Challenges to the Australian guardianship and administration model?

• Jurisdiction: Australia
• Author: Carney, Terry
• Date: 01 January 2003

The Australian tribunal model of adult guardianship forged in the 1980s proved to be a uniquely successful experiment. This paper examines the robustness of that model in the face of transformations such as the rise of Neoliberal styles of government (contractualisation and privatisation of services), changing demographics, cultural pluralism, and new forms of state accountability to citizens. It argues that the adjudicative model remains attuned to contemporary social conditions but its reputation is hostage to measures to ensure that adjunct agencies, such as public trustees and default guardians, offer a responsive, personalised service rather than the bureaucratic and impersonal service to which they may be predisposed by virtue of the prior history (and operating 'culture') of such institutions.

1. INTRODUCTION

   Guardianship law, Australian style, has been a uniquely successful experiment. (2) However nothing stands still in life. The question posed in this paper is: Will the Australian model of guardianship survive future challenges, or is it time for a new experiment?

   1. Drivers of legal policy

      Policy is shaped by many forces: by ideological agendas, by cultural values, and by pragmatic forces--to pick out just three.

      1. Ideological determinants of policy.

         Some of the forces sculpting policy are ideological ones.

         This is illustrated by the more strident advocacy of Neoliberal forms of governance which scale the state back to the role captured in the metaphor of 'steering but not rowing'. (3) Or by the rising popularity of ideas of 'mutual obligation' and reciprocity in public policy, such as in the federal government's Report on Welfare Reform, (4) or Australia's creation of a contestable market for delivering job-matching assistance to the unemployed. (5)

         The question is whether such trends will impact on guardianship. Such as in the way hinted at by Victoria's recent debate around dismantling tribunal review of complaints about denial of public services for the intellectually disadvantaged and relying instead on managerial protections. (6)

      2. Cultural determinants of policy

         Other forces are 'cultural' ones. In the sense that they are more deeply embedded in the values of a given society at a particular historical juncture. This can be seen at work in recent writing from the US about the future of 'private planning' (enduring powers) as a preferred alternative to guardianship. As Rich said:

         Americans have become so imbued with the idea of the sovereignty of the self--the autonomous agent who takes responsibility for his or her life, the way life unfolds, and the values that inform it--that other ways of living the life of a person become almost unintelligible. (7) The 'culture' of a country plainly leaves its mark, as demonstrated by the extraordinarily low take-up of adult guardianship in Hong Kong. There the demand for guardianship has run at well below one percent of the New South Wales volumes, despite having adopted broadly similar legislation to that State. (8)

         So a key issue is whether Australian guardianship harmonises with current and emerging cultural values.

      3. Pragmatic influences on policy

         Many of the forces at work are pragmatic responses to new configurations of society, however. Such as shifts in the age profile of the community, different patterns of engagement in the workforce, and new priorities and aspirations of the pool of people formerly relied on to power 'civil society'.

         Thus 'personal' guardianship is not an institution for the friendless and abandoned. Or for those whose relatives are too distant to manage their affairs, or too pre-occupied with work or other obligations to permit them to do justice to the legal mandate. This is so whether the personalised guardian has previously been identified and set up under enduring power of attorney provisions, or is being considered for appointment for the first time by a guardianship tribunal. (9)

         So demographic trends, such as the slimming out of the 'potential carer' age groups within society, and disproportionate growth in the older age bands, necessarily diminishes the pool of prospective guardians. Likewise, labour market trends, such as female participation rates, and the diversification, insecurity and 'non-standard' working hours of many employees.

         The question, then, is whether these transformations have altered the landscape within which adult guardianship law was constructed.

   2. Shaping the local 'culture'

      Certainly some ideas are driven by more ideological pressures, as with the US renaissance within welfare provision of ideas of 'reciprocity' or 'mutual obligation'. (10) Or as illustrated by the shift from government provision to contracting out of services. The return to favour of the Nineteenth Century idea of providing government services in partnership with non-government agencies is a third example.

      But which (if any) of these may impact on Australian guardianship?

      1. Entrepreneurial government?

         Entrepreneurial government, or a shift to 'contractualism' is certainly now a feature of welfare reform in America for instance. (11)

         A trend summed up by Diller as characterised by three different epochs of administration: first, one where the professional discretion of social work was king, later substituted by the 'rights' and entitlement paradigm of lawyers, but now populated by the 'managerial' principles so close to the hearts of MBA graduates. (12)

         If guardianship followed suit, we would expect to see a distant past where social workers and other professionals handled guardianship issues as an integral part of their discretionary management of clients. This would then have been superceded by a 'rights' or 'social facilitation' model. That prediction is not far wide of the mark: until the mid 1980s there was significant support in the literature for a 'social work' model of guardianship, (13) and legislation routinely granted guardianship powers to medical or other authorities, either as a product of say admission under the Mental Health Acts or on lodgment of 'medical certification' of infirmity. (14)

         So does this mean that ideas of contracting out of guardianship services and responsibilities, establishment of 'quasi markets' of private providers of guardianship for a fee, or casemanagement of guardianship--can all be expected as the next step? Perhaps not. Australia may be too robustly wedded to public provision and respect for a rights model for this to eventuate. But one cannot be certain. Victoria's previously well regarded 'rights and entitlement' model for the intellectually disadvantaged, as enshrined in its Intellectually Disabled Persons' Services Act 1986 (Vic.) came under sustained Departmental pressure on just this ground. Preference was expressed for performance standards, casemanagement and various other managerial tools. These gained Departmental favour over the reporting and monitoring machinery established under the Act, despite endorsement of the legislative approach in the Auditor General's Report. (15)

      2. Mutuality and reciprocity?

         Guardianship is fortunately not caught up in the 'reciprocity' game which now complicates many of the claims made against the public purse by so-called 'undeserving' welfare clients. Such as are illustrated by the difficulties confronting the long-term unemployed: who find themselves portrayed as 'freeloaders' making less than their required social contribution--such that in consequence they are often obliged to be 'churned' through coercive programs (such as Workfare) without obvious benefit. (16)

         Perhaps because guardianship caters mainly to the aged, it is largely immune from these pressures. Even in the US the aged are seen as specially exempted from mutuality expectations by virtue of having made their contribution already. (17) So continued state support to protect such deserving and 'vulnerable' populations would seem to be a reasonable expectation for the future.

      3. The non-government sector as partner?

         But perhaps guardianship is a role for the non-government charitable agencies rather than one for the state? These ideas have much currency in the US. (18) Indeed they have been boosted under the Bush Administration (19) based on renewed interest in Victorian Britain's ideas about self-help and religious re-centering as a basis for tackling problems such as poverty. (20) The argument being that:

         Unlike the state--which does more harm than good by alleviating poverty--churches, charities and other voluntary associations teach the poor to help themselves. Churches can tell the difference between the deserving and undeserving poor. They can help those who need it, and help those who don't simply by not helping them. (21) I have suggested elsewhere that such arguments cannot be ignored. (22) Moreover, they have found some resonance in the McClure report (23) and in public remarks by Minister Abbott, such as his observation in delivering the Kemp lecture that:

         Official compassion arguably has done as much harm as good by trying to alleviate the results of poverty rather than its causes ... guaranteeing the wherewithal for life can easily remove the motivation for work. (24) Nor is this line unknown to debates about adult guardianship, with Johns & Bowers proposing that any public guardianship sector in the US needs to be well resourced, but should be decentralised to local areas, and controlled by local not-for-profit organisations. (25) A position with some similarities to the more institutionalised welfare services 'team' approaches. (26)

         This reconfiguration of the 'burden of responsibility between the state, the market, and the loosely aggregated 'private sphere' (of self-reliance, community, family and household support') can yield public policy gains under certain conditions. Such as in dealing with entrenched bureaucratic cultures of delivery of health in Britain. (27) But one doubts that guardianship is a case where sectoral reconfiguration would be...