Guardianship/Financial Management

Contributed by Katie Binstock, McInnes Wilson Lawyers and current to March 2018

If a person has not appointed an Attorney, the Attorney is acting improperly, or there is a dispute amongst appointed Attorneys, the ACT Civil & Administrative Tribunal (ACAT) (through its Guardianship Division), may authorise a person (named a Guardian or a Financial Manager) to make decisions on behalf of an adult person (named the Protected Person) whose decision making ability is impaired.

Orders can be sought by anyone with an interest in the welfare of the Protected Person. The person seeking to be appointed must be over the age of eighteen years.

The powers of Guardians and Financial Managers are governed by the Guardianship and Management of Property Act 1991 (ACT).

Appointment and role of Guardians

The ACAT may appoint a Guardian if it is satisfied that the person for whom the Guardianship order is sought:

• is suffering from a condition that impairs their decision-making ability in relation to a matter relating to their health or welfare; and
• there is or is likely to be a need for a decision in relation to that matter or the person is likely to do something that involves unreasonable risk to their health, welfare or property; and
• if a guardian is not appointed the person’s needs will not be met or their interests will be significantly adversely affected.

If a person has made an Enduring Power of Attorney, their needs may be met and their interests might be protected by that document.

The ACAT must be satisfied that the person nominated for appointment is suitable and can discharge the responsibilities of a Guardian. A guardian may be a family member or friend. Where no suitable person is available the Tribunal can appoint the ACT Public Trustee and Guardian.

When considering the suitability of a proposed Guardian various factors listed in section 10 of the Guardianship and Management of Property Act 1991 (ACT) must be considered by the ACAT. These include:

• the views and wishes of the Protected Person;
• the Guardian should be available and accessible to the Protected Person;
• the Guardian must be able to ensure that their own interests and duties do not conflict with those of the Protected Person to the detriment of the Protected Person;
• the criminal history of the proposed Guardian;
• whether the proposed Guardian has been made bankrupt.

The Tribunal can appoint one or more people as Guardians. An order made by ACAT can specify that the Guardians must act jointly or whether they can act separately when necessary.

A Guardian may be appointed to do things like:

• decide where and with whom the Protected Person is to live;
• decide what education or training the Protected Person is to receive;
• to decide whether the Protected Person is allowed to work and if so, the nature of the work, the place of employment and the employer;
• to give a consent required for a medical procedure or other treatment (other than a prescribed medical procedure ); and/or
• to bring or continue legal proceedings for, or in the name of, the Protected Person.

A Guardian cannot do things like:

• discipline the Protected Person;
• vote in an election;
• make a will or other testamentary instrument;
• consent to the adoption of a child;
• give a consent to a marriage; and/or
• give a consent required for a prescribed medical procedure.

Guardians are required to follow the decision-making principles. These are similar to the Attorney’s obligations addressed above and are located at section 4 of the Guardianship and Management of Property Act 1991 (ACT).

The appointment of a Guardian continues until:

• the death of the protected person;
• revocation of the Guardianship order by the ACAT;
• the guardian resigns in writing;
• the guardian is removed by the ACAT because they are no longer suitable or competent, or have neglected to perform the duties and functions of a Guardian or have contravened a provision of the Act.

The appointment of a Guardian can be reviewed at any time on the application of anyone with an interest in the welfare of the protected person. In addition the ACAT must review appointments at least once every 3 years.

The ACAT website provides more information about how applications for Guardianship orders are made and how the ACAT makes Guardianship decisions.

Appointment and role of Managers

A Manager may be appointed to manage the property of a Protected Person where the ACAT is satisfied that the person for whom the management order is sought:

• is suffering from an impaired decision-making ability in relation to a matter relating to the Protected Person’s financial matters or a matter affecting the Protected Person’s property;
• there is or, is likely to be, a need for a decision in relation to a financial matter;
• there is, or there is likely to be involved, unreasonable risk to the Protected Person’s property; and
• if a Manager is not appointed the person’s needs will not be met or the person’s interests will be significantly adversely affected.

The Tribunal must be satisfied that the person nominated for appointment is suitable and can discharge the responsibilities of a Manager.

A Manager can be a family member or friend. A Manager may also be the ACT Public Trustee or a trustee company. Where no suitable person is available to act as manager, the Tribunal can appoint the ACT Public Trustee as Manager.

In considering the suitability of a proposed Manager various factors listed in section 10 of the Guardianship and Management of Property Act 1991 (ACT) must be considered. These include:

• the views and wishes of the Protected Person;
• the Manager’s should be available and accessible availability and accessibility to the Protected Person;
• the Manager must be able to ensure that their own interests do not conflict with those of the Protected Person to the detriment of the person;
• the criminal history of the proposed Manager; or
• whether the proposed Manager has been made bankrupt.

The ACAT may appoint one or more people as joint managers. An order made by the Tribunal can specify that the managers must act jointly or separately if required.

The appointment of a Manager by the Tribunal means that the Protected Person is not legally competent to enter into transactions relating to property over which the Manager is given authority. For example, the Protected Person no longer has legal capacity to enter into contracts, pledge credit or deal with property over which the Manager is given authority. The Manager may enter into such transactions if they are in the best interests of the Protected Person. The Manager’s action has effect as if the Protected Person had entered into the transaction themselves.

If a Protected Person does enter into a contract then it is voidable (section 71).

The appointment of a Manager continues until:

• the death of the Protected Person;
• revocation of the management order by the Tribunal;
• the Manager resigns in writing; or
• the Manager is removed by the ACAT because they are no longer suitable or competent or have neglected to perform the duties and functions a Manager or have contravened a provision of the Act.

On the anniversary of the appointment of a Manager, the Manager must file accounts and other documents relating to the management of the Protected Person’s property with the ACT Public Trustee for examination. The accounts must clearly indicate the financial position of the protected person. The Public Trustee will audit the accounts. Some cost may be incurred in the audit.

The Tribunal may direct a manager to produce accounts and documents. If it is considered necessary, the Tribunal may order that the manager have the accounts and documents audited by a person or organisation specified.

The ACAT website provides more information about how applications for Management orders are made and how the ACAT makes Management decisions.