Ch18 Disability Law

The Law Handbook
YOUR PRACTICAL GUIDE TO THE LAW IN NEW SOUTH WALES
12th EDITION
REDFERN LEGAL CENTRE PUBLISHING

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First edition published by Redfern Legal Centre as The Legal Resources Book (NSW) in 1978.
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Note to readers: While every effort has been made to ensure the information in this book is as up to date and as accurate as
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problems. The Law Handbook is intended as a guide to the law and should not be used as a substitute for legal advice.
National Library of Australia

Cataloguing-in-Publication entry
The law handbook: your practical guide to the law in NSW/edited by Helen Sheridan.

12th ed.

Includes index

ISBN 9780455229393

Law New South Wales Handbooks, manuals, etc.

Legislation New South Wales

Jurisprudence New South Wales Handbooks, manuals, etc.

Civil rights New South Wales.

Sheridan, Helen

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18
Disability law
Tim Chate Intellectual Disability Rights Service
Janene Cootes Intellectual Disability Rights Service
Alexandra Craig Intellectual Disability Rights Service
Alex Faraguna Intellectual Disability Rights Service
Margot Morris Intellectual Disability Rights Service
Marissa Sandler Intellectual Disability Rights Service
Karen Wells Intellectual Disability Rights Service
Geoffrey Tremelling Legal Aid NSW
Contents
[18.10] Intellectual disability
[18.30] Rights of people with intellectual
disability
[18.60] Services provided or funded by
the government
[18.100] Accidents, injuries and other
harm
[18.160] Consumer protection
[18.200] The criminal justice system
[18.260] Discrimination
[18.270] Employment and industrial issues
[18.330] Guardianship and financial
management
[18.360] Housing
Law Handbook_12e CH18.indd 483
[18.400] Personal relationships

[18.450] Parents with intellectual disability
[18.480] Wills
[18.510] Guardianship and

property management for adults
[18.520] The Guardianship Act
[18.540] The Guardianship Tribunal
[18.570] Guardianship
[18.610] Property management
[18.640] Consent to medical and dental
treatment
[18.670] Appeals
19/4/12 10:10:14 AM
484 The Law Handbook
[18.10]
Intellectual disability
Intellectual disability is a disability that primarily affects the way a person learns. It is one of
the developmental disabilities. A person can be
born with an intellectual disability or it may
develop before the age of 18. Two to three per
cent of the population is described as having an
intellectual disability.
Every person with intellectual disability is a
unique person and the effect of the disability
will vary from person to person.
Some common effects are:
the person can learn but may take longer to
learn things
the person may need additional and specific
teaching or training to learn things
the person is likely to have difficulty reading
and writing
it may affect how the person communicates
it can affect how well the person
understands
the person may have difficulty understanding abstract concepts
it can affect the persons ability to adapt to
new or unfamiliar situations
it can affect the persons ability to plan
ahead
it can affect the persons ability to solve
problems without support.
The clinical definition of intellectual disability
is that it is disability which occurs in the developmental period (that is, before the age of 18)
and is characterised by below-average intellectual functioning. The clinical definition requires
IQ to be assessed as 70 or under, plus deficits
in at least two areas of adaptive behaviour.
Adaptive behaviour areas include communication, self-care, home living, self-direction,
leisure and work, learning, and social skills.
Intellectual disability is best clinically assessed
by a psychologist.
An IQ assessed as being in the range 71 84
may mean that a person would be described as
having borderline intellectual functioning.
Intellectual disability is different from
mental illness and other cognitive disabilities,
like brain injury, dementia, autism or Asperger
syndrome.
[18.20] United Nations

Convention of the Rights of
Persons with Disabilities
In July 2008 the Australian government ratified
the United Nations Convention on the Rights of
Persons with Disabilities (the Convention). This
international human rights instrument, drafted
by and for people with disability, reinforces the
fundamental human rights to fair treatment,
dignity and respect, and access to civil society
that people with intellectual disability should
enjoy.
The Convention sets down eight guiding
principles which governments and other public
bodies should take into account when carrying
out their work. They are:
(a) respect for inherent dignity, individual
autonomy including the freedom to make
ones own choices
(b) non-discrimination
(c) full and effective participation and inclusion
in society
(d) respect for difference and acceptance of
persons with disabilities as part of human
diversity and humanity
(e) equality of opportunity
(f) accessibility
(g) equality between men and women
(h) respect for evolving capacities of children
with disabilities and respect for the right of
children with disabilities to preserve their
identities.
The Convention also makes detailed statements
about the rights of persons with disabilities
that countries who have signed the Convention agree to. Each country has to report to
the United Nations Committee on the Rights
of Persons with Disabilities about the actions
it has taken to implement the Convention. The
Committee can also investigate complaints that
a country has breached the Convention if all
internal avenues to redress the problem within
the country have been exhausted.
More information is at www.humanrights.
gov.au/disability_rights/convention.
19/4/12 10:10:15 AM
18 Disability law 485
Where people with intellectual disability live and work

People with intellectual disability have access to the
same fundamental rights and opportunities as all people
in the community. Many people with intellectual
disability work and live independently in the community.
Some may live in supported accommodation and
may work in supported employment services for people
with disability, known as business services. Others
work in open employment and may be supported
with adjustments in the workplace and by a disability
employment service.
Some people with intellectual disability who have

high support needs live in group homes or larger
respite care accommodation. The NSW government
has expressed its commitment over the years to
reduce the numbers of people living in these forms of
accommodation and placing them in more appropriate,
inclusive and independent accommodation.
With the right supports, adjustments and environ
ment, people with intellectual disability can acquire
new skills and live independently in the community.
Rights of people with intellectual

disability
[18.30]
People with intellectual disability have the

same rights as everyone else for example,
rights in regards to privacy, compensation for
negligence, freedom from discrimination and
rights as victims of crime. They also have the
right to access the same range of legal and other
remedies to enforce their rights that all citizens
have.
Some laws include rights and protections
specific to people with disability. These aim to
ensure equality for people with disability. Some
also aim to protect people with disability in
circumstances of vulnerability.
[18.40] When rights are infringed

Non-legal remedies
As for all people in the community, where a

person with intellectual disability has been
treated unlawfully or their rights have been
infringed, the first step often is to consider nonlegal remedies and ways to informally resolve
and remedy what has happened. This can result
in quicker and less stressful outcomes than
making a formal complaint to a complainthandling body or going to court. Going to
court can be costly and there is always the
risk that a person will not succeed in their
case. Informal ways of resolving problems also
allow the person bringing the complaint to be
involved and to have their say. People with
intellectual disability should always talk with
an advocate or lawyer about informal ways to
solve a problem. Some informal ways to solve a

problem are outlined below.
Complaints to members of parliament
Complaints about government bodies or more

general problems, eg lack of accessible transport
in a particular area or lack of respite services,
can be made to a persons local member of
parliament. Local members of parliament have
to follow up complaints made by people in
their community.
When making a complaint to a local member
of parliament, it is best to:
see them in person, so contact their office to
make an appointment
write down your concern or complaint and
hand this to them when you meet them or
post or email it to them
be clear about how you want the complaint
resolved how you want it fixed
take someone along to the appointment for
support.
You might also be able to make a complaint
to the state and Commonwealth government
ministers responsible for the area of government in which your problem has arisen. For
example, if your problem is about schools,
you could write a letter of complaint to the
stateand Commonwealth ministers for education, asking them to do something about it.
Ministers are also required to respond to
complaints they receive, just like local members
of parliament.
19/4/12 10:10:16 AM

If there are other people also affected by the
problem you are facing you could ask them to
join you in your complaint. Action or advocacy
groups for people with disability, such as the
NSW Council for Intellectual Disability or
People with Disability Australia might take
up your issue and can lobby and campaign
the government as well. You can get very good
outcomes when you get a lot of people supporting your cause. Dont be afraid to ask others
for help and support you may be surprised by
how many other people have been in your situation and how much strength and support you
will get from them.
Negotiation by writing letters and meetings
Problems can sometimes be solved by negotiation, so that formal and costly processes in
courts and tribunals are not needed. Negotiations can be done by writing letters or meeting
with the organisation or person involved in the
rights problem. However, people with intellectual disability often feel powerless when trying
to negotiate and they can feel intimidated and
bullied. A person with intellectual disability
should ask family, friends, advocates and, if
possible, a lawyer to assist and support them
in writing letters and in meetings. This sort of
support can improve the chances of a good
outcome for the person. While there is no legal
right, it is good practice and in line with procedural fairness principles for organisations,
government agencies and employers to allow
a person with intellectual disability to bring a
support person with them along to meetings. If
this is refused, you should ask them to give you
written reasons for the refusal.
problem. Mediation conferences are run by

impartial, trained mediators. For information
refer to chapter 20, Dispute resolution.
Free legal assistance

Many people with intellectual disability cannot
afford to pay for a lawyer to assist them to
negotiate a good outcome for their problem
or to run a legal case for them. There are
places where free legal advice and assistance is
available.
Community Legal Centres
There are community legal centres throughout NSW that help the people in the local area
with legal problems. These are called generalist community legal centres. In addition to
these generalist centres, in NSW there are two
specialist community legal centres that focus
on protecting and promoting the rights and
autonomy of people with disability:
the Intellectual Disability Rights Service,
that provides legal advice and assistance
for people with intellectual disability and
support persons for people with intellectual
disability in police stations and in criminal
courts, and
the NSW Disability Discrimination Legal
Centre, which has recently changed its name
to the Australian Centre on Disability Law,
which provides advice to people with dis
ability about disability discrimination law.
LawAccess NSW
If you need some free basic information about the law
and legal problems over the telephone, you can call
LawAccess NSW on 1300 888 529.
Mediation/Conciliation
Legal Aid NSW
Some rights issues or complaints may be able to

be resolved through mediation if both parties
are willing to discuss a matter and work toward
a solution. Sometimes the power imbalance
between the person with disability and the
other party may mean that mediation may not
be suitable. Once again it may be important
for the person with disability to have a support
person present. Mediation may also be unsuitable if one party is afraid of the other.
Community Justice Centres provide free
mediation services throughout NSW to help
people who have some dispute or disagreement
to reach a resolution or agreement about their
Legal Aid NSW can provide free legal advice

and, in some cases, legal representation in a
number of areas of law. Most Legal Aid NSW
offices give free legal advice by appointment. If
you have a disability you should tell Legal Aid
NSW when making the appointment so they
can set aside some extra time if you need it. You
might also want to bring a support person. You
should let Legal Aid NSW know this as well. It
can be difficult to get an appointment at Legal
Aid NSW so dont leave it till the last minute.
For Legal Aid NSW to take on your case and
represent you in court you must meet Legal Aid
NSW means test and your case must meet Legal
19/4/12 10:10:16 AM
Aid NSWs merits test to get a grant. People with

intellectual disability will usually be eligible for
legal aid, especially if they receive the Disability
Support Pension. A person with a disability is
considered by Legal Aid NSW to have exceptional circumstances or special disadvantage.
This means that in some sorts of cases, where
Legal Aid NSW would not normally represent
a person, they may represent a person who has
a disability. For example, if someone has to go
to court because another person has applied to
have an Apprehended Domestic Violence Order
or Apprehended Personal Violence Order taken
out against them. Legal Aid NSW would not
normally represent a person in this situation
unless the person had a disability or some other
exceptional circumstances. For more information about how Legal Aid NSW works and its
services, see chapter 5, Assistance with legal
problems.
Private lawyers
Private lawyers can apply to Legal Aid NSW

for a grant of legal aid which means that Legal
Aid NSW will pay the lawyer a fee to provide
legal assistance. The rules about being eligible
for this help from Legal Aid NSW are the same
as outlined above.
Sometimes lawyers in private law firms do
work for people for no charge. This is called
pro bono work. Other times they might think a
case is strong and agree to work for the person
on the basis that they will only charge them a fee
if they win their case. Normally, however, they
will charge a fee for all clients. It is important
that private lawyers know how to work with
people with intellectual disability. They should
be flexible in how they work with their client.
They may need to give more time to a client
with intellectual disability and they may need to
adjust their communication methods, too.
Advocacy
Advocates assist people with disability to assert their
rights and to access services. They can help write
letters, fill out forms, go to appointments and do a
range of other day-to-day activities. Advocates are
not the same as lawyers. Advocates may be friends
or family of a person with disability, or volunteers
from the community and paid workers from disability
organisations. There are advocacy organisations
specifically for people with disability. For the contact

details of some of the major advocacy organisations in
NSW, see Contact points at [18.690].
The NSW disability service standards, which
are part of the Disability Services Act 1993 (NSW)
and apply to government agencies, allow advocates
to participate in complaints and dispute resolution
processes (Disability Standard 7.8).
Assisting, advising and acting for people

with intellectual disability tips for
solicitors
People with intellectual disability are

confronted with many barriers in their day-today lives. They need lawyers they deal with to
make adjustments themselves to reduce these
barriers and maximise the capacity of the client
with disability. It is essential that a lawyer
working with a person with intellectual disability make adjustments to their communication
methods and usual practices.
The client with intellectual disability is likely
to have difficulty reading, so a lawyer should
not rely on letters to communicate. The lawyer
may need to use pictures to help explain legal
concepts. It is important to allow additional
time, use simple language, avoid legal jargon,
use short sentences, explore one idea at a time,
check understanding of important information. Many people with intellectual disability
will work hard to cover up their difficulties. If
you simply ask do you understand the person
is likely to say yes. Ask the person to explain
back in their own words. Try again or come
People with intellectual disability are entitled to

be legally represented and to have their wishes
and rights legally respected. Just because a
person has an intellectual disability does not
mean they are unable to instruct a lawyer or to
understand the law. In some cases, a persons
intellectual disability (or other cognitive
disability, like dementia or brain injury) may
be so significant that even with support and
communication adjustments, they do not have
the capacity in the eyes of the law to instruct
a lawyer. In these circumstances, it is said the
person lacks legal capacity. A decision about
legal capacity should not be made prematurely.
It should not be made without trying different supports and communication adjustments
or without consulting a range of people in the
persons life for example, family, doctors,
carers and service providers.
19/4/12 10:10:17 AM

back later to the information in a simpler way
if the message hasnt been understood. The
lawyer should let the client know that they
want the client to tell them if the information is
confusing. If the client is agreeable, encourage
them to bring a support person who can help
them to explain and remember.
Does the client have legal capacity?
The Law Society of NSW has developed guidelines for
solicitors When a clients capacity is in doubt (2009)
which is available on its website at www.lawsociety.
com.au/solicitors/professionalstandards/ethics/
protocolsguidelines.
The Capacity Toolkit is also a very practical
resource for solicitors. It is available on www.lawlink.
nsw.gov.au/diversityservices.
When another person steps in for a person who

lacks legal capacity
If it is determined that a person lacks legal

capacity, but they have a strong legal case
or need their rights protected, it is possible
to arrange that someone, such as a relative
or friend, can bring the case on that persons
behalf. Such a person is sometimes called a
tutor, a next friend or a guardian ad litem. This
is discussed in more detail in the Law Societys
guidelines on capacity.
[18.50] Privacy and access to

personal information
There is no law saying that everyone is legally
entitled to all personal information about them
held by an organisation. Also, there is no general
right to privacy in Australian law, but there are

some protections provided in specific situations.
In NSW the Privacy Act 1988 (Cth) and the
Privacy and Personal Information Protection
Act 1998 (NSW) create rights and responsibilities about collecting, disclosing, using and
providing access to personal information.
These Acts place restrictions and responsibilities on the way personal information is used
and disclosed by government agencies, private
sector organisations and health service providers. The Acts also create some rights for people
to access and amend personal information held
about them.
The Health Records and Information Privacy
Act 2002 (NSW) sets out privacy protections
to be adhered to by NSW government agencies
and some private sector organisations that
provide health services and hold health info
rmation about people. In many instances,
information about a persons disability would
be considered health information.
Freedom of information
The Government Information (Public Access)
Act 2009 (NSW) (GIPA Act) came into force on
1 July 2010. It replaces the Freedom of Infor
mation Act 1989. The object of the GIPA Act is
to open government information to the public.
Under the GIPA Act, a person can request
access to and copies of personal information held about them by government agencies
and departments. For more information on
this area of law, see chapter 27, Freedom of
information.
19/4/12 10:10:18 AM
Services provided or funded by the

government
[18.60]
A number of government agencies and departments are responsible for funding and providing
services and support for people with intellectual
disability in NSW.
[18.70] Ageing, Disability and

Home Care, an agency of the
NSW Department of Family and
Community Services
Ageing, Disability and Home Care (known as
ADHC) funds and provides a range of services
for people with intellectual disability, including assessment, accommodation, casework
support, skills development and training,
behavioral intervention, respite care, and day
services. If you have problems with disability
services, whether they are government or nongovernment, you should see if they receive
funding from ADHC.
Law and standards on disability services

The Disability Services Act 1993 (NSW) is a
law that covers Ageing, Disability and Home
Care and all other disability service providers
that are funded by ADHC. ADHC and these
services must follow the principles and standards in the Act. The standards are known as
the Disability Service Standards and they talk
about things like the quality of service delivery.
Although standards are aspirational only, and
cannot be enforced in the courts by bringing
a legal case, they are useful to refer to in any
letters or negotiations you have with ADHC or
a disability service provider.
The Disability Services Act and disability
action plans
Under the Act, all government agencies and authorities
are required to prepare a plan to ensure that people with
disability have access to their services and programs. If
you have a problem with a government agency you
should ask them for a copy of their disability plan.
[18.80] Department of Families,

Housing, Community Services and
Indigenous Affairs (FaHCSIA)
At the Commonwealth level there is the Department of Families, Housing, Community Services
and Indigenous Affairs (known as FaHCSIA)
that funds and administers employment support
services and some advocacy services for people
with disability.
Commonwealth laws on disability

advocacy and employment
The Commonwealth government also has a Dis
ability Services Act 1986 (Cth). The law covers
disability employment services and disability
advocacy services funded by FaHCSIA. Employment services for people with disability are
required to meet the disability service standards
under this Act. A core component of the standards is that these organisations involve people
with disability in making decisions, and respect
their rights and dignity. For example, it would be
of concern if an organisation had the practice of
not allowing a person with disability to make a
complaint about a service they were receiving.
The Complaints, Resolution and Referral
Service is an independent service that can be
contacted to help to sort out complaints about
a service funded under the Commonwealth
Disability Services Act. These include Dis
ability Employment Services (DES) including
Commonwealth Rehabilitation Service (CRS
Australia), Australian Disability Enterprises and
advocacy services. See Contacts at [18.690].
[18.90] Complaints about

government services and
government-funded services
The Ombudsman
The NSW Ombudsman can investigate the

conduct of NSW government departments
and agencies, prescribed statutory authorities
19/4/12 10:10:18 AM

and local councils. Complaints about services
provided or funded by agencies of the NSW
Department of Family and Community
Services including Ageing, Disability and Home
Care (ADHC) can be made to the Community
Services Division of the NSW Ombudsman.
Complaints to the Community Services
Division can be made about such services as
licensed boarding houses, respite services and
disability accommodation services under the
Community Services Complaints Review and
Monitoring Act 1993. The NSW Ombudsman
can also investigate and conduct enquiries into
problems affecting groups of people with intellectual disability and has the power to conduct
a review of the situation of a child in care or
[18.100]
a person in care (ie in the care of a service).

The NSW Ombudsman does not have powers
like a court to make orders. Instead, the NSW
Ombudsman can help to try to resolve the
problem and can publish the findings of its
investigations and make recommendations
direct to the NSW government.
There is a Commonwealth Ombudsman
who investigates the administrative conduct of
Commonwealth government departments and
agencies.
For a detailed explanation of Ombudsman powers
and how to make a complaint to either the NSW
or Commonwealth Ombudsman see chapter10,
Complaints.
Accidents, injuries and other harm
If a person with intellectual disability suffers

any harm, loss or injury because of the negligence or intentional interference of another
person or organisation, they should talk with a
lawyer, advocate or the police immediately.
Get legal advice
Anyone wishing to bring a case should consult a
solicitor who is experienced in personal injury law.
If the injury is work-related, the solicitor should also
be experienced in workers compensation matters.
Community legal centres can give some advice in
the area of personal injury, but do not give advice on
workers compensation.
[18.110] Disability workers duty

of care
Disability service providers and their staff who
work with people with intellectual disability
owe their clients a duty of care under the law of
negligence. If they breach that duty, then they
can be liable for any harm, loss or injury that
directly results from that breach.
These workers include supervisors at busi
ness services and staff at group homes and
large residential centres. Whether a person
is employed by the Commonwealth or
NSW government, or is employed in a non-
governmental organisation, each owes a duty

of care to their clients.
What a duty of care involves

In its simplest terms, a duty of care requires a
person to exercise the care a reasonable person
would exercise in the same circumstances. For
example, a disability worker who didnt check
the bath temperature for a client could be in
breach of their duty of care and therefore liable
if the client is badly scalded and disfigured as
a result.
What standard of care is appropriate?
The standard of care expected will vary according to the circumstances of the particular case.
It will be determined by industry and professional standards, the skills and training of the
worker, community standards and recent court
decisions in similar cases. The standard of care
is not determined simply by what a person
demands or believes it should be.
A person undertaking work that calls for
special skills, such as a nurse or a surgeon,
must measure up to the standard of proficiency
and skill required in that profession, and the
reasonable person will be taken to have those
special skills. A worker without special skills
may not owe such a high duty.
19/4/12 10:10:19 AM
When a person can be sued for

negligence
Where the use of reasonable force may

be permitted
If a person owes a duty of care to someone, fails

in (or breaches) that duty and harm, loss or
injury is suffered as a result, the injured person
may be able to sue for negligence. If they are
successful, then usually a court will award them
money as compensation with the aim of trying
to restore their position as though the breach
of the duty of care and resulting loss had never
occurred. For negligence, you dont need to
show that the person intended to breach the
duty of care or had any malice. All you have
to show is that they didnt meet the standard of
care expected of the reasonable person in the
same circumstances.
A person may use reasonable force to defend

themselves, their property or someone else from
attack or harm. This is sometimes called self
defence. While there are no clear rules on when
a person can use force and what level of force
they can use, there are some things the courts
pay particular attention to. They include:
how imminent the threat is
how serious the threat is
whether it is necessary to use force or
whether there are other avenues available to
the person (like running away)
what level of force was used and whether
it was more than was needed to subdue the
person and contain the risk.
[18.120] Intentional interference

Where a person with intellectual disability
suffers harm, injury or loss as a result of intentional conduct or interference, there are other
legal courses they can follow. Examples of
intentional interference include:
the use of physical force, or actions that
make the person fear that they might be
harmed, which is assault and should be
reported to the police
being kept in a locked room or unit or
stopped from going where a person wishes,
which is false imprisonment and should also
be reported to the police.
People with intellectual disability are sometimes
quite vulnerable to intentional interference and
abuse. Where a person with intellectual disability reports interference or abuse, this should be
taken seriously and reported to police or other
authorities immediately.
Intrusive or restrictive practices
Physically intrusive and restrictive practices can only
be used on a person in an emergency where a persons
health, life or safety is at risk. Such practices should
never be used as a behaviour management strategy
merely to control a persons challenging behaviour.
If intrusive or restrictive practices are proposed to
be used on a person, then the proposal should be taken
before the NSW Guardianship Tribunal for a specific
order. The tribunal will seek the opinions of a range of
people in the persons life, including family, doctors,
psychologists, carers and service providers before
making its decision and orders.
[18.130] Suing for damages

A person who suffers harm, loss or injury
because of negligence or intentional interference can sue for damages. The Civil Liability
Act 2002 (NSW) has had a profound impact
on this area of law. People are now required
to look after themselves and take responsibility
for their actions.
The Act was introduced to promote
personal responsibility and as a result it makes
it far more difficult for a person (the plaintiff)
to succeed in suing for damages. You should
talk first with a lawyer about whether you have
a strong enough case to sue for damages. Suing
someone in court for damages can be an expensive, long and complicated process and you
need to plan it very carefully.
Liability of employers
There is a general principle in law that people

are personally responsible for any harm, loss
or injury they cause to another person. This
is the starting point in the law of negligence.
However, there is another principle in law that
says employers are liable for any harm, loss or
injury their employees cause to another person,
so long as the conduct causing that harm, injury
or loss is committed by their employees in the
ordinary course of their job.
There are different categories of workers
and not all of them are contracted employees.
Some are known as independent contractors.
Most disability workers are employees and so
19/4/12 10:10:19 AM

if they breach their duty of care, they can be
sued personally and their employer can be sued
as well. If both the employer and the employee
are sued, the court will determine the liability
of each in the circumstances and how much
compensation each has to pay. As discussed
above, you should talk with a lawyer before
you sue in court.
[18.140] Injuries in private

accommodation
to sue the owner or occupier for breach of a

duty of care. Boarding house proprietors, for
example, are occupiers and owe their residents
a duty of care.
The occupiers duty of care

An occupier (like a landlord or boarding house
proprietor) owes a duty of care to their residents and can be sued for negligence if they fail
to take reasonable care to prevent foreseeable
risks of harm, injury or loss.
People who suffer harm, loss or injury in private

(non-government) accommodation may be able
Some examples of an occupiers liability
Len is the proprietor of a boarding house. Robyn, a
resident with intellectual disability, was injured on a
common staircase which Len knew was in a dangerous
condition. Robyn could sue Len for damages.
Bob lives in a group home. While having a bath,
he inhaled fumes from a faulty water heater and
became ill. Lucy is the manager of the group home
and she works for a non-governmental organisation.
That organisation is considered the occupier of the
home. If Lucy, as an employee of the occupier, could

not reasonably have been expected to be aware of the
problem with the water heater and that it could cause a
resident to become ill, her employer will not be liable
for Bobs illness. But if she knew about the heater and
the dangers it presented or she had not organised
regular maintenance of it and had failed to fix it, her
employer may be liable for Bobs illness.
[18.150] Workers compensation
The worker may also seek advice from

WorkCover or their union about making a
complaint about safety. Workers compensation is discussed in more detail in chapter24,
Employment.
A worker who suffers an injury arising out of

or in the course of employment may be able
to claim workers compensation. This includes
workers with intellectual disability employed
in open employment or disability employment
services.
[18.160]
Consumer protection
Where a person with intellectual disability has

made a contract or gift that is contrary to their
interests, the law can assist in a number of
ways (see chapter 11, Consumers, chapter12,
Contracts and chapter15, Credit).
[18.170] Did the person have

capacity?
A person who lacks general understanding
of the nature and effect of a contract or gift
is said by the law to lack capacity. Some, but
not all, people with intellectual disability may
lack capacity to enter a contract or make a gift.

A persons capacity can vary over time and it
should not be assumed a person always lacks
capacity. Also, a person without support may
lack capacity, but where that person has support
(like a family member to explain things more
clearly) they may no longer lack capacity.
In deciding whether a person has capacity
in relation to a particular transaction, attention is paid to the level of understanding of the
person, the complexity of the transaction and
the value of the property involved. The more
complex the transaction and the higher the
19/4/12 10:10:20 AM
value of the property, the greater the understanding required.
Contracts for necessaries

Incapacity has no effect on contracts for the
purchase of necessaries, as long as only a
reasonable price was paid.
Necessaries are things needed to maintain
a reasonable lifestyle, such as food, clothing,
medical treatment and shelter.
Gifts
A person can give another person a gift, without
receiving any benefit in return. A gift may be
overturned if:
the person giving it lacked capacity at the
time
any property that the person with intellectual disability wants back has not been sold
to someone else.
It is not necessary to show that the recipient
ought to have realised that the person lacked
capacity.
When may a contract be invalidon the
basisof incapacity?
In some circumstances a transaction or contract with a
person may be set aside if:
the person lacked capacity at the time
the other person knew or ought to have known the
person lacked capacity
the person can give back all or most of the benefits
received (for example, if the contract was to buy a
television, the television can be returned in virtually
the sale condition), and
any property the person lacking capacity wants back
has not been sold on to a third party (where that
third party was not aware of the capacity issue).
If a person or organisation has doubts about another
persons capacity, the safest thing to do is to go through
the contract with the person or offer them to bring a
support person to do this.
[18.180] Other ways a contract

might be overturned
A contract may also be overturned where there
was a misrepresentation, undue influence, or
unconscionable dealing.
If there was a misrepresentation

Sometimes a person enters a contract because
(or partly because) of a misleading statement
(for example, a car salesperson says this car
has only done 20,000 kilometres when the car

has in fact done 80,000). This is called misrep
resentation. Because a person with intellectual
disability might need more time to think about
an offer or might be overwhelmed by the glitz
and glamour of a sales pitch, they are sometimes more susceptible to misrepresentations.
Fraudulent or innocent?
If a misrepresentation is fraudulent (that is, it

is intentionally false or made without caring
whether it is false or not), usually the person
with intellectual disability can have the contract
overturned and sue for damages to recover any
loss or money paid.
However, if a misrepresentation is made
innocently, the contract can still normally be
overturned, but the person cannot usually sue
for damages.
If there was undue influence
The court can also overturn transactions

entered into as a result of undue influence (see
chapter12, Contracts).
If it is argued that the person with intellectual disability has been unduly influenced, the
other person must prove that the person with
intellectual disability made an informed and
independent decision to enter into the transaction and was not unduly influenced. This will
be easier if the person with intellectual disability received independent advice for example,
they had a support person with them at the
time they entered the contract.
If there were unconscionable dealings
This occurs where one person knows or ought

to have known about the other persons special
disability and takes advantage of it to enforce
the contract against them. (For example a
person with intellectual disability who has no
understanding of money values sells his car
for half its market value. If it is shown that
the buyer was aware of his intellectual disability then the contract may be overturned; see
chapter 12, Contracts).
[18.190] Consumer protection

legislation
What has been discussed above are all common
law principles.
There is also legislation dealing with
consumer disputes about contracts.
19/4/12 10:10:21 AM

The following are particularly important for
people with intellectual disability:
the Australian Consumer Law (found in
Sch 2 of the Competition and Consumer
Act 2010).
Contracts Review Act 1980 (NSW)
Sale of Goods Act 1923 (NSW)
National Consumer Credit Protection Act
2009 (Cth).
The general effect of this legislation is that if a
consumer contract can be shown to be unfair
or unjust (or in credit contracts unsuitable)
then the consumer may be able to have the
contract overturned and recover any loss.
The factors that are taken into account
include:
unequal bargaining power
undue pressure or coercion
unreasonable harassment
false advertising
concealment of defects
unreasonable conditions in the consumer
contract
[18.200]
overly complicated language and form of

the contract
limited educational background and lit
eracy
whether there was help or advice given
whether a support person was present
physical and mental disability
poor economic circumstances
undue influence, etc.
A person with intellectual disability (either
alone or with the help of a support person) can
take legal action under these laws.
See chapter11, Consumers, chapter12, Contracts
and chapter15, Credit for a full explanation of the
operation of this legislation.
Note: Insurance policies are contracts commonly made
by consumers for the protection of their homes and
contents, motor vehicles, and travel arrangements etc.
Most insurance policies are not covered by consumer
protection legislation. The Insurance Contracts Act
1984 (Cth) and common law principles are the main
laws for insurance (see chapter 31, Insurance).
The criminal justice system
People with intellectual disability are overrepresented in the criminal justice system.
Without the right intervention, case management and support, people with intellectual
disability can find themselves trapped in the
revolving doors of the system. Many people
with intellectual disability are not recognised,
properly assessed, assisted and diverted into
support services by lawyers and the courts, and
become institutionalised in prisons. People with
intellectual disability are vulnerable to violence,
exploitation and abuse in prison.
A person with intellectual disability may
become involved with the criminal justice
system as a:
victim of crime
person accused of a crime, or
witness.
[18.210] Communication
barriers to accessing justice
Adjusting the way you communicate

People with intellectual disability are confronted
with difficulties and barriers throughout the
criminal justice system, whether they are
victims, accused or convicted. Many of these
difficulties can be overcome by those around the
person with intellectual disability making some
adjustments to their communication methods.
Below are some suggested adjustments to assist
a person with intellectual disability to tell their
story:
use short sentences and clear language one
idea at a time
encourage free recall let the person tell
their story
be prepared to wait for the person to answer
taking in information and answering may
take longer than youre used to
19/4/12 10:10:21 AM
allow more than the usual time for an interview be patient

check whether the person understands what
youre talking about you can do this by
asking the person to explain in their own
words what youve told them
allow regular breaks the person may have
limited concentration
talk with the person in a quiet and private
place, free from distractions
if necessary, allow them to have a support
person present.
The Intellectual Disability Rights Service has
expertise in communication methods and
support for people with intellectual disability.
[18.220] As a victim of crime

Barriers to getting justice
People with intellectual disability are more
likely to be victims of crime because they can
be more vulnerable and less able to protect
themselves.
A person with intellectual disability who is
a victim of a crime has the same rights to the
protection and assistance of the law as anyone
else, but in practice it often does not work out
that way.
Some problems are:
they may not understand that what
happened to them is against the law
they may be reluctant to report a crime if
the perpetrator is a staff member or resident
of an accommodation service in which they
live, or a family member or acquaintance
they may not be believed by others
police or prosecutors may decide not to
take the case forward because they feel the
person will not be a reliable witness.
These problems can often be overcome by
people supporting and making adjustments
in communication methods with the victim
so as to encourage them to speak up against
violence and abuse. It is particularly important
that police and prosecutors do not assume a
person with intellectual disability cannot give
reliable evidence, as this might amount to
unlawful disability discrimination. The Intellectual Disability Rights Service can provide
trained support staff to attend police interviews
to help people with intellectual disability who
have been victims of crime.
Getting legal assistance

It is important that victims with intellectual
disability or those assisting them obtain legal
advice about the persons civil remedies (like
suing for damages or victims compensation)
in addition to reporting the matter to police.
The Intellectual Disability Rights Service can
provide free legal advice and assistance in these
circumstances.
If the person is interviewed by police

Right to a support person
Modification to and support in the interview

process applies to a vulnerable person whether
they be a suspect, accused or victim. The NSW
Police Force Handbook instructs police that
when a person with impaired intellectual functioning is to be interviewed:
Whether the person is a suspect, witness or
victim before starting an interview:
ensure the person understands the reason
for the interview and why they are there
(a support person may be able to help you
in making yourself clearly understood)
ask them if they wish to have a support
person present, and take reasonable
stepsto arrange one if that is what they
want
find out if they are, or have been, taking
medication which might affect their
ability to answer questions
find out if they have disabilities for which
adjustments need to be made, eg: hearing
or sight impairment.
In planning the time for your interview
remember that a person with impaired intellectual functioning might need more time to
understand or answer questions
The Criminal Justice Support Network, a

service of Intellectual Disability Rights Service,
can arrange for a trained support person to
be present with a victim of crime who has an
intellectual disability when they are providing
a statement to the police. See Contact points at
[18.690].
Charter of Victims Rights

In NSW victims of crime have a Charter of
Victims Rights. The Charter seeks to protect
and promote victims rights. Some of the rights
in the Charter include that:
victims are to be treated with courtesy,
compassion and respect
19/4/12 10:10:22 AM

victims are to be informed about and given
access to welfare, health and counselling
services
victims privacy is to be protected, and
victims are to be kept informed in a timely
manner about any prosecution of the perpetrator of the crime.
While the charter does not give rise to legally
enforceable rights, they are taken very seriously
by NSW Police and other government agencies
that attend to the welfare and support of victims
of crime. If you feel that a government agency
has not abided by the charter, you should call
the Victims Support Line (ph: 1800 633 063 or
02 86885511).
Where the crime is a sexual offence a
victim should be consulted by police if police
are contemplating modifying or withdrawing charges laid against the accused (including
any decision to accept a plea of guilty to a less
serious charge) unless the victim has expressed
a wish not to be contacted or cannot be
located. Victims should also be aware of the
NSW Rape Crisis Centre (ph:1800 424 017).
Sexual offences are discussed in more detail in
chapter38, Sexual offences.
Giving evidence in court

A person with intellectual disability can give
evidence in court as long as they generally
understand that:
they have promised to tell the truth (and
what that means), and
telling a lie in court is against the law.
If there is any doubt, the court or the prosecutor
should arrange for the person with intellectual disability to be independently assessed by
a psychologist for an opinion as to whether
they understand these concepts and have the
capacity to give reliable evidence in court.
Problems in giving evidence
Sometimes people with intellectual disability

experience barriers and problems when giving
evidence in court. For example,
the court process is structured around verbal
skills and memory people with intellectual
disability can find these things more difficult
than other people
the magistrate, judge or jury may not
consider their evidence as important as
other evidence because they doubt their
understanding.
These barriers and problems can be overcome

by people offering appropriate supports and
adjusting their communication methods.
Adjustments in taking evidence from people with
intellectual disability
In some circumstances the Evidence Act 1995

(NSW) and Criminal Procedure Act 1986
(NSW) will permit adjustments to be made to
the way a person with intellectual disability
gives evidence in court and how they may be
cross-examined. There are also rules of examination in court that prevent questioning that is
confusing, repetitive or harassing for the person
being questioned.
Amendments have been made to the
Criminal Procedure Act 1986 to improve the
way victims of sexual assault are treated in
court.
Some of these changes relate to all victims of
sexual assault:
The victim no longer has to face the accused
person in court. They can give evidence from
a private room away from the courtroom,
which is transmitted to the courtroom via
a television. If the alleged victim wishes to
give evidence in the courtroom but does not
wish to see the accused, a request can be
made that a screen or partition be used.
The case may now be heard in a closed
court so members of the public cannot hear
the evidence.
The alleged victim may now have a support
person with them during the court proceedings. This person can be a member of the
family, friend, counsellor or professional
court support officer (provided they are not
a witness in the case).
The court strictly limits what can be published
about cases on the Internet and in the media.
This means that the alleged victims name
or any information that may identify them
must be kept confidential outside the court.
This is called a non-publication order.
If the accused person is not legally represented they can no longer directly ask the
alleged victim questions in court. Prior to
this change in the law, an accused person
who was representing him or herself in
court could directly ask questions. Now the
court may appoint an alternative person, if
required.
19/4/12 10:10:23 AM
The alleged victim may not be asked

improper questions, such as those which are
humiliating, harassing, repetitive or insulting. In particular, improper questions should
not be used by the lawyer representing the
accused during a cross-examination.
The alleged victims evidence will be
recorded so, if for any reason the trial needs
to be re-heard, they may not need to give
their evidence again.
Some additional procedures for the protection of
vulnerable persons
Extra support is provided to vulnerable people,

including children under 16 years of age and
people with a cognitive impairment. A person
is deemed to have a cognitive impairment if
they require supervision or social habitation in
connection with daily life activities, as a result
of one or more of the following:
(a) an intellectual disability
(b) a developmental disorder (including an
autistic spectrum disorder)
(c) a neurological disorder
(d) dementia
(e) a severe mental illness
(f) a brain injury.
If the alleged victim is a vulnerable person, they
may receive extra support in court, as detailed
below.
Alleged victims would normally only have
to give evidence once.
Alleged victims no longer have to appear
in the courtroom in person. A vulnerable
person can have a pre-recorded statement
played to the court as evidence. Further
evidence, such as cross-examination, can
be given in a private room away from the
courtroom, and transmitted to the courtroom via a TV screen.
The alleged victim is allowed to be with a
support person during the trial.
Arrangements may be made through the
court if the alleged victim needs help with
communication.
The Criminal Justice Support Network can
provide a support person to be at court with
a victim or witness who has intellectual
disability.
Assistance from the Witness Assistance Service
If a person with intellectual disability is to give

evidence in a case where a person has died or
there has been a physical or sexual assault, the

Witness Assistance Service (part of the Office of
the Director of Public Prosecutions) should be
contacted. The service can support the person
through the court process.
Giving evidence successfully
Sarah (not her real name) was sexually assaulted by a
bus driver on her way home from work. Even though
Sarah made a detailed statement to the police, they
thought she would be unable to withstand the pressure
in court because of her intellectual disability and told
her to go home and forget about it.
The Intellectual Disability Rights Service obtained
a psychologists report stating that Sarah would make a
reliable witness. This was used to convince the Director
of Public Prosecutions to take the matter to court.
Initially Sarah had problems coping with lengthy
cross-examination by the defence. However, after
a strong submission from the prosecution, the judge
allowed her to be cross-examined in 1520 minute
sessions, giving her time to refresh her concentration.
Her mother was allowed to sit behind her and bring to
the attention of the court any questions she felt Sarah
could not understand. Sarahs evidence improved, and
the driver was convicted.
[18.230] Victims compensation

and counselling
Where a person has been physically or mentally
injured as a result of an act of violence, whether
or not it is proven in court as a crime, they
may be able to apply to Victims Services for
victims compensation. This is called making
a victims compensation application. Acts of
violence include physical, indecent and sexual
assaults. When a person is subject to an act of
violence, they should report this to police and
be medically examined as soon as possible.
Photographs of injuries, witness statements,
counsellors notes, diary entries and CCTV
footage are the types of useful information to
include in the victims compensation application. A person who witnesses an act of violence
carried out on another person may also be
able to apply for victims compensation, as a
secondary victim.
A victims compensation claim must be
lodged within two years of the violent incident.
If an application is lodged outside the two-year
time limit, reasons must be given for the delay
and the Director Victims Services will decide
whether the application will be accepted. If
19/4/12 10:10:23 AM

the victim has an intellectual disability, this is
likely to be considered a very legitimate reason
for delay as the victim may have had no understanding of this option.
Victims compensation applications are
determined by an independent assessor through
Victims Services and the victim is not required
to go to court. The standard of proof for a
victims compensation application is lower
than for a criminal prosecution the standard
of proof is on the balance of probabilities
rather than beyond reasonable doubt. This
means that the victim only has to show that it
was more probable than not that they were the
victim of an act of violence and they suffered an
injury (or injuries) as a result. Victims compensation is discussed in more detail in chapter42,
Victims compensation.
Victims of violent crime can also apply
for free counselling through Victims Services
Approved Counselling Scheme. Too often,
counselling is not sought for people with
intellectual disability who have been victims
of crime. In seeking counselling through this
scheme, it is important to ask for a counsellor
who has experience working with people who
have intellectual disability.
People with intellectual disability sometimes
require support when reporting acts of violence
carried out against them. Other times, they will
be reluctant to tell anyone at all. If the persons
disability prevents them from communicating
what has happened, there may be indicators
such as sudden mood and behaviour changes
by the person with intellectual disability. It is
important that police and medical practitioners
make adjustments and provide support to
people with intellectual disability to encourage
them to speak up against violence and abuse.
[18.240] Accused of a crime

Encountering the system
People with intellectual disability are overrepresented in the criminal justice system.
They have increased contact with the criminal
justice system because they are more likely to
experience psychological and socioeconomic
disadvantage and sometimes do not receive
adequate support and services. Often, justice
personnel such as police, lawyers, magistrates
and judges do not recognise or understand
intellectual disability and how it may affect a

person. People with intellectual disability are
not inherently more likely than people without
intellectual disability to commit crimes.
A person with intellectual disability is more
likely to:
be charged with an offence, and convicted
admit to an offence they did not commit (to
please the police or other authority figures,
or to avoid admitting they did not understand questions)
be refused bail
receive a prison sentence and to be refused
parole (because of a lack of support options
and services in the community).
At the police station
Police currently receive little training about

identifying, adjusting to and communicating
with people with intellectual disability. They
often confuse intellectual disability with other
disabilities, like mental illness or with the
effects of substance abuse. This can lead to
unnecessary incarceration and other devastating outcomes.
Support is essential
People with intellectual disability are regarded as
vulnerable persons at law. This means that there are
special provisions to assist them when they are at
the police station, including the right to a support
person. It is also crucial that a person with intellectual
disability be offered legal advice before they give any
evidence or think about participating in an interview.
Failure to get a support person and make appropriate
adjustments for a suspect with intellectual disability
may mean any evidence the police gather will be
deemed inadmissible in court.
The Intellectual Disability Rights Service, through
its Criminal Justice Support Network, can usually
provide a support person to come to a police station
to assist any suspect with intellectual disability who
is taken to a police station for questioning 24 hours
a day, seven days a week. Criminal Justice Support
Network can also link the person to legal advice over
the phone. The after-hours phone contact for help at a
police station is 1300 665 908.
General rules about police
All police in uniform should wear a badge

that has their name and rank. Police officers
who are in plain clothes should provide their
name and station if they are asking a person
to come to the police station or if they are
arresting a person.
19/4/12 10:10:24 AM
A person does not need to go to the police

station with police unless they are being
arrested.
If a person is being arrested, the police must
read the person the formal caution about
their rights, including their right to silence.
A person who is under arrest must cooperate and go with police officers.
Generally, a person should give their name
and address when asked by police.
Except for supplying the police with your
name and address, a person generally has
a right to silence that is, the right to not
answer any questions from police.
If a person chooses not to answer questions
or give an interview, the police cannot force
the person to have this refusal recorded (on
ERISP Electronic Recording Information
with Suspected Persons). Sometimes the
police ask to do this, but they do not have
the power to insist on this. It is best to avoid
going to an interview room to be taped.
When police may give a warning
Depending on police attitudes to the person and their
awareness of the persons disability, they may exercise
their discretion to give a warning or caution to a person
rather than charge the person. This will usually only be
an option where the alleged offence is a minor one.
Rules about police conduct with a

person with intellectual disability
The law aims to protect the rights of people
with intellectual disability. People with intellectual disability are regarded as vulnerable
people at law. The police are required to follow
certain procedures when a person they have
detained has an intellectual disability, so it is in
the persons interests to tell the police they have
an intellectual disability, or for someone else
to do so on their behalf. The laws about how
police must act when dealing with a person with
intellectual disability are primarily contained in
the Criminal Procedure Act 1986 (NSW), Law
Enforcement (Powers and Responsibilities) Act
2002 (NSW) and Law Enforcement (Powers
and Responsibilities) Regulation 2005 (NSW).
The NSW Police Force Code of Practice for
Custody, Rights, Investigation, Management
and Evidence (CRIME) provides guidelines to
the police in complying with the requirements
set down under the law. This publication is
available to the public on the NSW Police Force

website.
Vulnerable persons right to a support

person
People who have impaired intellectual functioning, such as people with intellectual disability,
are recognised as vulnerable persons. CRIME
states that if police custody managers suspect
that a person is a vulnerable person, to comply
with CRIME and the legislation they must take
immediate steps to contact a support person
and organise for the vulnerable person to have
a support person present with them at the police
station and during any police interview.
Support for people with intellectual
disabilityat the police station
The Criminal Justice Support Network, operated by the
Intellectual Disability Rights Service, provides trained
support persons for people with intellectual disability
who are in contact with the criminal justice system
as suspects, accused, witnesses or victims. A support
person can attend police stations, court and legal
appointments. One-on-one support is available in
Sydney, Illawarra and Shoalhaven, Newcastle / Hunter,
Central Coast, Mid North Coast, Riverina and Central
West regions. Outside these areas the network offers a
24-hour phone service, information and link to legal
advice. The after-hours phone number for a person
with intellectual disability who is under arrest is 1300
665 908.
The Custody Manager must inform the support

person that they can assist the person with
intellectual disability, ensure that any interview
is conducted properly and fairly, and that they
should identify any communication problems
that arise.
Police must also ensure that the detained
person understands the warning the police give
about the right to remain silent. This warning
is sometimes referred to as the caution. This
might require the Custody Manager to repeat
the warning, explaining it simply or asking the
support person to help explain it.
Where to get urgent legal help

A person who has been is in police custody has
the right to contact a solicitor.
The following are options for obtaining
urgent legal advice for a person with intellectual disability who has been detained by police
for questioning:
19/4/12 10:10:25 AM

for adults and children with intellectual
disability, the Intellectual Disability Rights
Service 1300 665 908, 24 hours
for adults and children, LawAccess 1300
888 529, business hours
for people under 18 years, Youth Hotline
1800 101 810 till midnight on weekdays
and 24 hours at the weekend
for Aboriginal and Torres Strait Islanders,
Aboriginal Legal Service.
ing hair samples (other than pubic hair), taking

a sample from under a fingernail or taking a
hand, finger or foot print. Intimate forensic
procedures include procedures such as taking
blood samples, collecting pubic hair or a dental
impression. Different rules apply depending
upon whether the forensic procedure is nonintimate or intimate.
Excluding evidence in court
Forensic samples may be taken with the

informed consent of the person or with an
order of the court. Informed consent carries
with it a requirement that police inform the
person of their rights and, in particular, the
fact that the forensic procedure may produce
evidence against that person which could be
used in court. However, the legislation says
that children and mentally incapable people
cannot give their consent.
If police want to take a forensic sample from
a person with intellectual disability, the prudent
course is to seek an order of the court to do so,
as it may be that the person is not able to give
an informed consent. In such situations, you
should speak with a lawyer or the Intellectual
Disability Rights Service.
Where there is any doubt about whether an accused

with intellectual disability understands the caution,
or about the fairness of questioning or an interview
or about whether a confession is genuinely voluntary,
the accuseds lawyer can ask the court to exclude the
evidence.
Admissions by an accused with intellectual
disability to police may be unreliable or not genuinely
voluntary for a number of reasons, including the
accused persons:
willingness to please authority figures
failure to understand questions
failure to understand the caution
desire to get it over with and leave the police
station quickly.
If police have not followed the proper procedures in
dealing with people who are charged with criminal
offences, a court may decide to exclude evidence
or admissions given by a person with intellectual
disability. This is because there are wider, public policy
concerns to see that people with intellectual disability
are dealt with fairly by police.
For more about arrest and interrogation, see chapter4,
Arrest, interrogation and bail.
Forensic procedures and requests for

samples
Under the Crimes (Forensic Procedures) Act

2000 (NSW) police have wide powers to obtain
forensic samples from suspects and prisoners.
Samples include saliva from mouth swabs,
fingerprints, hair strands and photographs of
parts of a persons body. With advances in DNA
technology, these samples can be useful for
police to help with investigations into unsolved
crimes. Obtaining forensic samples can be very
invasive and traumatic for a person with intellectual disability.
There are two main types of forensic procedures, non-intimate and intimate. Non-intimate
forensic procedures are less invasive and include
procedures such as taking buccal swabs, collect-
Forensic procedures with the informed consent of

the person
[18.250] Going to court

Legal Aid NSW
Legal Aid NSW can assist with advice and representation in most criminal matters for people
with intellectual disability. Where possible, it
is best to make contact with Legal Aid before
appearing in court. If this is not possible, a
person due to appear in a criminal matter in the
Local Court should turn up to court by 9 am
and ask to speak to the duty solicitor.
Criminal Justice Support Network can
provide a support person to attend court with a
person with intellectual disability. See Contact
points at [18.690].
Was there an intention to commit a

crime?
Most criminal offences require the prosecution
to prove the accused had a particular mental
state at the time of the offence, either:
an intention to do the unlawful act, or
recklessness as to whether or not it is done
or its consequences.
19/4/12 10:10:26 AM
In some circumstances the cognitive impairment

of a person with intellectual disability may be
so substantial that they are actually incapable
of forming the required mental state to constitute a crime.
The Local Court and section 32

A s.32 order is a way for the Local Court to
divert people with intellectual disability and
other particular conditions out of the criminal
justice system. Part 3 of the Mental Health
(Forensic Provisions) Act 1990 (NSW) contains
all the provisions (including s.32) relevant to
summary proceedings before a magistrate in
the Local Court relating to persons with intellectual disability (and other developmental
disabilities and mental disorders).
A section 32 application can be made at
any time through the course of the proceedings, including at the conclusion of a contested
hearing. Section 32 applications may be made
without having to enter a plea. The application
is most commonly raised by the defendants
lawyer, but it can be raised by any party to
proceedings. Sometimes a magistrate, of their
own motion, may apply the provisions of
section 32. The effect of the order is to dismiss
the charges either unconditionally or subject to
conditions. Conditions usually relate to complying with a support or treatment plan, which is
an outline of various steps to be taken for the
accused to engage with services and supports to
meet their needs and address any issues associated with their alleged offending conduct.
For a magistrate to make an order under
s.32 she or he must be satisfied broadly of two
things:
first, that the defendant has a developmental disability (or a mental illness or a mental
condition for which treatment is available).
An intellectual disability falls within the
category of developmental disability
second, that it would be more appropriate
to deal with the defendant through a section
32 order and diversion into support, than
through the normal criminal law process of
pleas, hearings, sentencing and the like. In
deciding whether it is more appropriate, the
magistrate must consider an outline of the
facts of the alleged offence but then apply
his/her discretion in deciding whether or not
to apply the section.
Section 32 orders normally last six months,

but their effect may be lengthened considerably by the use of adjournments. If a person
breaches any one of the conditions within those
six months, and it is reported to the court, then
they can be brought back before the court.
What about charges heard in the NSW Childrens
Court?
Section 32 orders are available for charges for

summary offences that are heard in the NSW
Childrens Court.
What about Commonwealth criminal offences?
Section 20BQ of the Crimes Act 1914 (Cth)

is similar to section 32 and applies to persons
suffering from an intellectual disability or
suffering from a mental illness within the
meaning of the civil law of the State or Territory who are before a court of summary
jurisdiction (like the Local Court) in respect of
a Commonwealth offence.
The main difference under s.20BQ(1)(c) is
that if the charges are dismissed conditionally,
the period of the order can be up to three years
(compared to the six-month maximum period
under s.32).
For further information on section 32
Please see www.s32.idrs.org.au. Queries about

specific section 32 applications for people
with intellectual disability may be directed to
section32@idrs.org.au.
Cases in the District and Supreme Courts
Matters in the District and Supreme Courts

generally carry with them very serious consequences. Only suitably qualified and experienced
lawyers should be instructed to appear in such
matters, especially for matters for people with
intellectual disability. Questions of fitness and
the defence of mental illness are highly specialised areas of criminal law.
Fitness to stand trial
Section 32 is not available in the District and

Supreme Courts. In these courts, an application may be made that an accused is not fit to
stand trial because of a cognitive impairment,
like intellectual disability. However, a person
will not be regarded as unfit to stand trial just
because they have intellectual disability. What
must be determined is the degree to which the
intellectual disability impairs their ability to
properly participate in the trial process.
19/4/12 10:10:26 AM

To determine this, the court needs to consider,
amongst other things, whether the person:
can understand the charge and the nature of
the proceedings
can understand the main effects of the
evidence
is able to follow the course of the proceedings, at least in a general sense, and can
make a defence to the charge.
If fitness is raised as an issue, the court should
order that the person be assessed by a psychologist or other appropriate professional for an
independent opinion about whether the person
is or is not fit to stand trial. Ultimately it is a
question to be decided by the judge hearing the
matter by applying the standards outlined in
the case of R v Presser [1958] VR 45.
If the person is found unfit to stand trial
If the person is found unfit to stand trial, the court

makes an order referring them to the Mental
Health Review Tribunal (MHRT) for a determination as to whether they are likely to become
fit within the next 12 months. The person at
this point is classified as a forensic patient. If
the MHRT determines that they are not likely
to become fit within the next 12 months, the
court will hold a special hearing to determine,
on the limited evidence available to it, whether
the person committed the alleged offence. This
is called a special hearing and it is conducted as
close as is possible to a regular criminal trial. If
the accused chooses to give evidence, little to no
weight can be attributed to their evidence. Also,
given the finding that they are unfit, they cannot
give instructions to their lawyer and effectively
they have no control over the process.
If the offence is found to be proven at the
conclusion of a special hearing, then a qualified
finding of guilt is entered. A qualified finding
of guilt does not constitute a basis in law for a
criminal conviction, but the outcomes are often
similar.
If the court would have sentenced the
accused to a prison term had he or she been fit
and had a regular criminal trial taken place, the
person can still be sentenced to a prison term.
The MHRT will determine where the person
will serve that term of imprisonment. It could be
in a psychiatric hospital or in a prison hospital.
The court sets a maximum term for which the
person can be imprisoned or detained known
as the limiting term, which is the equivalent

of the head sentence the court would have
imposed had it been a regular criminal trial.
The limiting term encompasses the non-parole
and parole periods, so these patients can end up
serving the entire period without the opportunity for release during the parole period.
While serving the limiting term, the person
must be reviewed by the MHRT at least once
every six months. The MHRT can order that
the person be released before the expiry of the
limiting term.
The defence of mental illness
Mental illness and intellectual disability are

two entirely different things. However, the
defence of mental illness can be used by people
with intellectual disability. The legal requirement for the defence of mental illness is that a
person, at the time of the offence, had a disease
of the mind such that they were not aware of
the nature and quality of the offending act, or,
if they did know the nature and quality of the
offending act, they did not know what they
were doing was wrong.
The defence of mental illness can be raised
as a defence to indictable charges being dealt
with in the District Court or appellate courts. If
the defence is made out, the court must return a
special verdict of not guilty by reason of mental
illness (Mental Health (Forensic Provisions)
Act 1990 s.38). However, this verdict does not
mean that the person is released. The person is
detained as a forensic patient.
If a person is found not guilty by reason of mental
illness
If a person is found not guilty by reason of

mental illness then the court can order that the
person go to prison or a psychiatric hospital
for treatment and for the protection of the
community, or be released into the community
usually with a plan of management and supervision. Such a person is referred to as a forensic
patient.
As soon as practicable following a forensic
patient having been detained in strict custody,
the MHRT must review the persons case and
make a decision about the persons detention,
care, treatment or conditional/unconditional
release. Conditional release may include
supervision by a psychiatrist or case manager,
medication and supported accommodation.
19/4/12 10:10:27 AM

Review of forensic patients
A forensic patient is a person who has:

been found unfit to be tried for an offence
and ordered to be detained in a correctional
centre, mental health facility or other place;
or
been found not guilty by reason of mental
illness and ordered to be detained in a
correctional centre, mental health facility or
other place or released into the community
subject to conditions.
The main provisions relating to the review
of forensic patients are found in the Mental
Health (Forensic Provisions) Act 1990 (NSW).
Forensic patients are under the review of the
Mental Health Review Tribunal (MHRT).
There is no set period of time for which the
person is to remain in detention, and release
depends on the orders of the MHRT.
The MHRT must review the case of any
forensic patient at least once every six months.
The MHRT can make orders about the
persons continued detention, care and treatment, or release with or without conditions.
These orders may say where the patient is to be
detained, under what kind of security, whether
the person can have leave. If the patient is on
conditional release, the MHRT can determine the conditions that apply to the patients
continuing presence in the community.
Prior to amendments to the Mental Health
(Forensic Provisions) Act 1990 (NSW) and the
Mental Health Act 2007 (NSW), the MHRT
could only make recommendations to the
Minister for Health with regard to release of a
forensic patient. Such decisions are now made
by the MHRT.
Alternatives to imprisonment
Even when a person with intellectual disability has been convicted of a serious offence,
there may be alternatives to imprisonment
that are appropriate and best serve the objects
of sentencing. Lawyers working with people
with intellectual disability should be familiar
with diversionary options and alternatives and
actively assist their clients to access them.
All too often, people with intellectual dis
ability are held in prison on remand or given
prison sentences because:
they are considered less able to meet bail
conditions and not given the support to
meet those conditions
there is no accommodation available for

them, or
the place in which they have been living no
longer accepts them.
Restitution orders under the victimscompensation
regime
A person who is convicted of an offence which

involved an act of violence may face a Provisional Order for Restitution issued by Victims
Services under the Victims Support and Reha
bilitation Act 1996 (NSW). This will occur
where the victim has applied for and been
granted an award of victims compensation for
injury sustained as a result of the act of violence.
The order may require the convicted person to
pay part or all of awarded compensation. It
may take years before the victims compensation claim is finalised and the person receives
the Provisional Order. The amount sought to
be paid as restitution can be up to $50,000.
The Provisional Order can be opposed and
contested by notifying Victims Services.
Legal Aid is not available in such matters.
The Intellectual Disability Rights Service
has expertise in opposing Provisional Orders
for Restitution for people with intellectual
disability. People with intellectual disability
usually have very limited financial resources
and are most often dependent on the Disability
Support Pension. It is important that they are
assisted to contest the order to seek a reduction
or waiver due to their limited means and sometimes special circumstances.
ADHC services
ADHC operates the Community Justice Support

Program which provides a range of services,
including accommodation, for people with intellectual disability who have been in prison.
Ageing, Disability and Home Care (ADHC)
is the primary provider of services for people
withintellectual disability in NSW. ADHC also
funds non-government organisations providing
disability services. ADHC is a key contact in
seeking services for people with intellectual dis
ability. Each of its five regions has an Information,
Referral and Intake number which is the first
point of contact. See Contact pointsat[18.690].
There are also non-government disability
information services which can assist with info
rmation about services for people with dis
ability throughout NSW. See Contact points at
[18.690].
19/4/12 10:10:28 AM
[18.260]
Discrimination
People with intellectual disability, like everyone

else, can be unlawfully discriminated against
on the basis of their gender, age, race and other
attributes covered under anti-discrimination
laws. However, the most common basis upon
which they are unlawfully discriminated
against is by reason of their disability. Discrimination on the basis of disability is prohibited
in certain circumstances by laws including
the Anti-Discrimination Act 1977 (NSW), the
Disability Discrimination Act 1992 (Cth) and
the Fair Work Act 2009 (Cth). These laws do
[18.270]
not give a person with intellectual disability (or

anyone else with a disability for that matter)
special rights. Rather, they aim to ensure that
a person with intellectual disability has equal
access to things like accommodation, education
and employment, and is not treated less favourably or harassed because of their intellectual
disability.
Laws on discrimination are discussed in more detail
in chapter19, Discrimination.
Employment and industrial issues
(Refer to chapter 24, Employment for general

information about employment.)
The laws that are relevant to the employment of people with a disability are:
the Disability Services Act 1986 (Cth)
the Fair Work Act 2009 (Cth)
the common law
the anti-discrimination laws (see [18.260]).
The Disability Services Act 1986 (Cth)

Section 5A(1)(b) of the Disability Services
Act 1986 (Cth) (the DSA) provides for the
making of disability employment standards
where employment is provided for people
with a disability. Under the DSA the Disability
Services (Disability Employment and Rehabilitation Program) Standards 2002 (the Disability
Services Standards) came into effect in 2002.
Employment arrangements for people with
disabilities must meet these standards. The
standards include rights to be properly trained
and to receive support; rights of consultation,
privacy, dignity and confidentiality; rights of
complaint and fair treatment; etc. One of these
standards is called Standard 9: Employment
conditions. It provides that:
each person with a disability enjoys conditions of employment consistent with general
workplace norms and relevant Commonwealth and state legislation,
people with a disability, placed in open
or supported employment, receive wages
according to the relevant award, order, or

industrial agreement (if any) consistent with
the legislation,
people unable to work at full productive
capacity due to a disability will be paid a
pro-rata wage based on an award, order, or
industrial agreement,
the pro-rata wage must be determined
through a transparent wage assessment tool,
the wage assessment tool must comply
with the Guide to Good Practice Wage
Determination,
when people with disabilities are placed
and supported in employment, they, and if
appropriate, their guardians and advocates
are informed of how wages and conditions
are determined.
[18.280] Awards, industry

instruments and agreements
People with disabilities are employed under
an award, industrial instrument, or agreement. In some cases these will be the same as
for people without a disability, and in other
cases they will be different (for example, the
Supported Employment Services Award 2010
only applies to people with disabilities working
in an Australian Disability Enterprise which
uses that award).
From January 2010 most employers and
employees in Australia are covered by the
19/4/12 10:10:28 AM
national workplace relations system and one

set of workplace relations laws, including most
employers and employees who were previously
covered by state workplace laws. (The national
system does not cover public sector employees
in state and local government in NSW. These
employees are covered by NSW laws and the
disputes about their employment are dealt with
by the Industrial Relations Commission.)
Information about awards, industrial
instruments or agreements can be obtained
from Fair Work Australia, and from the Fair
Work Ombudsman which works closely with
Fair Work Australia. Both bodies also deal
withemployment complaints.
[18.290] Wages
Many people with a disability obtain employment in the labour market at full award wages,
but for some people the nature of disability can
significantly affect their productive capacity.
People in such circumstances may require a
process of productivity assessment to obtain
employment at pro-rata wage rates.
Disability Service Standard 9 allows for the
payment of pro-rata wages. Also, s.15(4) of
the Disability Discrimination Act 1992 (Cth)
(the DDA) permits employers to make distinctions in employment decisions on the basis that
a worker (because of disability) is unable to
perform the inherent requirements of the job
despite adjustments that might be made, where
such adjustments would impose unjustifiable
hardship.
The wage assessment is done by an assessor.
The assessor may be independent, although
some organisations have their own assessors.
The Commonwealth Rehabilitation Service
can do assessments. The assessment can also be
arranged by the Commonwealth Department
of Education, Employment and Workplace
Relations (DEEWR) (see later).
A wage assessment tool compares the work
performance of a person with a disability to
the work performance of a person without a
disability doing the same work. The result of
that comparison is recorded as a percentage. The
wage that is paid to the person with disability is
calculated using that percentage and multiplying it by the award wage. If the person with a
disability performs at 50% efficiency he/she is
paid at half of the award wage.
A wage assessment tool may measure only

productivity, for example counting the number
of pamphlets that can be collated in 15 minutes.
It may also measure only competency, for
example doing questions and answers about
workplace safety, workplace organisation, and
what to do in an emergency. A wage assessment
tool may also be a hybrid that measures both
productivity and competency. The Supported
Wages System (SWS) is a wage assessment tool
that measures only productivity. The Business
Services Wage Assessment Tool (BSWAT) is a
hybrid wage assessment tool that measures
productivity and competency.
There are currently 30 wage assessment
tools that comply with the Guide to Good
Practice Wage Determination. Examples include
the SWS, the BSWAT and the Greenacre wage
assessment tool.
If a person with a disability performs
poorly in a wage assessment, check that they
were given training and a proper 12-week trial
period, or ask for another wage assessment, or
consider that they may do better at a different
job requiring different skills. Also, be aware
that the DDA requires the employer to make
reasonable adjustments so the provision of
an appropriate modification to the workplace
could mean the difference between a 60% level
of assessed productivity and an 80% level.
[18.300] Open employment
Open employment exists where an employee

with a disability works, in a commercial setting,
alongside fully productive employees.
Open employment can be arranged by the
employer, or a Disability Employment Service
(DES) Provider. Disability Employment Ser
viceproviders are specialist employment service
providers funded by the Department of Education, Employment, and Workplace Relations
(DEEWR) to assist job seekers with disability
with employment preparation, job search, post
placement, and ongoing support. The DEEWR
has Supported Wage Management Units
(SWMU) which approve applications for SWS,
and do the day-to-day management of the SWS
in offices in state and territory capital cities.
The wage assessment tool used in open em
ployment is the supported wage system (SWS).
To be eligible, the person must be aged at
least 15 years, and meet the impairment criteria
19/4/12 10:10:29 AM

for receipt of Disability Support Pension (DSP),
which is advised by Centrelink. The job must
be for a minimum of 8 hours per week.
The prospective employee is given a trial
period (if necessary) of up to 12 weeks. A negotiated wage is paid during the trial period (the
minimum weekly wage being $75.00, as at
1July 2011).The assessment of productivity is
made. Assessments are generally undertaken
by DEEWR-approved SWS assessors, although
depending on the industrial instrument, the
productivity assessment may also be conducted
by the employer and worker representative in
consultation with the worker. The pro-rata wage
is calculated. (The award wage used for the SWS
wage assessment cannot be less that the national
minimum wage of $589.30 per week or $15.51
per hour as at July 2011). The employee and the
employer then sign the wage assessment agreement, which is then sent to Fair Work Australia.
If there is no objection from the union, then the
wage agreement is effective. The employer can
legally pay the pro-rata award wage and superannuation from the date the agreement is signed.
The wage agreement is reviewed in 12 months
unless an earlier review date is agreed. The cost
of a review assessment is paid by the Australian Government. The employer must provide
workers compensation insurance for potential
SWS recipients who are working during the
trial period and those employed after the SWS
productivity assessment.
Part-time jobs can be assessed under the
SWS using the same procedure and calculations
as for full-time jobs. This can be achieved by
using the part-time hourly figures in the wage
calculations.
Disputes about the SWS productivity assessment can be referred to the SWMU for review.
Disputes on other matters once the worker has
been engaged on SWS provisions are dealt with
by the same dispute resolution mechanisms that
are available to other workers in the workplace.
If unsuccessful, further complaints may be
made to the Complaints Referral and Resolution Service (CRRS), or to Fair Work Australia,
or to the Fair Work Ombudsman.
[18.310] Supported employment
Supported employment exists where an

employee works in an Australian Disability
Enterprise (ADE).
ADEs are businesses (all currently non-profit

organisations) that provide employment for
people with disabilities who generally require
support to remain in paid employment. ADEs
were previously known as business services
and before then as sheltered workshops.
Most ADEs are funded by the Department
of Families, Housing, Community Services and
Indigenous Affairs (FaHCSIA). FaHCSIA funds
about 200 ADEs employing about 20,000
people with disabilities Australia-wide.
Each ADE has its own certified agreement
which must comply with the Disability Service
Standards. Those funded by FaHCSIA are
audited to check that their certified agreements
meet the Disability Service Standards.
The certified agreement must specify the
wage assessment tool that is used. ADEs can
currently choose one out of the 30 wage assessment tools used (including the BSWAT used by
37% of ADEs, the SWS used by 10% of ADEs,
etc). The BSWAT and other hybrid wage assessment tools are preferred for ADEs because all
the employees have disabilities and they need to
be aware of safety and organisational matters
and not focus on productivity alone. (In open
employment there may be only a few people
with disabilities, plus greater supervision, so it
is productivity focused.)
Only ADEs can use the Supported Employment Services Award 2010. That Award requires
payment of wages assessed under one of the 30
approved wage assessment tools including the
SWS, the BSWAT, the Greenacre wage assessment tool, and others.
The person with a disability may be referred
to an ADE by Centrelink, or by a community
group. Some ADEs advertise for employees.
Theperson must be eligible to receive the Dis
abilitySupport Pension. The job must be at least
8 hours per week to get government funding.
The pro-rata wage is calculated using the relevant award and the chosen wage assessment
tool. The minimum wage of $15.51 per hour (at
1 July 2011) applies to supported employment
as the basis for the actual wage allowing for the
persons disability. The average supported wage
was $3.80 per hour (at 1 July 2011).
Disputes and complaints can be made to the
Complaints Resolution and Referral Service
(CRRS). This is a complaints resolution service
for people using Australian Government-funded
19/4/12 10:10:30 AM
disability employment and advocacy services.

(It is funded by FaHCSIA.) It deals with:
open and supported employment,
complaints about service providers,
breaches of the 12 disability service
standards,
occupational health and safety matters,
wages paid relating to DESs and ADEs.
Some ADEs are not funded by FaHCSIA and
have their own wage assessment tools. In such
cases the CRRS may not be able to deal with
the complaint; however, the ADE is required
by Disability Service Standard 7 to have a
complaint mechanism. This should be followed
and if the result is unsatisfactory a complaint
may be made to Fair Work Australia, or the
Fair Work Ombudsman.
Fair Work Australia has information about
awards and deals with industrial disputes
relating to open employment and supported
employment.
The Fair Work Ombudsman has information about awards and deals with complaints
relating to open employment and supported
employment.
[18.320] Looking for

employment
Job Access is an information service that helps
people with disabilities to find jobs. It refers
them to Centrelink for a disability assessment.
It advises on service providers such as DESs and
ADEs. It advises on modifications that may be
needed for the job. Refer to the website at www.
jobaccess.gov.au or phone 1800 464 800.
The Commonwealth Rehabilitation Service
(CRS Australia) provides information and
assistance for obtaining jobs in open employment. See Contact points at [18.690] for more
details.
Guardianship and financial management

[18.330] Autonomy and
independence
Just because a person has intellectual disability
does not mean they cant make decisions for
themselves, or manage their own money. There
is no assumption at law that an adult with
intellectual disability does not have capacity
to make decisions or look after their financial
affairs. They have the right to make their own
decisions and, where necessary, to be supported
by others to help them make decisions about
their lives. They can decide such things as who
they want to have as their partner, where they
want to live and what they want to do with
their money, just like everyone else.
Support with managing money

Some people with intellectual disability may
receive some help and support, on an informal
basis, to manage their money. A family member,
friend, disability advocate, financial counsellor
or disability worker can assist a person with
intellectual disability to manage their finances.
This should be done with the agreement of the
person with intellectual disability. This may

happen through advice and guidance or for
example, a family member might receive the
persons Disability Support Pension on their
behalf if the person cannot manage and requests
that assistance. Centrelink refers to this person
as a nominee for the person.
For more information about this, contact Centrelink.
Rules for informally looking after money on behalf

of another person
Where a person or organisation acts as an

informal financial manager, there are strict legal
rules about how the money must be managed.
The manager must:
keep the money somewhere safe
ensure that the money is separate from their
own
obtain reasonable interest on the money
not profit from their position
spend the money and interest earned on it
for the direct benefit of the owner of the
money not for the benefit of anyone else
19/4/12 10:10:30 AM

hand back the money if the owner asks for
it and has a basic understanding of the value
of money
If the person with intellectual disability suffers
financial loss or the manager profits, through
breach of these rules, the person with intellectual disability (or someone on their behalf) may
sue the manager to recover the loss or profit.
Breach of the rules may also amount to
a crime, such as embezzlement or a fraud
offence.
[18.340] Guardians and financial

managers
Most people with intellectual disability do not
need a guardian or financial manager. Such
an appointment only needs to be made where
the person is incapable of making decisions,
and informal arrangements are not working
for them. Formal guardianship and financial
management orders should be seen as a last
resort, when informal support and assistance
to the person to has been exhausted or is not
sufficient to protect the persons welfare and
interests.
Situations that may lead to a guardianship
application include: if the person is incapable of
making their own decisions and there is dispute
between others about what is in the persons
interests; the persons decisions are placing
them at risk or their inability to make decisions is placing them at risk or disadvantage;
the person opposes the decisions that others are
making about them.
Guardians
the Supreme Court of NSW

the Guardianship Tribunal, or
for a person who is a patient in a psychiatric hospital, the Mental Health Review
Tribunal.
The manager can be a private manager such as
a family member or friend or any other person
with a genuine interest in the welfare of the
person; or an official called the NSW Trustee
and Guardian. This is the new name for the
Protective Commissioner.
Fees apply if a financial manager is
appointed.A private manager must keep records
on how finances are managed and provide these
to the NSW Trustee and Guardian annually.
Reviews and appeals

Decisions by the Public Guardian or Protective
Commissioner
Most decisions made by the Public Guardian

or NSW Trustee and Guardian are reviewable.
This generally involves seeking an internal
review of the decision, then, if you are not satisfied with the result, obtaining a review by the
Administrative Decisions Tribunal. Time limits
apply to reviews.
Guardianship or financial management orders
If you are not happy about the guardianship

or financial management order itself you can
appeal to the Administrative Decisions Tribunal
or the Supreme Court. There are restrictions
on who can lodge an appeal, and its subject
matter. There are also time limits for lodging
the appeal.
Getting an order reviewed
Guardians are people who are formally

appointed, usually by an order of the NSW
Guardianship Tribunal, to make personal,
health and lifestyle decisions for a person who
is incapable of making these decisions for themselves because of their disability.
The guardian can be a family member, friend
or any other person with a genuine interest in
the welfare of the person. Or, where there is no
suitable person, the guardian can be an officer
of the Office of the Public Guardian.
If circumstances have changed since the guardianship or financial management order was
made, such that the order needs to be removed
or changed, you should ask for the order to be
reviewed by the tribunal or court that made it.
You will need to bring evidence like letters and
statements and other supporting material of
how circumstances have changed.
Financial managers
Generally, medical and dental treatment cannot

be given to a person without their consent.
Many people with intellectual disability are
able to consent to medical and dental treatment
A financial manager can be appointed to

manage a persons financial affairs. A financial
manager is appointed by either:
[18.350] Consent to medical and

dental treatment
19/4/12 10:10:31 AM
proposed for them or at least some medical

treatment.
To have capacity to give consent a person
needs to understand the nature and effect of
the proposed treatment. The doctor providing
treatment must satisfy his or herself that the
patient is able to provide consent.
Where a person aged 16 or more is incapable
of consenting because of their disability, there
is often someone who can provide substitute
consent. This person is called a person respon
sible for the person, and can be a guardian,
spouse or defacto or same-sex partner, unpaid
carer or friend or relative.
If a person is not capable of understanding
their medical treatment and they object to a
proposed treatment, then only the the Guardianship Tribunal or an appointed guardian
who has been given authority to override the
persons objection can consent to the treatment
in place of the patient.
If a person is incapable of understanding a
proposed medical treatment and that treatment
is a special medical treatment, outlined in the
regulations under the Guardianship Act 1987
NSW, the doctor must apply to the Guardianship Tribunal for consent to be able to go ahead
with the treatment. Special medical treatment
includes treatment that:
is intended to result in the person becoming,

or reasonably likely to result in the person
becoming, permanently infertile, or
is carried out to terminate a pregnancy, or
results in a vasectomy or tubal occlusion, or
involves the use of an aversive stimulus, or
involves the use of drugs affecting the central
nervous system, if the dosages or duration
are outside the accepted mode of treatment
for such a patient, or
involves the use of androgen reducing medication to control sexual behaviour, or
involves the administration of a drug of
addiction (other than use for the treatment
of cancer or palliative care for a terminally
ill patient) for more than 10 out of 30 days,
or
is a new treatment which has not gained the
support of a substantial number of medical
and dental practitioners, specialising in the
field concerned (experimental).
Further information about substitute consent
and determining who the person responsible
is can be obtained from the Guardianship
Tribunal.
For more detailed information on guardianship
and financial management, see Guardianship and
property management for adults at [18.510].
Housing
[18.360] Complaints about
housing services
Concerns about accommodation services pro
vided to people with disability can be pursued:
by using an advocate to raise issues with the
service provider
if there has been abuse or neglect of a
person with a disability in a government or
government-funded disability accommodation service, by making a complaint to the
Australian National Disability Abuse and
Neglect Hotline
for accommodation provided by the
Department of Family and Community
Services through its agency Ageing, Disability and Home Care (ADHC) or funded
by the Minister for Disability Services, by

complaining to the Community Services
Division of the NSW Ombudsman
by contacting the Official Community
Visitor Scheme (NSW) and asking for an
Official Community Visitor to visit the
person at the accommodation service
for Australian Government-funded aged
care homes, by contacting the Community Visitors Scheme (Cth) and asking for a
community visitor to visit the person at the
accommodation service.
The Official Community Visitors Scheme is
administered by the NSW Ombudsman and
Official Community Visitors are appointed by
the Minister for Disability Services jointly with
19/4/12 10:10:32 AM

the Minister for Community Services and the
Minister for Ageing. In contrast, the Community Visitors Scheme is a national initiative
involving volunteers visiting residents in Australian Government-subsidised aged care homes.
[18.370] Licensed boarding

houses
Under the Youth and Community Services
Act 1973 (NSW), the Minister for Disability,
through ADHC, licenses private residential
accommodation for people with disability.
Who needs a licence?

The Ministers licensing powers apply to all
privately run residential facilities catering for
two or more residents with disability who are
not family members. These facilities are known
as Licensed Residential Centres.
What is covered by the licence?

Licences are subject to prescribed conditions.
The conditions specify the maximum number
of people who may, at the one time, reside at
the boarding house. Licences also provide for
the health, comfort and safety of residents.
There is concern about what power ADHC
has to enforce the conditions of licences. The
2008 Ombudsman Report, Report of Review
able Deaths in 2007, expressed concern about
the continuing uncertainty surrounding the
enforceability of some conditions. The report
notes that ADHC has received legal advice that
enforcement of many of the licence conditions
would be ultra vires that is, beyond the power
of ADHC to enforce. Such conditions include the
supervision of medication and access to health
care, staffing suitability, and requirements to
minimise financial exploitation, abuse, mistreatment and neglect of clients. The Ombudsman
expressed concern that the legal uncertainty
about enforceability was affecting ADHCs
ability to monitor licensed boarding houses.
If there is a breach
If there is a breach of licensing conditions, the
Director-General of the department of Youth
and Community Services can:
bring a prosecution against the boarding
house proprietor or manager in the Local
Court, or
revoke or suspend the licence.
Complaints
Complaints about breaches of licence requirements can be made to a licensing officer in
ADHC.
Complaints about licensed boarding houses
can be made to the NSW Ombudsman.
A request can also be made for a visit by
an Official Community Visitor to a resident in
a licensed boarding house to investigate any
concerns.
The Official Community Visitor Service
The Official Community Visitor Service was established
by the Community Services (Complaints, Reviews and
Monitoring) Act 1993. Official community visitors
visit disability accommodation services and boarding
houses and seek to resolve issues and concerns about
service quality. Where the issues are serious they will
refer them to the NSW Ombudsman. Community
visitors report to the NSW Ombudsman and the
relevant Minister.
To request a visit by an Official Community Visitor
you should contact the NSW Ombudsman.
[18.380] Group homes and

boarding houses
Many people with intellectual disability are
denied tenancy rights because they live in a
boarding house or group home, and do not
have a right to exclusive possession of those
premises. Someone else, usually the proprietor,
can enter the persons room or flat at any time.
People in these situations have very few
rights and can be asked to leave their home
with very little notice.
On 16 November 2011 the NSW Minister
for Disability Services released an independent report showing broad support within
the NSW boarding house sector for industrywide reform to protect the rights of vulnerable
people, including people with a disability. The
NSW government has committed to developing
a detailed proposal for reform for the sector.
[18.390] Renting
Where people with intellectual disability rent
(or have a lease), problems can arise if landlords
try to impose large rent increases or attempt to
evict them without reasonable grounds. People
with intellectual disability have the same rights
as other people who rent premises.
For detailed information about rights and responsibilities involved in renting, see chapter29, Housing.
19/4/12 10:10:32 AM
[18.400]
Personal relationships
People with intellectual disability generally have

the same rights as anyone else to have friendships and sexual relationships, to live with
someone, and to marry and have children.
Some of these rights may be qualified by
a guardianship order (see Guardianship and
property management for adults at [18.510]).
[18.410] Sexual relationships

The law will only interfere with sexual relationships involving a person with intellectual
disability when the person does not consent or,
in certain circumstances, where there is potential for exploitation.
When a sexual relationship is a crime

It is a criminal offence for person X to have
sexual intercourse (heterosexual or homosexual) or other sexual activity with person Y, who
is an adult with intellectual disability, where:
Y does not consent
it is not clear to X whether or not Y consents
silence on the part of Y is not consent
Y resists or otherwise indicates that they do
not want to engage in sexual activity
X realises or should realise that Y does not
have a basic understanding of sexual intercourse and therefore cannot consent
X knows that Y has intellectual disability
and requires supervision or social habilitation, and Y is under the authority of X,
X is reckless as to whether Y consents, or X
intends to take advantage of any vulnerability to sexual exploitation that Y may have,
or
X is responsible for the care of Y:
(a) at a facility at which people with intellectual disability are detained, reside or
attend, or
(b) at the home of Y in the course of a
program under which any such facility
or other government or community
organisation provides care to people
with intellectual disability.
Other situations
Except in these situations, people with intellectual disability who are at or over the age
of consent can decide for themselves whether
or not to have a sexual relationship. A parent

cannot normally legally prevent a child with
intellectual disability who is at or over the age
of consent from having a sexual relationship.
[18.420] Marriage
Anyone is free to marry provided they are
old enough and they generally understand the
nature and effect of the marriage ceremony.
Generally, there is no legal reason why a
person with intellectual disability may not
marry.
Under the Family Law Act

The Family Law Act 1975 (Cth) covers
marriage relationships, breakdown of marriage
and the welfare of the children of a marriage
or de facto relationship (see chapter26, Family
law). There is no presumption in the law that
a person with intellectual disability is an unfit
parent, although in matters about with whom a
child is to live, a parent with intellectual disability will have a much better chance of success if
they can show an awareness of the needs of the
child and can support the child either by themselves or with the assistance of friends, family
or government agencies.
[18.430] De facto relationships

Nowadays, de facto couples (including same-sex
couples) have many of the same rights and
responsibilities as married people.
Usually there is no legal reason why a
person with intellectual disability would not
share the same rights and responsibilities in
these matters.
[18.440] Family planning

Having children can impose significant financial and emotional strain on individuals or
relationships.
Problems can arise for people with intellectual disability when they want to have children.
Other people, including their parents and the
authorities, may think they should not do so.
However, with the right support and guidance,
many parents with intellectual disability have
raised happy and healthy families.
19/4/12 10:10:33 AM

Contraception
Sterilisation
Like anyone else, a person with intellectual

disability can choose to use contraception and
decide which type to use.
Both women and men can undergo surgery for

sterilisation, although the operation is more
complicated for women than for men.
Everyone, whether they have intellectual
disability or not, has the right to be allowed
to make a fully informed decision about the
matter. Sterilisation is a very serious matter and
its effect is permanent. It should only be considered in extreme situations of emergency where
a persons life is at risk or to prevent serious
damage to health.
If a person does not have the capacity to decide
Where a persons intellectual disability prevents

them from being able to understand and make a
decision about contraception even with appropriate supports in place, an application to the
Guardianship Tribunal under the Guardian
ship Act 1987 (NSW) will need to be made to
determine who can decide. This should happen
only in rare and extreme circumstances.
Termination of pregnancy
Terminations are legally available in many
situations in NSW. No-one can legally make a
woman (including a woman with intellectual
disability) have an abortion if the woman has
capacity to make an informed decision; nor can
they stop a woman if her decision to have an
abortion is an informed one.
Where a persons intellectual disability prevents

them from being able to understand and make a
decision about termination of a pregnancy even
with appropriate supports in place, only the
Guardianship Tribunal or the Supreme Court
can decide whether to terminate or not.
[18.450]
Where sterilisation is sought for an adult who

is incapable of understanding and making the
decision even with appropriate supports in
place, or for a child, an application must be
made to the Guardianship Tribunal under the
Guardianship Act 1987 (NSW).
The tribunal can consent to a sterilisation
only if it is satisfied that it is necessary to save
the persons life or prevent serious damage to
their health and that it is the most appropriate
treatment in all the circumstances.
Sterilisation ordered by the Family Court
The Family Court also has power to order sterilisation
operations for children. The Family Courts power exists
in addition to that of the Guardianship Tribunal.
Parents with intellectual disability
Historically, people with intellectual disability were institutionalised and sterilised, which
denied them the opportunity to become parents.
Today, these practices are far less common, and
becoming a parent is a more realistic goal for
people with intellectual disability.
If the Department of Family and Community Services (FACS) is concerned about the
safety, welfare or wellbeing of a child, they
can become involved in a familys life. They
are given this power through the Children and
Young Persons (Care and Protection) Act 1998.
A child is defined as someone under 16 and a
young person is someone aged 16 or 17.
The law gives FACS the power to investigate
their concerns and, if they think it is necessary,
take the action they believe will promote the

safety, welfare and well-being of the child.
The most extreme action FACS can take is to
remove a child from their parent.
If FACS thinks a child is in need of care and
protection, they have to make a care application
in the Childrens Court, where the case will be
decided by a Magistrate. The focus of the Childrens Court is the best interests of the child.
(See chapter 8, Children and young people for
further information on care and protection
proceedings.)
The law says that the Childrens Court
cannot make a decision that a parent cannot
meet their childs needs just because they have
an intellectual disability (s.71(2)(a)). FACS will
19/4/12 10:10:34 AM
have to prove to the court that because of the

parents intellectual disability, the child is not
having their needs met, or is being neglected
or harmed. They will also have to prove that
whatever the problem is, it cannot be fixed.
Often parents with intellectual disability
who find themselves the subject of a FACS
investigation have not been provided appropriate training and support to help them improve
areas of their parenting. Like all parents, it
is essential parents with intellectual disability obtain appropriate and adequate parental
training and support.
[18.460] When FACS becomes

involved with a family
FACS may call a parent into their office for a

meeting or go visit the parent at home. At these
meetings, parents may be asked to sign documents or agree to do (or not do) certain things.
It is important that a parent with intellectual
disability knows what they are agreeing to or
signing as, if they break any agreement, they
may have their children removed.
Even if they are not going to be asked to sign
anything, parents with intellectual disability
should have a support person with them when
meeting with FACS. It is FACSs own policy
that parents have a support person with them
at meetings or conferences. The support person
can be a friend, relative, disability advocate or
family support worker.
Society often challenges the competency of
parents with intellectual disability to parent.
The advantage of a parent with intellectual
disability having a disability advocate as their
support person in any meetings with FACS
is that the advocate will be able to assist the
parent explain their abilities and encourage
FACS to treat the person fairly.
If a parent is asked to sign something and a
support person is not present, the parent should
ask to take the papers away, so that they can
talk to a support person before signing them.
If a matter goes to Court
If, after investigating the matter, FACS decides

the child is in need of care and protection, they
have to make a care application to the Childrens Court. (See chapter 8, Children and
young people for more information on care
proceedings.)
Legal representation
The child, or children, who are the subject of

the care application will automatically be given
a lawyer to represent them in their care matter.
It is advisable that the parents get a lawyer
for the case. Each parent will need a separate
lawyer. If the parent has not arranged a lawyer
before the matter goes to court, a duty solicitor
will speak on behalf of the parents the first time
the matter is in court. If the parent is eligible
for legal aid, they can either keep the lawyer
who represented them on the first day, or find
another lawyer through the Legal Aid Panel of
Care and Protection lawyers. Parents who are
not eligible for legal aid will have to arrange a
private lawyer Legal Aid NSW can provide a
list of Care and Protection lawyers. If a parent
is Aboriginal they may be able to get a laywer
through Aboriginal Legal Services.
It is important that the parent understands
what is going on in their court case, and it is the
duty of the lawyer to assist the parent to understand what is happening. The parent should
ask their lawyer to explain what is going on,
and tell their lawyer if they do not understand
any of the court proceedings or documents.
Support person during the case
For parents, care proceedings can be confusing and emotional. Parents may find it useful
to have a support person attend court and
meetings with their lawyer with them.
The law allows a person involved in a care
and protection case to have a support person
with them in court. However, permission from
the Magistrate is required (s.102).
A support person can be informal (friend
or family) or formal (disability case worker,
disability advocate, family support worker).
A disability advocate may be a useful support
person if the parents disability is an issue in the
case.
Guardian ad litem
A guardian ad litem is a guardian, appointed by

the court, to represent the interests of a person
seen as incapable of giving proper instructions
to their lawyer. A guardian ad litem is appointed
for the duration of the legal case only.
The Court can appoint a guardian ad litem
for a parent in a care and protection matter
if they think that the parent is incapable of
properly instructing their lawyer (s.101).
19/4/12 10:10:35 AM

The guardian ad litem instructs the lawyer
on behalf of the parent. In performing this role,
the guardian ad litem is to protect and promote
the parents interests.
The law identifies a parent having intellectual disability as a situation when a guardian
ad litem may be appointed in care proceedings
(s.101).
Once a guardian ad litem is appointed,
the parent loses their direct voice in the case
so it is important to be sure that the parent
actually needs a guardian ad litem before one
is appointed. Other options, that will allow the
parent to continue to participate in the proceedings, should first be explored. In many cases,
a support person or advocate may be able to
assist the parent to understand sufficiently to
instruct their solicitor.
be sufficient to meet the needs of the child or

young person.
Agencies that arrange out-of-home care for
children and young people are accredited by the
Office for Children Childrens Guardian.
Care orders
Where there is no proper consent
Following on from the above, under the

Children and Young Persons (Care and Protec
tion) Act 1998 (NSW), the Childrens Court
can make orders regarding children and young
people who are in need of care and protection.
Care applications can be made by the DirectorGeneral of FACS.
Orders placing a child in the care of the minister
In extreme cases, the court may decide that the

child or young person should be placed under
the sole parental responsibility of the Minister
for FACS. This is similar to a child being made
a ward of the state under the old Children
(Care and Protection) Act.
Before it makes such an order, the court
must be satisfied that no other order would
[18.480]
Orders for shared parental responsibility
The Childrens Court can also make an order

allowing parents and the Minister for FACS to
share parental responsibility for a child. This
means the parents have the legal right to be
involved in the life of their children, even if they
are in the care of the Minister.
[18.470] Adoption
The consent of the parents or guardians is
normally required before the court can make
an adoption order.
The court will refuse to make an order where
there is no proper consent (for example, the
consent is obtained by fraud, duress or improper
means, or the person giving consent did not
fully understand what they were doing).
Where the person cannot consent

The court may dispense with consent if the
parent is incapable of properly considering the
question and giving consent because of a cognitive disability.
The court will require extensive information
on the circumstances of the child and the parent
before making an order in this situation.
See chapter8, Children and young people, for a
detailed discussion of adoption.
Wills
Wills, trusts and estate planning can be complicated. Below is some basic information on
these areas. You should always talk about your
own particular circumstances with a solicitor
who has expertise in wills, trusts and estates
matters.
[18.490] Wills where a

beneficiary is a person with
intellectual disability
Everyone should make a will particularly if
they have a son or daughter with intellectual
disability who is unable to look after their own
property independently.
19/4/12 10:10:35 AM
A will can be made flexible enough to allow

for changes in the persons capacity and in their
support network.
Where there is no will

Where there is no will, a person with intellectual
disability is entitled to inherit in the usual way
(see chapter43, Wills, estates and funerals).
However, without specific provision in
a will, the law does not have the flexibility to ensure that the property is used to the
maximum benefit of the person with intellectual disability.
So it is very important that you make a will.
Considerations in making the will

Leaving enough for changed circumstances
Parents should be wary of making only a

small provision for children with intellectual
disability.
Parents sometimes do this if the child is
permanently placed in an institution or other
residential facility, and has modest needs as a
result, or if they receive financial support from
Centrelink through a pension.
It is of course impossible to predict the
vicissitudes of life and the needs of a person
with intellectual disability ten or 30 years after
parents die. For example, the residential facility
may have closed down, or raised its fees to an
amount well above the pension. So parents
need to be sure they make enough provision for
changing circumstances.
Leaving all property to siblings
Parents sometimes give all their property under

the will to their children who do not have an
intellectual disability and rely on them to look
after their sibling with intellectual disability.
This approach has its own dangers. The
other children may die first, perhaps many years
before the sibling with intellectual disability. Or
they may not carry out their parents wishes.
Leaving property directly to the person

It may not be desirable to leave property
outright to a person with intellectual disability. It will depend on the persons capacity to
look after property, understand its worth and
whether or not they are vulnerable to exploitation by others.
The type of estate and the level of the
persons capacity to understand should be
considered and assessed in each situation. It

may be suitable to give some property outright,
with the bulk of property being placed in trust
for use as required (see Setting up a trust under
the will at [18.490]).
Applications under the Succession Act
Where parents make much greater provision for one
child than for another, or fail to provide for a child
with disability, an application can be made under the
Succession Act 2006 (NSW) to the Supreme Court for
a greater share in the estate (see chapter 43, Wills,
estates and funerals).
Where the person receives property

Where a person with intellectual disability is
absolutely entitled to property from a parents
estate because there is no will or the will
contains an outright gift to them, the property
is handed to them provided they have enough
capacity to understand how to look after it,
taking into account the amount and nature of
the property.
If the person has insufficient capacity to
understand
If the person does not have sufficient capacity

to understand, the executor (if there is a will)
or the administrator (if there is no will) of
the parents estate is not allowed to hand the
property over to them. What happens depends
on whether or not the person has had a financial manager appointed by the Guardianship
Tribunal under the Guardianship Act 1987
(NSW) who looks after their finances.
If there is a financial manager
If a financial manager has been appointed to

manage the persons finances (see Guardianship and property management for adults at
[18.510]), the property must be handed over to
the financial manager.
If there is no financial manager
If there is no financial manager, the executor or

administrator can hold the property in trust for
the person or hand it over to the Public Trustee
or a trustee company (Trustee Act 1925 (NSW)
s.47).
Disadvantages
In all cases, the person ultimately holding the

property has limited power to use it for the
benefit of the person with intellectual disability.
19/4/12 10:10:36 AM

This power is not nearly as wide and flexible as
the powers that parents would normally put in
their wills.
This highlights the importance of choosing

suitable trustees.
Setting up a trust under the will
The trustees are usually the same people as the

executors named in the will.
Qualities to look for in trustees include:
youth they may have to act for decades
business sense knowledge of investments,
income tax and social security
independence from the family situation
they may need to make unpopular decisions about how property is to be divided
among the will-makers children
continued interest in the person with intellectual disability a willingness to engage
with the person and to keep up an awareness
of their needs and wishes and what services
and resources are available for them.
It is always better to have more than one trustee.
People to consider as trustees include:
a sibling (but be wary of conflicts of interest
see below)
an accountant, solicitor or trustee company
an advocate for the person with intellectual
disability
a friend who takes an interest in the person
with intellectual disability and in whom the
person has confidence.
An alternative to leaving property outright

to a person with intellectual disability is for a
parent to set up a trust under the will so that
the property can be used for the benefit of that
person in the way the parent chooses.
This means the parent needs to appoint
trustees to use the property in the way and for
the purposes specified in the will. For example,
if there is only one child and that child has an
intellectual disability, the parents could leave all
their property to be held and applied by trustees
for the childs benefit.
The will should say what is to happen to
whatever property is left when the child dies.
For example ...
Suppose there are three children and one of them has
intellectual disability. The parents could leave a third of
their property directly to each child without disability
and leave the remaining third in trust to be used for the
benefit of the child with intellectual disability.
The will could also say anything remaining in the
trust when the child with intellectual disability dies will
go to the other children or their families, or to charity.
Tax on money held in trust
Income from a trust under a will is taxable so

it may be better to use the money to buy something for the person with intellectual disability
(such as a car or somewhere to live) rather than
investing it for income.
What the will allows the trustees to decide
The will can be very specific about how much

the trustees have to spend on the person with
intellectual disability, or it can give the trustees
a wide discretion.
The advantages of giving the trustee wide
discretion include:
maximum flexibility for the trustees to react
to changing needs and circumstances
it allows the trustees to remove or at least
minimise the effect of the will on the persons
social security benefits.
A disadvantage of giving wide discretion is that
it limits what can be done if the person with
intellectual disability feels that the trustees are
not acting fairly.
Who should be trustees
The NSW Trustee and Guardian and private

trustee companies
If parents cannot find suitable trustees, there

may be no alternative but to appoint the NSW
Trustee and Guardian or a private trustee
company.
The advantages of using these organisations
are that:
they offer permanent life-time services
they are normally cautious and sensible
about investing money.
The disadvantage is the lack of a personal touch.
People with intellectual disability often feel
organisations and trustees that look after their
money do not listen to their requests and unreasonably refuse them. Frustration can increase
because they are dealing with an organisation
not a single real person. These disadvantages
can be partly overcome by including a direction
in the will saying, for example, that the trustees
must consult with the person with intellectual disability and the people or organisations
providing day-to-day care for them.
19/4/12 10:10:37 AM
Siblings as trustees
If siblings without intellectual disability are appointed
as the only trustees, they may be in a situation of
conflict of interest.
Wills often provide that when the person with
intellectual disability dies, their share goes to the
children without intellectual disability or their families.
In this case, the children who are trustees know that
whatever they do not spend on the person with
intellectual disability will come to them, and so they
may be tempted not to spend the trust money on the
person with intellectual disability while they are alive.
If a trustee dies
If one trustee dies it is normally necessary for a

new one to be appointed. Parents can set out in
the will how this is to be done. Otherwise, the
Trustee Act 1925 (NSW) provides a mechanism
for this.
Special disability trusts
A special disability trust can be set up and

operate during the lifetime of a person or
commence via their will when they die. There
are some specific rules about special disability
trusts:
the beneficiary must have a severe dis
ability
there can only be one beneficiary, and
the primary purpose of the trust must be to
provide only for the care and accommodation of the beneficiary.
The trust funds can be used for:
the cost of accommodation of the person
with severe disability
extra care costs arising from the disability
the beneficiarys dental and medical
expenses, including membership costs for
private health funds
up to $10,250 in a financial year on discretionary items not related to the care and
accommodation needs of the beneficiary.
These items must relate to a beneficiarys
health, wellbeing, recreation, independence
and social inclusion. The expenditure
should remain compliant within the legislative requirements of a special disability
trust, and
costs associated with operating the trust.
Some of the benefits of special disability trusts
are that:
assets in the trust up to a certain amount
(currently above $500,000) will not be
counted by Centrelink when assessing the

person with disabilitys eligibility for a
pension
income from assets in the trust up to a
certain amount (currently above $500,000)
will not be counted by Centrelink when
assessing the person with disabilitys eligibility for a pension but will be counted as
taxable income against the person by the
Australian Taxation Office, and
immediate family members can gift up to
$500,000 (combined) into the trust and still
be eligible for their own pension.
Limitations on and possible problems with
special disability trusts include:
once money is in the trust it cannot be withdrawn or used for anything other than the
purpose of the trust, and
depending upon a persons particular
circumstances, asset amounts, Centrelink
thresholds and income tax consequences,
a special disability trust may not put the
beneficiary and their family in a better
financial position than other future planning
arrangements.
You should always discuss future planning,
special disability trusts, wills and estates matters
with a lawyer who has expertise in those areas
or with the NSW Trustee and Guardian.
Testamentary guardians
Testamentary guardians are people appointed
in a will to take over the parents role as guardians of their children.
How long does the guardianship last?
Like those of parents, the guardians powers

only apply until the person with intellectual
disability reaches 18. There is no way that a
parent can appoint a guardian for the rest of
the persons life.
However, just as many parents continue to
exercise a parental role in an informal way after
a person with intellectual disability reaches 18,
there may be someone who will fill this role
when the parents die. Parents can name, in their
wills, a person who they would wish to do this
and explain why they choose this person. This
will help decide who the new guardian will be.
Property not governed by the will

Not all of a persons property will be covered by
their will. For example, life insurance policies and
19/4/12 10:10:37 AM

superannuation benefits often go to the person
specified in the policy or the funds rules.
People wanting such things to be covered by
a trust must make sure that suitable arrangements are made.
Using a lawyer
If a will-maker wishes to benefit a person with
intellectual disability, it is important to have the will
drawn up by a lawyer with expertise in will-drafting (or
the NSW Trustee and Guardian or a trustee company).
Wills setting up trusts for people with intellectual
disability are more complicated than most.
The will-maker should check that the lawyer is
familiar with this area of the law. The Intellectual
Disability Rights Service can refer people to suitable
lawyers.
receive a gift of money or other property

be entitled to live in the family home for as
long as they want or live
be entitled to the income earned by a trust
fund set up under the will.
The job of the executors or administrators
of a will is to deal with the deceased persons
property as set out in the will.
A beneficiary with intellectual disability has
the same rights as any other beneficiary (see
chapter43, Wills, estates and funerals).
In the most common situation, the executors appointed in the will have wide discretion
about how much money they will pay to the
person with intellectual disability, or use for
their benefit.
Rights of a beneficiary
A beneficiary is a person who receives a gift or
any other benefit under a will. A beneficiary
with intellectual disability might:
For example ...
Where nothing was left in the will
Jane is a person with intellectual disability whose
father died leaving his estate to her brother and sister. A
friend applies to the court on Janes behalf to challenge
the will. The court orders that Jane receive a share of
the estate how big a share will depend on all the
circumstances. She may get less than her brother and
sister, or she may get more.
Where a small amount was left in trust
Janes father set up a $10,000 trust fund for her but
gave the rest of his $200,000 estate to her brother and
sister.
[18.500] Wills made by people

with intellectual disability
Can the person make a valid will?
Some people with intellectual disability can

make valid wills and some cannot. There are
two basic requirements for a person to be able
to make a valid will.
Testamentary capacity
First, the will-maker must have testamentary

capacity to make a proper will that is, they
must:
know what a will is
realise, in general terms, the amount and
type of property they are disposing of
The court would probably order that Janes share

be increased.
Where the estate was divided equally
Janes father divided his estate equally between the
three children and appointed trustees to invest Janes
share and to use the income as they see fit.
If Jane is sufficiently capable and wants to get her
own place but the trustees will not pay for this, Jane can
apply to the court to intervene. The court might order
that Janes share be used to buy a house for herself and
some friends, or that the trustees pay rent for a house.
be able to weigh the moral claims they

should be considering (that is, the people
they should be considering, including family
members or people previously dependent on
them).
Knowledge and approval of the wills content
Second, the will-maker must know and approve

of the contents of the will. There is a strong
presumption that this is the case if the will has
been read by or to the will-maker.
Precautions when making a will

Where a will is made by a person with intellectual disability, a number of precautions should
be taken to protect the will from challenge.
19/4/12 10:10:38 AM

Draft the will in plain language
While the will-maker need not understand all

the legal terms in the will, it is best if the will is
uncomplicated and in plain language.
Use a witness who can attest to the will-makers
capacity
One of the witnesses to the will could be

someone such as a psychologist or general
practitioner (who has known the will-maker
for some time), who could sign a statement
that they were satisfied that the will-maker had
testamentary capacity and knew and approved
of the contents of the will.
The statement should also set out the
persons basis for believing this, including
details of their conversation about the will
with the will-maker and how long they have
known the will-maker.
If the will-maker cannot read, the statement
should also say that before the will was signed,
the witness heard the will read over to the willmaker who then stated that they approved
what was in it.
Get an experienced lawyer
The will should be drawn up by a lawyer

experienced in will-making and, preferably, in
working with people with intellectual disability.
The lawyer should keep comprehensive notes.
Should the person make a will?

A person should be allowed to make a will even
if there is some doubt as to whether they are
capable of making a valid will.
If the person does not leave a valid will
If a person with intellectual disability dies with

no will or with an invalid will the intestacy
laws apply (see chapter 43, Wills, estates and
funerals).
Guardianship and
property management for
adults
[18.510]
This section deals with guardianship and

property management for people 16 and
over who are unable to make decisions for
themselves.
[18.520]
The Guardianship Act
The Guardianship Act establishes the Guardianship Tribunal, which can:

appoint guardians and financial managers
for people 16 and over who cannot make
decisions for themselves because of a cognitive disability
The relevant Acts are the GuardianshipAct

1987 and the NSW Trustee and Guardian
Act2009.
consent to certain medical and dental

procedures for people who are incapable of
consenting for themselves
review enduring guardianship appointments
and enduring powers of attorney (Powers of
Attorney Act 2003), and make a range of
orders about those arrangements.
19/4/12 10:10:39 AM
[18.530] Principles of the

Guardianship Act
The main principles in s.4 of the Guardianship
Act are, in summary, that:
the welfare and interests of people with
disabilities should be paramount, and their
freedom of decision and freedom of action
should be restricted as little as possible
people with disabilities should be encouraged, as far as possible, to live a normal life
in the community and be protected from
neglect, abuse and exploitation
the views of the person with a disability
should be taken into account.
[18.540]
Guardianship jurisdiction of the

SupremeCourt
The Supreme Court has an inherent guardianship
jurisdiction which is not affected by the legislative
scheme (Guardianship Act ss.8, 31), but it rarely makes
guardianship orders for adults. The Supreme Court can
also make estate management orders under the NSW
Trustee and Guardian Act www.austlii.edu.au/au/legis/
nsw/consol_act/pea1983200/ which place a persons
financial affairs under the management of the NSW
Trustee (s.41).
The Guardianship Tribunal
The Guardianship Tribunal is a statutory body

and its decisions are legally binding.
The tribunal, and anyone exercising functions under the Guardianship Act, are under
a duty to observe the principles set out in s.4
of the Act. People bound by this duty include
not only tribunal members and staff, but also
guardians and estate managers.
[18.550] What the tribunal does

The Guardianship Tribunal conducts hearings
where it considers applications for:
guardianship orders
financial management orders
consent to medical and dental treatment
approval of clinical trials as being suitable
for people who are unable to give their
consent to participation in the trial
review of an enduring guardianship
appointment
review of an enduring power of attorney.
The tribunal also provides information to
the public about guardianship and property
management issues.
Tribunal members
The Guardianship Tribunal has part-time
members and a full-time president and deputy
president. When hearing guardianship or financial management applications, the tribunal
consists of a panel of three members which

includes:
a legal member, who must be a lawyer of at
least seven years standing, and
a professional member, such as a medical
practitioner, psychologist or social worker,
who has experience in assessing or treating
people with disabilities, and
a community member who has experience
with people with disabilities.
Certain matters, such as reviews of guardian
ship or financial management orders, can
be dealt with by one or two members of the
tribunal. The registrar can deal with procedural
applications.
[18.560] Procedures of the

tribunal
Making an application
Applications to the tribunal should be made

using its application form, which can be
obtained from the tribunal and are available to
be downloaded from its website (www.gt.nsw.
gov.au). Applications can be submitted online
or faxed, posted or lodged in person at the
tribunal.
Information and advice about completing
the forms can be obtained from the tribunals
telephone enquiry service on 1800 463 928
19/4/12 10:10:39 AM
or 9556 7600. If a person is unable to make

a written application, they should contact the
tribunal for assistance.
There is no fee for making the application.
Applications by solicitors
It is preferable that solicitors do not make applications
for guardianship or financial management for their
clients because of the inherent conflict of interest (see
McD v McD (1983) 3 NSWLR 81).
However, a solicitor can arrange for another
interested person such as a family member or social
worker to make the application, and can assist them in
doing this. If this is not practicable, the solicitor should
contact the tribunal for further advice.
When the application has been received
Much of the work of preparing applications for

a hearing is done by the tribunals staff.
Once an application has been received,
it is allocated to an officer of the tribunals
Coordination and Investigation Unit, who is
responsible for preparing the application for
hearing. This officer:
contacts the parties to the application and
anyone else who may provide evidence and
information to the tribunal
ensures that the applicant obtains any necessary written reports before the hearing
coordinates the collection of relevant
information
writes a report for the hearing, detailing
the issues and evidence available, which
is made available to all the parties before
the hearing (the report does not make
recommendations).
After the process of obtaining evidence and
information has begun, a date is set for hearing
the application before the tribunal.
Applications for legal representation
Parties before the tribunal may appear in person

or, with the tribunals permission, be represented by a lawyer or other person (s.58).
A lawyer who wishes to represent a person
at a tribunal hearing should contact the Coordination and Investigation Unit officer handling
the case as soon as possible to discuss making
an application for leave for legal representation.
These applications are considered at procedural
hearings, which are usually conducted by telephone at least a week before the final hearing.
Procedural hearings are usually conducted
by the president or deputy president of the
tribunal, who will consider whether leave

should be given for a person who is a party
to the matter to be legally represented at the
tribunal hearing.
The tribunal can also, when appropriate,
order separate legal representation for the
person who is the subject of the application.
When representation may be allowed
Leave for representation may be granted

when:
it is sought on behalf of a person who has a
disability
representation is likely to assist the tribunal
in its deliberations
parties are unable to put their own case in a
coherent or concise manner
a new or significant question of law is at
issue
the case is extremely complex.
The tribunal will also consider whether
granting leave for representation will advantage one party over another or impose an unfair
economic burden on a party.
Other assistance from lawyers
A lawyer may in any case:

give advice
prepare applications and gather evidence
for their clients
give other help outside the hearing room.
Lawyers may also attend the hearing to advise and
assist their client without representingthem.
Speaking for yourself
It is important for people appearing before the tribunal
to speak for themselves rather than through a lawyer.
Sometimes it may be appropriate for the tribunal to
obtain the views and evidence of the person who is
the subject of the application in the absence of other
parties.
In all cases, it is critical that the tribunal is given
information about the capacities of the person who
is the subject of the application, and makes its own
assessment of the person proposed as guardian or
financial manager.
Notice requirements
The application, together with a notice of the

hearing, is sent to the applicant for service on
theperson who is the subject of the application.
The tribunals staff post or fax hearing
notices and copies of the application to the
other parties to the proceedings.
19/4/12 10:10:40 AM

Conciliation
Before the tribunal panel conducts its hearings,
it is obliged to try to bring the parties to a settlement if this is possible or appropriate (s.66).
Hearings
The tribunal conducts its hearings informally,
but it must follow the rules of natural justice. It
is not bound by the rules of evidence (s.55).
The tribunal must generally conduct its
hearings in public, though it can decide to hold
particular cases in private (s.56).
Hearings are conducted at the tribunals
premises at Balmain and in regional and country
locations.
Evidence
The tribunal relies on written and oral evidence

when making its decisions. Witnesses may
either attend the hearing in person or participate by phone or audiovisual link.
Witnesses
Any party appearing in proceedings before

the tribunal has the right both to put evidence
before the tribunal and to cross-examine
witnesses called by another party (s.59). Any
interested person can give relevant evidence to
the tribunal.
The tribunal can compel witnesses to appear
or produce documents. Witnesses must answer
questions even if this may tend to incriminate
them (ss.60, 61).
If the person who is the subject of the application cannot attend the hearing, the tribunal
must ensure that every effort has been made
to obtain their views before making an order
(s.14).
The tribunal must also try to obtain the
views of the persons spouse or partner, if any,
and their carer.
The tribunals decision
Except in very unusual circumstances, the

tribunal will make its decision on the day of the
hearing and will announce it to the parties at
the conclusion of the hearing.
After the hearing, the tribunal sends the

parties written orders and reasons for its
decision (s.68).
Are there restrictions on publication?
It is an offence to publish or broadcast, without

the tribunals consent, any identifying material
about:
a person under guardianship
a person whose affairs are under financial
management
a person who is the subject of any application to the tribunal
a child (s.57).
This provision does not prevent the tribunal
from providing written reasons for its decision
to the parties involved (s.57(2)).
There are also penalties imposed for the
disclosure of information obtained in the course
of administering or executing duties under the
Guardianship Act (s.101).
Reviews of enduring powers of attorney
Under the Powers of Attorney Act the tribunal can
review an enduring power of attorney and make a
range of orders including:
varying a term or power of an enduring power of
attorney
removing a person from office as attorney
replacing an attorney with another person
reinstating an enduring power of attorney which has
lapsed
directing attorneys to provide accounts and other
information to the tribunal
revoking all or part of an enduring power of
attorney
declaring that a person did not have mental capacity
to make an enduring power of attorney.
Recognition of interstate enduring powers of
attorney
An enduring power of attorney which has been made
in another state or territory is recognised as having
effect in NSW (Powers of Attorney Act s.25(1)).
These instruments are recognised only to the extent
that the powers that they give could have been validly
given under the NSW Act.
19/4/12 10:10:41 AM
[18.570]
Guardianship
Guardianship is substitute decision-making in

personal or life matters.
An appointed guardian can make some or
all personal decisions for the person who is the
subject of a guardianship order. This usually
means being given the authority to make decisions appropriate to the needs of the person
under guardianship.
The Guardianship Tribunal can appoint
either the Public Guardian or a private
guardian.
[18.580] Applying for

guardianship orders
When to apply
It is appropriate to apply or at least seek the

advice of the tribunals staff where a person
with a cognitive disability cannot make decisions for themselves and there is a need for a
guardian to be appointed to make decisions on
their behalf because:
the persons health is at serious risk and
will continue to be at risk if no substitute
decision-maker is appointed
informal arrangements to support a person
with a disability have collapsed or become
insufficient for their increasing needs, and
the person is at risk and lacks the insight
to make decisions to reduce or prevent the
risks
a person with a disability is unable to make
decisions and is in need of protection from
abuse or exploitation
there is a dispute between a person whose
disabilities impair their decision-making
capacities and their family or service providers about where the person should live or
what support services they should receive,
or
although the person does not resist decisions being made for them, there is dispute
between care-givers and family members
or among care-givers about what decisions
should be made.
Further information about whether it is appropriate or

necessary to make a guardianship application can be
obtained from the tribunals enquiry service.
Who may apply

Applications for a guardianship order may be
made by:
the person with a disability
the Public Guardian (in practice this rarely
happens)
anyone the tribunal considers to have a
genuine concern for the welfare of the
person the application is about (s.9(1)).
Those with a genuine concern for the welfare of
the person with a disability may include family
members, friends and carers as well as involved
health professionals or service providers.
Parties to the application
Under s.3F of the Guardianship Act, the following are parties to a guardianship application:
the person the application is about
the applicant
their spouse (or de facto or same-sex
partner)
the person who provides unpaid care to
the person the application is about or who
arranges such care
the Public Guardian.
The tribunal can join anyone as a party to the
proceedings if it considers that person should
be joined (s.57A).
What must be established before a

guardian can be appointed
Before the Guardianship Tribunal can appoint
a guardian, it must be satisfied that:
the person who is the subject of the application has a disability, and
because of the disability, the person is totally
or partially incapable of managing themselves, and
there is a need for a guardian to be appointed
(ss.3, 14).
It is helpful if evidence of disability, incapacity
and need are provided with the application.
19/4/12 10:10:41 AM

What does disability mean?
Under the Guardianship Act, a person has a disability
if they are restricted in one or more major life activities
to the extent that they need supervision or social
habilitation because of:
intellectual, physical, psychological or sensory
impairment
advanced age
mental illness within the meaning of the Mental
Health Act, or
other disabilities (s.3(2)).
Evidence of disability and incapacity
Wherever possible, the tribunal requires

evidence of the persons disability from professionals with expertise in disability and capacity
assessment.
The tribunal may also rely on evidence from
others about their own observations of the
persons disabilities.
The evidence of social workers, community
nurses, family members, friends and others who
have had regular contact with the person is also
considered in deciding whether the person is
incapable of managing themselves and whether
there is a need to appoint a guardian.
What the tribunal considers
In deciding whether a person needs a guardian,

the tribunal must take into account the views of
the person and those of their spouse or partner,
if any, and any person who provides them with
care.
It must also consider the importance of
preserving the persons family relationships and
their cultural and linguistic environment.
The tribunal should also explore whether it
is practical for services to be provided to the
person without the need for an order being
made because there are already informal
supports in place (s.14).
[18.590] Guardianship orders

The Guardianship Tribunal can make three
types of guardianship orders:
temporary limited or plenary orders
continuing limited orders
continuing plenary orders.
Where possible, the tribunal must make a
continuing limited order (s.15).
Decisions that can be made under a limited

guardianship order
Under a limited guardianship order, a guardian can
be given the function of making decisions in different
areas of a persons life, such as where they should live
or what medical and dental care they should receive.
Another common function is to decide what services
the person should receive, such as therapy or home
care support. A guardian may also be responsible
for approving behaviour management programs or
restrictive practices.
When there is a need, a guardian may be authorised
to make the decision about whether a person should
move to an aged care facility or other accommodation.
A guardian may be given the power to authorise others,
such as the ambulance service or police, to take a
person to that accommodation and return them if they
leave. This power is occasionally given to guardians of
people who have dementia and require a higher level
of care than they can receive at home.
Temporary orders
Temporary orders appoint the Public Guardian,
and are made when a short-term solution to
a problem is required, or an urgent order is
needed (s.17). They can be limited or plenary
orders.
They are for a maximum of 30 days and
may be renewed only once for up to 30 days
(s.18).
A temporary order may not be made where
it is practicable to make a continuing order
(s.15).
Continuing limited orders

The vast majority of guardianship orders made
by the tribunal are continuing limited guardian
ship orders, under which the tribunal gives the
guardian specific functions.
Orders may be made for a maximum of
only one year initially, and can be renewed for
up to three years (ss.16, 18(1)).
Continuing plenary orders

Under a continuing plenary order, the guardian
has custody of the person under guardianship to
the exclusion of all others, and has all the functions of a guardian at law and equity (s.21).
Such orders are rarely made, and only if a
continuing limited order is not adequate.
Orders may be made initially for one year,
and renewed for up to three years after review
(s.18).
19/4/12 10:10:42 AM
Longer orders
The tribunal can make longer guardianship orders if it
is satisfied that:
the person who is the subject of an application has
permanent disabilities
the person is unlikely to regain the capacity to
manage themselves, and
there is a need for a longer order.
Where appropriate, the tribunal can make an initial
order for up to three years and a renewed order for up
to five years (ss.18(1A), (1B)).
Who can be appointed

When a continuing order is made, the tribunal
appoints a private person wherever possible
(s.15). The Public Guardian must be appointed
as guardian if the tribunal decides to make a
temporary guardianship order (s.17).
Private guardians
Private guardians are usually relatives, close

friends or someone who has a positive relationship with the person under guardianship.
They must be 18 or older (s.16).
The Guardianship Tribunal must be satisfied that:
the proposed guardians personality is
generally compatible with that of the person
under guardianship
there is no undue conflict between the interests, particularly the financial interests, of
the proposed guardian and the person under
guardianship, and
the proposed guardian is willing and able
to exercise the functions conferred by the
guardianship order (s.17).
Alternative guardians
Where the tribunal makes a continuing guardianship order and appoints a private person, it
may also appoint an alternative guardian to act
for the guardian during the guardians absence
or incapacity (s.20).
Joint guardians
When making a limited guardianship order the

tribunal can appoint two or more private guardians, either as joint guardians with the same
functions, or with separate functions (s.16).
The Public Guardian cannot be appointed
as a joint guardian.
If a guardian dies
If a jointly appointed guardian dies, the surviving joint guardians continue to act jointly
(s.22A).
If a guardian dies and there is no surviving
joint guardian, the alternative guardian, if any,
acts until the order is reviewed.
The Public Guardian becomes the guardian
of anyone under guardianship who does
not have a surviving guardian or alternative
guardian.
When the Public Guardian may be appointed
The Public Guardian is often appointed where:
the person under guardianship has no family or
friends who would be appropriate guardians
proposed guardians do not meet the criteria set down
in s.17 of the Act (see Who can be appointed, above)
the circumstances of the case mean it is not in
the interests of the person to appoint otherwise
appropriate people (for example, conflict between
family members means they would not act
objectively if appointed as guardians).
Assessment of orders
When making a guardianship order, the tribunal
may specify that an assessment of the person
and the operation of the order be carried out
by the tribunal during the currency of the order
(s.24).
Review of orders
Who may request a review?
The tribunal may be asked to review a guardianship order by:

the person under guardianship
the guardian
the Public Guardian
anyone who, in the tribunals opinion, has
a genuine concern for the persons welfare
(s.25B).
The tribunal may also initiate such a review
itself (s.25(1)). After the review, the tribunal
may vary, suspend, revoke, or confirm the order
(s.25C).
Automatic review
The tribunal must review each guardianship

order before it expires (s.25(2)(b)) unless it has
been made as a non-reviewable order (s.16).
The tribunal may renew the order, with or
without variation, or decide the order should
lapse at the set time.
19/4/12 10:10:42 AM

If the review process has begun and the order
expires, the order is deemed to remain effective
until the review is completed (s.25(6)).
Non-reviewable orders
A guardianship order may contain a statement

that it is not to be reviewed at the end of its term.
This can only be done if the tribunal is satisfied it is in the best interests of the person who
is the subject of the order. However, a review
of a non-reviewable order can be requested if
circumstances change and this would be in the
best interests of the person.
Seeking directions from the tribunal

Guardians unsure about what to do in certain
circumstances may apply to the tribunal for directions
(s.26). Before making a direction, the tribunal
must consider any views of both the person under
guardianship and the guardian. The tribunal must also
consider the importance of preserving the persons
cultural environment and existing family relationships.
Guardians rarely request directions.
Directions about adoption information

Anyone may apply to the tribunal for directions about
what actions may be taken on behalf of a person with a
disability under the Adoption Act 2000 (ss.31A31G).
Such actions might include lodging a contact veto or
advance notice request (see Adoption in chapter 8,
Children and young people).
Removal orders
Must the person be removed?
Where an application for a guardianship order

has been made, the tribunal may order that the
person who is the subject of the application be
removed from their current dwelling and placed
under the care of the Director-General of the
Department of Ageing, Disability and Home
Care (ss.11, 13).
Under a removal order, various officers of
the department have the delegated power to
enter and search premises and to remove the
person, using reasonable force if necessary.
The police may also be authorised by the
tribunal to carry out a removal order (s.11).
When removal orders may be made
Removal orders intrude on the rights of individuals. In
our legal tradition such powers are exercised rarely,
and only for very good reasons. Orders may be made
when a person has a disability and:
is being held on premises against their will, or
is being abused, exploited or seriously neglected.
The power may also apply where a person, because
of dementia, brain damage or other disability, does
not realise they are living in a situation in which they
are in danger or need medical treatment urgently to
protect them from a life-threatening illness or decline
in health.
The tribunal will grant removal orders only in
urgent situations. It will expect to hear evidence of
informal attempts by discussion or persuasion to
remove the person from the premises, or an explanation
for why such techniques are not appropriate in the
circumstances.
An authorised officer of the department does

not have to remove the person if the officer
thinks there is no immediate need to remove
them. For example, the officer may organise
appropriate services or move the person later.
Admissions to mental health facilities

Application by a guardian
A guardian may make a request to a mental

health service for a person under their guardianship to be admitted as a voluntary patient
under s.7 of the Mental Health Act 2007.
The right to leave hospital
The guardians request cannot override s.8 of

the Mental Health Act, which provides that
voluntary patients may, at any time, discharge
themselves or leave the hospital.
This provision, intended to safeguard the
rights of people who admit themselves to
psychiatric hospitals as voluntary patients,
applies equally to patients admitted by guardians. It can create difficulties for guardians and
those in psychiatric hospitals responsible for
the care, safety and wellbeing of patients.
If the guardian objects to an admission
Section 7(2) of the Mental Health Act provides

that a person under guardianship cannot be
voluntarily admitted to a psychiatric hospital if
their guardian objects. A person under guardianship who is admitted to a psychiatric hospital
as a voluntary patient must also be discharged
on their guardians request.
19/4/12 10:10:43 AM

If the person is discharged
If a person under guardianship is discharged

from voluntary admission, their guardian must
be advised by an authorised medical officer
(s.8). The guardian should also be given information about follow-up care (see s.79).
If the person cannot consent to treatment
If a person under guardianship is admitted to a

psychiatric hospital as a voluntary patient, and
is unable to give an informed consent to treatment, their person responsible must consent
to such treatment (see The person responsible
at [18.660]).
[18.600] Enduring guardianship

Appointing an enduring guardian
A person over 18 who is legally competent

can appoint their own enduring guardian. The
appointment must be in writing in an approved
form.
Witnessing requirements
Both the person and their appointed endur

ingguardian (including any alternative enduring
guardians) must sign the appointment in front
of:
an Australian solicitor or barrister with a
current practising certificate, or
a registrar of a NSW Local Court (Guard
ianship Act ss.5, 6, 6C).
The witness must not be the person who is
being appointed as the enduring guardian.
The witness must certify on the form that
the appointor signed the form voluntarily and
appeared to understand the effect of appointing
an enduring guardian.
The signatures of the appointor and of the
enduring guardian can be witnessed at different times, different places and by different
witnesses (s.6C(4)).
If the appointor cannot sign
If the appointor is unable to sign the appointment due to physical disability, another person
(the eligible signer) can sign on their behalf
(s.6C(b)(ii)).
The witness must certify that the person
who could not sign directed the eligible signer
to sign for them and that this happened in the
presence of the witness.
The eligible signer must be over 18, and
cannot be either:
a witness to the appointment, or

the appointed enduring guardian (s.5).
If the appointor cannot sign their name, they
can make their mark on the document instead
(s.6C(2)).
Who cannot be appointed
A person is not eligible to be appointed as an

enduring guardian if they are:
under 18
directly or indirectly involved in, or responsible for, providing certain services (see
below) for a fee to the appointor (s.6B)
a relative or spouse of someone providing
such services (s.6B(2)(b)).
Services covered in section 6B(2)(a)
The services covered in s.6B(2)(a) include:
medical services (whether in a hospital, at home or
elsewhere)
accommodation services, or
any other services which support the appointor in
activities of daily living.
What the appointment should specify
The appointment should specify the functions

the enduring guardian is to exercise, and any
directions or limitations required.
In the instrument of appointment, the
appointor may:
exclude, limit or add areas of decisionmaking authority for an enduring guardian
include lawful directions to the guardian.
The enduring guardian must exercise their
authority in accordance with those directions, unless otherwise directed by the tribunal
(s.6E(3)).
When the appointment takes effect
An enduring guardianship appointment takes

effect only when the appointor is no longer
capable and has become a person in need of a
guardian (s.6A).
What decisions the guardian can make

An enduring guardian is authorised to make
lifestyle decisions about the appointor when
that person is no longer capable. An enduring
guardian cannot make decisions about financial matters.
The enduring guardian may be authorised
to make decisions about the appointor in the
following areas:
19/4/12 10:10:44 AM

where the person should live
the health care the person should receive
the personal services the person should
receive
consent to medical and dental treatment
under Pt5 of the Act (s.6E).
An enduring guardian does not have authority to override the appointors objections to
medical or dental treatment.
The guardians right of access to information
The enduring guardian has the right to access

information about the appointor (sometimes including health information or medical
records), as long as:
such access is to assist them to carry out
their duties as enduring guardian, and
the appointor would have been able to
access that information (s.6E(2A)).
If two or more guardians are appointed

If two or more enduring guardians are
appointed, they can be appointed to act sever
ally, jointly or jointly and severally (s.6D(1)).
Guardians appointed severally
If the guardians are appointed severally they can

make decisions separately and independently.
If each of the enduring guardians is to exercise
different functions, they must be appointed
severally, with each enduring guardian having
a specific function.
Guardians appointed jointly and severally
If the guardians are appointed jointly and

severally they can either act separately and
independently to make decisions, or they can
act together.
Guardians appointed jointly
If the guardians are appointed jointly they must

act together to make decisions.
If one guardian cannot continue
If one enduring guardian dies, resigns or

becomes incapacitated:
where the guardians were appointed sever
ally or jointly and severally, the remaining
guardians can continue to make decisions
where the guardians were appointed jointly,
the appointment of other guardians is terminated unless the appointment document
makes other specific provisions.
Alternative enduring guardians

An appointor may appoint an alternative enduring
guardian (s.6DA), who can act only if the original
enduring guardian dies, resigns or becomes
incapable.
An original enduring guardian who becomes able
to perform their duties again resumes those duties from
the alternative guardian.
Resigning as an enduring guardian

If the appointer is not in need of guardianship
An enduring guardian may resign their appointment by giving written notice to the appointor,
but only if the appointor is not in need of a
guardian (s.6HB).
If the appointer is in need of guardianship
If the person is in need of a guardian, the

enduring guardian can only resign with the
approval of the Guardianship Tribunal.
Signing and witnessing requirements for
resignation
The requirements for signing a resignation and

witnessing signatures are similar to those for
appointing an enduring guardian (see Appointing an enduring guardian at [18.610]).
Revoking an appointment
An enduring guardianship appointment can be
revoked in writing by an appointor who still has
capacity to understand their decision (s.6H).
Signing and witnessing requirements
The revocation must be in an approved form,

and witnessed by someone who meets the
requirements for witnessing the appointment
of an enduring guardian (see Appointing an
enduring guardian at [18.610]). The witness
must certify on the form that the person
revoking the appointment signed the revocation
form voluntarily and appeared to understand
the effect of revoking the appointment of the
enduring guardian.
If the person cannot sign
The considerations that apply when a person

cannot sign the instrument of appointment
apply when they are unable to sign a revocation (see Appointing an enduring guardian at
[18.610]).
19/4/12 10:10:44 AM

When does the revocation take effect?
The revocation takes effect when written

notice of the revocation is given to the person
appointed as enduring guardian.
Automatic revocation by marriage
If a person marries, or remarries, after appointing an enduring guardian, the marriage

automatically revokes the appointment. This
means that the person must make a new
enduring guardianship appointment after the
marriage (s.6HA).
This does not apply if the person has
married the enduring guardian. In that case, the
enduring guardianship appointment continues.
Reviewing an appointment
An enduring guardianship appointment can be
reviewed by either:
the Guardianship Tribunal (s.6J), or
the Supreme Court (s.6L).
When the tribunal can review an appointment
The tribunal can review an appointment on its

own initiative or on the application of anyone
who, in the opinion of the tribunal, has a
genuine concern for the welfare of the appointor (s.6J).
What the tribunal may do
The tribunal can confirm, revoke or vary the

appointment.
It may also:
confirm the appointment even if the instrument of appointment was not executed
[18.610]
Recognition of interstate appointments

Certain interstate instruments that appoint the
equivalent of enduring guardians in other states and
territories are recognised as having effect in NSW
(s.6O). These instruments are listed in the Guardianship
Regulation 2005 reg.7.
These instruments are recognised only to the extent
that the functions conferred could have been validly
conferred on an enduring guardian in NSW.
Property management
Property management is called financial

management in the Guardianship Act. The
NSW Trustee and Guardian Act uses the term
estate management.
If a person cannot manage their financial
affairs, including their property, a manager can
be appointed. This can be either:
a private manager who is subject to the
authorisation and direction of the NSW
Trustee and Guardian, or
the NSW Trustee and Guardian.
properly or in certain other cases (s.6K(4)),

if satisfied that this reflects the persons
intentions
appoint a person to replace an enduring
guardian who has resigned, died or become
incapacitated (s.6MA), if satisfied that the
appointor is in need of a guardian and
that the person replacing the guardian is
suitable
make an order declaring that the appointment of an enduring guardian has effect
(s.6M), if satisfied that there is a need
and the person has been appointed as the
enduring guardian
make orders as if an application had been
made for guardianship and/or financial
management, but only if it has revoked the
enduring guardianship appointment.
If a guardianship order is made, the enduring
guardianship appointment is suspended for the
period of the order (s.6I).
Jurisdiction of the Supreme Court and the

Mental Health Review Tribunal
The Supreme Court can appoint a manager for a persons
estate under the NSW Trustee and Guardianship Act.
Applications should be made to the Supreme Court
Equity Division Protective.
The Supreme Courts powers are found primarily in
s.41 of the Act. Orders under the Act can also be made
by The Mental Health Review Tribunal.
19/4/12 10:10:45 AM
[18.620] Appointment of a
manager by the Guardianship
Tribunal
The power of the tribunal to make financial
management orders is set out in the Guardian
ship Act, but management under the order is
still given effect under the NSW Trustee and
Guardianship Act.
When a financial manager may be

required
The need for a financial manager may arise
when:
the incapable person needs to engage in a
legal transaction (for example, to sell their
house), and there is a need for a legally
authorised person to sign or execute documents, or
informal arrangements are no longer satisfactory because the person who used to
carry them out is no longer able to do so,
or
there are disputes in the family about the
management of the persons finances and
property, or
there is dispute between the family and caregivers, or between various care-givers, about
the management of the persons finances and
property, or
there is a risk of financial exploitation.
Further information about making a financial
management application can be obtained from
the tribunals enquiry service.
Who may apply?

Applications for financial management can be
made by:
the NSW Trustee
anyone who, in the tribunals opinion, has
a genuine concern for the welfare of the
person who is the subject of the application
(s.25I).
When may the tribunal make an order?

Before the tribunal may make a financial
management order, it must be satisfied that:
a person is not capable of managing his or
her own affairs
there is a need for someone else to manage
the persons affairs, and
it is in the best interests of the person that
the order be made (s.25G).
What does not capable of managing his or

her own affairs mean?
The Supreme Court has defined incapable of managing
his or her affairs in PY v RJS (1982) 2 NSWLR 700
to mean that a person must be incapable of dealing
competently with their own affairs to the extent that
there is a real risk of personal disadvantage or monetary
loss.
In H v H (unreported, Supreme Court, Equity
Division, Protective List, 20 March 2000) the court
explained that for a person to have the capacity to
manage their own affairs they do not need to be able
to manage complex financial affairs, but they must be
able to manage more than the household bills.
The relevant time for considering whether a person
is incapable of managing their own affairs is not merely
the day of hearing but the reasonably foreseeable future
(McD v McD (1983) 3 NSWLR 81).
Proof of incapability and need

Professional evidence from doctors or psychologists is required to establish the persons
inability to manage their affairs. Evidence from
family members, care-givers and others is also
relevant.
Protected persons
Someone whose estate is subject to a current financial
management order is referred to as a protected person
(s.25D).
[18.630] Financial management

orders
If the Guardianship Tribunal is satisfied that
a financial management order is needed, it
may make an order that the persons estate be
managed under the NSW Trustee and Guardian
Act, and then appoint a manager (Guardian
ship Act ss.25E, 25M).
The NSW Trustee and Guardian charges set
fees for managing a persons estate and for their
involvement with a private financial manager.
For information about the fees charged,
contact the NSW Trustee and Guardian or refer
to their website.
What orders can be made

Financial management orders may be for the
persons whole estate and the rest of their life.
Many orders like this are made, but the
Guardianship Act also allows for greater flexibility in the scope and duration of orders.
19/4/12 10:10:46 AM
The tribunal can exclude part of a persons

estate (such as their pension) from a financial
management order (s.25E).
The manager can also authorise the
protected person to deal with a specified part
of their estate. The authorisation must be in
writing and approved by the NSW Trustee
(NSW Trustee and Guardian Act s.71).
Interim financial management orders

The Guardianship Tribunal can make shortterm (interim) financial management orders
up to six months while the persons capability to manage their affairs is being considered
(Guardianship Act s.25H). These orders
protect the persons financial resources when it
is unclear whether they lack the capability to
manage their affairs.
Duration of orders
Orders remain in force until:
the protected persons death
revocation by the Supreme Court
set aside by the Administrative Decisions
Tribunal
revocation by the Guardianship Tribunal
revocation by the Mental Health Review
Tribunal
termination of management by the NSW
Trustee and Guardian
expiration of an interim financial management order without a further order.
What happens to a power of attorney?
Any power of attorney the protected person made
before the financial management order is suspended
for the duration of the financial management order
(Powers of Attorney Act 2003 s.50).
Review of financial management orders

Review periods
Financial management orders are permanent

orders. However, the Guardianship Tribunal
can set a review period for orders that it makes
(Guardianship Act s.25N).
Applying for revocation or review of an order
The protected person who is the subject of the

order, the NSW Trustee, the private manager or
anyone else who, in the opinion of the tribunal,
has a genuine concern for the welfare of the
protected person, can apply to the tribunal
for the revocation or variation of a financial
management order made by the Guardianship
Tribunal (ss.25N, 25R).
An application can also be made to review
the appointment of the financial manager under
the order (Guardianship Act s.25S).
When the tribunal may refuse to review an order
The tribunal can refuse to review a financial

management order, or the appointment of a
financial manager, if:
it has previously reviewed the order, or
the request does not show grounds that
warrant a review (ss.25O, 25T).
When the tribunal may revoke an order
The tribunal can revoke a financial management order if:

the person is capable of managing their
affairs, or
the tribunal considers that it is in their
best interests, even though they may
not be capable of managing their affairs
(s.25P(2)).
Replacing a financial manager
The tribunal can also consider applications to

review the appointment of a financial manager
such as the NSW Trustee or a private person
(s.25S).
After conducting such a review, the tribunal
can either revoke or confirm the appointment
of the manager. If the tribunal revokes the
appointment, it can appoint another person as
manager (Guardianship Act s.25U(3)).
If a manager dies, is unable or unwilling to
act, or is acting in an unsuitable manner, the
tribunal can appoint a new manager (Guardian
ship Act ss.25S, 25U and see Holt v Protective
Commissioner (1993) 31 NSWLR 227).
Orders that cannot be reviewed or revoked

The Guardianship Tribunal cannot review or revoke
estate management orders made by the Supreme Court
or the Mental Health Review Tribunal (see Mental
health in chapter28, Health law).
19/4/12 10:10:46 AM

Recognition of interstate orders
The Guardianship Tribunal can recognise the
appointment of guardians and financial managers
appointed under a corresponding interstate law
(Guardianship Act s.48B).
Any guardian or manager who was appointed
under such a law may apply to the tribunal to have
their appointment recognised in NSW. When the
appointment has been recognised, the guardian or
financial manager is taken to have been appointed
as the persons guardian or manager under the
Guardianship Act.
Guardians and managers appointed under the

recognition provisions can only exercise functions
granted under their original appointment if they are
also functions under the Guardianship Act.
Corresponding laws are defined in the Guardian
ship Regulation 2010 (cl.16), and include guardianship
and financial administration legislation of all the
Australian states and territories, and New Zealand.
Consent to medical and dental

treatment
[18.640]
Medical and dental treatment may not be

carried out on an adult unless:
the person consents to the treatment
the treating doctor is empowered by law to
treat them without their consent, or
another person authorised by law consents
to the treatment.
[18.650] When the Guardianship

Act applies
Part 5 of the Guardianship Act covers medical
and dental treatment for people unable to
consent to treatment. It provides mechanisms
for:
identifying substitute decision-makers (such
as persons responsible)
Guardianship Tribunal consent to certain
treatments (such as special medical treatments) in certain circumstances
treatment without the persons consent, in
limited circumstances.
What is medical and dental treatment?

Medical treatment is defined in the Guardian
ship Act to include procedures normally carried
out, or supervised, by a medical practitioner
(s.33).
Dental treatment is defined to include procedures normally carried out, or supervised, by a
dentist (s.33).
What is not included
Non-intrusive (for example, visual) examinations for the purpose of diagnosis, first-aid
medical or dental treatment, and giving nonprescription drugs are not included, and the
substitute consent provisions of the Act do not
apply to them.
When is a person unable to consent?

In some cases, a person is unable to consent to
their own treatment because of a pre-existing
disability such as dementia, developmental dis
ability or brain damage.
In other cases, they may be unable to consent
because of unconsciousness, disorientation or
confusion due to some illness.
A person may be able to consent to simple
medical treatment (like straightforward dental
treatment) but not to more complicated procedures or medication (like surgical operations or
anti-psychotic medication).
To whom the Act applies

The Act applies to a person 16 or older, who is:
incapable of understanding the general
nature and effect of the proposed treatment,
or
incapable of indicating whether or not they
consent to it (ss.33, 34).
19/4/12 10:10:47 AM
If there is an emergency
Consent for special treatment
A medical practitioner or dentist may carry out

treatment on a person if they believe the treatment is necessary as a matter of urgency to:
save the persons life
prevent serious damage to the persons
health
prevent the patient suffering, or continuing
to suffer, significant pain or distress, except
in the case of special treatment (see What
are special medical treatments? at [18.660])
(Guardianship Act s.37).
Only the Guardianship Tribunal can give

consent for special treatment under the Guard
ianship Act. However, it can confer on a patients
guardian the authority to consent to the continuation of the treatment, and the carrying out of
similar special treatment (s.45A).
Only the Guardianship Tribunal can consent
to certain special medical treatments for people
under 16 under the Children and Young Persons
(Care and Protection) Act (s.175) (see Special
medical treatment for children in [18.660]).
[18.660] Who may give consent

Authority to consent depends on the type of
treatment proposed. The Guardianship Act
divides treatment into special, major and minor
treatment.
These are defined in the Act and the Guardianship Regulation 2010.
Consent for major and minor treatment

Both the Guardianship Tribunal and the person
responsible (see below) can give consent for
minor and major treatments to promote or
maintain the persons health and wellbeing.
The person responsible

Under the Guardianship Act, the person responsible
is, in order of precedence:
a legally appointed guardian or enduring guardian
authorised to give consent to medical and
dental treatment on behalf of the person under
guardianship
the most recent spouse or de facto spouse (including
a same-sex partner) with whom the person has a
close, continuing relationship
an unpaid carer (or recipient of carer pension) or
someone who arranges care and support services
on a regular basis, or who provided this support

before the patient entered residential care
a close friend or relative who is interested in the
patients welfare (s.33A).
If a person responsible declines in writing to exercise
the relevant functions, or a doctor or other qualified
person certifies that they are not capable of exercising
them, the next person in the hierarchy becomes the
person responsible.
If the patient objects
at [18.660]), the Guardianship Tribunal can

consent only if additional requirements are met
(s.45).
Before the tribunal can consent to special
treatment such as sterilisation, termination of
pregnancy, long-term use of drugs of addiction
or aversive treatments, it must be satisfied that
the treatment is necessary:
to save the persons life, or
to prevent serious damage to the persons
health.
If the special treatment is a new treatment which
has not gained widespread support in the particular medical specialty or it is a special treatment
set out in cl.9 of the Regulation (experimental
treatment or androgen-reducing medication
for behavioural control), the tribunal can only
consent if the treatment:
In some circumstances, if a patient objects to

treatment only the Guardianship Tribunal or
an authorised guardian with a specific authority to override the persons objections can give
consent on their behalf (see Objections to treatment at [18.660]).
When the tribunal can consent

Before it can consent to a treatment, the
tribunal must be satisfied it is the most appropriate treatment to promote and maintain the
persons health and wellbeing (Guardianship
Act s.45).
Special treatment
Where a proposed treatment is special treatment (see What are special medical treatments?
19/4/12 10:10:48 AM

is the only or most appropriate treatment
and is manifestly in the persons best interests, and
complies with any relevant guidelines of

the National Health and Medical Research
Council (s.45(3)).
What are special medical treatments?

Special medical treatments listed in the Guardianship
Act and the Guardianship Regulation include:
treatment intended (or likely) to render the person
infertile (s.33)
the administration of a drug of addiction (except
for cancer, or the palliative care of a terminally ill
person) for a total of more than ten days in any 30
(cl.3)
termination of pregnancy (cl.9)
vasectomy or tubal occlusion (cl.9)
an aversive stimulus mechanical, chemical,
physical or otherwise (cl.9)
new treatment that has not yet gained the support

of a substantial number of medical practitioners or
dentists specialising in the relevant area (s.33)
androgen-reducing medication for the purpose of
behavioural control (cl.10)
administration of one or more prescription
medications affecting the central nervous system
if dosage levels, combinations or number of
medications, or duration of treatment, are outside
the accepted treatment for such a patient (cl.10).
Major treatment
the person has no person responsible, or

the person responsible
is not readily available
does not consent to the treatment (s.36).
A persons primary substitute decision-maker

in relation to major treatment is their person
responsible (see The person responsible at
[18.660]).
The tribunal may be approached to act as
the substitute decision-maker if:
What are major medical treatments?

For the purposes of Pt. 5 of the Guardianship Act, cl.11
of the Regulation identifies major medical treatment as:
the administration of long-acting injectable
hormonal substances for contraception or menstrual
regulation
the administration of a drug of addiction (see Sch.8
of the Poisons List issued under the Poisons and
Therapeutic Goods Act 1966)
the administration of a general anaesthetic or other
sedation, but not a treatment involving sedation to
facilitate the management of fractured or dislocated
limbs or most endoscopy treatments
treatment to eliminate menstruation
the administration of a prescription only medication
for the purpose of affecting the central nervous
system (see Sch.4 of the Poisons List issued under
the Poisons and Therapeutic Goods Act), other than
for certain therapeutic purposes
any treatment involving testing for the human

immunodeficiency virus (HIV)
treatment with a substantial risk (that is, more thana
mere possibility) of:
death
brain damage
paralysis
permanent loss of function of any organ or limb
permanent and disfiguring scarring
exacerbation of the condition being treated
an unusually prolonged period of recovery
a detrimental change of personality
a high level of pain or stress.
For full details, check the Guardianship Regulation
2010.
Major dental treatment

Major dental treatment is listed in cl.12 as any
treatment:
involving the administration of a general anaesthetic
or simple sedation
intended to, or likely to result in, the removal of all
teeth
likely to result in significant impairment of the

patients ability to chew food for an indefinite or
prolonged period.
19/4/12 10:10:49 AM
Minor treatment
What are minor medical treatments?
Any treatment not identified as either special or major
treatment is considered minor medical or minor
dental treatment. Minor medical or dental treatments
may be consented to by the person responsible or the
Guardianship Tribunal.
Minor medical or dental treatments
If there is no person responsible or the person
responsible cannot be contacted or is unable or
unwilling to make a decision concerning a request
for their consent, the minor treatment may be given,
providing the patient does not object.
The medical practitioner or dentist must certify in
writing in the patients clinical record that:
the treatment is necessary and is the most appropriate
treatment to promote their health and wellbeing,
and
the patient does not object (s.37).
If either the patient objects to the treatment or there
is concern that a refusal by the person responsible is
not in the patients best interest, an application can be
made to the tribunal.
Objections to treatment
If the patient objects
The person responsible cannot consent if the

person who is to receive the treatment objects
(s.46).
The person is taken to have objected to
the treatment, even though they are unable to
consent to it, if:
they indicate (by whatever means) that they
do not want it carried out, or
they have indicated before in similar circumstances that they do not want it carried out,
and have not subsequently indicated otherwise (s.33).
In these circumstances, only the Guardianship Tribunal can give consent to the proposed
treatment.
When a guardian can override objections
A guardian may be authorised to override a

persons objections if the tribunal is satisfied
that person objects because of a lack of understanding of the nature of or reason for the
treatment (s.46A).
the patient has minimal or no understanding of what the treatment entails, and
the treatment will cause them no distress or,
if it will cause some distress, it is likely to be
reasonably tolerable and brief (s.46(4)).
Information for the substitute

decision-maker
The person responsible (including a guardian
or enduring guardian with a consent role)
must, when asked to consent to treatment on
behalf of a patient, be given information about
a number of matters (s.40). These are:
why the doctor or dentist believes the person
cannot give their own consent
the condition that requires treatment
other courses of treatment available for that
condition
the general nature and effect of those courses
of treatment
the nature and degree of significant risks (if
any) associated with each course of treatment, and
the reasons for proposing a particular course
of treatment.
The person responsible should consider the
views of the person who is to receive the treatment, if that person is capable of communicating
their views, and must also consider whether
the treatment will promote and maintain the
persons health and wellbeing.
If the Guardianship Tribunal is the substitute decision-maker, the views of the person
responsible should also be considered.
New treatments available in clinical

trials
The Guardianship Tribunal can approve clinical
trials as being suitable for the participation of
patients who cannot give their own consent
(s.45AA). This gives such people access to
new treatments that are only available through
clinical trials. Consent can be given by the
tribunal even though the person may receive a
placebo in the trial.
A person who cannot consent cannot be
included in a clinical trial unless the tribunal
approves the trial.
When objections can be disregarded
A patients objection may be disregarded and

the consent of the substitute decision-maker
takes effect if:
19/4/12 10:10:49 AM

Special medical treatment for children
The Guardianship Tribunal has power under the
Children and Young Persons (Care and Protection)
Act to consent to certain special medical treatments
proposed for a child (under 16) who may or may not
have a disability. They are:
treatment intended or reasonably likely to make
the person infertile (not including treatment to treat
a life-threatening condition where infertility is an
unwanted consequence)
treatment for the purpose of contraception or
menstrual regulation (if listed in the Children and
Young Persons (Care and Protection) Regulations

none is listed as yet)
vasectomy or tubal occlusion.
The tribunal must be satisfied that the treatment is
necessary to save the childs life or prevent serious
damage to the childs psychological or physical health.
The child is entitled to be legally represented at the
tribunals hearing of the application.
If the treatment is needed urgently to save the childs
life or prevent serious damage to their psychological or
physical health, it may be given without consent.
When the tribunal may approve the trial
participation poses no known substantial

risk, or no greater risk than other available
treatments (s.45AA).
Above all, it must be satisfied that the opportunity to participate in the trial is in the persons
best interests.
If the tribunal approves the trial as suitable,
it can delegate consent for individual patients
to their person responsible (s.45AB).
The tribunal must be satisfied that:

the trial meets the required ethical and safety
standards
the trial has been approved by all relevant
ethics committees and complies with
relevant guidelines of the National Health
and Medical Research Council
only people with the condition the trial seeks
to treat are recruited into the trial, and
Appeals
[18.670] To the Supreme Court
A party to proceedings before the Guardianship Tribunal can appeal to the Supreme Court
against a decision of the tribunal (s.67). If a
financial management order is made under the
NSW Trustee and Guardian Act by the Mental
Health Review Tribunal when the person was
in a mental health facility, only the person
who is the subject of the order can appeal the
decision.
Appeals can be made as of right on questions
of law. If the appeal is not about a question of
law, the Supreme Courts permission is needed.
An appeal should be made within 28 days
after receipt of the Guardianship Tribunals
written reasons, although the Supreme Court
may extend the time.
An appeal operates as a stay of the order of
the tribunal, unless the court makes an order
bringing the order back into force (s.67(5)).
[18.680] To the Administrative

Decisions Tribunal
A party to proceedings before the tribunal may

also appeal against certain decisions of the
tribunal to the NSW Administrative Decisions
Tribunal (s.67A of the Guardianship Act lists
the decisions that can be appealed).
If the appeal is not about a question of
law, the Administrative Decisions Tribunals
permission is needed (Administrative Decisions
Tribunal Act 1997 s.118B).
An appeal should be made within 28 days after
receipt of the Guardianship Tribunals written
reasons, although the Administrative Decisions
Tribunal may extend the time (s.118B(2)).
Unlike an appeal to the Supreme Court, an
appeal to the Administrative Decisions Tribunal
does not operate as a stay of the Guardianship
Tribunals decision unless the Administrative
Decisions Tribunal orders otherwise.
Can a person lodge two appeals?
Appeals from a decision cannot be made to both
the Supreme Court and the Administrative Decisions
Tribunal (Guardianship Act s.67A(3)).
19/4/12 10:10:50 AM
[18.690]
Contact points
If you are deaf or have a hearing or speech impairment and/or you use a tty or a computer with a
modem, you can ring any number through the National Relay Service by phoning 133 677 (local
and chargeable calls) or 1800 555 677 (free calls) or 1300 555 727 (Speak and Listen calls). For
more information, see www.relayservice.com.au.
Non-English speakers can contact the Translating and Interpreting Service (TIS) on 131 450 to
use an interpreter over the telephone to ring any number. For more information or to book an interpreter online see www.immi.gov.au/living-in-australia/help-with-english/help_with_translating/.
Government bodies
Australian Human Rights

Commission
Ageing, Disability and Home Care

(an agency of NSW Department
of Family and Community
Services)
www.adhc.nsw.gov.au
ph: 8270 2000
Information, Intake and Referral
Contacts
Metropolitan North
(02) 9841 9350
Metropolitan South
(02) 9334 3700
Hunter 1300 205 268 or
(02)4978 6222
Southern NSW 1300 841 566 or
(02) 6128 9200
Northern NSW 1300 364 563 or
(02) 6621 1400
Western 1300 134 450 or
(02)6841 1591
(formerly, the Human Rights and

Equal Opportunity Commission)
Seniors Information Service
www.seniorsinfo.nsw.gov.au
ph: 13 12 44
Home Care Service Referral and
Assessment Centre
Aboriginal Access and Assessment

Team
ph: 1300 797 606
Central Coast and rural areas
ph: 1300 881 144
RAC Management Team
ph: (02) 9841 9125
Sydney Metropolitan Area
ph: 1800 350 792
Anti-Discrimination Board
Sydney
www.lawlink.nsw.gov.au/adb
ph: 1800 670 812 or 9268 5555
Newcastle
ph: 4926 4300

Wollongong
ph: 4224 9960
www.humanrights.gov.au
ph: 9284 9600 or 1300 369 711
Australian Information
Commissioner, Office of the
privacy hotline: 1300 363 992
CRS Australia
www.crsaustralia.gov.au
ph: 1800 277 277
Metropolitan offices in Ashfield,
Auburn, Bankstown, Blacktown,
Burwood, Campbelltown,
Campsie, Caringbah,
Darlinghurst, Dee Why,
Fairfield, Hornsby, Hurstville,
Liverpool, Maroubra,
Merrylands, MountDruitt,
North Ryde, Parramatta,
Penrith, Rockdale, St Marys,
Sutherland, Windsor
NSW regional offices in
Albury, Armidale, Ballina,
Batemans Bay, Bathurst, Bega,
Bourke, Bowral, Broken Hill,
Brunswick Heads, Casino,
Cessnock, Charlestown,
Cobar, Coffs Harbour, Cooma,
Coonabarabran, Cowra,
Dareton, Deniliquin, Dubbo,
Gosford, Goulburn, Grafton,
Griffith, Katoomba, Kempsey,
Lake Haven, Laurieton, Leeton,
Lismore, Lithgow, Macksville,
Maitland, Marrickville,
Merimbula, Moree, Mudgee,
Murwillumbah, Muswellbrook,
Newcastle, Nowra, Orange,
Parkes, PortMacquarie,
Queanbeyan, Raymond Terrace,
Shellharbour, Singleton,
Tamworth, Taree, Toronto,
Tuncurry, Ulladulla, Wagga

Wagga, Wallsend, Wauchope,
Wollongong, Woy Woy, Wyong,
Young
Director of Public Prosecutions,
Office of the
www.odpp.nsw.gov.au
ph: 9285 8606
Witness Assistance Service
ph: 1800 814 534 or 9285 2502

Disability Council of NSW
www.disabilitycouncil.nsw.gov.au
ph: 8217 2800
Disability Discrimination
Commissioner
Australian Human Rights
Commission
www.humanrights.gov.au
ph: 9284 9600
complaints infoline: 1300 369 711
privacy hotline: 1300 363 992
Education, Employment and
Workplace Relations, Department
of
www.deewr.gov.au
ph: 1300 363 079
Supported Wage Management Unit
ph: 1800 065 123
Equity Division, Supreme Court

of NSW
www.lawlink.nsw.gov.au
ph: 9230 8111
Fair Work Australia
www.fwa.gov.au
ph: 1300 799 675
Fair Work Ombudsman
www.fairwork.gov.au
ph: 131394 or 8276 0999
19/4/12 10:10:51 AM

Family and Community Services,
Department of
www.community.nsw.gov.au
ph: 9716 2222
Ombudsman, Commonwealth
www.ombudsman.gov.au
ph: 1300 362 072
Statewide Disability Services

NSW Corrective Services
ph: 8346 1333
Ombudsman, NSW
ph: 132 111 or TTY:

1800 212 936 (to report child
abuse and neglect, 24 hrs)
A list of metropolitan and
regional offices is in the Contact
points for chapter8, Children and
young people.
(including Community Services

Division)
Witness Assistance Service

See Office of the Director of
Public Prosecutions above.
Official Community Visitors
WorkCover NSW
www.workcover.nsw.gov.au
ph: 4321 5000
Families, Housing, Community

Services and Indigenous Affairs,
Department of
www.fahcsia.gov.au
ph: 1300 653 227
NSW Trustee and Guardian

www.lawlink.nsw.gov.au/opc
ph: 1300 360 466 or 8688 2600
NSW Trustee and Guardian has a
network of 6 branches throughout
metropolitan Sydneyand regional
areas across NSW. See website for
details.
Community Services Helpline
National Disability Services Abuse

and Neglect Hotline
www.disabilityhotline.org
ph: 1800 880 052
Guardianship Tribunal
www.gt.nsw.gov.au
ph: 1800 463 928 or 9556 7600
Health Care Complaints
Commission (HCCC)
www.hccc.nsw.gov.au
ph: 1800 043 159 or 9219 7444
TTY: 9219 7555
Industrial Relations, NSW
www.industrialrelations.nsw.
gov.au
ph: 131 628
LawAccess NSW
www.lawaccess.nsw.gov.au
ph: 1300 888 529
Law Society of NSW
www.lawsociety.com.au
ph: 9926 0333
Law Society Solicitors Referral
Service
ph: 1800 422 713 or 9926 0300

Law society pro bono scheme
ph: 9926 0364
Mental Health Advocacy Service

Legal Aid Commission
ph: 9747 6155
Mental Health Review Tribunal

www.mhrt.nsw.gov.au
ph: 1800 815 511 or 9816 5955
www.ombo.nsw.gov.au
ph: 1800 451 524 or 9286 1000
www.ombo.nsw.gov.au/aboutus/
coordnteoffcommvstrprog.html
Public Guardian, Office of the

www.lawlink.nsw.gov.au/opg
Head Office & Western Team
ph: (02) 8688 2650

NSW STD callers: 1800 451 510
TTY: 1800 882 889
Southern Team
ph: (02) 9287 7660

Northern Team
ph: (02) 4320 4888

To speak to a guardian about
someone who has the Public
Guardian appointed,
ph: (02) 8688 2650 (NSW STD
callers 1800 451 510)
General information
on guardianship or the
Public Guardian, contact
theInformation & Support
Branch on (02) 8688 6070
(NSW STD callers 1800 451
510)
Help or Support for Private
Guardians, contact thePrivate
Guardian Support Unit on
(02)8688 6060 (NSW STD
callers 1800 451 510)or
visitPGSU page
To make a complaint or request
a review of a guardianship
decision, please visit the
Complaints Pagefor more
information.
Urgent decisions outside
business hours,contact
(02) 8688 2650.
WorkCover Assistance Service
ph: 131 050
Support and advocacy

organisations
Ability Incorporated
ph: 6628 8188 or 1800 657 961
www.ability incorporated.org.au
Aboriginal Disability Network
www.idas.org.au
ph: 9319 1422
Action for People with Disabilities
(North Sydney)
www.actionadvocacy.org.au
ph: 4722 3524
After Care Association of NSW
www.aftercare.org.au
ph: 8572 7700
Alzheimers Australia NSW
www.alzheimers.org.au
ph: 6254 4233
Dementia helpline: 1800 100 500
Association of Relatives and
Friends of the Mentally Ill
www.arafmi.org
ph: 9332 0777
Information and support line
1800 655 198 or 9332 0700
Australian Communication
Exchange (ACE)
www.aceinfo.net.au
ph: (07) 3815 7600
TTY: (07) 3815 7602
Autism Spectrum Australia
(ASPECT)
www.autismspectrum.org.au
ph: 8977 8300
info line: 1800 069 978
19/4/12 10:10:52 AM

Brain Injury Association of NSW
www.biansw.org.au
ph: 1800 802 840 or 9868 5261
Carers NSW
www.carersnsw.asn.au
ph: 9280 4744
Carers Australia
ph: 1800 242 636

Central Coast Disability Network
www.ccdn.org.au
ph: 4324 2355 or 4324 2127
Citizen Advocacy Illawarra
ph: 4229 4064
Citizen Advocacy Newell
ph: 6792 3195
Complaints Resolution and
Referral Service (CRRS)
www.crrs.org.au
ph: 1800 880 052
Council for Intellectual Disability,
NSW
www.nswcid.org.au
ph: 1800 424 065 or 9211 1611
Criminal Justice Support Network
(part of Intellectual Disability
Rights Service)
www.idrs.org.au
Sydney 9318 0144
Newcastle 4926 5643
Wollongong 4228 4040
After hours for support at police
station 1300665908
Disability Advocacy NSW Inc
www.da.org.au
ph: 1300 365 085
Hunter Region
Newcastle office
ph: (02) 4927 0111
New England Region
Tamworth office
ph: (02) 6766 4588
Armidale office
ph: (02) 6776 6201
Mid North Coast Region
Coffs Harbour office

ph: (02) 6651 1159
Forster/Taree office
ph: 6552 6936
Disability Advocacy Network Inc

Riverina
www.dan-inc.net.au
ph: (02) 6921 9225 or
1800250292
Disability Advocacy and
Information Service
Albury-Wodonga
www.disability-advocacy.com.au
ph: (02) 6056 2420 or
1300 886 388
Disability Council of NSW
See Government bodies.
Disability Discrimination Legal
Centre
(now the Australian Centre for
Disability Law)
www.ddlcnsw.org.au
ph: 1800 800 708 or 8014 7005
TTY 9211 5549 or 1800 644 419
Disability Information Advocacy
Service Inc
www.dias.net.au
Bathurst
ph: (02) 6332 2100
Family Advocacy
www.family-advocacy.com
ph: 1800 620 588 or 9869 0866
Home Care Service of NSW
See Department of Ageing,
Disability and Home Care under
Government bodies.
IDEAS
A list of metropolitan, regional

and specialist legal aid offices is
in Contact points for chapter 5,
Assistance with legal problems.
Mental Health Advocacy Service
See Government bodies.
Mental Health Association NSW
www.mentalhealth.asn.au
ph: 9339 6000
Mental Health Information Service
ph: 1300 794 991
Mental Health Co-ordinating

Council
www.mhcc.org.au
ph: 9555 8388
Multicultural Disability Advocacy
Association of NSW
www.mdaa.org.au
ph: 1800 629 072 or 9891 6400
National Disability Services NSW
www.nds.org.au/nsw
ph: 9256 3111
National Respite Association
www.interchangensw.com.au
ph: 9895 8000 or 9524 3916
Official Community Visitors
See Ombudsman (NSW) under
Government bodies.
People with Disability Australia
(including Individual and Group
Advocacy Service)
Information on Disability and

Education Awareness Services
www.ideas.org.au
ph: 1800 029 904 or 02 6947
3377
Database of services throughout
NSW
www.pwd.org.au
ph: 1800 422 015 or 9370 3100
Institute of Psychiatry NSW

www.nswiop.nsw.edu.au
ph: 9840 3000
Physical Disability Council of

NSW
www.pdc.nsw.org.au
ph: 9552 1606 or 1800 688 831
Intellectual Disability Rights

Service
www.idrs.org.au
ph: 1800 666 611 or 9318 0144
Legal Aid Commission of NSW
Legal Aid Youth
Hotline:1800101 810
National Disability Services

Abuse and Neglect Hotline
www.disabilityhotline.org
ph: 1800 880 052
Psychiatric Rehabilitation
Association
www.pra.org.au
ph: 9690 8900
Public Interest Advocacy Centre
www.piac.asn.au
ph: 8898 6500
19/4/12 10:10:53 AM

Rape Crisis Centre NSW
www.nswrapecrisis.com.au
ph: 1800 424 017 or 9818 7216
Online counselling available
through website.
Richmond Fellowship of NSW
www.rfnsw.org.au
ph: 9701 3600
Schizophrenia Fellowship of NSW
www.sfnsw.org.au
ph: 1800 985 944 or 9879 2600
[18.700]
Self-Advocacy Sydney
sasinc.com.au
ph: 9622 3005
Spinal Cord Injuries Australia

www.scia.org.au
ph: 1800 819 775 or 9661 8855
Seniors Information Service

www.seniorsinfo.nsw.gov.au
ph: 131 244
Transcultural Mental Health

Centre
www.dhi.gov.au/tmhc
ph: 9840 3800
Shopfront Youth Legal Centre,

www.theshopfront.org
ph: 9322 4808
Side By Side Advocacy
www.sidebysideadvocacy.org.au
ph: 9808 5500
Unions NSW
www.lcnsw.labor.net.au
ph: 9881 5999
Internet
Ageing, Disability and Home Care, Agency of the Department of Family and Community
Services www.adhc.nsw.gov.au
Anti-Discrimination Board of NSW www.lawlink.nsw.gov.au/adb
Australasian Legal Information Institute (AustLII) www.austlii.edu.au
Australian Human Rights Commission www.humanrights.gov.au
Centrelink www.centrelink.gov.au
Families, Housing, Community Services and Indigenous Affairs, Department of www.fahcsia.
gov.au
Guardianship Tribunal www.gt.nsw.gov.au
Mental Health Review Tribunal www.mhrt.nsw.gov.au
NSW Council for Intellectual Disability www.ncid.org.au
Office of the Public Guardian www.lawlink.nsw.gov.au/opg
Physical Disability Australia www.pda.org.au
19/4/12 10:10:53 AM

Ch18 Disability Law

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Ch18 Disability Law

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The Law Handbook

YOUR PRACTICAL GUIDE TO THE LAW IN NEW SOUTH WALES

REDFERN LEGAL CENTRE PUBLISHING

Thomson Reuters (Professional) Australia Limited 2012

Law Handbook_12e *Prelims.indd 4

Law Handbook_12e CH18.indd 483

[18.400] Personal relationships

[18.510] Guardianship and

484 The Law Handbook

Law Handbook_12e CH18.indd 484

[18.20] United Nations

18 Disability law 485

Where people with intellectual disability live and work

Some people with intellectual disability who have

Rights of people with intellectual

People with intellectual disability have the

[18.40] When rights are infringed

As for all people in the community, where a

Law Handbook_12e CH18.indd 485

solve a problem. Some informal ways to solve a

Complaints about government bodies or more

486 The Law Handbook

problem. Mediation conferences are run by

Free legal assistance

Legal Aid NSW

Some rights issues or complaints may be able to

Legal Aid NSW can provide free legal advice

Law Handbook_12e CH18.indd 486

18 Disability law 487

Aid NSWs merits test to get a grant. People with

Private lawyers can apply to Legal Aid NSW

specifically for people with disability. For the contact

Assisting, advising and acting for people

People with intellectual disability are

People with intellectual disability are entitled to

Law Handbook_12e CH18.indd 487

488 The Law Handbook

When another person steps in for a person who

If it is determined that a person lacks legal

[18.50] Privacy and access to

Law Handbook_12e CH18.indd 488

right to privacy in Australian law, but there are

18 Disability law 489

Services provided or funded by the

[18.70] Ageing, Disability and

Law and standards on disability services

Law Handbook_12e CH18.indd 489

[18.80] Department of Families,

Commonwealth laws on disability

[18.90] Complaints about

The NSW Ombudsman can investigate the

490 The Law Handbook

a person in care (ie in the care of a service).

Accidents, injuries and other harm

If a person with intellectual disability suffers

[18.110] Disability workers duty

Law Handbook_12e CH18.indd 490

governmental organisation, each owes a duty

What a duty of care involves

18 Disability law 491

When a person can be sued for

Where the use of reasonable force may

If a person owes a duty of care to someone, fails

A person may use reasonable force to defend