Accommodation function:
Position statement and practice guideline
This guideline describes how the Public Guardian makes accommodation decisions for
people under guardianship with an accommodation function.
Summary
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An accommodation function authorises us to decide where the person stays, from one
night through to permanent placements.
Accommodation decisions cover a range of accommodation types. This includes:
overnight visits and holidays, aged care facilities or staying home, younger people in
aged care facilities, mental health facilities, general hospitals, group homes
(supported accommodation), licensed residential centres and large residential centres.
It also covers accommodation decisions related to people who may be in contact with
the criminal justice system or homeless.
When possible, through advocacy and decision-making, we will support the person to
live in their choice of accommodation. However, we may only make decisions and
advocate for a choice that is in the person’s best interests (i.e. is in accord with the
general principles of guardianship).
The Public Guardian makes, but does not implement, accommodation decisions for
the person. Implementing decisions is the role of the case manager, service provider
or other person involved in the person’s care.
We can make accommodation decisions against the person’s expressed wish.
However, we will only make a decision against the person’s wish when their preferred
option is not in their best interests.
If a decision is unable to be implemented because the person is opposed, we may
need an accommodation function with a coercive element. We could then authorise
others to implement a decision against the person’s wish. We will only use or seek this
authority when the decision is enforceable (i.e. when the person can be coerced and it
is in their interests for this to be done).
We may authorise a range of people to enforce coercive accommodation decisions,
such as family, friends or service providers. As a last resort we request the assistance
of the police and ambulance services.
We may make accommodation decisions for a person to be temporarily or
permanently accommodated outside of NSW. If the person needs further decisions to
be made in another jurisdiction, we may seek recognition of our order in that state,
and consider the need for a new order to be made in the other jurisdiction.
Public Guardian
Accommodation Position Statement and Practice Guideline
2013
Table of Contents
1.
Position statement: where we stand on accommodation
1
2.
Understanding the accommodation function
1
3.
2.1. Know the detail of the accommodation function
Making accommodation decisions
2
3
4.
3.1. General
3.2. Authorise others: coercive accommodation decisions
3.2.1. Who does ‘authorise others’ apply to?
3.2.2. Keeping the person at their residence (containment)
3.2.3 Requesting the assistance of the police or ambulance
3.3. Sedation for accommodation transfers
3.4. What we need to know when making decisions
Making decisions: accommodation types and issues
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5.
4.1. Accommodation outside NSW
4.1.1. Scope questions
4.2. Overnight accommodation and holidays
4.3. Aged care facility (ACF) placement or staying home
4.3.1. Younger people and aged care facilities
4.3.2. Scope questions
4.4. Criminal Justice System
4.4.1. Scope questions
4.5. Health care facilities (general hospitals)
4.5.1. Scope questions
4.6. Mental Health facilities
4.6.1. Admission and discharge: voluntary and involuntary
4.6.2. Discharging voluntary patients
4.7. Homelessness
4.7.1. Scope questions
4.8. Large residential centres (LRCs)
4.9. Licensed residential centres (i.e. licensed boarding houses)
4.9.1. Scope questions
4.10.
Squalor and hoarding
4.10.1. Scope questions
4.11.
Group Homes (ADHC and ADHC-funded)
4.11.1. Emergency accommodation
Delegation: Who makes accommodation decisions?
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6.
Disagreement with accommodation decisions
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7.
What we can and can’t do
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Public Guardian
Accommodation Position Statement and Practice Guideline
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8.
7.1. Decisions we can make
7.2. Actions we can take
7.3. What we can’t do
References: law and policy
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Accommodation Position Statement and Practice Guideline
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1. Position statement: where we stand on accommodation
The primary guide to our decision-making are the general principles of guardianship.
These principles inform accommodation decisions and all other decisions we make for
the person.
Our starting point for decision-making is to consider the person’s view about their
accommodation. In considering the person’s view we will establish the extent to which
the person understands their choice and the consequences of it. Any view the person
previously expressed may also be considered.
If we can make a decision the person wants, we will. However in some circumstances
we are obliged to make an accommodation decision that is against the person’s stated
wish. This is usually in cases where:
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the person’s preferred accommodation is unavailable, even though we may advocate
for that option to be made available
the person’s choice will not be in their interests, for example, because it exposes
them to an unacceptably high level of risk, or the benefits of another option are
greater.
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2. Understanding the accommodation function
The usual wording of the accommodation function in guardianship orders is:
To determine [or decide] where [the person] may reside.
A typical accommodation function authorises the guardian to make decisions about the
person’s accommodation for one or more nights. For example:
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Where a person should live long-term or permanently. The Public Guardian may
make a range of decisions that are appropriate to the person’s needs. For example,
we may decide that a person should remain in their own home, transfer from their
home to an aged care facility or group home, or transfer between aged care facilities
or group homes.
Where a person should live temporarily. This might include interim decisions, such as
respite in an aged care facility pending a permanent accommodation decision. Or
periodic respite in a group home when a person lives with a primary carer who needs
regular breaks.
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Accommodation Position Statement and Practice Guideline
2013
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Where a person can go for holidays or overnight visits. Such decisions may include
visits to family and friends. The Public Guardian can decide the length of time a
person can spend on such a visit.
If a person should be taken to a hospital or other health care facility. These decisions
may be made to ensure that a person is taken to a facility where they will receive
necessary assessment, treatment and care. However, consent for specific health
care and/or medical treatment must occur under the relevant Health Care and/or
Medical and Dental Consents functions.
2.1. Know the detail of the accommodation function
The guardian should know the wording of the function in the guardianship order and
read the Guardianship Tribunal’s Reasons for Decision report. This is because the
Tribunal sometimes varies the standard accommodation function wording. The
Guardianship Tribunal is not required to use their standard wording and can change the
wording to meet the person’s specific accommodation need.
For example:
 The wording may specify that only respite or holiday decisions may be made for the
person.
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The wording of the accommodation
function may also be subject to
conditions, and these conditions are
legally binding (see text box). For
example, a condition may be that a
specified person should be consulted
when making decisions for the person.
Conditions are typically located at the
bottom of the guardianship order.
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The Guardianship Tribunal may include recommendations about how the
accommodation function should be exercised. For example, the Tribunal may make
the recommendation that the person be assessed by a geriatrician before an
accommodation decision is made. Guardians are not legally bound to follow
recommendations made by the Tribunal. However, if a recommendation is not
followed the decision should be made by a Principal Guardian or above.
Recommendations are usually included in the Reasons for Decision report that
explains why the order was made and functions given.
Did you know?
 The Tribunal may include
conditions about functions in an
order, and that the guardian must
follow those conditions.
 The Tribunal may also make
recommendations to assist the
guardian. The guardian is not bound
to follow these, but should carefully
consider any recommendations.
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Accommodation Position Statement and Practice Guideline
2013
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The Guardianship Tribunal sometimes gives the appointed guardian a specific
authority to authorise others (see section 3.2) to carry out or implement an
accommodation decision we have made. This is because the person refuses to allow
the decision to be implemented, for example, through physical resistance.
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3. Making accommodation decisions
3.1. General
When we make accommodation decisions for a person under guardianship we will:
 take the person's view into account (both current and past)
 seek to uphold those views wherever possible
 maximise the person’s freedom of action and decision
 make decisions that support the person to live a normal life in the community
However, the Public Guardian must also make decisions that:
 do not expose the person to unreasonable risk of exploitation, abuse or neglect
 prioritise the person’s welfare and interests.
This is especially important when the decision is against the person’s expressed wish.
We will usually make the decision the person wants, unless the person’s safety and
wellbeing will be significantly jeopardised.
We usually make accommodation decisions when we receive a proposal from the
person under guardianship or other interested people, such as the person’s family,
friends, or service providers. We usually request written proposals. In some
circumstances a written proposal may not be possible or appropriate, for example, when
a person is unable to communicate in writing. Examples of proposals are:
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keeping a person in hospital, or discharging a person from hospital back to their own
home
discharging a person from hospital into respite or permanent placement in an aged
care facility
transferring a person between group homes
transitioning a young person from a nursing home to a group home.
We may also make decisions when we identify that an accommodation decision needs
to be made, even if we have not received a proposal from an interested party.
The first stage of making an accommodation decision is to establish the facts. Relevant
facts are those that relate to the proposal and which are supported by evidence. Our
decision will be based upon what is most advantageous for the person.
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Accommodation Position Statement and Practice Guideline
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Accommodation decisions can have a significant impact on the person and can be
difficult to make, especially when the person wants an accommodation option that is not
in their best interest, or their preferred option is not available. However, all
accommodation decisions involve the person either:
 remaining where they are (with or without additional services), or
 going somewhere else (for one day, for a period of time, or permanently).
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3.2. Authorise others: coercive accommodation decisions
If the person is opposed to the decision we make and actively resists it being enacted
we may need an additional authority to be included in the person’s guardianship order.
We refer to this as an ‘authorise others accommodation function’, or a ‘coercive
accommodation function’.
The Public Guardian will not seek or use a coercive accommodation authority unless it
can be clearly demonstrated that the person has refused, or is very likely to refuse, our
accommodation decision. The guardian and others should attempt to bring the person
to an understanding of the decision so it can be implemented in the least restrictive way.
A person will sometimes say they will not comply with a decision, but then do so when
the time to relocate arrives.
3.2.1. Who does ‘authorise others’ apply to?
The ‘authorise others accommodation function’, as described in the Guardianship Act
1987, authorises the guardian to:
take such measures or actions as are specified in the order so as to
ensure that the person under guardianship complies with any decision
of the guardian in the exercise of the guardian’s functions.
The wording of the function in the guardianship order makes clear that it is not the
guardian who carries out coercive accommodation decisions, but the guardian who
authorises others to do so. The usual wording is:
Accommodation: to decide where [the person] may reside. The guardian
may authorise others, including members of the NSW Police Service
and the Ambulance Service of NSW to:
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take [the person] to a place approved by the guardian
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keep [the person] at that place; and
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return [the person] to that place should [he/she] leave it
We may seek assistance to enforce our accommodation decisions from a range of
service providers. As a last resort, we can request the police and ambulance services to
transport the person between places of residence or to return a person to their place of
residence.
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Accommodation Position Statement and Practice Guideline
2013
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We may also authorise accommodation service providers or others to act under the
coercive accommodation function, often to prevent a person from leaving their place of
residence, such as group home or aged care facility.
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3.2.2. Keeping the person at their residence (containment)
An accommodation function that
Duty of care or coercion?
authorises others to enforce
It may not be clear to service providers when they can
accommodation decisions usually
act under a duty of care to the person, or require a
coercive accommodation function.
includes an authority to keep the
Duty of care may include:
person at their place of residence.
 a group home locking gates in the evening to prevent
The guardian may authorise a range of
people to prevent the person from
leaving their accommodation, for
example, staff working at an aged care
facility, group home, or hospital.
The Public Guardian’s consent to
contain a person may be required if
the person is intentionally trying to
leave their accommodation, or when
keeping the person at the facility
cannot be undertaken as a ‘duty of
care’ (see text box).
intruders from entering the premises, or to prevent
residents from unintentionally wandering out.
 a resident unintentionally wandering from a facility
(due to confusion or disorientation) but able to be
returned without using force.
Coercion may include:
 physically preventing a person who is wilfully and
actively attempting to leave.
 returning a resident who intentionally leaves but who
is at significant risk of harm as a result. If this is likely
to be repeated, an ‘authorise others’ authority may
need to be sought.
The use of coercion without legal authority may be
illegal, and constitute assault or wrongful imprisonment.
If in doubt, service providers should contact us to discuss
the specifics of the situation.
Service providers and others have a
duty of care to protect the person from harming themselves and others. But the person
also has a right to freedom. Depriving a person of their freedom without a restrictive
practice function is an illegal act.
Under a coercive accommodation function we may consent to a person being kept at
their accommodation. For example, by locking external doors or gates or by authorising
staff to divert the person from leaving the facility. But we may not seclude a person (e.g.
keep the person locked in a room) or restrain them in any way under this function. To do
this we would require a restrictive practice function. In summary, under a coercive
accommodation function we may consent to preventing a person from leaving a
residence, but we may not consent to restricting their movement within that residence.
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Accommodation Position Statement and Practice Guideline
2013
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3.2.3 Requesting the assistance of the police or ambulance
We will only request assistance from
Requesting assistance: example 1
the police or ambulance services as
Ms Johns has intellectual disability and has double
a last resort. It is always preferable
leg amputations. Health workers informed the
Public Guardian that Ms Johns needs immediate
that the person be encouraged to
placement in a more structured living environment.
voluntarily relocate to a different
The Public Guardian consents to a rehabilitation
residence with a trusted service
placement for Ms Johns but she refuses to leave
her home.
provider, family member or friend.
Two days prior to the placement the Public
Guardian called the duty officer at the local police
command, to discuss the need and procedure for
removal; and then provided a written authority to
the local commander.
On the day of admission a disability taxi is ordered
but Ms Johns refuses to leave her home. The PG
contacts police who attend and speak with Ms
Johns. With their encouragement she agrees to
leave in the taxi.
Requesting assistance: example 2
Mr Tran is a young man with intellectual disability
and mental illness. After a weekend visit to his
parents, Mr Tran’s father refuses to return him to
his group home.
However, when the person is at risk
of harm and is refusing to relocate to
a different residence, we may seek
the assistance of the police and
ambulance services. If a coercive
accommodation function is not
included in the person’s
guardianship order, we or another
interested person will need to seek
this authority through the
Guardianship Tribunal.
The police or ambulance services
may object to taking or returning a
person to their place of residence if
the residence is not secure (i.e. if
arrangements are not in place to
The Public Guardian, health and service providers
keep the person at the residence
developed a plan to retrieve Mr Tran. We
contacted the local area command and discussed
when they arrive). This can be a
the retrieval plan. We provided a copy of the
point of tension when the person
guardianship order and authorised them to return
repeatedly absconds from their
Mr Tran to his group home.
residence. This does not mean a
At the agreed time police officers attend the family
home and talk with Mr and Mrs Tran at their front
residence must be secure before we
door. Other police officers talk with Mr Tran at the
make a coercive accommodation
back door. He leaves the house with them willingly.
decision, some people may initially
When he arrives back at his group home Mr Tran
says to service providers, ‘I’m safe’.
resist a placement but then accept it
over time. Our decisions should be as least restrictive as possible for the person, and
trialling a person in accommodation that is not secure may be the most appropriate
decision to make in the first instance.
The Public Guardian visited the family at home but
did not sight Mr Tran. His mother’s behaviour was
aggressive and demonstrated a lack of insight into
her son’s needs. Service providers reported a
history of violence within the family.
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Accommodation Position Statement and Practice Guideline
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Process for seeking police and ambulance assistance
The Public Guardian establishes contact with the local police command
nearest to the person’s current residence. The usual process is to:
 verbally discuss our request with the local command’s duty officer, with
two days notice if possible, then
 fax to the local command:
 a copy of the person’s guardianship order
 a written consent for the transfer, including the current address,
destination and duration of the consent
 information with relevant details about the person (e.g. medical
condition, the need for the transfer, possible harmful behaviour
etc)
Note: If it is not be possible to provide two days notice of transfers, this should not
prevent a transfer if it is in the person’s best interest to be transferred. In some cases
transfers may be urgently requested outside office hours. In these cases the after hours
guardian will not be able to provide police with written documentation. However, we expect
police to transfer the person with an understanding that we will provide documentation the
next working day.
If ambulance assistance is required, police co-ordinate directly with the
ambulance service to meet at the person’s current residence.
On the day of removal we contact police and talk to the officers who will be
on stand by.
Note: We will generally not attend the removal. Service providers and family members
may attend.
Police oversee the transportation of the person to the accommodation
destination.
Police notify the Public Guardian that the person has been transported.
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Accommodation Position Statement and Practice Guideline
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3.3. Sedation for accommodation
transfers
We sometimes receive requests to sedate a
person to assist in their transfer to other
accommodation. When considering this
request we require evidence that sedation is
the least restrictive option available.
We may request a management plan from
the service provider that outlines how the
sedative will be used to assist the person
with the move.
Is the person objecting to sedation?
When a person objects to medical or dental
treatment, the guardian usually needs an
authority to override the person’s objection to
treatment. However, if the person does not
understand the treatment and it will cause
minimal or no distress, or only transitory
distress, the person’s objections may be
disregarded (Guardianship Act 1987, Section
46[4]). This situation may apply to the use of
sedation to effect an accommodation transfer,
however the guardian would still need to have
a Medical and Dental Consent function.
The Public Guardian would need to provide consent to the use of sedation under a
Medical and Dental Consent function (see text box for more information).
3.4. What we need to know when making decisions
Following are general questions we may raise and investigate to inform any
accommodation decision we make for the person:
Q What is the view of the person under guardianship regarding the proposed
accommodation? (Note: If we make a decision against the person’s wishes, we
may need a coercive accommodation function that authorises others to put the
decision into practice).
Q Can appropriate support be provided to the person within their current
accommodation?
Q Is advocacy needed for additional services?
Q What have been the person’s lifestyle choices and preferences to date?
Q Has the person made any statements in the past regarding placement in alternative
accommodation? Were such statements informed? Do such statements have
current relevance?
Q What are the views of the person’s informal or legally appointed financial manager?
(Note: If the person has a legally appointed financial manager, their consent must
be given for the financial cost of the accommodation).
Q What are the views of family members, service providers and others important in
the person’s life regarding the person’s current accommodation and proposed
accommodation?
Q Is the person refusing support that enables them to remain at home?
Q Is there evidence of neglect, abuse or exploitation in the person’s chosen
accommodation and, if so, can this be overcome to prevent the need for relocation?
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Q Has the person visited the proposed accommodation?
Q Will the location of the proposed accommodation maintain the person’s contact with
family, friends and other people important to them?
Q Can the person’s cultural needs be met in the proposed accommodation?
Q Does the proposed accommodation offer the opportunity for access to appropriate
services?
Q Have all risk factors in the proposed accommodation been considered?
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4. Making decisions: accommodation types and issues
In this section we consider the different types of accommodation that are available and
include scope questions specific to each accommodation type.
4.1. Accommodation outside NSW
When investigating a decision to move a person interstate, the same decision-making
process applies as is applied for accommodation decisions within NSW, that is, the
decision should be in the person’s best interests.
However, when we consent to move a person interstate, this may affect our decisionmaking authority when the person leaves NSW. When making interstate
accommodation decisions we should consider a number of issues:
 It may be necessary to continue our decision-making authority in the other state or
territory. If so, we should contact the relevant jurisdiction and apply to have our order
recognised in that jurisdiction.
 If the person is to permanently reside in the other state or territory, we will consider
whether or not the person needs ongoing guardianship. If so, it may be appropriate to
apply for a guardianship order made in that state or territory, and to seek the
discharge of the NSW-based order.
 If a person travels (or is taken) interstate, assistance from services within that
state/territory may be sought to return the person to NSW. This may be possible
through informal requests, or through the formal recognition of our order in the other
state or territory.
The Public Guardian cannot guarantee that services in other states and territories will
assist us to implement our decision-making. The Public Guardian will, however, make
representations to the appropriate authorities to seek their assistance.
Support services or other guardianship systems may not be able assist because
legislation in the relevant jurisdiction;
 may not allow decisions to be implemented that the person is opposed to (e.g.
coercive accommodation in the ACT)
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may not provide for the recognition of guardians appointed outside the jurisdiction
(e.g. the Northern Territory)
has no provision which can give effect to accommodation decisions made by a
guardian in NSW or elsewhere (e.g. Queensland).
As outlined above, guardianship legislation in the different states and territories means
an accommodation decision made by us in NSW may not be enforceable in the other
jurisdiction, or we may not be able to guarantee the person’s return to NSW.
4.1.1. Scope questions
Q If the person is planning to move
Did you know?
interstate, has sufficient planning and
All States and Territories in Australia
have equivalent legislation, tribunals
appropriate support been organised for
and guardianship offices. When a
the move and at the person’s new
person moves interstate these
accommodation?
organisations may need to be
Q Will the local guardianship office be able
contacted. Links are available here
to assist the Public Guardian?
Q If the person is travelling to another jurisdiction, do we need to; apply for our order
to be recognised in that jurisdiction, seek a new order in that jurisdiction, or seek a
discharge of the order in NSW?
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4.2. Overnight accommodation and holidays
Any accommodation for one night or longer comes under the accommodation function,
and consent for this can be given by the person’s guardian.
The person may regularly stay with a friend or family member, or go on regular holidays.
We can make one-off decisions about each overnight accommodation or holiday the
person has. However, when short stays or holidays follow a predictable pattern, it is
preferable that a single decision covers all of the short stays and holidays over a period
of time. Our standard practice is to give consents for up to one year, and not limited to
single events in time.
Giving a single consent to cover multiple holidays or overnight visits can benefit the
person and those who are organising the person’s accommodation, or providing the
person with accommodation. This is because the accommodation can be planned with
certainty, knowing that consent is already in place.
For the person seeking consent, they should submit an accommodation plan that
includes:
 who the accommodation will be with, which could be more than one person at
different times (e.g. family members or friends)
 where the accommodation will be
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the usual duration of each accommodation
the usual frequency of the accommodation (e.g. approximately four to eight times a
year)
how the person will be supported in their accommodation.
If there will be a financial cost attached to the accommodation, the financial manager
may need to be contacted.
The more flexible the proposal is, the more likely it will cover variations in the person’s
accommodation. If any given holiday or short stay falls outside of the proposal we
consented to, we can make a one-off decision about that accommodation if required.
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4.3. Aged care facility (ACF) placement or staying home
We are often required to make decisions about whether an older person should live in
their own home or be placed in an ACF. The older person (or sometimes younger) may
wish to remain in their own home because it is familiar and promises to maintain a
lifestyle that is independent and community-based. This wish may be difficult to uphold
because of the associated risks to person by remaining at home.
We believe that wherever possible a person with a disability should be supported to live
in their own home. The Public Guardian will only consent to aged care placement when
all other options for providing appropriate support to the person in their home have been
exhausted.
We recognise that the lack of appropriate community-based options may mean we have
to place some people in a congregate care setting or other non-domestic style of
accommodation. We will only consent to non-domestic accommodation when a
comprehensive assessment of the person's support needs have been made and it has
been established that the person’s needs will be met in the proposed setting.
ACFs, both low care and high care, are intended to accommodate people aged 65 and
over. A person of this age can be assessed by an Aged Care Assessment Team
(ACAT) to establish whether they are eligible for:
 a Community Aged Care Package (CACP) or Extended Aged Care at Home (EACH)
package, both of which can prevent premature placement in an ACF
 respite or permanent aged care placement.
The Public Guardian will only consider proposals about aged care placement for
facilities that are accredited through the Aged Care Standards Accreditation Agency.
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Accommodation Position Statement and Practice Guideline
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4.3.1. Younger people and aged care facilities
ACFs are not intended to accommodate people under 65 and do not cater to their agespecific needs. The Public Guardian will only consent to a younger person being placed
in aged care as a last resort.
If we are considering, or do, place a person aged under 65 in residential aged care, we
will refer the person to ADHC’s Younger People in Residential Aged Care program
(YPIRAC). The program prioritises people under 50 who are in an ACF, or at risk of
placement in an ACF, but all people under 65 should be registered. YPIRAC provide a
range of services, including:
 diverting entry for some younger people who are at risk of inappropriately entering an
ACF
 enhancing the delivery of disability services to younger people who continue to live in
an ACF
Note:While this program is still taking referrals all accommodation spots have been
allocated (they are however maintaining a needs register). The guardian should
document all contact with YPIRAC to assist with future advocacy.
4.3.2. Scope questions
Q Has the proposed facility been accredited?
Q Is there any quality assurance documentation that reports independently on the
quality of the service provided by the facility?
Q Is there a current Aged Care Client Record? Are other assessments needed?
Q Has the person visited the proposed facility?
Q Will the proposed facility maintain the person’s significant relationships?
Q Is there an opportunity for a respite placement for the person? Would this be
preferable to permanent placement?
Q Has a referral to the YPIRAC program been made?
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4.4. Criminal Justice System
The Public Guardian’s accommodation decision-making authority is suspended when a
person is incarcerated in the criminal justice system. In these cases, the Public
Guardian will advocate for appropriate models of accommodation to be developed for
the person prior to their release from custody.
If a person under guardianship comes into contact with the Police and Criminal Justice
system we should ensure that:
 the police are aware they are dealing with a ‘vulnerable person’
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if the person has intellectual disability, they are linked in with the Criminal Justice
Support Network (CJSN) (1300 665 908) which can provide information and support
24 hours a day, through the Intellectual Disability Rights Service (02 9318 0144).
They can support people with an intellectual disability who have come in contact with
the criminal justice system, including legal advice, support at a police station, or
support at court
the person is aware if they are entitled to Legal Aid.
4.4.1. Scope questions
Q Is the person known to the disability unit within a detention centre?
Q Has an accommodation and support plan been developed by the health care team,
ADHC, welfare officer, Community Options, Mental Health or other relevant service
provider?
Q Should the person be referred to the Criminal Justice Support Network?
Q Would it be beneficial to the person for us to advocate for an admission to a
psychiatric facility, either at sentencing or upon release?
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4.5. Health care facilities (general hospitals)
People with disabilities have the same right to access quality health and medical care
as other members of the community, including admission to hospital when required.
We will advocate on behalf of people under public guardianship for timely and
appropriate admission to such facilities, and for comprehensive discharge planning.
When a person is medically fit for discharge, this is necessary but not sufficient for the
public guardian to consent to the person’s discharge. We will not consent to a discharge
plan if it is not in the person’s interests to be discharged.
If the person is returning to a domestic-style residence, the residence should provide
the person with an adequate level of safety and security. This includes the person’s
ability to safely mobilise within their home and be supported by services (e.g. case
management or in-home supports).
As for all accommodation decisions, aged care placement from hospital can only be
consented to when the placement has been assessed against the general principles of
guardianship.
Discharge planning for public hospitals is covered by the NSW Health policy directive,
Care Coordination: Planning from admission to transfer of care in NSW public hospitals.
This policy directive is supported by a comprehensive reference manual. Key elements
of NSW Health policy are:
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‘discharge’ is referred to as ‘transfer of care’, in recognition that a patient’s health
care needs do not end when they leave hospital, and that patients may require a
range of co-ordinated community-based referrals and supports to be in place at the
point of discharge from hospital
patients under guardianship are identified as being patients who should be flagged
for a ‘Transfer of Care Risk Assessment’ (TCRA) which identifies patients who will
most likely require services and follow up after discharge
prior to discharge, hospital staff must provide the patient with all referrals,
appointments, and follow-up information including medication advice. (Note: the
guardian should be provided with this information when we are appointed with the
relevant function. If we have an accommodation function for the person, information
about community-based supports are relevant to any consent about the person
returning home or to other accommodation.)
4.5.1. Scope questions
Q If there are conflicting views regarding admission or discharge, should additional
views be sought from independent professionals?
Q To what extent is the person’s health at risk, and how would the level of risk be
affected by admission or discharge?
Q Has a ‘Transfer of Care Risk Assessment’ been completed for the person?
Q Do coercive authorities need to be used or sought to protect the person’s interests?
Q Is there any indication that the person’s disability is influencing views regarding
admission or discharge?
Q Has a discharge summary been requested?
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4.6. Mental Health facilities
A scarcity of appropriate accommodation is particularly acute for people with a mental
illness who have complex support needs. This is especially evident when patients are
being discharged from mental health facilities. The Ombudsman has released a report
on this issue called Denial of Rights. The report was highly critical of ADHC and NSW
Health and they have been instructed to respond to the report and there is hope the
situation will improve.
People with intellectual disability but who have a primary diagnosis of mental illness are
excluded by ADHC policy from eligibility for ADHC and ADHC-funded group homes
(exempted from this policy are the Boarding House Relocation Program, and children
under the care of the Minister for Community Services). The Ombudsman’s report
recommended this policy be changed but as of May 2013 there had been no change in
this policy. However, there is an MoU between NSW Health and ADHC that outlines
how they should work together if a person has both a disability and a mental illness
requiring the involvement of both agencies. It states that once a person ‘has been
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referred to the mental health service (and) the service has concerns about a service
user’s need for safe accommodation support and their clinical care; these should be
highlighted for an immediate response from ADHC.’ ADHC however is not required to
accommodate the person unless they fulfil ADHC’s eligibility requirements.
Some patients, primarily those with a reasonable capacity for independent living, may
be discharged with social housing and a support package (e.g. HASI). The availability of
mental health group homes is very limited. ADHC’s Integrated Services Program (ISP)
have some intensive, time-limited support packages available for people with a
disability, including people with a mental illness. This support is only offered to those
with the most complex challenging behaviours and who have exhausted all other
support options. The guardian should document all contact with ADHC and Health to
assist with future advocacy around this issue.
The Public Guardian is often requested to consent to placing people with a mental
illness at a boarding house because of the lack of availability of more appropriate
accommodation. Refer to the section on boarding houses (4.9) for further information
about accommodation proposals for this type of accommodation.
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4.6.1. Admission and discharge: voluntary and involuntary
Table 1 shows the guardian’s role in relation to the admission or discharge of a person
from a mental health facility. This includes involuntary and voluntary patients.
Table 1
Involuntary patients
Voluntary patients
Admission
Guardians do not admit people to hospital
but may make a written request to an
authorised medical officer when other
admission options are not practical.
Discharge
Guardians cannot discharge involuntary pat
from hospital.
However, guardians can ask for a person to
discharged and advocate for an appropriate
discharge plan.
Guardians can request that the person be
admitted as a voluntary patient under
section 7(1) of the Guardianship Act 1987. A
form is available for that purpose and must
be signed by a Manager or higher
delegation.
Guardians can ask for the person to be
discharged from a facility and request a disc
plan.
Note: Guardians must be given notice by a
of their intention to discharge the person. If
discharge plan does not offer accommodatio
provides adequate safety and security for th
person, the guardian may need to advocate
the person to remain in the facility until suita
accommodation is secured.
4.6.2. Discharging voluntary patients
Conflict sometimes arises between a mental health facility and a guardian when a
voluntary patient is being discharged. This conflict is often due to the guardian’s view
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that the person is not being discharged into accommodation that affords the person
appropriate safety and security.
NSW mental health facilities are required to develop discharge plans in line with NSW
Health’s policy directive, Transfer of Care from Mental Health Inpatient Services. Key
elements of the policy are:
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a ‘Transfer of Care Plan’ be completed before discharge including an ‘estimated
discharge date’
planning should include the person’s accommodation at discharge
the person’s guardian (as a nominated primary carer) should be consulted and
provided with information on discharge planning.
An authorised officer within a facility may wish to discharge a patient into
accommodation that the Public Guardian believes does not provide the person with
adequate safety and security. The authorised officer may argue that the Mental Health
Act 2007 does not allow the detention of a voluntary patient if the patient requests to be
discharged, even if the person is the subject of a guardianship order with a coercive
accommodation function.
In these cases, the guardian may argue that the facility has a duty of care to not
discharge the person. We may advocate for the person not to be discharged until
accommodation that provides adequate safety and security for the person is secured.
A better result may be achieved for the person if the guardian advocates for suitable
accommodation soon after the person is admitted to the facility.
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4.7. Homelessness
Sometimes we are appointed to make accommodation decisions for someone who is
homeless, or sometimes a person becomes homeless after we are appointed.
Homelessness is a complex issue. Two primary issues are:
 the lack of support services and accommodation options for people who are
homeless or at risk of becoming homeless
 the resistance of some homeless people to accept available accommodation options.
The role of the Public Guardian is to make decisions for people under guardianship, not
to find accommodation options for them. It is therefore important that we develop
relationships with service providers who are able to assist a person to stay in their
existing home, or to assist a homeless person in securing accommodation.
When there is no service provider involved with the person to help them maintain or
secure accommodation we will advocate for service providers to become involved.
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Some accommodation options that can be considered are:
 supported accommodation in ADHC or ADHC-funded group homes
 supported accommodation in mental health group homes
 licensed residential centres (i.e. licensed boarding houses)
 social housing (i.e. Community Housing or Housing NSW)
 private rental
 residential aged care
 placement in a locked drug and alcohol facility under the IDAT program
 admission into a mental health facility
Accessing these options will depend upon the involvement of a case manager who can
explore the available options for the person. In limited cases we may make applications
on the homeless person’s behalf to help secure accommodation.
Sometimes a service provider will not be available, or will be unable to provide the
person a service if the person refuses the service, even when we provide consent for
that to happen.
When we have exhausted all available options to get service providers to work with the
person, we will consider the need to discharge the person from guardianship on the
grounds that the order is unworkable.
People under guardianship should be given every opportunity to make their own
accommodation choices, including the choice to live an itinerant lifestyle. An important
factor in weighing a person’s choice to be homeless will be the extent to which their
choice is an informed choice. The more a choice is informed the more weight it will hold
in making our decision.
However, the person’s view is only one of the general principles of guardianship that
must inform the decisions we make. Another principle is that we need to protect the
person from abuse, neglect and exploitation, and to give paramount importance to the
person’s welfare and interest. Homelessness is inherently risky and the homeless
person may be more or less able to manage those risks. We will advocate for
appropriate options for the person when the person’s homelessness or risk of
homelessness exposes the person to an unacceptably high risk of harm.
When we make a decision against the person’s stated wish, we may also need a
coercive accommodation function to enforce the decision. If enforcing our decision
requires a secure facility, we must balance the trauma and distress of placing the
person in a secure facility against the trauma and distress that may arise out of the
person remaining homeless.
4.7.1. Scope questions
Some specific questions we ask when making decisions where the person chooses to
be homeless are:
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Q Is the person aware of the alternative options available to them?
Q Is there evidence of a risk of injury or harm to the person or others? What are the
potential consequences?
Q Can appropriate support be made available to the person within their current
lifestyle?
Q Is there a clear response plan in place that can be implemented if the person is
placed at serious risk of harm or injury?
Q Is the person’s homelessness a chosen lifestyle?
Q Is advocacy needed to address any lack of services or support?
Q Is an assessment needed to determine the person’s accommodation, service and
support needs?
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4.8. Large residential centres (LRCs)
Ageing Disability and Home Care are in the process of closing their large residential
Centres (LRCs), which is anticipated to be complete by 2018. Residents of LRCs will be
progressively relocated to community-based supported accommodation.
We support the relocation of residents from LRCs to suitable community-based
accommodation. Any proposal should be individualised and provide evidence that that
alternative accommodation will meet the support needs of the person.
ADHC are no longer accepting new residents into LRCs, except in exceptional
circumstances. Any proposal to place a person in an LRC should be discussed with the
Regional Manager of the relevant guardianship team.
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4.9. Licensed residential centres (i.e. licensed boarding houses)
A boarding house is a residence that accommodates two or more people with a
disability and are private, for profit, shared accommodation services. Boarding houses
can be either licensed or unlicensed . Licensed residential centres are licensed under
the Boarding Houses Act 2012 (NSW) and are monitored by the Department of Fair
Trading and Local Councils. This Act has yet to be fully implemented see ADHCs
Boarding Houses Reform Fact Sheet for more information.
The Public Guardian believes people with disabilities should have access to the same
standard of accommodation that is available and valued by the broader community. This
includes accommodation that enables the person to access support services for
successful community-based living. In general, boarding houses, especially when
unlicensed, do not meet the standards of accommodation that the general principles of
guardianship require.
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There have been numerous reports into boarding houses which have led to recent
reforms of the legislation and regulations governing boarding houses.
However we still hold concerns that residents of licensed boarding houses often live in
overcrowded conditions that lack privacy, and that there can be a lack of appropriate
assessment and intervention services to support people with challenging behaviours.
People often reside in licensed residential centres because of the scarcity of other forms
of community-based accommodation.
The Public Guardian will generally not consent to placing a person in a boarding house,
but may provide consent when other less restrictive options are unavailable. In
recognition of how important a boarding house placement decision is, the delegation for
this decision is the Regional Manager or higher.
We will usually only consent to placement of a person in an unlicensed boarding house
if the person is at risk of becoming homeless and there are no other less restrictive
options available.
Where a person under guardianship resides in a licensed residential centre and their
needs are not being met, we will advocate for the person to access accommodation that
is better suited to their needs.
When a person is to be relocated from a boarding house which is closing, the Public
Guardian will advocate for a placement in suitable accommodation that best suits the
person’s needs.
4.9.1. Scope questions
When receiving a proposal to place a person in a boarding house, some key
considerations are:
Q Have other more appropriate accommodation options been considered (e.g. social
housing with drop in support or a group home)?
Q Is the proposed accommodation licensed? Consent to placement in unlicensed
boarding houses will be rare.
Q Has the boarding house screening tool been completed by the Home Care Referral
and Assessment Agency (1800 350 792)? Completion of this tool is mandatory.
The assessment is necessary but not sufficient for us to consent to the placement
of a person in a licensed boarding house.
Q What services will the person have access to at the proposed accommodation?
Will these services be adequate to meet the person’s needs?
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4.10. Squalor and hoarding
The general principles of guardianship only allow the Public Guardian to act in the
interests of the person under guardianship, not in the interests of other people.
When a person under guardianship is hoarding or living in squalor, we will act if the
evidence suggests:
 the person’s health and wellbeing is at significant risk
 the person’s quality of life is likely to be significantly improved through action
 the person’s accommodation is in jeopardy (e.g. their living in squalor may result in
eviction).
Any action we take will depend upon the person’s circumstances and the services that
are available to support the person in their living arrangement.
We will advocate for and make decisions that support the person in their preferred living
arrangement. If evidence supports the need to remove the person form their residence
for their safety and wellbeing, and if case management and other services are unable to
adequately support the person in their home, we may make a decision to remove the
person from their accommodation.
If we consent to relocating a person from their home, due to the level of squalor and
associated risk, we will attempt to return to the person to their home if it can be made
sufficiently safe and secure. For example, placing a person in respite accommodation
may:
 enable service providers to make the person’s home habitable
 allow time for service providers to increase services for the person or develop a
support plan that better supports the person in their home when they return.
4.10.1.
Scope questions
Other factors to consider when making accommodation decisions about squalor and
hoarding are:
Q Does the person see the squalor and hoarding as an issue?
Q Who has identified squalor as an issue, and why is it an issue?
Q Does the person’s squalor place their tenancy at risk?
Q Does the level of squalor place the person’s life or health in jeopardy?
Q Are further assessments needed to determine the person’s accommodation and
support needs?
Q Is there a case manager already involved with the person?
Q What are the barriers to addressing the squalor?
Q If the person’s home is cleaned, is there a plan to provide ongoing support to
manage the behaviours that lead to hoarding and squalor?
Q Does the person have a financial manager who can consent to pay for a forensic
clean?
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Q Does the person own their own home and can they afford any necessary repairs or
modifications to it?
Q Does the person own pets? If so, a referral to the RSPCA may be appropriate.
Q If the person rents, who is the landlord (e.g. Housing NSW or private rental)?
Q Is advocacy needed to address the lack of support services?
When considering the forced removal of a person from their home we should consider:
Q Do we have the authority to request the forcible removal of the person (i.e. do we
have an accommodation function that authorises others to act against the person’s
will)?
Q Can the person be relocated to respite or other temporary accommodation in
preference to a permanent accommodation decision to allow the person’s
permanent accommodation to be made safe and a for a service provider to develop
a support plan for the person when they return to their home?
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4.11. Group Homes (ADHC and ADHC-funded)
The Public Guardian promotes and supports the right of people with a disability, who
cannot live independently or with family, to live in a supported accommodation model
within the community, such as group homes.
Supported accommodation should:
 enhance the person’s community access and participation
 reflect community norms around domestic-style accommodation
 promote the person’s independence and daily living skills
 maintain family and other important social relationships.
The NSW Disability Services Act 1993 requires all services for people with disabilities,
which are funded or provided by the Minister for Disability Services, to conform to the
principles of the Act. These principles, alongside the general principles of guardianship,
provide a reference point that informs the supported accommodation decisions we
make for people under guardianship.
The primary ADHC policy outlining a person’s eligibility, access, transition within, and
exit from, supported accommodation, is the document: Allocation of places in supported
accommodation: policy and procedures.
4.11.1.
Emergency accommodation
Some people who are ADHC service users may experience an urgent accommodation
need, such as:
 becoming homeless
 their support needs increase and their family is unable to continue to provide support
in the family home
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a placement in an existing funded service has broken down (e.g. AHDC or NGO
group home placement)
the person is at risk in their current placement
Where a person becomes homeless for any of the above reasons this needs to be
raised with the Regional manager. The Regional Manager will contact Information,
Referral and Intake (IRI) or the local Community Support Team at ADHC to develop an
agreed set of actions to address the person’s homelessness. In the absence of
Emergency Response (ER) the intake officer can make referrals to relevant homeless
services and access case management either with ADHC or a non-government agency.
It is important to document all contact with IRI to assist with future advocacy.
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5. Delegation: Who makes accommodation decisions?
The Public Guardian is authorised to delegate decision-making to his staff. Our
‘guardianship delegation instrument’ ensures that the complexity of decisions is
matched with his staff’s position within the organisation. The delegation instrument
specifically refers to a number of accommodation decisions. See table 2 below.
Table 2
Decision

Delegation
Placement in a large residential centre (LRC)

Public Guardian
Boarding House Placement

Regional Manager
Voluntary admission to a mental health facility

Regional Manager
Giving up domestic-style accommodation

Principal Guardian
Moving between accommodations where there
are no added restrictions

Guardian
Other delegations may apply depending on the specifics of the consent. For example,
consents that have a major ethical element can only be made by the Public Guardian.
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6. Disagreement with accommodation decisions
All decisions we make are reviewable. For more information about how request a review
of an accommodation decision, click here to go to our website.
Information about how to make a complaint is also available on our website here.
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7. What we can and can’t do
This section is about some of the limitations to guardianship. Some decisions or actions
are beyond a guardian’s authority. For general information about decisions and actions,
refer to the Public Guardian's decision-making practice guideline.
7.1. Decisions we can make
The following are decisions we can make for a person under our guardianship for
accommodation:
 Provide or withhold consent to an accommodation proposal (permanent or
temporary)
 Provide consent to an accommodation trial. This is usually in cases where it is
unclear that the accommodation will be successful and therefore requires monitoring
from service providers or others
 Provide or withhold consent for the person to remain in their current accommodation
(sometimes to make clear that others should not move the person from their
accommodation)
 Provide or withhold consent to accommodation plans (e.g. plans that include regular
stays with other people that are for one or more nights, and occur on a regular basis)
 Provide or withhold consent to override a person’s objection to an accommodation
decision we have made (only if we have a coercive accommodation function)
 Provide or withhold consent to the person’s admission to a health care facility. This
consent authorises standard management and care that would be received by any
person admitted to that facility. Diagnostic, investigative or treatment procedures the
person receives at the facility will need to be made under the relevant function.
7.2. Actions we can take
The following are actions the public guardian can take on behalf of a person under
guardianship for accommodation. These actions are often undertaken as a part of the
investigation of an accommodation proposal, or to advocate for a decision that needs to
be made:
 Request an assessment of a person’s accommodation needs by the appropriate
service (e.g. sign an Aged Care Assessment to determine the person’s eligibility for
in-home services or aged care placement).
 Liaise with the person’s financial manager about decisions we make that may have a
financial implication, and inform them of the decision we make.
 Inform interested persons about decisions we make. This includes people directly
affected by our decision, or who should be informed.
 Request allied health assessments to address identified issues (eg. request an
Occupational Therapist to assess a person’s home before they return for the need for
home modifications).
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Visit a person’s current or proposed accommodation to establish our view about
whether this accommodation meets, or will meet, the person’s needs.
Seek information during visits to a place of accommodation, about standards,
monitoring, accreditation, licensing and other relevant matters.
Seek information about the proposed accommodation through consultation with
service providers, other government agencies (i.e. licensing, monitoring or
accreditation bodies), family and others.
Seek information from officers within the Public Guardian about their knowledge of
specific accommodation.
Advocate for community services to review and vary their management and support
strategies, to maintain a person in their own home.
Release and exchange information directly related to an accommodation decision to
service providers and others involved in the person’s life.
Request or attend case meetings to discuss the person’s accommodation issues or
options.
Advocate with relevant funding bodies for a person to have access to more
appropriate accommodation and support (eg. for someone leaving the prison system
who requires structured, supported accommodation).
Advocate for other accommodation options, to avoid a person being placed in less
suitable accommodation (eg. boarding house or other institutional accommodation).
Make complaints, on behalf of a person, to managers of accommodation services or
relevant complaints, accreditation, monitoring or funding bodies (eg. Community
Services Commission, NSW Health, Housing NSW, ADHC).
Negotiate, or request someone else to negotiate, with the person about their
accommodation alternatives, before any decision is taken to move the person against
their wishes.
Advocate for a suitable discharge plan from a general hospital or mental health
facility.
Advocate for a person to receive case management services to assist with securing
accommodation.
7.3. What we can’t do
The following actions are not the responsibility of the Public Guardian under an
accommodation function:
 Finding or providing accommodation for a person.
 Taking a person to new accommodation, or locating and bringing them back if they
leave that accommodation.
 Physically bringing a person back to NSW if they go inter-state.
 Assessing a person's accommodation and support needs.
These actions are the responsibility of a person's case manager or primary support
agency, in conjunction with other appropriate service providers.
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Pay or negotiate accommodation-related fees and charges.
This action is the responsibility of the person, another person acting informally on their
behalf, an enduring power of attorney, or the appointed financial manager.
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8. References: law and policy
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Guardianship Act 1987 (NSW)
Aged Care Act 1997 (Cwlth)
Disability Services Act 1986 (Cwlth)
Disability Services Act 1993(NSW)
Mental Health Act 2007 (NSW)
Drug and Alcohol Treatment Act 2007 (NSW)
Boarding Houses Act 2012 (NSW)
Care Coordination: Planning from admission to transfer of care in NSW public
hospitals
Care Coordination: Planning from admission to transfer of care in NSW public
hospitals: Reference manual
NSW Ombudsman’s Report: Denial of Rights
ADHC’s Boarding Houses Reform Fact Sheet
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