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Conservatorships - Protective or Prohibitive?

Image credit "Amanda Bynes" by condoungtolua is licensed under CC BY-ND 2.0.

Conservatorships are a hot topic right now with the recent news of both Britney Spears and Amanda Bynes having been recently released from their conservatorships. Do we have these situations in Australia? Whilst ‘conservatorships’ do not exist in Australia, financial management and guardianship orders do. These orders usually relate to people who have been deemed incapable of managing their own affairs. This might include a person with a mental health condition or disability. Management orders may be made over personal or financial or both personal and financial decision-making for the person affected.

Such orders may be made by the Supreme Court which is a very formal and expensive process. Alternatively, these orders may also be made through state-based mental health laws for temporary management whilst someone may be detained through a mental health facility. This involves applications to the Victorian Civil and Administrative Tribunal and is a far cheaper and less formal process. A person may be assigned as a substituted[1] or supported decision maker.

Some control over financial assets and personal and well-being may be voluntarily given through the appointment of a Power of Attorney. A Power of Attorney document is most often thought of as only coming into action when one becomes incapable of acting for themselves, however, Powers of Attorney may be effective immediately if the person so desires it. This is highly beneficial as someone may sign important documents on your behalf if you are unable to do so. However, appointing someone to this role is a decision which must be considered carefully.

Overall, whilst Australia does not have ‘conservatorships’ in the American sense, our legislation is capable of having similar effect in cases where such management is necessary.

[1] Substituted decision making is when someone else is making decisions of behalf of an individual. The abolition of substituted decision making has long been argued by the United Nations and Australian Disabled People’s Organisations to be replaced with the supported decision-making process which provides resources for people to make their own decisions with support. Victoria is the only state in Australia to have changed its laws to formally incorporate the United Nations Convention into its legislation.

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This article is general in nature. It does not constitute legal advice and should not be taken as such.


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