Adult guardianship

Contributed by LorraineKing and current to 14 February 2019

About guardianship

What is guardianship?

Guardianship is the framework that gives legal authority to a guardian to make decisions on behalf of an adult who has impaired decision-making capacity.

What is impaired decision-making authority?

An adult may have impaired decision-making capacity if they have difficulty:
  • understanding and remembering information about their personal or financial matters
  • weighing up this information to make reasoned and informed decisions
  • communicating their decisions in some way.
An adult's decision-making capacity may be considered to be impaired even if:
  • the impairment only happens sometimes or varies depending on the situation
  • the adult can make decisions about some personal or financial matters.
An adult is presumed to have decision-making capacity until the opposite is shown.

The Guardianship of Adults Act 2016 (NT)

The Guardianship of Adults Act 2016 (the Act) provides a contemporary legal framework for adult guardianship in the Northern Territory. The Act commenced on 28 July 2016 and supersedes the Adult Guardianship Act 1989.

The Act recognises the overall wellbeing, human rights and fundamental freedoms of persons with impaired decision-making capacity and aligns with the United Nations Convention on the Rights of Persons with Disabilities.

The Act:
  • established the independent Office of the Public Guardian and the statutory position of Public Guardian
  • transferred jurisdiction for guardianship matters from the Local Court to the Northern Territory Civil and Administrative Tribunal
  • introduced comprehensive guardianship principles
  • expanded guardianship to people with cognitive impairment from any cause
  • introduced a modern decision-making framework in line with other Australian jurisdictions
  • allows for the registration of interstate guardianship orders
  • allows for interim (urgent) guardianship orders
  • allows for orders to be made for young people aged 17 for when they turn 18.

The Public Guardian

The position of Public Guardian is a statutory appointment under the Act. It is made by the Northern Territory Administrator on the recommendation of the Attorney-General and Minister for Justice. The independence of the Public Guardian as a statutory officer is an essential element of the Act and aligns the Northern Territory with models used in other Australian jurisdictions.

The Public Guardian's functions include advocacy on behalf of adults with impaired decision-making capacity, policy development, service improvement, community education, investigations, research and guardianship.

The Office of the Public Guardian

The independent Office of the Public Guardian provides guardianship information, advocacy, education, research, investigation and support to the Northern Territory community and guardianship to adults when appointed by NTCAT.

Staff of the Office of the Public Guardian includes Adult Guardianship Officers, Inquiry and Engagement Officers, Project and Policy Officers and Administration Officers.

Offices of the Public Guardian are located in Darwin and Alice Springs.

Who determines guardianship applications?

The Northern Territory Civil and Administrative Tribunal (NTCAT) has authority to hear and determine all guardianship proceedings in the NT.

See the NTCAT website for more information about NTCAT.

What is a guardianship order?

A guardianship order is a legal document which states what decisions a guardian can make for the adult who is the subject of the order (the 'represented adult').

NTCAT will give a copy of the order to each guardian and the represented adult after it is made.

What are the guardianship principles?

The guardianship principles are a set of decision-making principles that apply to anyone exercising decision-making authority under the Act including all guardians, the Public Guardian, the Public Trustee and NTCAT.

They state that a guardian must always:
  • act in the adult's 'best interests', in a way that least restricts their freedom of decision and action
  • weigh up the considerations that they reasonably believe are appropriate in the circumstances.
  • consider the adult's current and previously stated views and wishes
  • take into account all relevant considerations
  • weigh up the considerations that they reasonably believe are appropriate in the circumstances.
In deciding what is appropriate in the circumstances the decision maker must use their authority in a way that:
  • is least restrictive of the adult's freedom of decision and action
  • gives the adult as much support as is practical to make their own decisions.
Relevant considerations may include:
  • the adult's current and previously stated views and wishes
  • the views and wishes of an interested person for the adult
  • the adult's lifestyle preferences and needs
  • the adult's ability to maintain their independence and freedom of choice as much as possible
  • the adult's emotional, physical, social and intellectual potential
  • the ability of the adult to live in and be part of the general community, with a support network
  • the adult's overall happiness and wellbeing
  • if the adult has appropriate care, including health care and personal care
  • protection of the adult from harm, neglect, abuse and exploitation
  • maintenance of the adult's right to be treated with dignity and respect
  • protection of the adult's property and financial resources from loss, damage or misuse
  • protection of the adult's right to confidentiality of information about them.
See the OPG fact sheet Understanding the adult guardianship principles.pdf and section 4 of the Guardianship of Adults Act 2016 for a detailed listing of the guardianship principles

Who can have a guardian appointed?

A guardian may be appointed for an adult if the adult satisfies 3 criteria:
  • the adult has impaired decision-making capacity
  • the effect of the impairment is that for some or all personal matters or financial matters the adult is unable to exercise decision-making capacity
  • the adult is in need of a guardian for some or all of those personal or financial matters.
The Act prescribes the considerations that must be taken into account when determining if an adult is in need of a guardian including:
  • the nature and extent of the adult's decision-making impairment
  • if there are already any other persons appointed with decision-making authority for the adult
  • any views and wishes stated by interested persons for the adult
  • the desirability of preserving existing family and other relationships for the adult and
  • if the adult's needs can be met in a way that is less restrictive of the adult's freedom of decision and action than appointing a guardian.
A young person aged 17 can also have a guardian appointed for when they turn 18, if NTCAT is satisfied that they will need one.

Who can be a guardian?

A guardian may be:
  • an adult who is eligible for appointment
  • the Public Guardian
  • the Public Trustee (for financial matters only)
  • one or more of the above.
To be eligible for appointment as a guardian an individual must be over 18 years of age, must consent to the appointment and must be considered by NTCAT to be suitable to be a guardian for the adult.

The Act prescribes the matters that must be considered by NTCAT in determining if an individual is suitable to be appointed as a guardian for an adult.

All guardians must be appointed under a guardianship order by NTCAT.

See the OPG fact sheet What is a guardian.pdf

Guardians

Role of a guardian

A guardian must:
  1. make decisions on behalf of the adult and
  2. advocate for the adult in relation to the personal or financial matters that are specified in the guardianship order.
The decisions a guardian makes must be exercised in accordance with the guardianship principles and be in the best interests of the adult.

See the OPG fact sheets:
Information for guardians.pdf
Understanding the NT Guardianship of Adults Act.pdf

Authority of guardians

A guardian may have authority for some or all personal or financial matters for an adult. The authority of each guardian is specified in the guardianship order made by NTCAT.

Personal matters might include:
  • health care
  • accommodation
  • relationships with other people, including who can visit the adult
  • care and support arrangements
  • employment
  • education and training
  • day-to-day living matters, such as diet and daily activities
  • related legal matters.
Financial matters might include:
  • receiving and paying money
  • banking
  • property (including real estate ownership)
  • investment and asset management
  • personal or property insurance
  • trade or business operations
  • related legal matters.
The guardianship order will clearly state which matters a guardian has authority for and the extent of the authority including any restrictions on the guardian's authority or any requirements or directions that must be complied with by the guardian.

Number of guardians

NTCAT may appoint one guardian or two or more guardians for an adult. Two or more guardians may be appointed with authority for the same matters or for different matters.

If two or more guardians are appointed for the same matter they may be appointed jointly, severally or jointly and severally.

Two or more guardians who are appointed jointly must exercise their authority unanimously.

Two or more guardians who are appointed severally may exercise their authority independently to any other guardian.

Guardianship orders

NTCAT has responsibility for making guardianship orders.

The guardianship order will include the name of who the order relates to (the represented adult), the guardian(s) appointed for the represented adult, the matter(s) that each guardian has decision-making authority for, the date of when the order starts ('date given'), when it ends ('expires') and when the order will be reassessed.

An order may be as short as 90 days or last for several years. This decision is made by NTCAT at the application or reassessment hearing.

Applying for guardianship

Who can make a guardianship application?

Anyone aged 18 or over can apply for a guardianship order for an adult family member, friend or client who has impaired decision-making capacity and has difficulty making personal or financial decisions.

An adult who is worried about their own capacity to make decisions in some areas, and thinks they need a guardian, can also make an application for themselves.

See the Office of Public Guardian fact sheets:
FAQs - adult guardianship in the NT.pdf
Information for guardians.pdf
Applying for guardianship.pdf

Making a guardianship application

An application for a guardianship order is made to NTCAT. An 'Application for Guardianship Order' form (Form AG1) can be downloaded from the NTCAT website.

There is no fee for making an application.

A person applying for guardianship must be able to:
  • supply information about the adult's impaired decision-making capacity and how it affects the adult's decisions
  • identify possible guardian(s) for the adult.
Evidence of the adult's impaired decision-making capacity may require a recent medical or psychological assessment report. The NTCAT form 'Coversheet and Guidelines for Report by Medical Practitioner or Other Health Practitioner' (Form AG3) may be completed as evidence of the adult's impaired decision-making capacity.

Other forms that may need to be completed include:
  • 'Proposed Guardianship Eligibility Declaration' form (Form AG2)
  • 'Primary Carer's Report' (Form AG4).
All forms are on the NTCAT website.

After a guardianship application is made

When a guardianship application is received by NTCAT they will issue a standard order to the person making the application.

The standard order will state a date for a directions hearing in relation to the guardianship application.

Before the directions hearing the standard order must be provided to the
  • proposed represented adult
  • proposed guardian for the adult
  • any other person who has an interest in the guardianship application.

The directions hearing

Attendance at the directions hearing is required by:
  • the person making the guardianship application
  • any interested persons for the adult
  • the Public Guardian.
The proposed represented adult is encouraged to attend and participate in the directions hearing.

If required, attendance at the directions hearing may be by telephone or video conference.

At the directions hearing the NTCAT Member will:
  • confirm who was provided with a copy of the guardianship application
  • confirm the interested persons
  • determine what evidence is required including evidence about impaired decision-making capacity, need for guardianship and scope of guardianship orders needed.

Interested persons

Any interested person with concern for the adult can attend the hearing. An interested person might be:
  • a relative, friend or a social worker of the adult
  • someone who provides support or care
  • anyone else with a genuine and sufficient interest in protecting the adult's best interests
  • the Public Guardian or the Public Trustee.

Legal representation

Legal representation is not required at guardianship proceedings before NTCAT.

If a party wants legal representation they must organise and pay for it themselves.

The guardianship order

When NTCAT has received all the information needed to consider the guardianship application it may make a guardianship order or dismiss the application without making an order.

When a guardianship order is needed urgently

NTCAT can make an interim guardianship order while it decides an application for guardianship if it reasonably believes the adult has impaired decision-making capacity and urgently needs a guardian.

See the NTCAT website for an 'Application for Guardianship Order' form which includes an application for an interim guardianship order and the OPG fact sheet Applying for guardianship.pdf

Reassessment of guardianship orders

A guardianship order is not presumed to be permanent or ongoing and every guardianship order must specify a reassessment date to ensure that the criteria needed for the order are still present.

On the reassessment of a guardianship order NTCAT will consider:
  • if it is appropriate for the order to be in force and whether the criteria for the order are still being met
  • if any changes should be made to the persons appointed as guardians under the order
  • If any changes should be made to any other terms of the order.

Registering an interstate guardianship order

An adult to whom a guardianship order relates or any interested person for the adult may apply to NTCAT to register an interstate guardianship order if the adult is living in the NT.

It is important that guardianship orders are registered in the place where the adult is living permanently. This may or may not be where a guardian lives.

See the NTCAT website for an application for registration of an interstate order form.

Decision-making authority of guardians

Health care decisions

A guardian may be given authority for a range of decisions, including health care decisions, for the adult they represent.

The Act defines health care very broadly. Guardians with authority for health care can generally agree to treatments that:
  • involve general anaesthetic, similar sedation or giving a drug that affects the central nervous system
  • require a doctor or dentist to do or supervise
  • require prescriptions for medicine
  • are ongoing, regular or part of a treatment plan.
However, a guardian cannot consent to or make 'restricted health care' decisions. Only NTCAT can make these decisions.

Restricted health care

Restricted health care includes:
  • actions that result in sterilisation
  • termination of a pregnancy
  • removal of tissue that won't grow back for transplanting to another person
  • health care for medical research
  • any other health care regulation restricts.
A guardian cannot consent to or make 'restricted health care' decisions. Only NTCAT can make these decisions.

See OPG fact sheet Understanding the NT Guardianship of Adults Act.pdf
See section 8 of the Guardianship of Adults Act 2016 for 'restricted health care decisions' and section 4 of the Transplantation and Anatomy Act 2011 for 'non-regenerative tissue'

If the adult has an advance person plan

An advance personal plan is a legal document that states a person's health, financial and lifestyle preferences, for if they lose decision-making capacity in the future. It does not replace their will and is only valid in their lifetime.

An advance personal plan may include any of the following:
  • advance consent decision
  • advance care statement
  • substitute decision-maker.
Advance personal planning is governed by the Advance Personal Planning Act .

See OPG fact sheet Advance personal plans and adult guardianship.pdf

Financial matters

A guardian with authority for financial matters must: All guardians with authority for financial decisions will be required to complete a 'Financial Statement' (Form AG10) for NTCAT. A financial statement is a document which provides information about income and expenditure and assets and liabilities in relation to the represented adult.

The Financial Statement form can be downloaded from the NTCAT website.

Dealing with the adult's property

A guardian with authority for financial matters is subject to the same duties, obligations and limitations of a trustee. A guardian must deal with the adult's property:
  • as if they hold it in trust for the adult, acting only in the adult's interests
  • using the skill and judgement a careful, reasonable person would use in their own financial affairs.

A guardian's authority can benefit someone other than the adult

A guardian can use their authority to benefit someone other than the adult if that benefit:
  • is similar to one the adult provided when they had decision-making capacity
  • is one they might reasonably be expected to make
  • is reasonable in the circumstances
  • does not significantly adversely affect the adult's best interests.

Providing for dependants and giving gifts

A guardian may only use the adult's property to provide for the adult's dependants or to give a gift if:
  • it is something the adult used to do when they had decision-making capacity, or might reasonably be expected to do
  • its value is reasonable.
NTCAT can restrict or expand a guardian's authority to provide for dependants and will state this in the guardianship order.

Access to information

A guardian has the right to access information relating to the adult, as long as it is:
  • relevant to their role as guardian
  • limited to matters for which the guardian has authority.
If the information a guardian requests is refused without reasonable excuse, the guardian can apply to NTCAT for an order that the information be provided.

A guardian must not discuss or disclose the adult's personal and private information to anyone outside their authority as guardian.

What can't a guardian do?

A guardian cannot do any of the following for the represented adult:
  • vote for the adult in a government election or referendum
  • make, change or revoke their will, power of attorney or advance personal plan (or anything having similar effect)
  • exercise their rights as an accused person in criminal investigations or proceedings (including those under part 10 of the Mental Health and Related Services Act) .
  • make a decision about or consent to health care that is restricted health car
  • make or give effect to decisions about the care and wellbeing of the adult's children or the adult adopting a child
  • make or give effect to decisions about the adult starting or ending a relationship, or marrying or divorcing.

If a guardian can not perform the duties of guardian

If a sole private guardian is temporarily unable to act in their role as guardian, due to poor health, absence or another important reason, the Public Guardian becomes the guardian for the adult until the private guardian is able to act again. The private guardian must notify the Office of the Public Guardian that they are temporarily unable to act as soon as practicable and must again notify the Office of the Public Guardian when they are again able to act.

If a private guardian can no longer continue in their role as guardian, they can resign by giving notice in writing to NTCAT.

If the private guardian is one of two or more joint guardians with authority for a matter the remaining one or more guardians will continue as either sole guardian (where there is only one remaining guardian) or joint guardians (if there are two or more remaining guardians).

If a represented adult will not follow the directions of a guardian

If a represented adult will not follow the directions of a guardian, an application may be made to NTCAT for assistance. NTCAT has the power to authorise specified persons to take certain measures to ensure the represented adult complies with the guardian's decisions.

For example, a guardian may have exercised their decision-making authority and consented to the administration of medical attention to a represented adult in a hospital but the represented adult refuses to attend at the hospital. An application may be made to NTCAT to authorise ambulance officers to administer a sedative medication to the adult to allow their safe transportation to hospital so that the required medical attention may be administered.

Make contact with OPG

Contact points

Office of the Public Guardian

Phone: 1800 810 979
Email: public.guardian@nt.gov.au
Webpage: Office of the Public Guardian NT
Facebook: Office of the Public Guardian NT
Fax: (08) 8942 6891
Office Hours: 8 am to 4 pm Monday to Friday

Darwin Office

Darwin Corporate Park
Building 3, Level 1, 631 Stuart Highway Berrimah
Postal: GPO Box 1722, DARWIN NT 0811

Alice Springs Office

Jalistan House
First Floor, 18 Parsons Street (cnr Todd Mall)
Postal: PO Box 721 Alice Springs NT 0871

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