Making Access Decisions: a guide for guardians
Written by Oliver Cumming
Access decisions can be difficult to make because they often involve conflict. We explain the steps for guardians.
An access function gives a guardian authority to decide:
- who can visit the person or who the person can visit
- what type of contact the person has with other people, for example, in person, by telephone, email, text message or social media
- when the contact can happen, how long and under what circumstances (including supervised).
Making access decisions
Many guardians feel uneasy about access decisions because they often involve conflict with other people. Sometimes circumstances change and you will need to amend your decision, which can also be stressful. It helps to keep a written record of all the questions and information you have considered so you can feel confident about your decision and can refer to it later if circumstances change or if you need to explain your decision.
Overall, an access decision must consider the principles of the Guardianship Act 1987 (NSW) and should prioritise the represented person’s welfare and interests while aligning with their will and preferences as much as possible.
If there is a lot of conflict surrounding the person you are guardian for, you may consider seeking mediation services to try and resolve the issues. Community Justice Centres provide free and confidential mediation services.
Access protocols
If someone is requesting access with the represented person, you can provide them with an access protocol. An access protocol is a set of expectations (preferably written) about how contact with the represented person will happen. Wherever possible, you should discuss this with the person you are guardian for and find out who they want contact with and how this should happen. Your role as guardian is to make decisions and develop a protocol according to their wishes.
Access protocols can be developed to address specifics such as:
• the times of access
• frequency
• location
• cancellations
• supervision arrangements
• how flexible the protocol should be
• transportation arrangements.
Implementing decisions
Access decisions can be difficult to implement when:
- other people will not cooperate with the decision
- the represented person’s service/accommodation provider is refusing to assist or is not recognising the authority of the guardian.
What can I do?
You can talk to the person or the accommodation service provider about your concerns. When working with service providers, try to come to an understanding about how you can best work together for the person you are guardian for. You can also ask to see their relevant policies to get an understanding of what their position is. If you have tried to address your concerns informally with the service provider without success, you can consider making a formal complaint.
You can also consider other access arrangements that may work, however as the guardian, your primary concern is for the person you are the guardian for. You are not responsible for making a decision that suits other parties.
For example, a relative may submit an access proposal requesting to visit the represented person on a Monday, because that is the only day they don’t work. However, Monday is the day the represented person has art therapy. In this situation you need to prioritise the represented person and not the relative. If the represented person is not willing to miss art therapy to see the relative, then you should explain that to the relative and ask them to propose another time to visit.
In more extreme cases, if the represented person is at risk through contact with someone, you may make a decision to completely deny access.
If you have denied someone access to the represented person and they are still attempting to access them, you may have to consider taking out an Apprehended Violence Order (AVO). The Crimes (Domestic and Personal Violence) Act 2007 was amended in 2012 to allow an appointed guardian to apply for an AVO on behalf of a person who is under guardianship. Sometimes an AVO might be considered when there are concerns about access, however, guardians do not need to have the access function to apply for an AVO. For more information contact your local courthouse, police station, LawAccess or Legal Aid.
Contact the Guardian Support Unit
Contact the Guardian Support Unit on 1300 361 389 or pg.engagement@opg.nsw.gov.au.
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