Introduction to Guardianships

No matter their age or health, people have affairs to manage and decisions to make, like paying bills and choosing a doctor. If a person has difficulty doing, or is unable to do, those tasks themselves, the appointment of a guardian may help to make sure their affairs are looked after and appropriate decisions are made on their behalf.

A guardianship allows someone to manage the affairs and decisions of another person when they need or want this support. For example, children and people with intellectual disabilities may need guardians to look after their decisions and ensure their welfare.

People at any age could find themselves in circumstances where having a guardian is beneficial or even necessary. Many older people find that having a guardian is helpful if they begin to encounter difficulties as they age.

What is a guardian?

An appointed guardian is a role designed to maintain and protect the welfare and life management of a person who is unable to do this for themselves. It’s a step towards making sure vulnerable people are looked after by ensuring their decisions are made and affairs managed, and in the best way possible.

We focus on guardianships for older people in this article.

Two kinds of guardianships

It’s helpful to understand that there are two different types of guardianship appointments that assist older people:

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

• 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.

State and territory variations

Each state and territory has its own laws that establish how a guardianship works. So, in different states and territories, other terms might be used instead of ‘guardian’, such as administrator, manager, financial manager or authorised representative. What a guardian can look after may also vary: for example, financial matters but not legal or personal decisions, or health and financial matters but not medical.

In some states and territories, informal arrangements for managing lifestyle and personal decisions are sufficient, so that a partner or adult child, for example, can make decisions about what care services the older person receives or look after paying their bills. But for most matters and across most of Australia, a formal appointment will be needed.

Despite these differences, the general principle—giving someone the power to help another person with decision-making and managing their affairs when they cannot—is the same across Australia.

Supported decision-making

Making any decision is a process with multiple steps, from realising the decision needs to be made and gathering the necessary information to weighing up the alternatives and putting the decision into action. Sometimes, all a person may need to make their own decisions is help with one or more of these steps. This is known as ‘supported decision-making’.

Find out more about supported decision-making

All adults have the right to make their own decisions. If an older person can manage some, but not all, of the steps in the decision-making process, providing the right support is vital for their autonomy, dignity and wellbeing.

More information

When a guardian might be needed

We all hope to be able to manage our own affairs for the rest of our lives, and it can be hard to imagine this not happening. Here are some examples of situations when a guardianship appointment could prove useful to have when we’re older:

• Leslie’s eyesight deteriorates and he needs surgery. He makes a general power of attorney so his bills and finances will be looked after until he recovers.

• Jenny’s hands become shaky as she ages, and she now finds it hard to read and sign documents and papers when she needs to. Jenny reads the documents with her guardian and asks the guardian to sign them on her behalf.

• Ray’s mother experienced the onset of dementia in her 60s, which affected her decision-making capacity. She had not appointed a decision-maker for herself. Once Ray is appointed as his mother’s guardian by his state’s administrative tribunal, he is able to look after paying her bills and organise her residential care and medical services.

• Linda is finding as she gets older that she has trouble understanding information about her bank accounts. Her grandson, Jay, helps by researching what’s needed and explaining the information to Linda so she can decide what she wants done and inform the bank.

Guardian and attorney roles

There are several decision-maker appointments that can help to ensure an older person’s affairs and decisions are looked after, and the terms that describe those roles can be confusing.

The main difference between the two types of appointments is who makes them: the older person (who can only appoint someone while they still have capacity to make their own decisions) or someone else (when the older person no longer has capacity).

So while guardians (sometimes known by other terms) may perform the same kinds of roles as attorneys, people generally talk about guardians as being appointed after the principal loses capacity, usually by an administrative tribunal or other authorised official institution.

How is a guardian appointed?

Appointing your own

You can appoint your own chosen decision-maker while you still have capacity. You do this by following the process to complete the formal document(s) for your state or territory. While the exact name of the document that makes the appointment may vary from state to state, the options generally are:

• a general power of attorney, which will cover specific situations and periods of time while the older person still has capacity

• an enduring power of attorney (called an ‘Advance Personal Plan’ in the Northern Territory), for when the older person has lost capacity (we have more information about the difference between powers of attorney and enduring powers of attorney here.)

• an Enduring Guardian (the equivalent in your state or territory may be called an Advance Care Directive, Advance Personal Plan or another name).

To fully plan for your future and prepare for unexpected circumstances, you will probably need to make more than one of these documents.

> See our states and territories information to check the options for where you live.

Powers of Attorney

For more information on making an Enduring Power of Attorney (and the equivalents) go to our comprehensive section on Powers of Attorney.

More information

Appointed for you

A decision-maker can be appointed for you if you become unable to make your own decisions but have not formally appointed someone yourself through an Enduring Power of Attorney, Enduring Guardian or equivalent document. A guardianship board or administrative tribunal can appoint someone on your behalf, under the relevant legislation in the state or territory where you live. Depending on the matters the decision-maker will look after, they may be called an administrator, financial manager or other name. Each state and territory has an organisation such as a Public Guardian or Public Trustee that can be appointed for you (more on these below).

A guardianship board or administrative tribunal can also investigate and appoint a guardian if there is concern that the attorney or guardian you appointed for yourself is not acting in your best interests or respecting your wishes. This usually requires someone with an interest in your welfare to lodge an application. The board or tribunal will hold a hearing to discuss the application and decide whether a new guardian is needed. They may approve the nominated person, appoint someone else they believe is suitable, or appoint an organisation like the Public Trustee or Public Guardian.

Duration of appointment

Guardianship appointments made by a board or tribunal generally continue until they are no longer needed. To make sure the appointment is working well, the board or tribunal will usually review it at regular intervals.

Some guardianship appointments can be temporary. They might cover a particular time frame (with a set start and end date), or they might cover a particular circumstance (for example, while you are in hospital). In some situations, your guardian can be there to help you manage your affairs, while in other cases they will make decisions and act for you.

Some states and territories also allow emergency appointments of guardians for short periods of time, to meet your urgent or temporary needs. These may be called ‘emergency guardians’ or ‘temporary guardians’.

Can a guardianship appointment be changed?

Just like an attorney’s appointment, it’s possible for a guardianship appointment (one that was made for you) to be changed if there is a good reason for this to happen.

Most guardianship boards and administrative tribunals conduct an automatic review of appointments they have made, as part of their process for ensuring everything is working well. This review may take place near the expiry date of a fixed term appointment, or it may happen shortly after the appointment takes effect. If the board or tribunal finds any reason to believe that the older person’s interests are not being met fully, they may proceed to revoke the guardian’s appointment and replace them with a new guardian.

You may also be able to ask to have the guardianship decision reviewed if you disagree with the board or tribunal’s decision, or your circumstances change. Generally, the process for doing this is to complete and lodge an application form with the relevant board or tribunal. Check for any time limit on making an application for a review, and follow the instructions carefully.

If an older person’s loss of capacity is the reason for the guardian being appointed, they themselves can’t apply to have the decision reviewed. The application must be made by someone with an interest in their welfare, such as a family member or close friend.

Reasons for change

Guardians are expected to make decisions and manage affairs in the way the older person themselves would do. They should also support the older person in making any decisions that they are able to make with help. One reason for having an appointment reviewed is when it’s thought the guardian is not following these requirements. If the guardian is found to be acting negligently or dishonestly, they may face legal consequences.

Another reason would be that the guardian is making decisions about matters they aren’t authorised to decide. A guardian needs to understand fully what they are and are not authorised to look after, and they must respect those limits.

What to do if a guardianship is not working well

If you are involved with an older person who has a guardian, you may be in a good position to notice whether the arrangement is working or whether something is not right.

The guardian should be acting in the older person’s best interests, respecting their wishes and preferences for their own affairs, and involving them in making their decisions if this is at all possible. If you are concerned that this is not happening, the first step is to try talking to the guardian and see if the question can be resolved that way.

The next step, if your concerns persist, is to apply to the guardianship board or administrative tribunal to have the guardianship appointment reviewed. Your application may proceed to a hearing, and the outcome may be that a new guardian is appointed. For more information about this process, refer to the Compass page about guardians and trustees in your state or territory.

Public offices for guardianships

Each state and territory in Australia has public offices that provide assistance with guardianship appointments. Although the names of these offices may vary from place to place, the roles and responsibilities are similar across the country.

Administrative tribunals

Called Civil and Administrative Tribunals (CATs) in most jurisdictions, these are independent bodies authorised by state or territory legislation to act on civil and administrative matters. Their job is to investigate and decide various questions of day-to-day life – for example, matters such as consumer complaints and tenancy disputes, cases of discrimination, and disciplinary matters for some occupations.

When an older person has no guardian but needs help with their decision-making and management of their affairs, a concerned friend or family member can apply to the relevant CAT for a guardian to be appointed. In many cases, the person who makes the application may ask to act as the guardian, but if there is no one suitable who can be appointed, the tribunal may appoint a public office as guardian.

Public guardians, advocates and trustees

These are government agencies that provide civil services such as managing people’s estates and finances, preparing wills, administering trust funds, and acting as a person’s guardian if appointed by a CAT under application. Most states and territories have a Public Trustee and a separate Public Guardian or Advocate (NSW and the ACT each have a combined Trustee and Guardian).

As appointed guardians, Public Guardians, Advocates and Trustees may have responsibility for different matters (with different titles), depending on the home state or territory. The terms you might hear when dealing with one of these agencies include ‘appointed guardian’, ‘appointed manager’, or ‘appointed administrator’.

In some states and territories, the CAT may appoint the agency as a temporary or emergency guardian. However, the appointment of a Public Guardian, Advocate or Trustee is usually a longer-term arrangement, and it will be reviewed by the CAT at scheduled intervals to monitor the success of the appointment.

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