Guardianship may need to be considered in cases where the person with a disability has limited decision making capacity and requires someone to make decisions on their behalf such as health care, medical intervention, housing or access to services.
Often people may lack capacity only in making one type of decision. A person might be able to decide where they want to live (a personal decision), but not be able to decide whether to sell their house (a financial decision). They may be able to do their grocery shopping (making a simple decision about money), but are not be able to buy and sell shares (more complex decision about money).
There are a number of different types of guardianships, depending on the level of decision making support required, and there are also checks and balances that need to be considered as part of the process.
In conjunction with La Trobe University Law School we have produced a series of articles to help you legally plan for the future – all in an easy-to-understand way.
These include topics such as wills and estate planning, guardianship, power of attorney, trusts and special disability trusts.
This week we feature what you need to know about guardianship.
Please note: This is legal information, not legal advice. Always consult a lawyer before you develop your legal planning for the future.
What is guardianship?
Guardianship is a word that is used to describe a relationship between people in which a person, a ‘guardian’, exercises legal decision-making power over an adult who lacks capacity to make decisions. Guardianship may involve one or more persons.
A ‘guardianship order’ is a legal decision made by a court or a tribunal that decides if a guardian is needed and who that guardian will be. In most jurisdictions the court or tribunal will determine what areas of a person’s life the guardian can make decisions.
The most common areas of a person’s life that a guardian is appointed to make decisions include accommodation, access to services, and medical, dental and other healthcare. Guardianship orders are time specific and most orders last between twelve months and three years. However, the court or the tribunal has the power to make guardianship orders for less than twelve months.
The courts and tribunals who have responsibility to appoint guardians also have the authority to make what is called ‘plenary guardianship orders’. Plenary guardianship orders are guardianship orders where the person appointed as guardian has full decision-making authority across all areas of an adult’s life. Guardians are required to make decisions that are in the best interests of the person, to take into account the person’s wishes, and to make decisions that are the least restrictive in the circumstances.
Guardianship orders are generally reviewed on an annual basis but a review can be made of a guardianship order at any time during the operation of the order. Courts and tribunals prefer to appoint family members as guardians. However, if no family members are available or appropriate then the court or tribunal will consider other people in the person’s life as potential guardians, such as good friends. If no family or friends are available to become a person’s guardian, or if there is conflict regarding who should be appointed as a guardian, then the court or tribunal will appoint an independent guardian from the State-based Office of the Public Advocate or Office of the Public Guardian.
What is capacity?
Earlier in this guide, we explained that once people turn 18 years of age, they are legally autonomous and are presumed to have the capacity to make decisions for themselves.
However, some people with a disability, that affects their decision-making ability, may need help and support to make some decisions about their lives; for example, where they will live or money-related matters. The ability to make decisions is fluid and may vary from time to time and from decision to decision. It is rare for a person not to have capacity for any decisions. However, this can happen when a person is unconscious or has a severe or profound intellectual disability, acquired brain injury, mental illness or dementia, for instance.
The types of decision-making disabilities for which formal guardianship orders are sought and made can include:
- Intellectual disabilities
- Psychiatric disabilities – for example, schizophrenia and depression
- Neurological disabilities – for example, dementia and Alzheimer’s
- Development disabilities
- Brain injuries
- Physical disabilities which render a person unable to communicate their intentions or wishes.
A person is said to have capacity to make decisions when they can:
- Understand the information and choices presented to them.
- Weigh up the information to determine what the decision will mean for them, without undue influence.
- Communicate their decision.
Below is a flow chart from the Office of the Public Advocate in the ACT that helps to explain the process:
What factors need to be taken into account regarding guardianship?
Substitute decision-making is an absolute last resort, as all adults over the age of 18 years, regardless of disability, are generally entitled to make their own decisions.
It may be the case that a person with disability can have in place informal supported decisionmaking arrangements with trusted, supportive and diligent family and/or friends, rather than resorting to formal arrangements.
For Centrelink payments, it is possible to apply for someone to be appointed by Centrelink either to receive a copy of all correspondence (a ‘correspondence nominee’ who checks that things are done: see below) or to receive the person’s payment (a ‘payment nominee’ who looks after the funds).
Where there is a proven and current need for a person’s decision-making to be supported (or as an absolute last resort, to be substituted) and it is in their best interests, the following principles should guide and instruct the decision-making process:
- The wishes, opinions and choices of the person must always be sought and considered first
- The privacy, cultural diversity and integrity of the person must always be respected
- The least restrictive and intrusive intervention into the person’s life should be the starting point
- Records must always be kept about supported and substitute decision-making arrangements (informal and formal), as well as any decisions, as this will ensure processes are transparent and may be subject to independent review if necessary
- Informal arrangements and support from family members, carers or friends who have close and continuing relationships with the person and may be able to act as advocates are preferable to formal orders of guardianship
- Support provided to the person to make decisions must always be in the best interests and welfare of the person
- A substituted decision should be the least restrictive alternative
Diminished decision-making ability should not be confused with difficulties or impairment in communication – people should be provided adjustments and alternative modes of communication to express themselves.
Social security, banks and other institutions
If an adult child does not have legal capacity to execute a Power of Attorney, his or her parents can be confronted by some institutions that refuse to provide personal information, or refuse the parents the power to look after their adult child’s affairs without the authority of the child.
These institutions have privacy law obligations, which include the obligation to ensure their clients are not being defrauded or exploited.
What can parents do in this situation?
- Some institutions have ‘nominated person’ or ‘nominee’ forms that a parent can fill in – for example, Centrelink can appoint and then recognise a ‘nominee’.
- The family can meet with the institution, taking with them relevant medical and school reports about the child and points of identification, and request alternative informal arrangements.
Who can be a guardian?
State or Territory legislation gives courts and tribunals the power to make guardianship orders. This means they can appoint a person as guardian. A guardian’s decision has the same legal force as if the person had made the decision themselves.
A guardian should be someone who is familiar with the represented person’s values and beliefs, likes and dislikes. When deciding who to appoint, the tribunal must take into account the wishes of the represented person so far as they can be ascertained, as well as family members and interested parties. If there is no one available, or there is a need for an independent person because of disagreement between family and friends about what is best for the represented person, a formal Guardian from the relevant State or Territory (i.e., Public or Adult Guardian) can be appointed.
When might a guardian be needed?
The sorts of situations where formal guardianship orders might be needed are where:
- A person does not have any family or friends willing and able to support the person and maintain informal decision-making arrangements
- There is conflict about what is in the best interests of a person
- Informal decision-making arrangements are proving detrimental to the best interests of the person
- A person is being subjected to neglect, harm, abuse or exploitation
- A person’s decisions are not working in their best interests and are in fact placing them at risk.
What are the responsibilities of a guardian?
The responsibilities of the guardian include:
- Protecting the represented person from abuse, exploitation and neglect
- Acting in the best interests of the person
- Considering the represented person’s wishes
- Making the least restrictive decision possible in the circumstances
- Advocating for the represented person
- Encouraging the represented person to make their own decisions where possible.
In addition to these responsibilities, guardians are accountable for the decisions they make, and also have a duty of confidentiality.
What functions can a guardian exercise?
Guardianship orders specify what functions or powers the guardian can exercise. Some of the most common include:
- Accommodation where the person lives currently and will live in the future, and with whom they live and will live
- Services what services the person will access and engage in (for example, day programs)
- Education and training what education and training the person can receive
- Work whether a person can work, the nature of the work and with whom they can work
- Medical, dental and other healthcare-related matters.
Are there any decisions that guardians can never make for a person?
Only a tribunal can make certain decisions, such as those about:
- Termination of pregnancy
- Experimental treatments or medical research
- Electro-convulsive therapy or psychotherapy
- Making or revoking a Will
- Making or revoking a power of attorney, enduring power of attorney or advanced health directive
- Exercising the right to vote in an election or referendum.
The list of decisions a tribunal can make varies between the States and Territories.
What is the process for guardianship?
In each State and Territory the process for formal guardianship is outlined below.
There are some differences across the States and Territories as to who has, what is legally termed, ‘standing’ to bring a guardianship application, although it covers a very wide range of people. This generally includes the tribunal, board, panel or court on its own initiative, the person applying to be the guardian, the Public Guardian, Adult Guardian or Public Advocate, a relative or a member of the public who can demonstrate a sufficient interest in the issues.
The bulk of the investigations carried out by tribunals, panels, boards and courts are conducted prior to or during the hearing.
Most do not have the funding or resources to undertake substantive inquiries or investigations, though there are some exceptions.
Those entitled to receive notice of an upcoming hearing and to be parties to the proceedings include: the applicant; the person to whom the application relates; relatives of that person; a person (if any) who has care of that person; the Public Guardian, Adult Guardian or Public Advocate; and any other person who has a proper interest in the proceedings.
The hearing is not meant to be a fight or an adversarial context; rather it is an inquisitorial exercise for the members. At the end of the hearing depending upon the complexity of the matter before them, the members (or sometimes the member sitting alone) can deliver their decisions – all parties will receive written copies of the order and reasons for that order.
All guardianship orders (whether temporary, continuing, limited or plenary) are subject to automatic periodic reviews. Reviews are mandatory where the guardian dies or wishes to be discharged or appears incapable of carrying out their duties by reason of mental or physical incapacity. In addition, there is a provision for a review to be conducted where an eligible person makes an application (so long as the application is not frivolous, vexatious or lacking in substance).
Generally those eligible to apply for a review are: the tribunal, panel, board or court on its own initiative; the person under guardianship; the Public Guardian, Adult Guardian or Public Advocate; and any other person with a ‘genuine concern for the welfare of the person under guardianship’.
A review considers whether the guardianship order needs to be amended, varied, continued or replaced, subject to any conditions or restrictions, or revoked altogether.
Who can help?
The Office of the Public Advocate or Adult Guardian in your State or Territory may be able to assist you.
This article is one of a series extracted from the Discover Guide, a 122 page comprehensive guide to the NDIS prepared by La Trobe University in conjunction with Endeavour Foundation and funded by the National Disability Insurance Agency. The guide aims to help people understand the various parts of the NDIS and how to access them. It also includes additional legal information - such as wills, guardianship, trusts and estate planning - for people with a disability and their families. Access your copy here. Casey, G., Keyzer, P., & O’Donovan, D. (2016) Discover (2nded.). Melbourne: La Trobe University.