lacks the capacity to make their own decisions.

Before people make an application to the State Administrative Tribunal for a guardian or administrator to be appointed, a range of complex issues must be considered. The Office of the Public Advocate can be contacted to discuss these issues in the first place.

A is an 87-year-old widow with dementia who had been residing at home with support from a private cleaning service and her family, when she was admitted to hospital.  Her medical team advised that it would be unsafe for her to return home to live. Although her capacity fluctuated, she was not able to make reasoned decisions about her living situation and she had limited understanding of her declining abilities believing she would eventually be able to return to her home. A was placed into hostel level care, awaiting permanent placement.

A's son made an application to the State Administrative Tribunal for the appointment of a guardian and nominated himself and his sister, who resided overseas, to be appointed joint guardians to decide where their mother should live.

There was a dispute between the son, his sister and his ex-wife. His ex-wife believed that A had capacity to live at home and should not have been placed into residential care.  She reported having a good relationship with A and wanted to maintain this. She also had concerns that she and her children, A's grandchildren, had not been informed when A was hospitalised.  She believed they would only be kept informed in the future if the Public Advocate was appointed guardian.

After consultations by the investigator from the Office of the Public Advocate, all three parties agreed that there was no need for the appointment of a guardian if a contact arrangement could be reached. The son and his ex-wife wanted no personal contact between them. They agreed to keep each other informed regarding A's health, accommodation and visits by telephone text messaging.

The investigator highlighted during discussions that the appointment of the Public Advocate might result in more restrictive contact arrangements being introduced including a roster system. The parties decided that they preferred to arrive at their own arrangements without the involvement of a third party.

The application was dismissed.

*Note: Names and details have been changed to protect confidentiality.

The State Administrative Tribunal received a guardianship application for R, a woman who lived in Australia under the care of her daughter but was not a permanent resident and her immigration status was unclear.

R had experienced a stroke but due to her immigration status was ineligible for many health and associated services, including residential care.

The application sought a guardian and an administrator to assist in determining the woman's immigration status and to advocate for her to become a permanent resident to be able to access relevant health care services.

The matter was listed for a hearing within a week.

An investigator from the Office of the Public Advocate contacted R’s family, the hospital social worker who had made the application, an advocacy agency that was assisting the family with immigration and other issues, and various government agencies to attempt to determine the status of R.

It became clear that without legal authority and the assistance of fee charging professionals, accessing immigration information and advocating on behalf of R was difficult. R's position was further complicated by her having no income.

Hence the Tribunal appointed a guardian to clarify R's immigration status and to apply for required visas or residency status. The woman's daughter was appointed administrator.

*Note: Names and details have been changed to protect confidentiality.

A group of concerned businesses contacted the Telephone Advisory Service about J who was arriving at their businesses wearing little clothing and asking for money. She appeared to be affected by alcohol or substances and they were concerned about the affect of her presence on their customers.

The investigator was able to establish that J's disorientation, poor mobility and involuntary movements were the result of a neurological disease.

J lived alone after separating from her husband who continued to support her but visited infrequently. The investigator met with J, her family, local businesses and a medical treatment team to establish the key issues and J's wishes.

J wanted to remain living at home but she had little awareness of her deteriorating health. Her husband and family were reluctant to make decisions about future care arrangements that were against J's wishes.

The local hospital's neurosciences unit agreed to increase support services for J, however, recruitment of additional support staff took some time. In the meantime, the local businesses were becoming impatient with what they perceived as a lack of response as J continued to visit their businesses.

One of the concerns in investigating such cases is the sensitivities around maintaining a person's privacy while reassuring complainants that their concerns are being treated seriously.

Further meetings were held with local businesses to ensure they understood that J's situation was related to a medical condition and that steps were being taken to address the issues.

The Public Advocate applied to the State Administrative Tribunal seeking the appointment of a guardian and administrator. Meanwhile, J's brother decided that he preferred that the family make accommodation and medical decisions for J. He was appointed her guardian and her husband was appointed her administrator.

*Note: Names and details have been changed to protect confidentiality.