MAKING MEDIATION MAINSTREAM

1. MAKING MEDIATIONMAINSTREAM Jane Anderson, Deputy President Guardianship Board South Australia guardianshipboard.sa.gov.au/

2. Guardianship Board South Australia guardianshipboard.sa.gov.au/

3. Who is the Guardianship Board? Guardianship Board members have specific knowledge, qualifications or experience in areas such as: Law, Medicine, Psychiatry, Psychology, Nursing, Social Work and Community Work . There is a full-time President, and part-time Deputy  Presidents who are all experienced lawyers. Guardianship Board South Australia guardianshipboard.sa.gov.au/

4. Guardianship & Administration The Guardianship Board makes decisions pursuant to the Guardianship and Administration Act 1993 The Board receives Applications for Guardianship Orders (GO) and Administration Orders (AO). Guardianship= Personal decisions; e.g accommodation, lifestyle, health. Administration= Legal, business, financial decisions. Person must have a mental incapacity. Informal arrangements insufficient? If there is an Enduring Guardian &/or Enduring Power of Attorney are they unwilling, unavailable, incompetent or negligent? Should their powers be revoked? GO- Full or Limited Order? Private or Public Guardian (Public Advocate)? AO – Full or Limited Order? Private or Public Administrator (Public Trustee)? Guardianship Board South Australia guardianshipboard.sa.gov.au/

5. What is mental incapacity? Defined in the Guardianship and Administration Act as: the inability of a person to look after his or her own health, safety or welfare or to manage his or her own affairs as a result of: (a) any damage to, or any illness, disorder, imperfect or delayed development, impairment or deterioration, of the brain or mind; or (b) any physical illness of condition that renders the person unable to communicate his or her intentions or wishes in any manner whatsoever. Guardianship Board South Australia guardianshipboard.sa.gov.au/

6. What is mental incapacity? The causes of mental incapacity can include, amongst other things, dementia, intellectual disability, mental illness, coma etc. To satisfy the definition of mental capacity, the condition must affect the person’s ability to make decisions. For example, the person: May lack a full understanding of their own actions or actions of others; May not fully appreciate the consequences of their actions; May take unreasonable risks affecting their health and welfare. Guardianship Board South Australia guardianshipboard.sa.gov.au/

7. Mental Incapacity A person recovering from a brain injury or stroke may go through a brief period of fluctuating or ‘borderline’ capacity before regaining capacity, if capacity is ever regained. The brain function of a person with dementia will decline over time. There may be a brief period of fluctuating or ‘borderline’ capacity. A person with mental illness may have long periods of capacity and shorter periods of obvious incapacity. Guardianship Board South Australia guardianshipboard.sa.gov.au/

8. (c) consideration must, in the case of the making or affirming of a guardianship or administration order, be given to the adequacy of existing informal arrangements for the care of the person or the management of his or her financial affairs and to the desirability of not disturbing those arrangements; and (d) the decision or order made must be the one that is the least restrictive of the person's rights and personal autonomy as is consistent with his or her proper care and protection. [District Court case of Bronte Murchison; Appeal of Guardianship Board decision District Court No 273/2005] Section 5 principles • consideration (and this will be the paramount consideration) must be given to what would, in the opinion of the decision maker, be the wishes of the person in the matter if he or she were not mentally incapacitated, but only so far as there is reasonably ascertainable evidence on which to base such an opinion; and • the present wishes of the person should, unless it is not possible or reasonably practicable to do so, be sought in respect of the matter and consideration must be given to those wishes; and Guardianship Board South Australia guardianshipboard.sa.gov.au/

9. “Past” wishes paramount The Guardianship Board, guardians & administrators are bound by section 5 principles. The principles apply when making decisions about and for the vulnerable person. “Past wishes” of the vulnerable person can be interpreted in a way which will indicate the core beliefs and values of that person. “Substituted Judgement Model” - seeks to approximate what the person would decide at the time when a decision is needed, if the person’s capacity had not been impaired and if the person had access to current information and advice.  Recognizes that people often change their minds when they have accurate information about outcomes.  This approach more closely approximates the concept of “authentic” substitute decision, or “walking in the shoes of another”. Guardianship Board South Australia guardianshipboard.sa.gov.au/

10. Changing your mind Sometimes people with a mental incapacity change their mind about important things in their life. For example: Who it is they want to be in charge of their affairs – personal and financial; Who should be allowed into their life; (e.g to visit &/or take on outings); Who is to be kept informed of significant health events; Who is to be excluded from their life. Guardianship Board South Australia guardianshipboard.sa.gov.au/

11. Changing your mind People can change their allegiances because of: Family Conflict; New people entering into the person’s life; Neurological degeneration; Depression and other Mental Health issues. Elder abuse/undue influence (Supreme Court case of Western v Male [2011] SASC 75) “RED FLAGS”- “monopolising the attention of the person, attempting to influence documents, attempting to make appointments for the person, attempting to go along to all the appointments and not to let that happen independently,… a discouragement of… closeness with other relatives or friends” Guardianship Board South Australia guardianshipboard.sa.gov.au/

12. Family Conflict/ Elder Abuse What can you do about it? Application to Guardianship Board Suitability for Mediation Attempt to reach agreement by the parties Aim to resolve matter on the day. A workable solution and permission to move on from the conflict. “After-sales service” by the Guardianship Board Guardianship Board South Australia guardianshipboard.sa.gov.au/

13. 15A Mediation Registrar, Board, President or Deputy President may refer the matter for mediation Board may endeavour to achieve a negotiated settlement of any proceedings or resolution of issues in any proceedings Where a matter is settled under this section, the Board may embody the terms of the settlement in an order. Guardianship Board South Australia guardianshipboard.sa.gov.au/

14. Mr Brown * Guardianship Board South Australia guardianshipboard.sa.gov.au/

15. THANK YOU horton.anderson@bigpond.com Image credit: Sam Noonan Guardianship Board South Australia guardianshipboard.sa.gov.au/