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.
- A legal guardian has the authority to manage particular affairs for a person with a decision-making disability.
- Guardians must be over 18 and not paid carers.
- Legal guardianship is governed by the Guardianship and Administration Act 2000.
- The Queensland Civil and Administrative Tribunal (QCAT) handles applications.
- QCAT must be convinced that a guardian is necessary.
- The adult should be consulted about the application if possible.
- You must determine if an enduring power of attorney or health directive is in place.
- Determine who will be the guardian.
- Fill out the relevant forms and submit them to the Tribunal.
What is a legal guardian?
In Australian law, legal guardianship refers to the legal authority and responsibility granted to an individual or entity to make decisions on behalf of another person 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 the personal, health, and financial matters of the person under their care. For example, the guardian may interact with the National Disability Insurance Scheme and decide on appropriate services. The guardian is entrusted with acting in the individual’s best interests, ensuring their well-being and protecting 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 departments and laws oversee legal guardianship?
In Australia, legal guardianship is primarily governed by state and territory legislation. Each state and territory has its own laws that outline the processes, rights, and responsibilities associated with 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 that acts as a public advocate for Adults needing assistance managing their affairs.
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.
Even if an individual has an impaired decision-making capacity, that doesn’t necessarily make a guardian essential. Certain decisions can be made with limited capacity. There must be circumstances that necessitate a guardian.
Speak to the adult
QCAT will provide a copy of the application to the person the law calls ‘the Adult’ intended to receive guardianship. This is a crucial step because the Tribunal will want to understand 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.
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 as a substitute decision-maker for someone unable to make their own decisions.
Health professional report
A healthcare professional completes this form to provide an expert opinion on the Adult’s decision-making capacity.
Financial management plan for administrators
A prospective administrator must 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 firstname.lastname@example.org;
- 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 unable to make personal decisions comes with significant responsibilities. Shanahan Family Law can help you understand the process and ensure the best outcome for everyone involved. Contact us today for an initial free discovery call.
The above information is intended to be general advice only and is not a substitute for personalised advice. Because 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.