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Important Things you Need to Know About Guardianship in Australia

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Understanding legal guardianship can be challenging, especially when it involves the wellbeing of a person who cannot make decisions for themselves.

This blog will define legal guardianship, including how a child’s legal guardian is appointed and their responsibilities. Whether you are a family member or a professional, this information will provide valuable insights to help you navigate guardianship effectively.

Key takeaways

  1. A legal guardian has the authority to manage particular affairs for a person with a decision-making disability.
  2. Guardians must be over 18 and not paid carers.
  3. Legal guardianship is governed by the Guardianship and Administration Act 2000.
  4. The Guardianship and Administration Act defines capacity.
  5. Capacity is determined using a set framework to ensure the Adult’s rights to privacy and self-determination.
  6. The Queensland Civil and Administrative Tribunal (QCAT) handles applications.
  7. QCAT must be convinced that a guardian is necessary.
  8. The Adult should be consulted about the application if possible.
  9. You must determine if an enduring power of attorney or health directive is in place.
  10. Determine who will be the guardian.
  11. Fill out the relevant forms and submit them to the Tribunal.

What is a legal guardian?

Legal guardianship is the legal authority of an individual or entity to make decisions for an adult who cannot decide for themselves. This arrangement applies to individuals who cannot make decisions in particular areas. The person may have an acquired brain injury from an accident or live with a mental illness or intellectual disability.

Legal guardianship grants the authority to make decisions related to an adult’s personal, health, and legal matters. For example, the guardian may interact with the National Disability Insurance Scheme. These decisions will determine appropriate services. The guardian is entrusted with acting in the individual’s best interests. They ensure their well-being and protect their rights.

A guardian must be over 18 and not a paid carer. This may be a family member or anyone genuinely interested in the person’s welfare. If there are no suitable candidates, a public guardian may be appointed.

What is a legal guardian (1)

What departments and laws oversee legal guardianship?

In Australia, legal guardianship is primarily governed by state and territory legislation. Each state and territory has laws providing a framework for legal guardianship.

In Queensland, the Guardianship and Administration Act 2000 regulates guardianship matters. The Queensland Civil and Administrative Tribunal (QCAT) has jurisdiction over guardianship applications.

The Office of the Public Guardian is an independent body. It acts as a public advocate for Adults needing assistance managing their affairs.

What is ‘capacity’?

According to the Guardianship and Administration Act, capacity is defined as:

  1. Understanding the nature and effect of decisions about the matter; and
  2. Freely and voluntarily making decisions about the matter; and
  3. Communicating the decisions in some way.

How is capacity determined?

Every Adult is presumed to have capacity until proven otherwise. Circumstances like advanced age, mental illness or disability don’t change this presumption. The onus is on the person concerned for the Adult to prove a lack of capacity.

Capacity assessment

Capacity depends on the decision being made. An adult may have the capacity to make one decision but not another. Capacity can also change over time and can be affected by many circumstances. These include illness or variable access to support.

Provide the Adult with the necessary information and support. An adult’s capacity cannot be determined unless they have the information and support needed to make the decision. If you don’t take all practicable to provide this, they won’t be assessed to lack capacity.

Assess capacity, not their decision. The focus should stay on the Adult’s decision-making ability rather than their decision. An adult has a right to self-determination. This means being free to take risks or make ‘bad’ decisions.

Respect their dignity and privacy. Assessments should respect the Adult’s dignity and privacy. It should be clear to the Adult that their capacity is being assessed for a particular decision. You should only access personal information that’s directly relevant to the assessment. Information should only be accessed with the Adult’s permission. They must also consent to having their information shared with a third party.

Father and son playing something on a laptop

What are a guardian’s responsibilities?

A guardian is responsible for decisions affecting their ward’s personal matters. These include the following:

Personal matters

Living Arrangements. Deciding where the ward will live. This could range from staying in their home with support services to moving into a residential care facility. This depends on the ward’s needs.

Social Activities. Making decisions about the ward’s social interactions and recreational activities. These decisions should encourage a fulfilling social life.

Consent for Services. Providing consent for services that require approval. This may include certain types of therapeutic treatments or interventions.

Legal Matters. Making decisions in legal matters or proceedings that involve non-financial issues. This may include family law matters or other legal proceedings affecting the ward.

Healthcare

Medical Treatment Decisions. Deciding on the initiation, continuation, modification, or cessation of medical treatments. This includes making decisions about medications, physical therapy, and other medical interventions.

Mental Health Care. Making decisions regarding psychiatric treatment, counselling services, and other mental health interventions. This may involve consenting to psychological evaluations, therapy sessions, and psychiatric medications.

Choosing Healthcare Providers. Selecting doctors, specialists, hospitals, and other providers for the ward’s medical care.

Consent for Emergency Treatments. Providing consent for emergency medical treatments when the ward cannot do so.

What can a guardian not make decisions about?

Some areas are beyond a guardian’s responsibilities. Guardians cannot make ‘special healthcare decisions’. This includes decisions about sterilisation procedures, termination of pregnancy or tissue donation. Guardians also may not make decisions about ‘special personal matters’. These include making or revoking a will, consenting to marriage or relinquishing a child for adoption.

Guardians also can’t make decisions about finances or property. An appointed administrator makes these decisions. One person may fill the role of guardian and administrator.

What are guardianship responsibilities (1)

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How is a guardian appointed?

Is guardianship necessary?

Before QCAT considers an application for guardianship, it must be convinced that the current arrangements for decision-making are untenable. You must prove that there is a specific requirement for appointing a guardian, as stipulated in the Family Law Act.

An individual may have impaired decision-making capacity but not necessarily need a guardian. Certain decisions can be made with limited capacity, but circumstances must necessitate a guardian.

Speak to the Adult

QCAT will give a copy of the application to ‘the Adult’ intended to receive guardianship. This is a crucial step. The Tribunal will want to know the wishes and preferences of the Adult to the extent possible.

It is critical that the Adult is aware of the application and has the opportunity to express their views.

Check for an existing power of attorney or health directive

Determine whether the Adult has an enduring power of attorney or an advance health directive. If they do, you must include the legal document with the application and provide the attorney’s contact details.

Mother with child looking on smartphone

Who will be the guardian?

If you are not the guardian appointed, talk to the potential nominee about the application. Ensure they are willing and able to take on the responsibilities of guardianship. The prospective legal guardians must also be able to attend a hearing. Ultimately, the Tribunal will decide who is the most suitable candidate.

Submit these forms

Form 10: Application for administration/ guardianship appointment or review

This form requests that the Tribunal appoint a guardian. The guardian will be a substitute decision-maker for someone unable to make their own decisions.

Health professional report

A healthcare professional completes this form. They provide an expert opinion on the Adult’s decision-making capacity.

Financial management plan for administrators

A prospective administrator must determine the Adult’s current assets and liabilities. They must then explain how the Adult’s finances will be managed in their best interests.

Lodge the application with the Administrative Tribunal

You can submit the application in one of several ways:

  • Email to enquiries@qcat.qld.gov.au;
  • Submit in person at any Magistrates Court;
  • Mail to Queensland Civil and Administrative Tribunal, GPO Box 1639, Brisbane Qld 4001

Work with us

Guardianship is a serious matter. Handling the medical, legal or financial affairs of someone lacking capacity is a big responsibility. Our lawyers can help you understand the process and ensure the best outcome for everyone. 

If you need help with family law matters, contact us for a free discovery call.

The above information is intended to be general advice only and is not a substitute for personalised advice. It does not consider your individual circumstances. It is not intended to be relied upon, and any loss or damage arising from any such reliance is disclaimed. Any financial or legal decisions should only occur after you have received tailored advice from a legal or financial professional.

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Luke Shanahan Family Law

Luke Shanahan

Principal

Luke Shanahan is the Principal Solicitor of Shanahan Family Law. Luke has been practising family law since 2008 and started his firm in 2014. He has three beautiful daughters and a supportive, gorgeous wife. In his spare time, Luke enjoys playing tennis and trips to the beach with family and friends. 

Luke is dedicated to providing the best possible legal representation for his clients. His experience and passion for family law set him apart from other solicitors. You only have to read their 5-star reviews to understand that.

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