Community Support Worker Guardianship Orders and the Community Support Worker

About Guardianship Orders Not all Cara customers will have Guardianship Orders. This is because they have a ‘Natural Guardian’ instead – usually parents. Legally this is called ‘Informal Arrangements’ Changing informal arrangements to a legal guardian appointed by the SA Civil and Administrative Appeals Tribunal (SACAT) is difficult and there must be evidence that: a) the person wants this b) abuse has occurred c) neglect sufficient to cause harm has occurred If a CSW has evidence of a criminal act occurring against a Cara customer they should contact CARL if a child or SAPol if an adult

How to get a guardianship order Only a person who is unable or incapable of making certain decisions about their personal health and living circumstances due to mental incapacity will have a guardian appointed. Every case will be individual and slightly different, but the basics of the application process are the same. Application forms can be found at www.sacat.sa.gov.au Mental incapacity is an old term, but it is the legal term

Types of orders SACAT can appoint a new guardian in a formal arrangement (usually the person who makes the application) SACAT can appoint the Public Advocate as the Guardian of the person. Office of the Public Advocate looks after medical, accommodation, health and lifestyle issues related to the person. SACAT will order the Public Trustee to make financial decisions. This is called an administrative order.

If informal arrangements are insufficient, unfit, abusive or neglectful such as to cause harm MAKE SURE YOU HAVE CARA’S PERMISSION BEFORE PURSUING ANY OF THESE ACTIONS Does the person have a physical disability? Then download the forms for medical evidence from the SACAT website. Get them completed by a relevant medical professional and have them ready to submit with the application. Does the person have an intellectual disability and/or Autism that affects their ability to understand and communicate? Seek out a neuro-psychology specialist to prove the incapacity. Download the form from the SACAT website and get the specialist to fill it out. Does the person have a severe mental health condition that prevents them from making sound decisions for themselves? Seek out a psychologist and/or psychiatrist prove the incapacity. Download the form from the SACAT website and get them to fill it out. Without permission from Cara, going down this path – even if you believe the customer is subject to abuse by their guardian – it is better that the application to SACAT comes from Cara rather than an individual worker, particularly if the worker wants to keep their job. Don’t forget, if the person is a customer of Cara, we already have access to all of this information.

Bringing a case Make sure you are clear on what type of case it is: housing, guardianship, administrative, consent to medical treatment, advance care directives or mental health. Look up the information about your specific type of case here: http://www.sacat.sa.gov.au/types-of-cases Understand that agreement at conciliation or mediation, or a decision of the Tribunal at hearing may occur. SACAT must promote the best interest of the person. Application for guardianship might be refused by SACAT, but we have to be satisfied that we have done our best. An independent advocate can represent the person. Disability Advocacy agencies like DRAS often represent people in SACAT. They may be the best person because they have been through this process many times.

At the hearing… Before a full hearing, SACAT will try to resolve the issues using negotiation and mediation. SACAT will call a meeting of all interested parties. This is called a hearing. There may be a panel of people, but usually only 1, and they will be familiar with the evidence, but it will be explained again in the hearing. All stakeholders will be able to speak. There are fees for all SACAT applications. However, an application can be made to waive the fees if there is genuine hardship or if the application is being made because the person has been denied access to their funds.

At the hearing (cont’d) All people who want to speak will need to take an oath to tell the truth, called an oath of affirmation. The person who made the application to SACAT will be asked to speak first and present their case. They need to make sure that what they say is relevant to the person’s need for a guardian. The Tribunal member will ask questions as the hearing goes on. This will be to help clarify information or to gain more information. In guardianship hearings it is usually less formal and more conversational. After the applicant has presented their case as to why the person needs a formal guardian or needs their guardianship order changed, the other party can respond and tell their story. If someone says something that a participant believes to be untrue or prejudicial, they can ask the tribunal member for permission to comment when the other person has finished speaking.

Decisions The Tribunal member will make a decision taking into account all of the relevant evidence and in accordance with the law. The Tribunal member may or may not say what that decision is at the end of the hearing, but you will get a written decision regardless. The Tribunal member will tell you whether or not the decision will be ready for you on the day of the hearing or whether it will be sent to you (by email, post or courier). SACAT is not bound by rules of evidence. BUT… SACAT requires the tribunal member to conduct an unbiased hearing and to give each party a fair opportunity to state their case. Decisions made by SACAT are binding and must be obeyed. They can be legally enforced. Rules of evidence: Unlike a criminal trial, the Tribunal can accept hearsay and will accept documents and other evidence at face value. For example, if someone says, “This is a note from his mother” the Tribunal member will accept is as a note from his mother without further evidence to prove it. They will allow people to talk about their feelings or otherwise give opinions without the same level of proof as a legal court. Legally enforced: In other words, if anyone breaches an order made by SACAT, they can be arrested.

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