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O'Neill, Nick; Peisah, Carmelle --- "Chapter 6 - Guardianship" [2011] SydUPLawBk 8; in O'Neill, Nick; Peisah, Carmelle (eds), "Capacity and the Law" (Sydney University Press, 2011)



Chapter 6 – Guardianship

6. 1. Introduction

The development of modern system of guardianship for adults with decision-making disabilities in Australia is discussed in Chapter 5. This development has resulted in the guardianship systems in the different States and Territories of Australia being essentially the same. However, there are sufficient differences between them for it to be necessary to deal with each State and Territory system separately.

This chapter sets out which bodies have jurisdiction to make guardianship orders in each State and Territory. It also sets out how guardianship applications are made, by whom, who may be involved in the hearing process and what the criteria are for making guardianship orders. The chapter deals with the processes for reviewing such orders and the criteria that have to be met before they may be renewed.

Because of their essential similarity, there are a number of issues common to each of the eight guardianship systems in the country. Where possible, these issues are drawn out and discussed later in the chapter.

Finally, the chapter discusses the role of the health care professional in the making of such orders.

6. 2. The jurisdiction to appoint guardians generally

One of the key aims of the modern guardianship systems in Australia has been to make the seeking and obtaining of guardianship orders much cheaper and more accessible than it used to be for those who need to get the orders. As a result, in the States and the Australian Capital Territory applications for guardianship orders are made to tribunals. In the Northern Territory, as will be seen below, the guardianship system is in the effective control of the magistrates. Nevertheless, the Supreme Courts of the States and Territories retain their parens patriae jurisdiction. However, in relation to the guardianship of adults, this jurisdiction can be the subject to statutory limitation and may be the subject of implied legislative removal in Victoria, South Australia and Tasmania. This is possible but less likely in the case of the Supreme Court of the Northern Territory. In Victoria and Tasmania the guardianship of adults jurisdiction of the Supreme Court is subject to at least the limitation expressed by Morris J of the Supreme Court of Victoria as follows:

Although the parens patriae jurisdiction of the Court is of considerable historical interest, I doubt if it should play any current role in the day to day administration of guardianship matters. Victoria has comprehensive laws in relation to guardianship and administration matters. These laws have established the statutory office of Public Advocate, with roles and responsibilities somewhat akin to those which might once have been adopted by the Court. A wide jurisdiction is also vested in the Victorian Civil and Administrative Tribunal to resolve disputes concerning guardianship matters and to consider applications where there is some perceived threat to the integrity of the guardianship system.[1]

6. 3. New South Wales

6. 3. 1. Who has jurisdiction to appoint guardians?

One of its main functions of the Guardianship Tribunal of New South Wales is to hear and determine applications for guardianship orders.[2] Nevertheless the jurisdiction of the Supreme Court of New South Wales “with respect to the guardianship of persons” is not limited by the jurisdiction given to the Guardianship Tribunal.[3] While the Supreme Court remains able to make guardianship orders, which it almost never does, if it makes such an order and the Tribunal makes a subsequent guardianship order, the Court’s order ceases to have effect.[4] However, if the Tribunal makes a guardianship order and the Supreme Court makes a guardianship order subsequently, the Tribunal’s order ceases to have effect.[5]

In reality the Tribunal makes the guardianship orders in New South Wales. In 2007 Gzell J said that the Guardianship Tribunal had been set up as an expert tribunal to deal with matters of this kind.[6]

The Tribunal’s jurisdiction to make guardianship orders applies to those who are 16 years and above.[7] An application cannot be made in relation to anyone who is under the age of 16 years.[8] The application must specify the grounds upon which it is claimed that the person the subject of the application is in need of a guardian.[9]

Sometimes the person the subject of an application will have a mental illness. Even if they have become a “patient” within the meaning of the Mental Health Act 2007 (NSW), the Tribunal can still make a guardianship order in relation to them. Also, the fact that a person under guardianship becomes such a “patient” does not operate to suspend or revoke the guardianship order. However, any guardianship order made by the Tribunal in relation to a person who is, or becomes, a patient under the Mental Health Act 2007 (NSW) is effective only to the extent that the terms of the order are consistent with any determination or order made under the Mental Health Act 2007 (NSW) in relation to that person.[10]

6. 3. 2. The reach of the Guardianship Tribunal’s jurisdiction to make guardianship orders

The Tribunal makes guardianship orders in relation to adults who are present in New South Wales when the order is made, even if they are they are visitors from interstate or overseas. On rare occasions it had made guardianship orders in relation to residents of New South Wales who have been taken out of the State without their informed consent. Young J has suggested that the Tribunal’s jurisdiction may be limited to adults present in New South Wales because it has no power to order service of its applications outside New South Wales.[11] Young J did not decide the matter, nor did he consider the Service and Execution of Process Act 1992 (Cth) which provides a mechanism by which the Tribunal’s processes, in relation to at least some aspects of financial management, but probably not guardianship, may be served outside New South Wales.[12] The Appeals Panel of the Administrative Decisions Tribunal of New South Wales has noted that a State statute is presumed not to have extra-territorial operation but that if the person the hearing is about is served with the application while they are physically present in and a resident of New South Wales, the Tribunal does not offend the principle against extra-territorial operation by hearing the application.[13]

In a 2007 decision, the Guardianship Tribunal held that it had no jurisdiction to deal with an application for a guardianship order in relation to a person who was living in South Australia and the subject of a guardianship order there. The Tribunal had made a guardianship order in relation to the man while he was living in New South Wales, but his guardians moved him to South Australia. The Guardianship Tribunal’s decision was appealed to the Appeals Panel of the Administrative Decisions Tribunal which set aside the order and sent the application back for rehearing by the Guardianship Tribunal. That application was allowed to be withdrawn after the South Australian guardianship order was made, but another person made an application in relation to the man. The New South Wales Guardianship Tribunal took the view that it was precluded from dealing with the new application because of the presumption against the operation of legislation outside of the State for which it was enacted.[14]

While that decision may be correct given the facts of the case, the Western Australian Guardianship and Administration Board held in 2004 that where it had made the initial orders when the person was in Western Australia, it could make new guardianship orders in relation to a person outside Western Australia if they were still domiciled in Western Australia. The Western Australian Board, led by its President, Barker J, noted that while the Guardianship and Administration Act 1990 (WA):

[D]oes not define the basis of jurisdiction or power in terms of the jurisdiction or power of a superior court such as the Supreme Court to exercise a prerogative or inherent jurisdiction in respect of vulnerable people, we think it is reasonable to accept the proposition that the common law rules governing the power of a superior court to exercise jurisdiction in like matters help to define the proper extent of the jurisdiction or powers of a Board such as ours under the Act, subject of course to the terms of the Act and the domicile Acts, and any other relevant legislation, State or Commonwealth.[15]

The Western Australian Board also noted that while courts in common law jurisdictions were unlikely to assert jurisdiction if the person was not present or did not have property in the jurisdiction, it did not necessarily follow that a court (or tribunal) “would lack jurisdiction to deal with guardianship of a person not in the jurisdiction if a sufficient nexus to the local forum (the tribunal or court empowered to deal with the matter), such as domicile, is established”.[16] Making a guardianship order for an incapable person who has been “grannynapped” can be useful in assisting their safe return to, and resettlement in, New South Wales.

6. 3. 3. Who may apply for a guardianship order?

A person may make an application in relation to themselves.[17] The Public Guardian may make an application but has a practice of making applications only as a last resort when no one else will or can make an application that should be made in relation to a particular person.[18] Any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of a person may make an application in relation to that person.[19] In reality most applications are made by family members or by those who have a professional relationship with the person such as their general practitioner, the manager of the aged care facility in which the person lives or a member of an Aged Care Assessment Team which has been asked to assess the person.

The Tribunal does not use the requirement that it must be satisfied that the applicant has a genuine concern for the welfare of the person they are making an application about to strike out applications, unless the application is made by a “mere busybody” who has no prior involvement with the person and is causing trouble by making such an application.[20]

The Tribunal has also refused to determine the application concerning his mother of an estranged son after it found that he did not have a genuine concern for her welfare. The Tribunal held that a genuine concern for welfare required that the applicant was:

1. bringing to attention a fact situation in relation to the person the application was about which may call for intervention by the Tribunal to protect or promote the welfare or interests of that person,

2. sincere in seeing the situation as one that may call for the intervention of the Tribunal in the interests of the person, and also that;

3. the application was motivated by a desire to advance the welfare of the person.[21]

6. 3. 4. Who may take part in the hearing as a party?

Those who may take part in the hearing of an application for a guardianship order as a party are:

1. the applicant,

2. the person the application is about (the person),

3. the spouse, if any, of the person, if the relationship between the person and the spouse is close and continuing,

4. another person, if any, who has care of the person,[22]

5. the Public Guardian,[23]

6. any person whom the Tribunal joins as a party.[24]

Parties are entitled to receive a copy of the application which also gives notice of the time, date and place of the hearing.[25] They may attend the hearing and give relevant evidence; however it is not necessary to be a party in order to attend the hearing and to give evidence. Parties will receive a copy of the Tribunal’s order and reasons for decision and have a right of appeal against the Tribunal’s decision.[26]

6. 3. 5. What has to be proved before an order can be made?

Before the Tribunal may make a guardianship order, it must be satisfied that the person the application is about is “a person in need of a guardian”.[27] Before the Tribunal may find that a person is a person in need of a guardian, the Tribunal must be satisfied, by the evidence available to it at the hearing, that the person is a person who has a disability, namely a person who is:

1. intellectually, physically, psychologically or sensorily disabled, or

2. of advanced age, or

3. a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 2007 (NSW), or

4. otherwise disabled, and

who, by virtue of that fact, is restricted in one or more major life activities to such an extent that they require supervision or social habilitation.[28] Furthermore, the person must, as a result of their disability, be either totally or partially incapable of managing their person.[29]

The way incapacity is assessed is set out at 6.12 below.

If the evidence satisfies the Tribunal that the person the application is about is “a person in need of a guardian” then the Tribunal must have regard to:

1. the views if any of the person, their spouse[30], and the person, if any, who has care of the person[31];

2. the importance of preserving the person’s existing family relationships;

3. the importance of preserving the person’s particular cultural and linguistic environment, and

4. the practicability of services being provided to the person without the need for the making of such an order.[32]

Consequently, particularly because of the policy of the Act found in the general principles, but also because of the drafting of the relevant provisions, it is possible for the Tribunal to find that a person is “a person in need of a guardian” and yet not make a guardianship order in relation to them.

It is the view of the Appeal Panel of the Administrative Decisions Tribunal that the Guardianship Tribunal must consider all four of these criteria on all occasions, whether on an initial application or on review, when it is satisfied that the person the hearing is about is “a person in need of a guardian”, before it exercises its discretion whether or not to make or renew a guardianship order in relation to that person. In 2004 in relation to a review of a guardianship order and in 2006 in relation to an initial application, the Appeal Panel of the Administrative Decisions Tribunal said:

The Guardianship Tribunal must consider all of the matters set out in s 14(2) before exercising its discretion. The use of the words "shall have regard to" in s 14(2) is a clear indication of the legislative intent that the Guardianship Tribunal is obliged to consider all of the matters set out in that sub-section before exercising its discretionary power. Those matters have no hierarchy or weighting. Each is a mandatory consideration. The Guardianship Tribunal must determine in every case whether one or more of those considerations will be given greater weight than others. Whilst each is a mandatory consideration, in some cases there may be no evidence of one or more of them. In such circumstances it may be prudent for the Guardianship Tribunal to record that fact.[33]

This view of the section as requiring matters that are manifestly not relevant in a particular case having to be referred to is out of step with the views of courts when reviewing the decisions of tribunals or courts they have jurisdiction to hear and determine appeals from. The view that section 14(2) of the Guardianship Act 1987 (NSW) is mandatory in nature was arrived at without argument on the question and without considering some of the other relevant provisions of the Act and without an apparent appreciation of the policy of least restrictive alternative that underlies the Act and is manifest in the general principles set out in section 4 of the Act.

A major reason why section 14(2) is not mandatory is that on many occasions the matters the Guardianship Tribunal is to have regard to under it do not exist. First, in many cases the person the hearing is about is unable to express views, a matter the section anticipates. Second, there are also many cases in which the person has no spouse or carer qualified in the terms of the Act and no family relationships. Also there are many cases in which the question of cultural and linguistic environment is irrelevant. In a significant number of cases, the only live issue under section 14(2) is the practicability of services being provided to the person the hearing is about without the need to make a guardianship order. Parliament would not have intended the Guardianship Tribunal to waste time on irrelevancies and the wording of the Act does not require such activity.[34]

The Guardianship Tribunal is often confronted with cases in which none of the matters in section 14(2) are relevant. Some examples are where a person who is incapable of expressing views, who has no spouse, carer, or family needs a guardianship order to protect them from the depredations of others or where a person in such a situation needs a guardian as a substitute decision-maker for on-going medical treatment. Sometimes, on review, it is apparent that the original need for the guardianship order has gone away and no other need for an order has arisen. Occasionally at the hearing of such a review a spouse or carer or the person the hearing is about will ask for the no longer needed order to be continued. The Guardianship Tribunal’s time is better spent explaining this at the hearing when those involved are present and referring to it only briefly in the written reasons for decision.

Another important reason why section 14(2) is not mandatory is that if it were, it would then be in conflict with section 4 of the Act. Section 4 provides that it is the duty of everyone exercising functions under this Act with respect to those who have disabilities to observe certain principles. The first principle is that the welfare and interests of those with disabilities should be given paramount consideration. The second is that their freedom of decision and freedom of action should be restricted as little as possible. Another principle is that those with disabilities should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs. As just noted, the Guardianship Tribunal is under a duty to observe those principles. Those principles can be in conflict with the need to give more than cursory consideration to the provisions of section 14(2) of the Act.

Another matter that the Appeal Panel of the Administrative Decisions Tribunal does not appear to appreciate but something that is a recurring issue for the Tribunal is how to reconcile its duty it has under section 4 of the Act to recognise the importance of preserving family relationships, and therefore to take appropriate action to do so, and recording how it had regard to the importance of preserving family relationships under section 14(2). In family conflict cases, and particularly when one or more family members are abusing, exploiting or neglecting or otherwise mistreating the person the hearing is about it is a somewhat paradoxical fact that in order to leave open the possibility of relations between the person the hearing is about and their family being repaired or renewed, it is regularly necessary for the Tribunal to be circumspect about what it says about the family relationships in its reasons for decision. Stating the Tribunal’s views in clear terms in the written reasons for decision, when it is having regard to the matters it must consider under section 14(2), can put seriously at risk the possibility of the person the hearing is about having a worthwhile relationship with their family. The bigger question of what are the person’s long term needs in this regard must be contrasted with the need to show sufficient information in the Tribunal’s reasons for decision to indicate that regard has been to the relevant provisions of section 14(2). This question must be resolved by ensuring that the Tribunal’s reasons for decision are written so as not to sabotage the possibility of reconciliation.

It is beyond argument that the Guardianship Tribunal must conduct its hearings in a manner that is procedurally fair and that it makes an error of law if it fails to take into account matters that are relevant. In Ms A v Public Guardian, the Appeal Panel of the Administrative Decisions Tribunal considered that three of the criteria in section 14(2) were relevant considerations in that case and that the Guardianship Tribunal had failed to take proper account of two of them amounted to an error of law.[35] The Appeal Panel of the Administrative Decisions Tribunal could have come to that conclusion without taking the view that having regard to all the matters in section 14(2) in every case, whether live issues or not, was mandatory.

While the Guardianship Tribunal must put its mind to at least those of the section 14(2) criteria that are relevant to the particular initial application for guardianship when deciding whether or not to make a guardianship order, it is wise for it to apply the same approach when conducting a review of a guardianship order and deciding whether or not to renew it by making a new order even though, despite the views of the Appeal Panel of the Administrative Decisions Tribunal, there is no obligation to be found in the Guardianship Act 1987 (NSW) for it to do so. As already noted, other factors may require it when carrying out its duty to apply the principles in section 4 of that Act not to renew a guardianship order in relation to a person who qualifies as “a person in need of a guardian” regardless of the views that the Appeal Panel of the Administrative Decisions Tribunal says the Guardianship Tribunal must have regard to under section 14(2).

In determining whether or not to make or review a guardianship order, it will often be very important to consider the views the service-providers who are involved in the person’s life. They will often provide information and insights that will be essential for the Guardianship Tribunal’s understanding of the case to have regard to. In some cases it may be possible to argue that failure to take into account such relevant considerations could amount to an error of law. It is important however that decision-making on appeal does not require the Guardianship Tribunal to have to write over-elaborate reasons for decision in order to appeal-proof its decisions.

When the Guardianship Tribunal is deciding to make a guardianship order, it also has in mind who should be guardian and what functions it should give to the guardian. These matters are dealt with below.

6. 3. 6. Appointing a guardian

While the Tribunal can appoint either a private person or the Public Guardian as a person’s guardian, the Guardianship Act 1987 (NSW) states that a guardianship order appointing the Public Guardian as guardian shall not be made in circumstances in which a guardianship order can be made appointing a person other than the Public Guardian as guardian.[36] The Tribunal regularly appoints family members and others with appropriate claims, who meet the statutory criteria for appointment, as guardians.[37]

Nevertheless, the Public Guardian is the guardian for the majority of those under guardianship in New South Wales.[38] This is because a major factor in whether a person is a “person in need of a guardian” is whether or not they have family members or significant others to support them. Many people under guardianship have no one else in their lives other than their service providers and their guardian. Another reason is that one of the most significant causes of applications for guardianship orders is conflict within the family of the person the application is about relating to them. This conflict usually, but not always, creates circumstances that render it necessary to appoint the Public Guardian as an independent substitute decision-maker who is able to consult the different family members who are in conflict before making significant decisions about the person under guardianship.[39] In cases in which the family conflict relates to the person the hearing is about, the factual circumstances shown by the evidence are usually, but not always, such that the welfare and interests of that person will not be able to be promoted if a private person with some familial or other properly based claim for consideration is appointed as guardian. However under the general principles of the Act, the welfare and interests of that person are to be given paramount consideration and everyone exercising functions under the Act, including the Tribunal, is obliged to observe that requirement.[40] Faced with this situation, the Tribunal will have to appoint the Public Guardian, at least until an appropriate, suitable and willing private guardian becomes available. Also, the facts sometimes show circumstances in which such an appointment will preclude the person from living, as far as possible, a normal a life in the community or will run contrary to restricting their freedom of decision and action as little as possible. Occasionally to make such an appointment will leave the person the application is about in a position of abuse, exploitation or neglect rather than protecting them against such things. In addition some potential private guardians will not be able to meet the criteria for appointment as a guardian.

In order to be appointed as a private guardian, the person must be 18 years or older.[41] Also, the Tribunal is satisfied that:

1. the personality of the proposed guardian is generally compatible with that of the person under guardianship,

2. there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and

3. the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.[42]

Where it is a live issue at the hearing of an initial application or a review the Tribunal members must put their minds to who should be appointed guardian. The choice is between a private person, where the circumstances of the case do not preclude this, or the Public Guardian. The Tribunal members should observe the interaction between the personality of the person the hearing is about and the personality of any proposed private guardian who is present. Where it is possible to do so and relevant and necessary for their determination of the matter, the Tribunal should interview the person the hearing is about and obtain their views. If Tribunal members have concerns about the appointability of a person as guardian, they should put those concerns, and any other relevant concerns, to the prospective guardian and give them the opportunity to comment.

There will be occasions, either at the initial hearing or on review, where those attending the hearing, including prospective or existing guardians, agree that instead of a private person the Public Guardian should be appointed as guardian.[43]

There will always be some possibility of a conflict of interests between a prospective guardian and the person the hearing is about, but rarely will this conflict be sufficient to disqualify the prospective guardian.

Sometimes a prospective guardian will be willing but, not able to be guardian, and at other times they will be able to be guardian but not willing to be. The Public Guardian is not subject to this assessment. While the Tribunal’s reasons should show that it was satisfied as to theses matters, its reasons for decision do not have to go into great detail about this matter. Also where a family member seeking appointment as guardian is not appointed the Tribunal has to take care to explain sufficiently as to why that is the case and that the Tribunal’s reasons for decision are written so as not to sabotage the possibility of reconciliation.

6. 3. 7. Joint, several and alternative guardians

The Tribunal can appoint joint guardians. They have the same functions as each other and must make the decisions about the person under guardianship jointly. If a joint guardian dies, the surviving guardian continues as guardian until the guardianship order is reviewed.[44] The Public Guardian prefers not to be appointed as a joint guardian.

The Tribunal can appoint more than one guardian and give each guardian appointed separate functions which they exercise separately, but would be wise to consult with each other before doing so. These are called “several” guardians. Occasionally the Public Guardian is appointed guardian with one or more functions and a private guardian with one or more other functions.

Sometimes the Tribunal will appoint a single guardian and an alternative guardian. On rare occasions it will appoint “several” guardians and alternate guardians for each of them. The alternate guardians take on the functions of the guardian they are appointed alternate for if that guardian is absent or incapacitated or dies.[45]

Where the guardian dies and there is no surviving guardian or alternate guardian, the Public Guardian becomes the guardian until the guardianship order is reviewed.[46]

6. 3. 8. Types of guardianship orders

The kinds of guardianship orders the Guardianship Tribunal may make are as follows:

1. Continuing orders.

2. Non-reviewable orders.

3. Temporary orders.

6. 3. 8. 1. Continuing orders

Continuing orders, which continue in operation until the time for their review, are the most common form of order by far that the Tribunal makes. They may be limited or plenary.[47] Plenary orders are very rare. The Tribunal cannot make such an order “in circumstances in which a limited guardianship order would suffice”.[48] Almost all the continuing guardianship orders the Tribunal makes are limited, and limited to a relatively few functions. Such orders must specify the extent to which the guardian has custody of the person under guardianship and as well as the guardianship functions they have in relation to them.[49] They may also contain conditions.[50]

The Tribunal may make an initial continuing order for up to one year. While many initial orders are for that period, many are for shorter periods. However, if the Tribunal is satisfied that the person the subject of the order has permanent disabilities and is unlikely to become capable of managing their person, and there is a need for an order longer than one year, the Tribunal can make an order for up to three years.[51]

If the Tribunal makes a plenary order, then the guardian has custody of the person under guardianship to the exclusion of any other person and all the functions that a guardian has in law and equity.[52] A plenary order may contain conditions.[53]

6. 3. 8. 2. Non-reviewable orders

Non-renewable orders may be either limited or plenary. They differ from continuing orders only in that they state that they will not be reviewed. The Tribunal may not make such a statement in a guardianship order unless the order relates solely to the taking of one or more specific decisions or actions on behalf of the person the under guardianship, and the Tribunal is satisfied that there is no need for the order to continue after the decisions or actions concerned have been taken.[54]

Even though non-renewable orders state that they will not be reviewed, they are always checked by the staff of the Tribunal to see if, because of changed circumstances or some other reason, they do need to be reviewed. As a result of this check, some “non-reviewable” orders are reviewed, but most are not.

6. 3. 8. 3. Temporary orders

Temporary orders are also rare. They may be made for up to a maximum of 30 days. Such orders may be renewed on review, but only once, and again for up to 30 days.[55] Only the Public Guardian may be appointed guardian under a temporary order. [56]

6. 3. 9. Removal orders

Another rarely used provision in the Act is the one which empowers the Tribunal to make removal orders.[57] First an application for a guardianship order has to have been made to the Tribunal. The Tribunal then may, if it considers it to be appropriate in the circumstances of the case to do so, make an order for the removal of the person from any premises. Such an order provides the authority to an “authorised officer” or a member of the police force, using all reasonable force, to enter and search the premises for the person the subject of the order and to remove them from the premises.[58]

If the authorised officer or member of the police force removes the person from any premises under the authority of an order made by the Guardianship Tribunal, they are required, forthwith, to place the person in the care of the Director-General at a place approved by the Minister.[59]

One of the earliest applications heard by the then Guardianship Board was an application to remove a woman with an intellectual disability from a house in which she lived with her mother and brother in a country town. The evidence showed that she was seriously neglected and under fed. She was locked in her room over night despite her incontinence and had insufficient bedding. Her mother refused offers of help despite her own declining health. The woman’s brother was unable to look after her if their mother was away. The Board applied the general principles of the Act and made the removal order pending the hearing of the guardianship application in relation to the woman.[60]

There is an even less often used provision which empowers “an officer” or a member of the police force to apply for a search warrant to remove a person who may be in need of a guardian from premises and be placed in the care of the Director-General at a place approved by the Minister.[61] The Guardianship Tribunal is not involved in this form of removal process.

6. 3. 10. The powers and functions of a guardian appointed in New South Wales

These matters are dealt with in Chapter 7.

6. 3. 11. Reviews of guardianship orders

All continuing guardianship orders are reviewed by the Tribunal towards the end of the period they are made for. As long as the review process has been commenced before the expiration of the period the order was made for, by sending a notice advising of the time date and place of the hearing of the review, the review process can proceed, and the guardianship order remains in effect until the review is completed, even if the period the order was made for has expired.[62]

In addition to this “automatic” review of guardianship orders, any person may request a review. However, it must be appreciated that reviews cannot be requested in circumstances in which the proper course is for a party to a hearing in which a guardianship order was made by the Tribunal to appeal against that decision.

The Tribunal can refuse a request to review a guardianship order if it is of the opinion that the request does not disclose grounds that warrant a review.[63] Consequently, a person with a proper reason for doing so, rather than a “busybody” can request a review if:

1. the order is not working for the person under guardianship,

2. circumstances have changed that affect the order,

3. there is new information that was not available at the time of the hearing at which the order was made,

4. there is no further need for a guardian, or

5. a review is needed because the guardian is unable to continue, or has become incapacitated or has died and there is no joint or alternative guardian.

The Tribunal may conduct a review of a guardianship order “of its own motion”, that is without having to wait until the “automatic” review of the order to become due or for someone to request a review. The Tribunal rarely does this because to do so can give rise to an argument that the Tribunal is biased; however if a review appears to be required, the Tribunal will conduct it in the exercise of its duty to give paramount consideration to the welfare and interests of those with disabilities to which the Guardianship Act 1987 (NSW) applies.[64]

6. 3. 11. 1. Parties to reviews of guardianship orders

The following are parties to reviews of guardianship orders:

1. (for a requested review) the person who requested the review,

2. the person the subject of the order being reviewed,

3. the spouse, if any, of that person, if the relationship between that person and their spouse is close and continuing,

4. the person who has care of the person the subject of the order[65],

5. the guardian appointed under the order,

6. any person whom the Tribunal has joined as a party[66].[67]

6. 3. 11. 2. Powers of the Tribunal on review

After conducting an “automatic” review of the guardianship order, the Tribunal may:

1. a renew, or renew and vary the order, or

2. determine that the order is to lapse and revoke the unexpired part of the order.[68]

After conducting a requested or “own motion” review of the guardianship order, the Tribunal may:

1. vary the order, or

2. suspend or revoke the order, or

3. confirm the order.[69]

When conducting an “automatic” review, the Tribunal considers whether or not the person the order is about still needs to be under guardianship. As the general principles of the Act require the Tribunal to take a “least restrictive alternative” approach and not continue a person under guardianship when there is no current need to do so or no foreseeable need to do so in the short-term future, then the Tribunal should not make a new guardianship order in relation to the person. If there is a need for on-going guardianship, then the Tribunal should make a new order, replacing the order under review.

When conducting such a review, the Tribunal does not have to go back and determine whether or not the person still qualifies as a person for whom a guardianship order can be made. That can be assumed unless there is new or newly available evidence indicating otherwise making the question of disability a live one for the review. Usually those with dementia become less capable over time while those with whole of life intellectual disabilities sometimes acquire new and relevant skills and capacities but usually remain the same. However, those with an episodic psychiatric condition or an acquired brain injury that is reducing in effect may no longer have a disability that makes them “a person in need of a guardian”.

Usually the “automatic” review of a guardianship order is confined to whether or not there is an on-going need for guardianship for the person the order is about and if so what functions the guardian needs to have in the interests the person under guardianship. Sometimes on review it is apparent that the original need for the guardianship order has gone away and no other need for an order has arisen. In that situation it is the duty of the Tribunal, under the general principles in the Act, not to renew the order even though the person’s spouse or carer or others at the hearing ask for it to be renewed.[70]

While a substantial proportion of orders are not renewed after a review the majority are renewed.[71] If it is not apparent that there is no current need for a guardianship order in relation to the person, it is wise for the Guardianship Tribunal puts its mind to at least those of the section 14(2) criteria that are relevant when conducting a review of a guardianship order, even though there is no obligation set out in the Act for it to do so, and to decide whether or not to continue guardianship by making a new order.[72]

Usually the issue of who should be guardian is resolved when the original guardianship order is made. However, in some cases it remains an issue of contention between the parties and sometimes, because of that, or for other reasons it is necessary to change the guardian at the review. If a new private guardian is to be appointed, the Tribunal must be satisfied that they meet the criteria set out in section 17(1) of the Act.

6. 4. Victoria

6. 4. 1. Who has jurisdiction to appoint guardians?

As already noted, Morris J has stated that because Victoria has comprehensive laws in relation to guardianship and administration matters, he doubted that the parens patriae jurisdiction of the Supreme Court of Victoria “should play any current role in the day to day administration of guardianship matters”.[73] Unlike the Supreme Court of New South Wales, the Supreme Court of Victoria may not retain its jurisdiction in relation to guardianship matters. The Guardianship and Administration Act 1986 (Vic) does not preserve its jurisdiction, but while Morris J has given an indication, the matter has not yet been authoritatively determined.[74] Nevertheless, Morris J’s view is strengthened by the fact that if the Supreme Court of Victoria, the County Court or the Magistrates’ Court considers that any party in any proceedings before it may need to have a guardian or an administrator or both appointed for them, the court may refer the issue to the Victorian Civil and Administrative Tribunal (VCAT) for its determination. Such a referral has effect as an application to VCAT; however it is for VCAT to decide whether or no to make the order.[75]

VCAT through its Guardianship List receives, hears and determines applications for guardianship orders.[76] Applications should be made to it.

6. 4. 2. Who may apply for a guardianship order?

Any person may apply to VCAT for an order appointing either a plenary or limited guardian for a person with a disability who is 18 years old or older or for such an order to take effect when the person reaches 18 years.[77]

6. 4. 3. Who may take part in a hearing as a party?

The following are automatic parties to an application:

1. the applicant who can be any person,

2. the person the application is about (the person), and

3. the proposed guardian.[78]

The following are entitled to notice of the application, the hearing and any order made as a result of the application. They become a party by taking part in the hearing:

1. the nearest relative available of the person who is not the applicant, the proposed guardian or the administrator of the person’s estate, [79]

2. the primary carer of the person,[80]

3. the Public Advocate,[81]

4. any person whom VCAT joins as a party,[82]

5. the administrator (if any) of the estate of the person.[83]

The parties entitled to notice of the making of an application for a guardianship order, notice of the hearing of the application and notice of any order made by VCAT in relation to the application.[84] VCAT must commence to hear the application within 30 days after receiving it.[85]

6. 4. 4. What has to be proved before an order can be made?

Before VCAT may make a guardianship order, it must be satisfied by the evidence that that the person is:

1. a person with a disability,[86]

2. unable, by reason of the disability, to make reasonable judgments about all or any of the matters relating to their person or circumstances, and

3. in need of a guardian.[87]

When deciding whether or not the person is in need of a guardian, VCAT must consider:

1. whether the needs of the person could be met by other means less restrictive of the person's freedom of decision and action than making a guardianship order in relation to them,

2. the wishes of the person the hearing is about,

3. the wishes of any nearest relatives or other family members of the proposed represented person (the person the hearing is about), and

4. the desirability of preserving the person’s existing family relationships.[88]

VCAT cannot make a guardianship order unless it is satisfied that the order would be in the best interests of the person the hearing is about.[89]

6. 4. 5. Appointing a guardian

Where VCAT is satisfied that it is in the best interests of the person the hearing is about to make a guardianship order in relation to them, it may appoint either a private person or the Public Advocate as the person’s guardian. However, VCAT may appoint the Public Advocate only if no private person meets the tests set out below.[90]

Before VCAT may appoint someone as the person’s private guardian it must be satisfied that the guardian is 18 years or older and consents to be the guardian and that the prospective guardian:

1. will act in the best interests of the person the hearing is about,

2. is not in a position where their interests conflict or may conflict with the interests of the person the hearing is about, and

3. is a suitable person to act as the guardian of the person the hearing is about.[91]

When deciding whether a person is suitable to be the guardian, VCAT must take into account:

1. the wishes of the person the hearing is about,

2. the desirability of preserving existing family relationships,

3. the compatibility of the prospective guardian with the person the hearing is about and with the administrator (if any) of their estate,

4. whether the prospective guardian will be available and accessible to the person the hearing is about so as to fulfil the requirements of guardianship of that person.[92]

If no other person fulfils these requirements for appointment as the person’s guardian VCAT may appoint the Public Advocate as the person’s guardian.[93] If VCAT does this, the Public Advocate has to use his or her best endeavours to find an appropriate person to be appointed (by VCAT) as the person’s guardian.[94]

6. 4. 6. Joint, several and alternative guardians

VCAT can appoint joint guardians, provided each of them meets the criteria for appointment as a guardian.[95] They have the same functions as each other and must make the decisions about the person under guardianship jointly and be in agreement about those decisions.

While there is no statutory authority to do so in the Guardianship and Administration Act 1986 (Vic), there does not seem any reason why VCAT should not be able to appoint one or more guardians for one or more functions and one or more other guardians for one or more other functions, namely “several” guardians.

VCAT may appoint alternative guardians. They become the person’s guardian in the event of the death, absence, or incapacity of the original guardian. However, they must advise VCAT of the death, absence, or incapacity of the original guardian and provide evidence it to VCAT.[96]

6. 4. 7. Types of guardianship orders

VCAT may make orders appointing plenary guardians or limited guardians.[97]

6. 4. 7. 1. Plenary orders

VCAT cannot make an order appointing a plenary guardian unless it is satisfied that a limited guardianship order would be insufficient to meet the needs of the person under guardianship.[98]

A plenary guardian has all the powers and duties that a plenary guardian would have if they were a parent and the represented person (the person under their guardianship) was their child.[99] The functions, powers and duties of guardians are discussed in detail in Chapter 7.

6. 4. 7. 2. Limited orders

Where VCAT makes an order appointing a limited guardian the order made must be that which is the least restrictive of that person's freedom of decision and action as is possible in the circumstances.[100]

A limited guardian has only those powers and duties of a plenary guardian that are specifically given to them by VCAT in the guardianship order appointing them.[101] The functions, powers and duties of guardians are discussed in detail in Chapter 7.

6. 4. 8. Temporary orders

While the provisions relating to applying for and the tests for the making of temporary orders are the same as for guardianship orders, they are seen as different from guardianship orders.[102] While VCAT can appoint both limited and plenary guardians under temporary orders, those orders may remain in effect for a maximum of 21 days and be renewed only once, again for a maximum of 21 days.[103] However, VCAT must hold a hearing within 42 days of making a temporary order to decide whether or not to make a guardianship order in relation to the person the subject of the temporary order.[104]

A significant number of temporary orders are made by VCAT each year. The Office of the Public Advocate website indicates that these orders are for emergency situations and can be made at very short notice. They allow VCAT to act swiftly to protect individuals who are at risk. VCAT can only make a temporary order when the person in question is at immediate risk and there are no less restrictive options for addressing the situation.[105]

6. 4. 9. The powers and functions of a guardian

These matters are dealt with in Chapter 7.

6. 4. 10. Requested rehearings

In Victoria the parties to a hearing of an application for a guardianship order made to VCAT may apply for a rehearing of the application if VCAT either makes an guardianship order or dismisses the application. They cannot apply for a rehearing if VCAT makes a temporary order or if the President of VCAT hears the application alone or with others.[106]

6. 4. 10. 1. Who may apply?

The Public Advocate, an automatic party or a person entitled to notice of the application who became a party by taking part in the hearing may apply to for a rehearing of the application.[107] A person entitled to notice of the application who did not become a party may apply for a rehearing, but only if VCAT gives them leave to do so.[108] The application for a rehearing, or for leave to apply for a rehearing, must be made within 28 days after the day of the order.[109]

6. 4. 10. 2. Parties to rehearings of applications for guardianship orders

Anyone who was a party to the hearing of an application for a guardianship order is a party to a rehearing of the application, in addition to any other parties such as the appointed guardian or administrator if they were not already a party to the original hearing. Anyone who was entitled to notice of the making of the application is entitled to notice of an application for a rehearing of the application.[110]

6. 4. 10. 3. Powers of VCAT at the rehearing

VCAT must rehear the matter but in doing so has all the functions and powers it had at the first hearing. After rehearing the application, VCAT may:

1. affirm the order made at the first hearing,

2. vary that order,

3. set aside that order and make another order instead.[111]

6. 4. 11. Reassessments of guardianship orders

In Victoria guardianship orders are not reviewed, they are reassessed. This must be done by VCAT within 12 months of the making of the order unless VCAT provides for a longer period within which the reassessment may take place. The maximum period within which the reassessment may take place is three years, unless VCAT orders otherwise.[112] However, VCAT may conduct a reassessment of a guardianship order at any time either on its own initiative or on the application of any person, including the represented person (the person under guardianship).[113] Guardians are encouraged to ask VCAT for an early reassessment if they think guardianship is no longer necessary.

6. 4. 11. 1. Parties to reassessments of guardianship orders

The Guardianship and Administration Act 1986 (Vic) appears to make a distinction between those who are parties to a reassessment and those who are entitled to notice of it. Both the person under guardianship and the guardian are automatic parties, as would be the applicant if that person was not either of them. As VCAT may join other people as parties, they too would become parties.[114]

As well as the parties, the following are entitled to notice of the making of an application for a reassessment, at least seven days notice of the hearing of the reassessment and notice of any order made by VCAT relating to the reassessment:

1. the nearest relative available of the person under guardianship,[115]

2. the primary carer (if any) of that person,[116]

3. the Public Advocate, and

4. any administrator of the estate of the person under guardianship.[117]

It is the practice of VCAT to conduct most reassessments on its own initiative, and while it can do so “on the papers” without conducting a hearing, its practice is to conduct hearings at which people may attend. This is particularly the case where VCAT does not propose to amend, vary or replace the order. There are particular notice and other provisions relating to these reassessments.[118]

In practical terms, the reassessment provisions of the Guardianship and Administration Act 1986 (Vic) are given effect to by VCAT providing a hearing within 12 months, but allowing the order to lapse unless the need to continue the order is advises to it. Reassessments are occasionally applied for in order to change the guardian or to have an order that is no longer needed revoked.

When a reassessment is taking place, guardians are required to prepare a written report and send it to VCAT. The Public Advocate has advised that this report should report should include:

1. any significant decisions the guardian has made;

2. any change in the represented person's capacity to make reasonable judgments;

3. the represented person’s current needs and arrangements;

4. future plans relevant to the represented person;

5. the guardian’s relationship with other significant people in the life of the represented person, including their family and professional service providers involved with them;

6. any difficulties or conflict the guardian has faced in carrying out their guardianship responsibilities;

7. facts relevant to whether guardianship should continue, end or be changed;

8. the guardian’s availability and willingness to continue as guardian; and

9. any other matters which the guardian considers VCAT should be aware of before it makes a decision on the reassessment.[119]

6. 4. 11. 2. Powers of VCAT on reassessment

Upon completing a reassessment VCAT may revoke the order or amend, vary, continue or replace it subject to any conditions or requirements it considers necessary.[120]

6. 5. Tasmania

6. 5. 1. Who has jurisdiction to appoint guardians?

The Guardianship and Administration Act 1995 (Tas) establishes the Guardianship and Administration Board of Tasmania to deal with applications for orders appointing full and limited guardians.[121] While that Act does not specifically deal with the parens patriae jurisdiction of the Supreme Court of Tasmania, it does provide that if any court in Tasmania, including the Supreme Court, considers that any party in any proceedings before it may need to have a guardian or an administrator or both appointed for them, the court may refer the issue to the Board for its determination. Such a referral has effect as an application to the Board.[122] Also, the Supreme Court is the body to deal with appeals against determinations of the Board.[123] These provisions together with the opinion expressed by Morris J of the Supreme Court of Victoria namely, that because Victoria has comprehensive laws in relation to guardianship and administration matters, which are similar to those of Tasmania, he doubted that the parens patriae jurisdiction of the Supreme Court of Victoria “should play any current role in the day to day administration of guardianship matters” indicate that the jurisdiction originally given to the separate Supreme Court of Van Diemen’s Land by the Third Charter of Justice of 1823, and renewed by Tasmania’s own Charter of Justice of 1831, in relation to the guardianship of adults may have been removed by necessary implications being drawn from those provisions of the Guardianship and Administration Act 1995 (Tas).[124]

Consequently, while the Supreme Court of Tasmania still operates under the Charter of Justice, the wise course is to make applications for orders appointing full and limited guardians to the Guardianship and Administration Board of Tasmania rather than to the Supreme Court.

6. 5. 2. Who may apply for a guardianship order?

Any person may apply to Guardianship and Administration Board for an order appointing either a plenary or limited guardian for a person with a disability who is 18 years old or older.[125] The application must be lodged with the registrar and contain the prescribed information and specify the grounds on which it is alleged that the proposed represented person (the person the application is about) needs a guardian.[126] Although the Guardianship and Administration Act 1995 (Tas) does not set any statutory qualifications for those who may apply for an order appointing a guardian the Guardianship and Administration Board’s website states that; “anyone who has a genuine concern for the welfare of a person with a decision-making disability can make an application to the Board.”[127] The website also notes that specific application forms are available on request to the Board's office. They are not available via the internet as many matters including guardianship and medical treatment issues can often be resolved without a formal application to the Board.[128] It is good practice always to contact the Board before making an application for an order as many situations involving a person with a decision-making disability can be resolved without the need to appoint a guardian for them.

6. 5. 3. Who may take part in a hearing as a party?

Unlike the New South Wales and Victorian legislation, the Guardianship and Administration Act 1995 (Tas) does not set out specifically who are the parties to an application for an order appointing a guardian for a person. However, the Act states specifically that the Board is bound by the rules of natural justice. Consequently, anyone with a genuine interest in the matter, the person the application is about in particular, should be told of the application and advised of the time date and place of the hearing and what the basic issues raised by the application are. In this regard it should be noted that the practice of the Board is to have its staff investigate the decision-making capacity of the person the application is about and why there might be a need for a guardian. How this is done is set out on the Board’s website and in particular involves the Board’s staff liaising with the applicant, the proposed represented person and all other interested parties including family members and any professional service-providers.[129]

6. 5. 4. What has to be proved before an order can be made?

Before the Board may make a guardianship order, it must be satisfied by the evidence of the same matters and tests that VCAT has to be satisfied about it can make a similar order.[130] Like VCAT, the Board must consider whether the needs of the person could be met by other means less restrictive of the person's freedom of decision and action than making a guardianship order in relation to them.

The Board cannot make a guardianship order unless it is satisfied that the order would be in the best interests of the person the hearing is about.[131]

While the Guardianship and Administration Act 1995 (Tas) does not specifically state that the Board must seek the views of the person the application is about, it would be a breach of the rules of natural justice for the Board not to give any person the subject of an application a reasonable opportunity to give their views to the Board if they were capable of expressing views. Also, the Act requires the Board to carry the wishes of the person with the disability into effect if possible.[132] In order to deal with these matters, the Board has adopted a practice of requiring the person the hearing is about to be at the hearing so that the Board may see them and hear their views. If it is not possible for the person to be at the hearing, an officer of the Board visits the person to seek and obtain their views wherever it is possible to do so.

Also, if the Board did not give relatives genuinely involved in the life of the person the application is about a reasonable opportunity to be heard, this could be a breach of the rules of natural justice. However, whether it was or not would depend on the facts of the particular case. Again, this matter is dealt with in practice by the investigating officer of the Board contacting such relatives and, if they are not able to attend the hearing, offer the possibility of their views being included in that officer’s report to the Board.

6. 5. 5. Appointing a guardian

Where Board is satisfied that it is in the best interests of the person the hearing is about to make a guardianship order in relation to them, it may appoint either a private person or the Public Guardian as the person’s guardian.[133] Unlike the New South Wales and Victorian legislation, the Guardianship and Administration Act 1995 (Tas) does not specifically impose any limitations on the Board’s discretion to appoint either a private guardian or the Public Guardian as the person’s guardian. However, as will be discussed below, the established policy of the common law in this field of law is to appoint a family member as guardian “if that were possible”.[134] Nevertheless, the Board is required by the principles of the Act to carry into effect the wishes of the person under guardianship if possible, but promote that person’s best interests – matters which can be in conflict.[135] When appointing a guardian, the Board must also take into account the desirability of preserving existing family relationships.[136] The experience of the guardianship jurisdiction though is that sometimes it is the actions or omissions of family members that create the need for the guardianship order. In that situation, the preservation of family relationships can be in conflict with promoting the best interests of the person under guardianship.

Before the Board may appoint someone as the person under guardianship’s private guardian it must be satisfied that the guardian is 18 years or older and consents to be the guardian, and that the prospective guardian will meet the same criteria that VCAT has to consider. The Board must also take into account the same matters VCAT must take into account when it is determining whether or not a person is suitable for appointment as a guardian.[137]

6. 5. 6. Joint, several and alternative guardians

Although there is no specific statutory authority to do so in the Guardianship and Administration Act 1995 (Tas), applying the usual rule of statutory interpretation, the Board may appoint joint guardians, provided each of them meets the criteria for appointment as a guardian.[138] Joint guardians would have the same functions as each other and would have to make the decisions about the person under guardianship jointly. However, it is not the practice of the Board to appoint joint guardians.

There is statutory authority for the Board to appoint two or more guardians each with different functions for the person under guardianship. Such appointments of “several” guardians can be made in one or more limited guardianship orders.[139]

The Board may appoint alternative private guardians. The Public Guardian cannot be appointed as an alternative guardian in Tasmania. During the absence or incapacity of the original guardian, the alternative guardian becomes the person’s guardian with the same functions as the original guardian.[140]

Since there is no provision for dealing with the death of the guardian, the guardianship order would cease to operate if the guardian died.

6. 5. 7. Types of guardianship orders

The Board may make orders appointing full (plenary) guardians or limited guardians.[141] These orders will lapse after three years unless they are continued after a review.[142] However, they may be reviewed at any time.[143]

6. 5. 7. 1. Full orders

The provisions in the Guardianship and Administration Act 1995 (Tas) are the same as in the Victorian legislation.[144] The Board cannot make an order appointing a plenary guardian unless it is satisfied that a limited guardianship order would be insufficient to meet the needs of the person under guardianship.[145] Also, a plenary guardian has all the powers and duties that a plenary guardian would have if they were a parent and the represented person (the person under their guardianship) was their child.[146] The functions, powers and duties of guardians are discussed in detail in Chapter 7.

6. 5. 7. 2. Limited orders

Again, the provisions in the Guardianship and Administration Act 1995 (Tas) are the same as in the Victorian legislation.[147] Where the Board makes an order appointing a limited guardian the order made must be that which is the least restrictive of that person's freedom of decision and action as is possible in the circumstances.[148]

A limited guardian has only those powers and duties of a plenary guardian that are specifically given to them by the Board in the guardianship order appointing them.[149] The functions, powers and duties of guardians are discussed in detail in Chapter 7.

6. 5. 7. 3. Emergency guardianship orders

The Board has the power to make an emergency order appointing the Public Guardian as the guardian of a person not already under guardianship. Before the Board may make such an order it must consider that there are grounds for making a guardianship order in relation to the person and consider that it is proper for reasons of urgency to make the order. The Board may make the order “considered appropriate in the circumstances” and give any similarly appropriate direction.[150]

The Board may make such an order on its own initiative or at the request of any person the Board considers has a proper interest in the matter. The request can be made and information gathered by phone or other means. No notice need be given to any person. While the Board is not required to hold a hearing, it must make such inquiries or investigations as it thinks appropriate. Such orders can be made for up to 28 days and may be renewed once for up to the same period.[151]

There must be an evidential basis for the Board’s view that the person may need a guardianship order and there must be obviously urgent reasons for making the order or giving the direction. However, the state of the evidence for making an emergency guardianship order need not be such as to meet the requirements for making non-urgent order.[152]

6. 5. 8. Other related orders

6. 5. 8. 1. Emergency orders and directions

In addition to making emergency guardianship orders, the Board may make other orders and give other directions that are considered appropriate in the circumstances and that the Board considers proper to make or give by reason of urgency.[153]

The Board may make such an order on its own initiative or at the request of any person the Board considers has a proper interest in the matter. The request can be made and information gathered by phone or other means. No notice need be given to any person. While the Board is not required to hold a hearing, it must make such inquiries or investigations as it thinks appropriate.[154] There must be an evidential basis for any order the Board makes or any direction that it gives under this provision.

Any such orders can be made for up to 28 days and may be renewed once for up to the same period.[155]

6. 5. 8. 2. Removal orders

The Guardianship and Administration Act 1995 (Tas) provides for two situations in which the Board can make a “removal order” in relation to a person with a disability who is not the subject of a guardianship order. The first is where the Board has received information that a person with a disability is:

1. being unlawfully detained against their will, or

2. likely to suffer damage to their physical, emotional or mental health or well-being unless immediate action is taken.

In this situation, if the Board considers it necessary to do so in order to secure access to that person, it may empower the Public Guardian or some other person specified in the order to visit the person with a disability for the purpose of preparing a report for the Board. This must be done in the company of a police officer who may, with such assistance as is necessary, use such force as is reasonably necessary to enter the premises where the person with a disability is found.[156]

If, after receiving and considering the report, the Board is satisfied that the person with a disability is being unlawfully detained against their will or is likely to suffer damage to their physical, emotional or mental health or well-being unless immediate action is taken, the Board may make an order enabling the person to be taken to, and cared for at, a place specified in the order until an application for an order appointing a guardian for them is heard.[157] Unlike in New South Wales, no application for a guardianship order has to be made in advance of the Board taking action if it has received information upon which it considers it necessary to act.

The second is where it appears to a police officer that there is reasonable cause to suspect that a person with a disability who appears to be in need of a guardian:

1. has been, or is being, ill-treated, neglected or unlawfully detained against their will, or

2. is likely to suffer serious damage to their physical, emotional or mental health or well-being unless immediate action is taken.

In this situation, the police officer may enter the premises where the person with the disability is believed to be, by force if necessary, and remove that person from the premises if that was thought fit. In this kind of situation, where the police officer decides to remove the person from the premises, they must be accompanied by a person nominated by the Public Guardian. That person must then, as soon as practicable:

1. take the person with a disability to a place of safety,

2. ensure that an application for guardianship or other appropriate arrangements are made in relation to the person with the disability, and

3. provide the Board with a written report giving details of the action that they had taken when exercising their responsibilities under these provisions.[158]

In either situation the police and the Public Guardian must work together to check whether the person with the disability is safe or not, and if not safe to remove them to a place of safety. After that is achieved, the question of whether or not the person needs a guardian is then addressed.

6. 5. 9. The powers and functions of a guardian

These matters are dealt with in Chapter 7.

6. 5. 10. Reviews of guardianship orders

The Board may make guardianship orders for a maximum of three years. After that they will expire unless they are continued after a review.[159] However, the Board is also empowered to hold a hearing to review a guardianship order at any time. It may do so:

1. on its own initiative,

2. on application by, or on behalf of, a the person under guardianship, or

3. on the application of any other person.[160]

6. 5. 10. 1. Parties to reviews of guardianship orders

In Tasmania the parties to reviews of guardianship orders are those persons that procedural fairness requires to be treated as parties. These are at least the following:

1. the person the order is about,

2. their guardian,

3. the applicant for the review if that is neither the guardian nor the person under guardianship.

Others, such as the spouse of the person under guardianship, may be entitled to be parties, but that will depend on the circumstances of the case. However, it not necessary to be a party to be able to attend a review and to give evidence at it

6. 5. 10. 2. Powers of the Board on review

After conducting the review hearing, the Board may vary or continue the guardianship order, subject to any conditions or requirements it considers necessary, or it may revoke the order. Also, the Board may make such further orders as it considers necessary in order to give effect to the guardianship order.[161]

6. 6. South Australia

6. 6. 1. Who has jurisdiction to appoint guardians?

The Guardianship and Administration Act 1993 (SA) establishes the Guardianship Board of South Australia and empowers it to make guardianship orders.[162] That Act does not specifically deal with the parens patriae jurisdiction of the Supreme Court of South Australia, but it makes the Administrative and Disciplinary Division of the District Court the appeal body for decisions and orders of the Board, with a further appeal from that Court to the Supreme Court. The Act also provides that the Board may refer any question of law to the Supreme Court for its opinion.[163] These provisions together with the opinion expressed by Morris J of the Supreme Court of Victoria that because Victoria has comprehensive laws in relation to guardianship and administration matters, as does South Australia, he doubted that the parens patriae jurisdiction of the Supreme Court of Victoria “should play any current role in the day to day administration of guardianship matters” indicate that the jurisdiction of the Supreme Court of South Australia in relation to the guardianship of adults may have been removed by necessary implications being drawn from the relevant provisions of the Guardianship and Administration Act 1993 (SA).[164] Nevertheless, that part of the Supreme Court’s parens patriae jurisdiction may still exist.[165] Furthermore, its parens patriae jurisdiction in relation to guardians may be exercisable by the District Court.[166]

Nevertheless, the wise course is to make applications for guardianship orders to the Guardianship Board of South Australia rather than to the Supreme Court or District Court.

As will be seen in Chapter 10. 5. 1, the Supreme Court and the District Court of South Australia both have jurisdiction under the Aged and Infirm Persons’ Property Act 1940 (SA) to make protection (administration) orders. The District Court may also have parens patriae jurisdiction to appoint administrators for the estates of incapable people.[167]

6. 6. 2. Who may apply for a guardianship order?

The following may make an application to the Guardianship Board for a guardianship order or for the variation or revocation of such an order:

1. the person the application is about; [168]

2. the Public Advocate, on his own initiative, or at the request and on behalf of the person to whom the proceedings relate;

3. a relative of the person the application is about is,

(i) their spouse to whom they are legally married,[169]

(ii) domestic partner,[170]

(iii) a parent,

(iv) someone who, if the person is under 18 years, acts in loco parentis in relation to them, or in any other case, the person charged with overseeing the ongoing supervision, care and well-being of the person,

(v) a brother or sister of or over 18 years,

(vi) a son or daughter over 18 years; [171]

4. a medical agent of the person;[172]

5. an administrator of the person's estate; or

6. any other person who satisfies the Board that they have a proper interest in the welfare of the person.[173]

Guardianship applications must be made in the manner and form determined by the Board.[174]

6. 6. 3. Who may take part in the hearing as a party?

The Guardianship and Administration Act 1993 (SA) does not set out who are parties to a hearing of an application for a guardianship order, but clearly the person the application is about and the person making the application are parties. The Office of the Public Advocate notes that the following people are likely to attend the hearing:

1. the person the application is about that is, the person said to have a mental incapacity;

2. the person who made the application;

3. other people involved in the care or welfare of the person;

4. any other person with a genuine interest in the person the application is about.

The Office of the Public Advocate also notes that in a small number of cases the person the application is about may be too ill or frail to attend the hearing. It is the practice in such situations for a Board member to visit the person the application is about prior to the hearing.[175]

6. 6. 4. What has to be proved before an order can be made?

Before the Board may make a guardianship order it must be satisfied by the evidence before it that the person the subject of the application:

1. has a mental incapacity;

2. does not already have an enduring guardian; and

3. should have a guardianship order made in relation to them. [176]

The term “mental incapacity” is defined to mean the inability of a person to look after their own health, safety or welfare or to manage his or her own affairs, as a result of:

1. any damage to, or any illness, disorder, imperfect or delayed development, impairment or deterioration, of the brain or mind; or

2. any physical illness or condition that renders the person unable to communicate his or her intentions or wishes in any manner whatsoever.[177]

When deciding whether or not to make a guardianship order the Board must, as the paramount consideration, give consideration to what, in its opinion, would be the wishes in the matter of the person the application was about if they were not mentally incapacitated. However, the Board is required to do this only to the extent that there is reasonably ascertainable evidence on which it can base such an opinion.[178]

In addition, the Board must seek and consider the present wishes of the person, unless it is not possible or reasonably practicable to do so.[179]

Furthermore, the Board must give consideration to the adequacy of existing informal arrangements for the care of the person and to the desirability (or otherwise) of not disturbing those arrangements.[180]

Finally, the order made by the Board must be the one that is the least restrictive of the person's rights and personal autonomy as is consistent with their proper care and protection.[181]

After giving appropriate consideration to and being satisfied as to all these matters, the Board may make an order placing the person under limited guardianship, or if a limited guardianship order would not be appropriate, a “full” guardianship order.[182]

The Board may make guardianship orders subject to such conditions or limitations (including a limitation as to the duration of the order) as it thinks fit and specifies in the order.[183]

6. 6. 5. Appointing a guardian

The Board is empowered to appoint as the guardian or the guardians such person or persons as it considers, in all the circumstances of the case, to be the most suitable for the purpose.[184]

Private guardians must be natural persons, not companies.[185] Also, a person who cares for the person under guardianship on a professional basis cannot be appointed as their guardian.[186] However, the Public Advocate may be appointed as the guardian, or one of the guardians, of the person, but only if the Board considers that no other order would be appropriate.[187]

The Board cannot appoint anyone as a guardian unless they consent to the appointment. However the Public Guardian’s consent is not required before the Board appoints him.[188] It is suggested that the Public Advocate cannot refuse to accept an appointment as guardian by the Board.

When determining the suitability of a person for appointment as a private guardian, the Board must have regard to:

1. whether the potential appointee and the person with the mental incapacity would be incompatible,

2. whether there is some existing family arrangement or relationship that should be preserved or should not be disturbed,

3. whether the potential appointee would be competent to discharge the functions of guardian and would do so in accordance with the principles set out in the Guardianship and Administration Act 1993 (SA),[189]

4. whether the potential appointee would be readily available for discharging those functions,

5. whether any conflict of interest would arise from the appointment. (The fact that a proposed appointee is related to the person with the mental incapacity by blood or marriage is not, of itself, to be taken as giving rise to a conflict of interest), and

6. such other matters as the Board considers relevant.[190]


6. 6. 6. Joint, several and alternative guardians

The Guardianship and Administration Act 1993 (SA) specifically provides for the appointment of more than one guardian in a guardianship order and also allows for the Public Advocate to be one of those guardians.[191] Consequently, there does not seem to be any reason why the Board cannot appoint joint guardians or “several” guardians, provided each of them was suitable for appointment as a guardian. Joint guardians would have the same functions as each other and would have to make the decisions about the person under guardianship jointly. “Several” guardians are those appointed with separate functions which they exercise separately, but would be wise to consult with each other before doing so. While the Board does not appoint “several” guardians, there seems no reason why the Board cannot appoint either single or joint “several” guardians; however, the more guardians, the more complex the process of making the most appropriate decisions in the best interests of the person under guardianship.

There are no provisions for dealing with the resignation, death or incapacity of the guardian or one of the joint (or “several” guardians). If this occurs, the guardianship order will cease to exist and the person will no longer be under guardianship. The Board is not empowered to appoint alternative guardians. The practice of the Board, when it is advised of such a situation is to conduct a review of the order and take the appropriate action in the light of the review.

6. 6. 7. Types of guardianship orders

6. 6. 7. 1. Full and limited guardianship orders

The Board is empowered to make both “full” and “limited” guardianship orders.[192] A “full” order gives the guardian, subject to the Act and the terms of the Board's order, all the powers a guardian has at law or in equity.[193] Under the Act, a limited guardianship order is an order by which the Board specifies the particular aspects of the person under guardianship's care or welfare that are to be the responsibility of the guardian or guardians.[194] A “limited” guardian has, again subject to the Act and the order, those powers a guardian has at law or in equity that are given to the guardian in the order appointing them.

6. 6. 7. 2. Self-revoking orders

Because of the Board’s power to include limitations in any guardianship order it makes, including a limitation as to the duration of the order, it may make guardianship orders that are to last only for a set period (probably of not more than three years). [195] Such self-revoking orders do not have to be reviewed in the manner set out below in 6. 6. 9 below. Self-revoking orders can be either full or limited guardianship orders.

6. 6. 7. 3. Urgent orders

If it is satisfied that urgent action is required, the Board may make an urgent guardianship order for up to 21 days in other circumstances where such an order is necessary.[196]

However, the Board does not appear to have the power to make removal orders for the protection of a mentally incapacitated person pending the making of or the hearing of an application for a guardianship order.

6. 6. 8. The powers and functions of a guardian

As already noted, the Board may appoint full (plenary) or limited guardians. The powers and functions of guardians, including the special powers that, on application, the Board may give to guardians to place and detain the person under guardianship, are dealt with in Chapter 7.[197]

6. 6. 9. Reviews of guardianship orders

There are two types of reviews of guardianship orders in South Australia – periodic reviews which the Board is required to carry out and applications made to it to vary or revoke an order.[198]

6. 6. 9. 1. Periodic reviews

The Guardianship Board is required to review the “circumstances” of those under guardianship within six months if they are being detained in any place under

an order made by the Board, and thereafter at intervals of no more than a year. If

the guardianship order does not contain a detention provision, then a review must be conducted at intervals of not more than three years. On completion of the review, the Board must revoke the order unless it is satisfied that there are proper grounds for keeping the order in force. If the Board decides to keep the order in force, it may vary the terms of the order. The Board has a wide discretion as to how it may conduct its reviews. [199]

Parties to periodic reviews of guardianship orders

The Guardianship and Administration Act 1993 (SA) does not set out who are the parties to a review; however procedural fairness would require that at least the person under guardianship, their guardian and the administrator of their estate (if any) be notified of the review and be given the opportunity to take part in it.

The practice of the Board when conducting a periodic review of a guardianship order

The Office of the Public Advocate’s manual for private guardians advises that when a guardianship order should be reviewed is written into the order itself. Prior to that date the Board writes to the guardian, and any other significant person

in the life of the person under guardianship, and ask if they think that the order is still required, and if so, why.

The Board sends guardians a form containing a list of questions to complete. The purpose of these questions is to assist the Board to decide whether the person under guardianship still has a mental incapacity, is still unable to make decisions because of that incapacity and still has a need for guardianship because there are decisions that still need to be made. These questions also help the Board decide whether a further guardianship order should be made, and if so, for how long and whether there should be changes in the new order when compared with the previous order.

If there is medical evidence that the person still has a mental incapacity and all those involved agree that a guardianship order is still required, then the Registrar of the Board may make a new order without a formal hearing. However, if there are differences of opinion about the order, or the Board is unclear about the person’s current level of mental capacity, it may conduct a formal review hearing which the guardian will be expected to attend and answer questions such as:

1. what has happened since the last order was made;

2. has there been any change in the situation of the person under guardianship;

3. what significant decisions has the guardian had to make; and

4. what are the future plans for the protected person?[200]

6. 6. 9. 2. Requested reviews

The Board is empowered, “on application” to vary or revoke a guardianship order if that is the proper course to take.[201] The Office of the Public Advocate’s manual for private guardians encourages guardians to apply for revocation or variation, whichever is the more appropriate, if they think that:

1. the person under their guardianship no longer needs to have a guardianship order,

2. the duties and roles that have been given to the guardian are not working well,

3. additional areas of decision making authority are required due to a change in the circumstances of the person under their guardianship, or

4. they are unable or unwilling to continue in their role as guardian.[202]

Who may request a review of a guardianship order?

While guardians would be able to request reviews of the orders appointing them as guardians, so would those placed under guardianship by those orders. Others who, in the opinion of the Board, had an appropriate and sufficient interest in the person the order was about would also be able to request a review of the order if they had concerns about the way it was working.

Parties to a requested review

Again, while the Act does not set out who are the parties to requested reviews, at least the person the guardianship order was about, their guardian and the administrator of their estate (if any) would have to be notified of the review and be given the opportunity to take part in it.

Powers of the Board when dealing with requested reviews

Requested reviews appear to be limited to applications to vary or revoke the order. The drafting of the relevant section opens up the argument that these applications are different in nature from the periodic reviews of its orders that the Board is required to carry out. The argument is that they limit the Board to either dismissing the application or varying or revoking the guardianship order and they are not reviews of “the circumstances” of the person the order is about which require the Board to revoke the order unless it is satisfied that there are proper grounds for the order remaining in force.[203]

6. 7. Queensland

6. 7. 1. Who has jurisdiction to appoint guardians?

In Queensland the Queensland Civil and Administrative Tribunal (QCAT) has exclusive jurisdiction to appoint guardians for “adults with impaired capacity for (personal) matters”.[204] While the Guardianship and Administration Act 2000 (Qld) specifically states that its provisions do not affect the Supreme Court of Queensland’s inherent jurisdiction, including its parens patriae jurisdiction, that general provision does not prevail over the specific provision in the same Act giving exclusive jurisdiction to appoint guardians to QCAT.[205] Note also that the Act allows the Court, if it considers it appropriate, to transfer proceedings before it that are within the QCAT’s jurisdiction to QCAT and QCAT to transfer proceedings that are within the Court’s jurisdiction to the Court.[206] As QCAT’s power to transfer a proceeding before it to the Supreme Court is limited to proceedings that are within the Court’s jurisdiction, as limited by the Act, such a transfer would not revive the Court’s jurisdiction to appoint guardians.

In a 2005 case, the mother of a man with an intellectual disability unhappy with a decision of the Tribunal to renew the guardianship order in relation to that man, reappointing his father as his guardian for a further five years, sought an order from the Supreme Court, in the exercise of its parens patriae jurisdiction, that would have cut across the order made by the Tribunal.[207] Wilson J noted that the parens patriae jurisdiction was to be exercised always with great caution and with the paramount consideration being what was in the best interests of the person the application was about.[208] She dismissed the application pointing out that:

[QCAT] is a specialist tribunal set up to determine issues relating to intellectually disabled adults. In determining an application it is constituted by an experienced lawyer, someone with professional knowledge or experience of persons with impaired capacity, and someone with personal experience of such a person. Proceedings before the Tribunal must be conducted as simply and quickly as the requirements of the Act and an appropriate consideration of the matters before it allow, and it is not bound by the rules of evidence. It can mould its procedures to the demands of a particular case.[209]

6. 7. 2. Who may apply for a guardianship order?

Applications may be made to QCAT for guardianship orders in relation to adults, persons 18 years of age or older. In certain circumstances an application and an order may make for a person who is at least 17½ years of age. The order may commence only when the person reaches 18 years.[210] The following may make an application to QCAT for a guardianship order:

1. person the application is about,

2. the Adult Guardian,

3. the Tribunal on its own initiative, and

4. any other “interested person”.[211]

An “interested person” is someone who has a sufficient and continuing interest in the person to justify the interested person in making an application to QCAT for a guardianship order in relation to the person the subject of the application.[212] Whether a person is an “interested person” is a matter the Tribunal may decide, if necessary.[213]

In Queensland the requirements for an application are set out in the Guardianship and Administration Act 2000 (Qld), subject to QCAT directing otherwise. The application must be in writing, signed by the applicant and filed with the Tribunal. The application must also include the reasons for the application and information about the person the subject of the application, members of their family, their primary carers and relevant others. This information is required so that QCAT can meet its obligation to give notice of the hearing to the relevant people.[214] The application must also include the proposed guardian’s written agreement to being appointed.[215]

6. 7. 3. Who may take part in the hearing as a party?

The Guardianship and Administration Act 2000 (Qld) provides for a range of people who QCAT must give at least seven day’s notice of the hearing, wherever practical, but makes a distinction between active parties and others who must be given notice. Those who must be given notice are:

1. the person the application is about, if they are not the applicant,

2. the members of that person’s family;

3. any primary carer of that person;

4. all current guardians, administrators and attorneys for that person,

5. the Adult Guardian,

6. the Public Trustee, and

7. anyone else QCAT considers should be given notice.[216]

The Act also requires that notice of the hearing and what it is about must be given, to the person the hearing is about in the way that QCAT considers most appropriate having regard to that person’s needs. However, that person’s failure to understand the notice does not affect its validity.[217] Also, the giving of notice may be dispensed with, or the period of notice shortened in relation to the person the application is about or anyone else at the direction of QCAT.[218]

The following are “active” parties:

1. the person the hearing is about,

2. any other person who is the applicant,

3. the person proposed for appointment as guardian,

4. any current guardian,

5. the Adult Guardian,

6. the Public Trustee,

7. any person joined as a party to the proceeding by QCAT.[219]

Active parties may appear in person at QCAT and, with the leave of QCAT, be represented by a lawyer or agent[220]

6. 7. 4. What has to be proved before an order can be made?

Before QCAT may, by making a guardianship order, appoint a guardian for the person the hearing is about, it must be satisfied that:

1. the person the application is about has impaired capacity for the (personal) matter,

2. there is a need for a decision in relation to that matter or the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to their health, welfare or property, and

3. without the appointment of a guardian;

(a) the person’s needs will not be adequately met, or

(b) the person’s interests will not be adequately protected.[221]

If it is satisfied as to these matters QCAT may make a guardianship order for an adult, a person who is 18 years or older.[222]

While QCAT will usually only make orders on the application of an interested person, the Adult Guardian or (very rarely) the person the application is about, it may make guardianship orders on its own initiative.[223] However, whenever it uses its own initiative to make an order, QCAT must ensure that it acts in a way that is procedurally fair in the circumstances. Nevertheless, it is the practice of QCAT, relying on its power to make orders on its own initiative, to make guardianship orders when dealing with applications for administration orders (and vice versa) when the need to make such an order becomes apparent at the hearing and the evidence satisfies the criteria for making such an order and the requirements of procedural fairness do not preclude the making of the order given the circumstances of the particular case.

The term “impaired capacity for the matter” reflects the idea that capacity is decision (or “matter”) specific. Accordingly, impaired capacity can affect adults over a range from impaired capacity in all decisions and actions to capacity that is impaired in relation to just one matter. However, for most adults who are the subject of applications to QCAT, their capacity is usually substantially impaired, meaning in relation to all matters or at least those matters needing to be addressed at the hearing. Because of that impairment, they are often incapable of either making decisions at all or are at unreasonable risk in relation to their health welfare or property or are unable to adequately protect their own interests.[224]

A person has impaired capacity for a (personal) matter if they are incapable of:

1. understanding the nature and effect of decisions about the matter,

2. freely and voluntarily making decisions about the matter and

3. communicating the decisions in some way.[225]

A personal matter for an adult is defined in the Act as, a matter relating to the adult’s care, including the adult’s health care, or welfare. The definition offers a wide range of examples. These are:

1. where they live,

2. with whom they live,

3. whether they work and, if so, the kind and place of work and the employer,

4. what education or training they undertake,

5. whether they apply for a licence or permit,

6. day-to-day issues, including their diet and dress,

7. their health care,

8. whether to consent to a forensic examination, or

9. a legal matter not relating to their financial or property matters.[226]

When dealing with an application for a guardianship order and deciding whether or not the criteria for making an order have been met, QCAT must apply the general principles of the Act.[227] These are:

1. the presumption of capacity,

2. the right of all adults to the same basic human rights regardless of a particular adult’s capacity must be recognised and taken into account.

3. the importance of empowering an adult to exercise the adult’s basic human rights must also be recognised and taken into account,

4. an adult’s right to respect for their human worth and dignity as an individual must be recognised and taken into account,

5. an adult’s right to be a valued member of society must be recognised and taken into account,

6. the importance of encouraging and supporting an adult to perform social roles valued in society must be taken into account,

7. the importance of encouraging and supporting an adult to live a life in the general community, and to take part in activities enjoyed by the general community, must be taken into account,

8. the importance of encouraging and supporting an adult to achieve their maximum physical, social, emotional and intellectual potential, and to become as self-reliant as practicable, must be taken into account,

9. an adult’s right to participate, to the greatest extent practicable, in decisions affecting their life, including the development of policies, programs and services for people with impaired capacity for a matter, must be recognised and taken into account,

10. the importance of preserving, to the greatest extent practicable, an adult’s right to make their own decisions must be taken into account,

11. an adult must be given any necessary support, and access to information, to enable them adult to participate in decisions affecting their lives,

12. the adult’s views and wishes are to be sought and taken into account to the greatest extent practicable when exercising power for a matter for the adult,

13. when performing a function or exercising a power under the Act for someone with impaired capacity, the person must do so in the way that is least restrictive of the adult’s rights,

14. the principle of substituted judgment must be used so that if, from the adult’s previous actions, it is reasonably practicable to work out what the adult’s views and wishes would be, the person in performing a function or exercising a power under the Act must take into account what they consider would be the adult’s views and wishes; however, the person performing a function or exercising a power under the Act must do so in a way consistent with the adult’s proper care and protection,

15. the importance of maintaining the person’s existing supportive relationships must be taken into account,

16. the importance of maintaining the person’s cultural and linguistic environment, and set of values (including any religious beliefs), must be taken into account. For an adult who is a member of an Aboriginal community or a Torres Strait Islander, this means the importance of maintaining their Aboriginal or Torres Strait Islander cultural and linguistic environment, and set of values (including Aboriginal tradition or Island custom), must be taken into account,

17. power for a matter should be exercised by a guardian or administrator for an adult in a way that is appropriate to the adult’s characteristics and needs, and

18. an adult’s right to confidentiality of information about the adult must be recognised and taken into account.

6. 7. 5. Appointing a guardian

A guardian must be at least 18 years and not a paid carer, or a health provider for the person under guardianship.[228] When deciding whether or not a person was appropriate to appoint as a guardian, QCAT must consider the following matters:

1. the general principles of the Guardianship and Administration Act 2000 (Qld) and whether the person is likely to apply them;

2. if the guardian is to be appointed to make decisions about health matters, the health care principle and whether the person is likely to apply it

3. the extent to which interests the person the hearing is about and those of the proposed guardian are likely to conflict;

4. whether the person the hearing is about and the proposed guardian are compatible including, for example, whether the proposed guardian has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the person the hearing is about,

5. if more than one person is to be appointed as guardian, whether the proposed guardians are compatible with one another,

6. whether the proposed guardian would be available and accessible to the person the hearing is about,

7. the proposed guardian’s appropriateness and competence to perform functions and exercise powers under an appointment order.[229]

The fact the proposed guardian is a relation or a beneficiary of the estate of the person the hearing is about does not, of itself, mean their interests are likely to conflict.[230]

When considering the proposed guardian’s appropriateness and competence, QCAT must have regard to:

1. the nature and circumstances of any criminal history they may have, whether in Queensland or elsewhere, including the likelihood that the commissioning of any such offence may adversely affect the person the hearing is about,

2. whether in Queensland or elsewhere they had been refused appointment or removed from an appointment, as a guardian, administrator, attorney or other person making a decision for someone else and the nature and circumstances of that refusal or removal.[231]

Guardians have a continuing duty to keep QCAT advised about matters going to their appropriateness and competence to be guardians.[232] QCAT may make its own inquiries into these matters.[233]

The Adult Guardian may also be appointed guardian.[234]

6. 7. 6. Joint, several, alternative and successive guardians

QCAT may appoint those who meet the criteria for appointment as guardians as joint guardians, as several guardians (with different functions), as alternate guardians and as successive guardians (those whose appointment begins when the appointment of another ends).[235] If it appoints two or more guardians for a person, they will be joint guardians unless QCAT must make clear in its order that they are to be several or alternative guardians.[236] If there are joint guardians and the appointment of one or more of them comes to an end, the other joint guardians continue to be guardians.[237] How joint guardians should make their decisions together, consult each other and deal with disagreements are set out on the Guardianship and Administration Act 2000 (Qld).[238]

6. 7. 6. 1. How appointments as guardians end

A person’s appointment as a guardian ends automatically if they die or if:

1. the person they are the guardian of dies,

2. they become a paid carer or health provider for the person under their guardianship,

3. they becomes the service-provider for a residential service where the adult is a resident; or

4. if they were married to the person they are guardian of when they were appointed guardian and the marriage is subsequently dissolved.[239]

A person’s appointment as a guardian ends if their appointment is revoked by QCAT as a result of a review of the appointment.[240]

A person may withdraw as guardian with the leave of QCAT.[241]

6. 7. 7. Types of guardianship orders

The Guardianship and Administration Act 2000 (Qld) does not create separate categories of plenary or full guardianship orders under which the guardian has all the functions of a guardian and limited orders under which the guardian may carry out only the functions of a guardian set out in the guardianship order. Instead, it empowers the guardian to exercise power in relation to personal matters except those that the Act precludes guardians from exercising power in relation to. When guardians are given powers in relation to personal matters, they may do anything in relation to those personal matters that the person under guardianship would have been able to if they had had capacity, unless the terms if the order prevent this.[242] While it is possible for QCAT to appoint a guardian to exercise power in relation to all personal matters, except those excluded by operation of the Act, in most cases most guardianship orders are limited to those personal matters that appear to be required and are set out in the order. In addition to these “normal” orders appointing guardians after full hearings, QCAT may appoint guardians under interim orders.

6. 7. 8. Interim orders

If QCAT is satisfied that urgent action is required, particularly to protect an adult with impaired capacity from abuse, exploitation or neglect, it may make an interim order appointing a guardian, for a maximum period of six months, without having to conduct a full hearing, provide notice of the hearing, or otherwise comply with the requirements of the Guardianship and Administration Act 2000 (Qld).[243] The procedure for dealing with applications for interim orders is set out in a Presidential Direction.[244]

6. 7. 9. Entry and removal warrants

The Adult Guardian in Queensland has significant investigative powers, including a power to investigate any complaint or allegation that an adult with impaired capacity “is being or has been neglected, exploited or abused or has inappropriate or inadequate decision-making arrangements”.[245] Associated with that power is the right in the Adult Guardian to apply to QCAT for a warrant to enter a place and to remove an adult with impaired capacity from it if the Adult Guardian considers there are reasonable grounds for suspecting there is an immediate risk of harm, because of neglect (including self neglect), or exploitation or abuse, to the adult.[246] The procedure for making such an application is set out in the Act.[247]


6. 7. 10. The powers and functions of a guardian

Some of the powers and functions of guardians are set out in the Guardianship and Administration Act 2000 (Qld).[248] Those powers and functions and the common law powers and functions of guardians are dealt with in Chapter 7.

6. 7. 11. Reviews of guardianship orders

QCAT must review its appointment of a guardian at least every five years.[249] These are called periodic reviews. However, QCAT may also review its appointment of a guardian on its own initiative (own initiative reviews) or on the application of any of the following (requested reviews):

1. the person under guardianship,

2. a person who has sufficient and continuing interest in the person under guardianship, usually a family member or friend,[250]

3. the Public Trustee,

4. a trustee company.[251]

QCAT advises that if anyone entitled to request a review may do if they believe that:

1. an existing order is unsatisfactory,

2. there is new information that could affect the order,

3. circumstances have changed,

4. there is no longer a need for a the person under guardianship to have a guardian, or

5. the existing guardian is not acting in the interests of the person under guardianship.[252]


6. 7. 12. Parties to reviews of guardianship orders

The Guardianship and Administration Act 2000 (Qld) specifically authorises QCAT to conduct each review of a guardianship order as it considers appropriate.[253] This allows QCAT to conduct its reviews in a number of different ways, provided they are procedurally fair in the circumstances of the particular case. Usually it conducts a hearing to which the person under guardianship, the guardian, any administrator, family members, carers and others are invited, by notice being given to them. They are given the opportunity to put new information or evidence of changed circumstances before QCAT for it to consider.[254]

6. 7. 13. Powers of QCAT on review

QCAT may require the guardian to advise it of anything that the guardian has not previously advised, but which a proposed guardian was required to tell QCAT when it was initially considering whether to appoint that person as guardian.[255]

Having conducted its review, QCAT must revoke the guardianship order unless it is satisfied it would have made an appointment if it had been dealing with a new application for an appointment of a guardian.[256] If is so satisfied, QCAT may either continue or change the order. It may change the order by, changing the terms of the appointment, removing a guardian, appointing a new guardian or by changing the order in some other way.

However, QCAT may remove a guardian only if it considers that the guardian is no longer competent because, for example, they have not adequately protected the interests of the person under guardianship, or have neglected their duties or abused their powers either generally or specifically.[257]

QCAT may also give the guardian advice or directions about how they should carry out their duties.

6. 8. Western Australia

6. 8. 1. Who has jurisdiction to appoint guardians?

Under the Supreme Court Act 1935 (WA) the Supreme Court of Western Australia has the same parens patriae jurisdiction as introduced to the eastern States of Australia by the relevant charters of justice. It is a court of equity, with power and authority within Western Australia and its dependencies to administer justice and “to appoint guardians and committees of the persons and estates of infants, lunatics, and persons of unsound mind according to the order and course observed in England”.[258] The Court’s inherent jurisdiction, of which the parens patriae jurisdiction is part, is not affected by the Guardianship and Administration Act 1990 (WA) which gives the State Administrative Tribunal (WASAT) its guardianship jurisdiction.[259] While the Supreme Court retains its jurisdiction, most applications for guardianship orders are made to WASAT and WASAT will deal with applications in relation to anyone physically present in Western Australia, even if they are a resident of another part of Australia or another country.[260]

WASAT may make guardianship orders for those in need of a guardian who are 18 years and above.[261]

6. 8. 2. Who may apply for a guardianship order?

Anyone may apply to WASAT for a guardianship order.[262] The person who the application is about must be 18 years or older.[263]

6. 8. 3. Who may take part in the hearing as a party?

The executive officer of WASAT must give notice of the hearing at least 14 days in advance to the following so that they can attend if they wish:

1. the applicant,

2. the person the hearing is about,

3. their nearest relative,

4. the Public Advocate,

5. any proposed guardian or alternate guardian,

6. the administrator of the estate of the person if an administrator has been appointed, and

7. any other person who in the opinion of the executive officer has a proper interest in the proceedings. [264]

6. 8. 4. What has to be proved before an order can be made?

Before WASAT may appoint a guardian for a person, it must be satisfied that the person is:

1. incapable of looking after their own health and safety,

2. unable to make reasonable judgments in respect of matters relating to their person, or

3. in need of oversight, care or control in the interests of their own health and safety or for the protection of others, and

4. in need of a guardian.[265]

WASAT must then declare that the person the hearing is about is in need of a guardian and also declare which matter or matters listed above of which it is satisfied.[266] WASAT may make the order subject to such conditions and restrictions that it thinks fit.[267]

When dealing with a guardianship application, the primary concern of WASAT is the best interests of the person the application is about.[268] It must also presume that the person the hearing is about is capable of looking after their own health and safety and can make reasonable judgments concerning their person until the contrary is proved to the satisfaction of WASAT.

In addition, WASAT must, as far as possible to do so, get the views and wishes of the person the hearing is about however it can when the application is being dealt with or by gathering those views and wishes from the person’s previous actions.[269] In a 2007 case, Jenkins J of the Supreme Court of Western Australia noted that WASAT, in exercising its statutory powers, was required to take into account, as far as possible, the views and wishes of T, the young adult the subject of the application. She said that this was an important aspect of the exercise of those powers because:

No person should be deprived of his or her right and freedom to make decisions about their life without having had the opportunity to be heard. The right to be heard is a fundamental rule of natural justice, which the Tribunal was bound to accord to T.[270]

Jenkins J also noted:

I do not accept that just because a represented person may not be capable of intellectual reasoning, that reasonable steps should not be taken to ascertain his or her views and wishes. In this case, it was important that, as far as possible, T had a voice in the hearing to determine who should be his guardian. I also accept that as T functions on an emotional level, it was relevant for the Tribunal to take into account, if possible, his emotional response to issues related to guardianship, such as where and with whom he would like to live.[271]

While Jenkins J sent the matter back to WASAT for redetermination, she concluded by noting:

In order to assist the Tribunal in that re-determination, nothing I say in these reasons compels the Tribunal to order or obtain an independent assessment of the circumstances of each applicant if, after further enquiry, it is of the opinion that the cost of such an enquiry would outweigh its benefits or if there is good reason why the cost of such an enquiry could not be met from T's estate.
Further, although I am of the view that the Tribunal ought to take further steps to ascertain T's views and wishes, that does not necessarily mean that those views and wishes will be able to be ascertained.[272]

WASAT must not make a guardianship order if the needs of the person the application is about could be met by other means less restrictive of the person’s freedom of decision and action.[273] Also, any guardianship order it makes must be in terms that WASAT considers impose the least restrictions possible in the circumstances of the case on the person’s freedom of decision and action.[274]

6. 8. 5. Appointing a guardian

WASAT may appoint as guardians only adults 18 years and above who have consented to being appointed guardian. Before appointing them, WASAT must be of the opinion that they:

1. will act in the best interests of the person they are appointed guardian for,

2. are not in a position where their interests conflict or may conflict with the interests of that person, and

3. are otherwise suitable to act as the guardian of that person.[275]

When deciding whether the person under consideration for appointment as guardian is “otherwise suitable”, WASAT shall take into account as far as is possible:

1. the desirability of preserving existing relationships within the family of the person the application is about,

2. the compatibility of the proposed guardian with that person and with the administrator, if there is one, of that person’s estate,

3. the wishes of the person the hearing is about, and

4. whether the proposed guardian will be able to perform the functions to be given to them.[276]

The fact that the proposed guardian is a relative of the person the hearing is about

does not, by virtue only of that fact, mean that their interests may or do conflict. Nor does the fact that the proposed guardian is the administrator of the estate of the person disqualify them from being appointed as guardian of that person.[277]

The Public Advocate of Western Australia is statutory guardian in that State and may be appointed as a joint guardian with a private guardian at any time. However, WASAT cannot appoint the Public Advocate as the sole guardian unless there is no other person who is suitable and willing to act.[278]


6. 8. 6. Joint, several and alternative guardians

Private guardians may be appointed jointly and the Public Advocate may be appointed as a joint guardian with one or more private guardians. Joint guardians may not perform any of their functions without the concurrence of their co-guardians.[279] While there is no statutory authority to do so in the Guardianship and Administration Act 1990 (WA), there does not seem any reason why WASAT should not be able to appoint one or more guardians for one or more functions and one or more other guardians for one or more other functions, namely “several” guardians.

Alternative guardians may be appointed to take over the functions of the guardian they are appointed as the alternative for upon the death of that guardian. However, the alternate guardian must advise the Public Advocate of the death of the original guardian and the Public Advocate must ensure that an application to review the guardianship order is made as soon as practicable after the death of the original guardian.[280]


6. 8. 7. Types of guardianship orders

When WASAT makes a guardianship order, it will appoint the guardian or guardians as either plenary or limited guardians.

6. 8. 7. 1. Plenary guardians

Plenary guardians have wide-ranging functions including the functions given, under the Family Court Act 1997 (WA) to a person in a parenting order which allocates parental responsibility for a child or a parenting order which provides that a person is to share parental responsibility for a child, as if the person under guardianship was a child lacking in mature understanding.[281] Such parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.[282]

Plenary guardians (and limited guardians) in Western Australia, as different from elsewhere in Australia, may be made responsible for the maintenance of those under their guardianship.[283] However, neither they nor limited guardians have the right to chastise or punish those under their guardianship.[284]

6. 8. 7. 2. Limited guardians

Limited guardians have only those powers of a plenary guardian that are given to them by WASAT in the guardianship order appointing them.[285]

6. 8. 7. 3. Temporary orders

WASAT does not have the power to make temporary orders. It makes short orders instead; for example where a guardian may be needed only to make specific decisions and carry out specific actions.


6. 8. 8. The powers and functions of a guardian

The powers and functions of guardians in Western Australia are dealt with in Chapter 7.[286]

6. 8. 9. Reviews of guardianship orders

When WASAT makes a guardianship order, it must specify a period, not exceeding five years, within which the order must be reviewed and it must ensure that the order is reviewed accordingly.[287] However, WASAT must also review a guardianship order if the guardian or a joint guardian:

1. dies,

2. wishes to be discharged,

3. has been guilty of such neglect or misconduct or of such default as, in the opinion of WASAT, renders them unfit to continue as guardian,

4. appears to WASAT to be incapable of carrying out their duties, because of mental or physical incapacity, or

5. is bankrupt or a person whose property is subject to an order or arrangement under the laws relating to bankruptcy.[288]

Any person may make an application for such a review.[289] They do not have to obtain leave from WASAT to do so.

In addition to these mandatory reviews, WASAT may, at any time, review a guardianship order on the application of:

1. the Public Advocate,

2. the person the order is about,

3. their guardian,

4. the administrator of their estate, or

5. a person to whom leave has been granted, with or without conditions, to conduct the review.[290]

6. 8. 10. Parties to reviews of guardianship orders

As the executive officer of WASAT is required to give those listed below at least 14 days notice of the hearing of any of the three kinds of reviews of guardianship orders set out above, it is reasonable to assume that they are parties to any reviews to which they are given notice:

1. the applicant where there is one,

2. the person the order under review is about,

3. the nearest relative of that person,

4. the guardian,

5. if there is one, the administrator of the estate of the person the hearing is about,

6. the Public Advocate, and

7. any other person who in the opinion of the executive officer has a sufficient interest in the review.[291]


6. 8. 11. Powers of WASAT after reviewing a guardianship order

After reviewing a guardianship order, WASAT may, as it considers necessary

in the best interests of the person the order is about:

1. confirm the order,

2. amend the order so as to make any provision that may be included in a guardianship order,

3. revoke the order,

4. revoke the order and substitute another order for it, or

5. without revoking the order, revoke the appointment of any guardian and appoint a new or additional guardian or appoint an alternate guardian.[292]

6. 9. Australian Capital Territory

6. 9. 1. Who has jurisdiction to appoint guardians?

Miles CJ has taken the view that the powers given to the Supreme Court of New South Wales to appoint guardians of persons incapable of looking after themselves or their estates were passed on to the Supreme Court of the Australian Capital Territory upon its creation in 1933.[293] He noted that all Imperial Acts in force in the Territory, except those specifically continued, were repealed by the Imperial Acts Application Act (ACT) 1986. However, as section 24 of the Australian Courts Act 1828 (UK) (9 Geo IV c 83) was specifically continued, and provides essentially that all laws and statutes in force in England at the time of the passing of the Act should be applied in the Supreme Court of New South Wales, this continued the jurisdiction given by the Third Charter of Justice.[294] He then said:

Although it is far from clear, I think that the effect of the above is that the inherent power is still available to be exercised pursuant to the provisions in s. 11 of the Guardianship [and Management of Property] Act [1991 (ACT)] and s 20 of the Supreme Court Act 1933 [(ACT)] which states that the Court has "all original and appellate jurisdiction that is necessary to administer justice in the Territory".[295]

Miles CJ had fewer doubts about the exercise of this part of the inherent, parens patriae jurisdiction of the Supreme Court of the Australian Capital Territory in an earlier case.[296]

While the Supreme Court of the Australian Capital Territory continues to have all original and appellate jurisdiction that is necessary to administer justice in the Territory, it is not bound to exercise its powers if its jurisdiction is concurrent with another court or tribunal.[297] Since February 2009, the appropriate place to apply for a guardianship order is the ACT Civil and Administrative Tribunal (ACAT). ACAT can appoint guardians for adults, namely persons 18 years of age or older. ACAT may also appoint guardians for persons less than 18 years of age, but such appointments do not take effect until the person turns 18.[298]

6. 9. 2. Who may apply for a guardianship order?

The Guardianship and Management of Property Act 1991 (ACT) does not set out who may apply for a guardianship order and the ACT Civil and Administrative Tribunal Act 2008 (ACT) appears to allow that any person may apply to ACAT for a guardianship order in relation to themselves or another person. [299] That Act requires ACAT to “observe natural justice and procedural fairness”.[300] While the Act allows ACAT to decide its own procedure in a particular matter if the Act does not set down the procedure to be followed, it also requires the procedures of ACAT to be simple, quick, inexpensive and informal “as is consistent with achieving justice”.[301]

It is suggested that for ACAT to be procedurally fair and still meet its obligations about efficiency, that it allow applications for guardianship orders to be made to it only by those genuinely concerned about the welfare of a person with impaired decision-making ability. These will usually be family members or friends of the person, but applications also sometimes need to be made by mental health and disability workers or by members of Aged Care Assessment Teams, treating doctors or others. At other times it will be appropriate for the Public Advocate to be approached to make the application. In emergency situations, the Public Advocate will usually apply as only the Public Advocate can be appointed as a person’s guardian in emergency circumstances.[302]

Whoever makes the application must make it on the approved form.[303]

6. 9. 3. Who may take part in the hearing as a party?

The ACT Civil and Administrative Tribunal Act 2008 (ACT) states that parties to applications are the applicant and respondent, unless the authorising law provides otherwise.[304] The authorising law, the Guardianship and Management of Property Act 1991 (ACT), used to provide who were, whenever it was practicable, to be given written notice of the hearing. These were:

1. the person the hearing is about,

2. their domestic partner, parents, brothers and sister,[305]

3. each child of the person the hearing is about,

4. if there is a manager of the property of the person the hearing is about —the manager; and

5. the Public Advocate.

It is suggested that all the above should be given notice of the hearing unless it is impractical to do so. In particular cases procedural fairness may require that others be given notice of the hearing because their interests may be affected. All attending a hearing are entitled to be represented by a lawyer or an agent.[306]

The Public Advocate is an automatic party and has a function of representing those with disabilities at hearings before ACAT. The Public Advocate is entitled to engage a lawyer to appear before ACAT for this purpose.[307] However, while the Public Advocate or her staff usually attend hearings of ACAT, they are usually there carrying out the role of the Public Advocate, they are rarely there for the purpose of representing the person with the impaired decision-making ability and, even more rarely, do they engage a lawyer to represent the person the hearing is about.

6. 9. 4. What has to be proved before an order can be made?

Before ACAT may make a guardianship order, it must hold a hearing and be satisfied by the evidence that:

1. the person the hearing is about has “impaired decision-making ability in relation to a matter relating to” their health or welfare;

2. while the person has the impaired decision-making ability there is, or is likely to be, a need for a decision in relation to the matter that they have impaired decision-making ability in relation to; or the person is likely to do something in relation to that matter that involves, or is likely to involve, unreasonable risk to the person’s health, welfare or property; and

3. if a guardian is not appointed the person’s needs will not be met; or the person’s interests will be significantly adversely affected [308]

A person has impaired decision-making ability if their decision-making ability is impaired because of a physical, mental, psychological or intellectual condition or state, whether or not that condition or state is a diagnosable illness.[309] However, a person must not be taken to have a physical, mental, psychological or intellectual condition only because they:

1. are eccentric;

2. do or do not express a particular political or religious opinion;

3. are of a particular sexual orientation or expresses a particular sexual preference;

4. engage or have engaged in illegal or immoral conduct; or

5. take or have taken drugs, including alcohol. (Nevertheless, any effects of a drug may be taken into account).[310]

The Guardianship and Management of Property Act 1991(ACT) defines a person’s “interests” to include the following:

1. protection of the person from physical or mental harm,

2. prevention of the physical or mental deterioration of the person,

3. the ability of the person to—

(a) look after themselves, and

(b) live in the general community, and

(c) take part in community activities, and

(d) maintain their preferred lifestyle (other than any part of the person’s preferred lifestyle that is harmful to the person),

4. promotion of the person’s financial security,

5. preventing the wasting of the person’s financial resources, and

6. preventing the person becoming destitute.[311]

If these and the other relevant interests of the person the hearing is about are likely to be significantly adversely affected, ACAT may make a guardianship order in relation to them if the other criteria for making an order are met.

If satisfied as to the three matters set out at the beginning of 6. 9. 4 namely that:

1. the person the hearing is about has impaired decision-making ability in relation to a matter relating to their health or welfare, and

2. there is a need to make a decision about that matter, and

3. if a guardian is not appointed, the person’s needs will not be met or there interests will be significantly adversely affected ,

ACAT may, appoint a guardian for the person, with the powers that ACAT is satisfied are necessary or desirable to make decisions for the person in accordance with the decision-making principles.[312] In addition, the powers that ACAT gives to a person’s guardian are to be no more restrictive of the person’s freedom of decision and action than is necessary to achieve the purpose of the guardianship order.[313]

6. 9. 5. Appointing a guardian

ACAT can appoint either private persons who are 18 year and above or the Public Advocate as guardians.[314]

A private person may be appointed as a guardian only if ACAT is satisfied that they person will follow the decision-making principles and are otherwise suitable for appointment.[315] When deciding whether a potential guardian will do this, ACAT must take into account at least the following:

1. the views and wishes of the person for whom a guardian is to be appointed,

2. the desirability of preserving existing family relationships,

3. whether the potential guardian and the person the hearing is about are compatible,

4. whether the proposed guardian lives in the ACT,

5. whether the proposed guardian will be available and accessible to the person the hearing is about; and

6. the nature of the functions to be exercised under the order and whether the proposed guardian is competent to exercise them; and

7. whether the interests and duties of the proposed guardian are likely to conflict with the interests of the person the hearing is about to the detriment of those interests. With regard to this matter, the interests and duties of the domestic partner or a relative of a person must not be taken to be likely to conflict with the interests of the person the hearing is about only because of the fact of being the domestic partner or relative.[316]

The Public Advocate does not have to satisfy ACAT as to these matters before she can be appointed as a guardian.[317]

ACAT must not appoint a private person as a person’s guardian unless the private person consents in writing to the appointment and has informed ACAT, on oath, whether they:

1. have been convicted or found guilty of an offence involving violence, fraud or dishonesty,

2. have been, either in the ACT or elsewhere, refused appointment as a guardian or manager, or removed from office as a guardian or manager; or

3. is bankrupt or has executed a personal insolvency agreement (and, if so, has given particulars to ACAT).[318]

While the Public Advocate may be appointed as a guardian by ACAT, ACAT must not appoint her if an individual who is otherwise suitable has consented to be appointed.[319] The idea that the Public Advocate is the guardian of last resort is further emphasised in the Australian Capital Territory by the obligation imposed on the Public Advocate, when appointed as a guardian, to endeavour to find a suitable person to be appointed as the guardian and if a suitable person is found, to apply to ACAT for the appointment of that person as guardian.[320]

6. 9. 6. Joint, several and replacement guardians

Private persons may be appointed as joint guardians.[321] If one of the joint guardians dies, becomes incapable, resigns or otherwise ceases to be a guardian, the remaining guardians continue and the guardianship order continues to operate.[322] There is nothing in the Act to preclude ACAT appointing one or more guardians as “several” guardians with separate powers and duties.

There is no specific statutory provision for the appointment of replacement guardians, ACAT has power to do so as it is required to conduct a review of a guardianship order where “under the order of appointment” someone else becomes the replacement guardian.[323]

6. 9. 7. Types of guardianship orders

The Guardianship and Management of Property Act 1991 (ACT) does not make a distinction between plenary (full) and limited orders. It sets out some of the functions of guardians and some of the matters that are outside the powers or functions of guardians to make decisions about.[324] In addition, as already noted, ACAT is limited to giving to guardians only those functions that are no more restrictive of the freedom of decision and action of the person under guardianship than is necessary to achieve the purpose of the guardianship order.[325] Nevertheless, many of the orders made by ACAT are plenary in effect on the grounds that it may not be possible to predict with accuracy the decision-making functions the guardian may need.

6. 9. 8. Emergency orders

ACAT can make emergency guardianship orders, lasting no longer than 10 days, appointing the Public Advocate as a person’s guardian without holding a normal hearing if ACAT is satisfied that there are special circumstances of urgency that make it proper to do so.[326] Examples of situations in which such orders are made include where substitute consent is required for medical treatment or where there is a need for a litigation guardian to be appointed.

The question of the degree of proof required in relation to whether the person the hearing is about first has impaired decision-making ability in relation to a matter concerning their health or welfare, second whether there is a need to make a decision about that matter, and third, if a guardian is not appointed, the person’s needs will not be met or there interests will be significantly adversely affected, has not been resolved in relation to emergency guardianship orders. There is no indication in the legislation that it should be any less than proof on the civil standard of the balance of probabilities. In any event, as the application is usually made by the Public Advocate, it is accompanied by one or more doctor’s reports about the person’s decision-making ability and information, albeit often hearsay, about the other matters that ACAT has to be satisfied about, the information before ACAT usually meets the standard of proof required.

6. 9. 9. Removal orders

ACAT may in carefully circumscribed circumstances issue a warrant authorising the Public Advocate, with the police officers that may be required, and using only the force that is necessary and reasonable, to enter that place and remove a person.[327]

First, this part of ACAT’s jurisdiction may be exercised by ACAT’s Presidential or Deputy President or a Supreme Court Judge or a magistrate. Second, they may act only on the written application of the Public Advocate. This application must be accompanied by a statement setting out the information in support of the application. If it is impracticable for the Public Advocate to apply in writing, the application may be made by telephone or other appropriate means. Thirdly, before ACAT, Judge or magistrate may issue the warrant, they must be satisfied that grounds exist for the appointment of a guardian, and that the person is:

1. because of a physical, mental, psychological or intellectual condition, likely to suffer serious damage to their physical, mental or emotional health if not removed from a particular place, or

2. being unlawfully detained in a particular place.

All information given to ACAT, whether oral or in writing, in support of the application must be given on oath. A warrant lasting no more than 14 days may be issued as a result of the hearing. It must specify:

1. the purpose for which it is issued,

2. the person whose removal it authorises,

3. the place from which that removal is authorised,

4. particular hours during which the removal is authorised or that removal is authorised at any time of the day or night and

5. the date when it ceases to have effect.[328]

6. 9. 10. Directions, advice or opinion to guardians by Tribunal

ACAT may give a guardian directions, advice or an opinion about the exercise of their functions or powers under a guardianship order if they apply to ACAT for such directions, advice or opinion.[329]

6. 9. 11. The powers and functions of a guardian

The Guardianship and Management of Property Act 1991 (ACT) provides that the powers (in other jurisdictions called functions) that may be given to a guardian include the following:

1. to decide where, and with whom, the person under guardianship is to live,

2. to decide what education or training they are is to receive,

3. to decide whether they are to be allowed to work,

4. if the person under guardianship is to be allowed to work - to decide the nature of the work, the place of employment and the employer;

5. to give or refuse consent on their behalf for a medical procedure or other treatment (other than a prescribed medical procedure);

6. to bring or continue legal proceedings for or in the name of the person under guardianship.[330]

Whether guardians elsewhere in Australia have this last function may be open to debate because it involves taking actions and making decisions that have financial implications for the person under guardianship and consequently could be seen as matters for an administrator. The other functions mentioned are common ones for guardians. However, these matters are dealt with in more detail in Chapter 7.

The Guardianship and Management of Property Act 1991 (ACT) also provides that a guardian may not discipline the person under guardianship nor may they do any of the following things for the person under guardianship:

1. vote in an election,

2. make a will or other testamentary instrument,

3. consent to the adoption of a child,

4. give a consent to a marriage, or

5. give a consent required for a prescribed medical procedure for the person under guardianship.[331]

To carry out any of these functions, other than the last one, may be seen as too personal a matter for a guardian to do elsewhere in Australia. Again, these matters are dealt with in more detail in Chapter 7.

The Guardianship and Management of Property Act 1991 (ACT) provides for a set of decision-making principles that require a guardian to exercise “substituted judgment”, that is to make decisions for the person under guardianship according to their wishes wherever those wishes can be worked out, unless making the decision in accordance with those wishes is likely to significantly adversely affect the of the person under guardianship. Nevertheless, even if giving effect to those wishes is likely to significantly adversely affect the interests of the person under guardianship, the guardian must give effect to those wishes as far as possible without significantly adversely affecting the interests of the person under guardianship.[332]

It is the obligation of a guardian, if the wishes of the person under guardianship cannot be given effect to at all, to promote the interests of the person under guardianship when making decisions for them while, at the same time:

1. interfering with the life and lifestyle of the person under guardianship to the smallest extent necessary,

2. encouraging them to look after themselves as far as possible, and

3. encouraging them to live in the general community, and take part in community activities, as far as possible.[333]

Furthermore, before making a decision, the guardian is required to consult with the each carer of the person under guardianship, unless to do so would, in the guardian’s opinion, adversely affect the interests of the person under guardianship.[334]

6. 9. 12. Reviews of guardianship orders

When ACAT appoints a guardian, the appointment continues until:

1. the death of the person under guardianship,[335]

2. ACAT removes the guardian if ACAT is satisfied that the guardian is no longer suitable, competent, has neglected to perform the duties and functions of guardian, or has contravened a particular provision of the Guardianship and Management of Property Act 1991 (ACT),[336]

3. the guardian resigns in writing addressed to the ACAT.[337]

Nevertheless, ACAT must hold a review of each guardianship order at least once every three years to see whether the order should be:

1. varied,

2. revoked on the ground that it is no longer needed, or

3. whether the guardian should be removed.[338]

In there is an on-going need for the guardianship order, and no apparent dispute about that fact, the review will usually be conducted “on the papers” without a full hearing.

Reviews may also be held as a result of an application or on ACAT’s own initiative.[339] Reviews must also be held if the guardian dies or a replacement guardian, provided for in the guardianship order, becomes the guardian.[340] In the past guardians have been encouraged to ask for a review the guardianship order if they believe that there is no longer a need for guardianship. The person under guardianship or other interested persons can also request a review if they believe that guardianship is no longer necessary. For these kinds of reviews, ACAT will hold a hearing and will revoke the order if satisfied, after applying the policy of least restrictive alternative underlying the Act, that it is no longer needed.[341]


6. 9. 13. Parties to and procedures for, reviews of guardianship orders

ACAT will conduct either hearing “on the papers” or a full hearing to review a guardianship order. It is suggested that those entitled to receive notice of and attend such hearings are the same as those entitled to notice of and attendance at the hearing of an application for a guardianship order.

6. 10. Northern Territory

6. 10. 1. Who has jurisdiction to appoint guardians?

The Adult Guardianship Act 1988 (NT) empowers the Local Court of the Northern Territory to make guardianship orders.[342] That Act does not specifically deal with the parens patriae jurisdiction of the Supreme Court of the Northern Territory, which the Court inherited from the Supreme Court of South Australia when the Northern Territory became a territory of the Commonwealth of Australia in 1911.[343] The Act makes the Supreme Court the appeal body for decisions or determinations made by the Local Court under the Act.[344] In practice, as shall be seen below, guardianship orders are made by the Local Court after receiving a report and recommendations from a Guardianship Panel. Whether the Supreme Court has lost its jurisdiction in relation to the guardianship of incapable adults is an open question. That court could decide that it retained that jurisdiction or it could follow the opinion expressed by Morris J of the Supreme Court of Victoria that because Victoria has comprehensive laws in relation to guardianship and administration matters he doubted that the parens patriae jurisdiction of the Supreme Court of Victoria “should play any current role in the day to day administration of guardianship matters”.[345]

6. 10. 2. Who may apply for a guardianship order?

While the Adult Guardianship Act 1988 (NT) does not state in terms that it applies to persons “under a disability” who are aged 18 years and above, the name of the Act implies this and the term “adult” is defined in the Act to mean a person who is 18 years or above.[346] The Act limits those who may make an application for a guardianship order to the following:

1. a near relative of the person the application is about,

2. a person who is providing substantial care and attention to that person, or

3. the Public Guardian.[347]

The term “near relative” is defined to mean:

1. a parent of the person;

2. a spouse of the person, including a person who is not legally married to the first-mentioned person but who lives with that person on a bona fide domestic basis;[348]

3. a de facto partner of the person; or

4. another relative of the person.[349]

In a Territory in which more than a quarter of the population are aboriginal people, there is an obvious need to have regard to different kinds of kinship groups and to the responsibilities recognised in custom that may fall on those who have certain relationships with adults with a disability. Consequently, the term "another relative" is further defined to mean a reference to a person connected by blood relationship, marriage, de facto relationship, adoption or custom to the person with a disability. For this purpose persons are connected:

1. by blood relationship if within the fourth degree of relationship;

2. by marriage if one is married to the other or to a person who is connected by blood relationship to the other;

3. by de facto relationship if one is in a de facto relationship with the other or with a person who is connected by blood relationship to the other;

4. by adoption if one has been adopted as the child of the other or as a child of a person who is within the third degree of relationship to the other; and

5. by custom if the relationship is generally regarded in a community as being akin to one of blood, marriage or adoption.[350]

In addition to these possible applicants, the Local Court may direct any person to make an application for a guardianship order in relation to a person with a disability.[351] While no one else may make an application for a “normal” guardianship order, as shall be seen later, anyone may make an application for a temporary guardianship order.[352]

While the Adult Guardianship Act 1988 (NT) provides that applications are to be made to the Local Court, in practice most applications are made to the Adult Guardianship Executive Officer, an office established under the Act and separate from the Court.[353]

The making of an application sets in motion a process by which the Minister, upon being advised by the Executive Officer that an application for a guardianship order has been made, sets up a Guardianship Panel to advise, give reports and make recommendations to the Local Court relating to that application.[354] The Panel is required to complete its functions in relation to the application within six weeks of the application being referred to it.[355]

It should be noted that under the Act, the Minister is also the Public Guardian.[356] However, as provided for in the Act, the Minister’s functions have been delegated.[357] The function of appointing the Panel has been delegated to the Executive Officer and the role of Public Guardian has been delegated to the holder of the position of Assistant Secretary, Community Services Division, Department of Health and Community Services.

6. 10. 3. Dealing with an application for a guardianship order

Although family members and carers are required to make most of the applications for guardianship orders in the Northern Territory, they are usually unfamiliar with what guardianship is about, the processes that have to be followed in order to obtain an order and why an order should be sought. Consequently, the Executive Officer and staff do most of the gathering of information about each application.

While this is being done, the Executive Officer, as delegate of the Minister, establishes a new Guardianship Panel to handle the first part of the process. A new Panel has to be established for each application. A Panel comprises:

1. the Executive Officer as chair of the Panel;

2. a person who has expertise in the assessment of persons with an intellectual disability;[358] and

3. a member of the community in or near to which the person the application is about lives.[359]

The role of the Panel is, acting through the Executive Officer, to obtain either from persons having the appropriate qualifications or expertise, or from the members’ own knowledge, such information as will enable the panel to provide advice or recommendations to the Local Court, which carries out the second stage of the process, on the following matters:

1. the extent of the person’s intellectual disability;

2. the nature and extent of any support system which is available to maintain the person in the community in which they live;

3. the nature and extent of any support system which was used by or provided to the person;

4. any matters of cultural significance to the person or the community in which they live;

5. whether or not a guardian should be appointed for the person.

If the Panel recommends the appointment of a guardian, the Panel is required also to advise on:

1. the suitability of the proposed guardian as guardian of the person the application is about:

2. any limitations which should be incorporated into the guardianship order; and

3. the implications, effects or results that a guardianship order may have on the person, their family and relatives and the community in which the person lives.[360]

Each Panel is also required to make or obtain an estimate of the value of the person’s estate.[361]

Because the role of the Panel is so critical in the process of dealing with an application for a guardianship order each Panel must operate in a way that is procedurally fair, even though the Adult Guardianship Act 1988 (NT) does not specifically provide for it.

This means that the person the hearing is about is entitled to attend the meetings of the Panel relevant to their application, to hear what is being said about them and to have access to copies of any relevant written reports, documents or notes, or access to information about them, that is provided to the Panel. They would also be entitled to an interpreter.

As with anyone else carrying out functions under the Act, the Panel must perform its functions so that the least restrictive approach to the person’s freedom or decision-making and action-taking as possible in the circumstances is adopted in its recommendations. The Panel is required to promote the best interests of the person and to give effect to his or her wishes wherever possible.[362]

When it has completed its functions, the Panel must give its report to the Local Court and the application is set down for hearing. This is the second part of the process of making a guardianship order in the Northern Territory. The Executive Officer is required by the Adult Guardianship Act 1988 (NT) to attend all guardianship proceedings in the Court. In particular, the Executive Officer is required to present to the Court the advice, reports and recommendations of the Panel in relation to each application for a guardianship order.[363]

The application is dealt with by a Magistrate in open court. The Magistrate conducting the hearing has broad powers, under the Adult Guardianship Act 1988 (NT), to regulate their own hearings generally or in a particular case. However this power is subject to the relevant requirements of the Act and any direction of the Chief Magistrate.[364]

The Magistrate hearing the application is not bound by the rules or practice as to evidence and may inform themselves in such manner as they think fit, including admitting evidence that would not be admissible in a court bound by the strict rules of evidence.[365] In addition to accepting the advice, report or recommendation of the Panel, the Magistrate, through the Executive Officer, may require any officer of a Northern Territory or Commonwealth Department or Statutory Authority, or a service provider, the Public Guardian, a guardian or manager of an estate, including the Public Trustee, to provide a report on any matter relating to the proceedings.[366] Also, the Magistrate may interview the person, a near relative, the applicant or any other person the Magistrate thinks fit.[367]

It is the statutory obligation of the Executive Officer to ensure that the person the application is about is represented by a lawyer at any hearing.[368]

6. 10. 4. Who may take part in the hearing?

A range of people are entitled to make representations to the Court at the hearing of an application for a guardianship order. They are:

1. the person the hearing is about or the lawyer representing them;

2. the Executive Officer on behalf of the Guardianship Panel;

3. the applicant;

4. a near relative of the person;

5. any relative or person who has relevant information relating to the care of the person;

6. the Public Guardian; and

7. any other person the Court considers necessary.[369]

Because these people are entitled to make representations, there is an argument that they are entitled to notice of the hearing. However, there could be difficulties in many cases in determining who exactly were the relevant “near relative” and who is a “person who has relevant information that relates to the care of” the person the application is about. While some of these, particularly the person the application is about and the applicant should be treated as parties, others, including service providers who may have very relevant information relating to the care of the person the application is about, do not need to have that status, except in exceptional circumstances.

It appears from the Adult Guardianship Act 1988 (NT) that the person the application is about is entitled to notice of the hearing in the Local Court and that that notice must be served personally on them.[370] The person serving the notice must “to the maximum extent possible” explain the content of the notice to the person the application is about “in the language, mode of communication and terms which the person is most likely to understand”.[371] Where possible such notice must be given both orally and in writing.[372] This means that the person serving the notice must be someone who understands what adult guardianship in the Northern Territory is about and is able to explain it to the person the application is about according to the requirements of the section.

People other than the person the application is about can be served by post at their usual or last known address.[373]

6. 10. 5. What has to be proved before an order can be made?

Before the Local Court may appoint a guardian for a person 18 years of older, called an “adult guardian” in the Northern Territory, it must hold a hearing and be satisfied that the person the application is about is:

1. a person under an intellectual disability; and

2. in need of an adult guardian.[374]

The term “intellectual disability” is defined in the Adult Guardianship Act 1988 (NT) to mean “a disability in an adult resulting from an illness, injury, congenital disorder or organic deterioration or of unknown origin and by reason of which the person appears to be unable to make reasonable judgments or informed decisions relevant to daily living”.[375]

There has been a difference of view between the magistrates of the Local Court as to whether a mental illness is an intellectual disability as that term is defined in the Act. In 2004 a magistrate took the view that the inability to make reasonable judgments or informed decisions relevant to daily living arising from mental illness was not an intellectual disability within the scope of the definition.[376]This view was consistent with the view of the Chief Magistrate in a 2003 case.[377]

However, in a 2005 case, Magistrate Blokland held that schizophrenia was an intellectual disability as defined in the Adult Guardianship Act 1988 (NT). She rejected the restrictive approach taken by her colleagues based on the distinction between “physical” illness or injury on the one hand and “mental” or “psychiatric” illness or injury on the other because, as the medical literature shows, there is not always a clear line between the two and that many so called “mental” conditions have physical pathology.[378] She also noted her intention, “unless satisfied to the contrary view in the future, or there is a successful review of this decision” to continue to take the more expansive approach to the term “illness” in the Act.[379]

When exercising its jurisdiction to make a guardianship order, the Court must:

1. adopt the least restrictive approach to the person’s freedom or decision-making and action-taking as is possible in the circumstances;

2. promote the best interests of the person; and

3. give effect their wishes wherever possible.[380]

6. 10. 6. Appointing a guardian

The Court may appoint as a guardian a person who is 18 years or above and who consents to act as guardian. However, before appointing such a person, the Court has to be satisfied that that person:

1. will act in the best interests of the person under their guardianship,

2. does not have interests that do or may conflict with the interests of the person under guardianship, and

3. is a suitable person to be guardian of the person under guardianship.[381]

When deciding whether the person is suitable to act as guardian of the person under guardianship, the Court must take into account:

1. the wishes of the person under guardianship,

2. the desirability of preserving their family relationships,

3. the compatibility of the proposed guardian with the manager of the person’s estate if an order is made placing their estate under management under the provisions of the Aged and Infirm Persons’ Property Act 1979 (NT).[382]

The Adult Guardianship Act 1988 (NT) provides that being a near relative does not, on its own, create a conflict of interest.[383] This is consistent with the idea of preserving family relationships. It also ensures that the perceived rather than real conflicts which arise from people being close relatives do not preclude close relatives being appointed as guardians.

The structure of the Adult Guardianship Act 1988 (NT) indicates a legislative preference for a relative to be appointed as the guardian of the person under guardianship. However, the Act does provide for the Public Guardian to be appointed where a person needs a guardian and no other person meets the criteria for appointment as a guardian set out above.[384]

It should also be noted that in the Northern Territory, the Local Court may, if it is satisfied at the hearing of an application for a guardianship order, that the adult guardian is competent to manage the estate of the person the application is about, appoint the adult guardian to be the manager of the estate subject to such terms and conditions as the Court thinks fit.[385]

6. 10. 7. Joint, several and alternate guardians

The Act provides for the appointment of joint guardians. Private persons can be appointed as joint guardians provided each of them meets the criteria for being appointed a guardian and the Court considers it appropriate to appoint them as joint guardians.[386] Those appointed as joint guardians carry out the powers and duties of a guardian jointly. The Public Guardian can be appointed as one of the joint guardians and is regularly appointed in that capacity.[387]

There is nothing in the Act to preclude the Court appointing one or more guardians as “several” guardians with separate powers and duties. However, the Act does not provide for the appointment of alternate guardians. As there have to be statutory arrangements for when an alternative guardian can act as guardian, the better view is that the Court cannot appoint alternative guardians in the Northern Territory.

6. 10. 8. Types of guardianship orders

6. 10. 8. 1. Full orders

When the Court makes a full (plenary) order, it confers on the guardian all the powers and duties of a guardian as the guardian were a parent and the person under guardianship their infant child.[388] The Act states explicitly that these powers include in relation to the person under guardianship:

1. deciding where they are to live;

2. deciding with whom they are to live;

3. deciding whether they should or should not be permitted to work and if so, the nature or type of the work, for whom they are to work and related matters; and

4. consenting to health care that is in their best interests.[389]

Full orders may be subject to such conditions and restrictions as the Court thinks fit.[390]

6. 10. 8. 2. Conditional orders

The Court may also make conditional (limited) orders. These confer on the guardian one or more of the powers and duties of a guardian.[391] Like full orders, conditional orders may be subject to such conditions and restrictions as the Court thinks fit.[392]

6. 10. 8. 3. Temporary orders

The Court can make temporary guardianship orders on the application of any person, even when a guardianship application has already been made under the procedure described above.[393] If the Court considers that the circumstances of the person the application is about are such that a hearing should be held without unreasonable delay, the Court may hold a hearing applying the procedures mandated in the Act “with such modifications as are necessary in respect of the hearing”.[394]

If at the hearing the Court is satisfied that the person the application is about is a person with an intellectual disability and is in need of a guardian, it may appoint the Public Guardian or any other suitable person as guardian for up to 90 days.[395] The court may make either a full or conditional order and make the order subject to such conditions it considers fit.[396]

If the Court makes a temporary order, it must then conduct another hearing before the expiry of the temporary order, to determine whether or not to make a “normal” guardianship order and, if so, whether it should be a full or conditional order.[397] This second hearing is conducted after the Executive Officer, as the Minister’s delegate, has appointed and convened a Panel, has gathered the necessary evidence and developed its recommendation to the Court.

Temporary orders are intended to deal with urgent situations and could be used to deal with situations for which removal orders and similar orders are used in the States and the Australian Capital Territory.

6. 10. 9. The powers and functions of a guardian

Some of the more common functions of a guardian are set out above in relation to full guardianship orders. The powers and functions of a guardian are dealt with in detail in Chapter 7.

6. 10. 10. Reviews of guardianship orders

The Adult Guardianship Act 1988 (NT) requires the Local Court to review a guardianship order within two years of making it or at its expiry if the Court makes it for a shorter period (a “statutory review”).[398] The Court is also empowered to review a guardianship order of its own volition or on the application of the person under guardianship or another person on their behalf, the Public Guardian or any other person (a “requested review”).[399]

The Executive Officer has a number of roles to play in preparing statutory and requested reviews for hearing. The first of these is to ensure that notice of the review is provided at least 14 days before the review is to be held to the following people:

1. the person under guardianship and the lawyer representing them,

2. the guardian,

3. the Public Guardian, and

4. any administrator or manager of the estate of the person under guardianship, including the Public Trustee.[400]

These people could be seen as parties to a guardianship review. The person under guardianship must be served personally with the notice of the review and the contents of it explained to them.[401]

The second role of the Executive Officer is to ensure that the person under guardianship is represented by a lawyer at the review. Such representation is implied by the Executive Officer’s obligation to ensure that notice of the review is provided to the lawyer representing that person at the review.[402]

A third role for the Executive Officer in relation reviews is to prepare and provide the Court with such information and reports as the Court considers necessary in order to:

1. determine the effectiveness of the guardianship order in providing for the care and protection of the person under guardianship;

2. consider the need for the order to continue;

3. consider any changes in the circumstances of the person under guardianship or their guardian; and

4. determine any changes to the existing order which might be necessary.[403]

A fourth role arises because, as already noted, in the Northern Territory, a guardian can be appointed, as guardian, to manage of the estate of the person under their guardianship. If they are so appointed, they must, at least once a year, give an account to the Executive Officer of their management of the estate “showing assets and liabilities and receipts and payment” in relation to the estate.[404] The Executive Officer must report on the management of the estate to the Court at the review of the guardianship order.[405]

The final role for the Executive Officer is to attend the Court in all guardianship proceedings under the Adult Guardianship Act 1988 (NT), including review proceedings.[406]

6. 10. 11. Powers of Local Court on review

At the completion of the review the Court may, by order, revoke, amend, vary or continue the guardianship order and may place any conditions or restrictions the Court considers necessary on the continued, varied or amended order.[407] In addition, in relation to the management of the estate of the person under guardianship, the Court may vary or terminate the appointment of the guardian as manager of the person’s estate. In fact the Court can do this at any time, subject to meeting the requirements of procedural fairness. It need not wait until a review of the relevant guardianship order.[408]

6. 11. Case law relevant to all jurisdictions

While the legislative provisions in the different States and Territories of Australia relating to the criteria that make a person “in need of a guardian” and deal with the choice of guardian are differently worded, they are all similar in effect. Also the fact situations that give rise to the need for guardianship orders to be made are replicated throughout the country. Consequently, the decisions made in one jurisdiction can be relevant to all the other Australian jurisdictions and common law jurisdictions elsewhere.

6. 11. 1. Withdrawal of an application

Because the ethos of the tribunals and other governmental bodies carrying out functions within the Australian guardianship system is to interfere as little as possible in the lives of adults with decision-making disabilities, consistent with acting in their best interests, many applications for guardianship orders are withdrawn administratively without the need to proceed to a hearing. This is because the matters which gave rise to the application have either disappeared or been resolved. This is often achieved by those involved realising that there is an alternative way of dealing with the matter that is less restrictive of the person with the disability’s freedom of decision-making or action or by conciliating out or mediating an outcome that meets the person with the disability’s best interests without the need to seek a guardianship order in relation to them.

In New South Wales the Guardianship Tribunal cannot, unless it considers that it is not possible, or appropriate, to attempt to do so, make a decision in relation to a guardianship application until it has brought, or used its best endeavours to bring, the parties to the application to a settlement.[409] This process starts with the staff of the Tribunal dealing with the matter and continues into the hearing where appropriate. Consequently, a number of applications are withdrawn at the hearing stage.[410]

Nevertheless there are circumstances in which the applicant may wish to withdraw the application but the Tribunal does not consider that it is in the best interests of the person the subject of the application for this to happen. The Tribunal has administrative processes in place to ensure proper consideration of requests for withdrawal, but sometimes the Tribunal, relying on its obligation under the principles of the Guardianship Act 1987 (NSW) to give paramount consideration to the welfare and interests of persons with disabilities, will insist that a matter goes to hearing.[411]

In Victoria, VCAT has a discretion under the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to give leave to an applicant to withdraw their application.[412] In Queensland an application may be withdrawn only with the leave of the QCAT.[413] In a 2006 case, VCAT discussed this discretion when the applicant sought to withdraw the application on the basis that the concerns raised in the application when it was made had been resolved to an extent, in that the person with the disability was currently receiving ongoing specialist medical treatment, including appropriate and effective medication, with good effect.[414]

VCAT noted that the Guardianship and Administration Act 1986 (Vic) imposed an obligation on it to ensure that the best interests of a person with a disability were promoted. Accordingly, VCAT would not grant leave to withdraw an application if there were outstanding concerns as to whether the best interests of a person with the disability would be promoted, or adequately protected if the leave to withdraw was granted. VCAT decided that in the absence of any other evidence of ongoing concerns as to whether the person with the disability’s best interests were being promoted, or adequately protected, there appeared to be no reason not to grant leave to withdraw the application. Consequently, it granted the leave requested.[415]

The Guardianship and Administration Act 1993 (SA) takes a different approach from that outlined above. It neither establishes nor applies a best interests test. Instead, it leaves the matter of withdrawal in the hands of the applicant by stating in terms:

Nothing in this Act will be taken to prohibit a person from withdrawing an application made by him or her under this Part at any time prior to a final determination being made on it by the Board.[416]

6. 11. 2. Incapacity issues

6. 11. 2. 1. Does the person have a disability?

In the overwhelming majority of guardianship cases whether initial applications, reviews or reassessments, the disability of the person the hearing is about is not in dispute. A typical example is the Tasmanian case of HDH who had had a stroke and had hearing and balance difficulties as a result of Menniere’s Disease and who had moderate to severe Alzheimer’s Disease.[417] However, in a few cases the question of whether or not the person the hearing is about has a disability will arise as will the question of whether the disability leads on to incapacity.[418]

There is a broad range of disabilities that can lead on to incapacity in adults, but dementia is the biggest cause by far. Other significant contributors are mental illness, intellectual disability and acquired brain injury whether through accident or drug or alcohol related.[419] Anorexia nervosa, particularly when there is evidence of testing showing that it is the likely cause of demonstrable cognitive impairment can lead on to a finding of incapacity.[420]

In rare cases a person may need a guardian because of their physical or sensory incapacity rather than their cognitive impairment. In a 1993 case the New South Wales Guardianship Tribunal (then called the Guardianship Board) appointed the Public Guardian as guardian of a woman who was almost completely blind and who had spasticity to three of her four limbs and was dependant in most aspects of self care. Although she had no major cognitive problems affecting her comprehension and communication, her physical and sensory disabilities restricted her in many life activities to the extent that she required supervision. The Tribunal gave the Public Guardian the functions of making decisions as to the services the woman needed and of assisting her in effecting day to day financial transactions and facilitating her access to her finances.[421]

Nevertheless, there are limits on what is a disability. The overuse or abuse of alcohol or drugs is not, of itself a disability; however, an abuser of alcohol or drugs may at some point develop a disability and incapacity as a result of the damage they have done to their brain and their body. The overuse of drugs and alcohol in a person in their late teens may show their rebelliousness and be a manifestation of their immaturity, arrogance and irresponsibility and may drive their parents to wanting a guardianship order to control and help their troubled child, but that is neither the purpose of guardianship nor is it within the powers of the Australian guardianship tribunals and courts to make guardianship orders in those circumstances.[422]

Occasionally an application will be made for an inappropriate purpose, for example to gain an advantage in Family Court proceedings for divorce, custody of children or property settlement. Early in its history a small number of such applications were made to the New South Wales Guardianship Tribunal (then Board). A 1993 case is an example. In that case a husband applied for a guardian to be appointed for his wife. The medical evidence before the Tribunal was that his wife had no cognitive incapacity. The Tribunal held that the application was frivolous and vexatious and awarded costs against the husband.[423]

6. 11. 2. 2. Does the disability lead on to incapacity or an inability to make reasonable judgments?

The legislation in the different States and Territories provides for different tests for this step in the process of deciding whether the person the hearing is about is one for whom a guardianship order could be made or could be continued. Again, the case of HDH provides an example of a case in which the evidence demonstrated declining capacity or increasing cognitive impairment on the part of the person the hearing was about. The declining cognitive capacity of that person resulted in a doctor assessing them as being unfit to make any significant decisions about their future. Other witnesses corroborated this by reporting that HDH was “disoriented in time and location, reflecting increasingly upon his earlier life overseas in preference to any discussions about recent events”. This led the Tasmanian Guardianship and Administration Board to be satisfied that HDH was “unable,

by reason of his disability, to make reasonable judgments in respect of matters

relating to his person or circumstances”.[424]

The presumption of capacity always applies which is why the tribunals dealing with guardianship applications need to have evidence before them satisfying them that the person the hearing is about has lost, or never had, capacity before they may proceed to make a guardianship order even though “everybody knows” that the person does not have capacity. The presumption of capacity has to be rebutted on the civil standard of “balance of probabilities” by evidence presented to the tribunal dealing with the matter.[425]

6. 11. 3. Need for a guardian

6. 11. 3. 1. The common law

It has been long established by the common law that guardians are appointed for the benefit of those with decision-making disabilities and not for the benefit of others.[426] Powell J noted in 1984 that the Supreme Court of New South Wales would not normally exercise its (guardianship) jurisdiction, “unless it is at least desirable, if not necessary, in the interests of the [person the application is about] that it do so”.[427]

Under the modern guardianship systems set out in legislation where informal arrangements are working and the incapable person’s needs are being appropriately met and their interests adequately protected, there will be no need to make a guardianship order.[428]

6. 11. 3. 2. Need for a guardian involves best interests and least restrictive alternative

As part of the modern guardianship system, the legislation in the different States and Territories uses different language to describe what all the relevant tribunals have to be satisfied about in order to find that the person the hearing is about is in need of a guardian. Nevertheless, the tribunals must be satisfied that making the guardianship order is:

1. the least restrictive alternative for the person, and

2. in their best interests.

A Victorian case decided in 1988 shows this. The case concerned an elderly woman, Mrs M, who was totally dependent on others for her every need. She was in a nursing home. She was incontinent. She was unable to feed herself. She was incapable of understanding what was said to her and appeared not to understand what her eyes could see. She was visited every day by her daughter. Her daughter and her daughter’s husband attended to her every need. They applied for a guardianship order for Mrs M because although no issues had arisen in relation to Mrs M’s care, they were concerned that their lack of legal authority could cause difficulties in relation to medical treatment or if Mrs M had to be moved to another nursing home. The then Guardianship and Administration Board in Victoria held that there was no need for a guardianship order for Mrs M and then Administrative Appeals Tribunal of Victoria upheld that decision.[429] The President of that tribunal, Jones, J noted that the applicants were effectively fulfilling the role of guardians without a guardianship order and will continue to do so, and said:

In my view, it is the evident intent of the legislature that guardianship (particularly in its plenary form) should be the last resort to be utilised where no other viable, and less restrictive, protective means is available to meet the needs of the person. This involves considering whether the person to be represented is likely to benefit from guardianship as distinct from the person seeking to be appointed. Even where guardianship is considered necessary in the best interests of the person, it is the intention of the legislature that the least restrictive form available be applied.[430]

In coming to this view Jones J considered some New South Wales cases and noted that what had to be considered in making an order was the benefit to the person who would be the subject of the order, not the benefit to those seeking appointment as guardians.[431]

Underwood J of the Supreme Court of Tasmania having noted that the relevant provisions of the Victorian and Tasmanian legislation were virtually identical went on to apply Jones J’s approach.[432] The Guardianship and Administration Board of Tasmania has also followed this approach.[433]

In applying Jones J’s approach, Underwood J noted that:

The expression "best interests" as enacted in [the Tasmanian Act], does no more than reinforce the general concept that the paramount concern is the overall interest of the patient, just as in Family Law, the best interests of the children are the paramount concern in disputes involving their custody, care and management. The statute makes it clear that insofar as is possible, the preservation of the proposed represented person's freedom of action and decision is in their best interests and, as his Honour Judge Jones said in M's case, an order is the last resort.[434]

In the 2001 case, Re MM, the then Guardianship and Administration Board of Western Australia also followed this approach adopting the views of Underwood J

to the effect that if the tribunal dealing with the matter reaches the view that all the needs of the person the hearing was about could be satisfied by means less restrictive of their freedom of action and decision than would be the case if (a guardianship or) an administration order was made, then such an order should not be made. Accepting that this construction of the relevant legislation reflects the philosophy apparent in it namely that control over and restriction on a person under a disability is to be kept to a minimum. The Western Australian Board then went on to note that the need for a guardianship order can arise from the need to fill a legal vacuum and appoint someone with legal authority to make personal decisions on behalf of the person under guardianship “in order to resolve issues relating to [their] personal affairs”.[435]

It is respectfully suggested that de Jersey CJ’s decision in Williams v Guardianship and Administration Tribunal is inconsistent with both the policy and provisions of the Guardianship and Administration Act 2000 (Qld) and the approach taken to similar provisions elsewhere in Australia.[436] In that case Mr Williams applied to the then Guardianship and Administration Tribunal of Queensland to appoint his wife, his son and himself as joint guardians of his daughter, K, who was born in 1967 with micro-cephalic spastic quadriplegia. The Tribunal declined to make a guardianship order taking the view that there was no "pressing need for someone to be given specific legal authority to make a decision" for K. The Tribunal said that because of her “obvious vulnerability due to her total dependence on others”, what she needed was not a surrogate decision-maker, but “strong and effective advocacy” which was being provided by her family and which they could continue to provide. The Tribunal also stated that her parents were her statutory health attorneys and that it expected that her service-providers would respect her parents’ authority as attorneys and to comply with their decisions made under that authority. [437]

de Jersey CJ noted that K unable to care for or make most decisions for herself. She could communicate her wishes only through gestures and limited vocalisation. She required 24 hour assistance and supervision so that all of her daily personal needs could be met. He also noted the Tribunal’s acceptance of the parents’ frustrations in dealing with K’s service-providers and the “great concern” and “quite considerable disquiet” they felt over the service-providers’ neglect in relation to particular matters and the father's contention that the service-providers regularly challenged the parents’ views. He considered it compelling to accept, as reasonable, the family’s wish to be appointed guardians in order to ensure that K's needs and interests were adequately met and protected. He was doubtful about the Tribunal's expectation that the service-providers would respect health decisions of the parents because they had a PEG tube inserted in K contrary to the parent’s known wishes. He appointed the family members as K’s joint guardians.[438]

This was a situation in which the service-providers should have been expected to negotiate out a set of arrangements about K with her family, and for the family to play a constructive role in those negotiations. Even a person with capacities as limited as K’s is entitled to have the advantages of influences other than those of her family. In reality most decisions to be made on her behalf would have to be made by her service-providers as their provision of 24 hour care continued into the future. When significant decisions were to be made, K’s family representatives would have to be involved as a matter of proper practice and they would have to be informed about her on-going health and well-being through a process that, in the normal course where good will was present, would be easy to settle upon. Her medical and dental treatment would have to be consented to by her parents as her statutory health attorneys. The fact that they were made her guardians would not, of itself, overcome the unacceptable failure of her service-providers to seek their consent before the procedure to insert the PEG tube was undertaken. The process of seeking substitute consent from the parents would have to be worked out in discussion and the obligations of the service-providers in that situation appreciated.

The need for guardianship would arise in circumstances like these only in the event of a breakdown of the family, service-provider relationship where it could be shown that a guardian was needed in demonstrable interests of the person with the disability and not in the interests of others.[439]

It is also respectfully suggested that it was inappropriate for the Guardianship and Administration Tribunal of Queensland, in a 2006 case, to appoint the Adult Guardian as guardian for a woman with an intellectual disability in order to provide someone with formal legal authority to give “consent” for her to participate in the community by taking part in such things as sailing and horse-riding activities.[440] This was a matter to be taken up by the Adult Guardian and others as an issue to ensure that appropriate arrangements are worked out for people with decision-making disabilities to live as normal a life as possible in the community without having to suffer the stigma of being placed under guardianship in order to overcome the anxieties of others.

Each year there are applications to tribunals in Australia in which it is necessary to make guardianship orders in relation to people with decision-making disabilities because the evidence shows they need such orders because they lack insight into the problems confronting them and demonstrate this by expressing views which, if given effect to, would be seriously detrimental to their own interests.

In a 1989 case, Hart J sitting in the Victorian Administrative Appeals Tribunal noted that there must be cases in which a person’s capacity to express their wishes was so impaired as to render those wishes meaningless or valueless. He also noted that there must be cases in which the wishes of the person the hearing was about were impractical or unreal or physically impossible of performance or where the person’s wishes were in conflict with their best wishes “as objectively ascertained”.[441] In that case, involving a young man with Prader-Willi syndrome, Hart J considered that the young man’s wishes were governed by his psychosis and noted evidence that the young man had an extremely poor capacity to comprehend his situation and comply with treatment because of his low intelligence, that he could not comprehend more than the immediate consequences of his wishes, especially in relation to his health, and that he could not make judgments for the long term. When he added those matters to his psychosis, Hart J formed the view that it was not possible to give any real weight to the young man’s wishes.[442]

6. 11. 3. 3. The need for a guardian must be either present or proximate and neither premature nor “just in case”

Sometimes the making of a guardianship order can be seen to be premature; although it is not unusual for the making of an application for such an order to focus the minds of all those involved, including the person the subject of the application, on the facts that there are decision-making problems about personal matters that have to be addressed. An example of this is the South Australian case in which a person’s case manager made an application for a guardianship order in relation to her.[443] Mrs B was 71 years of age who lived at home with her husband. She had a “likely” diagnosis of multi-infarct dementia and also had diabetes mellitus, chronic airflow limitation and depression. For some years, domiciliary services have been offered to her but these were not always accepted. Personal and home hygiene had been ongoing problems for Mrs B who had had two recent hospital admissions.

The applicant’s view was that a trial of increased services should occur before decisions about the placement of Mrs B in an aged care facility could be made. If the community services are able to maintain Mrs B at home then residential care may be able to be avoided. The Board made a guardianship order in relation to Mrs B.

At the appeal to the District Court of South Australia, the evidence showed that since the order was made, Mrs B had accepted an increase in services provided in her own home which her case manager saw as a good outcome. The Court quashed the limited guardianship order stating:

[S]ince the hearing before the Board, domiciliary services have been increased significantly without the involvement of the guardian. It seems to us, albeit with the benefit of hindsight, that the order was premature, and that the application should have been adjourned pending the outcome of the trial of increased services envisaged by (the case manager). If there is any significant change in circumstances, such as in the availability of services or (Mrs B’s) acceptance of them, necessitating an admission to a nursing home or the making of other decisions in her interests but against her wishes, a further application to the Board can be made.[444]

There are other cases in which the person may, on an objective view, meet all the criteria for needing to have a guardian appointed for them, but be so opposed to the appointment of a guardian and determined to maintain their own independent lifestyle that the making of the order would be, at best futile, but more likely adverse to their best interests because of the effect on them of the knowledge that they are the subject of a guardianship order.[445]

It has been the practice of the Guardianship Tribunal in New South Wales to require that the evidence before it at a hearing be sufficient to satisfy it that the person the hearing is about needs a guardian either now or in the immediate future before it will make a guardianship order. This is consistent with the approach taken by the Supreme Court of New South Wales and VCAT.[446] In a 1994 case in Western Australia, the Public Guardian, as the Public Advocate was then known, “conjectured” whether a guardianship order could be made for a situation “if and when the need arises” and for it to “lie on the table until it was needed”. However, the then Guardianship and Administration Board found that there was no evidence of a present need for a guardian and dismissed the application[447] It is suggested that the view that the Australian tribunals have no jurisdiction to make “just in case” orders is based on both the statutory requirement that orders are not to be made unless the need for them is demonstrated to the level of satisfaction required by the tribunal hearing the application and the established common law relating to guardianship and administration that orders are not to be made unless there is a real necessity to do so.[448]

6. 11. 3. 4. On review, the need for a guardian must be continuing

Just because a person has had a guardian appointed for them at one time, and even if guardianship has continued for some time, it does not follow that that person should have a guardian for the rest of their lives, even if they are born with a whole of life intellectual disability. The circumstances of their lives will vary over time. Sometimes an order may be needed. At other times there will be no need for an order.[449] Guardianship orders may only be made where the person with a disability needs them. They are not to be made for the benefit of those seeking to be appointed or re-appointed guardians.[450]

6. 11. 3. 5. Guardianship sometimes needed to help a person to become more self reliant and to live, as far as possible, a normal life in the community

One of the paradoxes with guardianship is that while it is intended to be a last resort when no less restrictive alternative is available, it is sometimes becomes a necessary element in a process designed to give effect to the wishes of the person with the disability and to help them to become, as far as possible, self reliant in matters relating to their personal, domestic and financial affairs and to live as normal a life as possible in the community.[451] An example of this is the case of MW who, at the time of the guardianship application in relation to her was 20 years old. She had a borderline or mild intellectual disability and another disability that compromised her physical health and her vision.[452] The Guardianship and Administration Board of Tasmania was satisfied that she did have relevant disabilities and that while the level of intellectual disability would not normally be sufficient for the purposes of a guardianship application, the complexity of MW’s other health conditions had a cumulative effect on her capacity to make certain lifestyle and health care decisions and made her incapable of undertaking certain complex decisions required for the adequate long-term management of her health conditions.[453] The Tasmanian Board accepted the view that MW’s parents were overly protective and restrictive in their care of her and that in their efforts to preserve the support available to her from the family, they had failed to fully recognize her developmental needs for independence and broader social interaction.[454]

The Board considered it too restrictive to appoint MW’s parents as her guardian. It appointed the Public Guardian as MW’s limited guardian for a period of 13 months to ensure that policies, practices and competent staff were available to support her independent living and health care and further that an appropriate schedule of medical treatment and review was established to monitor her well-being.

6. 11. 3. 6. Need for a guardian because of disputes involving family, service providers and others

Guardianship orders are sometimes needed where there is a family dispute about where the person with a decision-making disability should live, what medical treatment they should receive or some other significant, personal decision which cannot be resolved by discussion and conciliation. These disputes can arise from disagreements between adult siblings, between different generations in the same family or when there are differences of view within a blended family or within an extended family and local community.[455] Sometimes family disputes about guardianship are irresolveable.[456]

A study of 50 cases of family and systems conflict in cases of dementia presented to the New South Wales Guardianship Tribunal, found that conflict most frequently occurred between adult children of the person with dementia. In ten of the twelve cases of multiple siblings, several siblings were in alliance against one “black sheep” carer sibling. In seven cases of sibling conflict the “black sheep” carer was significantly troubled with mental illness or burden including: schizophrenia or severe paranoid personality disorder (n= 2); substance abuse disorder (n=2); major depression (n=1) or “overburdened” or “unable to cope with caring” (n=2. One carer reluctantly conceded that he needed help “before I do something”. In all seven cases the carer was male, unemployed, and, save for one case, single and living with the person with dementia.

In 26% of cases there was some involvement of service providers in the conflict and in 12% of cases the conflict was solely between service providers and the family. In the latter cases the conflict was based on lack of communication and judgemental stances adopted by service providers (e.g. regarding family’s misuse of finances or the family’s neglect of their ageing relative).[457] Clearly, there are situations where differences between family members and service-providers cannot be resolved by discussion and conciliation, necessitating the making of a guardianship order in those circumstances. Often enough, but not always, in these cases it is also necessary for the tribunal dealing with the matter to appoint the Public Advocate or Public Guardian as guardian and not a family member.[458]

An example of an inter-generational disagreement involving a daughter and a husband from a recent marriage is the case of an 88-year-old woman whose lack of capacity was not in doubt. She had been born in South Australia and had lived there all her life. She had married her husband in 2000 and had a daughter who lived in Western Australia. Her daughter brought her to Western Australia in late 2004 because she felt that her mother, whose husband did not live with her, was living in a state of neglect and needed care.

In March 2005, WASAT appointed the Public Advocate as the elderly woman's guardian to decide where and with whom she should live. The Public Advocate decided that the woman needed care in an aged care facility in South Australia which was her home and was where her husband lived.

The daughter disagreed with the decision and sought review of the order appointing the Public Advocate as guardian. The daughter maintained that the husband was not willing or able to provide informal care and advocacy for his wife and that, although she required care in an aged care facility, she would be better cared for in Western Australia. The husband disagreed with the daughter and wanted his wife to return to South Australia so that he could visit her. His wife's consistently expressed the wish to live in South Australia and be near to her husband.[459]

The disagreement between the husband and the daughter about where the elderly woman should live, and the evidence that this difference of opinion was not open to resolution by informal meant that she had a continuing need for a guardian.[460]

The Tribunal decided to reappoint the Public Advocate as the elderly woman's guardian, as the suitable person to make the accommodation decision. The Tribunal felt that the daughter could not objectively consider her mother's needs as they related to her relationship with her husband.[461]

Nevertheless, not all cases in which opposing guardianship applications are made by family members in apparent conflict result in the making of guardianship orders. Some families will agree to disagree on some issues and still have factions but yet be able to agree on issues involving the family member the application was about in such a way that it becomes clear to all that a guardianship order was not required.[462]

Sometimes a spouse or other life partner has difficulty coming to terms with the fact that their spouse has dementia and to ensure their safety. In the 2009 case, 86 year old demented Mrs WBN’s had been admitted to an aged care facility.[463] Her husband, who had not been able to look after her, wanted to remove her from the facility. One of their adult children, supported by the others, applied to the NSW Guardianship Tribunal for a guardianship order. The Tribunal made the order, and after consideration, appointed the applicant as guardian with function of deciding accommodation issues for her mother and with authority to prevent outings from the aged care facility by Mrs WBN unless there were appropriate safety mechanisms in place.

6. 11. 3. 7. Need for a guardian where there is no person responsible/statutory health attorney or other substitute decision-maker for medical treatment or they are incapable or not acting appropriately

Sometimes the need to appoint a guardian arises because there is no family member or anyone else in the life of the person with a decision-making disability who may act as their automatic substitute decision-maker for medical and dental treatment. In the Western Australian case of MW, MW’s mother, while interested and concerned in the care of her daughter, was unable to understanding the nature of the treatment provided to her daughter and so she, by reason of her own disability, was unable to give a valid consent to her daughter’s treatment. Furthermore, there were no other known relatives who qualified as automatic substitute decision-maker for medical and dental treatment. WASAT appointed the Public Advocate as limited guardian to decide whether or not to consent to the medical treatment and health care proposed for MW. [464]

A Queensland example of the need to appoint a guardian in these circumstances arose because the statutory health attorney (“person responsible” in New South Wales , Victoria and Tasmania) was not always making the most appropriate decisions for his mother. The then Queensland Guardianship and Administration Tribunal was concerned that the statutory health attorney’s health care decisions were not always reasonable and appropriate in the circumstances and that the statutory health attorney did not take or even listen to advice and had rigid and inflexible views. He did not consult or keep the family informed of health care issues in relation to his mother. His actions were clearly in breach of the General Principles and the Health Care Principle contained in Guardianship and Administration Act 2000 (Qld).[465]

In the 2009 case QAX, Mr QAX was unable to make decisions in relation to medical intervention and treatment due to his long term mental illness.[466] He had recurrent stricturing of his oesophagus. Consent to needed treatment was regularly given by the Mental Health Review Tribunal under the NSW mental health legislation which did not provide for advance care planning. The evidence before the NSW Guardianship Tribunal was that Mr QAX needed a guardianship order so that a guardian could deal with advanced care planning covering issues including resuscitation, intubation, and life support, issues which had already arisen. The Tribunal was satisfied that there was a need to appoint a guardian for Mr QAX on this basis. In the absence of an alternative, the Tribunal appointed the Public Guardian as guardian for one year.

6. 11. 3. 8. Need for a guardian and duty of care and the principle of necessity

Many people with decision-making disabilities arising from intellectual disability, acquired brain injury or dementia, but less so from psychiatric condition or other sources of disability need permanent care and support, including assistance with activities of daily living and supervision and assistance to avoid injury from falls or through the inability to protect themselves from even apparent dangers.

Because of their incapacities, some of these people need to be closely supervised and directed to avoid dangers that are obvious to others. Others of them need to be restrained when activities of daily living, that they are incapable of carrying out themselves, need to be carried out on them in order to promote their health and well-being. Yet others need to be protected from falling out of bed or from falling of chairs when they are out of bed. Some need to be dressed. All these people need assistance every day so that they can take part in the activities or the life of the institution in which they are living whether it be an aged care facility, group home or large residential institution.

Beginning in the late 20th century genuine attempts have been made to give people with decision-making disabilities greater access to and contact with the wider community. The implementation of this policy has raised a number of problems for those providing that access or those residential or care services. One of the issues that arises for these carers and service-providers is how far can they go in the exercise of their duty of care and how far does the principle of necessity extend? These concepts clash with well-established aspect of the common law, namely trespass to the person in the form of battery and false imprisonment.

This clash raises the question of whether certain ways of dealing with people whose disabilities render them unable to look after themselves are illegal unless approved by an appointed guardian authorised to consent to such activities or whether at least some of the more personally intrusive ways of providing protection, support and services to them can be carried out under a duty of care or by application of the principle of necessity without the need for a guardian to be appointed.

Determining whether a guardian is necessary in certain situations has been a matter that guardianship tribunals in Australia have had to wrestle with. While it has been difficult to identify with clarity the components of those situations that require a guardian to agree to and those that don’t, some examples can help by showing some of the decisions that have been made and why.

As pointed out by Lord Goff of Chieveley in the House of Lords case In re F, a long established and fundamental principle is that that every person's body is inviolate, meaning that everybody is protected not only against physical injury but against any form of physical molestation.[467] However, not all touching is unlawful. Some is acceptable as part of the ordinary conduct of daily life. Other touching is not unlawful if there is a lawful excuse for it happening.[468] Also, Lord Goff has drawn out and developed the common law a principle of necessity which, he said “may justify action which would otherwise be unlawful”.[469] In discussing this principle he went on to say:

Furthermore, in the case of a mentally disordered person, as in the case of a stroke victim, the permanent state of affairs calls for a wider range of care than may be requisite in an emergency which arises from accidental injury. When the state of affairs is permanent, or semi-permanent, action properly taken to preserve the life, health or well-being of the assisted person may well transcend such measures as surgical operation or substantial medical treatment and may extend to include such humdrum matters as routine medical or dental treatment, even simple care such as dressing and undressing and putting to bed.[470]

In a 2002 case, the then Guardianship and Administration Board of Western Australia noted that the High Court did not accept the “extended notion of necessity” as appropriate to apply in relation to the issue of consent to the sterilisation of a child and considered it unsafe to rely on In re F as stating the common law in relation to the application of restraints.[471] There is little doubt that the extended doctrine of necessity is inappropriate to apply in relation to sterilisation treatment and in cases where significant physical or chemical restraints are being considered for use over periods of indeterminate length. However, this does not mean that the principle of necessity is not applicable to other situations involving the day to day provision of services and support to people with decision-making disability who need supervision and protection well beyond that required by others in order to lead their lives safely and healthily.

In a 1998 case in the House of Lords in England Lord Goff noted 18th and 19th century cases which provide authority for the proposition that the common law permitted the detention of those who were a danger, or potential danger, to themselves or others, in so far as that was shown to be necessary.[472]

In a 2004 case Munby J of the Family Division of the High Court of Justice in England stated that the doctrine of necessity was capable of operating not merely in relation to questions concerning a patient's surgical, medical or nursing treatment but also in relation to questions of where they should live, who they should see, and the circumstances of such contact.[473] In Australia a guardianship order is required if a substitute decision-maker needs to make decisions about who an incapable person has contact with and under what conditions. However, the doctrine could apply when carers have to act quickly to protect the incapable person they are caring for from inappropriate contact that places the incapable person at risk pending applying for appropriate orders from a guardianship tribunal. An incapable person’s accommodation can be changed without the need for a guardian to be appointed to make the decision, provided the incapable person does not object and the change of accommodation is made in their interests or not adverse to their interests. Where there is a guardian authorised to make accommodation decisions, then they make that decision having received the advice of others.

In a 1996 case, the New South Wales Guardianship Tribunal dealt with a question of whether a guardian needed to be given a function of approving (or refusing to approve) the use restraint for an elderly woman with Alzheimer’s Disease and myoclonic jerking whose cognitive functioning was so poor that she could not use a walking frame or follow basic instructions when being assisted to dress.[474] The form of restraint proposed was to put her in a comfortable armchair with a table in front of it for limited time only during the day.

The Tribunal considered that it was appropriate to extend the principle of necessity to situations like this. The Tribunal said:

Necessity, and common sense, require that appropriate measures be taken to protect (the elderly woman), measures which may not be appropriate for other people with cognitive impairment and which would be singularly inappropriate, and, indeed, illegal if applied to people who do not endure her level of impairment.[475]

6. 11. 4. The views of the person the application or review is about

The legislation of all the States and Territories requires the relevant tribunals, where possible, to obtain and consider the views of the person the hearing is about prior to appointing a guardian (or renewing a guardianship order). However, the legislation divides into two groups on the issue of the impact of the views of the person the hearing is about on capacity of the relevant tribunal to appoint a guardian (or renew a guardianship order). The first group contains the legislation that requires the relevant tribunal to have regard to, but not be bound by the views of the person the hearing is about. In New South Wales, the Guardianship Tribunal has to have regard to, but is not bound by, the views of the person the hearing is about, if they have or are capable of communicating any, before it makes (or renews) a guardianship order.[476] The South Australian Guardianship Board must consider not only the discoverable wishes of the person the hearing is about when the person was not mentally incapacitated but also their current wishes unless it is not possible or reasonably practicable to do so.[477] In Western Australia WACAT is required, as far as possible, to gather the current views of the person the hearing is about or ascertain them from the person’s previous actions.[478]

The second group contains the legislation that requires the relevant tribunal to consider making a substituted judgment based on the wishes of the person the hearing is about. The effect of the Victorian Act is that it is the intention of Parliament that VCAT gives effect to the wishes of the person the hearing is about wherever possible when making (or reviewing or reassessing) a guardianship order.[479] The Tasmanian Act places the same obligation on the Guardianship and Administration Board as does the Northern Territory Act in relation to both the Guardianship Panels and the Local Court.[480] In Queensland, although the term “substituted” judgment is used, QCAT applies the general principles of the Guardianship and Administration Act 2000 (Qld) which provide for substituted judgment in the sense that QCAT takes into account the discoverable views and wishes of the person the hearing is about in making its decisions about guardianship, but it is not bound by those views.[481]

In the Australian Capital Territory, the decision-making principles in the legislation appear to place the wishes of the person the hearing is about above the promotion of their interests. Their wishes must be given effect to unless to do so would be likely to significantly adversely affect their interests.[482]

The legislative provisions that impose these obligations on tribunals impose the same obligations on guardians appointed by tribunals.[483] The problem facing both tribunals and guardians of having to give effect to both the views and wishes and the best interests of those who may need a guardian appointed for them or are already under guardianship are discussed further in Chapter 7. 3. 4.

6. 11. 5. Who should be guardian – a private person or a government official (Public/Adult Guardian/Advocate)?

The State and Territory legislation continues the common law policy of favouring the appointment of a family member, or at least a private person, as the guardian where this is appropriate. However, in each State and Territory there is a public official whether called a Public Advocate, Public Guardian or Adult Guardian, available for appointment as guardian if there is no private person available or no private person suitable for appointment. Sometimes there are good reasons why family members should not be appointed. In other cases it is clear that family members lack the capacity to act as guardians, or do not wished to be appointed as guardians.

One of the difficulties facing the tribunal or court which is satisfied by the evidence that either a particular family member, or any family member, should not be appointed guardian in a particular case, is to explain why sufficiently for its decision to be credible, but not in such detail or with such vigour as to make it either inappropriately difficult or impossible for the family relationships of the person under guardianship to be repaired or restored where it is in that person’s interests that their family relationships be capable of repair or restoration.[484]

In this context it is important to recall the advice of the High Court of Australia gave to the Family Court in M v M.[485] A tribunal or court deciding who to appoint as guardian should not divert itself from its statutory role in order to come to a definite conclusion about the allegation made in relation to the person seeking to be appointed guardian. In some cases it will be evident that the allegation is well founded. In others it will be apparent that the allegation is groundless. However, in the nature of things, there will be very many cases in which the tribunal or court will not be able confidently to make a finding either way. In these circumstances it is the role of the tribunal or court to assess the risks involved in appointing the family member as guardian, whether or not the appointment is in the best interests of the person to be placed under guardianship, and to apply the other statutory criteria required to be considered before a guardian is appointed.[486] Having considered these matters, the tribunal or court may then decide who to appoint as guardian.

In a 2003 case in New South Wales, Windeyer J discussed the relevant legislative provisions and the common law as follows:

There would be a considerable number of cases where no person would be available to be appointed. An example might be a disabled, destitute person with no friend or relative. Such a case might lead inevitably to the appointment of the Public Guardian. Nevertheless appointment of the Public Guardian should not, I think, be restricted to such cases. I consider that the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect. ….

While s 15(3) [of the Guardianship Act 1987 (NSW)] must be interpreted within the context of the Act and in accordance with its principles, it must be given effect within those bounds. In Lunacy and Mental Health proceedings it has always been the policy to appoint a member of the family as committee or guardian of the person if that were possible. The policy is continued under the Act which created the office of Public Guardian. Just because a decision is required about accommodation and there is some dispute about this does not mean that a close family member holding one view ought not to be appointed. On the other hand if the Tribunal considered the evidence established that such a decision was likely not to be in the interests of the person under guardianship then the person who would make such a decision would not be a person who could properly be appointed under s 15(3). In other words what is described as a “contest” is not sufficient reason not to appoint a person otherwise appropriate as guardian. This may mean that the Tribunal has to consider the evidence in some little detail.[487]

In some cases the question of whether a private, usually family member, guardian should be appointed or the government official, who has the role of acting as guardian when appointed, can sometimes be a marginal one, while at other times it can be quite clear that even though a particular, close family member may wish to be appointed guardian, it is not in the best interests of the person under guardianship for them to be appointed.

Some examples of these situations are set out below. However, more generally, when dealing with an initial application for a guardianship order but also when reviewing such an order, dissension in the family, provided that the conflict goes beyond “typical family differences”, can be a reason why the tribunal or court dealing with the matter may appoint a public official as guardian over a relative in the best interests of the person the hearing is about. The achieving the best interests of the person the hearing is about remains the abiding rule and it is not necessary for the tribunal or court dealing with the matter to expressly find the relative proposed as guardian deficient in their ability to act as guardian before moving to appoint a public official.[488]

First, the difficult choice: RL was born with an intellectual disability in 1950 in Victoria. While she lived in institutions for people with an intellectual disability, her family was in constant contact with her and the two institutions in which she lived. When her father was becoming frail in the early 1990s, he asked the applicant, who was RL’s sister, to take over RL's care. Nevertheless, in 1995 the Public Advocate was appointed RL’s limited guardian (health care) with the obligation to consult with the father and the applicant on matters of importance.

However, in the same year, the Administrative Appeals Tribunal appointed the applicant as RL’s limited guardian for health care and accommodation. A similar order was made by the VCAT’s predecessor tribunal in 1996 and in 1998 VCAT appointed the applicant as plenary guardian. She had already been appointed administrator. In 2000 the Office of the Public Advocate and the Maroondah Hospital requested a review of the 1998 guardianship order. It was revoked on review, but VCAT continued the administration order. In 2001 the applicant sought to be re-appointed as RL’s plenary guardian.

The Department of Human Services took the view that a plenary guardian was not required but if one was to be appointed, it should not be the applicant. The Department expressed reservations about the suitability of the applicant to act as her sister’s guardian.

On the other hand the applicant pointed out that a range of guardianship type decisions were now being made on an ad hoc basis by a range of people, including those who have only limited contact with RL. In the applicant’s view it was highly likely that significant health care and other decisions would arise in the future. She also argued that as RL's elder sister, the one who had been significantly involved in her care right throughout her life, the one who had training and experience as a health care professional herself and the person who was the administrator of RL's affairs, she was the logical person to be appointed as RL’s guardian. She also pointed to the close bond between RL and herself.[489]

The Vice President of VCAT who heard the matter, Duggan J, noted that there was a significant body of material within the file to confirm the applicant’s claims. This included a letter from the sisters’ late father noting his own failing health and expressing a wish that the applicant be appointed the guardian of his daughter, RL. Their brother E supported the application.[490]

Duggan J also noted that many major decisions had had to be made in the recent past about RL’s health and other circumstances and that it was highly likely that similar issues requiring major decisions would arise in the near future. He also noted that RL would never be able to make those decisions herself and that someone would have to make them on her behalf. Because effectively she had none, the appointment of a plenary guardian would not restrict RL's freedom of decision and action.[491]

Duggan J was willing to appoint a plenary guardian. The question was who should that be? The applicant’s case for being appointed guardian was opposed by the Department of Human Services which pointed out that its efforts to work in a collaborative fashion with the applicant had been unsuccessful in the past. They believed that the applicant refused to acknowledge the legitimate role of the Department in the care of RL. For example, the applicant has refused to allow Departmental staff to be present when RL attended medical appointments.

Duggan J noted that the applicant was a person who had strong views about the proprietary or appropriateness of the actions of others. VCAT’s file contains many examples of the strongly held views that the applicant had expressed. Duggan J also expressed serious doubts about the wisdom of proceedings the applicant, as RL’s administrator, proposed to take against one of RL’s former medical practitioners. He considered this to be motivated more by a desire to punish the practitioner than an attempt to compensate RL.[492] Nevertheless, he had no doubt that the applicant had nothing but the best interests of RL at heart and went on to appoint her as her sister’s plenary guardian, stating:

The fact remains however that the applicant emerges as a woman who over a long period of time has been devoted to her sister's wellbeing. There is mild criticism of a unilateral decision to reduce the medication that RL was taking on one occasion. Apart from that incident I am not aware of any suggestion that any act carried out by the applicant was other in the best interests of her sister. In respect of that incident the applicant provides a convincing explanation as to why she took the decision that she did. It is relevant to point out that over the considerable period now that the applicant has been the administrator of RL's affairs, her administration has been described as "exemplary".[493]

Second, the case of the family member who wanted to be appointed guardian “no matter what”: AS was a 79 year old woman with dementia who lived in an aged care facility in Victoria. The evidence was clear that, because of her dementia, she was unable to make judgments concerning her person and circumstances, particularly her accommodation, and that she needed a guardian. Her son JS wanted to bring her home and sought habeas corpus in the Supreme Court of Victoria, rather than an order appointing a guardian for his mother in VCAT. Another person made a guardianship application to VCAT.[494]

On the question of who should be guardian VCAT held that JS could not be appointed because VCAT could not be satisfied that he would act in his mother’s best interests. His application to the Supreme Court was unnecessary and potentially disruptive and distressing to his mother.[495] He had had limited contact with her for some time. It was difficult for him to appreciate her current capacity and her care needs. Also, he essentially discounted expert medical and other opinion about his mother’s capacity and her need for high level care. VCAT was concerned that he would contemplate his mother’s return home despite the weight of evidence indicating that this would be contrary to her best interests.[496]

VCAT was also concerned that there was a conflict between his interests and those of his mother. He resided in her home and that he was in dispute with the administrator and was “clearly incompatible” with the administrator.[497] For these reasons VCAT could not appoint JS and appointed the Public Advocate AS’s guardian.[498]

At times there will be conflict between family members as to who should be guardian and there will be competing applications for guardianship orders.[499] Sometimes those competing applications will be for different private guardians to be appointed. Sometimes one part of the family will want a private guardian while another side of the family, or service-provider applicants, will want the Public Advocate or Public Guardian appointed. Often these applications will result in the public official being appointed, but not always.[500] The tribunal hearing the application must still take evidence on the issue and consider whether despite the opposition to the appointment, a particular private guardian should be appointed in the best interests of the person the applications are about.

Sometimes a person appointed as guardian will be seen by service providers as overzealous and that a public official should be appointed as guardian. The Supreme Court of Queensland dealt with such a case in 2003 and in it Chesterman J noted on the issue of the then Queensland Guardianship and Administration Tribunal appointing a private guardian in place of the Adult Guardian:

The Tribunal may have overstated the point a little by saying that the appointment of the Adult Guardian is a matter of `last resort when there is no other appropriate person for appointment', but the notion underlying that expression is, in my opinion, correct. The Adult Guardian is a functionary of the State which, very properly, endeavours to protect the helpless and defenceless. But where such a person has friends or family who are able and willing to provide the requisite support and assistance it is, in my view, preferable that they be allowed to do so rather than be supplanted by a bureaucrat, no matter how well intentioned. To take any other view is to deny the expression of what is good in human nature. This is all the Tribunal was saying and I agree with it. The Tribunal made the point well. It said that Mr Hunt had demonstrated a degree of affection and devotion for Ms Frame which made him a passionate advocate for her well being. The alternative was to appoint the appellant [the Adult Guardian] who would do no more than perform his statutory function for one more patient.[501]

When there is no family member or anyone else involved in the life the incapable person available for appointment as a private guardian, it is appropriate to appoint the person who has the role of statutory guardian, for example the Public Guardian in New South Wales, the Public Advocate in Victoria and the Adult Guardian in Queensland. It is not appropriate to consider appointing a paid carer as they will have a conflict of interest that precludes them from appointment.[502]

While private guardians must be, in the opinion of the tribunal appointing them, both willing and able to act as guardian, they also have to meet other suitability criteria. Nevertheless, as Chesterman J pointed out, the only criticism of Mr Hunt was that his zeal has been difficult for the managers of the nursing home to accommodate. His zeal had prolonged the life of the person under guardianship and made her more comfortable. Chesterman J considered it “unreasonable to criticise Mr Hunt because of his unceasing endeavours to alleviate the suffering of the woman he has loved for many years” and went on to state that it would be:

[A] repression of unselfishness and [to] impose a penalty on loyalty if it were considered inappropriate to appoint Mr Hunt as Ms Frame's guardian because he has tried too hard to protect her.
It should not be overlooked that his complaints about the Ms Frame’s care were vindicated and that the nursing home sought to have the [Adult Guardian] made guardian shortly after the arbitrator's determination.[503]

6. 11. 6. Reviews and reassessments of guardianship

The all the States, except South Australia, and in the Northern Territory, but not the Australian Capital Territory, the guardianship tribunals are empowered to carry out periodic reviews of the guardianship orders they make. However, as noted by VCAT, but relevant to the other tribunals around Australia, the role of the tribunal when reviewing or reassessing guardianship orders is not to review the decisions of the guardians or to decide what decisions a guardian should make in the best interests of the person under guardianship. Nevertheless, when re-appointing a guardian, the tribunal must be satisfied that the guardian will act in the best interests of the person. Consequently, the guardian’s previous decisions may sometimes be relevant to the question of whether the tribunal can be satisfied that that guardian will, in the future act, in the best interests of the person.

VCAT suggested that relevant questions about previous decisions would include:

1. whether the guardian complied with the guardianship legislation;

2. whether the guardian obtained sufficient relevant information to make a decision;

3. whether the guardian was reasonable in seeking out or relying on particular kinds of expertise;

4. whether the guardian gave appropriate weight to the information available;

5. whether the guardian’s decisions were of benefit to the person under guardianship; and

6. above all whether the guardian kept an eye on the ball by putting the best interests of the represented person ahead of other considerations.

However, VCAT also noted that in many (reviews or) reassessments these matters would not be in doubt or contention.[504]

6. 11. 7. Requested reviews or reassessments

Whether specifically empowered to do so or not, the guardianship tribunals in all the States and Territories may review the guardianship orders they have made if requested to do so by an appropriate person. The grounds for requesting a review include at least the following:

1. the order is not working for the person under guardianship,

2. circumstances have changed that affect the order,

3. there is new information that was not available at the time of the hearing at which the order was made,

4. there is no further need for a guardian, or

5. a review is needed because the guardian is unable to continue, or has become incapacitated or has died and there is no joint or alternative guardian (or, in Queensland, successive guardian).

A party who is unhappy about a decision of a guardianship tribunal to make, renew or continue a guardianship order cannot request a review on that basis. Their proper course is to lodge an appeal against the decision of the tribunal. However, they will be able to raise their concerns when the periodic review of that order is being conducted, provided those concerns are relevant to the circumstances of the person under guardianship prevailing at the time of the review.

6. 12. The role of the health care professional

When tribunals and the courts are considering whether or not to make a guardianship order, they rely upon the opinions of health care professionals as information central to the decision they have to make.[505] Although what must be proven in order to appoint a guardian varies across the States and Territories, most tribunals and courts rely upon evidence of disability and incapacity to make an order. Additionally, in New South Wales and Tasmania at least, the legislation requires evidence of the impact of the disorder on activities of everyday life. Also, in each State or Territory the tribunal determining the matter must also, either as required by the legislation or the common law, consider whether there is a need to make an order.

Depending on their role and involvement with the patient, health care professionals are often in a position to provide evidence not only about the basic elements of disability and incapacity but also about the risks to the person the hearing is about and their need for a guardian. Clearly however, when providing opinions for determinations about guardianship matters, health care professionals must be guided by the relevant legislation defining the criteria for appointment of guardians in their respective States or Territories.

It is not a breach of their professional responsibility to keep client information confidential, or of privacy legislation, for health care professionals to provide information to guardianship tribunals about the person who is the subject of the application.

6. 12. 1. Ingredients of assessment

6. 12. 1. 1. Disability

In making assessments for the purpose of guardianship applications, health care professionals should address the nature of the disability the person the subject of the application has. This might include a physical, mental, psychological or intellectual condition and, in New South Wales, advanced age.[506] In the Northern Territory, the relevant disorders are put under an umbrella term of “intellectual disability”, which in turn is defined as a “disability in an adult resulting from an illness, injury, congenital disorder or organic deterioration or of unknown origin.”[507] As stated in terms in the relevant Australian Capital Territory legislation, disability is not eccentricity, political or religious opinion, sexual orientation or sexual preference, engaging in illegal or immoral conduct or taking drugs, including alcohol.[508]

It is extremely helpful for a health care professional who is suitably qualified and experienced to provide in their evidence some evaluation of the severity of the intellectual or cognitive impairment of the person the hearing is about to the tribunal dealing with the matter. This information will assist in the tribunal’s understanding of the person’s ability to participate in the process as well as in its consideration of whether an order should be made and its type and duration.[509] In the case of dementia, scores on cognitive screening tests such as the Folstein Mini Mental State Examination might be helpful. Some assessment of the person’s cognitive functioning specific to decision-making (e.g. executive functions such as planning, judgment and reasoning) is useful. Sometimes more detailed neuropsychological assessments may be available, for example where a person has brain damage after a motor vehicle accident or where a person has been extensively “worked up” (or assessed) for dementia.

6. 12. 1. 2. Incapacity

As we have emphasised throughout this text, incapacity is task specific and decision specific. Also, it is erroneous to assume that the presence of a disorder per se implies incapacity. It is therefore inadequate to report; “Mrs X has dementia and therefore lacks capacity to make decisions”. Rather, tribunals and courts require a description of the way in which the disorder or disability has affected the person’s decision-making.

Criteria for assessing decision making are specified only in the Queensland legislation which provides that a person has impaired capacity for a personal matter if they are unable, to understanding the nature and effect of their decisions about the matter, to freely and voluntarily make decisions about the matter and to communicate those decision in some way.[510] The Victorian, Tasmanian, Western Australian and Northern Territory legislation make reference to “reasonable judgments”.[511] In New South Wales the person must be incapable of “managing his or her person”.[512] Regardless of the State or Territory the person is in, their decision-making capacity might be assessed by asking whether they:

1. know the context of the decision at hand,

2. know the choices available, and

3. have the ability to appreciate the potential consequences (risks and benefits) of making particular choices .[513]-[514]

In keeping with the general principles of guardianship legislation throughout Australia, which are to preserve, to the greatest extent practicable, an adult’s right to make their own decisions and to interfere as little as possible in their right to make their own decisions, it is important to specify in relation to which matters (e.g. where they may live, what medical, dental and community services they may receive) the person is unable to make decisions. This is acknowledged in the legislation in Queensland and the Australian Capital Territory which provides that the person must have impaired decision-making ability in relation to all or any matters relating to their health or welfare.[515] The complexity of decision making varies with the task and accordingly, it may be easier, for example, for someone with impaired cognition to consent to simple medication or meals on wheels than to weigh the pros and cons of staying at home.

The following is a guide to the kind of questions the clinician might use to assess decision-making in the domains of accommodation, services and health care:

1. Accommodation: Is the person aware of their disabilities and ability to manage at home? Do they understand choices or alternatives such as residential care and the consequences of their choice? Can they weigh the options of placement versus community support at home?

2. Services: Does the person acknowledge/understand that they have functional impairment in activities of daily living? Do they understand their choices for dealing with their disability or need for support? Are they willing to accept help, and if not, why? Are they aware of the consequences of their choices?

3. Health care and medical and dental consents: Does the person know and understand their health condition(s) and treatments? Do they know what medications they are on, and for what purpose? Do they use health care professionals when necessary and if not why not?

6. 12. 1. 3. Activities of daily living

In New South Wales, for example, the Tribunal must be satisfied that the person is restricted in one or more major life activities to such an extent that they require supervision or social habilitation.[516] It is therefore helpful to document the extent of the person’s functional impairment in basic (e.g. hygiene, dressing, feeding) and instrumental (e.g. shopping, cooking, cleaning) activities of daily living when making assessments. Although not all jurisdictions require this information, it has been suggested that its inclusion will be of assistance to all Australian guardianship tribunals as it is evidence of the effect of the person’s disability. [517]

6. 12. 1. 4. Need and best interests

In most States and Territories it is necessary to provide evidence that there is a need to make an order or that an order is in the person’s best interests.[518] It is important to understand that lack of capacity, of itself, is usually insufficient justification to make an order. Informal mechanisms may obviate the need for an order. For example, the person may be unable to make decisions about personal care but decisions are still being made in their best interests with the assistance of others. As a result of these informal mechanisms the incapable person may still accept community support services, nursing home placement or the support of their general practitioner and medication as appropriate and therefore not need an order. It is usually when the person is objecting to support that an application becomes necessary.

The Queensland and Australian Capital Territory legislation provides that one of the reasons why an order may be needed is that the person the subject of the application is likely to do something that involves or is likely to involve, unreasonable risk to their health, welfare or property.[519] Sometimes health care professionals will be aware of such risks. These risks can include the person neglecting basic safety measures in the home such as leaving the gas on or otherwise creating fire risks by, for example, smoking in inappropriate places. They might also be at risk of recurrent falls or getting lost. If such risks have been observed by a health care professional, they should be referred to in any report that health care professional makes to any of the Australian guardianship tribunals.

6. 12. 2. What should a report contain?

A suggested outline for report writing is included in the following box:

A suggested outline of a medico-legal report relating to an application for a guardianship order

1. Expertise : An outline of the health care professional’s qualifications, experience or expertise that they bring to their assessment

2. Involvement: What has been the health care professional’s involvement with the person?

3. Is there a diagnosis or disability? What is the nature of the disability (i.e. is it intellectual disability, mental illness such as schizophrenia or bipolar disorder, or acquired brain injury or dementia?) Provide the basis for that diagnosis (i.e. results of examination, including cognitive examination). It is helpful to make specific reference to the cognitive functions relevant to decision-making such as judgment, reasoning and planning.

4. Severity: An estimate of the severity of the diagnosis

5. Is there incapacity with regards to matters relating to health and welfare? In what way does the diagnosis/disability impact on the person’s decision making about:

a. Where the person should live;

b. What services they should receive;

c. What medical treatment they should be given;

d. To whom they should have access.

6. Extent of restriction in life activities - description indicating performance in basic (e.g. hygiene, dressing, feeding) or instrumental (e.g. shopping, cleaning) activities of daily living.

7. Is there a need for an order? i.e. What is the current situation regarding practicability of services being provided without the need for an order? Is there any risk? Why might an order be needed or what are the consequences of making or not making order,

8. Do you have any input into who should be guardian? Do you have knowledge of personal history and family relationships, keeping in mind the aim of preserving family relationships and cultural and linguistic environments?


[1] Gardner; re BWV [2003] VSC 173, [99], 7 VR 487.

[2] Guardianship Act 1987 (NSW) ss 9 and 14.

[3] Ibid. s 8. For an example of the Supreme Court making a guardianship order see, Re BC [2009] NSWSC 835

[4] Ibid. s 22.

[5] Ibid. s 23(b).

[6] Boviard v Boviard [2007] NSWSC 146 [16]. See also Johnson v NSW Guardianship Tribunal [2009] NSWSC 664 [12].For a similar view of the Guardianship and Administration Tribunal of Queensland (now QCAT) see, VJC v NSC [2005] QSC 68 [28]. For an earlier, different view see, Re R [2000] NSWSC 886 [18].

[7] Guardianship Act 1987 (NSW) s 15(1)(a).

[8] Ibid. s 9(2).

[9] Ibid. s 9(3).

[10] Ibid. s 3C.

[11] EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501.

[12] Service and Execution of Process Act 1992 (Cth) s 48.

[13] Ms A v Public Guardian [2006] NSWADTAP 55 [49]-[50].

[14] Matter No 2007/1899 (unreported, Guardianship Tribunal, 31 October 2007).

[15] NCK [2004] WAGAB 6 [47].

[16] Ibid. [53].

[17] Guardianship Act 1987 (NSW) s 9(1)(a).

[18] Ibid. s 9(1)(c).

[19] Ibid. s 9(1)(d).

[20] MAQ [2004] NSWGT 1.

[21] QAG [2007] NSWGT 12. See also, ACJ [2007] NSWGT 15 in which an application for a financial management order by a niece of an elderly lady with dementia was refused on the grounds that the Tribunal was not satisfied that the niece’s application was motivated by the desire to advance her aunt’s welfare in circumstances in which there was litigation between members of the family. Also FAM [2009] NSWGT 1 in which the Tribunal refused to join a person as a party to an application as he did not have sufficient interest in the welfare of the person the subject of the application. See also United States Tobacco v Minister for Consumer Affairs (1988) 20 FCR 520, 526-530.

[22] For a description of “having the care of the person” see, Guardianship Act 1987 (NSW) s 3D. It provides that a person has the care of another person if they, on a regular basis and otherwise than for remuneration (widely defined) provide or arrange for the provision of domestic services and support for that other person. In K v K [2000] NSWSC 1052 [22], Young J of the NSW Supreme Court said:

In my view, apart from paid professionals and other people who are outside the section on its clear words, the Tribunal should admit as a party every private person who provides domestic services and support for the person concerned, even if that person gets some remuneration from some source for doing so, if they are not in the class of a professional carer unemotionally involved with the person cared for.

[23] The Public Guardian rarely takes an active part in the hearing of an application for a guardianship order, unless he is the applicant. However, the Public Guardian will take an active part in the review of a guardianship order if appointed guardian.

[24] The Tribunal may join, as a party any person who, in its opinion, should be a party whether because of their concern for the welfare of the person the subject of the application or for any other reason. See Ibid. s 57A. For an example of a case in which an application to be joined as a party was refused see, FAM [2009] NSWGT 1.

[25] Ibid. s 10.

[26] Ibid. ss 67, 67A and 68.

[27] Ibid. s 14(1).

[28] Ibid. s 3(2).

[29] Ibid. s 3(1).

[30] The spouse must have a close and continuing relationship with the person in order to be entitled to have their views sought s 14(2) of the Guardianship Act 1987 (NSW). This provision is intended to overcome problems arising from spouses who have been separated, lost contact but not divorced.

[31] The term “has the care of the person” is defined in s 3D to apply to, but are not limited to, those who, otherwise than for remuneration, but on a regular basis provide domestic services and support to the person with the disability or arranges for the person with the disability to be provided with such services and support. Section 3D also makes it clear that where the person with the disability resides in an institution (such as a hospital, nursing home, group home, boarding-house or hostel) and is cared for there by others, those people do not become the person’s carers for the purposes of s 14(2) or any other section of the Guardianship Act 1987 (NSW). Furthermore, those who were the carers of the person with the disability immediately before they began residing in the institution remain the cares of the person for the purposes of s 14(2) or any other section of the Act. The carers pension is not regarded as remuneration for the purposed of these provisions, see s 3D.

[32] Ibid s 14(2).

[33] IF v IG [2004] NSWADTAP 3, [26]; Ms A v Public Guardian [2006] NSWADTAP 55, [10].

[34] In more recent times while the Administrative Appeals Tribunal continues to adhere to its view that section 14(2) is mandatory, a less censorious attitude to the Guardianship Tribunal’s reasons for decision on this issue appears to have been adopted by it. See DG v Public Guardian [2008] NSWADTAP 58.

[35] [2006] NSWADTAP 55.

[36] Guardianship Act 1987 (NSW) s 15(3).

[37] Ibid. s 17(1).

[38] On 30 June 2010, 1943 people were under the guardianship of the Public Guardian. In the year ending 30 June 2010, the Guardianship Tribunal appointed Public Guardian in 58% of cases in which it appointed a guardian.

[39] For an example see, Matter No. 2006/7212 (unreported, Guardianship Tribunal, 29 January 2007).

[40] Guardianship Act 1987 (NSW) s 4(a).

[41] Ibid. s 16(1)(a).

[42] Ibid. s 17(1).

[43] For an example see Guardianship Tribunal Matter No 2004/5028 (15 September 2004).

[44] Guardianship Act 1987 (NSW) s 22A.

[45] Ibid. ss 20 and 22A.

[46] Ibid. s 22A.

[47] Ibid. ss 15 and 16.

[48] Ibid. s 15(4).

[49] Ibid. s 16(2).

[50] Ibid. s 16(1).

[51] Ibid. s 18(1A) and (1B).

[52] Ibid. s 21(1). For a description of the functions of a guardian see, Chapter 7.

[53] Ibid. ss 16(1) and 21(1).

[54] Ibid. s 16(2A).

[55] Ibid. s 18(2)and(3).

[56] Ibid. s 17(4).

[57] Ibid. s 11.

[58] Ibid. s 3(3). An “authorised officer” is an officer declared to be an authorised officer, or a member of a class of officers declared to be authorised officers, by the Minister in an order published in the Gazette.

[59] Guardianship Act 1987 (NSW) s 13. At the time of writing the Director-General was the Director-General of the Department of Aging, Disability and Home Care and the Minister was the Minister for Disability Services. However both of them have delegated their powers to officers of the Department of Aging, Disability and Home Care.

[60] File No C/0020 (unreported, Guardianship Board, 24 August 1989). See also, Matter No 89/0201 (unreported, Guardianship Board, 23 October 1989)

[61] Guardianship Act 1987 (NSW) ss 12 and 13.

[62] Ibid. s 25.

[63] Ibid. s 25A.

[64] Ibid. s 21(2)(a).

[65] Ibid. s 3D for the meaning of “has the care of the person”.

[66] Ibid. s 57A.

[67] Ibid. s 3F(3).

[68] Ibid. s 25C(2).

[69] Ibid. s 25C(1).

[70] For an example see, Matter No. 2001/4708 (unreported, Guardianship Tribunal, 13 May 2004).

[71] For example, in 2007-2008, 33% of guardianship orders were not renewed, but 64% were. See Guardianship Tribunal Annual Report 2007/2008, p 41 (www.gt.nsw.gov.au).

[72] For a contrary view see, IF v IG [2004] NSWADTAP 3.

[73] Gardner; re BWV [2003] VSC 173, [99], 7 VR 487.

[74] See also Jones J’s consideration of the scheme of the Victorian Act in Re M and R and the Guardianship and Administration Board (1988) 2 VAR 213, [16]-[21] where at [21] he suggests that the Act replaces the previous system.

[75] Guardianship and Administration Act 1986 (Vic) s 66. See, PL (Guardianship) [2007] VCAT 2485 and SB (Guardianship) [2007] VCAT 333.

[76] Ibid. s 19.

[77] Ibid. s 19(1).

[78] Ibid. s 19(2). However, note that it is not necessary to nominate a proposed administrator. VCAT will decide who is to be the administrator if it determines that an administrator should be appointed.

[79] Ibid. s 20(a). The “nearest relative: of the person is their spouse or domestic partner or, where they do not have a spouse or domestic partner, the first listed relative in list below who is 18 years or older. If there are of two or more relatives at the same level then the elder or eldest: (a) son or daughter; (b) father or mother; (c) brother or sister; (d) grandfather or grandmother; (e) grandson or granddaughter; (f) uncle or aunt; (g) nephew or niece, see ibid. s 3.The nearest relative available of the person is the nearest available who is not the applicant, the proposed guardian or the administrator of the person’s estate

[80] Ibid. s 20(b). The primary carer of the person is the person who is primarily responsible for providing support or care to the person, see ibid. s 3.

[81] Ibid. In Victoria, at the request of VCAT, the Office of the Public Advocate investigates a substantial number of the matters coming before VCAT and presents reports at the hearing of a number of applications for guardianship orders.

[82] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 60.

[83] Guardianship and Administration Act 1986 (Vic) s 20.

[84] Ibid. and for any parties not specifically covered by s 20, the common law relating to procedural fairness.

[85] Ibid. s 21.

[86] “Disability” means intellectual impairment, mental disorder, brain injury, physical disability or dementia. See, ibid. s 3.

[87] Ibid. s 22(1).

[88] Ibid. s 22(2).

[89] Ibid. s 22(3).

[90] Ibid. s 23(4).

[91] Ibid. s 23(1).

[92] Ibid. s 23(2).

[93] Ibid. s 23(4).

[94] Ibid. s 16(2)(b).

[95] Ibid. s 23(5).

[96] Ibid. ss 34 and 35.

[97] Ibid. ss 19 and 22.

[98] Ibid. s 22(4).

[99] Ibid. s 24(1).

[100] Ibid. s 22(5).

[101] Ibid. s 25(1).

[102] Ibid. ss 32 and 33.

[103] Ibid. s 33(2).

[104] Ibid. s 33(3).

[105] www.publicadvocate.vic.gov.au.

[106] Guardianship and Administration Act 1986 (Vic) s 60A(1) and (6).

[107] Ibid s 60A(1) and(3).

[108] Ibid. s 60A(2).

[109] Ibid. s 60A(4).

[110] Ibid. s 60A.

[111] Ibid. s 60(2).

[112] Ibid. s 61(1).

[113] Ibid. s 61(2) and (3).

[114] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 60 and Guardianship and Administration Act 1986 (Vic) s 61(4).

[115] Ibid. s 62(1)(a). The “nearest relative” of the person is their spouse or domestic partner or, where they do not have a spouse or domestic partner, the first listed relative in list below who is 18 years or older. If there are of two or more relatives at the same level then the elder or eldest: (a) son or daughter; (b) father or mother; (c) brother or sister; (d) grandfather or grandmother; (e) grandson or granddaughter; (f) uncle or aunt; (g) nephew or niece. See, Guardianship and Administration Act 1986 (Vic) s 3.

[116] Ibid. s 62(1)(b). The primary carer of the person is the person who is primarily responsible for providing support or care to the person. See, Guardianship and Administration Act 1986 (Vic) s 3.

[117] Guardianship and Administration Act 1986 (Vic) s 62(1).

[118] Ibid. s 62(2A) and (3).

[119] Good Guardianship: A Guide for Guardians appointed under the Guardianship and Administration Act 1986, 2005, Office of the Public Advocate, www.publicadvocate.vic.gov.au.

[120] Guardianship and Administration Act 1986 (Vic) s 63.

[121] Guardianship and Administration Act 1995 (Tas) ss 7 and 19.

[122] Ibid. s 77. For an example of a case in which this was done, in Victoria, see, SB (Guardianship) [2007] VCAT 333.

[123] Ibid. s 76.

[124] Gardner; re BWV [2003] VSC 173, [99], 7 VR 487.

[125] Guardianship and Administration Act 1995 (Tas) s 19(1).

[126] Ibid. s 19(1). The “prescribed information” is set out in regulation 4 of the Guardianship and Administration Regulation 1997 (Tas).

[127] See www.guardianship.tas.gov.au/process.

[128] Ibid.

[129] Ibid.

[130] Guardianship and Administration Act 1995 (Tas) s 20(1). For the matters and tests VCAT must be satisfied about, see 6. 4. 4. above.

[131] Ibid. s 20(3).

[132] Ibid. s 6(c).

[133] Ibid. s 21.

[134] W v G [2003] NSWSC 1170 [26].

[135] Guardianship and Administration Act 1995 (Tas) s 6.

[136] Ibid. s 21(2)(b).

[137] Ibid. s 21.

[138] Acts Interpretation Act 1931(Tas) s 24(d).

[139] Guardianship and Administration Act 1995 (Tas) s 20(6).

[140] Ibid. s 22.

[141] Ibid. s 21(1).

[142] Ibid. ss 24 and 68.

[143] Ibid. s 67.

[144] Ibid. s 25.

[145] Ibid. s 20(4).

[146] Ibid. s 24(1).

[147] Ibid. s 26.

[148] Ibid. s 20(5).

[149] Ibid. s 26(1).

[150] Ibid. s 65(2).

[151] Ibid. s 65(3), (4) and (5).

[152] For an example of an emergency guardianship order case see, BO (Emergency Guardianship Application) 8-2-03, www.guardianship.tas.gov.au/decisions.

[153] Guardianship and Administration Act 1995 (Tas) s 65(1).

[154] Ibid. s 65(3) and (4).

[155] Ibid. s 65(5).

[156] Ibid. s 29(1) and (3).

[157] Ibid. s 29(2).

[158] Ibid. s 30.

[159] Ibid. s 24.

[160] Ibid. s 67.

[161] Ibid. s 68.

[162] Guardianship and Administration Act 1993 (SA) ss 6 and 29.

[163] Ibid. ss 65-70..

[164] Gardner; re BWV [2003] VSC 173, [99], 7 VR 487.

[165] Colmer v O’Brien (1974) 9 SASR 378.

[166] District Court Act 1991 (SA) s 8. That section provides that the District Court has the same civil jurisdiction as the Supreme Court subject to “qualifications” that do not exclude the parens patriae jurisdiction.

[167] District Court Act 1991 (SA) s 8.

[168] Guardianship and Administration Act 1993 (SA) s 37(1)(a).

[169] Ibid. ss 3 and 37(1)(c).

[170] Ibid. A person is a “domestic partner” of another person if they have been living in a close personal relationship with that other person continuously for three years, or during a period of four years for an aggregate of three years, or they and the other person are the parents of a child who has been born, and, in any of these three cases, are, at the time they made the application in relation to the other person, living with that other person. A “close domestic relationship” is a relationship between two adults, whether or not related by family and irrespective of their gender, who live together as a couple on a genuine domestic basis. Two persons may live together on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them. See, Family Relationships Act 1975 (SA) ss 11and 11A.

[171] Guardianship and Administration Act 1993 (SA) s 3.

[172] Ibid. ss 3 and 37(1)(c). A “medical agent” is a person appointed under a medical power of attorney made under the Consent to Medical Treatment and Palliative Care Act 1995 (SA) to be a medical agent of another.

[173] Guardianship and Administration Act 1993 (SA) s 37(1)(d) and (e).

[174] Ibid. s 33(2). The application form is available from the website of the Public Advocate www.opa.sa.gov.au.

[175] See www.opa.sa.gov.au.

[176] Guardianship and Administration Act 1993 (SA) s 29(1)(a)-(c). For a case in which a guardianship order made by the Board was quashed because the evidence of mental incapacity was insufficient to ground the order see, Canham [2002] SADC 88.

[177] Guardianship and Administration Act 1993 (SA) s 3.

[178] Ibid. s 5(a).

[179] Ibid. s 5(b).

[180] Ibid. s 5(c).

[181] Ibid. s 5(d).

[182] Ibid. s 29(1)(d) and (e).

[183] Ibid. s 29(6).

[184] Ibid. s 29(1).

[185] Ibid. s 29(3).

[186] Ibid. s 29(5).

[187] Ibid. s 29(4).

[188] Ibid. s 51.

[189] See ibid. s 5.

[190] Ibid. s 50.

[191] Ibid. s 29(1) and (4).

[192] Ibid. s 29(1).

[193] Ibid. s 31.

[194] Ibid. s 29(2).

[195] Ibid. ss 29(6) and 57.

[196] Ibid. s 14(7).

[197] Ibid. ss 32 and 33.

[198] Ibid. ss 30 and 57

[199] Ibid. s 57.

[200] Now you are a guardian – A manual for private guardians in South Australia, Office of the Public Advocate, (2004), 31, www.opa.sa.gov.au.

[201] Guardianship and Administration Act 1993 (SA) s 30.

[202] Now you are a guardian – A manual for private guardians in South Australia, Office of the Public Advocate, (2004), 32, www.opa.sa.gov.au.

[203] Guardianship and Administration Act 1993 (SA). Contrast the terms of s 30 with those of s 57.

[204] Guardianship and Administration Act 2000 (Qld) s 84(1). Note s 84(1) is subject to s 245 which allows either the Supreme Court or the District Court when sanctioning settlements or damages awards in relation to adults with impaired capacity to exercise QCAT’s powers under Chapter 3 of the Act, including the power to appoint a guardian or an administrator.

[205] Ibid. s 240.

[206] Ibid. s 241.

[207] VJC v NSC [2005] QSC 68.

[208] Ibid. [13]

[209] Ibid. [28].

[210] Guardianship and Administration Act 2000 (Qld) s 13. For an example see, Re MBGJ [2005] QGAAT 3.

[211] Ibid. ss 12(3) and 115.

[212] Ibid. Schedule 4.

[213] Ibid. s 126.

[214] Ibid. s 116. See also Guardianship and Administration Regulation 2000 (Qld) reg 3 and the Tribunal’s website, www.justice.qld.gov.au/guardian/gaat.htm

[215] Guardianship and Administration Act 2000 (Qld) s 117.

[216] Ibid. s 118(1).

[217] Ibid. s 118(3) and 4.

[218] Ibid. s 118(2), (5) and (6).

[219] Ibid. s 119.

[220] Ibid. ss 123 and 124.

[221] Ibid. s 12(1).

[222] Ibid.

[223] Ibid. s 12(3).

[224] See for example, Re SKE [2006] QGAAT 92; Re MLA [2006] QGAAT 91; Re HMV [2006] QGAAT 87; Re CAJ [2006] QGAAT 73 and Re GMAV [2006] QGAAT 88.

[225] Guardianship and Administration Act 2000 (Qld) Schedule 4.

[226] Ibid. Schedule 2, item 2.

[227] Ibid. s 11. The general principles are set out in Schedule 1 items 1 to 11.

[228] Ibid. s 14(1)(a)(i). If they don’t meet any of these requirements for appointment, they must advise the Tribunal before it makes the appointment. They must advise the Tribunal of other matters as well. See, the Guardianship and Administration Act 2000 (Qld) s 16(1)(a) and (b) and (2).

[229] Ibid. s 15(1).

[230] Ibid. s 15(2) and (3).

[231] Ibid. s 15(4)(a) and (b). If they don’t meet any of these requirements for appointment, they must advise the Tribunal before it makes the appointment. They must advise the Tribunal of other matters as well. See, the Guardianship and Administration Act 2000 (Qld) s 16(1)(c) and (d) and (2).

[232] Ibid. s 17.

[233] Ibid. s 18.

[234] Ibid. s 14(1)(a)(2).

[235] Ibid. s 14(3). In relation to successive guardians see also s 57.

[236] Ibid. s 38.

[237] Ibid. s 26(4).

[238] Ibid. ss 39-43.

[239] Ibid. s 26(1). Section 26(3) requires the guardian to tell the Tribunal if their appointment as a guardian ends because any of the events in 1 – 4 occur.

[240] Ibid. s 31(2).

[241] Ibid. s 27.

[242] Ibid. s 33.

[243] Ibid. s 129.

[244] Presidential Direction No 2 of 2005.

[245] Guardianship and Administration Act 2000 (Qld) s 180.

[246] Ibid. s 197.

[247] Ibid. s 148.

[248] Ibid. ss 3347.

[249] Ibid. s 28.

[250] Ibid. s 29 and Sch 4. If there is doubt or argument about whether an applicant for a review has sufficient and continuing interest in the person under guardianship to bring their application, this matter may be dealt with by the Tribunal. See, s 126.

[251] Ibid. s 29. While it is unlikely that the Public Trustee or a trustee company will seek a review of a guardianship order, they are empowered to do so and appropriate circumstances may arise.

[252] Guardianship and Administration Tribunal general information document “Reviewing Guardianship and Administration Orders” www.justice.qld.gov.au/guardian/gaat.htm.

[253] Guardianship and Administration Act 2000 (Qld) s 31(1).

[254] “Reviewing Guardianship and Administration Orders” (footnote 223).

[255] Guardianship and Administration Act 2000 (Qld) ss 16 and 30.

[256] Ibid. s 31(2). For an example see, Re GI [2004] QGAAT 11.

[257] Ibid. s 31(3).

[258] Supreme Court Act 1935 (WA) s 16(1)(d)(ii).

[259] Guardianship and Administration Act 1990 (WA) s 3A. See also Mr CAD [2001] WAGAB 1 [9] and [10], (2001) 28 SR (WA) 333, 335.

[260] Re R (1993) 13 SR (WA) 10.

[261] Guardianship and Administration Act 1990 (WA) s 43(1).

[262] Ibid. s 40.

[263] Ibid. s 43(1)(a).

[264] Ibid. s 41.

[265] Ibid. s 43(1)(b).

[266] Ibid 43(2).

[267] Ibid. s 43(3).

[268] Ibid. s 4(2)(a).

[269] Ibid. s 4(2)(f).

[270] G v K [2007] WASC 319 [77] and State Administrative Tribunal Act 2004 (WA) s 32(1).

[271] G v K [2007] WASC 319 [85].

[272] Ibid [157]-[158].

[273] Guardianship and Administration Act 1990 (WA) s 4(2)(c).

[274] Ibid. s 4(2)(e).

[275] Ibid. s 44(1).

[276] Ibid s 44(2).

[277] Ibid. s 44(3) and (4).

[278] Ibid. s 44(5). For an example of a private guardian and the Public Advocate as guardians see, VGR [2006] WASAT 64.

[279] Guardianship and Administration Act 1990 (WA) s 53.

[280] Ibid. ss 55 and 85(4)(b).

[281] Ibid. s 45(1).

[282] Family Court Act 1997 (WA) ss 68 and 84.

[283] Ibid. s 84(2)(f).

[284] Guardianship and Administration Act 1990 (WA) s 45(1).

[285] Ibid. s 46.

[286] See 7. 2. 4 and Chapter 7 generally.

[287] Guardianship and Administration Act 1990 (WA) s 84. For an example of a guardianship order made for five years and why see, RJC [2006] WASAT 279.

[288] Guardianship and Administration Act 1990 (WA) s 85(1).

[289] Ibid. s 85(2).

[290] Ibid. ss 86-88.

[291] Ibid. s 89(1).

[292] Ibid. s 90.

[293] A v Guardianship and Management of Property Tribunal [1999] ACTSC 77.

[294] Ibid. [70].

[295] Ibid. [71].

[296] Public Trustee v Thompson [2000] ACTSC 4.

[297] Supreme Court Act 1933 (ACT) s 20. See also the power of the Supreme Court to direct ACAT to appoint a guardian under s 316 of the Crimes Act 1900 (NSW) as it applies in the ACT and Guardianship and Management of Property Act 1991(ACT) s 7A.

[298] Guardianship and Management of Property Act 1991(ACT) s 8C.

[299] ACT Civil and Administrative Tribunal Act 2008 (ACT) s 9.

[300] Ibid. S 7(b).

[301] Ibid. S 7(a).

[302] Guardianship and Management of Property Act 1991(ACT) s 67.

[303] ACT Civil and Administrative Tribunal Act 2008 (ACT) s 117. The approved form is available at www.acat.act.gov.au.

[304] Ibid. S 29(1).

[305] The “domestic partner” of the person the hearing is about is their spouse or the person with whom the person the hearing is about is living with as a couple on a genuine domestic basis, whether of a different or the same sex. There are 9 indicators to help decide whether people are living as domestic partners. See Legislation Act 2001 ACT s 169.

[306] ACT Civil and Administrative Tribunal Act 2008 (ACT) s 30.

[307] Public Advocate Act 2005 (ACT) ss 10(b) and 13.

[308] Guardianship and Management of Property Act 1991(ACT) s 7(1).

[309] Ibid s 5.

[310] Ibid s 6A.

[311] Ibid s 5A.

[312] Ibid s 7(2).

[313] Ibid s 11.

[314] Ibid ss 9(1) and 10(2).

[315] Ibid s 10(3). The decision-making principles are found in s 4, but are set out below at 6.9.11.

[316] Ibid s 10(4) and (5).

[317] Ibid s 10(3).

[318] Ibid s 10(2).

[319] Ibid s 10(4).

[320] Public Advocate Act 2005 (ACT) s 12. See also, McGregor and Pearce v The Hon John Gallop and the Attorney-General of the ACT [2002] ACTSC 45 [46]-[50].

[321] Guardianship and Management of Property Act 1991(ACT) s 9(3).

[322] Ibid s 32(1).

[323] Ibid s 19(3).

[324] Ibid ss 7(3) and 7B.

[325] Ibid s 11. See 6. 9. 4.

[326] Ibid s 67.

[327] Ibid s 68.

[328] Ibid. If it is not practicable for the application to be made in writing, an alternative procedure, still requiring a hearing and authorisation, is provided in s 68(6).

[329] Ibid ss 16 and 18.

[330] Ibid s 7(3).

[331] Ibid s 7B.

[332] Ibid s 4(2)(a) and (b).

[333] Ibid s 4(2)(c) to (f).

[334] Ibid s 4(3) and (4). The term “carer” is defined in the Guardianship and Management of Property Act 1991 (ACT) s 6.

[335] Ibid. s 29.

[336] Ibid s 31.

[337] Ibid s 28.

[338] Ibid ss 19(2) and 31.

[339] Ibid s 19(1).

[340] Ibid s 19(3).

[341] See, ibid.ss 5 and 11.

[342] Adult Guardianship Act 1988 (NT) ss 8 to 15.

[343] Supreme Court Act 1979 (NT) s 14 and Supreme Court Act (SA) s 17.

[344] Ibid. s 24.

[345] Gardner; re BWV [2003] VSC 173, [99], 7 VR 487.

[346] Adult Guardianship Act 1988 (NT) s 3.

[347] Ibid. s 8(1).

[348] Ibid s 3(2)(b).

[349] Ibid s 3(1).

[350] Ibid s 3(2)(a).

[351] Ibid. s 8 (2).

[352] Ibid. s 19.

[353] Ibid. s 7.

[354] Ibid. s 9.

[355] Ibid s 9(5).

[356] Ibid. s 5.

[357] Ibid. s 6.

[358] The term “intellectual disability means a disability in an adult resulting from an illness, injury, congenital disorder or organic deterioration or of unknown origin and by reason of which the person appears to be unable to make reasonable judgments or informed decisions relevant to daily living”. See, ibid. s 3.

[359] Ibid. s 9(2).

[360] Ibid. s 9(3).

[361] Ibid. S 9(4).

[362] Ibid. s 4.

[363] Ibid. s 7(3).

[364] Ibid. s 12(1).

[365] Ibid. s 12(2).

[366] Ibid. s 12(3).

[367] Ibid. s 12(4).

[368] Ibid. s 13(2).

[369] Ibid. s 13(1).

[370] Ibid. s 27(1).

[371] Ibid. s 27(2).

[372] Ibid. s 27(3).

[373] Ibid. s 27(4).

[374] Ibid. s 15(1).

[375] Ibid. s 3.

[376] Carol Pettola v Daranee Buckley (Unreported NTMC case no 20405525, 8 September 2004, Mr Lowndes SM).

[377] Rex Wild QC v Andrew Heffernan (Unreported NTMC case no 20321492, 14 October 2003, Mr Bradley CM).

[378] Vincenzina Zangari v J.O.N. [2005] NMTC 022 [8].

[379] Ibid. [1].

[380] Adult Guardianship Act 1988 (NT) s 4.

[381] Ibid. s 14(1).

[382] Ibid. s 14(2).

[383] Ibid. s 14(3).

[384] Ibid. s 14(4).

[385] Ibid. s 16(1)(a).

[386] Ibid. s 14(5).

[387] Ibid.

[388] Ibid. s 17(1).

[389] Ibid. s 17(2).

[390] Ibid. s 17(3).

[391] Ibid. s 18(1).

[392] Ibid. s 18(2).

[393] Ibid. ss 8 and 19(1) and (2).

[394] Ibid. ss 12, 13, 19(3) and (8).

[395] Ibid. s 19(4) and (6).

[396] Ibid. s 19(5).

[397] Ibid. s 19(7).

[398] Ibid. s 23(1).

[399] Ibid. s 23(2).

[400] Ibid. s 23(3).

[401] Ibid. s 27.

[402] Ibid. s 23(3)(d).

[403] Ibid. s 23(4).

[404] Ibid. s 16(3).

[405] Ibid. s 16(4).

[406] Ibid. s 7(3).

[407] Ibid. s 23(5).

[408] Ibid. s 16(2A).

[409] Guardianship Act 1987 (NSW) s 66.

[410] For example in 2005-2006, 11% of guardianship applications were withdrawn during the hearing process. Guardianship Tribunal Annual Report 2005/2005, 21.

[411] Guardianship Act 1987 (NSW) s 4(a). Note that under s 67C of the Act, the Tribunal’s Registrar may, at the discretion of the President of the Tribunal, exercise the function of deciding whether or not to consent to the withdrawal of an application (including a guardianship application) to the Tribunal.

[412] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 74.

[413] Guardianship and Administration Act 2000 (Qld) s 122.

[414] Department of Human Services v G (Guardianship) [2007] VCAT 160, [23].

[415] Ibid. [22] and [23].

[416] Guardianship and Administration Act 1993 (SA) s 49.

[417] HDH Guardianship (9-6-05), 12-13. See, www.guardianship.tas.gov.au/decisions.

[418] See for example, Re KJM [2006] QGAAT 80.

[419] For cases showing the advance of dementia see, Re HMV [2006] QGAAT 87; Re BCV [2006] QGAAT 25 and Re GMAV [2006] QGAAT 88; Alzheimer’s Disease see, Re HAS [2001] QGAAT 3 and Re KAM [2006] QGAAT 90; for gradual decline because of stroke and possible dementia see, Re CAJ [2006} QGAAT 73; mental illness (chronic schizophrenia) see, Re RG [2006] WASAT 265 and Re SLD [2005] QGAAT 51; acquired brain injury through motor vehicle accident see, Re MLA [2006] QGAAT 91stroke see, Re MCD [2006] QGAAT 3; coma see, Re SKE [2006] QGAAT 92; permanent vegetative state see, Re PLC [2006] QGAAT 89;

[420] For an example see, CFL [2007] NSWGT 21.

[421] Matter No 92/3609, (unreported, Guardianship Board, 8 March 1993).

[422] For a US example see, In re Doe 696 N.Y.S. 348 (1999).

[423] Matter No. 93/2337, (unreported, Guardianship Board, 3 September 1993).

[424] HDH Guardianship (9-6-05), 13-14. See, www.guardianship.tas.gov.au/decisions.

[425] Re Bridges (Unreported, Queensland Supreme Court, Ambrose J, (S 2000 of 2000)) and Re IM [2003] QGAAT 16 [53]. See also, Re KB (1994) 12 SR (WA) 380.

[426] Ex parte Lyttleton [1801] EngR 189; (1801) 31 ER 911; In re B (an alleged lunatic) [1891] UKLawRpCh 137; [1891] 3 Ch 274; M v M [1981] 2 NSWLR 334, 336; RH V CAH [1984] 1 NSWLR 694, 706-707.

[427] RH V CAH [1984] 1 NSWLR 694, 706.

[428] For examples see, Re BMR [2006] QGAAT 21 and Re SCRB [2005] QGAAT 76.

[429] Re M and R and the Guardianship and Administration Board (1988) 2 VAR 213

[430] Ibid. 219.

[431] Ibid. and M v M [1981] 2 NSWLR 334.

[432] Public Trustee v Blackwood [1998] TASSC 130, 8 Tas R 256, 265.

[433] HDH Guardianship (9-6-05), 30-31. See, www.guardianship.tas.gov.au/decisions.

[434] Public Trustee v Blackwood [1998] TASSC 130, 8 Tas R 256, 266.

[435] Re MM (2001) 28 SR (WA) 320, 329-330. See also ADP [2005] WASAT 131 and JI and WG [2009] WASAT 79.

[436] Williams v Guardianship and Administration Tribunal [2002] QSC 237.

[437] Ibid. [1]-[2].

[438] Ibid. [5], [8] and [15].

[439] For an example of where the matters in the last two paragraphs were discussed, but a family member was still needed as a guardian to advocate for a man with whole of life disabilities living in a group home see, Matters Nos 1999/208 and 1999/3154 (unreported, NSW Guardianship Tribunal, 6 July 1999 and 7 September 2000, respectively).

[440] Re AAJ [2006] QGAAT 12.

[441] Re NB Mc (1989) 3 VAR 87. 90.

[442] Ibid. 92-93.

[443] Batchelor v Guardianship Board [1999] SADC 13.

[444] Ibid. [9]. For another example of a case in which the order was seen to be premature and left the Public Advocate unable to take decisions on the person’s behalf see, Williams v Guardianship Board [1999] SADC 25.

[445] See for example, Re AJH (1993) 12 SR (WA) 393 and Re KB (1994) 12 SR (WA) 380.

[446] McD v McD [1983] 3 NSWLR 81, 86; CF v TCML [1983] 1 NSWLR 138, 141; Public Advocate v RCS [2004] VCAT 1880 [10]. See also the two reviews related to the same person in Matters Nos 1999/208 and 1999/3154 (unreported, NSW Guardianship Tribunal, 6 July 1999 and 7 September 2000, respectively).

[447] Re DAP (1994) 13 SR (NSW) 31. See also, Re Y (1993) 12 SR (WA) 372.

[448] In re B (an alleged lunatic) [1891] UKLawRpCh 137; [1891] 3 Ch 274.

[449] See for example Re BPV [2006]QGAAT 6 in which there had been interim guardianship orders because of accommodation problems which had been resolved and there were no outstanding issues.

[450] KAS (unreported NSW Guardianship Tribunal, 13 May 2004, Matter No 2001/4708).

[451] The best statement of these principles is found in the Guardianship Act 1987 (NSW) s 4. See also Guardianship and Administration Act 2000 (Qld) Schedule 1.

[452] MW Guardianship and Administration Application (unreported, Tasmanian Guardianship and Administration Board, 10 October 2003). See, www.guardianship.tas.gov.au/decisions.

[453] Ibid. [28].

[454] Ibid. [34].

[455] See for example, Re ELF [2006] QGAAT 74, Re KAM [2006] QGAAT 90 and Re T (2000) 24 SR (WA) 177.

[456] See, for example, LAQ [2009] NSWGT 4. For a case in which the Public Guardian was appointed guardian because of the conflict between family members see, FBP [2008] WASAT 21.

[457] Peisah C. Brodaty H, Quadrio C. (2006) Family conflict in dementia: prodigal sons & black sheep Int J Ger Psychiatry (2006) 21(5):485-492

[458] For examples see, Matter No. 1999/4756 (Unreported Guardianship Tribunal (NSW), 9 November 1999), Re HAS [2001] QGAAT 3, Re HIO [2006] QGAAT 75, LM and MM [2010] WASAT 110. and FNB [2010] NSWGT 9.

[459] EP v AM [2006] WASAT 11, 41 SR (WA) 176.

[460] Ibid. [103].

[461] Ibid. [112].

[462] For an example see, Re BCV [2006] QGAAT 25.

[463] WBN [2009] NSWGT 9.

[464] MW [2005] WASAT 205. See also, AB [2005] WASAT 303; JJB and EWB [2006] WASAT 110 and EEM [2006] WASAT 94.

[465] Re IHE [2001] QGAAT 2. See also, Re BOW [2005] QGAAT 64.

[466] QAX [2009] NSWGT 11.

[467] [1991] UKHL 1; [1990] 2 AC 1. Also reported as, F v West Berkshire Health Authority [1989] 2 All ER 545.

[468] Ibid. 72-73,

[469] Ibid. 74.

[470] Ibid. 75.

[471] Re application for a guardianship order (BCB) (2002) 28 SR (WA) 338, 345 and 348.

[472] R v Bournemouth Community and Mental Health NHS Trust Ex Parte L [1999] AC 459, 490, In re L [1998] UKHL 24. See also, In re F (Adult: Court’s Jurisdiction) [2000] EWCA Civ 3029; [2001] Fam 38, 53, Re F [2000] EWCA Civ 192.

[473] Sheffield City Council v E [2004] EWHC 2808 (Fam) [99]. See also, A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, [39]-[40], Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, and Re S (Adult's Lack of Capacity: Carer and Residence, [2003] EWHC 1909 (Fam), [2003] 2 FLR 1235.

[474] Re JG (unreported, NSW Guardianship Board, 12 June 1996, Matter No. 96/1970).

[475] Ibid. 5.

[476] Guardianship Act 1987 (NSW) s 14(2)(a)(i).

[477] Guardianship and Administration Act 1993 (SA) s 5(a)and(b).

[478] Guardianship and Administration Act 1990 (WA) s 4(f).

[479] Guardianship and Administration Act 1986 (Vic) s 4(2)(c).

[480] Guardianship and Administration Act 1995 (Tas) s 6(c) and Adult Guardianship Act 1988 (NT) s 4(c).

[481] Re JD [2003] QGAAT 14.

[482] Guardianship and Management of Property Act 1991 (ACT) s 4(2).

[483] For an example see, HDH Guardianship 9-6-05, www.guardianship.tas.gov.au/decisions.

[484] For US cases which discuss the issue of appointing a public official or other non-relative as guardian and the need to explain why see, Estate of Romberg 942 S.S. 2d 417 (1997), Oliva v Oliva 113 S.W. 3d 269 (2003), Estate of Bragdon 875 A. 2d 697 (2005) and Prost v Schuffman 202 S.W. 3d 41 (2006).,

[485] [1988] HCA 68, [21]-[24], 166 CLR 69.

[486] Ibid. [23]-[24].

[487] W v G [2003] NSWSC 1170 [25] and [26].

[488] See as examples, Matter of Hancock 828 S. W. 2d 707 (1992) and Matter of Benson 124 S. W. 3d 79 (2004). For an example of disputes within the leading to the appointment of the Public Guardian as guardian see, IKB [2008] NWSGT 8.

[489] RL (Guardianship) [2002] VCAT 12.

[490] Ibid. [21].

[491] Ibid. [24].

[492] Ibid. [26] and [27].

[493] Ibid. [26].

[494] AS (Guardianship) [2006] VCAT 2143.

[495] Ibid. [35].

[496] Ibid. [35].

[497] Ibid.

[498] Ibid. [37] – [39]. For another case involving a son wanting to be appointed guardian, but the best interests of the person under guardianship requiring the Public Advocate as an independent guardian see, BK (Guardianship) [2007] VCAT 332.

[499] See for example, Re R (1993) 13 SR (WA) 10.

[500] For examples of cases in which the public official was appointed and why see, Re F (1993) 12 SR (WA) 375; Re NRM (1994) 12 SR (WA) 384; Matter No 1999/4756 (Unreported, NSW Guardianship Tribunal, 9 November 1999) and EP v AM [2006] WASAT 11, 41 SR (WA) 176.

[501] Adult Guardian v Hunt [2003] QSC 297 [30].

[502] LA [2006] WASAT 297. See for example Guardianship and Administration Act 1990 (WA) s 44(1)(b) and Guardianship Act 1987 (NSW) s 17(1)(b).

[503] Ibid. [31]-[32].

[504] CB (Guardianship) [2006] VCAT 1812 [10] and [11].

[505] Bennett HP, Hallen P. “Guardianship and financial management legislation: what doctors in aged care need to know” Intern Med J. (2005) 35(8):482-7.

[506] Guardianship Act 1987 (NSW) s 3(2).

[507] Adult Guardianship Act 1988 (NT) s 3.

[508] Guardianship and Administration of Property Act 1991 (ACT) s 6A.

[509] Bennett HP, Hallen P, op cit (footnote 405).

[510] Guardianship and Administration Act 2000 (QLD) s 12(1)(a), Schedule 2 s 2 and Schedule 4.

[511] Guardianship and Administration Act 1986 (Vic) s 22(!)(b); Guardianship and Administration Act 1995 (Tas) s 20(1)(b); Guardianship and Administration Act 1990 (WA) s 43(!0(b)(ii) and Adult Guardianship Act 1988 (NT) s 3.

[512] Guardianship Act 1987 (NSW) s 3.

[513] Bennett HP, Hallen P, op cit (footnote 405).

[514] Darzins, P, Molloy DW, Strang D. (Ed) Who can decide? The six step capacity assessment process, Memory Australia Press, Adelaide, 2000, 34-57.

[515] Guardianship and Management of Property Act 1991(ACT) s 7(1); Guardianship and Administration Act 2000 (Qld) s 12(1).

[516] Guardianship Act 1987 (NSW) s 3(2).

[517] Darzins, P, Molloy DW, Strang D op cit (footnote 414)..

[518] Guardianship Act 1987 (NSW) s s 14(2); Guardianship and Administration Act 1995 (Tas) s 20(3); Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 22(1) Guardianship and Administration Act 2000 (Qld) s 12(1); Adult Guardianship Act 1988 (NT) s 15(1).

[519] Guardianship and Administration Act 2000 (QLD) s 12(1); Guardianship and Management of Property Act 1991(ACT) s 7(1).


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