Guardianship is a form of substitute decision making. Guardianship law is the mechanism by which a person or entity can be appointed as guardian for a person with impaired decision making  capacity to make decisions on his or her behalf, in identified matters or areas of life.

There is a complementary area of law which can similarly appoint a person or entity to manage the person’s financial affairs and property, often known as administration or financial management. The same individual may sometimes be appointed in the role of guardian and administrator or manager.

Each State or Territory has a system of guardianship and administration law that authorises a tribunal or board to make determinations about the appointment of guardians and managers or administrators.  A person with disability whose capacity to make decisions is impaired may have a guardian appointed by the relevant tribunal or board.

Guardians may be family members or friends, or possibly a public advocate or guardian.  Administrators of managers may be individuals, such as a relative, friend, solicitor or accountant, or an organisation such as a trustee company or the State or Territory public trustee.

For a participant under the NDIS, a guardianship order may significantly influence the appointment of a nominee to make decisions on his or her behalf. The appointment of a guardian, as a measure relating to the exercise of legal capacity, should comply with Article 12 of the Convention on the Rights of Persons with Disabilities and respect the right to make decisions, and to be supported to do so.

Advocacy to the relevant tribunal or board may be valuable where the use of supported decision making would remove the necessity for a guardianship order or reduce its coverage, thereby enabling the person to exercise more choice and control over all aspects of his or her life.

Australian Capital Territory

The ACT Civil and Administrative Tribunal, or ACAT, is empowered to appoint guardians and managers.

The Guardianship and Management of Property Act 1991 (ACT) regulates when and how appointments should be made, and the responsibilities of a guardian to the person with impaired decision making ability.

This role of guardian is often filled by a family member or close friend of the person in need of representation. In the absence of a suitable person, however, the Office of the Public Advocate, ACT may be appointed to act as guardian.

In relation to financial and property matters, an individual, a trustee company or the Public Trustee of the ACT can be appointed as manager. If unhappy with a decision made by a guardian, a person under a guardianship order can apply to ACAT for review. Decisions made by ACAT can be appealed to the Supreme Court (ACT).

New South Wales

The NSW Guardianship Tribunal is empowered to appoint guardians and managers.

The Guardianship Act 1987 (NSW) regulates when and how appointments should be made, and the responsibilities of a guardian to the person under guardianship.

This role of guardian is often filled by a family member or close friend of the person needing representation. In the absence of a suitable person, however, the Public Guardian of New South Wales may be appointed to act as guardian.

The Public Guardian cannot act on financial issues but may make decisions about an individual’s health and welfare.

The Tribunal can appoint a suitable person, or the New South Wales Trustee and Guardian, to financially manage the person’s affairs when the person is not capable and needs another person to manage those affairs on his or her behalf.

If the order is not working for the person, circumstances have changed or there no further need for a guardian, a request can be made for the Guardianship Tribunal to review the guardianship order.

Appeals against decisions of the Guardianship Tribunal can be made to the Supreme Court or the Administrative Decisions Tribunal of NSW.

Northern Territory

The Adult Guardianship Act 1988 (NT) empowers Northern Territory Local Courts to set up Guardianship Panels to advise on the appointment of guardians.

The role of guardian is often filled by a family member or close friend of the person who requires representation. In the absence of a suitable person, however, the Office of Public Guardian, Northern Territory may be appointed to take on this responsibility and act in the interests of the person.

The Office of the Public Trustee, Northern Territory can also be appointed as the manager of the person’s property.

If unhappy with the guardianship order, a represented person can apply to the Court for review.

The Court’s decision or determination may be appealed to the Supreme Court.

Queensland

The Queensland Civil and Administrative Tribunal, or QCAT, is empowered to appoint guardians and administrators.

The Guardianship and Administration Act 2000 (Qld) regulates when and how appointments should be made and the responsibilities of the guardian to the person with impaired capacity.

In the absence of a suitable person, the Office of the Adult Guardian, Queensland may be appointed to act as guardian.

In relation to financial and property matters, an individual, a trustee company or the Public Trustee, Queensland can be appointed as administrator.

QCAT can be applied to for review of a guardian appointment, and has the power to remove guardians if the adult’s needs have not been met, or the guardian has neglected his or her duties, or a guardian is no longer needed.

Some QCAT decisions can be challenged by applying for internal appeal, and to the Queensland Court of Appeal.

South Australia

The Guardianship Board, South Australia is empowered to appoint guardians and administrators.

The Guardianship and Administration Act 1993 (SA) regulates when and how appointments should be made, and the responsibilities of the guardian to the person placed under a guardianship order.

In the absence of an appropriate person, the Office of the Public Advocate, South Australia may be appointed to take on this responsibility and act in the interests of the person.

In relation to financial and property matters a suitable person, a trustee company or the Public Trustee, South Australia can be appointed as administrator.

A decision or order of the Guardianship Board can be appealed to District Court. District Court decisions can be further appealed to the Supreme Court.

Tasmania

The Guardianship and Administration Board Tasmania, or GAB, is empowered to appoint guardians and administrators.

The Guardianship and Administration Act 1995 (Tas) regulates when and how appointments should be made and the responsibilities of the guardian to the represented person.

The Office of the Public Guardian, Tasmania may be appointed to act as a guardian or administrator.

Any other suitable person, a trustee company or the Public Trustee, Tasmania can also be appointed as administrator.

If unhappy with decision or order of GAB, a statement of reasons can be requested or an application to review the order can be made.

An order can be appealed to the Supreme Court.

Victoria

The Victorian Civil and Administrative Tribunal, or VCAT, is empowered to appoint guardians and administrators.

The Guardianship and Administration Act 1986 (Vic) regulates when and how appointments should be made and the responsibilities of the guardian to the represented person.

In In the absence of a suitable person, the Office of the Public Advocate, Victoria may be appointed to act as a guardian to make decisions for the represented person.

The State Trustees, Victoria can be appointed as administrator.

An application can be made to VCAT to rehear, reassess or revoke the order.

VCAT outcomes can be appealed to the Supreme Court.

Western Australia

The State Administrative Tribunal, Western Australia or SAT, is empowered to appoint guardians and administrators.

The Guardianship and Administration Act 1990 (WA) regulates when and how appointments should be made, and the responsibilities of the guardian to the represented person.

In the absence of a suitable person, the Office of the Public Advocate, Western Australia may be appointed to act as guardian to make decisions for the represented person.

The Public Trustee, Western Australia can be appointed as administrator.

If unhappy with the appointment of a guardian, a person may request that SAT review the order.


Last Modified: July 1, 2013