Adult Guardianship
Guardianship is the legal appointment of an adult to make decisions on behalf of someone aged
18 years and over who has impaired decision-making capacity.
The person who makes decisions is called a guardian. The person the guardianship order is about, is the represented person.
Decision-making capacity
Every adult is presumed capable of making their own decisions unless proven otherwise.
Decision-making capacity is a person's ability to make informed decisions using the information provided. They also need to communicate this decision in some way. People can have capacity to make some decisions and not others.
Decision-making capacity is:
DOMAIN SPECIFIC - a person may be able to make health care decisions but not financial decisions.
DECISION SPECIFIC - a person may be able to make some health care decisions but not others (for example they may be able to consent to a blood test but not to a course of cancer treatment).
TIME SPECIFIC - a person's capacity may fluctuate (for example they might have better cognition at certain times of the day or regain capacity at a later date).
The role of a guardian
The role of a guardian is to be a decision maker and advocate for the represented person. A guardian should support the represented person to make their own decisions where possible. They should also advocate for the represented person's voice to be heard.
Where this is not possible, the person's previously known views and wishes should be used to make decisions. A guardian can only make decisions in the areas authorised in the guardianship order.
These decisions may relate to:
Personal matters, including:
- accommodation
- health care
- work
- education
- daily activities
- types of services provided to the represented person.
Financial matters, including:
- managing money
- paying bills
- looking after assets, property or investments.
A guardian must always act ethically and within their decision-making authority. They must also:
- Adhere to any conditions set out in the guardianship order.
- Follow the guardianship principles.
- Align their decision making with the views and wishes of the represented person, wherever possible.
Who can be a guardian
The Guardianship of Adults Act 2016 allows for the appointment of:
- an individual (personal and financial matters)
- the Public Guardian (personal matters)
- the Public Trustee (financial matters).
To be a private guardian the individual must:
- be at least 18 years old
- agree to be a guardian, and
- satisfy the Northern Territory Civil and Administrative Tribunal (Tribunal) that they are suitable to be a guardian.
A private guardian is usually a close family member or friend. However, it can be anyone with a genuine interest in the person. A private guardian should know the person's views, wishes and beliefs. Private guardians do not have to live near the represented person however, they do need to be easily contactable when decisions are required.
Appointing a guardian
Guardians are appointed by the Tribunal.
The Tribunal decides if a person requires a guardian. They will review all the evidence provided and will also talk to people with a genuine interest in the person. Where possible the Tribunal will also ask the person for their views on the matter.
Evidence may include:
- medical reports
- psychologist reports
- allied health reports
- carers reports.
If urgent decisions are needed, the Tribunal can make an interim guardianship order while it decides an application.
The Tribunal may also make a guardianship order for a young person aged 17. The order will start on the person's 18th birthday. The Tribunal can only make this order if they are satisfied that the person will need ongoing help with decision-making.
The Tribunal can only appoint a guardian for a person that does not have decision-making capacity in that area of their life.
Guardianship arrangements
A guardianship order may appoint one or more guardians. The guardianship order will outline how each guardian can use their authority and make decisions. The terms used in the order to describe how guardians must make decisions, are:
- Jointly - All guardians must agree on decisions.
- Severally - Guardians can make decisions on their own.
- Jointly and severally - Guardians may act together or on their own. However, they should agree on decisions made.
Where there is no one else willing or able to be appointed, the Public Guardian and the Public Trustee can be appointed as guardians of last resort.
Guardianship principles
The guardianship principles guide guardians in their decision-making process. These state that a guardian must use their authority in the best interests of the person.
The guardian must:
- Consider the person's current and previously stated views and wishes.
- Take into account all relevant considerations and give them the appropriate weight relevant to the circumstances.
- Support the person to make their own decisions where possible.
- Make decisions in a way that least restricts the person's freedom of decision and action.
Section 4 of the Guardianship of Adults Act 2016 lists the guardianship principles.
Guardians appointed for health care must also follow the health care decision making principles. Read Making health care decisions for more information.