Prof. Meredith Blake1
1Law School Uwa, , Australia
Biography:
Bio to come
Abstract:
This presentation addresses the United Nations Convention on the Rights of Persons with Disabilities (CRPD) Article 12 imperatives of placing supported decision-making and the will, preferences and rights of the person living with a disability at the heart of decision-making structures and processes. State and Territory guardianship and administration legislation has been slow to respond to these obligations. While there has been recognition of the CRPD Article 12 duties in recent Commonwealth aged care reform efforts, it is argued that it is essential that State and Territories prioritise guardianship law reform efforts given the significance of these proceedings to persons living with a disability, particularly those living with dementia. Currently the only Australian jurisdiction to legislatively require consideration of these Article 12 obligations is the Guardianship and Administration Act 2019 (Vic) (GAAV). Recent guardianship proceeding decisions of the Victorian Civil and Administration Tribunal involving persons living with dementia are analysed, providing important insights into the Tribunal’s interpretation and application of these obligations, contained in section 8 of the GAAV. The survey of the caselaw demonstrates that while there is evidence of substantive engagement with both supported decision-making and a will, preferences and rights approach to the health and lifestyle issues which arise in connection with those living with dementia, significant challenges exist in the implementation of these rights. These can be attributed to the persistence of a medicalised approach to guardianship proceedings, and the complex familial dynamics which are frequently associated with these proceedings.