Guardianship and Administration

Under the Guardianship and Administration Act 1993 , the Guardianship Board is empowered to make guardianship and administration orders for a person who has a mental incapacity (see also Mental incompetence). Generally, an administrator deals with matters of finance, property and associated legal affairs, as distinct from a guardian, who may make decisions regarding personal and health care matters. The principles of the Guardianship and Administration Act 1993 outlined in s 5 (see principles of substituted judgement) require the Guardianship Board to consider the desirability of not making orders where a person's informal arrangements and networks are adequate and working in that person's best interests. Therefore, an application for a guardianship and/or administration order may only be required in the following circumstances:

the person concerned has a mental incapacity due to disability or illness, and this can be supported by a medical practitioner's or psychologist's report; and
there are specific decisions to be made concerning such matters as accommodation (such as where to live and with whom), or financial matters (such as what to do with property) which cannot be made without a Guardianship Order giving someone the necessary authority; and/or
there is significant conflict or dispute regarding the decisions being made for the person concerned, which someone (or a number of other people) believes is detrimental to the person's interests and/or welfare.

Guardianship Orders are often not required because most people are supported by family members and friends who make, or assist in making, decisions for the person concerned informally, that is, without any special authority. The scope for informal financial management however, is more limited and the most important consideration is the protection of the person's finances from abuse or exploitation by others and/or poor self management. Consequently, the Guardianship Board makes more administration orders than guardianship orders.

Applications to the Guardianship Board for an order can be made by a number of people. The classes of people include:

the person subject to the order
the public advocate
a legal guardian
a medical agent
an administrator
a relative
or anyone with a proper interest.

Under the Act a relative is defined as a spouse; domestic partner (de facto partner, same-sex partner or companion); a parent; a person acting in loco parentis of a child aged under 18; for adults aged over 18, a person who is charged with overseeing their ongoing day-to-day supervision, care and wellbeing; and a sibling or child of 18 years or older.

An application to the Guardianship Board requires a hearing before the Board. All interested persons can attend even if they disagree with each other. Any information submitted to the Board will be made available to those attending the hearing. An order made by the Board can be appealed to the Administrative and Disciplinary Division of the District Court. At the appeal the person who is the subject of the order is provided with free legal representation, see appeals.