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Aged Care Assessment Service (ACAS) and Office of the Public Advocate (OPA) protocol. Incorporating health professionals undertaking assessment and placement within health networks.
(Effective from the 1st January 2005 and to be reviewed 1st January 2007
These protocols were developed through the collaborative efforts of the following members of the ACAS/OPA working party: Barbara Carter, Manager Western Team OPA, Kathy Carroll Advocate /Guardian OPA, Richard Polkinghorn, Advocate /Guardian OPA, David Sykes, Manager Policy and Education OPA, Penny Houghton, Manager North West ACAS, Juliet Thorn, Manager Community Programs, Aged Care Services Austin Health. The background section of this protocol draws significantly upon both the Department of Health and Ageing Aged Care Assessment Program Operational Guidelines (May 2002) and the Office of the Public Advocate Operations Manual (2004).
If you have any comments or suggestions on this protocol please contact either David Sykes at OPA on 9603 9500, firstname.lastname@example.org or Juliet Thorn 9496 2489
Glossary of terms
Administration Order The administration order is the legal authority given to an individual or organisation such as State Trustees by the Victorian Civil and Administrative Tribunal. This order gives the person authority to make financial and legal decisions for an adult with a disability when they are unable to do so. The Tribunal provides a written copy of the order, which indicates who the administrator is, for how long they will be administrator and when the order is due to be reviewed.
Applicant The person who makes the application for a guardian to be appointed. The application is made to the Guardianship List of the Victorian Civil and Administrative Tribunal.
Guardianship List This List is the part of the Victorian Civil and Administrative Tribunal, which appoints guardians to make decisions for people who have a disability and who cannot make these decisions themselves.
Guardianship Order The guardianship order is the legal authority given to the Public Advocate or to a private guardian (family member/friend) by the Victorian Civil and Administrative Tribunal when the Tribunal appoints a guardian for a person with a disability. This order gives the person authority to make personal and lifestyle decisions as specified on the order. The Tribunal provides a written copy of the order, which indicates who the guardian, is, for how long they will be guardian and the limits of their decision-making authority.
Key Parties Persons who play a significant role in the life or care of the represented person.
Legislative Principles These are the principles which underpin the Guardianship and Administration Act 1986, set out in s.4 (2) of the Act, and which govern the exercise of authority by a guardian, set out in s.28 of the Act. They are provided as an addendum to these standards.
Major Decisions/Significant Decisions These decisions include those made by a guardian which determine where a person should live or their access to family, friends; authorise the provision or with-holding of medical treatment or services, or which involve major disagreement between the parties involved with the represented person.
Professionals Persons with tertiary or other qualifications or expertise including medical, legal or financial, who may provide opinions that a guardian takes into account in their decision-making and support to the represented person.
Public Advocate The independent office established by statute with the responsibility to promote the rights of, and advocate for, Victorians with a disability. The Public Advocate can act as guardian of last resort on appointment by the Victorian Civil and Administrative Tribunal.
The Public Advocate heads the Office of the Public Advocate, (OPA), the organisation established to carry out the functions of the Public Advocate.
Reassessment The meeting (or “hearing”) at which the Victorian Civil and Administrative Tribunal considers if there is an on-going need for a guardianship order. Until December 2000, this was known as a review.
Rehearing The meeting at which the Victorian Civil and Administrative Tribunal considers an objection to the original order. This is similar to an appeal.
Represented Person This is the person who is the subject of the guardianship and/or administration order.
Revocation The removal of guardianship by an order of the Victorian Civil and Administrative Tribunal. The decision to revoke the order is made at a reassessment hearing where the Tribunal is satisfied there is no longer a need for guardianship.
Victorian Civil and Administrative Tribunal – Guardianship List The legal body that has the power to appoint a guardian or administrator.
Vision or Mission The stated objectives and outcomes of the Office of the Public Advocate in carrying out its mandate or role.
Glossary of terms 2
Frequently asked questions 6
1. Purpose 10
1.1. ACAS and OPA shared principles 10
2. Background to OPA and ACAS 10
2.1. Office of the Public Advocate 10
2.1.1. Role and Functions of OPA 11
188.8.131.52. Telephone advice service 12
2.1.2. Advocacy 12
184.108.40.206. The nature of statutory advocacy 13
220.127.116.11. Advocacy quality framework 14
18.104.22.168. Advocacy quality standards 14
2.1.3. Enduring powers of attorney and guardianship 15
2.1.4. Screening of Guardianship and admin applications 15
2.1.5. Investigations 16
2.1.6. Capacity 17
2.1.7. Administration 17
2.1.8. Guardianship 17
22.214.171.124. Legislative principles for guardianship decisions 18
126.96.36.199. Limits of the order 18
188.8.131.52. Individual advocacy 19
184.108.40.206. Systemic advocacy 19
220.127.116.11. Guardianship standards 20
2.1.9. Private Guardian Support Program 22
2.1.10. Making an application to VCAT 23
2.2. Aged Care Assessment Service 24
2.2.1. ACAS assessment principles 26
2.2.2 Special Needs Groups 28
2.2.3 Assessment considerations for young clients 28
2.3. Aged Psychiatric Assessment Team 29
3. Protocols 31
3.1. ACAS intake protocol 31
3.2. Advocacy 32
3.2.1. OPA advocacy referral 32
3.2.2. ACAS advocacy role 33
18.104.22.168. Right to involve a carer or advocate 33
22.214.171.124 Right to be informed 33
4. Signing issues 34
4.1. Signing of the Aged Care Client Record 34
4.2. Signing of accommodation agreements 36
5. Moving into residential care 36
6. Grievance procedures 37
6.1. OPA complaints policy 38
6.2. ACAS 39
6.2.1. Right to complain 40
6.2.2. Right to appeal 40
7. Privacy and confidentiality 41
7.1. OPA 41
7.2. ACAS 41
8. Elder Abuse 41
9. Appendices 43
Appendix A Residential Care Rights 44
Appendix B OPA Advocacy Priority Criteria 45
10. References 46
Frequently asked questions
Office of the Public Advocate (OPA)
To assist you in assessing the need to make an application and the process for doing so contact the telephone advice service at OPA on 9603 9500 between 9 am and 5pm Monday to Friday.
2. What factors does the Tribunal consider when hearing an application for guardianship or administration?
The Tribunal once satisfied that the person has a disability and that this affects their capacity to make the specific decision sought, considers essentially three factors. (1) What other approaches have been tried which are less restrictive than removing the person’s right to make decisions through the appointment of a guardian and/or administrator? (2) What are the wishes of the person with a disability? and (3) What would be considered to be in the person’s best interests?
3. Can a guardian provide case management when there is no other case management available?
As a substitute decision-maker for the person with the disability it is the role of the guardian to consider the various options available and then make a decision taking into account the wishes of the person with a disability, what is considered to be in their best interests and what is considered to be less restrictive. The guardian is not there to provide case management. This is considered to be the role of service providers or ACAS in the instance where clients are awaiting services. (See also FAQ 19)
The guardian through engaging and building rapport with the represented person will seek to understand the perspective of the represented person. This counselling process is central to identifying ways of proceeding that will respect the wishes of the person whilst also ensuring that their best interests are served. This is the main way in which a guardian seeks compliance with their decision. Aged Care Assessment Service workers often perform an equally important role in achieving compliance with the guardian’s decision. As a last resort the guardian can seek special additional powers under section 26 of the Guardianship and Administration Act (1986) to involve the police and/or ambulance service in implementing the decision of a guardian. This is where the circumstances and risks involved, warrant such intrusive intervention and the counselling approaches outlined earlier had failed. However, this more intrusive approach has limited application to situations where a person needs to be moved somewhere for the purposes of assessment and care. Indeed, a guardian cannot direct another health professional to carry out their decision.
5. Can all guardians make decisions about any aspect of a person’s life?
If the order made by the Tribunal appoints a plenary guardian then they can make any type of decision with the exception of financial. However, most of the orders made by the Tribunal are of a limited nature. This means that the area/s where the guardian has the authority to make decisions are specified on the order, such as health care or accommodation.
6. Can a plenary guardian make all lifestyle decisions for a person?
There are some decisions, which cannot be made by a guardian or other substitute decision-maker. These include consent to marriage, voting, making a plea in a court of law or giving up a child for adoption. Neither can a guardian consent to personal discretionary matters such as sexual and other personal relationships.
There are other situations where a guardian may legally provide consent, for example to a particular medication or provision of a service. However, the service provider must be willing to provide the service or give the medication and the client must be prepared to accept it before effect can be given to the guardian’s decision.
7. Does a guardian have to act in accordance with the recommendations of the ACAS?
A guardian needs to take into account a range of views and assessments in arriving at a decision, but ultimately needs to act in the best interests of the person with a disability, taking into account their wishes and what is least restrictive. Consequently, this decision is independent and may not always agree with the assessment of ACAS.
8. Is the guardian responsible for the represented person’s money?
A guardian is responsible only for lifestyle decisions such as where someone lives and the type of services they receive. This may involve consulting with the person who manages the finances to make sure they can afford the services required. The person’s finances are the responsibility of others such as a person holding an Enduring Power of Attorney (Financial) or an administrator.
9. Once a guardian is appointed do they remain in place forever?
A guardian can only be appointed for a period of up to three years. At the end of this period the order must be reviewed and if there is no longer any decision/s for a guardian to make then the order is revoked. Normally appointments are for a shorter period and can be reviewed at any time as to the need for them.
10. What can you do if you are not happy with the decision of a guardian?
If you are dissatisfied with the decision of a guardian you can raise this with their Manager and/or can write to the Tribunal requesting a reassessment of the order. This reassessment relates to the original appointment and not the actual decision made.
11. What can you do if you are not happy with the decision of an advocate?
You can raise this with their manager and, if not satisfied, with the Public Advocate.
12. If the person has a disability that does not affect their capacity to make the
decision required can I seek the appointment of a guardian or administrator?
No, the legislation is not there to protect people from making unwise decisions where you can be satisfied that they have the capacity to make the decision.
13. If a guardianship hearing is pending can a person be moved to different accommodation?
No action (patient transfers) should be taken whilst an application for guardianship is before the Tribunal, awaiting a decision.
14. Can I be sued for providing information as part of an application or subsequent hearing to VCAT?
Individuals providing information (in good faith) for a VCAT Guardianship hearing are protected from legal actions in relation to defamation and breach of confidentiality.
15. Can OPA staff require Hospital or agency staff to provide confidential client information or access client records?
Staff within the OPA conducting an investigation for VCAT (under clauses 35 and 42 of the Victorian Civil and Administrative Tribunal Act 1998 and clause 16 of the Guardianship and Administration Act 1986) are classified as agents or enforcement officers of the court and as such are exempt from the provisions of the Information Privacy Act 2000 and the Health Records Act 2001. (Refer section 3 of this legislation for the definition of an “enforcement officer”).
Staff within OPA acting as a Guardian are deemed to be a person’s “authorised representative”. The authorised representative controls the disclosure and distribution of health and medical information under section 85 of the Health Records Act 2001.
Whilst OPA staff will always endeavour to seek the consent of the person with a disability, it may not necessarily be appropriate or possible. In this context the consent of the individual client is not required for the release of confidential information to OPA staff.
Aged Care Assessment Service (ACAS)
16. Who can sign an ACCR when the person is not competent to do so?
In the first instance someone legally appointed to make decisions on behalf of the person. Where there is no legally appointed person, then their next of kin, family member or carer should sign. If no such person exists then a GP, solicitor or other health professional who does not have a conflict of interest in signing should sign on the person’s behalf. As a last resort the Manager of the ACAS can sign where there is no contention or conflict present and if they have not carried out the assessment. In these circumstances reasons should be stated on the ACCR as to why the person is unable to sign. Signing does not give rise to any legal liability or ongoing commitment on the part of that person. State Trustees have a policy of not signing the ACCR as it is considered not to be a financial or legal document but rather one relating to a lifestyle decision.
Important Note: hospital based staff may be deemed to have a potential “conflict of interest” and this is mentioned in the Commonwealth Aged Care Act 1997 under section 96-5 “Care Recipients etc. Lacking Capacity to Enter Agreements” which specifically excludes “approved providers” later defined as “…a body established for a public purpose by or under a law of a State or Territory.”(Eg Hospital staff).
17. Can ACAS assess a person under the age of 65?
Yes, but only after other care options have been fully explored.
18. Can ACAS assess without a referral from a doctor?
Whilst it is preferable to have a letter from a doctor this is not always possible and would not prevent the ACAS from conducting an assessment.
19. Can ACAS provide advice about possible placement options for the client?
ACAS can provide reasonable details to a guardian and/or family member of appropriate placements based upon their assessment of the individual and their knowledge of the services available in that area. This does not mean that ACAS is deciding where to place the person but rather providing information and guidance to assist the decision maker in arriving at a decision.
20. What support can ACAS provide until recommended services can commence their involvement?
Where there is a delay in the services being provided that have been recommended by ACAS, they can monitor the situation in the interim, particularly in crisis situations or where the matter is particularly difficult. They are not able to provide formal case management and equally the appointment of a guardian should not be seen as a case manager by ACAS or other service providers as this is not part of their role. (See also FAQ 3)
21.What is the role of ACAS in assessing alleged cases of abuse and neglect?
ACAS perform a critical role in assessing situations where there are concerns or allegations that someone is being abused or neglected. This includes situations of possible self-neglect. Following this assessment the ACAS worker is then able to determine an appropriate course of action. Depending upon the situation this may require an application for guardianship and/or administration.
Aged Psychiatric Assessment Team (APAT)
22. What is the role of APAT and how do I make a referral to APAT?
The APAT is a specialist service, which is designed to treat or refer cases once the psychiatric illness is seen as the primary presenting problem for persons aged over 65. The APAT performs an important screening service and regulates access to both acute in-patient services and in conjunction with ACAS to aged psychiatric residential care facilities. They have a broader mandate with treatment, rehabilitation and case management being an integral part of service provision. They do not assess patients for aged residential care. This is the role of ACAS.
APAT accept referrals from all sources i.e. patients, carers, aged care providers, general practitioners and other health care providers. However, being a specialist service, which often involves treatment, APAT seek the approval of the patient's general practitioner. APAT work on a shared care basis with general practitioners. There is regular cross-referrals between ACAS and APAT.
The Aged Care Assessment Service (ACAS) and the Office of the Public Advocate (OPA) have a shared commitment to protecting and promoting the rights of people with a cognitive impairment, who may be at risk of exploitation, abuse or neglect, including self-neglect. The majority of cases where the Public Advocate is appointed guardian concern a person with dementia and involve accommodation and service decisions. Consequently both the ACAS and OPA often share the same client. Therefore the work of both programs should be co-operatively linked, where appropriate, and undertaken with a clear understanding and agreement about the roles and responsibilities of each in providing assistance to the person with the disability. The aim of the protocol is to help both programs work more effectively together in order to promote the rights and best interests of people with a disability.
1.1. ACAS and OPA shared principles
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