PLENARY GUARDIANSHIP

PLENARY GUARDIANSHIP

What is Plenary Guardianship? It is what all parents have as a legal right, legal jurisdiction over their children’s activities, until their children reach the age of 18 years, or unless withdrawn by a court order.

The law considers that upon reaching the age of 18 years, the person is an adult, no longer under the influence or direction of parents. Most families celebrate this even as being a significant milestone in the young persons life.

It is indeed morally correct that there should be a time limit when parents no longer have legal authority over their offspring, and that the young person have freedom of decision over their own life.

Unfortunately there are some young people who, for various reasons, are unable to responsibly handle their new found freedom, potentially placing themselves and others at risk, and themselves disadvantaged. In this respect, this article will consider only those who are in this category because of their sever intellectual disability.

Many parents of severely intellectually disabled children, those who are totally unable to make reasonable judgements in respect of all or any matters concerning his personal circumstances and or estate, are concerned that after years of providing special care and protection, they are suddenly advised they have no legal rights after their son or daughter reaches the age of 18 years, and that anyone can challenge any of their decisions.

The very wide range of abilities of those with an intellectual disability makes the decision on the degree of freedom a complex process. It is for this reason that the government set up a body to independently consider if an intellectually disabled person is in need of assistance after reaching the age of 18 years.

In 1988 the government of Victoria passed legislation, the Guardianship & Administration Act 1986, to provide a body to consider the special circumstances where it is not desirable, for reasons of the person’s disability, to allow them full legal freedom over their lives at the age of consent, 18 years.

The Guardian and Administration Board (GAB) was established within the Act and under the Office of the Public Advocate to review applications from parents, family members and other who consider the person’s disability may disadvantage them, or place them and others at risk.

The GAB considers if there is a need for a person with a disability to have a degree of protection after the age of consent, similar to that which they received before. Prior to the age of consent, the person providing the protection is called the “Parent”, afterwards, the “Guardian”.

Within the legislation of the Guardianship & Administration Act 1986 there is two basic levels of guardianship, “Limited” and “Plenary”. These levels are provided to allow the GAB to tailor the degree of guardianship to needs and best interests of the disabled person, ensuring the disabled person is allowed as much freedom of choice as their disability will allow them in protecting their best interests.

For a person who is unable to make reasonable judgements in respect of all or any matters concerning their personal circumstances and/or estate, Limited Guardianship cannot cater for their overall needs.

When considering Guardianship for those with a severe intellectual disability, only Plenary should be considered because the person’s ability will most often be considerably less than a non disabled person under 18 years, for whom the parents automatically have effective Plenary Guardianship. Plenary Guardianship is effectively that automatic legal protection which all parents have until their children reach the age of 18 years, or unless withdrawn by court order.

The Guardianship & Administration Board Act indicates in Section 22 (1) that in making a Guardianship Order the Board must be satisfied the person, (a) has a disability, (b) is unable by reason of this disability to make reasonable judgements in respect of all or any of the matters in relation to his or her person or circumstances and, (c) is in need of a Guardian.

This section goes on to indicate that the Board must be satisfied that, (a) the needs of the person could not be met by other less restrictive means, (b) a Order would be in the best interests of the disabled person, (c) the Board cannot make a Plenary Order unless they are satisfied that the disabled person’s needs cannot be met with a Limited Order and, (d) any Order must be the least restrictive on the person with the disability.

We believe Section 22 of the Act has little significance when considering those with a severe intellectual disability!

Section 23 0f the Act of the Act indicates that the Board must satisfy itself that the proposed guardian is suitable to undertake the task.

IN SUMMARY:-

1. RIGHTS:
As parents you have no legal rights over your son or daughter after their 18th birthday!

2. NEEDS:
A person with a severe disability, which by reason of this disability they are unable to make reasonable judgements in respect to all or any matters concerning their personal circumstances and/or estate, is clearly in need of a plenary guardian. Similar to the situation before they reached the age of 18 years, as their ability remains significantly unaltered!

3. ACTION:

Apply to the Guardian & Administration Board (GAB) for a PLENARY ORDER.

Request, at the time of the application, that the Hearing be recorded, and that you be entitled to a copy of the tape/s, or transcript of the tape/s. Ensure you have a written agreement to this effect well before the Hearing date.

Before the Hearing commences, ensure the secession is being recorded, as per your written agreement.

4. AT THE HEARING, INSIST:-

(a) The disabled person’s ability has not altered on reaching the age of 18 years!
That having automatically have PLENARY GUARDIANSHIP, as parents, before 18 years, little has changed to alter the need after 18 years!

(b) The disabled person is unable to make reasonable judgements in respect of all or any matters concerning their personal circumstances and/or estate.

(c) The disabled person is clearly in need of a guardian in respect of being unable to make reasonable judgements in respect of all or any matter concerning their personal circumstances and/or estate, and for these reasons is in need of a guardian for all life areas – a PLENARY GUARDIAN!

(d) That the disabled person is unable to make reasonable judgements in respect of all or any matters concerning their personal circumstance and/or estate, having someone (a guardian) to look their best interests cannot be considered restrictive. There can, therefore be no least restrictive considerations!

(e) That the disabled person is unable to make reasonable judgements in respect of all or any matter concerning their personal circumstances and/or estate, there is a clear need to cater for all life areas in respect to the provision of guardianship if the disabled person’s quality of life is to be preserved and enhanced. It is clear, therefore, that the person’s needs cannot be met by other than a PLENARY ORDER!

(f) In view of the clear need for a PLENARY ORDER where the disabled person is unable to make reasonable judgements in respect of all or any matters concerning their personal circumstances and/or estate, the Board should concentrate its efforts on ensuring the continuing suitability of those persons making the guardianship application under Section 23 of the Act, rather than concentrating almost exclusively on reasons of need, when it has been clearly established that the disabled person is totally unable to make reasonable judgements in respect of all or any matters concerning their personal circumstances and or estate.