On this page, you will find information about guardianship. This area of the law can be complex. This information is general in nature, it does not contemplate all scenarios, it does not consider your personal circumstances and it should not be taken as legal advice. Speak to one of our lawyers today on 1800 572 417 for legal advice.
Guardianship or administration is a legal right available to a person who is no longer able to direct their own affairs usually because of injury, illness, disease, disability, old age, infirmity or because the person has gone missing and cannot be located.
Guardianship or administration appoints a person or organisation as the guardian or administrator of a person (called the represented person). The appointed guardian or administrator will then have legal authority to administer and control the affairs of the represented person. A key requirement of guardianship is that the guardian act in the represented person’s best interests. A guardian or administrator who does not act in the best interest of a represented person may be personally liable for any loss or injury to the represented person.
When Is Guardianship Available?
An application for guardianship or administration is usually available when a person is no longer able to attend to their own affairs due to mental disability or because the person has gone missing.
In the case where a person needs help because of physical disability or age in most cases an enduring power of attorney is appropriate rather than guardianship.
An enduring power of attorney will allow that person to choose an attorney (usually a trusted family member) to help them with their financial and\or medical decisions when that person loses capacity to make decisions for themselves.
Guardianship is appropriate where:
A person has not appointed an attorney under an enduring power of attorney and they lose their capacity to make decisions.
A person loses their capacity to make decisions and the previously appointed attorney under an enduring power of attorney is unsuitable to continue in the position of attorney.
A court or tribunal when considering guardianship may look at a wide range of factors to decide whether guardianship or administration is necessary or not. This decision is not taken lightly and it will only be made if necessary. Some of the factors that will be considered is the wishes of the represented person (the person the guardianship application is being made for), the wishes of the nearest relatives and family members and how guardianship and administration can occur while preserving existing family relationships.
Duties of a Guardian
A guardian has the duties to:
Protect the represented person from neglect, abuse or exploitation
To consult with the represented person as far as their decision-making capacity will allow
To act as an advocate for the represented person
Helping the represented person to participate as much as possible in the life of their community
There may be other duties imposed on the guardian.
Powers Available Under Guardianship
The types of powers available to the guardian will usually depend on the capacity of the represented person to make their own decisions. In some cases, the powers may be limited and in other cases the power may be very wide.
A guardian’s powers to make medical decisions may be granted or varied by the Guardianship Board or another authority. A guardian may be granted medical powers or have medical powers to make medical decisions for the represented person including powers to make decisions about what doctor to see, what treatment to undertake and consideration of any side effects of the presented person. Under some circumstances, a guardian may have to apply to the guardianship board or another authority for certain types of medical treatment.
Who is Eligible for Guardianship?
For a person to be eligible to be a guardian they must be at least 18 years of age and be able to satisfy the guardianship board that they will act in the best interests of a represented person. The guardian cannot be in a position where they have a conflict of interest with acting in the best interests of the represented person.
Need Help with Guardianship?
We can help you with guardianship matters including:
Applying for guardianship;
Advice about guardianship duties;
Seeking that a guardian be removed or reviewed; and
Legal advice about guardianship matters.
In a legal crunch?
Speak to a lawyer today on 1800 572 417
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