Being a guardian

What is a guardian?

A guardian is a substitute decision-maker: someone authorised to make decisions for another person who can’t legally decide for themselves, perhaps because of their age, a medical condition or an intellectual disability.

If you know an older person well and are involved in their life, you might one day be appointed as their guardian to make, or help them make, their decisions. They might appoint you themselves, or a public office might appoint you.

To be able to do the best job you can as a guardian, you need to understand how guardianships work, the legal basis for the appointment, and the principles you should follow. You might like to get an overview from our Introduction to Guardianships in Australia webpage.

How do you become a guardian?

Decision-making can become challenging as we grow older. If we lose capacity and become unable to make our own decisions at all, we will need someone to decide for us – this is substitute decision-making. Or we might start to find certain decisions hard to make on our own, but all we need is someone to help with the difficult steps – this is supported decision-making (more on this below).

An older person who has legal decision-making capacity can formally appoint you to be their guardian, just in case they ever need a decision-maker. They can appoint you by writing an Enduring Power of Attorney, an Enduring Guardian, a medical authorisation or one of several other formal documents. The type of document and the name of the guardianship depends on the type of decision and the state or territory the person lives in.

You could also be appointed by the state or territory’s Administrative Tribunal, if the older person hasn’t written any of these documents. The appointment happens this way when someone – perhaps a family member or friend – applies to the tribunal to have a guardian appointed for the older person. Usually, the tribunal will first try to find an individual person to be the guardian, and if that’s not possible they may appoint a public office, like the state’s Public Guardian or Public Trustee.

Emergency and joint guardianships

Some states allow emergency guardian appointments, which are temporary and usually for a set period of time – for example, 30 days. Emergency guardianships are aimed at covering a person’s short-term need for a substitute decision-maker, such as when their health or circumstances have suddenly changed.

Joint guardianships – where more than one person looks after the older person’s decision-making for them – are also possible in some states and territories.

What decisions can a guardian make?

The decisions you can make as a guardian are governed by state or territory legislation and by the directions in any document that appointed you as guardian. You can’t make any decisions that are not authorised by these laws and directions.

As the guardian of an older person, the types of matters you might need to decide could be:

• financial – e.g. buying or selling a home, managing investments, administering a pension or superannuation

• medical – e.g. choosing a doctor, making dental appointments, deciding to have treatment

• personal – e.g. buying clothing, keeping a pet, subscribing to a television or music channel

• lifestyle – e.g. choosing where to live, seeing friends or relatives, doing hobbies or work, accessing care services.

In some states, guardians are authorised to make any of these decisions. In other states, financial and medical decisions are given by law to specific guardians, who may have titles like Administrator or Financial Manager.

Although guardianship legislation varies from state to territory across Australia, the underlying concepts and principles are the same. Guardianship is about looking after the best interests of the person, respecting their rights, and helping them live the life they want.

What can’t a guardian decide?

There are some important matters that can’t be decided by a guardian. These vary across Australia, but they generally include:

• making, changing or revoking the older person’s will

• voting on their behalf in a government election

• deciding matters relating to their children

• consenting to them adopting children, marrying or divorcing.

Acting as someone’s guardian

Being a decision-maker for another person is an important role with privilege and responsibility. Ideally, you should know the older person well, have the relevant skills, and be available to be their guardian. You must be over 18 years of age and have legal capacity yourself.

You might sometimes find the role challenging. If you need help with a decision, seek input from other people who are involved in the older person’s life, or ask the Administrative Tribunal or public guardianship office in your state for expert guidance.

Guardianship principles

The following principles will guide you as you approach each decision.

• Act in accordance with the legislation that applies where you are and with the conditions of any document that appointed you as guardian.

• Respect and uphold the person’s rights – for example, to privacy, dignity, safety and social participation – when making a decision for them.

• Remember that everyone has the right to make their own decisions about matters that affect their lives. Follow and respect the person’s wishes and preferences, as far as you’re able to determine them.

• Make decisions in the person’s best interests guided by their preferences, values and principles, rather than yours.

• Balance your desire to protect the person from risk or mistake with their right to have their choices decided in the way they want. Focus on their rights and preferences, and only disregard what’s important to them if it’s truly necessary to protect them from harm.

• Support the person’s growth, independence and self-reliance as far as possible. Encourage them to look after themselves and to participate in life and community in whatever way they can.

• Act with honesty, care, skill and diligence. Seek advice and input if you’re not sure about a decision or if there could be a conflict of interest between your affairs and the older person’s.

• Get whatever information you need to be able to make the best decision. As guardian, you have the right to ask the person’s care and professional services for information that you need (but only if it’s relevant to the decision).

Finding your way to a decision

If the process of making a decision as a guardian seems confusing, you might find it helpful to follow a visual plan or chart of the process.

Victoria’s Office of the Public Advocate included a ‘Steps for guardians flowchart’ in their March 2020 leaflet, ‘The role of a guardian’. The flowchart may help you to work your way through what to think about as you approach making a decision. Although it’s written for guardians in Victoria, the flowchart can be applied in other states and territories.

Practical tips for guardians

• Understand what decision-making capacity is. See our Having Capacity page for information and resources.

• Understand the legal obligations and basis of the role and what decisions you are authorised to make. Read the relevant legislation and the documents of appointment.

• Let relevant people – such as the older person’s care and professional services, family and friends – know that you’ve been appointed as guardian. It’s best to do this formally, in writing. Keep a copy of the letters.

• Ask the person’s care and professional services for an overview of what they’re providing and whether there any issues needing to be resolved.

• Try to cooperate with others involved in the older person’s life, including other decision-makers, care providers, advocates, family and friends. If conflict arises, seek advice from the Administrative Tribunal, Public Guardian or Public Trustee’s office.

• Consider writing up a plan that records the decisions to be made, who’s involved, the timelines and the steps involved. Review and update the plan now and then, especially if the person’s condition or needs change.

• Keep records of all your decisions, consultations and actions, and keep them separately from your own personal records.

• To help you understand what the older person would want when you’re making a decision, talk to the person – you might be surprised at how much you discover. Talk to their family, friends, carers and service providers, too.

• Ask for help or advice if you feel you need it. Sometimes, the guardian role might not be easy. Be kind to yourself and just do the best you can.

‘Sometimes their [the older person’s] views will not be shown in words. Behaviour, including reactions to different things or people, can help you to understand what someone thinks or feels about a decision.’ (South Australian Office of the Public Advocate, Making decisions for others webpage)

Supported decision-making: a preferred option

Supported decision-making is when we provide someone with the help they need to make their own decisions. It recognises that decision-making is a process with multiple steps and that the person may be able to complete some, but not all, of the steps on their own.

Supported decision-making is important because it helps to protect the person’s rights, respects their autonomy and dignity, and ensures their choices align with their values and best interests. If the person we are helping has any decision-making capacity, we should use supported decision-making rather than deciding for them (which is often called ‘substitute decision-making’).

Read our Supported decision-making webpage to learn more about this option.

How does a guardianship end?

A guardianship can end in several ways, which may depend on the applicable state or territory legislation. It’s also possible for the appointment to be changed, particularly if things don’t seem to be going well. Here are some of the reasons why a guardianship could change or cease.

• The older person dies.

• The term of the guardianship appointment expires.

• The guardian resigns.

• The Administrative Tribunal cancels the guardianship appointment because it decides that the guardian is incompetent, not following the law or not acting in the older person’s best interests.

If someone else becomes concerned about the way you are acting as guardian, they may be able to apply to the Administrative Tribunal to have your appointment reviewed and possibly revoked. This can happen even when you were appointed by the older person you’re assisting.

To avoid losing your guardianship appointment, follow the principles that apply and remember that your job is to act in the best interests of the older person. You are expected to make decisions that align with their wishes, preferences and values, not yours, and to do all you can to enable the kind of life they want to live.

You can resign from the guardianship. If you’re finding the role difficult, you can first seek help from the guardianship offices in your state or territory, or from other people involved in the older person’s life. Perhaps you’ll soon feel more comfortable once you have that extra input or advice. But if you truly feel you can’t fulfil your obligations as a guardian, resigning is an option. Contact your Administrative Tribunal for directions and advice.

More information and support for guardians

• ACT Public Trustee and Guardian’s factsheet, ‘Guardianship for Private Guardians’
  This PDF (211 KB) contains information for guardians in the ACT.

• New South Wales Public Guardian’s booklet, ‘Now You’re the Guardian’
  This PDF booklet (1.1 MB) provides information for guardians in New South Wales.

• Northern Territory Office of the Public Guardian’s leaflet, ‘Information for Guardians’
  This PDF leaflet (877 KB) explains the role for guardians in the Northern Territory.

• Queensland Civil and Administrative Tribunal’s webpage, Guardians – Personal decisions
  The ‘Information for appointed guardians’ section on this page provides details about being a guardian in Queensland.

• South Australia Office of the Public Advocate’s webpage, Making Decisions for Others
  This page provides information for South Australian guardians. Click each + sign to expand the text.

• Tasmanian Civil and Administrative Tribunal’s booklet, ‘Handbook for Private Guardians’
  This PDF booklet (729 KB) is a comprehensive reference for guardians in Tasmania.

• Victorian Civil and Administrative Tribunal’s webpage, Guardians
  This webpage provides information and resources for guardians in Victoria, including dates and times of free information sessions in Melbourne.

• Western Australia Department of Justice’s website section

  This web page features helpful information and a raft of resources for individuals acting as guardians in Western Australia.

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