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National

Calls to repeal gag laws for those under guardianship and trustees

Sarah owns a three-bedroom house worth over $1 million and estimates she has been left another $1 million from her late parents' estate.

Yet the 59-year-old is homeless, forced to squat in abandoned houses or sleep in her car.

"Living in the car feels safer than squatting because I'm able to lock the doors," she said.

"Squatting is terrible because I don't go into a deep sleep … and I'm scared."

Sarah — not her real name — blames her dire situation on Queensland's Public Trustee, the government agency that manages her finances.

It took over her finances in 2020 after a state tribunal declared she lacked capacity because of her mental health – a finding she disputes.

Australia's guardianship and trustee system is similar to the conservatorship Britney Spears was under in the US.

Sarah said she should be getting a pension of about $500 a week but claims the Public Trustee only gives her $90 of that, meaning she is living below the poverty line.

At the same time she said the Public Trustee takes $600 a month in fees despite having no contact with her for over a year.

Sarah said she is too scared to call and ask for more money because she has been intimidated by the Public Trustee office in the past.

"They are a dictatorship [unto] themselves. They have their own laws, which are inhumane. They have taken away my voice, my character, my decision making. They have no respect to be treating me as a human being," she said.

We cannot show Sarah's face or use her real name because it is a criminal offence in Queensland to identify those under the guardian and trustee, punishable by six months in jail and/or fines of $50,000.

Similar gag laws apply in most of the country, where more than 50,000 people with cognitive disabilities are under the control of guardians and trustees.

That law needs to change, according to John Chesterman, Queensland's Public Advocate, who released a report last week recommending that section 114A of the Guardianship and Administration Act be repealed.

"The analogy is with victims of sexual assault not being able to tell their stories, and that's changed. For a similar reason, I think this one should change too," he said.

"Enabling people to talk about their own guardianship experiences outweighs the protective benefit of retaining the restriction. That's why I've recommended its repeal."

He said allowing people to speak out will have the added benefit of ensuring more transparency and accountability in the guardian and trustee system. He said such a change could lead to other states and territories following suit.

"I do think it's an important issue in terms of human rights and self-actualisation and transparency," he said.

The recommendation follows a Four Corners program earlier this year where people under the Public Trustee told stories of being virtually imprisoned in aged care facilities while paying exorbitant fees.

The ABC had to apply to two Supreme Courts to identify people featured in the program.

The Queensland government called two inquiries following a Four Corners investigation into its Public Trustee office.

Agency accused of charging excessive fees

If the gag laws are lifted, it would mean family members, who currently cannot be identified either, would be free to speak to journalists.

Sophie — not her real name — wants to tell the story of the high fees and the unnecessary charges she said her mother has been forced to pay since coming under the control of Queensland's Public Trustee three years ago due to dementia.

Over three years, she said her mother has paid $28,000 in personal administration and asset management fees.

Sophie's mother appointed the agency as her Enduring Power of Attorney when she made a free will in 2002.

When she was diagnosed with dementia in 2019, the Public Trustee took over.

Sophie said her mother spent almost a year in hospital until she was moved to aged care.

She said the Public Trustee charges her mother almost $700 a month in fees, which Sophie said is unwarranted considering the many financial errors made by the office that she has identified.

"They are just charging fees based on how much money you have," she said.

"There's no transparency, no accountability. What happens to the people who don't have a relative like me?"

Sophie said the Public Trustee took over $22,000 from her mother's account to pay for gardening services, but never checked up on the work, which she says was substandard and overpriced.

But the Public Trustee would not allow her to see the invoices, so she had to file a "right to know" claim in order see the payments.

She was appalled by the neglect of her mother's property, especially the pool, which was left in a state of disrepair despite many requests to clean it up before it was recently sold.

"How can they leave a pool like that? There's grass and coconut growing in that, and that's after they said they're going to get it 'auction ready'," she said.

"I wouldn't mind if they didn't charge like wounded bulls."

The ABC was unable to verify the information given to us by Sarah and Sophie because the Public Trustee cannot comment on cases without first confirming the capacity of the person under guardianship.

Public Guardian and Public Trustee oppose total repeal of law

There is no guarantee that the Public Advocate's recommendation will be taken up because both the Public Guardian and Public Trustee oppose a total repeal of the legislation.

When the ABC asked Queensland Attorney-General Shannon Fentiman whether she supported the proposal to repeal the law, she said she was "carefully considering the recommendations".

Shayna Smith, from the Office of the Public Guardian, said the change recommended by the Public Advocate would "remove an important privacy protection, where a person with malicious intent may wish to expose the fact that someone is subject to a guardianship order."

Public Trustee chief executive Samay Zhouand, told the ABC he supports an "incremental approach" in which "the process of seeking permission for publication is more accessible and streamlined".

But the Public Advocate's report — Public accountability, private lives — argues "it is time to shift the balance from the default position that people cannot speak about their guardianship experiences (in a personally identifying way) without tribunal authorisation, to the default position that they can".

Christine Dalas, founder of the Australian Association to Stop Guardianship & Administration Abuse, does not believe repealing that section of the law will work, saying, "QCAT will still have the power to silence victims subject to guardianship and administration orders" under another section of the legislation.

"These matters should not be determined by QCAT," she said.

Sarah is sure she wants to tell her story. She said few people know how the Public Trustee operates and she believes giving people like her a voice and a face will make the organisation more accountable.

"I'd like to tell my story to all Australians and the media because my voice has been taken away from me and this is Australia, we should be able to speak up, especially when a government department is doing wrong," she said.

"I would have more rights in jail."

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