Public trustees and public guardians in the ACT

What are public trustees and public guardians?

Public trustees and public guardians are independent statutory authorities that provide services that help people – particularly vulnerable people – to manage their personal affairs. Every state and territory in Australia has a public guardian and a public trustee, although they may have different titles. They are independent statutory officials appointed under state government legislation, and the offices they run are state government agencies.

• What is a public trustee? It’s an organisation that protects people’s financial interests by providing services like assisting them with making wills and powers of attorney. Generally, a public trustee can be appointed to look after financial decision-making for someone who has lost their capacity to make those decisions themselves.

• What is a public guardian? This term often refers to both the office and the official, who support people with impaired decision-making capacity and help to protect their interests. If the official is appointed as guardian for someone who has lost capacity, their team members manage the person’s welfare, lifestyle, health and/or medical decisions for them. They may also be able to investigate allegations of abuse or neglect of older people who have lost decision-making capacity.

In the ACT, the two offices are combined into one organisation, the Public Trustee and Guardian of the ACT (sometimes called the PTG). They were two separate offices, the Guardianship Unit of the Public Advocate and the Public Trustee, until 2016. In other states and territories, they may be one office or two separate offices, and they may have different names.

Different kinds of guardianship appointments

There are two types of guardianship appointments that can assist older people:

• One you make yourself. You can appoint your own choice of future decision-maker(s) under a formal document like an Enduring Power of Attorney (or EPA). This can only be done while you still have decision-making capacity.

• One made for you. If you lose capacity and have not formally appointed your own future decision-makers, someone can be appointed for you by an authorised and specialist organisation, such as an administrative tribunal.

This article talks about guardians who are appointed for you if you need one but haven’t appointed one yourself.

To find out more about appointing your own substitute decision-makers while you still have capacity, see our Powers of Attorney section.

What is a guardian?

A guardian is a substitute decision-maker: someone authorised to make decisions for another person who is unable to decide for themselves. Guardians are authorised by law to make some or all decisions on the person’s behalf, and they should always act in the person’s best interests.

Often, someone who knows the person well becomes their guardian – a family member, for example – but sometimes a public agency, like the Public Trustee and Guardian, is appointed.

More about guardians

• Guardianships can cover different types of decisions and have different names.

• In the ACT, a ‘guardian’ is a decision-maker appointed for welfare and health matters. A decision-maker appointed for financial decisions is called a ‘manager’ or ‘financial manager’.

• In this article, ‘guardian’ is sometimes used to refer to any kind of appointed decision-maker.

• You can read more about guardianships in our Introduction to guardianships in Australia section.

How are guardians appointed?

If you start to have difficulty making decisions and don’t have an Enduring Power of Attorney, there may be someone – like a close family member or friend – who can step in and help you manage things. If these people make decisions for you without any kind of formal appointment, it’s called ‘informal decision-making’. As long as this arrangement is working well, there may be no need for a formal guardianship.

If there is no informal decision-maker, or the informal arrangement isn’t working well, someone involved in your life can ask to have a guardian formally appointed for you. They do this by applying to the ACT’s Civil and Administrative Tribunal. Two or more guardians may be appointed, and the tribunal will say whether they must make decisions ‘jointly’ (which means, both agree on the decision), ‘severally’ (one can decide on their own), or either way.

Your decision-makers should try to help you make any decisions that you can. This principle is called ‘supported decision-making’.

What does ‘supported decision-making’ mean?

Supported decision-making means your helper empowers you to make your own decisions whenever you can by providing you with whatever you need to do so. For example, your decision-making supporter could:

• explain information, so you are able to make the decision

• get you a translator, so you can understand information thoroughly

• go with you to the doctor to write down what they say, so you can remember it later and decide what to do.

You can find out more about this in our article, Supported decision-making.

The role of the ACT Civil and Administrative Tribunal (ACAT)

An administrative tribunal is like a court that decides minor disputes and administrative matters. It operates under state legislation, and the decisions it makes are called ‘orders’. The ACT Civil and Administrative Tribunal (sometimes called ACAT) operates under the Guardianship and Management of Property Act 1991 (ACT) and other legislation. One of the administrative matters it can decide is guardianships.

ACAT’s role in guardianships is to consider applications to have a guardian appointed for you. Someone who is concerned about you can apply to the tribunal to either be formally appointed as your guardian themselves or have someone else appointed. ACAT does not charge fees for applying for a guardianship appointment.

The tribunal will hold a hearing to determine whether there is a genuine need for a guardian to be appointed, consider who could be appointed, and decide how the guardianship would work best. They will keep your best interests in mind when deciding on the application.

Usually, they will first try to find an individual person who knows you well and would be an appropriate guardian, such as a family member, friend or carer. (This kind of guardian is sometimes called a ‘private guardian’.) A trustee company may also be considered as your administrator. A guardian must have legal capacity and be aged 18 or over to be appointed.

• Watch this video to learn about how ACAT conducts hearings for guardianship applications.

Sometimes, it’s not possible for ACAT to appoint an individual as your guardian or manager. They may be unable to find an available, suitable and willing person, or there may be a dispute between your family, friends or carers over who your guardian should be.

In cases like these, the tribunal may appoint the Public Trustee and Guardian to be your guardian (for accommodation, health, access and lifestyle decisions) or manager (for decisions about your finances, including real estate). The appointment is called a ‘guardianship order’ (or ‘management order’). You would be referred to in the order as the ‘protected person’.

The tribunal can also receive and consider requests for reviews of guardianship orders in the ACT. They can also provide some information to private guardians.

The role of the Public Trustee and Guardian of the ACT (PTG)

The Public Trustee and Guardian administers the financial and personal affairs of people living in the ACT who are unable to manage them for themselves. If you have lost decision-making capacity and don’t have an Enduring Power of Attorney, they may be appointed by ACAT as your guardian and/or financial manager. Staff from the PTG also attend the weekly guardianship hearings at the ACT Civil and Administrative Tribunal to provide advice if needed.

The role of the PTG, when appointed as your substitute decision-maker, is to act in a way that keeps your best interests in mind and respects your preferences and wishes, as far as possible. They will aim to help you look after yourself and be an active member of your community, with minimal interference. They also work to prevent you experiencing any physical or mental harm or financial insecurity.

As much as possible, the Public Trustee and Guardian will work with you in making your decisions. If it’s appropriate, they will also talk to your family, friends and carers to get their views on how your decisions should be made.

• You can read more information and download helpful fact sheets on the PTG’s Guardianship webpage.

• For more about how PTG acts as your manager, visit their ‘Financial management’ webpage.

Fees will apply for financial management services provided by the Public Trustee and Guardian. See their Fees webpage for details, including a downloadable fact sheet.

What matters can a guardian decide?

Guardianships in the ACT are covered by the Guardianship and Management of Property Act 1991 (ACT), which sets out the matters that guardians may manage for you.

In the ACT, your financial decisions are managed separately from your welfare and health decisions. A financial manager will look after your financial decisions, including real estate, and a guardian will look after the others. (It’s possible that the same person or people may be appointed for both roles.)

If the Public Trustee and Guardian is appointed to help you, they will need to get some information about you and what’s happening in your life, what decisions need to be made, and what your options are. They will talk to you and to your carers to gather the information and find out what everyone thinks would be best for you. The information they collect will be kept private.

If you (or someone else) disagree with the way the Public Trustee and Guardian acts for you, you can make a complaint about it. The issue should first be raised with the PTG staff member looking after you. If it’s not resolved, you can take the matter further by following the Complaints Policy to lodge a formal complaint.

Financial decisions

Examples of financial decisions the Public Trustee and Guardian, as your manager, can make include:

• maintaining insurance over your home, car and other assets

• managing any debts you may have, such as a mortgage or credit card

• managing real estate purchases and sales (with ACAT’s approval)

• paying your bills and accounts

• managing any income you receive

• bringing or continuing legal proceedings about your financial matters for you.

Welfare decisions

Examples of welfare decisions the Public Trustee and Guardian, as your guardian, can make include:

• deciding where you live, and with whom

• bringing or continuing legal proceedings about your welfare for you

• managing issues that protect you from risk.

Health and medical decisions

Examples of health and medical decisions the Public Trustee and Guardian, as your guardian, can make include:

• whether to consent to medical procedures and treatment, and which ones (some procedures, such as some treatments for psychiatric illnesses, need an order to be made by ACAT)

• what dental treatment you receive

• bringing or continuing legal proceedings about your health for you.

What are a guardian’s responsibilities?

ACT law requires your guardian to act in ways that are in your best interests, consider and respect your wishes and preferences, and choose the least restrictive option when making your decisions. The Public Trustee and Guardian will do everything possible to act according to this requirement. To do this, they will need to gather information about you, your preferences and options, and the decisions that need to be made, and the information they gather will be kept private.

The Public Trustee and Guardian will keep records of the transactions and decisions they make for you. A private guardian should do the same.

Most importantly, guardians can only decide matters they are authorised to decide. Managers can’t make decisions about your welfare or health options, and guardians can’t make financial decisions (unless the same person has been appointed as your guardian and your manager).

Information for guardians

Guardians can find out more about their role and responsibilities on our Being a guardian webpage.

Ending or changing a guardianship appointment

A guardianship appointment made by ACAT can be for a fixed time but is usually ongoing. The tribunal will review guardianship orders at least every 3 years, and this will happen automatically. The review will consider whether there is new information available, the appointed guardian can no longer the act in the role, or your needs and circumstances have changed.

You, or people involved with you, may also request a review of a guardianship order. This may happen if your circumstances change or if there is concern that your appointed guardian isn’t the acting in your best interests. If a review is granted, ACAT may remove the guardian or revoke the guardianship order.

Your guardianship appointment ends naturally when you die.

More information and resources

Other useful resources

Guardianship for Private Guardians (PDF, 211 KB)

Guardianship by the Public Trustee and Guardian (PDF, 211 KB)

Financial Management (PDF, 236 KB)

These PTG factsheets explain more information about the roles of guardian and manager in the ACT.

Guardianship (PDF, 337 KB)

Legal Aid ACT’s fact sheet offers a simple, straightforward overview of the key information about ACT guardianships.

Disclaimer: The information provided on this website is not a substitute for individual legal advice.