Public trustees and public guardians in South Australia

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 officers created 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 personal, 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 South Australia, the two offices are the Public Trustee and the Office of the Public Advocate (or ‘OPA’), which is the equivalent of a public guardian. In other states and territories, the two offices may be combined into one organisation 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 Advance Care Directive. 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 Office of the Public Advocate, is appointed.

More about guardians

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

• In South Australia, a ‘guardian’ is a decision-maker appointed for accommodation, health, access and lifestyle matters. A decision-maker appointed for financial decisions is called an ‘administrator’.

• A guardian appointment in South Australia may be a ‘full’ guardianship (authorised to make most decisions) or a ‘limited’ one (authorised only for certain kinds of decisions).

• 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 haven’t made an Enduring Power of Attorney or Advance Care Directive, there may be someone – like a close family member or friend – who can step in and help you manage things. If they 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 state’s administrative tribunal. Two or more guardians can be appointed, and the tribunal will say whether they must make decisions either ‘jointly’ (which means, both agree on the decision) or ‘severally’ (either can decide).

Both formal and informal 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 wherever 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.

South Australia has two types of guardianship and administration orders. ‘Full orders’ authorise your guardian to make decisions about most areas of your life. ‘Limited orders’ authorise them to make decisions only in the areas you are not able to decide for yourself. For example, if a limited administration order is made for decisions about your property, your administrator could not make decisions about paying your bills for you.

The role of the South Australian Civil and Administrative Tribunal (SACAT)

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 South Australian Civil and Administrative Tribunal (sometimes called SACAT) operates under the South Australian Civil and Administrative Tribunal Act 2013 (SA) and other legislation. One of the administrative matters it can decide is guardianships.

SACAT’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. SACAT does not charge fees for deciding guardianship applications (see the fee-free applications information on the ‘Fees and charges’ webpage).

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.

• Find out more about private guardianships on the OPA’s website. They also have a webpage with ‘Help for guardians, attorneys and administrators’.

• The Public Trustee provides guidance and information for private administrators.

Sometimes, it’s not possible for SACAT to appoint an individual as your guardian or administrator. 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 Office of the Public Advocate to be your guardian (for accommodation, health, access and lifestyle decisions) and the Public Trustee to be your administrator (for decisions about your finances, including real estate). The appointment is called a ‘guardianship order’ (or ‘administration order’). You would be referred to in the order as the ‘protected person’.

SACAT may appoint two guardians or administrators to make your decisions. They could be the OPA or Public Trustee and a family member or friend, or two family members or friends. Another possible appointment is an ‘alternative guardian’, who would step in if the appointed guardian was away or unable to act for you.

The tribunal can also receive and consider requests for reviews of guardianship orders in South Australia.

The role of the Public Trustee

The Public Trustee administers the financial and legal affairs of South Australians who are unable to manage for themselves. If you have lost decision-making capacity and don’t have an Enduring Power of Attorney, they may be appointed by SACAT as your administrator. For information about the fees that apply for their service, download the Fees and Charges Guide (PDF, 387 KB).

The role of the Public Trustee as your administrator is to help ensure that any financial decisions made for you promote your independence, quality of life and existing relationships. They will try to keep your best interests in mind and consider your preferences and wishes, as far as they can determine what those are.

As much as possible, the Public Trustee 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 about these processes on their ‘When SACAT appoints us to manage your finances’ webpage.

Fees will apply for administration services provided by the Public Trustee. See their Fees and charges webpage for details.

If you have a private administrator, they must report to the Public Trustee regularly on how they are managing your estate.

The role of the Office of the Public Advocate

When the Office of the Public Advocate is appointed, it’s known as a ‘guardian of last resort’. They will allocate you a staff member as your public guardian, and their role includes making your decisions in a way that promotes your independence, quality of life and existing relationships.

As far as possible, the Public Advocate 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. They will try to keep your best interests in mind and consider your wishes and preferences, as far as they can determine what those are.

The Office of the Public Advocate also offers information to help private guardians in their role. You can find this on their Private guardianship webpage.

The Public Advocate doesn’t hear applications for reviews of the guardianship orders – those are handled by SACAT.

What matters can a guardian decide?

South Australia guardianships are covered by the Guardianship and Administration Act 1993 (SA), which sets out the matters that guardians may manage for you.

In South Australian guardianships and financial matters are considered separately from accommodation, health, access and lifestyle decisions. An appointment for financial decisions is called an ‘administration order’, and the person appointed is called an ‘administrator’. An individual person or trustee company appointed for financial decisions is called a ‘private administrator’.

If the Public Trustee or Public Advocate 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 will be kept private.

If you (or someone else) disagree with the way the Office of the Public Advocate acts as your guardian, you can make a complaint about it. You can find out more about the process by reading their Complaints Policy on the OPA’s ‘Feedback and complaints’ webpage.

The Public Trustee also has a process for receiving complaints if you (or someone involved with you) has a concern about the way your administration order is being enacted. You should first speak to your allocated officer, but if the issue is not resolved, you can then speak to their manager. See the Public Trustee’s ‘Feedback and complaints’ webpage for more information about the process.

Financial decisions

Examples of financial decisions the Public Trustee, as your administrator, can make include:

• managing your bank accounts

• paying any debts you may have

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

• paying your bills and accounts

• managing your income.

For details of how the Public Trustee can act as your administrator and what they can do to help you, visit their ‘Financial administration’ webpage.

Accommodation and personal decisions

Examples of accommodation and personal decisions the Public Advocate, as your guardian, can make include:

• where you live

• what support or care services you receive

• who you have contact with.

Health and medical decisions

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

• whether to consent to medical treatment, and which ones

• what dental treatment you receive.

Medical treatment can never be provided without consent. If you are unable to consent to your own medical treatment, doctors may get consent from someone you are close to and who knows you well. This person is known as a Person Responsible, and they may or may not be your guardian.

For more information about a Person Responsible giving consent, read the Public Advocate’s ‘Consent to medical treatment’ fact sheet (PDF, 522 KB).

What are a guardian’s responsibilities?

South Australian law requires your guardian to act in ways that are in your best interest, consider and respect your wishes and preferences, and choose the least restrictive option. Both the Public Trustee and the Public Advocate 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 Office of the Public Advocate and the Public Trustee will keep records of the transactions and decisions they make for you, and a private guardian should do the same.

Most importantly, guardians can only decide matters they are authorised to decide. Administrators can’t make decisions about your accommodation, personal or medical treatment options, and guardians can’t make financial decisions. The Public Advocate can’t make financial decisions for you, and the Public Trustee can’t decide where you live.

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 SACAT can be for a fixed time but is usually ongoing. The tribunal must 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 act in the role, or your needs and circumstances have changed.

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 acting in your best interests.

Your guardianship appointment ends naturally when you die.

More information and resources

South Australian Civil and Administrative Tribunal

Considers and decides applications for guardianship and administration appointments.

Tel: 1300 723 767

Email: sacat@sacat.sa.gov.au

Website: Click here

Public Trustee

Provides financial and legal administrative services to eligible South Australians unable to manage their affairs themselves.

Tel: 1800 673 119 (toll free) or (08) 8226 9220

Email: pt.enquiries@sa.gov.au

Website: Click here

Office of the Public Advocate

Promotes the rights and interests of people who need help with decision-making.

Tel: 1800 066 969

Email: opa@agd.sa.gov.au

Website: Click here

Other useful resources

Principles of decision-making

This Office of the Public Advocate webpage explains how decisions should be made, whether under a formal or an informal guardianship or administration arrangement.

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