Guardianship is a legal way to appoint a person (a ‘guardian’) to act in certain personal or financial matters for an adult who has impaired decision-making capacity and needs someone to help them with decisions.
A guardian is someone appointed by the Northern Territory Civil and Administrative Tribunal to make certain decisions for an adult with impaired decision-making capacity under a guardianship order.
It is important to note that a guardian is not the same thing as a ‘carer’.
The main difference is that a guardian is given legal authority by the Northern Territory Civil and Administrative Tribunal to represent the adult and make decisions for them in the areas set out in a guardianship order.
A carer is someone who helps on an informal or formal basis with daily living tasks, such as getting dressed or showering, or doing things like washing, shopping, cooking and cleaning.
Many guardians, of course, may also provide care and support to the adult, especially where they are family or close friends.
Please see our fact sheet:
what is a guardian.pdf
‘NTCAT’ is short for Northern Territory Civil and Administrative Tribunal. The NTCAT is sometimes also referred to as the ‘Tribunal’.
The Northern Territory Civil and Administrative Tribunal is the authority that decides applications for guardianship in the Northern Territory. It can:
- receive applications for guardianship from members of the public and the Public Guardian
- hear evidence from people applying for guardianship
- make guardianship orders and related orders
- appoint guardians (‘private’ guardians, the Public Guardian and/or the Public Trustee)
- reassess and make changes to guardianship orders
- ask the Office of the Public Guardian to conduct an inquiry or investigation into a matter
- cancel a guardianship order.
You can find out more about the NTCAT on their website.
A guardianship order is a legal document which states what decisions a guardian can make for the adult who is the subject of the order (the ‘represented adult’).
The Northern Territory Civil and Administrative Tribunal will give a copy of the order to each guardian and the represented adult after it is made.
The guardianship order will state when the order starts (‘Date Given’), when it ends (‘expires’) and when the order will be reassessed.
An order may be a short as 90 days or last for several years. This decision is made by the Northern Territory Civil and Administrative Tribunal at the application or reassessment hearing.
The guardianship principles are a set of decision-making principles that all guardians must follow. They state that a guardian must always:
- act in the adult’s ‘best interests’, in a way that least restricts their freedom of decision and action
- consider the adult’s current and previously stated views and wishes
- support the adult to make their own decisions where feasible
- use their authority in line with the Guardianship of Adults Act 2016, the guardianship order and any other order of the Northern Territory Civil and Administrative Tribunal.
Please see our fact sheet and section 4 of the Guardianship of Adults Act 2016 for a detailed listing of the guardianship principles. understanding the adult guardianship principles.pdf
An adult who has difficulty making and communicating decisions about important things in their life may have a guardian appointed.
This difficulty is called having impaired decision-making capacity.
Only the Northern Territory Civil and Administrative Tribunal can decide if an adult has impaired decision-making capacity and needs a guardian.
They will do this only after reviewing the evidence provided by people with an interest in the adult’s welfare and hearing the adult’s views, where possible.
A young person aged 17 can also have a guardian appointed for when they turn 18, if the Northern Territory Civil and Administrative Tribunal is satisfied that they will need one.
A guardian may be:
- an adult who is eligible for appointment
- the Public Guardian
- the Public Trustee (for financial matters only)
- one or more of the above.
All guardians must be aged 18 or over and be appointed under a guardianship order by the Northern Territory Civil and Administrative Tribunal (NTCAT).
Please see our fact sheet: what is a guardian.pdf
A private guardian is a member of the community (a private citizen) who is appointed under a guardianship order to make certain decisions for an adult with impaired decision-making capacity.
We generally refer to private guardians as ‘guardians’.
The main task of a guardian is to make good decisions for the person they represent in the areas specified in the guardianship order.
These decisions may relate to:
- personal matters – such as managing housing, health care, work, education, daily activities or types of services
- financial matters – such as managing bills, money, assets, property or investments.
A guardian must always limit what they do to the areas and conditions set out in the guardianship order, and use the guardianship principles as a guide to good decision-making.
A guardian must always act ethically and in the ‘best interests’ of the adult they represent.
A guardian may apply to the Northern Territory Civil and Administrative Tribunal to change the terms of the guardianship order if they have reason to do so.
Please see our fact sheets: information for guardians.pdf understanding the adult guardianship principles.pdf understanding the nt guardianship of adults act.pdf
The Public Guardian oversees guardianship in the Northern Territory. With her staff at the Office of the Public Guardian, she:
- provides information to guardians and people thinking about guardianship
- helps represented adults, their families and carers to access support services
- acts as a guardian for an adult when appointed or needed
- promotes research and helps educate people about guardianship and related issues
- investigates guardianship matters
- advises the Minister for Health about relevant issues.
An adult may have impaired decision-making capacity if they have difficulty:
- understanding and remembering information about their personal or financial matters
- weighing up this information to make reasoned and informed decisions
- communicating their decisions in some way.
An adult’s decision-making capacity may be considered to be impaired even if:
- the impairment only happens sometimes or varies depending on the situation
- the adult can make decisions about some personal or financial matters.
An adult is presumed to have decision-making capacity until the opposite is shown.
Section 5 of the Guardianship of Adults Act 2016 defines decision-making capacity.
The represented adult is the adult who is the subject of the guardianship order.
An ‘interested person’ for an adult under guardianship means any of the following:
- the adult’s relative or guardian
- the Public Guardian
- the Public Trustee
- an agent for the adult, such as an advocate or legal or financial adviser
- a person primarily responsible for providing support or care to the adult
- anyone else with a genuine and sufficient interest in protecting the adult’s best interests.
An adult may have one or more guardians appointed in a guardianship order.
For example, one guardian might be appointed to pay bills and look after the adult’s financial affairs. Another guardian might have authority to make decisions about where the adult lives, or their health care.
If an adult has more than one guardian appointed, the guardianship order will say what each guardian can do and how decisions must be made.
It is important to think about how the guardians will work together to make decisions and have a practical arrangement.
Please see our fact sheets ‘What is a guardian’ and ‘Information for guardians’ for more information: what is a guardian.pdf information for guardians.pdf
The Northern Territory Civil and Administrative Tribunal can make a guardianship order for a 17-year-old for when they turn 18. The aim is to smooth the transfer of decision-making authority from childhood to adulthood.
If the guardian has authority for financial matters they may provide for the needs of a dependant.
However, the support must be of a kind that the adult might reasonably be expected to make, or had made previously, and its value must be reasonable in the circumstances.
The Northern Territory Civil and Administrative Tribunal can restrict or expand a guardian’s authority to provide for dependants, and include this in the guardianship order.
Please see our fact sheet ‘Information for guardians’ for more information: information for guardians.pdf
The Northern Territory Civil and Administrative Tribunal can make an interim guardianship order while it decides an application if it reasonably believes the adult has impaired decision-making capacity and urgently needs a guardian.
Please see our fact sheet ‘Applying for guardianship’ for more information: applying for guardianship.pdf
Joint guardianship is where two or more guardians are appointed to make decisions for an adult under a guardianship order.
Sometimes a guardianship order will state that all guardians must make decisions together. At other times an order will state that some decisions are to be made by one person, and other decisions by someone else.
The legal terms which say how decisions must be made are:
- Jointly – all guardians must agree and make decisions together
- Severally – guardians have separate decision-making responsibility for different things
- Jointly and severally – guardians can use their decision-making authority together or on their own, but should be in agreement about decisions made.
Advance personal planning allows a person to plan for a future where their health, financial and lifestyle wishes are heard and respected if they lose decision-making capacity.
It is governed by the Advance Personal Planning Act 2013.
What is an advance personal plan?
An advance personal plan documents a person’s health, financial and lifestyle preferences, for if they lose decision-making capacity in the future. It does not replace their will and is only valid in their lifetime.
An advance personal plan may include any of the following:
- advance consent decision
- advance care statement
- substitute decision-maker
Please see our fact sheet: advance personal plans and adult guardianship.pdf
If you have concerns about a guardian or need to speak with someone about a guardianship matter, you can contact the Office of the Public Guardian or the Northern Territory Civil and Administrative Tribunal (NTCAT).
The Guardianship of Adults Act 2016 sets out offences and penalties for guardians who are not doing the right thing. Offences include:
- pretending to be a guardian
- a guardian using their authority improperly
- a guardian inducing a decision-maker to use their authority improperly.
If you think a guardian is not following the guardianship rules, you can apply to the NTCAT to reassess the order. The NTCAT has the authority to:
- appoint guardians and hear and decide all guardianship applications
- change or cancel a guardianship order.
Please see 'Can I change a guardianship order'? for more information: FAQs - adult guardianship in the NT.pdf
What if I don't think I need a guardian?
If you think you don’t need a legal guardian and one has been appointed, you should speak with your guardian about your concerns and discuss the situation. You may also like to speak with your doctor about it.
If you are unhappy with something to do with the guardianship order, you can contact the Northern Territory Civil and Administrative Tribunal (NTCAT) for help.
You have the right to request that the NTCAT reassess the guardianship order, but you will need to give reasons. This may include medical and other reasons.
Forms you may need for this include:
- Form AG5 – Application to vary revoke or reassess a guardianship order
- Form AG4 – Primary Carer’s Report
- Form AG3 – Report by medical practitioner or other health practitioner
These forms can be downloaded from the Publications & Forms section of the NTCAT website.
Please see our fact sheet: 'about your guardian'.pdf
If you have a concern about a guardianship matter or your contact with the Office of the Public Guardian, please give us a call so we can talk about it.
You can phone us on 1800 810 979 between 9am and 4pm weekdays.
The Northern Territory Civil and Administrative Tribunal (NTCAT) has the power to reassess, change or cancel a guardianship order.
If you would like the NTCAT to make a change to a guardianship order, you need to fill in an ‘Application to vary, revoke or reassess a guardianship order’ (Form AG5).
You can download this form from the Publications & Forms section of the NTCAT website.
You can also phone the NTCAT on 1800 604 622 between 8:45am and 4pm weekdays.
Please see our fact sheet: 'Resolving complaints concerns and review'.pdf