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Chapter 6 - Guardianship

26 Jun 2017 - 10:48 | Version 14 |

Contributed by Nick O'Neill and Carmelle Peisah and current to 28 February 2017

6.1 Introduction

The development of the modern system of guardianship for adults with decision-making disabilities in Australia is discussed in Chapter 5. This development has resulted in the guardianship systems in the different States and Territories of Australia being essentially the same. However, there are sufficient differences between them for it to be necessary to deal with each State and Territory system separately.

This chapter sets out which bodies have jurisdiction to make guardianship orders in each State and Territory. It also sets out how guardianship applications are made, by whom, who may be involved in the hearing process and what the criteria are for making guardianship orders. The chapter deals with the processes for reviewing such orders and the criteria that have to be met before they may be renewed.

Because of their essential similarity, there are a number of issues common to each of the eight guardianship systems in the country. Where possible, these issues are drawn out and discussed later in the chapter.

Finally, the chapter discusses the role of the health care professional in the making of such orders.

6.2 The jurisdiction to appoint guardians generally

One of the key aims of the modern guardianship systems in Australia has been to make the seeking and obtaining of guardianship orders much cheaper and more accessible than it used to be for those who need orders. As a result, in all the States and both Territories applications for guardianship orders are made to tribunals. Nevertheless, the Supreme Courts of the States and Territories retain their parens patriae jurisdiction. However, this has not caused any conflict between the Supreme Courts and the tribunals that were given powers by legislation to appoint guardians for adults with decision-making disabilities who need a guardian to make personal decisions for them as a substitute decision-maker. In 2003 Morris J of the Supreme Court of Victoria made the following comments about how the guardianship system worked in that State:

Although the parens patriae jurisdiction of the Court is of considerable historical interest, I doubt if it should play any current role in the day to day administration of guardianship matters. Victoria has comprehensive laws in relation to guardianship and administration matters. These laws have established the statutory office of Public Advocate, with roles and responsibilities somewhat akin to those which might once have been adopted by the Court. A wide jurisdiction is also vested in the Victorian Civil and Administrative Tribunal to resolve disputes concerning guardianship matters and to consider applications where there is some perceived threat to the integrity of the guardianship system. (1)

In a 2015 case, Lindsay J of the Supreme Court of NSW clarified the status of the parens patriae jurisdiction of the NSW Supreme Court in a way that is readily applicable to the same jurisdiction of the Supreme Courts of all the other States and Territories. He was in no doubt that the NSW Supreme Court retained its parens patriae jurisdiction, but that the discharge of the State's long acknowledged obligation to take "care of those who are not able to take care of themselves" involved statutory tribunals working under the judicial supervision of the Supreme Court. (2)

Later in his judgment, Lindsay J noted that the purposive character of the protective jurisdiction, including that exercised, under legislation, by the Guardianship Division of NCAT, and the Mental Health Review Tribunal, was governed by a central informing idea; namely that the jurisdiction exists for the care of those who are not able to take care of themselves and that an exercise of the jurisdiction affecting a person in need of protection must be for the benefit, and in the best interests, of that person as an individual and not for the benefit of the state, or others, or for the convenience of carers. Implicit in the focus on a person in need of protection "as an individual" is respect for their autonomy. (3)

Lindsay J's approach is set out in more detail in 6.3.1 below. What Lindsay J says about these and other matters relating applications for guardianship orders and financial management orders applies in relation to any other applications for orders of a protective nature within either the inherent or statutory jurisdiction of the Supreme Court or the jurisdictions of the Guardianship Division of NCAT, and the Mental Health Review Tribunal, given to them in legislation.

6.3 New South Wales

6.3.1 Who has jurisdiction to appoint guardians?

One of the main functions of the Guardianship Division of the Civil and Administrative Tribunal of New South Wales (NCAT) is to hear and determine applications for guardianship orders. (4) Nevertheless the jurisdiction of the Supreme Court of New South Wales "with respect to the guardianship of persons" is not limited by the jurisdiction given to NCAT. (5) While the Supreme Court remains able to make guardianship orders, which it almost never does, if it makes such an order and NCAT makes a subsequent guardianship order, the Court's order ceases to have effect. (6) However, NCAT cannot make a guardianship order in those circumstances unless the Court consents to the making of the order. (7) Also if NCAT makes a guardianship order in relation to a person and the Supreme Court makes a guardianship order subsequently in relation to that person, NCAT's order ceases to have effect. (8)

In reality the Guardianship Division of NCAT makes the guardianship orders in New South Wales. In 2007 Gzell J said that the Guardianship Tribunal (as the Guardianship Division of NCAT was then known) had been set up as an expert tribunal to deal with matters of this kind. (9)

As noted in 6.2 above, the NSW Supreme Court retains its parens patriae jurisdiction. However, Lindsay J went on to point out in his 2015 judgment that:

The efficacy of the administration of the State's legal system for the protection of those in need of protection depends, in large part, on adoption by the Court of practice conventions in exercise of the jurisdiction it enjoys as a superior court. Reserving all its powers for cases in which they may be needed, the practice of the Court is to exercise purposeful restraint in deployment of its inherent jurisdiction, with the object of facilitating the work of statutory tribunals, and channelling appeals from tribunal decisions through the regulatory framework for which legislation ... specifically provides.

The work of the Court in its administration of protective jurisdiction is, and for the due administration of justice in New South Wales must be, integrated with that of statutory authorities which bear the heavy burden of routine cases: in the finding of facts, in the making and revocation of orders, and in the day-to-day management of an elaborate administrative regime designed to protect the person and estates of individuals in need of protection. (10)

Lindsay J went on to note that the purposive character and functionality of the NSW Supreme Court's jurisdiction emerged over time with comparatively little legislative intervention, while the jurisdiction of the specialist statutory authorities, including NCAT, necessarily had been articulated by comparatively recent legislation. (11) He then went on to point out that the Supreme Court's jurisdiction was generally broader than that of the statutory authorities whose work it supervised and that, as a statutory authority, NCAT must work within the constraints of the legislation governing it. Nevertheless the Court, as the repository of broader powers, must determine how best to deploy its powers when its work intersected with that of NCAT. (12) In that context, in exercising the jurisdiction it had to grant relief to, or in relation to, a person the subject of its inherent parens patriae jurisdiction, the Court had to be mindful of the purpose for which its jurisdiction existed and to ensure the effective operation of the statutory authorities upon whose work it relied to deal with routine business. (13) In particular the Court had to ensure that it did not channel applications made to it for relief in its inherent parens patriae jurisdiction through the appeal structure established in the legislative scheme which provided for appeals from NCAT to the Supreme Court, in some circumstances as of right and in other circumstances only with the leave of the Court. (14) This was because of the risk of undermining the statutory structure for appeals in particular, but in general because:
  1. the efficacy of NCAT would be undermined, generally, because of an ever present risk of interference via proceedings instituted in the Court.
  2. the efficacy of the Court itself, as well as that of the NSW Trustee and Guardian, would, consequentially also be adversely affected.
  3. to the extent that the validity of orders made by NCAT is called into question on an application for judicial review (administrative law relief), financial managers and those dealing with them may be driven, by uncertainty about their authority, to refrain from taking steps necessary in management of an estate to protect the interests of the person in need of protection. (15)

Lindsay J concluded his remarks about these matters by stating that considerations of kind just set out required the Court to mould its procedures, practice and relief, both generally and in particular cases, to ensure that the beneficial, purposive character of the protective jurisdiction could be duly served. (16) His intention clearly was to indicate that the statutory scheme set up with the Guardianship Division of NCAT making the initial guardianship orders with the possibility of an internal appeal within NCAT, but with the Supreme Court exercising its supervisory jurisdiction essentially through appeals was the way the roles of both the Court and NCAT should be exercised in the great majority of cases. While the Supreme Court retained its inherent parens patriae jurisdiction, it should exercise it only where circumstances made it appropriate to do so, and not where it might encourage others to seek orders using that jurisdiction in cases that would, and should, commence with an application to the Guardianship Division of NCAT.

In 2016 a set of circumstances arose in which it was appropriate for the Supreme Court to exercise its inherent guardianship jurisdiction. The father who was already the manager of his adult son's estate as a result of an order of the Supreme Court applied to the Court for orders in aid of management of the estate, under the existing order and for what was in effect a guardianship order in relation to his son. The father did this because of his concern that "third parties" were seeking to exploit his son by encouraging him to travel overseas, with them or under their direction, to marry a woman who might, by such a marriage, secure both a right of residency in Australia and access to his son's substantial estate. (17) Lindsay J accepted the evidence supporting the application and made the orders sought. In his reasons for making the orders, Lindsay J noted that; although the Court's "guardianship jurisdiction" was not, in terms, constrained by s. 4 of the Guardianship Act 1987 (NSW), the "general principles" identified in that section parallel the approach of the Court to an exercise of its inherent, protective jurisdiction. (18) He also noted that the object of the regime of protective orders, he just made was not to prevent the son from going overseas, pursuing friendships or marrying, but was to reduce opportunities, and incentives, for him to be exploited by people not mindful of his welfare and interests. (19)

NCAT's jurisdiction to make guardianship orders applies to those who are 16 years and above. (20) An application cannot be made in relation to anyone who is under the age of 16 years. (21) The application must specify the grounds upon which it is claimed that the person the subject of the application is in need of a guardian. (22)

Sometimes the person the subject of an application will have a mental illness. Even if they have become a "patient" within the meaning of the Mental Health Act 2007 (NSW), NCAT can still make a guardianship order in relation to them. Also, the fact that a person under guardianship becomes such a "patient" does not operate to suspend or revoke the guardianship order. However, any guardianship order made by NCAT in relation to a person who is, or becomes, a patient under the Mental Health Act 2007 (NSW) is effective only to the extent that the terms of the order are consistent with any determination or order made under the Mental Health Act 2007 (NSW) in relation to that person. (23)

6.3.2 The reach of the Guardianship Division of NCAT's jurisdiction to make guardianship orders

NCAT makes guardianship orders in relation to adults who are present in New South Wales when the order is made, even if they are they are visitors from interstate or overseas. On rare occasions it has made guardianship orders in relation to residents of New South Wales who have been taken out of the State without their informed consent. In a 1999 case, Young J suggested that the Guardianship Tribunal's jurisdiction may be limited to adults present in New South Wales because it had no power to order service of its applications outside New South Wales. (24) Young J did not decide the matter, nor did he consider the Service and Execution of Process Act 1992 (Cth) which provides a mechanism by which the Tribunal's processes, in relation to at least some aspects of financial management, but probably not guardianship, may be served outside New South Wales. (25) The Appeals Panel of the then Administrative Decisions Tribunal of New South Wales noted in 2006 that a State statute is presumed not to have extra-territorial operation but that if the person the hearing is about is served with the application while they are physically present in and a resident of New South Wales, the Tribunal does not offend the principle against extra-territorial operation by hearing the application. (26)

It is probably still the case that s. 48 of the Service and Execution of Process Act 1992 (Cth) provides a mechanism by which the Tribunal's processes, in relation to at least some aspects of financial management, but probably not guardianship, may be served outside New South Wales and that the 2006 decision, referred to above, of the Appeals Panel of the then Administrative Decisions Tribunal of New South Wales accurately states the law on extra-territorial effect. However, s. 42 of the Civil and Administrative Tribunal Act 2013 (NSW) states that NCAT may require a document to be served outside the State. This provision opens up the likelihood that NCAT has the power to order the service of applications, subpoenas and other documents on parties to applications made to it in relation to residents of NSW who have been taken out or who have gone out of the State. It would also be able to order the service of applications, subpoenas and other documents on parties to applications made to it in relation to residents of other States or Territories who are in NSW when the application in relation to them is made to NCAT.

In a 2007 decision, the then Guardianship Tribunal held that it had no jurisdiction to deal with an application for a guardianship order in relation to a person who was living in South Australia and the subject of a guardianship order there. The Tribunal had made a guardianship order in relation to the man while he was living in New South Wales, but his guardians moved him to South Australia. The Guardianship Tribunal's decision was appealed to the Appeals Panel of the Administrative Decisions Tribunal which set aside the order and sent the application back for rehearing by the Guardianship Tribunal. That application was allowed to be withdrawn after the then Guardianship Board of South Australia made a guardianship order in relation to the man. However, another person made an application to the New South Wales Guardianship Tribunal in relation to the man. But, the New South Wales Guardianship Tribunal took the view that it was precluded from dealing with that new application because of the presumption against the operation of legislation outside of the State for which it was enacted. (27)

While that decision may be correct given the facts of the case, the then Western Australian Guardianship and Administration Board held in 2004, that where it had made the initial orders when the person was in Western Australia, that it could make new guardianship orders in relation to a person outside Western Australia if they were still domiciled in Western Australia. This was the case even though the person concerned was, at the time of the making of the new orders, residing in the UK, en route to a residential dementia facility in Texas. In that case the person concerned was under the guardianship of another person when she was taken out of Western Australia by her husband and appointed financial manager, without the agreement of her appointed guardian, through the use of a second passport, the first being in the custody of the guardian. The Western Australian Board, led by its President, Barker J, noted that while the Guardianship and Administration Act 1990 (WA):

[D]oes not define the basis of jurisdiction or power in terms of the jurisdiction or power of a superior court such as the Supreme Court to exercise a prerogative or inherent jurisdiction in respect of vulnerable people, we think it is reasonable to accept the proposition that the common law rules governing the power of a superior court to exercise jurisdiction in like matters help to define the proper extent of the jurisdiction or powers of a Board such as ours under the Act, subject of course to the terms of the Act and the domicile Acts, and any other relevant legislation, State or Commonwealth. (28)

The then Western Australian Board also noted that while courts in common law jurisdictions were unlikely to assert jurisdiction if the person was not present or did not have property in the jurisdiction, it did not necessarily follow that a court (or tribunal) "would lack jurisdiction to deal with guardianship of a person not in the jurisdiction if a sufficient nexus to the local forum (the tribunal or court empowered to deal with the matter), such as domicile, is established". (29)

Appropriately in a 2013 case the then NSW Guardianship Tribunal was clear that it had no jurisdiction to deal with an application to it for a guardianship order in relation to a woman who had moved to New Zealand with her husband and had been residing there with him for more than five months before the application was made to the Tribunal. The woman gave evidence that she and her husband had discussed moving to New Zealand several weeks before they decided to relocate. She had visited New Zealand three times before moving. She said that she told her friends that she and her husband were leaving. She was very happy where she was living and had made new friends. She and her husband had purchased a property in New Zealand and she wished to remain living there even though she owned property with her husband in NSW and remained an Australian citizen. She noted that there was conflict with her family in Australia. (30)

However in 2016 NCAT made a guardianship order for one month and an interim financial management order for an 87 year old man who it found to be domiciled in New South Wales, but who disappeared suddenly, and was found to be in the United Arab Emirates. NCAT was satisfied that that the man had dementia and met the criteria for it to make a guardianship order in relation to him. (31)

6.3.3 Who may apply for a guardianship order?

A person may make an application in relation to themselves. (32) The Public Guardian may make an application, but has a practice of making applications only as a last resort when no one else will, or can, make an application that should be made in relation to a particular person. (33) Any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of a person may make an application in relation to that person. (34) In reality, most applications are made by family members or health care professionals involved in the person's care.(35) However in 2017 NCAT held that the South Western Sydney Local Health District had standing to make an application to it to make a guardianship order noting that this was a departure from the usual practice of individual practitioners such as social workers making such applications. (36)

NCAT does not use the requirement that it must be satisfied that the applicant has a genuine concern for the welfare of the person they are making an application about to strike out applications, unless the application is made by a "mere busybody" who has no prior involvement with the person and is causing trouble by making such an application, or, by a person who may be a relative who is bringing the application to advance their own interests rather than those of the person the subject of the application. (37)

In 2007, the then Guardianship Tribunal also refused to hear the application of an estranged son for his mother after it found that he did not have a genuine concern for her welfare. The Tribunal held that a genuine concern for welfare required that the applicant was:
  1. bringing to attention a fact situation in relation to the person the application was about which may call for intervention by the Tribunal to protect or promote the welfare or interests of that person,
  2. sincere in seeing the situation as one that may call for the intervention of the Tribunal in the interests of the person, and also that;
  3. the application was motivated by a desire to advance the welfare of the person. (38)

6.3.4 Who may take part in the hearing?

Those who may take part in the hearing of an application for a guardianship order as a party are:
  1. the applicant,
  2. the person the application is about (the person),
  3. the spouse, if any, of the person, if the relationship between the person and the spouse is close and continuing,
  4. another person, if any, who has care of the person, (39)
  5. the Public Guardian, and (40)
  6. any person whom NCAT joins as a party. (41)
Parties are entitled to receive a copy of the application which also gives notice of the time, date and place of the hearing. (42) They may attend the hearing and give relevant evidence; however it is not necessary to be a party in order to attend the hearing and to give evidence. Parties will receive a copy of NCAT's order and must be given a written statement of reasons for any decision it makes in the proceedings. (43) The parties have a right of appeal against NCAT's decision. (44)

6.3.5 What has to be proved before an order can be made?

Before NCAT may make a guardianship order, it must be satisfied that the person the application is about is "a person in need of a guardian". (45) However, before it may find that a person is a person in need of a guardian, NCAT must be satisfied, by the evidence available to it at the hearing, that the person is a person who has a disability, namely a person who is:
  1. intellectually, physically, psychologically or sensorily disabled, or
  2. of advanced age, or
  3. a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 2007 (NSW), or
  4. otherwise disabled, and
who, by virtue of that fact, is restricted in one or more major life activities to such an extent that they require supervision or social habilitation. (46) Furthermore, the person must, as a result of their disability, be either totally or partially incapable of managing their person. (47)

The way incapacity is assessed is set out at 6.12 below.

If the evidence satisfies NCAT that the person the application is about is "a person in need of a guardian" then it must have regard to:
  1. the views if any of the person, their spouse (48), and the person, if any, who has care of the person (49);
  2. the importance of preserving the person's existing family relationships;
  3. the importance of preserving the person's particular cultural and linguistic environment, and
  4. the practicability of services being provided to the person without the need for the making of such an order. (50)
Consequently, particularly because of the policy of the Act found in the general principles, but also because of the drafting of the relevant provisions, it is possible for NCAT to find that a person is "a person in need of a guardian" and yet not make a guardianship order in relation to them.

It was the view of the former Appeal Panel of the Administrative Decisions Tribunal that what is now the Guardianship Division of NCAT must consider all four of these criteria on all occasions, whether on an initial application or on review, when it is satisfied that the person the hearing is about is "a person in need of a guardian", before it exercises its discretion whether or not to make or renew a guardianship order in relation to that person. In 2004 in relation to a review of a guardianship order and in 2006 in relation to an initial application, the Appeal Panel of the Administrative Decisions Tribunal said:

The Guardianship Tribunal must consider all of the matters set out in s 14(2) before exercising its discretion. The use of the words "shall have regard to" in s 14(2) is a clear indication of the legislative intent that the Guardianship Tribunal is obliged to consider all of the matters set out in that sub-section before exercising its discretionary power. Those matters have no hierarchy or weighting. Each is a mandatory consideration. The Guardianship Tribunal must determine in every case whether one or more of those considerations will be given greater weight than others. Whilst each is a mandatory consideration, in some cases there may be no evidence of one or more of them. In such circumstances it may be prudent for the Guardianship Tribunal to record that fact. (51)

This view of the section as requiring matters that are manifestly not relevant in a particular case having to be referred to is out of step with the views of courts when reviewing the decisions of tribunals or courts they have jurisdiction to hear and determine appeals from. The view that section 14(2) of the Guardianship Act 1987 (NSW) is mandatory in nature was arrived at without argument on the question and without considering some of the other relevant provisions of the Act and without an apparent appreciation of the policy of least restrictive alternative that underlies the Act and is manifest in the general principles set out in section 4 of the Act.

A major reason why section 14(2) is not mandatory is that on many occasions the matters NCAT is to have regard to under it do not exist. First, in many cases the person the hearing is about is unable to express views, a matter the section anticipates. Second, there are also many cases in which the person has no spouse or carer qualified in the terms of the Guardianship Act1987 (NSW) and no family relationships. Also there are many cases in which the question of cultural and linguistic environment is irrelevant. In a significant number of cases, the only live issue under section 14(2) is the practicability of services being provided to the person the hearing is about without the need to make a guardianship order. Parliament would not have intended NCAT to waste time on irrelevancies and the wording of the Act does not require such activity. (52) It is noted that the Appeal Panel showed some appreciation of that matter when it noted in a 2006 decision that:

The Guardianship Tribunal must determine in every case whether one or more of those considerations will be given greater weight than others. Whilst each is a mandatory consideration, in some cases there may be no evidence of one or more of them. In such circumstances it may be prudent for the Guardianship Tribunal to record that fact. (53)

In a 2011 case, Hallen AsJ of the NSW Supreme Court noted the Appeal Panel of the then Administrative Decisions Tribunal had stated that the factors in section 14(2) were mandatory but went on to note that:

No doubt, there would be differing amounts of evidence about the differing factors in s. 14(2) and, in some cases, there may be no evidence about one, or more, of them. (54)

However, unlike the Guardianship Tribunal, NCAT has a statutory obligation to apply a guiding principle to facilitate the just, quick, and cheap resolution of the real issues in the proceedings (emphasis added). NCAT must seek to give effect to this guiding principle when it exercises power given to it by the Civil and Administrative Tribunal Act 2013 (NSW) or the procedural rules or when it interprets any provision of the Act or the procedural rules. (55) A pedantic application of s. 14(2) of the Guardianship Act 1987 (NSW) takes NCAT away from the real issues and impedes it in facilitating the just, quick and cheap resolution of the application before it.

NCAT, as was it predecessor tribunals, is often confronted with cases in which none of the matters in section 14(2) are relevant. Some examples are where a person who is incapable of expressing views and who has no spouse, carer or family needs a guardianship order to protect them from the depredations of others or where a person in such a situation needs a guardian as a substitute decision-maker only for on-going medical treatment. Sometimes, on review, it is apparent that the original need for the guardianship order has gone away and no other need for an order has arisen. Occasionally at the hearing of such a review a spouse or carer or the person the hearing is about will ask for the no longer needed order to be continued. The Guardianship Division's time is better spent explaining this at the hearing when those involved are present and referring to it only briefly in the written reasons for decision.

As already noted, it is regularly the case in applications for a guardianship order for a person with advancing dementia that the only live question is whether or not services can be provided to the person without the need to make a guardianship order. The person the hearing is about may be objecting to the provision of the proposed services but, because of their dementia, completely unable to appreciate that provision of those services is essential if they wish to attain their usually-stated wish that they want to stay in their own home and not go to a residential aged care facility (nursing home). In such cases the refusal of services , the wish of the person will have to be ignored and an order made appointing a guardian with the function of ensuring that the person receives the services they need to achieve their other and more important wish , namely to continue living in their own home. Often enough family members have either made or support the application and their views are clear. The importance of preserving the person's existing family relationships or their cultural and linguistic environments will not be relevant to the decision that has to be made by NCAT. It will be a matter for family members and service-providers to deal with when relying on the guardianship order to provide the services to the elderly person which will help maintain them in their own home for as long as can be achieved in their interests.

Another important reason why section 14(2) is not mandatory is that if it were, it would then be in conflict with section 4 of the Act. Section 4 provides that it is the duty of everyone exercising functions under this Act with respect to those who have disabilities to observe certain principles. The first principle is that the welfare and interests of those with disabilities should be given paramount consideration. The second is that their freedom of decision and freedom of action should be restricted as little as possible. Another principle is that those with disabilities should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs. As already noted, NCAT is under a duty to observe those principles. Those principles can be in conflict with the need to give more than cursory consideration to the provisions of section 14(2) of the Act.

Another matter that the Appeal Panel of the Administrative Decisions Tribunal did not appear to appreciate but something that is a recurring issue for NCAT is how to reconcile its duty under section 4 of the Act to recognise the importance of preserving family relationships, and therefore to take appropriate action to do so, and recording how it had regard to the importance of preserving family relationships under section 14(2). In family conflict cases, and particularly when one or more family members are abusing, exploiting or neglecting or otherwise mistreating the person the hearing is about it is a somewhat paradoxical fact that in order to leave open the possibility of relations between the person the hearing is about and their family being repaired or renewed, it is regularly necessary for the NCAT to be circumspect about what it says about the family relationships in its reasons for decision. Stating NCAT's views in clear terms in the written reasons for decision, when it is having regard to the matters it must consider under section 14(2) because they are relevant, can put seriously at risk the possibility of the person the hearing is about having a worthwhile relationship with their family. The detail into which NCAT goes in providing information and discussion in its reasons for decision to show that it has had regard to the relevant provisions of section 14(2) must be contrasted with the bigger question of not putting to an end to or putting beyond recovery the person's existing family relationships. This question must be resolved by ensuring that NCAT's reasons for decision are written so as not to sabotage the possibility of reconciliation.

It is beyond argument that NCAT must conduct its hearings in a manner that is procedurally fair and that it makes an error of law if it fails to take into account matters that are relevant. (56) In Ms A v Public Guardian, the Appeal Panel of the then Administrative Decisions Tribunal considered that three of the criteria in section 14(2) were relevant considerations in that case and that the Guardianship Tribunal's failure to take proper account of two of them amounted to an error of law. (57) The Appeal Panel could have come to that conclusion without taking the view that having regard to all the matters in section 14(2) in every case, whether live issues or not, was mandatory.

While NCAT must put its mind to at least those of the section 14(2) criteria that are relevant to the particular initial application for guardianship when deciding whether or not to make a guardianship order, it is wise for it to apply the same approach when conducting a review of a guardianship order and deciding whether or not to renew it by making a new order even though, despite the views of the Appeal Panel, there is no obligation to be found in the Guardianship Act 1987 (NSW) for it to do so. As already noted, other factors may result in NCAT, when carrying out its duty to apply the principles in section 4 of that Act, deciding not to renew a guardianship order in relation to a person who qualifies as "a person in need of a guardian". Sometimes parties to such a review will press for the renewal of the order, that NCAT considers not to be needed, on a "just in case" basis. Again, as already suggested, it is better to spend time discussing the decision with the parties and dealing with their views in person followed by brief written reasons rather than just writing lengthy reasons for decision showing a pedantic compliance with s. 14(2).

In determining whether or not to make or review a guardianship order, it will often be very important to consider the views the service-providers who are involved in the person's life. They will often provide information and insights that will be essential for NCAT's understanding of the case. In some cases it may be possible to argue that failure to take into account such relevant considerations could amount to an error of law. It is important however that decision-making on appeal does not require the Guardianship Division of NCAT to have to write over-elaborate reasons for decision in order to appeal-proof its decisions.

In the 2015 case P v Public Trustee and Guardian, Lindsay J, the Protective List judge, noted that whether a person is to be found "capable of managing his or her own affairs", or not, ultimately requires a judgement-call grounded upon guidance available within the framework of the governing legislation and a close examination of the facts of the particular case. (58) We suggest that that approach applies equally when NCAT is deciding whether or not to appoint a guardian for a person whom it has already found is a "person in need of a guardian" in terms of the definitions set out in s. 3 and 3(2) of the Guardianship Act 1987 (NSW).

Lindsay J also noted that NCAT had a discretion to make or not make a financial management order after considering the capability of the person the subject of the application to manage their affairs but that the discretionary powers conferred on NCAT were not at large. Again, we suggest that that approach applies equally when NCAT is deciding whether or not to appoint a guardian, as above. We also note that the exercise of the discretion involves not only a consideration of the grounds for making the order but also the provision setting out the full meaning of the term "a person who has a disability" and the general principles of the Guardianship Act 1987(NSW). (59)

When NCAT is deciding to make a guardianship order, it also has in mind who should be guardian and what functions it should give to the guardian. These matters are dealt with below.

6.3.6 Appointing a guardian

While NCAT can appoint either a private person or the Public Guardian as a person's guardian, the Guardianship Act 1987 (NSW) states that a guardianship order appointing the Public Guardian as guardian shall not be made in circumstances in which a guardianship order can be made appointing a person other than the Public Guardian as guardian. (60)

However, the issue of appointing a private person as a guardian is not as simple as that. As Windeyer J of the New South Wales Supreme Court pointed out in a 2003 case:

[T]he proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect. (61)

The Guardianship Act 1987 (NSW) states that NCAT may not a private person as a guardian unless it is satisfied that: (62) 1 the personality of the proposed guardian is generally compatible with that of the person under guardianship,
  1. there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (63)
  2. the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order. (64)
In order to be appointed as a private guardian, the person must be 18 years or older. (65)

In circumstances in which it is relevant, a proposed guardian must able to demonstrate insight and explain plans for how they would act as a guardian objectively and without conflict of interest. (66)

The requirements do not apply to the appointment of the Public Guardian as the guardian of a person under guardianship. (67)

The principles set forth in the Act to be given effect are the general principles which it is the duty of everyone exercising functions under the Act with respect to persons who have disabilities to observe. These are the following:
  1. the welfare and interests of such persons should be given paramount consideration,
  2. the freedom of decision and freedom of action of such persons should be restricted as little as possible,
  3. such persons should be encouraged, as far as possible, to live a normal life in the community,
  4. the views of such persons in relation to the exercise of those functions should be taken into consideration,
  5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
  6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, and,
  7. such persons should be protected from neglect, abuse and exploitation. (68)
It should also be noted that the Act also reflects the policies that the appointment of a guardian is a matter of last resort, that guardianship orders are to operate only for a limited time unless the need for a long term order is apparent and that plenary guardianship orders are not to be made where limited orders would suffice. (69)

NCAT regularly appoints family members and others with appropriate claims, who meet the statutory criteria for appointment, as guardians.

Nevertheless, the Public Guardian remains the guardian for the majority of those under guardianship in New South Wales. (70) This is because a major factor in whether a person is a "person in need of a guardian" is whether or not they have family members or significant others to support them. Many people under guardianship have no one else in their lives other than their service providers and their guardian. Another reason is that one of the most significant causes of applications for guardianship orders is conflict within the family of the person the application is about; and that conflict relates to them. This conflict often, but not always, creates circumstances that render it necessary to appoint the Public Guardian as an independent substitute decision-maker who is able to consult the different family members who are in conflict before making significant decisions about the person under guardianship. (71) In cases in which the family conflict relates to the person the hearing is about, the factual circumstances shown by the evidence are usually, but not always, such that the welfare and interests of that person will not be able to be promoted if a private person with some familial or other properly based claim for consideration is appointed as guardian. However under the general principles of the Act, the welfare and interests of that person are to be given paramount consideration and everyone exercising functions under the Act, including NCAT, is obliged to observe that requirement. (72) Faced with this situation, NCAT will have to appoint the Public Guardian, at least until an appropriate, suitable and willing private guardian becomes available. Also, the facts sometimes show circumstances in which such an appointment will preclude the person from living, as far as possible, a normal a life in the community or will run contrary to restricting their freedom of decision and action as little as possible. Occasionally to make such an appointment will leave the person the application is about in a position of abuse, exploitation or neglect rather than protecting them against such things. In addition some potential private guardians will not be able to meet the criteria for appointment as a guardian. (73) The question of who should be appointed guardian, a private person or Public Guardian/Advocate, is discussed again below at 6.11.5.

Where it is a live issue at the hearing of an initial application or on review, the members of the panel of NCAT hearing the matter must put their minds to who should be appointed guardian. The choice is between a private person, where the circumstances of the case do not preclude this, or the Public Guardian. The NCAT members should observe the interaction between the personality of the person the hearing is about and the personality of any proposed private guardian who is present. Where it is possible to do so and relevant and necessary for the determination of the matter, the NCAT members should interview the person the hearing is about and obtain their views. If NCAT members have concerns about the appointability of a person as guardian, they should put those concerns, and any other relevant concerns, to the prospective guardian and give them the opportunity to comment.

In a 2016 case the Guardianship Division of NCAT chose not to interview the person the subject of the application for a guardianship order about who should be appointed her guardian. (74) The members of NCAT were of the view that the person the subject of the application, HNI, was in need of a guardian. They were also of the view, for reasons clearly articulated in their reasons for decision, that neither of the only persons proposed for appointment as guardian, HNI's brother and sister, who were in conflict, should be appointed as her guardian. They stated in their reasons for decision that they chose not to ask HNI directly for her views about the guardianship application during the course of the hearing. This was because HNI was obviously close to both her brother and her sister, and NCAT did not consider it in her best interest to require her to express a view on the issue in their presence. In NCAT's view this was consistent with the guiding principle of the Act that NCAT is required to act in HNI's best interest. They also noted that in any case, they could not understand her. (75)

While in situations like this the option of interviewing the person the subject of the application alone and reporting back the gravamen of the conversation to the relevant persons and parties might be open, in this case the wisdom of taking the course NCAT did in order to maintain HDI's family relationships was obvious. It is an example of why it is unwise to treat the provisions of s. 14(2) of the Act as having to be complied with in all circumstances when the requirements of the general principles of the Act and the policies the Act reflects may require a different approach. (76)

There will be occasions, either at the initial hearing or on review, where those attending the hearing, including prospective or existing guardians, agree that instead of a private person the Public Guardian should be appointed as guardian. (77)

There will always be some possibility of a conflict of interests between a prospective guardian and the person the hearing is about, but rarely will this conflict be sufficient to disqualify the prospective guardian.

Sometimes a prospective guardian will be willing but, not able to be guardian, and at other times they will be able to be guardian but not willing to be. The Public Guardian is not subject to this assessment. While NCAT's reasons should show that it was satisfied as to these matters, its reasons for decision do not have to go into great detail about this matter. Also where a family member seeking appointment as guardian is not appointed, NCAT has to take care to explain sufficiently as to why that is the case. Also, NCAT's reasons for decision should be carefully written so as not to sabotage the possibility of reconciliation between them, the person under guardianship and, where relevant, other family members.

6.3.7 Joint, several and alternative guardians

NCAT can appoint joint guardians. They have the same functions as each other and must make the decisions about the person under guardianship jointly. If a joint guardian dies, the surviving guardian continues as guardian until the guardianship order is reviewed. (78) One of NCAT's predecessor tribunals, the Guardianship Board has held that what is now NCAT cannot appoint the Public Guardian and a private guardian as joint guardians to exercise the same functions jointly. The Board held such appointments were inconsistent with the provisions of the Guardianship Act 1987 (NSW). (79)

NCAT can appoint more than one guardian and give each guardian appointed separate functions which they exercise separately. However, it would be wise for them to consult with each other before exercising their separate functions. These are called "several" guardians. Occasionally the Public Guardian is appointed guardian with one or more functions and a private guardian with one or more other functions.

Sometimes NCAT will appoint a single guardian and an alternative guardian. On rare occasions it will appoint "several" guardians and alternate guardians for each of them. The alternate guardians take on the functions of the guardian they are appointed alternate for if that guardian is absent or incapacitated or dies. (80)

Where the guardian dies and there is no surviving guardian or alternate guardian, the Public Guardian becomes the guardian until the guardianship order is reviewed. (81)

6.3.8 Types of guardianship orders

The kinds of guardianship orders NCAT may make are as follows:
  1. Continuing orders.
  2. Non-reviewable orders.
  3. Temporary orders.

6.3.8.1 Continuing orders

Continuing orders, which continue in operation until the time for their review, are the most common form of order by far that NCAT makes. They may be limited or plenary. (82) Plenary orders are very rare. NCAT cannot make such an order "in circumstances in which a limited guardianship order would suffice". (83) Almost all the continuing guardianship orders NCAT makes are limited, and limited to a relatively few functions. Such orders must specify the extent to which the guardian has custody of the person under guardianship and as well as the guardianship functions they have in relation to them. (84) They may also contain conditions. (85)

NCAT may make an initial continuing order for up to one year. (86) While many initial orders are for that period, many are for shorter periods. However, if NCAT is satisfied that the person the subject of the order has permanent disabilities and is unlikely to become capable of managing their person, and there is a need for an order longer than one year, NCAT can make an order for up to three years. (87)

If NCAT makes a plenary order, then the guardian has custody of the person under guardianship to the exclusion of any other person and all the functions that a guardian has in law and equity. (88) A plenary order may contain conditions. (89)

6.3.8.2 Non-reviewable orders

Non-renewable orders may be either limited or plenary. They differ from continuing orders only in that they state that they will not be reviewed. NCAT may not make such a statement in a guardianship order unless the order relates solely to the taking of one or more specific decisions or actions on behalf of the person the under guardianship, and NCAT is satisfied that there is no need for the order to continue after the decisions or actions concerned have been taken. (90)

In 2016 NCAT made a non-reviewable order in relation to a 73-year-old man who had been diagnosed with mild dementia secondary to cerebrovascular disease and chronic schizophrenia. He neither married nor had children although received support from a friend and former neighbour. At the time the order was made, he lived in his own home. However, earlier in 2016 he had a period of respite care at a care facility near his home and by the time of the hearing he was in need of permanent residential care. In considering that the evidence was clear that he both had a disability and was unable to make important life decisions and was therefore "a person in need of a guardian", NCAT noted:

Not all people with a disability who are incapable of making life decisions should be regarded as being in need of a guardianship order and there are important principles in the Guardianship Act, particularly in ss 14(2) and 4 of that Act, which the Tribunal must consider in deciding whether it should make an order. Essentially, the Tribunal is directed to consider whether the subject person's life circumstances, their needs, and the protection of their rights necessitate the appointment of a legally authorised and legally empowered substitute decision-maker (that is, a guardian) or alternatively whether their need for appropriate decision-making can be achieved in a less formal way. (91)

In considering the issue of whether Mr EQK needed a guardian, NCAT noted further that although he had expressed general acceptance of his proposed new nursing home, there would be a need for someone with decision-making authority to ensure that he settled in, and that any further appropriate accommodation and services decisions could be made for him. The applicant gave evidence that, in her view, if Mr EQK were to return home, a "vicious circle" would recommence, under which his living conditions at home would rapidly deteriorate, having confirmed that his unit had been found to be in a squalid condition on previous occasions. NCAT accepted evidence that the services which Mr EQK needs could not be made available to him without the need for a guardianship order.

NCAT was satisfied on the basis of this evidence and having regard to the principles set out in s 4 of the Guardianship Act 1987 (NSW) outlined above, that it should make a non-reviewable guardianship order for six months in relation to Mr EQK appointing his friend, who was willing and able to be appointed, as his guardian. NCAT concluded its reasons for decision with the following:

We took this step because we believed that an order in this form would best balance the need for an alternate decision-maker to ensure that Mr EQK is settled in his nursing home accommodation, against our obligation to minimise interference in Mr EQK's freedoms of decision and action. (92)

Even though non-renewable orders state that they will not be reviewed, they are always checked by the staff of NCAT to see if, because of changed circumstances or some other reason, they do need to be reviewed. As a result of this check, some "non-reviewable" orders are reviewed, but most are not.

6.3.8.3 Temporary orders

Temporary orders are also rare. They may be made for up to a maximum of 30 days. Such orders may be renewed on review, but only once, and again for up to 30 days. (93) Only the Public Guardian may be appointed guardian under a temporary order. (94) However, NCAT must be satisfied by the evidence before it that all the conditions precedent to making an order have been complied with.

A 2012 case serves as a good example of a use of a temporary order. In that case an urgent hearing was required because there was evidence that the person the subject of the application for a guardianship order might soon be discharged from hospital because she no longer required acute care. It was clear that an immediate decision would be needed concerning her accommodation following her discharge from hospital. There was evidence that her husband was under great carer stress and clear evidence that his wife was in need of a guardian. However, there were comments in the application to the then Guardianship Tribunal that the husband considered to be allegations against him and he wished to reply to them. There were other issues in the case that fairness required that the husband to be given time to reply to before a final decision was made on the application. Given the conflict between the need for appropriate decisions and actions to be taken in relation the wife and the need for the husband to have a proper opportunity to prepare and present his case, it was not practicable to make a guardianship order appointing a person other than the Public Guardian at the time the order needed to be made. In these circumstances, NCAT is empowered to make a temporary guardianship order for a period not exceeding 30 days and it must appoint the Public Guardian as guardian, which is what happened in this case. (95)

For an example of a temporary guardianship order being made as a result of an urgent application being made after hours, see FBI [2014] NSWCATGD 2.

6.3.9 Removal orders

Another rarely used provision in the Act is the one which empowers NCAT to make removal orders. (96) First an application for a guardianship order has to have been made to NCAT. NCAT then may, if it considers it to be appropriate in the circumstances of the case to do so, make an order for the removal of the person from any premises. Such an order provides the authority to an "authorised officer" or a member of the police force, using all reasonable force, to enter and search the premises for the person the subject of the order and to remove them from the premises. (97)

If the authorised officer or member of the police force removes the person from any premises under the authority of an order made by NCAT, they are required, forthwith, to place the person in the care of the Director-General at a place approved by the Minister. (98)

One of the earliest applications heard by the then Guardianship Board was an application to remove a woman with an intellectual disability from a house in which she lived with her mother and brother in a country town. The evidence showed that she was seriously neglected and under fed. She was locked in her room overnight despite her incontinence and had insufficient bedding. Her mother refused offers of help despite her own declining health. The woman's brother was unable to look after her if their mother was away. The Board applied the general principles of the Act and made the removal order pending the hearing of the guardianship application in relation to the woman. (99)

There is an even less often used provision which empowers "an officer" or a member of the police force to apply for a search warrant to remove a person who may be in need of a guardian from premises and be placed in the care of the Director-General at a place approved by the Minister. (100) NCAT is not involved in this form of removal process.

6.3.10 The powers and functions of a guardian appointed in New South Wales

These matters are dealt with in Chapter 7.

6.3.11 Reviews of guardianship orders

All continuing guardianship orders are reviewed by NCAT towards the end of the period they are made for. As long as the review process has been commenced before the expiration of the period the order was made for, by sending a notice advising of the time date and place of the hearing of the review, the review process can proceed, and the guardianship order remains in effect until the review is completed, even if the period the order was made for has expired. (101)

In addition to this "automatic" review of guardianship orders, any person may request a review. However, it must be appreciated that reviews cannot be requested in circumstances in which the proper course is for a party to a hearing in which a guardianship order was made by NCAT to appeal against that decision. Nevertheless, a party to a hearing may appeal either to an Appeal Panel of NCAT or to the Supreme Court. (102)

NCAT can refuse a request to review a guardianship order if it is of the opinion that the request does not disclose grounds that warrant a review. (103) Consequently, a person with a proper reason for doing so, rather than a "busybody" can request a review if:
  1. the order is not working for the person under guardianship,
  2. circumstances have changed that affect the order,
  3. there is new information that was not available at the time of the hearing at which the order was made,
  4. there is no further need for a guardian, or
  5. a review is needed because the guardian is unable to continue, or has become incapacitated or has died and there is no joint or alternative guardian.
As with any proceedings before it, NCAT may join a person as a party to a review if it considers that the person should be joined as a party. (104) In a 2009 case, the then Guardianship Tribunal, interpreting legislation to the same effect, refused to join as a party to a review a man who wanted to be joined as a party. The Tribunal was not satisfied that he had a sufficient current interest in the welfare of the person the subject of the review as against his own interest in furthering other disputes in which he may be involved. However, the Tribunal advised the man that he was free to attend the hearing and give evidence. (105)

NCAT may conduct a review of a guardianship order "of its own motion", that is without having to wait until the "automatic" review of the order to become due or for someone to request a review. NCAT rarely does this because to do so can give rise to an argument that NCAT is biased; however if a review appears to be required, NCAT will conduct it in the exercise of its duty to give paramount consideration to the welfare and interests of those with disabilities to which the Guardianship Act 1987 (NSW) applies. (106)

6.3.11.1 Parties to reviews of guardianship orders

The following are parties to reviews of guardianship orders:
  1. (for a requested review) the person who requested the review,
  2. the person the subject of the order being reviewed,
  3. the spouse, if any, of that person, if the relationship between that person and their spouse is close and continuing,
  4. the person who has care of the person the subject of the order (107)
  5. the guardian appointed under the order,
  6. any person whom NCAT has joined as a party (108), (109)

6.3.11.2 Powers of the Tribunal on review

After conducting an "automatic" review of the guardianship order, NCAT may:
  1. a renew, or renew and vary the order, or
  2. determine that the order is to lapse and revoke the unexpired part of the order. (110)
After conducting a requested or "own motion" review of the guardianship order, the Tribunal may:
  1. vary the order, or
  2. suspend or revoke the order, or
  3. confirm the order. (111)
When conducting an "automatic" review, NCAT considers whether or not the person the order is about still needs to be under guardianship. As the general principles of the Act require NCAT to take a "least restrictive alternative" approach and not continue a person under guardianship when there is no current need to do so or no foreseeable need to do so in the short-term future, then NCAT should not make a new guardianship order in relation to the person. If there is a need for on-going guardianship, then NCAT should make a new order, replacing the order under review.

When conducting such a review, NCAT does not have to go back and determine whether or not the person still qualifies as a person for whom a guardianship order can be made. That can be assumed unless there is new or newly available evidence indicating otherwise, making the question of disability a live one for the review. Usually those with dementia become less capable over time while those with whole of life intellectual disabilities may sometimes acquire new and relevant skills and capacities but usually remain the same. However, those with an episodic psychiatric condition or an acquired brain injury that is reducing in effect may no longer have a disability that makes them "a person in need of a guardian".

Usually the "automatic" review of a guardianship order is confined to whether or not there is an on-going need for guardianship for the person the order is about and if so what functions the guardian needs to have in the interests the person under guardianship. Sometimes on review it is apparent that the original need for the guardianship order has gone away and no other need for an order has arisen. In that situation it is the duty of NCAT, under the general principles in the Act, not to renew the order even though the person's spouse or carer or others at the hearing ask for it to be renewed. (112) Occasionally on review it becomes apparent that the guardianship order has been ineffective and should be brought to an end. This happened in a 2013 case when the then Guardianship Tribunal said:

Balancing all the relevant factors the Tribunal determined that it is in [the person under guardianship's] best interests that the guardianship order, which has been impractical to implement, and is causing her emotional distress leading to rejection of services, should be dismissed. (113)

While a substantial proportion of orders are not renewed after a review the majority are renewed. (114) If it is not apparent that there is no current need for a guardianship order in relation to the person, it is wise for NCAT, when conducting a review of a guardianship order, to put its mind to at least those provisions of the section 14(2) criteria that are relevant. (115) Then it should decide whether to renew or renew and vary the order or whether to determine that it lapse or revoke the unexpired part of the order. (116)

Usually the issue of who should be guardian is resolved when the original guardianship order is made. However, in some cases it remains an issue of contention between the parties and sometimes, because of that, or for other reasons it is necessary to change the guardian at the review. If a new private guardian is to be appointed, the Tribunal must be satisfied that they meet the criteria set out in section 17(1) of the Act.

6.4 Victoria

6.4.1 Who has jurisdiction to appoint guardians?

As already noted, Morris J has stated that because Victoria has comprehensive laws in relation to guardianship and administration matters, he doubted that the parens patriae jurisdiction of the Supreme Court of Victoria "should play any current role in the day to day administration of guardianship matters". (117) Unlike the Supreme Court of New South Wales, the Supreme Court of Victoria may not retain its jurisdiction in relation to guardianship matters. The Guardianship and Administration Act 1986 (Vic) does not preserve its jurisdiction, but while Morris J has given an indication, the matter has not yet been authoritatively determined. (118) However, as set out in some detail in 6. 3. 1 above, Lindsay J of the NSW Supreme Court was clear that that Court retained its parens patriae jurisdiction, but went on in a 2015 decision to point out that the effective administration of the State's legal system for the protection of those in need of protection, which includes the guardianship of adults, required the Court to adopt practice conventions when exercising that jurisdiction. This meant reserving all its powers for cases in which they may be needed and to exercise "purposeful restraint" in deploying its inherent jurisdiction in order to facilitate the work of statutory tribunals with jurisdiction to make guardianship and administration (financial management) orders and to channel appeals from tribunal decisions, made in the exercise of that jurisdiction, through the regulatory framework established by the legislation giving those tribunals jurisdiction. (119)

Note that in Victoria the need for "purposeful restraint" in the exercise of the Court's jurisdiction is strengthened by the fact that if the Supreme Court of Victoria, the County Court or the Magistrates' Court considers that any party in any proceedings before it may need to have a guardian or an administrator or both appointed for them, the court may refer the issue to the Victorian Civil and Administrative Tribunal (VCAT) for its determination. Such a referral has effect as an application to VCAT; however it is for VCAT to decide whether or not to make the order. (120)

VCAT through its Guardianship List receives, hears and determines applications for guardianship orders. (121) Applications should be made to it.

6.4.2 Who may apply for a guardianship order?

Any person may apply to VCAT for an order appointing either a plenary or limited guardian for a person with a disability who is 18 years old or older or for such an order to take effect when the person reaches 18 years. (122)

6.4.3 Who may take part in a hearing as a party?

The following are automatic parties to an application:
  1. the applicant who can be any person,
  2. the person the application is about (the person), and
  3. the proposed guardian. (123)
The following are entitled to notice of the application, the hearing and any order made as a result of the application. They become a party by taking part in the hearing:
  1. the nearest relative available of the person who is not the applicant, the proposed guardian or the administrator of the person's estate, (124)
  2. the primary carer of the person, (125) 1 the Public Advocate, (126)
  3. any person whom VCAT joins as a party, (127) 1 the administrator (if any) of the estate of the person. (128)
The parties entitled to notice of the making of an application for a guardianship order, notice of the hearing of the application and notice of any order made by VCAT in relation to the application. (129) VCAT must commence to hear the application within 30 days after receiving it. (130)

6.4.4 What has to be proved before an order can be made?

Before VCAT may make a guardianship order, it must be satisfied by the evidence that that the person is:
  1. a person with a disability, (131) 1 unable, by reason of the disability, to make reasonable judgments about all or any of the matters relating to their person or circumstances, and
  2. in need of a guardian. (132)
When deciding whether or not the person is in need of a guardian, VCAT must consider:
  1. whether the needs of the person could be met by other means less restrictive of the person's freedom of decision and action than making a guardianship order in relation to them,
  2. the wishes of the person the hearing is about,
  3. the wishes of any nearest relatives or other family members of the proposed represented person (the person the hearing is about), and
  4. the desirability of preserving the person's existing family relationships. (133)
VCAT cannot make a guardianship order unless it is satisfied that the order would be in the best interests of the person the hearing is about. (134)

6.4.5 Appointing a guardian

Where VCAT is satisfied that it is in the best interests of the person the hearing is about to make a guardianship order in relation to them, it may appoint either a private person or the Public Advocate as the person's guardian. However, VCAT may appoint the Public Advocate only if no private person meets the tests set out below. (135)

Before VCAT may appoint someone as the person's private guardian it must be satisfied that the guardian is 18 years or older and consents to be the guardian and that the prospective guardian:
  1. will act in the best interests of the person the hearing is about, (136)
  2. is not in a position where their interests conflict or may conflict with the interests of the person the hearing is about, and
  3. is a suitable person to act as the guardian of the person the hearing is about. (137)
When deciding whether a person is suitable to be the guardian, VCAT must take into account:
  1. the wishes of the person the hearing is about,
  2. the desirability of preserving existing family relationships,
  3. the compatibility of the prospective guardian with the person the hearing is about and with the administrator (if any) of their estate,
  4. whether the prospective guardian will be available and accessible to the person the hearing is about so as to fulfil the requirements of guardianship of that person. (138)
If no other person fulfils these requirements for appointment as the person's guardian VCAT may appoint the Public Advocate as the person's guardian. (139) If VCAT does this, the Public Advocate has to use his or her best endeavours to find an appropriate person to be appointed (by VCAT) as the person's guardian. (140)

6.4.6 Joint, several and alternative guardians

VCAT can appoint joint guardians, provided each of them meets the criteria for appointment as a guardian. (141) They have the same functions as each other and must make the decisions about the person under guardianship jointly and be in agreement about those decisions.

While there is no statutory authority to do so in the Guardianship and Administration Act 1986 (Vic), there does not seem any reason why VCAT should not be able to appoint one or more guardians for one or more functions and one or more other guardians for one or more other functions, namely "several" guardians.

VCAT may appoint alternative guardians. They become the person's guardian in the event of the death, absence, or incapacity of the original guardian. However, they must advise VCAT of the death, absence, or incapacity of the original guardian and provide evidence of it to VCAT. (142)

6.4.7 Types of guardianship orders

VCAT may make orders appointing plenary guardians or limited guardians. (143)

6.4.7.1 Plenary orders

VCAT cannot make an order appointing a plenary guardian unless it is satisfied that a limited guardianship order would be insufficient to meet the needs of the person under guardianship. (144)

A plenary guardian has all the powers and duties that a plenary guardian would have if they were a parent and the represented person (the person under their guardianship) was their child. (145) The functions, powers and duties of guardians are discussed in detail in Chapter 7.

6.4.7.2 Limited orders

Where VCAT makes an order appointing a limited guardian the order made must be that which is the least restrictive of that person's freedom of decision and action as is possible in the circumstances. (146)

A limited guardian has only those powers and duties of a plenary guardian that are specifically given to them by VCAT in the guardianship order appointing them. (147) The functions, powers and duties of guardians are discussed in detail in Chapter 7.

6.4.8 Temporary orders

While the provisions relating to applying for and the tests for the making of temporary orders are the same as for guardianship orders, they are seen as different from guardianship orders. (148) While VCAT can appoint both limited and plenary guardians under temporary orders, those orders may remain in effect for a maximum of 21 days and be renewed only once, again for a maximum of 21 days. (149) However, VCAT must hold a hearing within 42 days of making a temporary order to decide whether or not to make a guardianship order in relation to the person the subject of the temporary order. (150)

A significant number of temporary orders are made by VCAT each year. The Office of the Public Advocate website indicates that these orders are for emergency situations and can be made at very short notice. They allow VCAT to act swiftly to protect individuals who are at risk. VCAT can only make a temporary order when the person in question is at immediate risk and there are no less restrictive options for addressing the situation. (151)

6.4.9 The powers and functions of a guardian

These matters are dealt with in Chapter 7.

6.4.10 Requested rehearings

In Victoria the parties to a hearing of an application for a guardianship order made to VCAT may apply for a rehearing of the application if VCAT either makes an guardianship order or dismisses the application. They cannot apply for a rehearing if VCAT makes a temporary order or if the President of VCAT hears the application alone or with others. (152)

6.4.10.1 Who may apply?

The Public Advocate, an automatic party or a person entitled to notice of the application who became a party by taking part in the hearing may apply to for a rehearing of the application. (153) A person entitled to notice of the application who did not become a party may apply for a rehearing, but only if VCAT gives them leave to do so. (154) The application for a rehearing, or for leave to apply for a rehearing, must be made within 28 days after the day of the order. (155)

6.4.10.2 Parties to rehearings of applications for guardianship orders

Anyone who was a party to the hearing of an application for a guardianship order is a party to a rehearing of the application, in addition to any other parties such as the appointed guardian or administrator if they were not already a party to the original hearing. Anyone who was entitled to notice of the making of the application is entitled to notice of an application for a rehearing of the application. (156)

6.4.10.3 Powers of VCAT at the rehearing

VCAT must rehear the matter but in doing so has all the functions and powers it had at the first hearing. After rehearing the application, VCAT may:
  1. affirm the order made at the first hearing,
  2. vary that order,
  3. set aside that order and make another order instead. (157)

6.4.11 Reassessments of guardianship orders

In Victoria guardianship orders are not reviewed, they are reassessed. (158) This must be done by VCAT within 12 months of the making of the order unless VCAT provides for a longer period within which the reassessment may take place. The maximum period within which the reassessment may take place is three years, unless VCAT orders otherwise. (159) However, VCAT may conduct a reassessment of a guardianship order at any time either on its own initiative or on the application of any person, including the represented person (the person under guardianship). (160) Guardians are encouraged to ask VCAT for an early reassessment if they think guardianship is no longer necessary.

6.4.11.1 Parties to reassessments of guardianship orders

The Guardianship and Administration Act 1986 (Vic) appears to make a distinction between those who are parties to a reassessment and those who are entitled to notice of it. Both the person under guardianship and the guardian are automatic parties, as would be the applicant if that person was not either of them. As VCAT may join other people as parties, they too would become parties. (161)

As well as the parties, the following are entitled to notice of the making of an application for a reassessment, at least seven days' notice of the hearing of the reassessment and notice of any order made by VCAT relating to the reassessment:
  1. the nearest relative available of the person under guardianship, (162)
  2. the primary carer (if any) of that person, (163) 1 the Public Advocate, and
  3. any administrator of the estate of the person under guardianship. (164)
It is the practice of VCAT to conduct most reassessments on its own initiative, and while it can do so "on the papers" without conducting a hearing, its practice is to conduct hearings at which people may attend. This is particularly the case where VCAT does not propose to amend, vary or replace the order. There are particular notice and other provisions relating to these reassessments. (165)

In practical terms, the reassessment provisions of the Guardianship and Administration Act 1986 (Vic) are given effect to by VCAT providing a hearing within 12 months, but allowing the order to lapse unless the need to continue the order is advises to it. Reassessments are occasionally applied for in order to change the guardian or to have an order that is no longer needed revoked.

When a reassessment is taking place, guardians are required to prepare a written report and send it to VCAT. The Public Advocate has advised that this report should include:
  1. any significant decisions the guardian has made;
  2. any change in the represented person's capacity to make reasonable judgments;
  3. the represented person's current needs and arrangements;
  4. future plans relevant to the represented person;
  5. the guardian's relationship with other significant people in the life of the represented person, including their family and professional service providers involved with them;
  6. any difficulties or conflict the guardian has faced in carrying out their guardianship responsibilities;
  7. facts relevant to whether guardianship should continue, end or be changed;
  8. the guardian's availability and willingness to continue as guardian; and
  9. any other matters which the guardian considers VCAT should be aware of before it makes a decision on the reassessment. (166)

6.4.11.2 Powers of VCAT on reassessment

Upon completing a reassessment VCAT may revoke the order or amend, vary, continue or replace it subject to any conditions or requirements it considers necessary. (167)

6.5 Tasmania

6.5.1 Who has jurisdiction to appoint guardians?

The Guardianship and Administration Act 1995 (Tas) establishes the Guardianship and Administration Board of Tasmania to deal with applications for orders appointing full and limited guardians. (168) While that Act does not specifically deal with the parens patriae jurisdiction of the Supreme Court of Tasmania, it does provide that if any court in Tasmania, including the Supreme Court, considers that any party in any proceedings before it may need to have a guardian or an administrator or both appointed for them, the court may refer the issue to the Board for its determination. Such a referral has effect as an application to the Board. (169) Also, the Supreme Court is the body to deal with appeals against determinations of the Board. (170) These provisions together with the opinion expressed by Morris J of the Supreme Court of Victoria namely, that because Victoria has comprehensive laws in relation to guardianship and administration matters, which are similar to those of Tasmania, he doubted that the parens patriae jurisdiction of the Supreme Court of Victoria "should play any current role in the day to day administration of guardianship matters" indicate that the jurisdiction originally given to the separate Supreme Court of Van Diemen's Land by the Third Charter of Justice of 1823, and renewed by Tasmania's own Charter of Justice of 1831, in relation to the guardianship of adults may have been removed by necessary implications being drawn from those provisions of the Guardianship and Administration Act 1995 (Tas). (171)

Consequently, while the Supreme Court of Tasmania still operates under the Charter of Justice, the wise course is to make applications for orders appointing full and limited guardians to the Guardianship and Administration Board of Tasmania rather than to the Supreme Court.

6.5.2 Who may apply for a guardianship order?

Any person may apply to Guardianship and Administration Board for an order appointing either a plenary or limited guardian for a person with a disability who is 18 years old or older. (172) The application must be lodged with the registrar and contain the prescribed information and specify the grounds on which it is alleged that the proposed represented person (the person the application is about) needs a guardian. (173) Although the _Guardianship and Administration Act 1995 (Tas) does not set any statutory qualifications for those who may apply for an order appointing a guardian the Guardianship and Administration Board's website states that; "anyone who has a genuine concern for the welfare of a person with a decision-making disability can make an application to the Board." (174) The website also notes that specific application forms are available on request to the Board's office. They are not available via the internet as many matters including guardianship and medical treatment issues can often be resolved without a formal application to the Board. (175) It is good practice always to contact the Board before making an application for an order as many situations involving a person with a decision-making disability can be resolved without the need to appoint a guardian for them.

6.5.3 Who may take part in the hearing as a party?

Unlike the New South Wales and Victorian legislation, the Guardianship and Administration Act 1995 (Tas) does not set out specifically who are the parties to an application for an order appointing a guardian for a person. However, the Act states specifically that the Board is bound by the rules of natural justice. (176) Consequently, anyone with a genuine interest in the matter, the person the application is about in particular, should be told of the application and advised of the time date and place of the hearing and what the basic issues raised by the application are. In this regard it should be noted that the practice of the Board is to have its staff investigate the decision-making capacity of the person the application is about and why there might be a need for a guardian. How this is done is set out on the Board's website and in particular involves the Board's staff liaising with the applicant, the proposed represented person and all other interested parties including family members and any professional service-providers. (177)

6.5.4 What has to be proved before an order can be made?

Before the Board may make a guardianship order, it must be satisfied by the evidence of the same matters and tests that VCAT has to be satisfied about it can make a similar order. (178) Like VCAT, the Board must consider whether the needs of the person could be met by other means less restrictive of the person's freedom of decision and action than making a guardianship order in relation to them.

The Board cannot make a guardianship order unless it is satisfied that the order would be in the best interests of the person the hearing is about. (179)

While the Guardianship and Administration Act 1995 (Tas) does not specifically state that the Board must seek the views of the person the application is about, it would be a breach of the rules of natural justice for the Board not to give any person the subject of an application a reasonable opportunity to give their views to the Board if they were capable of expressing views. Also, the Act requires the Board to carry the wishes of the person with the disability into effect if possible. (180)

In order to deal with these matters, the Board has adopted a practice of requiring the person the hearing is about to be at the hearing so that the Board may see them and hear their views. If it is not possible for the person to be at the hearing, an officer of the Board will visit the person to seek and obtain their views wherever it is possible to do so.

Also, if the Board did not give relatives genuinely involved in the life of the person the application is about a reasonable opportunity to be heard, this could be a breach of the rules of natural justice. However, whether it was or not would depend on the facts of the particular case. Again, this matter is dealt with in practice by the investigating officer of the Board contacting such relatives and, if they are not able to attend the hearing, offer the possibility of their views being included in that officer's report to the Board.

6.5.5 Appointing a guardian

Where Board is satisfied that it is in the best interests of the person the hearing is about to make a guardianship order in relation to them, it may appoint either a private person or the Public Guardian as the person's guardian. (181) Unlike the New South Wales and Victorian legislation, the Guardianship and Administration Act 1995 (Tas) does not specifically impose any limitations on the Board's discretion to appoint either a private guardian or the Public Guardian as the person's guardian. However, as will be discussed below, the established policy of the common law in this field of law is to appoint a family member as guardian "if that were possible". (182) Nevertheless, the Board is required by the principles of the Act to carry into effect the wishes of the person under guardianship if possible, but promote that person's best interests - matters which can be in conflict. (183) When appointing a guardian, the Board must also take into account the desirability of preserving existing family relationships. (184) The experience of the guardianship jurisdiction though is that sometimes it is the actions or omissions of family members that create the need for the guardianship order. In that situation, the preservation of family relationships can be in conflict with promoting the best interests of the person under guardianship.

Before the Board may appoint someone as the person under guardianship's private guardian it must be satisfied that the guardian is 18 years or older and consents to be the guardian, and that the prospective guardian will meet the same criteria that VCAT has to consider. The Board must also take into account the same matters VCAT must take into account when it is determining whether or not a person is suitable for appointment as a guardian. (185)

6.5.6 Joint, several and alternative guardians

Although there is no specific statutory authority to do so in the Guardianship and Administration Act 1995 (Tas), applying the usual rule of statutory interpretation, the Board may appoint joint guardians, provided each of them meets the criteria for appointment as a guardian. (186) Joint guardians would have the same functions as each other and would have to make the decisions about the person under guardianship jointly. However, it is not the practice of the Board to appoint joint guardians.

There is statutory authority for the Board to appoint two or more guardians each with different functions for the person under guardianship. Such appointments of "several" guardians can be made in one or more limited guardianship orders. (187)

The Board may appoint alternative private guardians. The Public Guardian cannot be appointed as an alternative guardian in Tasmania. During the absence or incapacity of the original guardian, the alternative guardian becomes the person's guardian with the same functions as the original guardian. (188)

Since there is no provision for dealing with the death of the guardian, the guardianship order would cease to operate if the guardian died.

6.5.7 Types of guardianship orders

The Board may make orders appointing full (plenary) guardians or limited guardians. (189) These orders will lapse after three years unless they are continued after a review. (190) However, they may be reviewed at any time. (191)

6.5.7.1 Full orders

The provisions in the Guardianship and Administration Act 1995 (Tas) are the same as in the Victorian legislation. (192) The Board cannot make an order appointing a plenary guardian unless it is satisfied that a limited guardianship order would be insufficient to meet the needs of the person under guardianship. (193) Also, a plenary guardian has all the powers and duties that a plenary guardian would have if they were a parent and the represented person (the person under their guardianship) was their child. (194) The functions, powers and duties of guardians are discussed in detail in Chapter 7.

6.5.7.2 Limited orders

Again, the provisions in the Guardianship and Administration Act 1995 (Tas) are the same as in the Victorian legislation. (195) Where the Board makes an order appointing a limited guardian the order made must be that which is the least restrictive of that person's freedom of decision and action as is possible in the circumstances. (196)

A limited guardian has only those powers and duties of a plenary guardian that are specifically given to them by the Board in the guardianship order appointing them. (197) The functions, powers and duties of guardians are discussed in detail in Chapter 7.

6.5.7.3 Emergency guardianship orders

The Board has the power to make an emergency order appointing the Public Guardian as the guardian of a person not already under guardianship. Before the Board may make such an order it must consider that there are grounds for making a guardianship order in relation to the person and consider that it is proper for reasons of urgency to make the order. The Board may make the order "considered appropriate in the circumstances" and give any similarly appropriate direction. (198)

The Board may make such an order on its own initiative or at the request of any person the Board considers has a proper interest in the matter. The request can be made and information gathered by phone or other means. No notice need be given to any person. While the Board is not required to hold a hearing, it must make such inquiries or investigations as it thinks appropriate. Such orders can be made for up to 28 days and may be renewed once for up to the same period. (199)

There must be an evidential basis for the Board's view that the person may need a guardianship order and there must be obviously urgent reasons for making the order or giving the direction. However, the state of the evidence for making an emergency guardianship order need not be such as to meet the requirements for making non-urgent order. (200)

6.5.8.1 Emergency orders and directions

In addition to making emergency guardianship orders, the Board may make other orders and give other directions that are considered appropriate in the circumstances and that the Board considers proper to make or give by reason of urgency. (201)

The Board may make such an order on its own initiative or at the request of any person the Board considers has a proper interest in the matter. The request can be made and information gathered by phone or other means. No notice need be given to any person. While the Board is not required to hold a hearing, it must make such inquiries or investigations as it thinks appropriate. (202) There must be an evidential basis for any order the Board makes or any direction that it gives under this provision.

Any such orders can be made for up to 28 days and may be renewed once for up to the same period. (203)

6.5.8.2 Removal orders

The Guardianship and Administration Act 1995 (Tas) provides for two situations in which the Board can make a "removal order" in relation to a person with a disability who is not the subject of a guardianship order. The first is where the Board has received information that a person with a disability is:
  1. being unlawfully detained against their will, or
  2. likely to suffer damage to their physical, emotional or mental health or well-being unless immediate action is taken.
In this situation, if the Board considers it necessary to do so in order to secure access to that person, it may empower the Public Guardian or some other person specified in the order to visit the person with a disability for the purpose of preparing a report for the Board. This must be done in the company of a police officer who may, with such assistance as is necessary, use such force as is reasonably necessary to enter the premises where the person with a disability is to be found. (204)

If, after receiving and considering the report, the Board is satisfied that the person with a disability is being unlawfully detained against their will or is likely to suffer damage to their physical, emotional or mental health or well-being unless immediate action is taken, the Board may make an order enabling the person to be taken to, and cared for at, a place specified in the order until an application for an order appointing a guardian for them is heard. (205) Unlike in New South Wales, no application for a guardianship order has to be made in advance of the Board taking action if it has received information upon which it considers it necessary to act.

The second is where it appears to a police officer that there is reasonable cause to suspect that a person with a disability who appears to be in need of a guardian:
  1. has been, or is being, ill-treated, neglected or unlawfully detained against their will, or
  2. is likely to suffer serious damage to their physical, emotional or mental health or well-being unless immediate action is taken.
In this situation, the police officer may enter the premises where the person with the disability is believed to be, by force if necessary, and remove that person from the premises if that was thought fit. In this kind of situation, where the police officer decides to remove the person from the premises, they must be accompanied by a person nominated by the Public Guardian. That person must then, as soon as practicable:
  1. take the person with a disability to a place of safety,
  2. ensure that an application for guardianship or other appropriate arrangements are made in relation to the person with the disability, and
  3. provide the Board with a written report giving details of the action that they had taken when exercising their responsibilities under these provisions. (206)
In either situation the police and the Public Guardian must work together to check whether the person with the disability is safe or not, and if not safe to remove them to a place of safety. After that is achieved, the question of whether or not the person needs a guardian is then addressed.

6.5.9 The powers and functions of a guardian

These matters are dealt with in Chapter 7.

6.5.10 Reviews of guardianship orders

The Board may make guardianship orders for a maximum of three years. After that they will expire unless they are continued after a review. (207) However, the Board is also empowered to hold a hearing to review a guardianship order at any time. It may do so:
  1. on its own initiative,
  2. on application by, or on behalf of, a the person under guardianship, or
  3. on the application of any other person. (208)

6.5.10.1 Parties to reviews of guardianship orders

In Tasmania the parties to reviews of guardianship orders are those persons that procedural fairness requires to be treated as parties. These are at least the following:
  1. the person the order is about,
  2. their guardian,
  3. the applicant for the review if that is neither the guardian nor the person under guardianship.
Others, such as the spouse of the person under guardianship, may be entitled to be parties, but that will depend on the circumstances of the case. However, it is not necessary to be a party to be able to attend a review and to give evidence at it.

6.5.10.2 Powers of the Board on review

After conducting the review hearing, the Board may vary or continue the guardianship order, subject to any conditions or requirements it considers necessary, or it may revoke the order. Also, the Board may make such further orders as it considers necessary in order to give effect to the guardianship order. (209)

6.6 South Australia

6.6.1 Who has jurisdiction to appoint guardians

As from 29 March 2010, the South Australian Civil and Administrative Tribunal (SACAT), established under the South Australian Civil and Administrative Tribunal Act 2013 (SA), took over the jurisdiction previously exercised by the Guardianship Board of South Australia under the Guardianship and Administration Act 1993 (SA). When the Board went out of existence, SACAT received its power to make guardianship orders. (210) The South Australian Civil and Administrative Tribunal Act 2013 (SA) does not specifically deal with the parens patriae jurisdiction of the Supreme Court of South Australia. However, it provides that applications can be made to SACAT to review decisions it (SACAT) has make in the exercise of its original jurisdiction, which includes appointing guardians (and administrators). (211) The Act further provides that appeals from decisions of SACAT are to the Supreme Court; such appeals can be made only by leave of the Supreme Court and only after an internal review of the original decision has been conducted by SACAT. (212) SACAT members may refer questions of law to a presidential member and a presidential member may reserve a question of law for determination by the Full Court of the Supreme Court for its opinion. (213)

It is respectfully suggested that these provisions demonstrate a clear intention on the part of the South Australian Parliament that the jurisdiction to appoint guardians for those who have reached 18 years be exercised by SACAT in the first instance and then again on review. It is noted that it is only when those processes have been completed that the matter may be appealed either to a single judge or the Full Court of the Supreme Court. (214) As already noted, questions of law may be reserved by a presidential member of SACAT for determination by the Full Court of the Supreme Court. These considerations raise a strong, if not a necessary, implication that the South Australian Parliament intended the Supreme Court's role in relation to the guardianship of adults be limited to appeals after a first instance hearing and a review and to determinations of questions of law by the Full Court of the Supreme Court. However, as seen in the 1974 case of Colmer v O'Brien, the Full Court of the Supreme Court has been reluctant to hold that legislation in relation to the custody of children removes the Supreme Court's parens patriae power to make common law guardianship orders in relation to that child. (215) Much more recently in 2003, Morris J of the Supreme Court of Victoria said that because Victoria has comprehensive laws in relation to guardianship and administration matters (as does South Australia) he doubted that the parens patriae jurisdiction of the Supreme Court of Victoria "should play any current role in the day to day administration of guardianship matters". It is respectfully suggested that, as a matter of practice at least, the same approach should apply in South Australia. (216) While it is noted that the District Court of South Australia may have parens patriae jurisdiction in relation to the appointment of guardians for adults, the same arguments that apply in relation to the Supreme Court should apply to the District Court. (217)

We think the views of Lindsay J of the NSW Supreme Court set out at 6.3.1 above, are probably relevant to South Australia, particularly since the coming into existence of SACAT. (218) Consequently, the wise course is to make applications for guardianship orders to SACAT rather than to the Supreme Court or District Court.

As will be seen in Chapter 8.5.1, the Supreme Court and the District Court of South Australia both have jurisdiction under the Aged and Infirm Persons' Property Act 1940 (SA) to make protection (administration) orders. The District Court may also have parens patriae jurisdiction to appoint administrators for the estates of incapable people. (219)

6.6.2 Who may apply for a guardianship order?

The following may make an application to the SACAT for a guardianship order or for the variation or revocation of such an order:
  1. the person the application is about; (220) 1 the Public Advocate, on his or her own initiative, or at the request and on behalf of the person the application is about; (221) 1 a guardian of the person the application is about, appointed under a guardianship order made by SACAT; (222) 1 a substitute decision-maker appointed under an advance care directive that is still in force, made under the Aged Care Directives Act 2013 (SA) and given by the person the application is about; (223)
  2. a person responsible for the person the application is about may be a 'prescribed relative'. However, while they may be in a category of prescribed relative, they must have a close and continuing relationship with the person the application is about in order to qualify as a person responsible. The following are prescribed relatives:
    1. a person who is legally married to the person,
    2. an adult domestic partner of the person (within the meaning of the Family Relationships Act 1975 (SA)) and whether declared as such under that Act or not),
    3. an adult related to the person by blood or marriage,
    4. an adult related to the person by reason of adoption,
    5. an adult of Aboriginal or Torres Strait Islander descent who is related to the person according to Aboriginal kinship rules or Torres Strait Islander kinship rules (as the case requires); (224)
  3. a person responsible for the person the application is about may also be one of the following, but to qualify as a person responsible, they must have a close and continuing relationship with the person the application is about. These are,
    1. a parent of the person (including an adoptive parent and a step-parent),
    2. if the person the application is about, is under 18 years of age--an adult who acts in loco parentis in relation to them,
    3. an adult friend of the other person; (225)
  4. also in South Australia, an adult who is charged with overseeing the ongoing day-to-day supervision, care and well-being of the other person; for example the director of nursing of an aged care facility in which the person the application is about lives. (226)
  5. an administrator of the person's estate; (227) or
  6. any other person who satisfies SACAT that they have a proper interest in the welfare of the person. (228)
Guardianship applications must be made in the manner and form determined by SACAT. (229)

6.6.3 Who may take part in the hearing?

There appear to be two categories of persons who may take part in the hearing of an application for a guardianship order.

6.6.3.1 A person who is empowered by the Guardianship and Administration Act 1993 (SA) to make an application for a guardianship order and a person joined as a party to the application by SACAT

As has just been seen in 6.6.2, Guardianship and Administration Act 1993 (SA) sets out in some detail who may apply to SACAT for a guardianship order in relation to themselves or, much more usually, another person. However that Act does not set out who are parties to a hearing of an application for a guardianship order. That matter is now dealt with in the South Australian Civil and Administrative Tribunal Act 2013 (SA). Under that Act, the person making the application is a party. In order to achieve a fundamental aspect of procedural fairness, the person the application is about must be a party. That appears to have been achieved formally by s. 53(1)(b) of the Act as the proceedings commenced by an application for a guardianship order necessarily involve an inquiry into the person the subject of the application. (230) The Act also empowers SACAT to join others as parties to the proceedings in relation to an application for a guardianship order. (231)

6.6.3.2 A person who must be given notice of the proceedings

It is the obligation of SACAT to give those listed below reasonable notice of the time and place of the hearing. It is likely in most cases that those who must be given notice of the hearing are, by operation of the provisions set out in 6.6.3.1, that they are already parties. Nevertheless they are:
  1. the person the application is about that is, the person said to have a mental incapacity; (232) 1 the person who made the application; (233) 1 the Public Advocate; (234) 1 such other people as SACAT considers to have a proper interest in the matter. (235)

6.6.3.3 Others who are likely to be present

While those referred to in 6.6.3.1 and 6.6.3.2 above may take part in the hearing, other people involved in the care or welfare of the person may also come to the hearing often to bring the person the subject of the hearing and often enough they will give evidence to SACAT to help it to decide whether or not to make a guardianship order in relation to that person.

An applicant is required, on the application form, to list the names and details of all people they know have an interest in the person that the application is about.

The Office of the Public Advocate also provides information on its website about what to expect to happen at guardianship hearings conducted by SACAT. (236)

6.6.4 What has to be proved before an order can be made?

Before SACAT may make a guardianship order it must be satisfied by the evidence before it that the person the subject of the application:
  1. has a mental incapacity;
  2. does not already have an enduring guardian; and
  3. should have a guardianship order made in relation to them. (237)
The term "mental incapacity" is defined to mean the inability of a person to look after their own health, safety or welfare or to manage his or her own affairs, as a result of:
  1. any damage to, or any illness, disorder, imperfect or delayed development, impairment or deterioration, of the brain or mind; or
  2. any physical illness or condition that renders the person unable to communicate his or her intentions or wishes in any manner whatsoever. (238)
When deciding whether or not to make a guardianship order SACAT must, as the paramount consideration, give consideration to what, in its opinion, would be the wishes in the matter of the person the application was about if they were not mentally incapacitated. However, SACAT is required to do this only to the extent that there is reasonably ascertainable evidence on which it can base such an opinion. (239)

In addition, SACAT must seek and consider the present wishes of the person, unless it is not possible or reasonably practicable to do so. (240)

Furthermore, SACAT must give consideration to the adequacy of existing informal arrangements for the care of the person and to the desirability (or otherwise) of not disturbing those arrangements. (241)

Finally, the order made by SACAT must be the one that is the least restrictive of the person's rights and personal autonomy as is consistent with their proper care and protection. (242)

After giving appropriate consideration to and being satisfied as to all these matters, SACAT may make an order placing the person under limited guardianship, or if a limited guardianship order would not be appropriate, a "full" guardianship order. (243)

SACAT may make guardianship orders subject to such conditions or limitations (including a limitation as to the duration of the order) as it thinks fit and specifies in the order. (244)

6.6.5 Appointing a guardian

SACAT is empowered to appoint as the guardian or the guardians such person or persons as it considers, in all the circumstances of the case, to be the most suitable for the purpose. (245)

Private guardians must be natural persons, not companies. (246) Also, a person who cares for the person under guardianship on a professional basis cannot be appointed as their guardian. (247) However, the Public Advocate may be appointed as the guardian, or one of the guardians, of the person, but only if SACAT considers that no other order would be appropriate. (248)

SACAT cannot appoint anyone as a guardian unless they consent to the appointment. (249) However the Public Guardian's consent is not required before SACAT appoints him or her. (250) It is suggested that the Public Advocate cannot refuse to accept an appointment as guardian by SACAT.

When determining the suitability of a person for appointment as a private guardian, SACAT must have regard to:
  1. whether the potential appointee and the person with the mental incapacity would be incompatible,
  2. whether there is some existing family arrangement or relationship that should be preserved or should not be disturbed,
  3. whether the potential appointee would be competent to discharge the functions of guardian and would do so in accordance with the principles set out in the Guardianship and Administration Act 1993 (SA), (251) 1 whether the potential appointee would be readily available for discharging those functions,
  4. whether any conflict of interest would arise from the appointment. (The fact that a proposed appointee is related to the person with the mental incapacity by blood or marriage is not, of itself, to be taken as giving rise to a conflict of interest), and such other matters as SACAT considers relevant. (252)

6.6.6 Joint, several and alternative guardians

The Guardianship and Administration Act 1993 (SA) specifically provides for the appointment of more than one guardian in a guardianship order and also allows for the Public Advocate to be one of those guardians. (253) That Act also specifically provides that where more than one guardian is appointed, subject to the order of appointment, concur in every act done or decision made in relation to the person under guardianship. (254) While this provision applies only to acts done by or requiring approval or decisions required of a guardian, it also allows for SACAT to craft guardianship orders so that not every joint guardian has to concur in every act done or decision made on every occasion. It is also suggested that the words "subject to the order of appointment" in that provision allows SACAT, in circumstances in which it considers it appropriate, to appoint one or more guardians to be responsible for particular aspects of the person under guardianship's care and welfare and another guardian or group of guardians to be responsible for other particular aspects of the person under guardianship's care and welfare. These are commonly called "several" guardians to distinguish them from "joint" guardians. While the Act appears to allow a group of guardians to be appointed to be responsible for certain aspects of the person under guardianship's care and welfare and other groups of guardians to be appointed to be responsible for certain other aspects of the person under guardianship's care and welfare, it is wise to avoid the appointment of numbers of guardians because of the difficulties in being able to discuss, decide and then advise those involved in the day to day care of the person under guardianship in a timely manner and in their best interests of that person.

There are no provisions for dealing directly with the resignation, death or incapacity of the guardian or one of the joint (or "several" guardians). If this occurs, the guardianship order will cease to exist and the person will no longer be under guardianship. SACAT is not empowered to appoint alternative guardians. The practice of SACAT, when it is advised of such a situation is to conduct a review of the order and take the appropriate action in the light of the review. Also anyone entitled under the Act to make an application for a guardianship order may also make an application to deal with the situation in the case of the resignation death or incapacity of one or more of the guardians. (255)

6.6.7 Types of guardianship orders

6.6.7.1 Full and limited guardianship orders

SACAT is empowered to make both "full" and "limited" guardianship orders. (256) A "full" order gives the guardian, subject to the Act and the terms of the SACAT's order, all the powers a guardian has at law or in equity. (257) Under the Act, a limited guardianship order is an order by which SACAT specifies the particular aspects of the person under guardianship's care or welfare that are to be the responsibility of the guardian or guardians. (258) A "limited" guardian has, again subject to the Act and the order, those powers a guardian has at law or in equity in relation to those aspects of the person under guardianship's care or welfare that they are given responsibility for under the order appointing them.

6.6.7.2 Self-revoking orders

Because of SACAT's power to include limitations in any guardianship order it makes, including a limitation as to the duration of the order, it may make guardianship orders that are to last only for a set period. Because guardianship must be reviewed at intervals of not more than three years, such orders could not be made for more than three years. (259) Such self-revoking orders do not have to be reviewed in the manner set out below in 6.6.9 below. Self-revoking orders can be either full or limited guardianship orders.

6.6.7.3 Urgent orders

Prior to SACAT taking over the guardianship jurisdiction of the now defunct Guardianship Board, the Board could, if it was satisfied that urgent action was required, may make an urgent guardianship order for up to 21 days. While the relevant provision in the Guardianship and Administration Act 1993 (SA) has been repealed, it is suggested that there is sufficient flexibility in SACAT's procedures under the South Australian Civil and Administrative Tribunal Act (2013) (SA) to allow for an urgent guardianship order to be made in circumstances in which SACAT was satisfied that such urgent action was required to meet the immediate needs of an apparently mentally incapacitated person or to protect their person in a way that was within the powers of a guardian in law or in equity. It is further suggested that such an order could be made for such time as was necessary for SACAT to convene a hearing that complied with the requirements of procedural fairness relevant to the circumstances of the particular case and for the appropriate evidence relevant to the case to be collected. (260)

There must be grounds for believing that the person lacks mental incapacity but that more evidence has to be gathered to demonstrate whether or not the person the hearing about has a mental incapacity. Such an urgent hearing would be a rare event.

6.6.7.4 Removal orders

SACAT does not appear to have the power to make removal orders for the protection of a mentally incapacitated person pending the making of or the hearing of an application for a guardianship order. However, it may be possible to achieve this in a clear case under an urgent order made in the circumstances set out in 6.6.7.3. Section 32 of the Guardianship and Administration Act 1993 (SA) may be able to be relied upon if the circumstances of the case met the requirements of that section.

6.6.8 The powers and functions of a guardian

As already noted, SACAT may appoint full (plenary) or limited guardians. The powers and functions of guardians, including the special powers that, on application, SACAT may give to guardians to place and detain the person under guardianship, are dealt with in Chapter 7. (261) While the powers of a guardian in South Australia are the same as the powers of a guardian in the other States and the Territories, namely the powers a guardian has at law or in equity, the Guardianship and Administration Act 1993 (SA) describes a limited guardianship order as an order by which SACAT specifies the particular aspects of the person under guardianship's care or welfare that are the responsibility of the appointed guardian or guardians. (262) It is suggested that reference to the term "responsibility" of guardians in the Act does not create a different concept of guardianship in South Australia from the other States and the Territories.

6.6.9 Reviews of guardianship orders

There are now three types of reviews of guardianship orders in South Australia.

6.6.9.1 Internal review of a decision to make an order

The South Australian Civil and Administrative Tribunal Act 2013 (SA) created an internal review jurisdiction under which (an internal review panel of) SACAT may, on application, review a decision made (at a "first instance" hearing) by SACAT to make or refuse to make a guardianship order or to review the content of the guardianship order made, including who the guardian or guardians appointed were and the powers given to them. During the review, SACAT will examine the original decision on basis of the evidence or material before the original hearing but may allow further evidence or material to be presented to it. When conducting this kind of review, SACAT is required to reach the correct or preferable decision but in the process of doing so must have regard to, and give appropriate weight to, the decision under review. Having conducted the review, SACAT may:
  1. affirm the decision that is being reviewed; or
  2. vary the decision that is being reviewed; or
  3. set aside the decision being reviewed and--
    1. substitute a new decision; or
    2. return the matter to the original decision-makers at SACAT for reconsideration of the application for guardianship in accordance with any directions or recommendations that the reviewers considered appropriate. (263)
This kind of review is, in effect, a form of internal appeal. It is different in its purpose from the periodic and requested reviews discussed below. There are limited further appeals from this kind of appeal. They are touched upon in the first paragraph of 6.6.1 above.

6.6.9.2 Periodic reviews

It is a crucial element of the modern guardianship system that guardianship orders are to be reviewed periodically to check whether they are still needed. Consequently, SACAT is required to review the "circumstances" of those under guardianship within six months if they are being detained in any place under an order made by SACAT, and thereafter at intervals of no more than a year. (264) If the guardianship order does not contain a detention provision, then it must be reviewed at least once every three years. On completion of the review, SACAT must revoke the order unless it is satisfied that there are proper grounds for keeping the order in force. If SACAT decides to keep the order in force, it may vary the terms of the order. SACAT has a wide discretion as to how it may conduct its reviews. (265)
Parties to periodic reviews of guardianship orders

Neither the Guardianship and Administration Act 1993 (SA) nor the South Australian Civil and Administrative Tribunal Act (2013) (SA) set out who are the parties to a review. It is the responsibility of SACAT to conduct periodic reviews. (266) The South Australian Civil and Administrative Tribunal Act (2013) (SA) makes it clear that the person under guardianship is a party. This is because the review is an inquiry into "the circumstances" of the person under guardianship. (267) In any event, procedural fairness would require that at least the person under guardianship, their guardian and the administrator of their estate (if any) be notified of the review and be given the opportunity to take part in it.

6.6.9.3 Reviews requesting SACAT to vary or revoke a guardianship order

SACAT is empowered, "on application" to vary or revoke a guardianship order if that is the proper course to take. (268)
Who may request a "vary or revoke" review of a guardianship order?

Because SACAT is an amalgamation of a number of previously separate tribunals, the South Australian Civil and Administrative Tribunal Act (2013) (SA) deals only in general terms with the question of who will be a party to particular proceedings before it. (269) However as already noted in 6. 6. 9. 2, the person the subject of the guardianship order would be a party to any review of that order. (270) On rare occasions they will be the applicant. While guardians would be able to request reviews of the orders appointing them as guardians so would any administrator of the estate of the person the subject of the guardianship order. It is suggested that all the persons entitled under s 33 of the Guardianship and Administration Act 1993 (SA) to make an application for a guardianship order in relation to the person, now the subject of a guardianship order, would, prime facie, be able to request a review of any guardianship order made in relation to that person. However, there could be circumstances in which SACAT may refuse to conduct a requested review on the grounds that the applicant did not a proper interest in the welfare of the person the subject of the application. See also 6.6.2.
Parties to a "vary or revoke" requested review

Section 53 of the South Australian Civil and Administrative Tribunal Act (2013) (SA) makes it clear that the applicant and the person the subject of the order sought to be reviewed would be parties to a requested review of that order. Their guardian and any administrator of the estate of the person the subject of the guardianship order would be most likely to be joined by SACAT as a party to a requested review. Others may need to show SACAT why they should be joined as parties in the circumstances of the particular application.
Powers of the Board when dealing with "vary or revoke" requested reviews

This form of requested review is created by s. 30 of the Guardianship and Administration Act 1993 (SA). When dealing with an application under that section, SACAT is limited to either dismissing the application or varying or revoking the guardianship order. They are not reviews of "the circumstances" of the person the order is about as are the periodic reviews discussed in 6.6.9.2 above. (271)

6.6.10 Orders by SACAT directing that a person be placed and detained in accommodation

With the coming into force of the Advance Care Directives Act 2013 (SA) on 1 July 2014, the then Guardianship Board was empowered to make orders, on application by an "appropriate authority", directing that the person the application is about reside in a specified place or in such a place as the "appropriate authority" thinks fit. As from 29 March 2015 SACAT has been able to make such orders. (272) An "appropriate authority" for a person under guardianship is their guardian. Applications by guardians are dealt with in Chapter 7.

In this chapter we deal only with applications made by an "appropriate authority" who is a person appointed by the person their application is about as a substitute decision-maker under an advance care given by that person. (273) However, the application can be heard at the same time as the substitute decision-maker's application to SACAT to be appointed the person's guardian. (274)

If SACAT is satisfied that if an order were not be made and carried out, the health or safety of the person the application is about or the safety of others would be seriously at risk. If SACAT makes such a finding, then it may, by order:
  1. direct that the person reside;
    1. with a specified person or in a specified place or
    2. with such person or in such place as the appropriate authority from time to time thinks fit.
      1. Under this provision, SACAT may order that the person the subject of an order to reside with the person they usually reside with and in the place they usually reside. Nevertheless, the order may require them to reside in another place or with a person that they do not usually reside with.
  2. authorise the detention of the person in the place in which they are ordered to reside; and
  3. authorise the persons from time to time involved in the care of the person to use such force as may be reasonably necessary for the purpose of ensuring the proper medical or dental treatment, day-to-day care and well-being of the person. (275)
As can be seen these provisions in the Guardianship and Administration Act 1993 (SA) ensure that a person who might be wandering, and because of their dementia, other brain damage or other condition, are unable to find their own way home, can be kept safely in their own home and with those they normally live with or they can be placed in a residential aged care facility or other place where they will be cared for by others and kept in that place. The Act also provides that the person cannot be ordered to reside where people charged with or convicted of offences are detained and that they cannot be detained in a mental health ward. (276)

The section also provides for moving the person to where they are to be kept under the terms of the order and for them to be brought back to that place should they leave it. (277)

6.7 Queensland

6.7.1 Who has jurisdiction to appoint guardians

In Queensland the Queensland Civil and Administrative Tribunal (QCAT) is the appropriate tribunal to apply to for the appointment of a guardian for an adult with impaired capacity for (personal) matters. (278) However, while the the Guardianship and Administration Act 2000 (Qld) is the source of QCAT's guardianship jurisdiction, that Act specifically states that its provisions do not affect the Supreme Court of Queensland's inherent jurisdiction, including its parens patriae jurisdiction. (279) The Act allows the Supreme Court, if it considers it appropriate, to transfer proceedings before it that are within the QCAT's jurisdiction to QCAT and QCAT to transfer proceedings that are within the Court's jurisdiction to the Court. (280)

Note that the Act also provides for either the Supreme Court or the District Court, when sanctioning settlements or damages awards in relation to adults with impaired capacity, to exercise QCAT's powers under Chapter 3 of the Act, including the power to appoint a guardian or an administrator. (281)

In a 2005 case, the mother of a man with an intellectual disability unhappy with a decision of QCAT's predecessor tribunal, the Queensland Guardianship and Administrative Tribunal (QGAAT), sought an order from the Supreme Court, in the exercise of its parens patriae jurisdiction. (282) The order sought from the Court would have cut across the order made by QGAAT to renew the guardianship order in relation to the son, reappointing his father as his guardian for a further five years. Wilson J noted that the parens patriae jurisdiction was to be exercised always with great caution and with the paramount consideration being what was in the best interests of the person the application was about. (283) She dismissed the application pointing out that:

[QCAT] is a specialist tribunal set up to determine issues relating to intellectually disabled adults. In determining an application it is constituted by an experienced lawyer, someone with professional knowledge or experience of persons with impaired capacity, and someone with personal experience of such a person. Proceedings before the Tribunal must be conducted as simply and quickly as the requirements of the Act and an appropriate consideration of the matters before it allow, and it is not bound by the rules of evidence. It can mould its procedures to the demands of a particular case. (284)

We suggest that the views expressed by Wilson J reflect a similar approach to the exercise of a Supreme Court of its parens patriae jurisdiction as did Lindsay J of the NSW Supreme Court in his 2015 decision discussed in 6.3.1 above. (285)

6.7.2 Who may apply for a guardianship order?

Applications may be made to QCAT for guardianship orders in relation to adults, persons 18 years of age or older. In certain circumstances an application and an order may make for a person who is at least 171/2 years of age. The order may commence only when the person reaches 18 years. (286) The following may make an application to QCAT for a guardianship order:
  1. person the application is about,
  2. the Public Guardian, (287)
  3. the Tribunal on its own initiative, and
  4. any other "interested person". (288)
An "interested person" is someone who has a sufficient and continuing interest in the person to justify the interested person in making an application to QCAT for a guardianship order in relation to the person the subject of the application. (289) Whether a person is an "interested person" is a matter the Tribunal may decide, if necessary. (290)

In Queensland the requirements for an application are set out in the Guardianship and Administration Act 2000 (Qld), subject to QCAT directing otherwise. The application must be in writing, signed by the applicant and filed with QCAT. The application must also include the reasons for the application and information about the person the subject of the application, members of their family, their primary carers and relevant others. This information is required so that QCAT can meet its obligation to give notice of the hearing to the relevant people. (291) The application must also include the proposed guardian's written agreement to being appointed. (292)

6.7.3 Who may take part in the hearing?

The Guardianship and Administration Act 2000 (Qld) provides for a range of people who QCAT must give at least seven days' notice of the hearing, wherever practical, but makes a distinction between active parties and others who must be given notice. Those who must be given notice are:
  1. the person the application is about, if they are not the applicant,
  2. the members of that person's family,
  3. any primary carer of that person,
  4. all current guardians, administrators and attorneys for that person,
  5. the Public Guardian,
  6. the Public Trustee, and
  7. anyone else QCAT considers should be given notice. (293)
The Act also requires that notice of the hearing and what it is about must be given, to the person the hearing is about in the way that QCAT considers most appropriate having regard to that person's needs. However, that person's failure to understand the notice does not affect its validity. (294) Also, the giving of notice may be dispensed with, or the period of notice shortened in relation to the person the application is about or anyone else at the direction of QCAT. (295)

The following are "active" parties:
  1. the person the hearing is about,
  2. any other person who is the applicant,
  3. the person proposed for appointment as guardian,
  4. any current guardian,
  5. the Adult Guardian,
  6. the Public Trustee,
  7. any person joined as a party to the proceeding by QCAT. (296)
Active parties may appear in person at QCAT and, with the leave of QCAT, be represented by a lawyer or agent. (297)

6.7.4 What has to be proved before an order can be made?

Before QCAT may, by making a guardianship order, appoint a guardian for the person the hearing is about, it must be satisfied that:
  1. the person the application is about has impaired capacity for the (personal) matter, (298)
  2. there is a need for a decision in relation to that matter or the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to their health, welfare or property, and
  3. without the appointment of a guardian;
    1. the person's needs will not be adequately met, or
    2. the person's interests will not be adequately protected. (299)
If it is satisfied as to these matters QCAT may make a guardianship order for an adult, a person who is 18 years or older. (300)

While QCAT will usually only make orders on the application of an interested person, the Public Guardian or (very rarely) the person the application is about, it may make guardianship orders on its own initiative. (301) However, whenever it uses its own initiative to make an order, QCAT must ensure that it acts in a way that is procedurally fair in the circumstances. Nevertheless, it is the practice of QCAT, relying on its power to make orders on its own initiative, to make guardianship orders when dealing with applications for administration orders (and vice versa) when the need to make such an order becomes apparent at the hearing and the evidence satisfies the criteria for making such an order and the requirements of procedural fairness do not preclude the making of the order given the circumstances of the particular case.

The term "impaired capacity for the matter" reflects the idea that capacity is decision (or "matter") specific. Accordingly, impaired capacity can affect adults over a range from impaired capacity in all decisions and actions to capacity that is impaired in relation to just one matter. However, for most adults who are the subject of applications to QCAT, their capacity is usually substantially impaired, meaning in relation to all matters or at least those matters needing to be addressed at the hearing. Because of that impairment, they are often incapable of either making decisions at all or are at unreasonable risk in relation to their health welfare or property or are unable to adequately protect their own interests. (302)

A person has impaired capacity for a (personal) matter if they are incapable of:
  1. understanding the nature and effect of decisions about the matter,
  2. freely and voluntarily making decisions about the matter and
  3. communicating the decisions in some way. (303)
A personal matter for an adult is defined in the Act as, a matter relating to the adult's care, including the adult's health care, or welfare. The definition offers a wide range of examples. These are:
  1. where they live,
  2. with whom they live,
  3. whether they work and, if so, the kind and place of work and the employer,
  4. what education or training they undertake,
  5. whether they apply for a licence or permit,
  6. day-to-day issues, including their diet and dress,
  7. their health care,
  8. whether to consent to a forensic examination, or
  9. a legal matter not relating to their financial or property matters. (304)
When dealing with an application for a guardianship order and deciding whether or not the criteria for making an order have been met, QCAT must apply the general principles of the Act. (305) These are:
  1. the presumption of capacity,
  2. the right of all adults to the same basic human rights regardless of a particular adult's capacity must be recognised and taken into account.
  3. the importance of empowering an adult to exercise the adult's basic human rights must also be recognised and taken into account,
  4. an adult's right to respect for their human worth and dignity as an individual must be recognised and taken into account,
  5. an adult's right to be a valued member of society must be recognised and taken into account,
  6. the importance of encouraging and supporting an adult to perform social roles valued in society must be taken into account,
  7. the importance of encouraging and supporting an adult to live a life in the general community, and to take part in activities enjoyed by the general community, must be taken into account,
  8. the importance of encouraging and supporting an adult to achieve their maximum physical, social, emotional and intellectual potential, and to become as self-reliant as practicable, must be taken into account,
  9. an adult's right to participate, to the greatest extent practicable, in decisions affecting their life, including the development of policies, programs and services for people with impaired capacity for a matter, must be recognised and taken into account,
  10. the importance of preserving, to the greatest extent practicable, an adult's right to make their own decisions must be taken into account,
  11. an adult must be given any necessary support, and access to information, to enable them adult to participate in decisions affecting their lives,
  12. the adult's views and wishes are to be sought and taken into account to the greatest extent practicable when exercising power for a matter for the adult,
  13. when performing a function or exercising a power under the Act for someone with impaired capacity, the person must do so in the way that is least restrictive of the adult's rights,
  14. the principle of substituted judgment must be used so that if, from the adult's previous actions, it is reasonably practicable to work out what the adult's views and wishes would be, the person in performing a function or exercising a power under the Act must take into account what they consider would be the adult's views and wishes; however, the person performing a function or exercising a power under the Act must do so in a way consistent with the adult's proper care and protection,
  15. the importance of maintaining the person's existing supportive relationships must be taken into account,
  16. the importance of maintaining the person's cultural and linguistic environment, and set of values (including any religious beliefs), must be taken into account. For an adult who is a member of an Aboriginal community or a Torres Strait Islander, this means the importance of maintaining their Aboriginal or Torres Strait Islander cultural and linguistic environment, and set of values (including Aboriginal tradition or Island custom), must be taken into account,
  17. power for a matter should be exercised by a guardian or administrator for an adult in a way that is appropriate to the adult's characteristics and needs, and (18) an adult's right to confidentiality of information about the adult must be recognised and taken into account.

6.7.5 Appointing a guardian

A guardian must be at least 18 years and not a paid carer, or a health provider for the person under guardianship. (306) When deciding whether or not a person was appropriate to appoint as a guardian, QCAT must consider the following matters:
  1. the general principles of the Guardianship and Administration Act 2000 (Qld) and whether the person is likely to apply them;
  2. if the guardian is to be appointed to make decisions about health matters, the health care principle and whether the person is likely to apply it
  3. the extent to which interests the person the hearing is about and those of the proposed guardian are likely to conflict;
  4. whether the person the hearing is about and the proposed guardian are compatible including, for example, whether the proposed guardian has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the person the hearing is about,
  5. if more than one person is to be appointed as guardian, whether the proposed guardians are compatible with one another,
  6. whether the proposed guardian would be available and accessible to the person the hearing is about,
  7. the proposed guardian's appropriateness and competence to perform functions and exercise powers under an appointment order. (307)
The fact the proposed guardian is a relation or a beneficiary of the estate of the person the hearing is about does not, of itself, mean their interests are likely to conflict. (308)

When considering the proposed guardian's appropriateness and competence, QCAT must have regard to:
  1. the nature and circumstances of any criminal history they may have, whether in Queensland or elsewhere, including the likelihood that the commissioning of any such offence may adversely affect the person the hearing is about,
  2. whether in Queensland or elsewhere they had been refused appointment or removed from an appointment, as a guardian, administrator, attorney or other person making a decision for someone else and the nature and circumstances of that refusal or removal. (309)
Guardians have a continuing duty to keep QCAT advised about matters going to their appropriateness and competence to be guardians. (310) QCAT may make its own inquiries into these matters. (311)

The Adult Guardian may also be appointed guardian. (312)

6.7.6 Joint, several, alternative and successive guardians

QCAT may appoint those who meet the criteria for appointment as guardians as joint guardians, as several guardians (with different functions), as alternate guardians and as successive guardians (those whose appointment begins when the appointment of another ends). (313) If it appoints two or more guardians for a person, they will be joint guardians unless QCAT makes it clear in its order that they are to be several or alternative guardians. (314) If there are joint guardians and the appointment of one or more of them comes to an end, the other joint guardians continue to be guardians. (315) However joint guardians should make their decisions together, consult each other and deal with disagreements are set out on the Guardianship and Administration Act 2000 (Qld). (316)

6.7.6.1 How appointments as guardians end

A person's appointment as a guardian ends automatically if they die or if:
  1. the person they are the guardian of dies,
  2. they become a paid carer or health provider for the person under their guardianship,
  3. they becomes the service-provider for a residential service where the adult is a resident; or
  4. if they were married to the person they are guardian of when they were appointed guardian and the marriage is subsequently dissolved. (317)
A person's appointment as a guardian ends if their appointment is revoked by QCAT as a result of a review of the appointment. (318)

A person may withdraw as guardian with the leave of QCAT. (319)

6.7.7 Types of guardianship orders

The Guardianship and Administration Act 2000 (Qld) does not create separate categories of plenary or full guardianship orders under which the guardian has all the functions of a guardian and limited orders under which the guardian may carry out only the functions of a guardian set out in the guardianship order. Instead, it appoints a guardian or guardians to exercise power in relation to one, many or all personal matters in relation to a person who has impaired capacity as to that matter or those matters. (320) However, there are some personal matters that the Act precludes guardians from exercising power in relation to. These are called "special personal matters" and include making or revoking the adult's will, exercising the adult's right to vote and consenting to the adult's marriage. (321) When guardians are given powers in relation to personal matters, they may do anything in relation to those personal matters that the person under guardianship would have been able to if they had had capacity, unless the terms if the order prevent this. (322) While it is possible for QCAT to appoint a guardian to exercise power in relation to all personal matters, except those excluded by operation of the Act, in most cases most guardianship orders are limited to those personal matters that appear to be required and are set out in the order. In addition to these "normal" orders appointing guardians after full hearings, QCAT may appoint guardians under interim orders - see 6. 7. 8.

6.7.8 Interim orders

If QCAT is satisfied, on reasonable grounds, that there is an immediate risk of harm to the health, welfare or property of a person who is the subject of an application to it, that urgent action is required, particularly to protect that person from abuse, exploitation or neglect, QCAT may make an interim order appointing a guardian, for a maximum period of six months, without having to conduct a full hearing, provide notice of the hearing, or otherwise comply with the requirements of the Guardianship and Administration Act 2000 (Qld). (323) The procedure for dealing with applications for interim orders is set out in a Presidential Direction. (324)

In 2012, QCAT pointed out that interim orders appointing decision-makers without a hearing and without notice to the person the subject of the application (the adult) or to persons interested in the adult should be made only when circumstances compel such action. In the absence of evidence that there was an immediate risk of harm to the adult there is no basis to exercise discretion to make an interim appointment. QCAT noted that it had no jurisdiction to make interim appointments to meet the needs of service providers or the convenience of the applicant when there is no established immediate risk of harm to the adult. However in one of the cases, QCAT recognised the merit in expediting a hearing of the applications for the appointment of a guardian and administrator so that the adult could be placed into suitable care after discharge from hospital. (325)

In a 2016 case, QCAT noted that it had jurisdiction to QCAT can to appoint of administrators and guardians under if it were satisfied that the person the subject of the application had impaired decision making capacity, that there were decisions that needed to be made and in the absence of an appointment that the decision making needs of the adult would not be adequately met. QCAT also noted that appointments were made after a hearing by it and that such hearings, usually takes place three or four months after the application was received. In that case GEM's mother applied for an interim order appointing her as a decision-maker for financial and accommodation decisions for her daughter, who had an intellectual impairment. GEM's mother sought these interim appointments so that she could begin the process to move her daughter to supported accommodation. There was no evidence that the necessary transition process would be frustrated or would have to be abandoned if an interim order were not to be made. Consequently there was no reasonable risk of harm to GEM's welfare and QCAT dismissed the application. (326)

In a 1915 case, QCAT made interim guardianship and administration orders in relation to a woman who was unable to make any simple or complex decisions due to her acute medical conditions and delirium as part of her multi-organ dysfunction. There was evidence of a history of her being subjected to financial and psychological abuse from her family. QCAT also found that here was adequate evidence, for the purposes of making an interim order at least, that the woman could not understand information on which personal and financial decisions were based. Due to her serious multi-organ dysfunction, her cognitive functioning and her communication skills were impaired and she could not appreciate consequences of complex decisions about her health care, care and accommodation needs, particularly for facilitating her discharge from hospital. The evidence also established that she could not understand the nature and consequences of financial decisions and that there was an immediate risk of harm to her financial wellbeing. (327)

Also in 2015, QCAT made interim guardianship and administration orders in relation to a 72 year-old man who was a voluntary patient at mental health clinic where he was being treated for recurrent mental illness, but who was about to be discharged and was likely to return to live with his wife. The evidence provided to QCAT stated that he was the subject of domestic violence by his wife, that there was a domestic violence order made against his wife and that he was both fearful of his wife and highly dependent on her. (328)

6.7.9 Entry and removal warrants

The Adult Guardian in Queensland has significant investigative powers, including a power to investigate any complaint or allegation that an adult with impaired capacity "is being or has been neglected, exploited or abused or has inappropriate or inadequate decision-making arrangements". (329) Associated with that power is the right in the Adult Guardian to apply to QCAT for a warrant to enter a place and to remove an adult with impaired capacity from it if the Adult Guardian considers there are reasonable grounds for suspecting there is an immediate risk of harm, because of neglect (including self-neglect), or exploitation or abuse, to the adult. (330) The procedure for making such an application is set out in the Act. (331)

6.7.10 The powers and functions of a guardian

Some of the powers and functions of guardians are set out in the Guardianship and Administration Act 2000 (Qld). (332) Those powers and functions and the common law powers and functions of guardians are dealt with in Chapter 7.

6.7.11 Reviews of guardianship orders

QCAT must review its appointment of a guardian at least every five years. (333)

These are called periodic reviews. However, QCAT may also review its appointment of a guardian on its own initiative (own initiative reviews) or on the application of any of the following (requested reviews):
  1. the person under guardianship,
  2. a person who has sufficient and continuing interest in the person under guardianship, usually a family member or friend, (334)
  3. the Public Trustee,
  4. a trustee company. (335)

6.7.12 Parties to reviews of guardianship orders

The Guardianship and Administration Act 2000 (Qld) specifically authorises QCAT to conduct each review of a guardianship order as it considers appropriate. (336) This allows QCAT to conduct its reviews in a number of different ways, provided they are procedurally fair in the circumstances of the particular case. Usually it conducts a hearing to which the person under guardianship, the guardian, any administrator, family members, carers and others are invited, by notice being given to them. They are given the opportunity to put new information or evidence of changed circumstances before QCAT for it to consider.

6.7.13 Powers of QCAT on review

In a 2015 case, QCAT pointed out in a review of an administration order case that it had to be satisfied that the adult the subject of the hearing (still) had impaired capacity before it could further consider the review of the appointment of an administrator for that adult. This was because QCAT was required to determine capacity as at the date of hearing because the adult the subject of the hearing is presumed to have capacity. (337) In that case QCAT was satisfied that the presumption of capacity was rebutted by the evidence and that JTL still lacked capacity for financial matters. (338) We assume that the JTL case would apply to reviews of guardianship orders however initiated.

QCAT may require the guardian to advise it of anything that the guardian has not previously advised, but which a proposed guardian was required to tell QCAT when it was initially considering whether to appoint that person as guardian. (339)

Having conducted its review, QCAT must revoke the guardianship order unless it is satisfied it would have made an appointment if it had been dealing with a new application for an appointment of a guardian. (340) If is so satisfied, QCAT may either continue or change the order. It may change the order by changing the terms of the appointment, removing a guardian, appointing a new guardian or by changing the order in some other way.

However, QCAT may remove a guardian only if it considers that the guardian is no longer competent because, for example, they have not adequately protected the interests of the person under guardianship, or have neglected their duties or abused their powers either generally or specifically. (341)

QCAT may also give the guardian advice or directions about how they should carry out their duties. (342)

6.8 Western Australia

6.8.1 Who has jurisdiction to appoint guardians?

Under the Supreme Court Act 1935 (WA) the Supreme Court of Western Australia has the same parens patriae jurisdiction as was introduced into the eastern States of Australia by the relevant charters of justice. It is a court of equity, with power and authority within Western Australia and its dependencies to administer justice and "to appoint guardians and committees of the persons and estates of infants, lunatics, and persons of unsound mind according to the order and course observed in England". (343) The Court's inherent jurisdiction, of which the parens patriae jurisdiction is part, is not affected by the Guardianship and Administration Act 1990 (WA) which gives the State Administrative Tribunal (WASAT) its guardianship jurisdiction. (344) While the Supreme Court retains its jurisdiction, most applications for guardianship orders are made to WASAT and WASAT will deal with applications in relation to anyone physically present in Western Australia, even if they are a resident of another part of Australia or another country. (345)

We suggest that the views expressed by Lindsay J of the NSW Supreme Court in his 2015 decision discussed in 6.3.1 above about the parens patriae jurisdiction of a Supreme Court are relevant to the Supreme Court of Western Australia and that the proper approach is for applications for guardianship or administration orders to be made to WASAT, unless there is a particular reason why an application for such an order to be made to the Supreme Court. (346)

WASAT may make guardianship orders for those in need of a guardian who are 18 years and above. (347)

6.8.2 Who may apply for a guardianship order?

Anyone may apply to WASAT for a guardianship order. (348) The person who the application is about must be 18 years or older. (349)

6.8.3 Who may take part in the hearing as a party?

The executive officer of WASAT must give notice of the hearing at least 14 days in advance to the following so that they can attend if they wish:
  1. the applicant,
  2. the person the hearing is about,
  3. their nearest relative,
  4. the Public Advocate,
  5. any proposed guardian or alternate guardian,
  6. the administrator of the estate of the person if an administrator has been appointed, and
  7. any other person who in the opinion of the executive officer has a proper interest in the proceedings. (350)

6.8.4 What has to be proved before an order can be made?

Before WASAT may appoint a guardian for a person, it must be satisfied that the person is:
  1. incapable of looking after their own health and safety,
  2. unable to make reasonable judgments in respect of matters relating to their person, or
  3. in need of oversight, care or control in the interests of their own health and safety or for the protection of others, and
  4. in need of a guardian. (351)
WASAT must then declare that the person the hearing is about is in need of a guardian and also declare which matter or matters listed above of which it is satisfied. (352) WASAT may make the order subject to such conditions and restrictions that it thinks fit. (353)

When dealing with a guardianship application, the primary concern of WASAT is the best interests of the person the application is about. (354) It must also presume that the person the hearing is about is capable of looking after their own health and safety and can make reasonable judgments concerning their person until the contrary is proved to the satisfaction of WASAT.

In addition, WASAT must, as far as it is possible to do so, get the views and wishes of the person the hearing is about. However it can when the application is being dealt with or by gathering those views and wishes from the person's previous actions. (355) In a 2007 case, Jenkins J of the Supreme Court of Western Australia noted that WASAT, in exercising its statutory powers, was required to take into account, as far as possible, the views and wishes of T, the young adult the subject of the application. She said that this was an important aspect of the exercise of those powers because:

No person should be deprived of his or her right and freedom to make decisions about their life without having had the opportunity to be heard. The right to be heard is a fundamental rule of natural justice, which the Tribunal was bound to accord to T. (356)

Jenkins J also noted:

I do not accept that just because a represented person may not be capable of intellectual reasoning, that reasonable steps should not be taken to ascertain his or her views and wishes. In this case, it was important that, as far as possible, T had a voice in the hearing to determine who should be his guardian. I also accept that as T functions on an emotional level, it was relevant for the Tribunal to take into account, if possible, his emotional response to issues related to guardianship, such as where and with whom he would like to live. (357)

While Jenkins J sent the matter back to WASAT for redetermination, she concluded by noting:

In order to assist the Tribunal in that re-determination, nothing I say in these reasons compels the Tribunal to order or obtain an independent assessment of the circumstances of each applicant if, after further enquiry, it is of the opinion that the cost of such an enquiry would outweigh its benefits or if there is good reason why the cost of such an enquiry could not be met from T's estate.

Further, although I am of the view that the Tribunal ought to take further steps to ascertain T's views and wishes, that does not necessarily mean that those views and wishes will be able to be ascertained. (358)

WASAT must not make a guardianship order if the needs of the person the application is about could be met by other means less restrictive of the person's freedom of decision and action. (359) Also, any guardianship order it makes must be in terms that WASAT considers impose the least restrictions possible, in the circumstances of the case, on the person's freedom of decision and action. (360)

In a 2017 case, WASAT considered that maintenance of services to keep a highly independent person at home constituted grounds for a "need for a guardian" for services and accommodation. E was a fiercely independent 49 year old woman battling multiple sclerosis and living in her home with significant support funded through the National Disability Insurance Scheme (NDIS). Neuropsychological deficits causing decision making disabilities put the payment, and therefore continuation, of these services at risk. The applicant (the agency coordinating the services) was of the view that the service provider, the third or fourth agency engaged, was doing a very good job in difficult circumstances in providing care for E. However, this arrangement was in jeopardy and the applicant suggested that E was vulnerable to influence from other less experienced providers through the NDIS process.

WASAT found that E was unable to make reasonable judgments in respect to the provision of services for her to be able to live in her home and was in need of a guardian. (361)

6.8.5 Appointing a guardian

WASAT may appoint as guardians only adults 18 years and above who have consented to being appointed guardian. Before appointing them, WASAT must be of the opinion that they:
  1. will act in the best interests of the person they are appointed guardian for,
  2. are not in a position where their interests conflict or may conflict with the interests of that person, and
  3. are otherwise suitable to act as the guardian of that person. (362)
When deciding whether the person under consideration for appointment as guardian is "otherwise suitable", WASAT shall take into account as far as is possible:
  1. the desirability of preserving existing relationships within the family of the person the application is about,
  2. the compatibility of the proposed guardian with that person and with the administrator, if there is one, of that person's estate,
  3. the wishes of the person the hearing is about, and
  4. whether the proposed guardian will be able to perform the functions to be given to them. (363)
The fact that the proposed guardian is a relative of the person the hearing is about does not, by virtue only of that fact, mean that their interests may or do conflict. Nor does the fact that the proposed guardian is the administrator of the estate of the person disqualify them from being appointed as guardian of that person. (364)

The Public Advocate of Western Australia is statutory guardian in that State and may be appointed as a joint guardian with a private guardian at any time.

However, WASAT cannot appoint the Public Advocate as the sole guardian unless there is no other person who is suitable and willing to act. (365)

6.8.6 Joint, several and alternative guardians

Private guardians may be appointed jointly and the Public Advocate may be appointed as a joint guardian with one or more private guardians. Joint guardians may not perform any of their functions without the concurrence of their co-guardians. (366) While there is no statutory authority to do so in the Guardianship and Administration Act 1990 (WA), there does not seem any reason why WASAT should not be able to appoint one or more guardians for one or more functions and one or more other guardians for one or more other functions, namely "several" guardians.

Alternative guardians may be appointed to take over the functions of the guardian they are appointed as the alternative for upon the death of that guardian. However, the alternate guardian must advise the Public Advocate of the death of the original guardian and the Public Advocate must ensure that an application to review the guardianship order is made as soon as practicable after the death of the original guardian. (367)

6.8.7 Types of guardianship orders

When WASAT makes a guardianship order, it will appoint the guardian or guardians as either plenary or limited guardians.

6.8.7.1 Plenary guardians

Plenary guardians have wide-ranging functions including the functions given, under the Family Court Act 1997 (WA) to a person in a parenting order which allocates parental responsibility for a child or a parenting order which provides that a person is to share parental responsibility for a child, as if the person under guardianship was a child lacking in mature understanding. (368) Such parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children. (369)

Plenary guardians (and limited guardians) in Western Australia, as different from elsewhere in Australia, may be made responsible for the maintenance of those under their guardianship. (370) However, neither they nor limited guardians have the right to chastise or punish those under their guardianship. (371)

6.8.7.2 Limited guardians

Limited guardians have only those powers of a plenary guardian that are given to them by WASAT in the guardianship order appointing them. (372)

6.8.7.3 Temporary orders

WASAT does not have the power to make temporary orders. It makes short orders instead; for example where a guardian may be needed only to make specific decisions and carry out specific actions.

6.8.8 The powers and functions of a guardian

The powers and functions of guardians in Western Australia are dealt with in Chapter 7. (373)

6.8.9 Reviews of guardianship orders

When WASAT makes a guardianship order, it must specify a period, not exceeding five years, within which the order must be reviewed and it must ensure that the order is reviewed accordingly. (374) However, WASAT must also review a guardianship order if the guardian or a joint guardian:
  1. dies,
  2. wishes to be discharged,
  3. has been guilty of such neglect or misconduct or of such default as, in the opinion of WASAT, renders them unfit to continue as guardian,
  4. appears to WASAT to be incapable of carrying out their duties, because of mental or physical incapacity, or
  5. is bankrupt or a person whose property is subject to an order or arrangement under the laws relating to bankruptcy. (375)
Any person may make an application for such a review. (376) They do not have to obtain leave from WASAT to do so.

In addition to these mandatory reviews, WASAT may, at any time, review a guardianship order on the application of:
  1. the Public Advocate,
  2. the person the order is about,
  3. their guardian,
  4. the administrator of their estate, or
  5. a person to whom leave has been granted, with or without conditions, to conduct the review. (377)

6.8.10 Parties to reviews of guardianship orders

As the executive officer of WASAT is required to give those listed below at least 14 days notice of the hearing of any of the three kinds of reviews of guardianship orders set out above, it is reasonable to assume that they are parties to any reviews to which they are given notice:
  1. the applicant where there is one,
  2. the person the order under review is about,
  3. the nearest relative of that person,
  4. the guardian,
  5. if there is one, the administrator of the estate of the person the hearing is about,
  6. the Public Advocate, and
  7. any other person who in the opinion of the executive officer has a sufficient interest in the review. (378)

6.8.11 Powers of WASAT after reviewing a guardianship order

After reviewing a guardianship order, WASAT may, as it considers necessary in the best interests of the person the order is about:
  1. confirm the order,
  2. amend the order so as to make any provision that may be included in a guardianship order,
  3. revoke the order,
  4. revoke the order and substitute another order for it, or
  5. without revoking the order, revoke the appointment of any guardian and appoint a new or additional guardian or appoint an alternate guardian. (379)

6.9 Australian Capital Territory

6.9.1 Who has jurisdiction to appoint guardians?

Miles CJ took the view that the powers given to the Supreme Court of New South Wales to appoint guardians of persons incapable of looking after themselves or their estates were passed on to the Supreme Court of the Australian Capital Territory upon its creation in 1933. (380) He noted that all Imperial Acts in force in the Territory, except those specifically continued, were repealed by the Imperial Acts Application Act (ACT) 1986. However, as section 24 of the Australian Courts Act 1828 (UK) (9 Geo IV c 83) was specifically continued, and provides essentially that all laws and statutes in force in England at the time of the passing of the Act should be applied in the Supreme Court of New South Wales, this continued the jurisdiction given by the Third Charter of Justice. (381) He then said:

Although it is far from clear, I think that the effect of the above is that the inherent power is still available to be exercised pursuant to the provisions in s. 11 of the Guardianship [and Management of Property] Act [1991 (ACT)] and s 20 of the Supreme Court Act 1933 [(ACT)] which states that the Court has "all original and appellate jurisdiction that is necessary to administer justice in the Territory". (382)

Miles CJ had fewer doubts about the exercise of this part of the inherent, parens patriae jurisdiction of the Supreme Court of the Australian Capital Territory in an earlier case. (383)

While the Supreme Court of the Australian Capital Territory continues to have all original and appellate jurisdiction that is necessary to administer justice in the Territory, it is not bound to exercise its powers if its jurisdiction is concurrent with another court or tribunal. (384) We suggest that the views expressed by Lindsay J of the NSW Supreme Court in his 2015 decision discussed in 6. 3. 1 above about the parens patriae jurisdiction of a Supreme Court are relevant to the Supreme Court of the Australian Capital Territory and that the proper approach is for applications for the appointment of a guardian or manager to be made to ACAT, unless there is a particular reason why an application for such an order to be made to the Supreme Court. (385)

Consequently since February 2009, the appropriate place to apply for a guardianship order is the ACT Civil and Administrative Tribunal (ACAT). ACAT can appoint guardians for adults, namely persons 18 years of age or older. ACAT may also appoint guardians for persons less than 18 years of age, but such appointments do not take effect until the person turns 18. (386)

6.9.2 Who may apply for a guardianship order?

The Guardianship and Management of Property Act 1991 (ACT) does not set out who may apply for a guardianship order and the ACT Civil and Administrative Tribunal Act 2008 (ACT) appears to allow that any person may apply to ACAT for a guardianship order in relation to themselves or another person. (387) That Act requires ACAT to "observe natural justice and procedural fairness". (388) While the Act allows ACAT to decide its own procedure in a particular matter if the Act does not set down the procedure to be followed, it also requires the procedures of ACAT to be simple, quick, inexpensive and informal "as is consistent with achieving justice". (389)

It is suggested that for ACAT to be procedurally fair and still meet its obligations about efficiency, that it allow applications for guardianship orders to be made to it only by those genuinely concerned about the welfare of a person with impaired decision-making ability. These will usually be family members or friends of the person, but applications also sometimes need to be made by mental health and disability workers or by members of Aged Care Assessment Teams, treating doctors or others. At other times it will be appropriate for the Public Trustee and Guardian to be approached to make the application. In emergency situations, the Public Trustee and Guardian will usually apply as only the Public Trustee and Guardian can be appointed as a person's guardian in emergency circumstances. (390)

It should be noted that the Public Advocate had functions that included being appointed guardian for persons ACAT considered need to have guardians appointed for them. However as from 1 April 2016, the role of the Public Advocate has been changed. That person is now a member of the ACT Human Rights Commission with functions including advocating for the rights of people with a disability and promoting the protection of people with a disability from abuse and exploitation. It is in relation to that later role that the Public Advocates makes occasional applications to ACT to exercise its guardianship jurisdiction.

Whoever makes the application must make it on the approved form. (391)

6.9.3 Who may take part in the hearing as a party?

The ACT Civil and Administrative Tribunal Act 2008 (ACT) states that parties to applications are the applicant and respondent, unless the authorising law provides otherwise. (392) The authorising law, the Guardianship and Management of Property Act 1991 (ACT), provides that notice of hearing must, as far as practicable, be given to the following:
  1. the person the hearing is about,
  2. their domestic partner, parents, brothers and sister, (393)
  3. each child of the person the hearing is about,
  4. if the person has a carer who would not otherwise be given notice of the hearing under this section - the carer; and
  5. if the person has a guardian - the guardian; and
  6. if there is a manager of the property of the person the hearing is about - the manager; and
  7. Public Trustee and Guardian. (394)
In particular cases procedural fairness may require that others be given notice of the hearing because their interests may be affected. All attending a hearing are entitled to be represented by a lawyer or an agent. (395)

In practice staff of the Public Trustee and Guardian attend hearings relating to guardianship and administration matters before ACAT more rarely, do they engage a lawyer to represent the person the hearing is about.

6.9.4 What has to be proved before an order may be made?

Before ACAT may make a guardianship order, it must hold a hearing and be satisfied by the evidence that:

  1. the person the hearing is about has "impaired decision-making ability in relation to a matter relating to" their health or welfare;
  2. while the person has the impaired decision-making ability there is, or is likely to be, a need for a decision in relation to the matter that they have impaired decision-making ability in relation to; or the person is likely to do something in relation to that matter that involves, or is likely to involve, unreasonable risk to the person's health, welfare or property; and
  3. if a guardian is not appointed the person's needs will not be met; or the person's interests will be significantly adversely affected. (396)

A person has impaired decision-making ability if their decision-making ability is impaired because of a physical, mental, psychological or intellectual condition or state, whether or not that condition or state is a diagnosable illness. (397) However, a person must not be taken to have a physical, mental, psychological or intellectual condition only because they:

  1. are eccentric;
  2. do or do not express a particular political or religious opinion;
  3. are of a particular sexual orientation or expresses a particular sexual preference;
  4. engage or have engaged in illegal or immoral conduct; or
  5. take or have taken drugs, including alcohol. (Nevertheless, any effects of a drug may be taken into account). (398)

The Guardianship and Management of Property Act 1991(ACT) defines a person's "interests" to include the following:

  1. protection of the person from physical or mental harm,
  2. prevention of the physical or mental deterioration of the person,
  3. the ability of the person to--
    1. look after themselves, and
    2. live in the general community, and
    3. take part in community activities, and
    4. maintain their preferred lifestyle (other than any part of the person's preferred lifestyle that is harmful to the person),
  4. promotion of the person's financial security,
  5. preventing the wasting of the person's financial resources, and
  6. preventing the person becoming destitute. (399)

If these and the other relevant interests of the person the hearing is about are likely to be significantly adversely affected, ACAT may make a guardianship order in relation to them if the other criteria for making an order are met.

If satisfied as to the three matters set out at the beginning of 6. 9. 4 namely that:

  1. the person the hearing is about has impaired decision-making ability in relation to a matter relating to their health or welfare, and
  2. there is a need to make a decision about that matter, and
  3. if a guardian is not appointed, the person's needs will not be met or their interests will be significantly adversely affected,
ACAT may, appoint a guardian for the person, with the powers that ACAT is satisfied are necessary or desirable to make decisions for the person in accordance with the decision-making principles. (400) In addition, the powers that ACAT gives to a person's guardian are to be no more restrictive of the person's freedom of decision and action than is necessary to achieve the purpose of the guardianship order. (401)

6.9.5 Appointing a guardian

ACAT can appoint either private persons who are 18 year and above or the Public Trustee and Guardian as guardians. (402) While the Public Trustee and Guardian has a discretion to decline to accept, or accept subject to conditions that the Public Trustee and Guardian thinks fit, the Public Trustee and Guardian does not exercise that discretion. (403)

A private person may be appointed as a guardian only if ACAT is satisfied that the person will follow the decision-making principles and are otherwise suitable for appointment. (404) When deciding whether a potential guardian will do this, ACAT must take into account at least the following:

  1. the views and wishes of the person for whom a guardian is to be appointed,
  2. the desirability of preserving existing family relationships,
  3. whether the potential guardian and the person the hearing is about are compatible,
  4. whether the proposed guardian lives in the ACT,
  5. whether the proposed guardian will be available and accessible to the person the hearing is about; and
  6. the nature of the functions to be exercised under the order and whether the proposed guardian is competent to exercise them; and
  7. whether the interests and duties of the proposed guardian are likely to conflict with the interests of the person the hearing is about to the detriment of those interests. With regard to this matter, the interests and duties of the domestic partner or a relative of a person must not be taken to be likely to conflict with the interests of the person the hearing is about only because of the fact of being the domestic partner or relative. (405)
The Public Trustee and Guardian does not have to satisfy ACAT as to these matters before appointment as a guardian. (406) However, the Public Trustee and Guardian must not be appointed as a person's if an individual who is otherwise suitable has consented to be appointed. (407) The private person's suitability for appointment arises out of ACAT's satisfaction as to the matters set out in s. 10 of the Guardianship and Administration of Property Act 1991 (ACT).

ACAT must not appoint a private person as a person's guardian unless the private person consents in writing to the appointment and has informed ACAT, on oath, whether they:

  1. have been convicted or found guilty of an offence involving violence, fraud or dishonesty,
  2. have been, either in the ACT or elsewhere, refused appointment as a guardian or manager, or removed from office as a guardian or manager; or
  3. are bankrupt or have executed a personal insolvency agreement (and, if so, has given particulars to ACAT). (408)

6.9.6 Joint, several and replacement guardians

Private persons may be appointed as joint guardians. (409) If one of the joint guardians dies, becomes incapable, resigns or otherwise ceases to be a guardian, the remaining guardians continue and the guardianship order continues to operate. (410) There is nothing in the Act to preclude ACAT appointing one or more guardians as "several" guardians with separate powers and duties.

There is no specific statutory provision for the appointment of replacement guardians, ACAT has power to do so as it is required to conduct a review of a guardianship order where "under the order of appointment" someone else becomes the replacement guardian. (411)

6.9.7 Types of guardianship orders

The Guardianship and Management of Property Act 1991 (ACT) does not make a distinction between plenary (full) and limited orders. It sets out some of the functions of guardians and some of the matters that are outside the powers or functions of guardians to make decisions about. (412) In addition, as already noted, ACAT is limited to giving to guardians only those functions that are no more restrictive of the freedom of decision and action of the person under guardianship than is necessary to achieve the purpose of the guardianship order. (413) Nevertheless, many of the orders made by ACAT are plenary in effect on the grounds that it may not be possible to predict with accuracy the decision-making functions the guardian may need.

Acknowledging that capacity is task or domain-specific, that it cannot be extrapolated from one capacity task to another, and that it may fluctuate, in 2015 ACAT found in relation to ER, a 52 year old woman with mild to moderate intellectual disability and Bipolar Disorder:

appointing a guardian for particular decisions under the Guardianship and Administration of Property Act 1991 (ACT) does not oust her liberty to make other decisions". (414)

Additionally, noting that ER benefited from decision making supports, ACAT concluded:

appointment of a guardian does mean not of itself mean that ER cannot give lawful consent to psychiatric treatment from time to time. (415)

ACAT noted that this finding was consistent with the UNCRPD and with its obligation to interpret the Guardianship and Administration of Property Act 1991 (ACT)in accordance with the right to liberty and security under s. 18 of the Human Rights Act 2004 (ACT). (416)

6.9.8 Emergency orders

ACAT can make emergency guardianship orders, lasting no longer than 10 days, appointing the Public Trustee and Guardian as a person's guardian without holding a normal hearing if ACAT is satisfied that there are special circumstances of urgency that make it proper to do so. (417) Examples of situations in which such orders are made include where substitute consent is required for medical treatment or where there is a need for a litigation guardian to be appointed.

The question of the degree of proof required in relation to whether the person the hearing is about first has impaired decision-making ability in relation to a matter concerning their health or welfare, second whether there is a need to make a decision about that matter, and third, if a guardian is not appointed, the person's needs will not be met or their interests will be significantly adversely affected, has not been resolved in relation to emergency guardianship orders. There is no indication in the legislation that it should be any less than proof on the civil standard of the balance of probabilities. In any event, as the application is usually made by the Public Trustee and Guardian, it is accompanied by one or more doctor's reports about the person's decision-making ability and information, albeit often hearsay, about the other matters that ACAT has to be satisfied about, the information before ACAT usually meets the standard of proof required.

6.9.9 Removal orders

ACAT may in carefully circumscribed circumstances issue a warrant authorising the Public Advocate, with the police officers that may be required, and using only the force that is necessary and reasonable, to enter that place and remove a person. (418)

First, this part of ACAT's jurisdiction may be exercised by ACAT's Presidential or Deputy President or a Supreme Court Judge or a magistrate. Second, they may act only on the written application of the Public Advocate. This application must be accompanied by a statement setting out the information in support of the application. If it is impracticable for the Public Advocate to apply in writing, the application may be made by telephone or other appropriate means. Thirdly, before ACAT, Judge or magistrate may issue the warrant, they must be satisfied that grounds exist for the appointment of a guardian, and that the person is:

  1. because of a physical, mental, psychological or intellectual condition, likely to suffer serious damage to their physical, mental or emotional health if not removed from a particular place, or
  2. being unlawfully detained in a particular place.

All information given to ACAT, whether oral or in writing, in support of the application must be given on oath. A warrant lasting no more than 14 days may be issued as a result of the hearing. It must specify:

  1. the purpose for which it is issued,
  2. the person whose removal it authorises,
  3. the place from which that removal is authorised,
  4. particular hours during which the removal is authorised or that removal is authorised at any time of the day or night and
  5. the date when it ceases to have effect. (419)

6.9.10 Directions, advice or opinion to guardians by ACAT

ACAT may give a guardian directions, advice or an opinion about the exercise of their functions or powers under a guardianship order if they apply to ACAT for such directions, advice or opinion. (420)

6.9.11 Powers and functions of a guardian

The Guardianship and Management of Property Act 1991 (ACT) provides that the powers (in other jurisdictions called functions) that may be given to a guardian include the following:

  1. to decide where, and with whom, the person under guardianship is to live,
  2. to decide what education or training they are is to receive,
  3. to decide whether they are to be allowed to work,
  4. if the person under guardianship is to be allowed to work - to decide the nature of the work, the place of employment and the employer;
  5. to give or refuse consent on their behalf for a medical procedure or other treatment (other than a prescribed medical procedure);
  6. to bring or continue legal proceedings for or in the name of the person under guardianship. (421)

Whether guardians elsewhere in Australia have this last function may be open to debate because it involves taking actions and making decisions that have financial implications for the person under guardianship and consequently could be seen as matters for an administrator. The other functions mentioned are common ones for guardians. However, these matters are dealt with in more detail in Chapter 7.

The Guardianship and Management of Property Act 1991 (ACT) also provides that a guardian may not discipline the person under guardianship nor may they do any of the following things for the person under guardianship:

  1. vote in an election,
  2. make a will or other testamentary instrument,
  3. consent to the adoption of a child,
  4. give a consent to a marriage, or
  5. give a consent required for a prescribed medical procedure for the person under guardianship. (422)

To carry out any of these functions, other than the last one, may be seen as too personal a matter for a guardian to do elsewhere in Australia. Again, these matters are dealt with in more detail in Chapter 7.

The Guardianship and Management of Property Act 1991 (ACT) provides for a set of decision-making principles that require a guardian to exercise "substituted judgment", that is to make decisions for the person under guardianship according to their wishes wherever those wishes can be worked out, unless making the decision in accordance with those wishes is likely to significantly adversely affect the of the person under guardianship. Nevertheless, even if giving effect to those wishes is likely to significantly adversely affect the interests of the person under guardianship, the guardian must give effect to those wishes as far as possible without significantly adversely affecting the interests of the person under guardianship. (423)

It is the obligation of a guardian, if the wishes of the person under guardianship cannot be given effect to at all, to promote the interests of the person under guardianship when making decisions for them while, at the same time:

  1. interfering with the life and lifestyle of the person under guardianship to the smallest extent necessary,
  2. encouraging them to look after themselves as far as possible, and
  3. encouraging them to live in the general community, and take part in community activities, as far as possible. (424)

Furthermore, before making a decision, the guardian is required to consult with the each carer of the person under guardianship, unless to do so would, in the guardian's opinion, adversely affect the interests of the person under guardianship. (425)

6.9.12 Reviews of guardianship orders

When ACAT appoints a guardian, the appointment continues until:
  1. the death of the person under guardianship, (426) 1 ACAT removes the guardian if ACAT is satisfied that the guardian is no longer suitable, competent, has neglected to perform the duties and functions of guardian, or has contravened a particular provision of the Guardianship and Management of Property Act 1991 (ACT), (427) 1 the guardian resigns in writing addressed to the ACAT. (428)

Nevertheless, ACAT must hold a review of each guardianship order at least once every three years to see whether the order should be:
  1. varied,
  2. revoked on the ground that it is no longer needed, or
  3. whether the guardian should be removed. (429)

In there is an on-going need for the guardianship order, and no apparent dispute about that fact, the review will usually be conducted "on the papers" without a full hearing.

Reviews may also be held as a result of an application or on ACAT's own initiative. (430) Reviews must also be held if the guardian dies or a replacement guardian, provided for in the guardianship order, becomes the guardian. (431) In the past guardians have been encouraged to ask for a review the guardianship order if they believe that there is no longer a need for guardianship. The person under guardianship or other interested persons can also request a review if they believe that guardianship is no longer necessary. For these kinds of reviews, ACAT will hold a hearing and will revoke the order if satisfied, after applying the policy of least restrictive alternative underlying the Act, that it is no longer needed. (432)

6.9.13 Parties to and procedures for, reviews of guardianship orders

ACAT will conduct either hearing "on the papers" or a full hearing to review a guardianship order. It is suggested that those entitled to receive notice of and attend such hearings are the same as those entitled to notice of and attendance at the hearing of an application for a guardianship order.

6.10 Northern Territory

6.10.1 Who has jurisdiction to appoint guardians?

The Guardianship of Adults Act (NT), which commenced on 28 July 2016, empowers the Northern Territory Civil and Administrative Tribunal (NTCAT) to make guardianship orders. (433) That Act does not specifically deal with the parens patriae jurisdiction of the Supreme Court of the Northern Territory, which that Court inherited from the Supreme Court of South Australia when the Northern Territory became a territory of the Commonwealth of Australia in 1911. (434)

A party to a proceeding before NTCAT may appeal against a decision made by it to the Supreme Court. Such decisions include decisions made by it in the exercise of jurisdiction given to it by the Guardianship of Adults Act (NT). However, such an appeal may only be on a question of law and only with the leave of the Court. (435)

In addition, and consistent with the situation in New South Wales for example, NTCAT may refer a matter to the Supreme Court if it is satisfied that, because of the circumstances of the case, the proceeding would be more appropriately heard by the Supreme Court. (436) Similarly, the Supreme Court may transfer proceedings before it to NTCAT. (437) These provisions allow for guardianship matters to be dealt with in the appropriate forum. In most situations that will be NTCAT. However sometimes may be more appropriate that the Court make the order rather than transfer the matter to NTCAT. A range of situations may make this course of action appropriate. For example, the fact situation in which the application for a guardianship order arises may involve other matters that require orders which are beyond the jurisdiction of NTCAT to make. Also, it may be convenient, after the Court has awarded substantial damages to a person with clearly impaired decision-making capacity for financial matters, to appoint a person with powers equivalent to those that NTCAT may give to guardians for financial matters. Occasionally there may be an application made to NTCAT should be transferred to the Supreme Court because of similar considerations as set out in the last sentence. Also the matter may involve a question of law that may best be resolved by an early decision by a Supreme Court judge.

We suggest that the Northern Territory Supreme Court has not lost its parens patriae jurisdiction as a result of the enactment of the Guardianship of Adults Act (NT) the Advance Personal Planning Act (NT) and the Northern Territory Civil and Administrative Tribunal Act (NT), but that the appropriate course is to adopt the position and views of Lindsay J of the New South Wales Supreme Court set out above at 6.2 and 6.3.1.

Consistent with the practice in the States and the Australian Capital Territory, the overwhelming majority of application for guardianship orders in the Northern Territory will be made to NTCAT.

6.10.2 Who may apply for a guardianship order?

The Guardianship of Adults Act (NT) provides that applications may be made to NTCAT for it to appoint guardians for adults. In the Northern Territory, an adult is a person who is, "at least 18 years old". (438) The following may make an application to NTCAT:
  1. an adult may make an application on their own behalf however the applicant will usually be;
  2. an "interested person for the adult". These are:
    1. a relative of the adult; (439)
    2. a guardian for the adult;
    3. the Public Guardian;
    4. the Public Trustee;
    5. an agent for the adult; (440)
    6. a person who is primarily responsible for providing support or care to the adult;
    7. any other person who has a genuine and sufficient interest in protecting the adult's best interests (as determined by NTCAT). (441)

More than a quarter of the population of the Northern Territory are aboriginal people. Consequently, there is an obvious need to have regard to different kinds of kinship groups and to the responsibilities recognised in custom that may fall on those who have certain relationships with adults with decision-making disabilities. This is taken into account in the definition of "relative" in the Act. See s. 7(1)(j) and also s. 7(2) which are set out in the relevant footnote.

6.10.3 Who may take part in the hearing?

It should be noted that proceedings in NTCAT under the Guardianship of Adults Act 2016 (NT) are not open to the public. (442) However the following may attend the hearing:
  1. the applicant; (443)
  2. the adult to whom the proceedings relate;
  3. any guardian or proposed guardian for that adult;
  4. the Public Guardian; (444)
  5. a person joined in a proceeding by order of NTCAT; or
  6. a person lawfully intervening in a proceeding; or
  7. a litigation guardian appointed by the Tribunal; or
  8. any other person specified in the Northern Territory Civil and Administrative Tribunal Act (NT) or the relevant Act to be a party to a proceeding. (445)

These provisions are very restrictive in relation to who may attend guardianship hearings. However, it should be noted that the Northern Territory Civil and Administrative Tribunal Act (NT) provides that NTCAT may order that a person be joined as a party to a proceeding if NTCAT considers that:

  1. the person should be bound by, or have the benefit of, a decision made by it in the proceeding; or
  2. the person's interests are affected by the proceeding; or
  3. it is desirable for any other reason for the person to be a party.

It should also be noted that NTCAT may make such orders on the application of any person or on its own initiative and without the person whom it is proposed to join being heard on the matter. (446)

We suggest that this provision of the Northern Territory Civil and Administrative Tribunal Act (NT) in a way that shows an appreciation that it is desirable in some, if not many, guardianship hearings that it is important for the comfort and well-being of the person the hearing is about that people they know and are comfortable with attend the hearing. These may be family and persons related to the person the application is about in accordance with customary law or tradition, but they may also be friends, neighbours or service providers. Also it will, on many occasions, be important in terms of emotional as well as personal and financial interests of family and friends that they attend the hearing.

In addition, it will be important for family and persons related to the person the application is about in accordance with customary law or tradition, friends, neighbours and service providers to attend the hearing in order to know what orders were made and why they have been made as NTCAT may give its reasons orally to the parties to the hearing. (447)

6.10.4 What has to be proved before an order can be made?

NTCAT may make a guardianship order for an adult if it is satisfied that:
  1. the adult has impaired decision-making capacity; and
  2. 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; and
  3. the adult is in need of a guardian for some or all of those matters. (448)

6.10.4.1 Test for decision-making capacity/incapacity in the Northern Territory

In the Northern Territory there is a test for decision-making capacity and, consistent with the common law, an adult is presumed to have decision-making capacity until the contrary is shown. (449) The test for decision-making capacity is a legislative restatement of the commonly used way of assessing the ability to make a particular decision - namely the adult has the capacity to:
  1. understand and retain information about the adult's personal matters and financial matters; and
  2. weigh the information in order to make reasoned and informed decisions about those matters; and
  3. communicate those decisions in some way.

This formulation of the test leaves open the issue about how long a person must retain information about personal or financial matters. Some personal and financial matters need to be explained to the person before they make a decision about the matter. How long do they need to retain the decision - long enough to make the decision or longer? Usually the standard is that information needs to be long enough for the decision to be made. Because we know that consistency is a hallmark of decision making capacity, in some situations the person needs to retain the information so that they can recall the decision and the reasons why they made it.

Having said that, upholding CRPD principles of maximising autonomy and providing supported decision making where possible, it would be optimal if the person could be allowed to make decisions that were acted upon or at least supported for the moments - albeit brief - that they did have capacity. A clinical example might be an elderly woman with dementia recently admitted to an acute hospital for the third time for dehydration and neglect who refuses to go to a nursing home. On one occasion, during quiet discussion with her family and the social worker, she is able to articulate that she is frightened of what will happen to her if she goes home because she is sick. Capturing and respecting this moment of capacity is far preferable than appointing a substitute decision-maker.

The Act goes on to note that an adult's decision-making capacity may be impaired even if:
  1. the impairment is episodic and from time to time the adult's decision-making capacity is not impaired; or
  2. the adult's decision-making capacity for some personal matters or financial matters is not impaired; or
  3. the extent of impairment varies from time to time or depending on circumstances. (450)

We note that this provision in the Guardianship of Adults Act (NT) is drafted in such a way that "even if" one or more of the circumstances just set out exists, it does not follow that the person's decision-making capacity was impaired at the time a particular decision was made or that the person has impaired decision-making incapacity requiring the appointment of a guardian. This is because the person is presumed to have decision-making incapacity until the contrary is shown. (451) Also, the underlying policy of the not only of the Guardianship of Adults Act (NT) but also the Advance Personal Planning Act (NT) is to maintain an adult person's autonomy wherever possible. Consequently, care needs to be taken about this element of the test when the question to be determined is whether or not the person has impaired capacity for personal or financial matters.

Another safeguard of autonomy where an adult's impairment is episodic due to a mental condition is to encourage that person to make an advance personal plan under the Advance Personal Planning Act (NT) and set out in that plan advance consent decisions about future health care action and advance care statements setting out their views, wishes and beliefs as the basis on which they want others to act if they make decisions for them. And also if such adults have someone they trust, to appoint that person as their decision maker in their plan so that that trusted person can make decisions for them in relation to personal and financial matters. (452)

We also suggest that this approach may be appropriate in some situations in which the adult has capacity for decision-making in relation to some personal matters or financial matters and not others. Of course the decision-making capacity that the person had would have to extend to making an advance personal plan.

The Guardianship of Adults Act (NT) also notes that an adult does not have impaired decision-making capacity only because the adult:
  1. has a disability, illness or other medical condition (whether physical or mental); or
  2. engages in unconventional behaviour or other forms of personal expression; or
  3. chooses a living environment or lifestyle with which other people do not agree; or
  4. makes decisions with which other people do not agree; or
  5. does not speak English to a particular standard or at all; or
  6. does not have a particular level of literacy or education; or
  7. engages in particular cultural or religious practices; or
  8. does or does not express a particular religious, political or moral opinion; or
  9. is of a particular sexual orientation or gender identity or expresses particular sexual preferences; or
  10. takes or has taken, or is or has been dependent on, alcohol or drugs (but the effect of alcohol or drugs may be taken into account); or
  11. engages or has engaged in illegal or immoral conduct. (453)

Before NTCAT may appoint a guardian for an adult, it must hold a hearing and be satisfied that:

  1. the person the application is about has impaired decision-making capacity; and
  2. the effect of the impairment is that, for some or all personal matters or financial matters, the person is unable to exercise decision-making capacity; and
  3. the person is in need of a guardian for some or all of those matters. (454)

6.10.4.2 Person in need of a guardian - matters to be taken into account

There are a number of matters NTCAT must take account of when deciding whether or not a person is in need of a guardian. It should also be held in mind that in the Northern Territory guardians can be appointed for both personal matters (a role given to guardians in the States and the ACT) or for financial matters (a role given to administrators, managers or financial managers in the States and the ACT). The matters NTCAT must take into account are:
  1. the nature and extent of the impairment of the person's decision-making capacity. This includes whether the impairment is continuous or episodic; whether the impairment is likely to be permanent or, if not, the likely duration of the impairment; and the matters for which the adult's decision-making capacity; is impaired; (455)
  2. whether the person already has an agent with authority for the matters for which the adult's decision-making capacity is impaired. In this context an agent includes an existing guardian for the person the subject of the application, a decision maker they have appointed under an advance personal plan made under the Advance Personal Planning Act (NT), the person they have appointed as attorney under an enduring power of attorney and any other person who has lawful authority to make decisions for the person about personal matters or financial matters; (456)
  3. any views and wishes stated by an interested person for the adult;
  4. the desirability of preserving existing family relationships and other relationships that are important to the person the subject of the order.
  5. whether the person the subject of the order's needs could be adequately provided for in a way that is less restrictive of the adult's freedom of decision and action than appointing a guardian. (457)

6.10.4.3 The guardianship principles

In addition to taking these matters into account, NTCAT is required, when exercising its jurisdiction under the Guardianship of Adults Act 2016 (NT), to act in accordance with the guardianship principles. (458)

This means that NTCAT must exercise its authority in the way that it reasonably believes is in the best interests of the person the subject of the application for a guardianship order. In determining that person's best interests, NTCAT must:

  1. seek to obtain the person's current views and wishes, as far as it is practicable to do so; and
  2. take into account all relevant considerations; and
  3. weigh up the relevant considerations, giving each of them the weight that NTCAT, as a decision maker reasonably believes is appropriate in the circumstances of the particular application for a guardianship order. (459)

The Act gives guidance as to how to determine what is appropriate in the circumstances. It requires NCAT to exercise its decision-making authority in a way that:

  1. is the least restrictive of the freedom of decision and action of the person the guardianship application is about as is practicable; and
  2. provides that person with as much support as is practicable to make their own decisions. (460)

To assist NTCAT and other decision-makers to take all relevant considerations into account, the Act provides a list a non-exclusive list of "relevant considerations". These are:

  1. the current views and wishes and previously stated views and wishes of the person the guardianship application is about;
  2. any views and wishes stated by an interested person for the person the guardianship application is about;
  3. maintenance of the adult's freedom of decision and action to the greatest extent practicable of the person the guardianship application is about;
  4. the ability of the person the guardianship application is about to be as independent as is practicable;
  5. protection of the person the guardianship application is about from harm, neglect, abuse and exploitation;
  6. the provision to the person the guardianship application is about of appropriate care, including health care;
  7. promotion of the person the guardianship application is about 's happiness, enjoyment of life and wellbeing;
  8. the ability of the person the guardianship application is about to achieve their maximum physical, social, emotional and intellectual potential;
  9. the ability of the person the guardianship application is about to live in the general community and take part in community activities;
  10. maintenance of the person the guardianship application is about 's right to be treated with dignity and respect;
  11. the ability of the person the guardianship application is about to maintain their preferred living environment and lifestyle;
  12. maintenance or creation of a support network for the person the guardianship application is about;
  13. protection of the person the guardianship application is about 's property and financial resources from loss, damage or misuse;
  14. protection of the person the guardianship application is about 's right to confidentiality of information about them. (461)

The Act also notes that NTCAT's exercise of its authority in the way that it reasonably believes is in the best interests of the person the subject of the application does not prevent it, NTCAT, from exercising its authority under the Act in a way that may also be beneficial to another person if:

  1. the benefit to the other person is of a kind that NTCAT must exercise its authority in the way that it reasonably believes is in the best interests of the person the subject of the application for a guardianship order;
    1. provided when they had decision-making capacity for the matter; or
    2. might reasonably be expected to provide; and
    3. the benefit being provided to the other person was reasonable in the circumstances; and would not significantly adversely affect person the subject of the application 's best interests. (462)

However, the Act goes on to note, giving effect to a key policy underlying both the Guardianship of Adults Act 2016 (NT) and the Advance Personal Planning Act (NT), that if the person the subject of the application has made an advance personal plan that contained an advance care statement, NTCAT is required to exercise the decision-making powers under the Guardianship of Adults Act 2016 (NT) so as to give effect to the statement even if doing so is not in the person's best interests. This is to be the case unless either the person the subject of the application, having capacity to do so, stated that they did not want that statement to be given effect to or circumstances related to the exercise of substituted judgment set out in s. 23(2)(a) to (e) of the Advance Personal Planning Act (NT) were in existence. (463)

6.10.5 Appointing a guardian for personal matters

In this chapter, from now on at least, we are dealing with guardians appointed for personal matters; or if appointed for financial matters as well, in relation to their role as guardian for personal matters. (464)

NTCAT may appoint as a guardian a person who is 18 years or above, who consents to act as guardian and who is eligible for appointment because they meet the requirements for appointment set out below. NTCAT may appoint the Public Guardian but only if there is no individual eligible for appointment in terms of the requirements set out below. (465)

The Public Trustee may also be appointed as a guardian by NTCAT, but, like the Public Guardian, but only if there is no individual eligible for appointment in terms of the requirements set out below, the authority of the Public Trustee under the order is limited to financial matters; and the Public Trustee agrees to the appointment. (466)

Note that under the Guardianship of Adults Act 2016 (NT), the Public Trustee may be appointed guardian only for financial matters, and has a discretion to refuse appointment, the Public Guardian must accept any appointment of guardian either personal or financial matters or both. Note also that both the Public Guardian and the Public Trustee may be appointed as a joint or several guardian with private guardians. (467)

When deciding whether the person is suitable to act as guardian of the person under guardianship, NTCAT must take the following into account:
  1. whether they are likely to comply with the Act;
  2. their ability to properly exercise the authority of a guardian;
  3. the views and wishes of the person under guardianship;
  4. the desirability of preserving any existing support network for the person under guardianship;
  5. their compatibility of the individual with:
    1. the person under guardianship; and
    2. any other person also proposed to be appointed as a guardian for the person under guardianship; and
    3. any other agent for the person under guardianship - namely another guardian appointed by NTCAT, a decision maker appointed by the person under guardianship in their advance personal plan (if any) or an attorney under any enduring power of attorney made by the person under guardianship; (468)
  6. their availability and accessibility to the person under guardianship and to other interested persons for the person under guardianship;
  7. whether they have, or have had, a professional relationship with the person under guardianship, the nature of that relationship and whether it is appropriate for an individual with that relationship to be the guardian of the person under guardianship; (469)
  8. the extent to which their interests are likely to conflict with the interests of the person under guardianship;
  9. their history and experience as a guardian or in a similar role in the Northern Territory or elsewhere;
  10. if it is proposed that they will have authority for financial matters - their individual's bankruptcy history (if any); (k) their criminal history (if any) in the Territory or elsewhere;
  11. any other matter NTCAT considers relevant. (470)

It is also important to appreciate that NTCAT when deciding, first whether or not to appoint a guardian, second who that guardian should be and third what personal (or financial) matters they should have authority in relation to, must determine those questions in accordance with the guardianship principles set out in the Act. (471) Those principles are set out in 6.10.5, above.

6.10.6 Joint and several guardians, the restrictions and requirements that may be imposed on them and directions that may be imposed on them

As noted in 6. 10. 5, above, NTCAT may appoint more than one guardian for a person it makes a guardianship order for if it considers it appropriate to do so. It may appoint the guardians as joint, having both or all to make and agree with the decision, unless they are appointed as several or joint and several guardians. (472) If guardians are appointed as "several" guardians that means that they are given different matters over which they may exercise authority. It they are appointed as joint or several guardians, that means that that not all the guardians have to make the relevant decision. They cannot be excluded from being involved in making the decision if they are available, but the decision may be made by only some of the joint and several guardians if they are not all available in the time frame in which the decision has to be made. (473)
  1. NTCAT may impose restrictions on the guardians as to how they can exercise the authority they have been given in relation to particular matters or all matters. NTCAT may also impose requirements that have to be complied with in relation to how they exercise the authority they have been given in relation to particular matters or all matters. In addition, NTCAT may give directions to a guardian (or guardians) about the exercise of the authority given them by it. (474)

6.10.6.1 Making a guardianship order when the person has already made and advance personal plan (or enduring power of attorney)

Where the person the subject of the application has made an advance personal plan or an enduring power of attorney, NTCAT must take the advance personal plan or enduring power of attorney into account in determining:
  1. whether the person the subject of the application is in need of a guardian; and
  2. whether to make a guardianship order; and
  3. if a guardianship order is to be made - the terms of the order.

However, note that NTCAT must not make a guardianship order that confers on the guardian authority for a matter for which a relevant agent has authority. Who is the relevant agent with authority depends on the whether the person the subject of the application has made an advance personal plan or an enduring power of attorney. If they have made an advance personal plan and have appointed a decision maker in that plan, NTCAT cannot give a guardian authority that the person has already given to their decision maker. Similarly, if the person had made an enduring power of attorney, NTCAT cannot give a guardian authority in relation to matters over which the person has given the attorney authority, in the enduring power of attorney. (475) However there will be occasions when the need for the guardianship order is because the advance personal plan itself, the decision making made under it, or for some other reason the advance personal plan needs to be radically changed or revoked or the decision maker dismissed or given different authority in relation to matters different from those for which the maker of the plan gave authority in the plan. These matters and the question of making a guardianship order when the person the subject of the application for a guardianship order has already made and advance personal plan (or enduring power of attorney) are dealt with in more detail in Chapter 10.11.8.

6.10.7 Content of guardianship orders

As already noted in 6. 10. 5 above, in this chapter we are dealing with guardians appointed for personal matters. Guardians appointed for financial matters are dealt with in detail in Chapter 8.

The Guardianship of Adults Act 2016 (NT) requires NTCAT to specify in a guardianship order the personal matters for which the guardian has authority. (476) In other words there is no distinction between full (plenary) orders and limited orders made in the Act. Instead NTCAT must set out in each order the personal matters for which the guardian has authority, as well as the restrictions, requirements the exercise of that authority is limited to and the directions that have been given in relation to the exercise of that authority. (477)

In the Northern Territory, a personal matter for an adult person means a matter relating to their personal affairs or lifestyle. The term personal affairs includes health care. The definition is fleshed out with a list of examples of what are personal matters for the purposes of the Guardianship of Adults Act 2016 (NT) and in particular the scope of the authority that NTCAT can give to a guardian for personal matters appointed by it. (478) The examples are:
  1. Accommodation.
  2. Health care.
  3. The provision of care services to the person the subject of the guardianship order.
  4. Employment.
  5. Education and training.
  6. Day-to-day living matters, such as diet and daily activities.
  7. Relationships with other people, including decisions about who may or may not visit the adult.
  8. Legal matters relating to a personal matter. However, this does not include exercising the person's rights as an accused person in relation to criminal investigations or criminal proceedings, including assessments and proceedings under Part 10 of the Mental Health and Related Services Act (NT). (479)

Note that the Guardianship of Adults Act (NT) specifically provides that a guardian is not authorised to do any of the following for the person under their guardianship:
  1. exercise the person's right to vote in a Commonwealth, Territory or local government election or referendum;
  2. make or give effect to a decision about:
    1. the care and wellbeing of any child of the person; or
    2. the adoption of a child of the person;
  3. make a decision about the person:
    1. marrying or divorcing; or
    2. entering into or ending a de facto or sexual relationship;
  4. make, vary or revoke any of the following for the adult:
    1. a will;
    2. a power of attorney;
    3. an advance personal plan, or anything (by whatever name) having a similar effect in another jurisdiction;
  5. exercise the person's rights as an accused person in relation to criminal investigations or criminal proceedings, including assessments and proceedings under Part 10 of the Mental Health and Related Services Act (NT). (480)

6.10.7.1 Interim orders

If an application for a guardianship order has been made to NTCAT, but it has not yet determined the application, it may make an interim guardianship order for the person the subject of the application pending its determination of the application. However, before it may do this, NTCAT must reasonably believe that:
  1. the person has impaired decision-making capacity; and
  2. there is an urgent need for a guardian to be appointed to exercise authority for some or all of the personal (and financial) matters a guardian can be appointed to exercise authority in relation to. (481)

We suggest that care must be taken to ensure that guardianship orders are made after proper investigation and a full hearing that all those entitled to attend are able to attend and that it is only where there is a clear case urgent need that NTCAT should make an interim guardianship order. In this regard it is noted that in Queensland, where there is a similar but perhaps more stringent test that has to be met before an interim order can be made, there have been a number of decisions clarifying the circumstances in which an interim order will be made see; 6.7.8 above.

When making such an interim guardianship order, NTCAT may appoint any of the following as a guardian for the person the subject of the order:
  1. the Public Guardian;
  2. (for financial matters only) the Public Trustee, if the Public Trustee agrees to the appointment;
  3. another person, who NTCAT considers, on the basis of the information then available to it, to be eligible for appointment as the person's guardian. (482)

NTCAT must make an interim guardianship order on the terms it considers appropriate. We suggest that this provision allows NTCAT to impose restrictions or requirements that have to be complied with in relation to the guardian's authority concerning the personal matters they have been given authority in relation to. We also suggest that this provision allows NTCAT to give directions to the guardian about how they exercise their authority as a guardian. (483)

Interim guardianship orders come into force when they are made. They expire after 90 days. They may be renewed for only one further period not exceeding 90 days, but they may be given an earlier expiry date. (484) They cease to be in force when the first of the following occurs:
  1. the order expires;
  2. the order is revoked by NTCAT;
  3. NTCAT decides the application for a guardianship order. (485)

While an interim guardianship order is in force, NTCAT may vary or revoke it as NTCAT considers appropriate. (486) Interim guardianship orders are not subject to reassessments as normal guardianship orders are. (487)

6.10.7.2 Compliance orders

The Guardianship of Adults Act (NT) creates a specialised form of order that NTCAT can make on application by either the guardian of, or an interested person for, the person the subject of a guardianship order. (488) The order that NTCAT may make is to authorise a guardian, or another specified person, to take specified measures to ensure the person under guardianship complies with the guardian's decisions in the exercise of their authority.

However, NTCAT may make such an order only if it is satisfied that, having regard to the best interests of the person under guardianship, authorising the specified measures to be taken under the order is the only appropriate way to protect that person from harm, abuse, exploitation or neglect.

The making of such an order sets in motion a process that requires NTCAT to conduct a reassessment of that order as soon as is practicable after the order has been made; but in any event within 42 days after the making of the order. When NTCAT has completed the reassessment, it must do one of the following:
  1. confirm the order;
  2. vary the order;
  3. revoke the order and make another in its place;
  4. revoke the order.

However it may confirm, vary or replace the order only if it is still satisfied that, having regard to the best interests of the person under guardianship, authorising the specified measures to be taken under the order is the only appropriate way to protect that person from harm, abuse, exploitation or neglect. (489)

The guardian or other person authorised by such an order is not liable to any action for false imprisonment or assault, or any other action, liability, claim or demand arising out of taking a measure under the order. However, this is the case only if the guardian or other person took that measure in the belief that:
  1. having regard to the best interests of the person under guardianship, there was no other appropriate way to protect the adult from harm, abuse, exploitation or neglect; and
  2. it was reasonable to take that measure in the circumstances. (490)

We suggest that these orders will be useful in circumstances in which it is necessary for a guardian to have authority to move the person under their guardianship from their current accommodation to other accommodation much more appropriate and adapted to meet their current needs when the person under their guardianship is refusing to move. Experience elsewhere shows that people, particularly elderly persons with dementia who are seriously not managing at home and are living risky and unhealthy lives, usually settle in appropriate accommodation, often an aged care facility even after they are moved there against their objection. However, despite this and as already noted in Chapter 7.5.2, orders are occasionally needed to authorise the carers of a person to keep them at the premises and to bring them back to those premises should they leave them.

These orders could be used to deal with situations for which removal orders and similar orders are used in the States and the Australian Capital Territory.

6.10.8 The authorities, powers and functions of a guardian for personal matters

While the personal matters that NTCAT can give a guardian for personal matters the authority to exercise are set out in 6.10.7 above, those matters, called powers and functions of a guardian in some of the States, are dealt with in detail in Chapter 7. The duties and responsibilities of guardians are also set out in Chapter 7.

6.10.9 Reimbursement and remuneration of guardians

The Guardianship of Adults Act (NT) provides for the possibility of guardians for financial matters or personal matters or both being reimbursed or remunerated from the financial resources of the person under their guardianship. However NTCAT must agree to the reimbursement or the payment of the remuneration. (491) As these issues are more likely to arise in relation to guardians for financial matters than guardians for personal matters, they are dealt with in detail in Chapter 8.10.9.

6.10.10 Reassessments of guardianship orders

Under the Guardianship of Adults Act (NT) a guardianship order made by NTCAT comes into force when it is made. (492) Such orders remain in force until the first of the following events occurs:
  1. (where the order is to expire on a specified date) - that date is reached;
  2. the order is revoked by NTCAT;
  3. the person the order is about dies. (493)

All guardianship orders must specify a reassessment date, unless they are orders that will expire less than a year after they were made: in which case there will be no need to specify a reassessment date. (494)

NTCAT must conduct a reassessment of a guardianship order on, or as soon as practicable after, the reassessment date specified in that order. However, the person the subject of the order or an interested person for that person may apply to NTCAT for a reassessment of a guardianship order at any time during its currency. (495)

When reassessing a guardianship order NTCAT must consider three matters namely whether:
  1. the order should remain in force,
  2. those appointed under the order should be changed and
  3. any changes should be made to any other terms of the order. (496)

However the Act directs NTCAT to consider whether the order should remain in force in terms of whether the person the order is about still has impaired decision-making capacity in relation to the matters the guardian has been given authority in the order being reassessed. (497) These matters are covered in 6.10.4 above.

The question of whether any change should be made in those appointed by the order involves a consideration of whether, in the light of their performances, including in particular the way they exercised their authority as a guardian and whether they exercised their authority in compliance with the requirements of the Act, those appointed as guardians remain suitable appointees or whether they should be replaced by more suitable appointees. Where there are joint, several or joint and several guardians, the question of whether they should continue as guardians will depend not only on their personal performances but also on their ability to co-operate with the other guardians or other persons with whom they have to interact. (498)

Finally whether any changes should be made to any other terms of the order will depend upon, given that the order should be continued in force, whether the guardian needs authority in relation to more or fewer personal (or financial) matters.

Having considered these matters and otherwise completed its reassessment of the guardianship order, NTCAT must do one of the following:
  1. confirm the order;
  2. vary the order;
  3. revoke the order and make another in its place;
  4. revoke the order. (499)

Applications NTCAT's own initiative to vary the terms of a guardianship order. NTCAT, either on its own initiative or on the application (by a person who has a proper interest in making the application), may vary a guardianship order as it considers appropriate. However, it cannot revoke a guardianship order unless it conducts a reassessment in accordance with the processes and requirements just set out in the paragraphs above. (500)

6.11 Case law relevant to all jurisdictions

While the legislative provisions in the different States and Territories of Australia relating to the criteria that make a person "in need of a guardian" and deal with the choice of guardian are differently worded, they are all similar in effect. Also the fact situations that give rise to the need for guardianship orders to be made are replicated throughout the country. Consequently, the decisions made in one jurisdiction can be relevant to all the other Australian jurisdictions and common law jurisdictions elsewhere.

6.11.1 Withdrawal of an application

Because the ethos of the tribunals and other governmental bodies carrying out functions within the Australian guardianship system is to interfere as little as possible in the lives of adults with decision-making disabilities, consistent with acting in their best interests, many applications for guardianship orders are withdrawn administratively without the need to proceed to a hearing. This is because the matters which gave rise to the application have either disappeared or been resolved. This is often achieved by those involved realising that there is an alternative way of dealing with the matter that is less restrictive of the person with the decision-making disability's freedom of decision-making or action. Also, resolution is regularly achieved by conciliating out or mediating an outcome that meets the person with the decision-making disability's best interests without the need to seek a guardianship order in relation to them.

In New South Wales NCAT cannot, unless it considers that it is not possible, or appropriate, to attempt to do so, make a decision in relation to a guardianship application until it has brought, or used its best endeavours to bring, the parties to the application to a settlement. (501) This process starts with NCAT staff dealing with the matter and continues into the hearing where appropriate. Consequently, a number of applications are withdrawn at the hearing stage. (502)

Nevertheless there are circumstances in which the applicant may wish to withdraw the application but NCAT does not consider that it is in the best interests of the person the subject of the application for this to happen. NCAT has administrative processes in place to ensure proper consideration of requests for withdrawal, but sometimes NCAT, relying on its obligation under the principles of the Guardianship Act 1987 (NSW) to give paramount consideration to the welfare and interests of persons with disabilities, will insist that a matter goes to hearing. The procedures just referred to are supported by legislation that provides that an application for the making of a guardianship order or the exercise of another substantive function by the Guardianship Division cannot be withdrawn except with the consent of NCAT. (503)

In Victoria, VCAT has a discretion under the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to give leave to an applicant to withdraw their application. (504) In Queensland an application may be withdrawn only with the leave of the QCAT. (505) In a 2006 case, VCAT discussed this discretion when the applicant sought to withdraw the application on the basis that the concerns raised in the application when it was made had been resolved to an extent, in that the person with the disability was currently receiving ongoing specialist medical treatment, including appropriate and effective medication, with good effect. (506)

VCAT noted that the Guardianship and Administration Act 1986 (Vic) imposed an obligation on it to ensure that the best interests of a person with a disability were promoted. Accordingly, VCAT would not grant leave to withdraw an application if there were outstanding concerns as to whether the best interests of a person with the disability would be promoted, or adequately protected if the leave to withdraw was granted. However having made that point, in this particular case, VCAT decided that in the absence of any other evidence of ongoing concerns as to whether the person with the disability's best interests were being promoted, or adequately protected, there appeared to be no reason not to grant leave to withdraw the application. Consequently, it granted the leave requested. (507)

The Guardianship and Administration Act 1993 (SA) takes a different approach from that outlined above. It neither establishes nor applies a best interests test. Instead, it leaves the matter of withdrawal in the hands of the applicant by stating in terms:

Nothing in this Act will be taken to prohibit a person from withdrawing an application made by him or her under this Part at any time prior to a final determination being made on it by the Board. (508)

In Western Australia WASAT may give leave to an applicant to withdraw their application. (509) In a 2005 case dealing with an application to withdraw an application for a guardianship order, WASAT noted:

Section 43 of the Guardianship and Administration Act 1990 (WA) provides for the appointment of a guardian if certain matters are satisfied as to a person's capacity and abilities and whether a need for a guardian has been established. This is subject to s 4 of that Act which contains the principles to be observed by the Tribunal and which includes at s 4(2)(c) that an order shall not be made if the needs of the person can be met by other means less restrictive of the person's freedom of decision and action. The primary concern of the Tribunal shall be the best interests of the proposed represented person s 4(2)(a). (510)

WASAT also noted that the information available to it indicated that the guardianship needs of the person the subject of the application for guardianship were being met informally with the assistance of family members and gave leave for the withdrawal. (511)

6.11.2 Incapacity issues

The concept of capacity/incapacity is discussed in detail in Chapter 1.

6.11.2.1 Does the person have a disability?

In the overwhelming majority of guardianship cases whether initial applications, reviews or reassessments, the disability of the person the hearing is about is not in dispute. A typical example is the Tasmanian case of HDH who had had a stroke and had hearing and balance difficulties as a result of Menniere's Disease and who had moderate to severe Alzheimer's Disease. (512) However, in a few cases the question of whether or not the person the hearing is about has a disability will arise as will the question of whether the disability leads on to incapacity. (513)

There is a broad range of disabilities that can lead on to incapacity in adults, but dementia is the biggest cause by far. Other significant contributors are mental illness, intellectual disability and acquired brain injury whether through accident or drug or alcohol related. (514) WASAT has categorised Multiple Sclerosis as an acquired brain injury for the purposes of Section 3 of the Guardianship and Administration Act 1990 (WA). (515) Anorexia nervosa, particularly when there is evidence of testing showing that it is the likely cause of demonstrable cognitive impairment can lead on to a finding of incapacity. (516)

As was pointed out by WASAT in a 2012 case in which the person the subject of the hearing was held to have a memory deficit the origin of which had not been formally diagnosed, the lack of formal a formal diagnosis does not matter. What is important is that the impairment constitutes a (mental) disability. (517)

In rare cases a person may need a guardian because of their physical or sensory incapacity rather than their cognitive impairment. In a 1993 case in New South Wales, a predecessor to NCAT the Guardianship Board, appointed the Public Guardian as guardian of a woman who was almost completely blind and who had spasticity to three of her four limbs and was dependant in most aspects of self-care. Although she had no major cognitive problems affecting her comprehension and communication, her physical and sensory disabilities restricted her in many life activities to the extent that she required supervision. The then Board gave the Public Guardian the functions of making decisions as to the services the woman needed and of assisting her in effecting day to day financial transactions and facilitating her access to her finances. (518)

Nevertheless, there are limits on what is a disability. The overuse or abuse of alcohol or drugs is not, of itself a disability; however, an abuser of alcohol or drugs may at some point develop a disability and incapacity as a result of the damage they have done to their brain and their body. (519) The overuse of drugs and alcohol in a person in their late teens may show their rebelliousness and be a manifestation of their immaturity, arrogance and irresponsibility and may drive their parents to wanting a guardianship order to control and help their troubled child, but that is neither the purpose of guardianship nor is it within the powers of the Australian guardianship tribunals and courts to make guardianship orders in those circumstances. (520)

Occasionally an application will be made for an inappropriate purpose, for example to gain an advantage in Family Court proceedings for divorce, custody of children or property settlement. Early in its history a small number of such applications were made to a predecessor to NCAT, the New South Wales Guardianship Board. A 1993 case is an example. In that case a husband applied for a guardian to be appointed for his wife. The medical evidence before the Tribunal was that his wife had no cognitive incapacity. The Board held that the application was frivolous and vexatious and awarded costs against the husband. (521)

6.11.2.2 Does the disability lead on to incapacity or an inability to make reasonable judgments?

The legislation in the different States and Territories provides for different tests for this step in the process of deciding whether the person the hearing is about is one for whom a guardianship order could be made or could be continued. Again, the case of HDH provides an example of a case in which the evidence demonstrated declining capacity or increasing cognitive impairment on the part of the person the hearing was about. The declining cognitive capacity of that person resulted in a doctor assessing them as being unfit to make any significant decisions about their future. Other witnesses corroborated this by reporting that HDH was "disoriented in time and location, reflecting increasingly upon his earlier life overseas in preference to any discussions about recent events". This led the Tasmanian Guardianship and Administration Board to be satisfied that HDH was "unable, by reason of his disability, to make reasonable judgments in respect of matters relating to his person or circumstances". (522)

In a 2012 case already referred to in 6.11.2.1, WASAT relying on a position already established in Victoria and Western Australia that the test for inability to make reasonable judgments was a subjective one, went on to state, that as part of that subjectiveness, the particular person's capacity to make reasonable judgments was affected by the environment and circumstances in which those judgments had to be made. (523) In that case WASAT was satisfied by all the evidence that the person the hearing was about was; "because of his impaired faculties, [was] in need of the protection of an administration order to ensure that his financial affairs [were] not put at risk by incautious or ill-considered decision-making on his part, or by the possible ill-advised influence of his sons (given their extreme dislike of each other) even if that advice only inadvertently increase[d] his vulnerability". (524)

In a 2008 appeal from WASAT, Templeman J of the Supreme Court of WA dealt with an argument that when making a finding of fact to the effect that the person the application was about was unable to make reasonable judgments, that WASAT had to make that finding in relation to identifiable decisions that the person would have to make. This argument was based by the statement made by the High Court that:

One cannot consider soundness of mind in the air, so to speak, but only in relation to the facts and the subject matter of the particular case. (525)

Templeman J did not accept that submission and noted that section 43(1)(b)(ii) of the Guardianship and Administration Act 1990 (WA) required WACAT to consider whether a person who was the subject of an application for a guardianship order was unable to make reasonable judgments "in respect of matters relating to his person" (personal matters). (526) While the case related essentially to an application for an administration order, it is clear that it is not necessary to point to particular personal matters that the person is not able to make reasonable judgments about. However in many cases, the evidence will show a range of personal matters that a guardian, if appointed, would have to make decisions about.

6.11.2.3 The presumption of capacity always applies

The presumption of capacity always applies. This why the tribunals dealing with guardianship applications need to have evidence before them satisfying them that the person the hearing is about has lost, or never had, capacity before they may proceed to make a guardianship order. The presumption of capacity has to be rebutted on the civil standard of "balance of probabilities" by evidence presented to the tribunal dealing with the matter. (527)

In a 2014 case a Full Tribunal of WASAT noted that the statutory presumption of capacity was a fundamental principle in the Guardianship and Administration Act 1990 (WA). (528) It served to protect persons who are the subject of proceedings under the Act from having their decision-making capacity removed from them and a substitute decision maker appointed for them under the Act. Because of the significant consequences for an individual of having their decision-making capacity removed from them and a substitute decision maker appointed for them under the Act, clear and cogent evidence is required to rebut the statutory presumption of capacity. (529) While of the other States and the ACT only the Queensland Guardianship and Administration Act 2000 refers to the presumption, it is suggested that the presumption of capacity, whether it is legislatively or common law based, applies to all the adult guardianship regimes in Australia, so that proof of loss of capacity is necessary before a guardianship or administration (financial management) order can be in relation to a person. (530)

6.11.3 Need for a guardian

6.11.3.1 The common law

It has been long established by the common law that guardians are appointed for the benefit of those with decision-making disabilities and not for the benefit of others. (531) Powell J noted in 1984 that the NSW Supreme Court would not normally exercise its (guardianship) jurisdiction, "unless it is at least desirable, if not necessary, in the interests of the [person the application is about] that it do so". (532)

Under the modern guardianship systems set out in legislation where informal arrangements are working and the incapable person's needs are being appropriately met and their interests adequately protected, there will be no need to make a guardianship order. (533)

6.11.3.2 Need for a guardian involves best interests and least restrictive alternative

As part of the modern guardianship system, the legislation in the different States and Territories uses different language to describe what all the relevant tribunals have to be satisfied about in order to find that the person the hearing is about is in need of a guardian. Nevertheless, the tribunals must be satisfied that making the guardianship order is:
  1. the least restrictive alternative for the person, and
  2. in their best interests.

A Victorian case decided in 1988 shows this. The case concerned an elderly woman, Mrs M, who was totally dependent on others for her every need. She was in a nursing home. She was incontinent. She was unable to feed herself. She was incapable of understanding what was said to her and appeared not to understand what her eyes could see. She was visited every day by her daughter. Her daughter and her daughter's husband attended to her every need. They applied for a guardianship order for Mrs M because although no issues had arisen in relation to Mrs M's care, they were concerned that their lack of legal authority could cause difficulties in relation to medical treatment or if Mrs M had to be moved to another nursing home. The then Guardianship and Administration Board in Victoria held that there was no need for a guardianship order for Mrs M and then Administrative Appeals Tribunal of Victoria upheld that decision. (534) The President of that tribunal, Jones, J noted that the applicants were effectively fulfilling the role of guardians without a guardianship order and would continue to do so, and said:

In my view, it is the evident intent of the legislature that guardianship (particularly in its plenary form) should be the last resort to be utilised where no other viable, and less restrictive, protective means is available to meet the needs of the person. This involves considering whether the person to be represented is likely to benefit from guardianship as distinct from the person seeking to be appointed. Even where guardianship is considered necessary in the best interests of the person, it is the intention of the legislature that the least restrictive form available be applied. (535)

In coming to this view Jones J considered some New South Wales cases and noted that what had to be considered in making an order was the benefit to the person who would be the subject of the order, not the benefit to those seeking appointment as guardians. (536)

Underwood J of the Supreme Court of Tasmania having noted that the relevant provisions of the Victorian and Tasmanian legislation were virtually identical went on to apply Jones J's approach. (537) The Guardianship and Administration Board of Tasmania has also followed this approach. (538)

In applying Jones J's approach, Underwood J noted that:

The expression "best interests" as enacted in [the Tasmanian Act], does no more than reinforce the general concept that the paramount concern is the overall interest of the patient, just as in Family Law, the best interests of the children are the paramount concern in disputes involving their custody, care and management. The statute makes it clear that insofar as is possible, the preservation of the proposed represented person's freedom of action and decision is in their best interests and, as his Honour Judge Jones said in M's case, an order is the last resort. (539)

In the 2001 case, Re MM, the then Guardianship and Administration Board of Western Australia also followed this approach adopting the views of Underwood J to the effect that if the tribunal dealing with the matter reaches the view that all the needs of the person the hearing was about could be satisfied by means less restrictive of their freedom of action and decision than would be the case if (a guardianship or) an administration order was made, then such an order should not be made. Accepting that this construction of the relevant legislation reflects the philosophy apparent in it namely that control over and restriction on a person under a disability is to be kept to a minimum, the Western Australian Board then went on to note that the need for a guardianship order can arise from the need to fill a legal vacuum and appoint someone with legal authority to make personal decisions on behalf of the person under guardianship "in order to resolve issues relating to [their] personal affairs". (540)

It is respectfully suggested that de Jersey CJ's decision in Williams v Guardianship and Administration Tribunal is inconsistent with both the policy and provisions of the Guardianship and Administration Act 2000 (Qld) and the approach taken to similar provisions elsewhere in Australia. (541) In that case Mr Williams applied to the then Guardianship and Administration Tribunal of Queensland to appoint his wife, his son and himself as joint guardians of his daughter, K, who was born in 1967 with micro-cephalic spastic quadriplegia. The Tribunal declined to make a guardianship order taking the view that there was no "pressing need for someone to be given specific legal authority to make a decision" for K. The Tribunal said that because of her "obvious vulnerability due to her total dependence on others", what she needed was not a surrogate decision-maker, but "strong and effective advocacy" which was being provided by her family and which they could continue to provide. The Tribunal also stated that her parents were her statutory health attorneys and that it expected that her service-providers would respect her parents' authority as attorneys and to comply with their decisions made under that authority. (542)

de Jersey CJ noted that K was unable to care for or make most decisions for herself. She could communicate her wishes only through gestures and limited vocalisation. She required 24 hour assistance and supervision so that all of her daily personal needs could be met. He also noted the Tribunal's acceptance of the parents' frustrations in dealing with K's service-providers and the "great concern" and "quite considerable disquiet" they felt over the service-providers' neglect in relation to particular matters and the father's contention that the service-providers regularly challenged the parents' views. He considered it compelling to accept, as reasonable, the family's wish to be appointed guardians in order to ensure that K's needs and interests were adequately met and protected. He was doubtful about the Tribunal's expectation that the service-providers would respect health decisions of the parents because they had a PEG tube inserted in K contrary to the parent's known wishes. He appointed the family members as K's joint guardians. (543)

This was a situation in which the service-providers would have been expected to negotiate a set of arrangements about K with her family, and for the family to play a constructive role in those negotiations. Even a person with capacities as limited as K's is entitled to have the advantages of influences other than those of her family. In reality most decisions to be made on her behalf would have to be made by her service-providers as their provision of 24 hour care continued into the future. When significant decisions were to be made, K's family representatives would have to be involved as a matter of proper practice and they would have to be informed about her on-going health and well-being through a process that, in the normal course where good will was present, would be easy to settle upon. Her medical and dental treatment would have to be consented to by her parents as her statutory health attorneys. The fact that they were made her guardians would not, of itself, overcome the unacceptable failure of her service-providers to seek their consent before the procedure to insert the PEG tube was undertaken. The process of seeking substitute consent from the parents would have to be worked out in discussion and the obligations of the service-providers in that situation appreciated.

The need for guardianship would arise in circumstances like these only in the event of a breakdown of the family, service-provider relationship where it could be shown that a guardian was needed in demonstrable interests of the person with the disability and not in the interests of others. (544)

However, it is noted that in a 2004 case, Re MRA, QCAT's predecessor tribunal relied on the comments of the Chief Justice in the Williams Case (545) to appoint the Adult Guardian for the single personal matter of; "advocacy to progress application for an Adult lifestyle support package". (546) However in that case there had been no strong effective advocacy by MRA's parents and it had become a pressing issue to ensure that funds become available. Decisions had to be made about how best to advocate for MRA and as to what actions to take to ensure MRA's needs and interests were adequately met. (547)

It is also respectfully suggested that it was inappropriate for the Guardianship and Administration Tribunal of Queensland, in a 2006 case, to appoint the then Adult Guardian as guardian for a woman with an intellectual disability in order to provide someone with formal legal authority to give "consent" for her to participate in the community by taking part in such things as sailing and horse-riding activities. (548) This was a matter to be taken up by the Public Guardian and others as an issue to ensure that appropriate arrangements were worked out for people with decision-making disabilities to live as normal a life as possible in the community without having to suffer the stigma of being placed under guardianship in order to overcome the anxieties of others.

Each year there are applications to tribunals in Australia in which it is necessary to make guardianship orders in relation to people with decision-making disabilities because the evidence shows they need such orders because they lack insight into the problems confronting them and demonstrate this by expressing views which, if given effect to, would be seriously detrimental to their own interests.

In a 1989 case, Hart J sitting in the then Victorian Administrative Appeals Tribunal noted that there must be cases in which a person's capacity to express their wishes was so impaired as to render those wishes meaningless or valueless. He also noted that there must be cases in which the wishes of the person the hearing was about were impractical or unreal or physically impossible of performance or where the person's wishes were in conflict with their best wishes "as objectively ascertained". (549) In that case, involving a young man with Prader-Willi syndrome, Hart J considered that the young man's wishes were governed by his psychosis and noted evidence that the young man had an extremely poor capacity to comprehend his situation and comply with treatment because of his low intelligence, that he could not comprehend more than the immediate consequences of his wishes, especially in relation to his health, and that he could not make judgments for the long term. When he added those matters to his psychosis, Hart J formed the view that it was not possible to give any real weight to the young man's wishes. (550)

6.11.3.3 The need for a guardian must be either present or proximate and neither premature nor "just in case"

Sometimes the making of a guardianship order can be seen to be premature; although it is not unusual for the making of an application for such an order to focus the minds of all those involved, including the person the subject of the application, on the facts that there are decision-making problems about personal matters that have to be addressed. An example of this is the South Australian case in which a person's case manager made an application for a guardianship order in relation to her. (551) Mrs B was 71 years of age who lived at home with her husband. She had a "likely" diagnosis of multi-infarct dementia and also had diabetes mellitus, chronic airflow limitation and depression. For some years, domiciliary services have been offered to her but these were not always accepted. Personal and home hygiene had been ongoing problems for Mrs B who had had two recent hospital admissions.

The applicant's view was that a trial of increased services should occur before decisions about the placement of Mrs B in an aged care facility could be made. If the community services are able to maintain Mrs B at home then residential care may be able to be avoided. The Board made a guardianship order in relation to Mrs B.

At the appeal to the District Court of South Australia, the evidence showed that since the order was made, Mrs B had accepted an increase in services provided in her own home which her case manager saw as a good outcome. The Court quashed the limited guardianship order stating:

[S]ince the hearing before the Board, domiciliary services have been increased significantly without the involvement of the guardian. It seems to us, albeit with the benefit of hindsight, that the order was premature, and that the application should have been adjourned pending the outcome of the trial of increased services envisaged by (the case manager). If there is any significant change in circumstances, such as in the availability of services or (Mrs B's) acceptance of them, necessitating an admission to a nursing home or the making of other decisions in her interests but against her wishes, a further application to the Board can be made. (552)

There are other cases in which the person may, on an objective view, meet all the criteria for needing to have a guardian appointed for them, but be so opposed to the appointment of a guardian and determined to maintain their own independent lifestyle that the making of the order would be, at best futile, but more likely adverse to their best interests because of the effect on them of the knowledge that they are the subject of a guardianship order. (553)

It has been the practice of the NSW Guardianship Tribunal, now NCAT, to require that the evidence before it at a hearing be sufficient to satisfy it that the person the hearing is about needs a guardian either now or in the immediate future before it will make a guardianship order. This is consistent with the approach taken by the NSW Supreme Court and VCAT. (554) In a 1994 case in Western Australia, the Public Guardian, as the Public Advocate was then known, "conjectured" whether a guardianship order could be made for a situation "if and when the need arises" and for it to "lie on the table until it was needed". However, the then Guardianship and Administration Board found that there was no evidence of a present need for a guardian and dismissed the application (555) It is suggested that the view that the Australian tribunals have no jurisdiction to make "just in case" orders is based on both the statutory requirement that orders are not to be made unless the need for them is demonstrated to the level of satisfaction required by the tribunal hearing the application and the established common law relating to guardianship and administration that orders are not to be made unless there is a real necessity to do so. (556)

A 2013 example of a tribunal refusing to make a guardianship order on the basis of no need for an order comes from the Tasmanian Guardianship and Administration Board. In that case DQH had dementia and was being cared for by her husband. However, she became aggressive and had to be admitted to a psychogeriatric centre. After that admission DQH's husband applied to the Board to be appointed her guardian. But, with the assistance, he implemented a comprehensive regime that gently familiarised his wife, DQH, with carers other than himself. This reduced some of the burden on him and he had more support as a carer than previously. The Tasmanian Board considered that these factors were protective to DQH and reduced the likelihood that care arrangements would break down again and noted that the system of care for DQH had become more robust as a result of the changes. The Board considered that there was no need for a guardian and dismissed the application. (557)

However, also in 2013, but in Western Australia, WASAT continued the appointment of the Public Advocate as a limited guardian for ZJ with the functions of consenting to medical treatment or health care for him, and to decide what services he should have access to. (558) ZJ had a whole of life intellectual disability. He was deaf and blind so had significant sensory impairments and communication difficulties. He used hearing aids, but was described as 'non-verbal'. He was living in the house he had been living in since he was a child. He had full time support services. Both his parents were dead.

The Public Advocate reported that only one decision had been made under the medical treatment and health care function during the currency of the order under review. The Public Advocate also reported that ZJ was reviewed regularly by his doctor and was not, and had not been for the duration of the order, on any medication. Further that the advice was that there was no anticipated future need for any medication to meet ZJ's ongoing health needs. In addition, he did not have any identified health conditions for which he would require treatment for the foreseeable future.

As to the services function, the Public Advocate reported there had been no need to consent to the provision of any particular services during the period of the order, the Public Advocate's staff were involved in supporting referrals to, and applications for, increased funding in relation to a certain program. Nevertheless, the support programs designed for ZJ, and the activities in which he participated, had either been in place for a long time or had been arranged through a funding package without reference of such matters to the Public Advocate. It was clear that the Public Advocate considered that there was no on-going need for a guardianship order in relation to ZJ and advised WASAT that other than an annual contact, staff of the Office of the Public Advocate would rely on the service provider agencies to bring matters to the where the attention of the guardian was required. WASAT's view was that, putting aside the Public Advocate's "annual check-up", this amounted to the service providers acting as the de facto guardians for ZJ and re-appointed the Public Advocate as ZJ's limited guardian to consent to his medical treatment or health care and to determine the services to which he should have access for a further five years.

WASAT's stated reasons for this decision were that; "ZJ was manifestly in need of a guardian" and that:

As a society, it is incumbent upon us to ensure that someone independent of the paid service provider is responsible for overseeing the arrangements for the [person under guardianship], to ensure that his needs are met in terms of his medical and health care, and the support services that are made available to him.

In addition, the Tribunal has long taken the view that it is not appropriate for service providers to be the de facto guardians for vulnerable disabled persons who are in their care. There will always be conflicts for service providers between the interests of their various clients. There will be resource and funding issues, staffing pressures and other such matters which impact upon the systems of service provision as between clients, despite the most altruistic and beneficent of intentions towards an individual client. In a time of such intense demand for, and such pressure on, limited resources, someone independent of 'the system' needs to be 'in the represented person's corner', ensuring that his legitimate share of the available resources is obtained and is best used to meet his needs as they are independently determined.

ZJ has no one to do this for him if he does not have a guardian. (559)

The legal basis for the decision was found in section 45(1) of the Guardianship and Administration Act 1990 (WA) under which plenary guardians were vested with all of the functions in relation to the person of a person under their guardianship that are vested by operation of the Family Court Act 1997 (WA) in a person who has been given a parenting order which allocates parental responsibility for a child under that Act. Sub-section (2) of section 45 also sets out a list of decisions that a plenary guardian may make and functions that a plenary guardian may carry out. Sub-sections (3), (4) and (5) set out functions that no plenary (or limited) guardian may carry out. Section 46 of the Act provides that a limited guardian has only those functions vested in them by the guardianship order under which they were appointed. Relying on other cases in which WASAT and its predecessor tribunal appointed plenary guardians, WASAT in the ZJ Case noted that; "the extent of guardianship (as it relates to "parental responsibility") is very wide and includes decision-making, advocacy, making representations, seeking assistance, marshalling services and ensuring protection". (560)

While this may be so in relation to plenary guardians, because they automatically have the parental responsibility function as a result of their appointment, and while ZJ required supervision with everything, the Public Advocate did not seek and was not given parental responsibility functions in this case. She was appointed a limited guardian and vested only with the functions of consenting to medical treatment or health care and determining the services to which ZJ should have access.

This case seems to be very much based on the specific provisions in section 45(1) of the Guardianship and Administration Act 1990 (WA) which is not replicated in the other States and Territories. Furthermore, if it is correctly decided, it opens up the possibility of the appointment of a guardian for every person with substantial disabilities and no decision-making capacity. That is contrary the intent of the guardianship legislation enacted in Australia since the 1980s. As one example, it should be noted that in relation to New South Wales, the guardianship order would not have been renewed because the evidence showed that services could be, and were, provided to ZJ without the need for a guardianship order. (561) No other need for a guardian appeared to be apparent from the evidence available to WASAT in this case.

There have been recent cases in which WASAT has appointed guardians to consent to medical treatment for the person the subject of the guardianship order in order to avoid ambiguity as to who was the substitute decision-maker for medical and dental treatment proposed for the person under guardianship. In a 2014 case involving a dispute between members of a man's family about the medical treatment proposed for him, WASAT appointed a guardian for the man to ensure certainty in the decision-making. WASAT appointed the man's sister because it considered that she would continue to act in the man's best interests and had been consulting other family members during decision-making process. (562)

In another case involving a dispute between the de facto partner of a man with a terminal illness and the man's estranged daughters, WASAT appointed the man's partner as his guardian. Based on the medical evidence before it, WASAT found that the man was incapable of looking after his own health and safety, unable to make reasonable judgments in matters relating to his person and was in need of oversight and care in the interests of his own health and safety and that he needed a guardian. WASAT appointed the man's de facto partner as his guardian for the purposes of making treatment or health care decisions. It stated that it had done this simply to put beyond doubt that there is someone with that authority to make decisions to ensure that there is no delay or ambiguity about the care the man received at this extremely difficult time for all of the family. (563)

It is noted that Part 7C of the Guardianship and Administration Act 1990 (WA) sets out who are the possible persons responsible for a person who is unable to make reasonable judgments about (medical) treatment proposed for them. The person's person responsible is their substitute decision-maker for medical treatment and section 110ZD of the Act set out the hierarchy of persons responsible. A person's de facto partner ranks above a person's adult child as their "nearest relative". (564) However the _Act provides that to be a de facto partner for the purposes of being person responsible, that person must be living with the person needing treatment. The evidence recorded in this case does not show the de facto partner living with the person needing treatment. (565) On the other hand to be a "nearest relative", a person must maintain a close personal relationship with the person. (566) In this case one of the person's estranged daughters had only recently renewed contact with her father while the other estranged daughter stated that she was not going to have any contact with her father. (567)

6.11.3.4 On review, the need for a guardian must be continuing

Just because a person has had a guardian appointed for them at one time, and even if guardianship has continued for some time, it does not follow that that person should have a guardian for the rest of their life, even if they are born with a whole of life intellectual disability. The circumstances of their lives will vary over time. Sometimes an order may be needed. At other times there will be no need for an order. (568) Guardianship orders may only be made where the person with a disability needs them. They are not to be made for the benefit of those seeking to be appointed or re-appointed guardians. (569)

6.11.3.5 Guardianship sometimes needed to help a person to become more self-reliant and to live, as far as possible, a normal life in the community

One of the paradoxes with guardianship is that while it is intended to be a last resort when no less restrictive alternative is available, it is sometimes becomes a necessary element in a process designed to give effect to the wishes of the person with the disability and to help them to become, as far as possible, self-reliant in matters relating to their personal, domestic and financial affairs and to live as normal a life as possible in the community. (570) An example of this is the case of MW who, at the time of the guardianship application in relation to her was 20 years old. She had a borderline or mild intellectual disability and another disability that compromised her physical health and her vision. (571) The Guardianship and Administration Board of Tasmania was satisfied that she did have relevant disabilities and that while the level of intellectual disability would not normally be sufficient for the purposes of a guardianship application, the complexity of MW's other health conditions had a cumulative effect on her capacity to make certain lifestyle and health care decisions and made her incapable of undertaking certain complex decisions required for the adequate long-term management of her health conditions. (572) The Tasmanian Board accepted the view that MW's parents were overly protective and restrictive in their care of her and that in their efforts to preserve the support available to her from the family, they had failed to fully recognize her developmental needs for independence and broader social interaction. (573)

The Board considered it too restrictive to appoint MW's parents as her guardian. It appointed the Public Guardian as MW's limited guardian for a period of 13 months to ensure that policies, practices and competent staff were available to support her independent living and health care and further that an appropriate schedule of medical treatment and review was established to monitor her well-being.

6.11.3.6 Need for a guardian because of disputes involving family, service providers and others

Guardianship orders are sometimes needed where there is a family dispute about where the person with a decision-making disability should live, what medical treatment they should receive or some other significant, personal decision which cannot be resolved by discussion and conciliation. These disputes can arise from disagreements between adult siblings, between the divorced parents of a child with serious decision-making disabilities where the parents have unresolved issues about the care of that child into adulthood, between different generations in the same family or when there are differences of view within a blended family or within an extended family and local community. (574) Sometimes family disputes about guardianship are irresolvable. (575)

A study of 50 cases of family and systems conflict in cases of dementia presented to the then NSW Guardianship Tribunal, found that conflict most frequently occurred between adult children of the person with dementia. In ten of the twelve cases of multiple siblings, several siblings were in alliance against one "black sheep" carer sibling. In seven cases of sibling conflict the "black sheep" carer was significantly troubled with mental illness or burden including: schizophrenia or severe paranoid personality disorder (n= 2); substance abuse disorder (n=2); major depression (n=1) or "overburdened" or "unable to cope with caring" (n=2). One carer reluctantly conceded that he needed help "before I do something". In all seven cases the carer was male, unemployed, and, save for one case, single and living with the person with dementia.

In 26% of cases there was some involvement of service providers in the conflict and in 12% of cases the conflict was solely between service providers and the family. In the latter cases the conflict was based on lack of communication and judgmental stances adopted by service providers (e.g. regarding family's misuse of finances or the family's neglect of their ageing relative). (576) Clearly, there are situations where differences between family members and service-providers cannot be resolved by discussion and conciliation, necessitating the making of a guardianship order in those circumstances. Often enough, but not always, in these cases it is also necessary for the tribunal dealing with the matter to appoint the Public Advocate or Public Guardian as guardian and not a family member. (577)

An example of an inter-generational disagreement within a step-family involving a daughter and a husband from a recent marriage is the case of an 88-year-old woman whose lack of capacity was not in doubt. She had been born in South Australia and had lived there all her life. She had married her husband in 2000 and had a daughter from a previous marriage who lived in Western Australia. Her daughter brought her to Western Australia in late 2004 because she felt that her mother, whose husband did not live with her, was living in a state of neglect and needed care.

In March 2005, WASAT appointed the Public Advocate as the elderly woman's guardian to decide where and with whom she should live. The Public Advocate decided that the woman needed care in an aged care facility in South Australia which was her home and was where her husband lived.

The daughter disagreed with the decision and sought review of the order appointing the Public Advocate as guardian. The daughter maintained that the husband was not willing or able to provide informal care and advocacy for his wife and that, although she required care in an aged care facility, she would be better cared for in Western Australia. The husband disagreed with the daughter and wanted his wife to return to South Australia so that he could visit her. His wife's consistently expressed the wish to live in South Australia and be near to her husband. (578)

The disagreement between the husband and the daughter about where the elderly woman should live, and the evidence that this difference of opinion was not open to resolution by informal means meant that she had a continuing need for a guardian. (579)

WASAT decided to reappoint the Public Advocate as the elderly woman's guardian, as the suitable person to make the accommodation decision. WASAT felt that the daughter could not objectively consider her mother's needs as they related to her relationship with her husband. (580)

In a 2013 case dealing with conflict in a family over medical decisions at the end of life Williams DCJ of the New South Wales District Court commenced his judgment with the following:

Where do family relationships go so wrong as to be the cause of so much damage and cost to themselves and to the wider community? This is a case study of such a problem and a problem that is becoming increasingly prevalent in our legal system, involving the commencement and continuation of litigation that should really not have been allowed to go on as long as it has. (581)

Nevertheless, not all cases in which opposing guardianship applications are made by family members in apparent conflict result in the making of guardianship orders. Some families will agree to disagree on some issues and still have factions but yet be able to agree on issues involving the family member the application was about in such a way that it becomes clear to all that a guardianship order was not required. (582)

Sometimes a spouse or other life partner has difficulty coming to terms with the fact that their spouse has dementia and to ensure their safety. In the 2009 case, 86 year old Mrs WBN had dementia and was a resident of an aged care facility. (583) Her husband, who had not been able to look after her, wanted to remove her from the facility. One of their adult children, supported by the others, applied to the then NSW Guardianship Tribunal for a guardianship order. The Tribunal made the order and, after consideration, appointed the applicant as guardian with the function of deciding accommodation issues for her mother and with authority to prevent outings from the aged care facility by Mrs WBN unless there were appropriate safety mechanisms in place.

A variation on the theme of husbands wanting to look after their wives at home is the case of Mrs BAN. (584) She had loss of cognitive function and a number of physical conditions. Her husband had been caring for her at home, but the house was unhygienic and Mrs BAN was in a bad way when taken to hospital. Her husband wanted to take her home to care for her, but the evidence was that Mrs BAN needed high care which meant it was unsafe to discharge her home. After considering all the evidence, the Tribunal was not satisfied that the husband was willing and able to make reasoned decisions about his wife's accommodation and associated services and so could not be appointed guardian. As no other person had been nominated as guardian, the Tribunal appointed the Public Guardian for a period of six months. (585)

6.11.3.7 Need for a guardian where there is no person responsible/statutory health attorney or other substitute decision-maker for medical treatment or they are incapable or not acting appropriately

Sometimes the need to appoint a guardian arises because there is no family member or anyone else in the life of the person with a decision-making disability who may act as their automatic substitute decision-maker for medical and dental treatment. In the Western Australian case of MW, MW's mother, while interested and concerned in the care of her daughter, was unable to understanding the nature of the treatment provided to her daughter and so she, by reason of her own disability, was unable to give a valid consent to her daughter's treatment. Furthermore, there were no other known relatives who qualified as automatic substitute decision-maker for medical and dental treatment. WASAT appointed the Public Advocate as limited guardian to decide whether or not to consent to the medical treatment and health care proposed for MW. (586)

A Queensland example of the need to appoint a guardian in these circumstances arose because the statutory health attorney ("person responsible" in New South Wales, Victoria, Tasmania and Western Australia) was not always making the most appropriate decisions for his mother. The then Queensland Guardianship and Administration Tribunal was concerned that the statutory health attorney's health care decisions were not always reasonable and appropriate in the circumstances and that the statutory health attorney did not take or even listen to advice and had rigid and inflexible views. He did not consult or keep the family informed of health care issues in relation to his mother. His actions were clearly in breach of the General Principles and the Health Care Principle contained in Guardianship and Administration Act 2000 (Qld). (587)

In the 2009 case QAX, Mr QAX was unable to make decisions in relation to medical intervention and treatment due to his long term mental illness. (588) He had recurrent stricturing of his oesophagus. Consent to needed treatment was regularly given by the Mental Health Review Tribunal under the NSW mental health legislation which did not provide for advance care planning. The evidence before the NSW Guardianship Tribunal was that Mr QAX needed a guardianship order so that a guardian could deal with advanced care planning covering issues including resuscitation, intubation, and life support, issues which had already arisen. The Tribunal was satisfied that there was a need to appoint a guardian for Mr QAX on this basis. In the absence of an alternative, the Tribunal appointed the Public Guardian as guardian for one year.

The implementation of the National Disability Insurance Scheme (NDIS) by the Commonwealth government appears to have created the need, at least in the short term, for guardians for people whose physical needs may by adversely affected by the scheme to have a guardian appointed for them. In 2014, NZO was over 65. Although she was over 65 years of age and so not entitled to become a participant of the NDIS, she was still required to return "consent or access request forms" to the NDIA to obtain future funding that would otherwise have been provided by Aging Disability and Home Care, a State government body. NCAT noted that NZO's accommodation was at risk and that there was a significant level of uncertainty about her service arrangements and how decisions would be made on her behalf making it imperative that a guardianship order be made in relation to her appointing the Public Guardian with accommodation, services and advocacy functions. (589)

6.11.3.8 Need for a guardian for a non-compliant person

There are cases when the role of the guardian becomes extremely difficult for the guardian whether they be a private person or the Public Advocate/Public Guardian. While conducting a review of a guardianship order in a 2016 case, WASAT noted that the intractability of the person under guardianship's situation, despite efforts of the guardian and the trust manager, had resulted in considerable frustration, which was obvious from the evidence. However, the intractability of the problems faced by the person under guardianship only served to reinforce her ongoing vulnerability. WASAT found that the person remained in need of a guardian and went on to note that the enforceability of the decisions of a guardian was not part of the statutory criteria which the WASAT was bound to apply on review of a guardianship order. (590)

Note the provisions relating to this matter in the Guardianship of Adults Act (NT). (591) These are dealt with at 6.10.7.2 above.

6.11.3.9 Need for a guardian and duty of care and the principle of necessity

Many people with decision-making disabilities arising from intellectual disability, acquired brain injury or dementia, but less so from psychiatric condition or other sources of disability need permanent care and support, including assistance with activities of daily living and supervision and assistance to avoid injury from falls or through the inability to protect themselves from even apparent dangers.

Because of their incapacities, some of these people need to be closely supervised and directed to avoid dangers that are obvious to others. Others of them need to be restrained when activities of daily living, that they are incapable of carrying out themselves, need to be carried out in order to promote their health and well-being. Yet others need to be protected from falling out of bed or from falling out of chairs when they are out of bed. Some need to be dressed. All these people need assistance every day so that they can take part in the activities or the life of the institution in which they are living whether it be an aged care facility, group home or large residential institution.

Beginning in the late 20th century genuine attempts have been made to give people with decision-making disabilities greater access to and contact with the wider community. The implementation of this policy has raised a number of problems for those providing that access or those residential or care services. One of the issues that arises for these carers and service-providers is how far can they go in the exercise of their duty of care and how far does the principle of necessity extend? These concepts clash with well-established aspect of the common law, namely trespass to the person in the form of battery and false imprisonment.

This clash raises the question of whether certain ways of dealing with people whose disabilities render them unable to look after themselves are illegal unless approved by an appointed guardian authorised to consent to such activities or whether at least some of the more personally intrusive ways of providing protection, support and services to them can be carried out under a duty of care or by application of the principle of necessity without the need for a guardian to be appointed.

Determining whether a guardian is necessary in certain situations has been a matter that guardianship tribunals in Australia have had to wrestle with. While it has been difficult to identify with clarity the components of those situations that require a guardian to agree to and those that don't, some examples can help by showing some of the decisions that have been made and why.

As pointed out by Lord Goff of Chieveley in the House of Lords case In re F, a long established and fundamental principle is that that every person's body is inviolate, meaning that everybody is protected not only against physical injury but against any form of physical molestation. (592) However, not all touching is unlawful. Some is acceptable as part of the ordinary conduct of daily life. Other touching is not unlawful if there is a lawful excuse for it happening. (593) Also, Lord Goff has drawn out and developed the common law a principle of necessity which, he said; "may justify action which would otherwise be unlawful". (594) In discussing this principle he went on to say:

Furthermore, in the case of a mentally disordered person, as in the case of a stroke victim, the permanent state of affairs calls for a wider range of care than may be requisite in an emergency which arises from accidental injury. When the state of affairs is permanent, or semi-permanent, action properly taken to preserve the life, health or well-being of the assisted person may well transcend such measures as surgical operation or substantial medical treatment and may extend to include such humdrum matters as routine medical or dental treatment, even simple care such as dressing and undressing and putting to bed. (595)

In a 2002 case, the then Guardianship and Administration Board of Western Australia noted that the High Court did not accept the "extended notion of necessity" as appropriate to apply in relation to the issue of consent to the sterilisation of a child and considered it unsafe to rely on In re F as stating the common law in relation to the application of restraints. (596) There is little doubt that the extended doctrine of necessity is inappropriate to apply in relation to sterilisation treatment and in cases where significant physical or chemical restraints are being considered for use over periods of indeterminate length. However, this does not mean that the principle of necessity is not applicable to other situations involving the day to day provision of services and support to people with decision-making disability who need supervision and protection well beyond that required by others in order to lead their lives safely and healthily.

In a 1998 case in the House of Lords in England Lord Goff noted 18th and 19th century cases which provide authority for the proposition that the common law permitted the detention of those who were a danger, or potential danger, to themselves or others, in so far as that was shown to be necessary. (597)

In a 2004 case Munby J of the Family Division of the High Court of Justice in England stated that the doctrine of necessity was capable of operating not merely in relation to questions concerning a patient's surgical, medical or nursing treatment but also in relation to questions of where they should live, who they should see, and the circumstances of such contact. (598) In Australia a guardianship order is required if a substitute decision-maker needs to make decisions about who an incapable person has contact with and under what conditions. However, the doctrine could apply when carers have to act quickly to protect the incapable person they are caring for from inappropriate contact that places the incapable person at risk pending applying for appropriate orders from a guardianship tribunal. An incapable person's accommodation can be changed without the need for a guardian to be appointed to make the decision, provided the incapable person does not object and the change of accommodation is made in their interests or not adverse to their interests. Where there is a guardian authorised to make accommodation decisions, then they make that decision having received the advice of others.

In a 1996 case, the then NSW Guardianship Tribunal dealt with a question of whether a guardian needed to be given a function of approving (or refusing to approve) the use restraint for an elderly woman with Alzheimer's Disease and myoclonic jerking whose cognitive functioning was so poor that she could not use a walking frame or follow basic instructions when being assisted to dress. (599) The form of restraint proposed was to put her in a comfortable armchair with a table in front of it for limited time only during the day.

The Tribunal considered that it was appropriate to extend the principle of necessity to situations like this. The Tribunal said:

Necessity, and common sense, require that appropriate measures be taken to protect (the elderly woman), measures which may not be appropriate for other people with cognitive impairment and which would be singularly inappropriate, and, indeed, illegal if applied to people who do not endure her level of impairment. (600)

In a 2011 case Whealy JA of the NSW Court of Appeal noted that it could not be said that the doctrine of necessity could possibly be extended to permit the detention of a person with an intellectual disability, epilepsy, personality disorder and behavioural problems manifested in violent behaviour towards others for a period of more than six years as there was no authority that would allow such a lengthy detention. (601)

In a 2010 case the Full Court of the Supreme Court of South Australia, referring to both English and Australian cases, noted that there was a solid body of authority supporting the conclusion that where a person was detained in circumstances where they were not aware of a restraint on them or not physically able to exercise their freedom of movement or because of their mental incapacity or their lack of awareness of their situation could nevertheless succeed in making a claim for wrongful imprisonment in relation to that detention. (602)

In a practical sense in clinical situations, there remains much uncertainty about the concept of duty of care and when guardianship is, and is not, required in relation to some of these practices. In 2016 NCAT produced a very helpful Fact Sheet on Restrictive Practices and Guardianship. The Fact Sheet defines a restrictive practice as "generally involving physically restraining a person or limiting their freedom of movement". The Fact Sheet notes that many restrictive practices are what the law calls assault, false imprisonment or detinue, unless a legal defence such as informed consent, consent by a guardian, self-defence or necessity exists. It is noted further that "Duty of care" is not a defence but action taken for this purpose may be covered by self-defence or necessity. (603)

False imprisonment is defined by NCAT as:

confining a person to a particular space, for example locking a person in a house or room or using a tray table to keep the person in a chair. However, stopping a person going into a particular space, for example locking the kitchen, is unlikely to amount to false imprisonment. (604)

Detinue is defined by NCAT as:

withholding a person's possessions, for example refusing to hand over a knife belonging to the person. However, refusing to hand over a knife belonging to an accommodation service does not amount to detinue. (605)

The Fact Sheet noted that there are situations where NCAT has seen a need for a guardian because of the doubtful lawfulness of a practice that is being used to manage challenging behaviour, or when there is disagreement over the practice, or where the practice is of doubtful benefit and a guardian is needed to protect the person.

6.11.4 The views of the person the application or review is about.

The legislation of all the States and Territories requires the relevant tribunals, where possible, to obtain and consider the views of the person the hearing is about prior to appointing a guardian (or renewing a guardianship order). However, the legislation divides into two groups on the issue of the impact of the views of the person the hearing is about on capacity of the relevant tribunal to appoint a guardian (or renew a guardianship order). The first group contains the legislation that requires the relevant tribunal to have regard to, but not be bound by the views of the person the hearing is about. In New South Wales, the Guardianship Tribunal has to have regard to, but is not bound by, the views of the person the hearing is about, if they have or are capable of communicating any, before it makes (or renews) a guardianship order. (606) The South Australian Guardianship Board must consider not only the discoverable wishes of the person the hearing is about when the person was not mentally incapacitated but also their current wishes unless it is not possible or reasonably practicable to do so. (607) In Western Australia WACAT is required, as far as possible, to gather the current views of the person the hearing is about or ascertain them from the person's previous actions. (608)

The second group contains the legislation that requires the relevant tribunal to consider making a substituted judgment based on the wishes of the person the hearing is about. The effect of the Victorian Act is that it is the intention of Parliament that VCAT gives effect to the wishes of the person the hearing is about wherever possible when making (or reviewing or reassessing) a guardianship order. (609) The Tasmanian Act places the same obligation on the Guardianship and Administration Board as does the Northern Territory Act in relation to both the Guardianship Panels and the Local Court. (610) In Queensland, although the term "substituted" judgment is used, QCAT applies the general principles of the Guardianship and Administration Act 2000 (Qld) which provide for substituted judgment in the sense that QCAT takes into account the discoverable views and wishes of the person the hearing is about in making its decisions about guardianship, but it is not bound by those views. (611)

In the Australian Capital Territory, the decision-making principles in the legislation appear to place the wishes of the person the hearing is about above the promotion of their interests. Their wishes must be given effect to unless to do so would be likely to significantly adversely affect their interests. (612)

The legislative provisions that impose these obligations on tribunals impose the same obligations on guardians appointed by tribunals. (613) The problem facing both tribunals and guardians of having to give effect to both the views and wishes and the best interests of those who may need a guardian appointed for them or are already under guardianship are discussed further in Chapter 7.3.4.

6.11.5 Who should be guardian - a private person or a government official (Public Advocate or Public Guardian)?

The State and Territory legislation continues the common law policy of favouring the appointment of a family member, or at least a private person, as the guardian where this is appropriate. However, in each State and Territory there is a public official whether called a Public Advocate or a Public Guardian, available for appointment as guardian if there is no private person available or no private person suitable for appointment. Sometimes there are good reasons why family members should not be appointed. In other cases it is clear that family members lack the capacity to act as guardians, or do not wished to be appointed as guardians.

One of the difficulties facing the tribunal or court which is satisfied by the evidence that either a particular family member, or any family member, should not be appointed guardian in a particular case, is to explain why sufficiently for its decision to be credible, but not in such detail or with such vigour as to make it either inappropriately difficult or impossible for the family relationships of the person under guardianship to be repaired or restored where it is in that person's interests that their family relationships be capable of repair or restoration. (614)

In this context it is important to recall the advice of the High Court of Australia gave to the Family Court in M v M. (615) A tribunal or court deciding who to appoint as guardian should not divert itself from its statutory role in order to come to a definite conclusion about the allegation made in relation to the person seeking to be appointed guardian. In some cases it will be evident that the allegation is well founded. In others it will be apparent that the allegation is groundless. However, in the nature of things, there will be very many cases in which the tribunal or court will not be able confidently to make a finding either way. In these circumstances it is the role of the tribunal or court to assess the risks involved in appointing the family member as guardian, whether or not the appointment is in the best interests of the person to be placed under guardianship, and to apply the other statutory criteria required to be considered before a guardian is appointed. (616) Having considered these matters, the tribunal or court may then decide who to appoint as guardian.

In a 2003 case in New South Wales, Windeyer J discussed the relevant legislative provisions and the common law as follows:

There would be a considerable number of cases where no person would be available to be appointed. An example might be a disabled, destitute person with no friend or relative. Such a case might lead inevitably to the appointment of the Public Guardian. Nevertheless appointment of the Public Guardian should not, I think, be restricted to such cases. I consider that the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect. ....

While s 15(3) [of the Guardianship Act 1987 (NSW)] must be interpreted within the context of the Act and in accordance with its principles, it must be given effect within those bounds. In Lunacy and Mental Health proceedings it has always been the policy to appoint a member of the family as committee or guardian of the person if that were possible. The policy is continued under the Act which created the office of Public Guardian. Just because a decision is required about accommodation and there is some dispute about this does not mean that a close family member holding one view ought not to be appointed. On the other hand if the Tribunal considered the evidence established that such a decision was likely not to be in the interests of the person under guardianship then the person who would make such a decision would not be a person who could properly be appointed under s 15(3). In other words what is described as a "contest" is not sufficient reason not to appoint a person otherwise appropriate as guardian. This may mean that the Tribunal has to consider the evidence in some little detail. (617)

In some cases the question of whether a private, usually family member, guardian should be appointed or the government official, who has the role of acting as guardian when appointed, can sometimes be a marginal one, while at other times it can be quite clear that even though a particular, close family member may wish to be appointed guardian, it is not in the best interests of the person under guardianship for them to be appointed.

Some examples of these situations are set out below. However, more generally, when dealing with an initial application for a guardianship order but also when reviewing such an order, dissension in the family, provided that the conflict goes beyond "typical family differences", can be a reason why the tribunal or court dealing with the matter may appoint a public official as guardian over a relative in the best interests of the person the hearing is about. Achieving the best interests of the person the hearing is about remains the abiding rule and it is not necessary for the tribunal or court dealing with the matter to expressly find the relative proposed as guardian deficient in their ability to act as guardian before moving to appoint a public official. (618)

First, the difficult choice: RL was born with an intellectual disability in 1950 in Victoria. While she lived in institutions for people with an intellectual disability, her family was in constant contact with her and the two institutions in which she lived. When her father was becoming frail in the early 1990s, he asked the applicant, who was RL's sister, to take over RL's care. Nevertheless, in 1995 the Public Advocate was appointed RL's limited guardian (health care) with the obligation to consult with the father and the applicant on matters of importance.

However, in the same year, the Administrative Appeals Tribunal appointed the applicant as RL's limited guardian for health care and accommodation. A similar order was made by the VCAT's predecessor tribunal in 1996 and in 1998 VCAT appointed the applicant as plenary guardian. She had already been appointed administrator. In 2000 the Office of the Public Advocate and the Maroondah Hospital requested a review of the 1998 guardianship order. It was revoked on review, but VCAT continued the administration order. In 2001 the applicant sought to be re-appointed as RL's plenary guardian.

The Department of Human Services took the view that a plenary guardian was not required but if one was to be appointed, it should not be the applicant. The Department expressed reservations about the suitability of the applicant to act as her sister's guardian.

On the other hand the applicant pointed out that a range of guardianship type decisions were now being made on an ad hoc basis by a range of people, including those who have only limited contact with RL. In the applicant's view it was highly likely that significant health care and other decisions would arise in the future. She also argued that as RL's elder sister, the one who had been significantly involved in her care right throughout her life, the one who had training and experience as a health care professional herself and the person who was the administrator of RL's affairs, she was the logical person to be appointed as RL's guardian. She also pointed to the close bond between RL and herself. (619)

The Vice President of VCAT who heard the matter, Duggan J, noted that there was a significant body of material within the file to confirm the applicant's claims. This included a letter from the sisters' late father noting his own failing health and expressing a wish that the applicant be appointed the guardian of his daughter, RL. Their brother E supported the application. (620)

Duggan J also noted that many major decisions had had to be made in the recent past about RL's health and other circumstances and that it was highly likely that similar issues requiring major decisions would arise in the near future. He also noted that RL would never be able to make those decisions herself and that someone would have to make them on her behalf. Because effectively she had none, the appointment of a plenary guardian would not restrict RL's freedom of decision and action. (621)

Duggan J was willing to appoint a plenary guardian. The question was who should that be? The applicant's case for being appointed guardian was opposed by the Department of Human Services which pointed out that its efforts to work in a collaborative fashion with the applicant had been unsuccessful in the past. They believed that the applicant refused to acknowledge the legitimate role of the Department in the care of RL. For example, the applicant has refused to allow Departmental staff to be present when RL attended medical appointments.

Duggan J noted that the applicant was a person who had strong views about the proprietary or appropriateness of the actions of others. VCAT's file contains many examples of the strongly held views that the applicant had expressed. Duggan J also expressed serious doubts about the wisdom of proceedings the applicant, as RL's administrator, proposed to take against one of RL's former medical practitioners. He considered this to be motivated more by a desire to punish the practitioner than an attempt to compensate RL. (622) Nevertheless, he had no doubt that the applicant had nothing but the best interests of RL at heart and went on to appoint her as her sister's plenary guardian, stating:

The fact remains however that the applicant emerges as a woman who over a long period of time has been devoted to her sister's wellbeing. There is mild criticism of a unilateral decision to reduce the medication that RL was taking on one occasion. Apart from that incident I am not aware of any suggestion that any act carried out by the applicant was other in the best interests of her sister. In respect of that incident the applicant provides a convincing explanation as to why she took the decision that she did. It is relevant to point out that over the considerable period now that the applicant has been the administrator of RL's affairs, her administration has been described as "exemplary". (623)

Second, the case of the family member who wanted to be appointed guardian "no matter what": AS was a 79 year old woman with dementia who lived in an aged care facility in Victoria. The evidence was clear that, because of her dementia, she was unable to make judgments concerning her person and circumstances, particularly her accommodation, and that she needed a guardian. Her son JS wanted to bring her home and sought habeas corpus in the Supreme Court of Victoria, rather than an order appointing a guardian for his mother in VCAT. Another person made a guardianship application to VCAT. (624)

On the question of who should be guardian VCAT held that JS could not be appointed because VCAT could not be satisfied that he would act in his mother's best interests. His application to the Supreme Court was unnecessary and potentially disruptive and distressing to his mother. (625) He had had limited contact with her for some time. It was difficult for him to appreciate her current capacity and her care needs. Also, he essentially discounted expert medical and other opinion about his mother's capacity and her need for high level care. VCAT was concerned that he would contemplate his mother's return home despite the weight of evidence indicating that this would be contrary to her best interests. (626)

VCAT was also concerned that there was a conflict between his interests and those of his mother. He resided in her home and that he was in dispute with the administrator and was "clearly incompatible" with the administrator. (627) For these reasons VCAT could not appoint JS and appointed the Public Advocate AS's guardian. (628)

At times there will be conflict between family members as to who should be guardian and there will be competing applications for guardianship orders. (629) Sometimes those competing applications will be for different private guardians to be appointed. Sometimes one part of the family will want a private guardian while another side of the family, or service-provider applicants, will want the Public Advocate or Public Guardian appointed. Often these applications will result in the public official being appointed, but not always. (630) The tribunal hearing the application must still take evidence on the issue and consider whether despite the opposition to the appointment, a particular private guardian should be appointed in the best interests of the person the applications are about.

Sometimes a person appointed as guardian will be seen by service providers as overzealous and that a public official should be appointed as guardian. The Supreme Court of Queensland dealt with such a case in 2003 and in it Chesterman J noted on the issue of the then Queensland Guardianship and Administration Tribunal appointing a private guardian in place of the Adult Guardian:

The Tribunal may have overstated the point a little by saying that the appointment of the Adult Guardian is a matter of `last resort when there is no other appropriate person for appointment', but the notion underlying that expression is, in my opinion, correct. The Adult Guardian is a functionary of the State which, very properly, endeavours to protect the helpless and defenceless. But where such a person has friends or family who are able and willing to provide the requisite support and assistance it is, in my view, preferable that they be allowed to do so rather than be supplanted by a bureaucrat, no matter how well intentioned. To take any other view is to deny the expression of what is good in human nature. This is all the Tribunal was saying and I agree with it. The Tribunal made the point well. It said that Mr Hunt had demonstrated a degree of affection and devotion for Ms Frame which made him a passionate advocate for her well-being. The alternative was to appoint the appellant [the Adult Guardian] who would do no more than perform his statutory function for one more patient. (631)

When there is no family member or anyone else involved in the life the incapable person available for appointment as a private guardian, it is appropriate to appoint the person who has the role of statutory guardian, for example the Public Guardian in New South Wales, the Public Advocate in Victoria and the Adult Guardian in Queensland. It is not appropriate to consider appointing a paid carer as they will have a conflict of interest that precludes them from appointment. (632)

While private guardians must be, in the opinion of the tribunal appointing them, both willing and able to act as guardian, they also have to meet other suitability criteria. Nevertheless, as Chesterman J pointed out, the only criticism of Mr Hunt was that his zeal has been difficult for the managers of the nursing home to accommodate. His zeal had prolonged the life of the person under guardianship and made her more comfortable. Chesterman J considered it "unreasonable to criticise Mr Hunt because of his unceasing endeavours to alleviate the suffering of the woman he has loved for many years" and went on to state that it would be:

[A] repression of unselfishness and [to] impose a penalty on loyalty if it were considered inappropriate to appoint Mr Hunt as Ms Frame's guardian because he has tried too hard to protect her.

It should not be overlooked that his complaints about the Ms Frame's care were vindicated and that the nursing home sought to have the [Adult Guardian] made guardian shortly after the arbitrator's determination. (633)

More recently the question of whether a family member or other private person with a proper basis for being considered for appointment as a guardian, while wanting to be appointed guardian, is able to carry out the functions of a guardian. There are a number of reasons why a person seeking to be appointed as a guardian may not be appointable. These include not understanding the role of a guardian and not being able to exercise the functions of a guardian in a way that takes account of the views, needs and best interests of the person under guardianship and results in an appropriate decision. There are a number of examples. Some are dealt with in the text and associated footnotes below. (634)

In a 2012 case the then NSW Guardianship Tribunal appointed the Public Guardian as the guardian of an 87 year old woman, Mrs FGE. (635) The Tribunal was satisfied by the professional evidence before it that Mrs FGE had cognitive disability arising from dementia. She had physical disabilities which required her to have care and supervision. Also, she had high level physical needs and needed assistance with all of her activities of daily living and was unable to initiate most of these without assistance. This rendered her, in terms of the Guardianship Act 1987 (NSW) at least "partially incapable of managing her person". (636) It also included the fact that Mrs FGE was unable to make important life decisions, for example, as to where she should reside and the level of care and assistance she required. (637) She and her son with whom she had lived were clearly co-dependent. Neither Mrs FGE nor her son wanted a guardian appointed for her. But if one were to be appointed for her, they wanted it to be her son. However, the evidence showed that the son was unable to take on board the professional assessments of his mother's disabilities. He rejected these assessments for inappropriate reasons. (638) Because of that and other considerations; the Tribunal considered that he was unable to carry out the functions of a guardian. Mrs FGE's daughter proposed herself as guardian although it was probable that she had been estranged from her mother for a long period. However both Mrs FGE and her son opposed this. Also, she advised the Tribunal that she would move her mother to Queensland if she were appointed guardian. But as Mrs FGE's daughter did not attend the hearing, the Tribunal was not able to discuss this intention with her. Nevertheless, the Tribunal noted that it was; "a radical decision in the light of Mrs FGE's long residence in Sydney and very much against her wishes". (639) The Tribunal also considered that questions such as whether Mrs FGE's daughter had engaged in a proper weighing process of important factors, such as Mrs FGE's close relationship with her son and whether she would be prepared to reconsider her proposal to move her mother to Queensland it if faced with further relevant information, were not ones it was able to determine in her absence. (640)

The FGE Case is not an unusual example where, for differing reasons, family members who are willing to be appointed guardian are not able to be appointed guardian because in the opinion of the deciding tribunal, based on the evidence before it, they do not have the insight required or the ability to exercise the discretion or flexibility in decision-making required to be an effective guardian in the circumstances of the particular case. In these circumstances, when there are no others nominees to be considered the Public Guardian/Public Advocate/Adult Guardian will be appointed, but often for a short term. A number of examples are in the footnotes. (641)

Occasionally, family members do not want to be appointed as guardian and want the Public Guardian/Public Advocate to be appointed instead. In a 2012 case the then NSW Guardianship Tribunal appointed the Public Guardian as guardian of a 62 year old woman who had a whole of life intellectual disability. The woman needed a guardian. She got on well with her siblings, but none of them wished to put their relationship with her at risk by being appointed her guardian. (642)

Sometimes families find themselves in conflict over the needs of an elderly member (usually a parent) who has dementia and other conditions and realise that it is because of their conflict that the elderly person is in need of a guardian to make substitute decisions on their behalf. In such a case in 2013 QCAT appointed the Adult Guardian (now the Public Guardian) to make decisions for the elderly person about accommodation, health matters and arrangements for contact with family members. QCAT noted that there was a high degree of distrust and anger between members of the elderly person's large family. QCAT noted further that all family members agreed with its assessment that an independent guardian would be best placed to make personal decisions for the person the hearing was about that were in her best interests, and to hear and take into account the views of all parties, and also to take into account the General Principles of the Guardianship and Administration Act 2000 (Qld). (643)

At other times families find themselves in conflict over access to an elderly family member, usually a parent. Sometimes this conflict can arise after the elderly family member has appointed an enduring guardian (in New South Wales, Tasmania and Western Australia) or an attorney under an enduring power of attorney allowing the attorney to make personal decisions on behalf of the maker (in Queensland and the Australian Capital Territory) or a substitute decision-maker appointed under an advance care directive to make decisions in relation to health care, residential and accommodation arrangements as well as personal affairs (South Australia). This situation can lead to applications to revoke or vary the appointment of enduring guardianship or to have the power of attorney overtaken by an order made by the tribunal authorised to appoint guardians. These applications are usually made by members of the family excluded from access or contact who seek to be appointed guardians themselves. However, the tribunal hearing the application may decide to appoint the State's Public Guardian/Advocate or Adult Guardian or in an ACT case, the ACT Public Advocate, because the history of conflict and animosity in the case between family members is such that an independent decision-maker is needed to determine access issues in the best interests of the person the subject of the order. (644)

In a 2013 case the then NSW Guardianship Tribunal appointed the Public Guardian as the guardian of a 17 year old man who had an intellectual disability. (645) The Tribunal appointed the Public Guardian in the absence of any private person seeking to be appointed as guardian. However, in that case the range of the functions provided and the skill required to carry out those functions effectively raised the issue of there sometimes being cases in which relatively few private guardians would have the ability, knowledge and skills to carry out the functions given to the guardian. However there will be cases where the person under guardianship is living a difficult life and difficult decisions have to be made on their behalf, but even the Public Guardian/Public Advocate is of the opinion that they would not add anything to the decision-making needs of the person under guardianship. (646)

Sometimes the solution to the question of who should be appointed guardian can be resolved by appointing family members as joint, limited guardians for some functions and the Public Guardian/Advocate limited guardian for other purposes. (647) At other times the evidence will indicate that that won't work and that the proper course in the interests of the person under guardianship is to appoint the appropriate public official. As Parker J, President of the South Australian Civil and Administrative (SACAT) said in a 2016 case in which he upheld the appointment of the Public Advocate as guardian for the mother in a family in deep conflict:

I find that there is a very high level of conflict amongst family members and that the conflict is entrenched. That was manifestly clear from both the various written submissions and the oral submissions. I accept the assessment of YHV that the continuing involvement of the Office of the Public Advocate is required so as to ensure that all of those of LXN's children who wish to have access to her are given that opportunity and are also kept informed about her well-being. I consider that the Tribunal reached the correct or preferable decision by finding that the degree of intra-familial conflict and its entrenched nature requires the appointment of an independent decision-maker in the form of the Public Advocate so as to ensure that decisions are made in the best interests of LXN without regard to the deep-seated personal animosity amongst the two groups of siblings. I therefore consider that the decision to appoint the Public Advocate as guardian of LXN was the correct or preferable decision within the meaning of s 70 of the SACAT Act. I do not consider that the joint appointment of MGE and QOS as joint guardians with the Public Advocate would resolve the family conflict issues. (648)

6.11.6 Reviews and reassessments of guardianship

The all the States, except South Australia, and in both the Territories, the tribunals with guardianship jurisdiction are empowered to carry out periodic reviews of the guardianship orders they make. However, as noted by VCAT, but relevant to the other tribunals around Australia, the role of the tribunal when reviewing or reassessing guardianship orders is not to review the decisions of the guardians or to decide what decisions a guardian should make in the best interests of the person under guardianship. Nevertheless, when re-appointing a guardian, the tribunal must be satisfied that the guardian will act in the best interests of the person. Consequently, the guardian's previous decisions may sometimes be relevant to the question of whether the tribunal can be satisfied that that guardian will, in the future act, in the best interests of the person.

VCAT suggested that relevant questions about previous decisions would include:
  1. whether the guardian complied with the guardianship legislation;
  2. whether the guardian obtained sufficient relevant information to make a decision;
  3. whether the guardian was reasonable in seeking out or relying on particular kinds of expertise;
  4. whether the guardian gave appropriate weight to the information available;
  5. whether the guardian's decisions were of benefit to the person under guardianship; and
  6. above all whether the guardian kept an eye on the ball by putting the best interests of the represented person ahead of other considerations.

However, VCAT also noted that in many (reviews or) reassessments these matters would not be in doubt or contention. (649)

Since 29 July 2016, NTCAT has had the role of reassessing guardianship orders made by it. While there is no clear statutory obligation NTCAT to set regular reassessment dates, it has a clear obligation to set a reassessment date when the guardianship order is made. (650) We suggest that it is consistent with the guardianship principles set out in the Guardianship of Adults Act 2016 NT), particularly the relevant considerations set out in those principles. (651)

6.11.7 Requested reviews or reassessments

Whether specifically empowered to do so or not, the guardianship tribunals in all the States and Territories may review the guardianship orders they have made if requested to do so by an appropriate person. The grounds for requesting a review include at least the following:
  1. the order is not working for the person under guardianship, (652)
  2. circumstances have changed that affect the order,
  3. there is new information that was not available at the time of the hearing at which the order was made,
  4. there is no further need for a guardian, or
  5. a review is needed because the guardian is unable to continue, or has become incapacitated or has died and there is no joint or alternative guardian (or, in Queensland, successive guardian).

A party who is unhappy about a decision of a guardianship tribunal to make, renew or continue a guardianship order cannot request a review on that basis. Their proper course is to lodge an appeal against the decision of the tribunal. However, they will be able to raise their concerns when the periodic review of that order is being conducted, provided those concerns are relevant to the circumstances of the person under guardianship prevailing at the time of the review.

6.11.8 The reach of a tribunal's jurisdiction to make guardianship orders

See 6.3.2 above.

6.12 The role of the health care professional

When tribunals and the courts are considering whether or not to make a guardianship order, they rely upon the opinions of health care professionals as information central to the decision they have to make. (653) Although what must be proven in order to appoint a guardian varies across the States and Territories, most tribunals and courts rely upon evidence of disability and incapacity to make an order. Additionally, in New South Wales and Tasmania at least, the legislation requires evidence of the impact of the disorder on activities of everyday life. Also, in each State or Territory the tribunal determining the matter must also, either as required by the legislation or the common law, consider whether there is a need to make an order.

Depending on their role and involvement with the patient, health care professionals are often in a position to provide evidence not only about the basic elements of disability and incapacity but also about the risks to the person the hearing is about and their need for a guardian. Clearly however, when providing opinions for determinations about guardianship matters, health care professionals must be guided by the relevant legislation defining the criteria for appointment of guardians in their respective States or Territories.

It is this that is more determinative of the content of the report, not the discipline of the health care professional. The criteria that need to be met depend on the jurisdiction and are the same regardless of who writes the report. The provision of reports is within the capability and responsibility of all disciplines, and not the realm of one discipline or another such as the social worker or the neuropsychologist. Reports can also be populated by evidence provided by any member of the multidisciplinary team including medical staff, providing this is acknowledged and noted by the person writing the report.

Further, it is not a breach of their professional responsibility to keep client information confidential, or of privacy legislation, for health care professionals to provide information to guardianship tribunals about the person who is the subject of the application.

6.12.1 Ingredients of assessment

A standard approach to assessment for the purpose of a guardianship application is outlined below.

6.12.1.1 The 'why" of the assessment: the trigger

An appropriate trigger for the application and assessment must exist. There may not be a valid trigger if there are already sufficient informal, supported or substitute decision- making arrangements in place such as an Enduring Guardianship or Medical or Personal Enduring Power of Attorney. A mere diagnosis of dementia or the presence of incapacity or insistence by an aged care facility that all patients must be under guardianship are never sufficient triggers for applications and assessments. It is necessary to consider whether there actually are decisions that need to be made. For example, there is no valid trigger for an application for an accommodation order and assessment if the person is already settled in a nursing home or can be supported to make that decision.

Following this approach is consistent with the policy behind the guardianship legislation of all the States and Territories which protects the rights of autonomy of people with decision-making disabilities by appointing guardians (and other substitute decision-makers) only as a last resort. (654) This approach also addresses the problem of unnecessary guardianship applications resulting in long waits to hearing time and extended length of stay in public hospitals.

6.12.1.2 Disability

Firstly, in making assessments for the purpose of guardianship applications, health care professionals should address the nature of the disability the person the subject of the application has. This might include a physical, mental, psychological or intellectual condition and, in New South Wales, advanced age (although the latter would never be considered a cause, per se, of disability). (655) Reflecting the better understanding of the matters that have to be taken into account when a tribunal (or court) is considering making a guardianship order, since mid-2016, the Northern Territory legislation, the Guardianship of Adults Act (NT), concentrates on the concept of impaired decision-making disability (656) Also, as stated in terms in the relevant Australian Capital Territory legislation, (decision-making) disability is not eccentricity, political or religious opinion, sexual orientation or sexual preference, engaging in illegal or immoral conduct or taking drugs, including alcohol. (657)

Secondly, it is extremely helpful for a health care professional to provide in their evidence some evaluation of the severity of the mental illness, intellectual or cognitive impairment so described. This information will assist in the tribunal's understanding of the person's ability to participate in the process as well as in its consideration of whether an order should be made and its type and duration. (658) In the case of dementia, scores on cognitive screening tests such as the Folstein Mini Mental State Examination (MMSE) might be helpful to give a gauge of severity. Additionally, because these functions are not tested by the MMSE, an assessment of the person's cognitive functioning specific to decision-making (e.g. executive functions such as planning, judgment and reasoning) is useful.

Sometimes more detailed neuropsychological assessments may be available, for example where a person has brain damage after a motor vehicle accident or where a person has been extensively "worked up" (or assessed) for dementia. Although not a necessary part of evidence for tribunals, results of neuropsychological testing can be particularly useful in providing a detailed assessment of functioning across the range of cognitive domains mentioned above and especially to reveal strengths and weaknesses that provide opportunity for, and to guide, supported decision-making. Neuropsychological testing can also be helpful for those people who have premorbid high functioning for whom the ceiling effects of the MMSE are particularly relevant.

Finally, a description of the person's mental state, not just cognition, is equally important and relevant, particularly for those with mental illness.

6.12.1.3 Incapacity

As we have emphasised throughout this text, incapacity is task specific and decision specific. Also, it is erroneous to assume that the presence of a disorder per se implies incapacity. It is therefore inadequate to report; "Mrs X has dementia and therefore lacks capacity to make decisions". Rather, tribunals and courts require a description of the way in which the disorder or disability has affected the person's decision-making in relation to the specific matters in question.

Criteria for assessing decision making are specified only in the Queensland legislation which provides that a person has impaired capacity for a personal matter if they are unable, to understanding the nature and effect of their decisions about the matter, to freely and voluntarily make decisions about the matter and to communicate those decision in some way. (659) The Victorian, Tasmanian, Western Australian and Northern Territory legislation make reference to "reasonable judgments". (660) In New South Wales the person must be incapable of "managing his or her person". (661) Regardless of the State or Territory the person is in, their decision-making capacity might be assessed by asking whether they:
  1. know the context of the decision at hand,
  2. know the choices available, and
  3. have the ability to appreciate the potential consequences (risks and benefits) of making particular choices. (662) - (663)

In keeping with the general principles of guardianship legislation throughout Australia, and with the CRPD, which are to preserve, to the greatest extent practicable, an adult's right to make their own decisions and to interfere as little as possible in their right to make their own decisions, it is important to specify in relation to which matters (e.g. where they may live, what medical, dental and community services they may receive) the person is unable to make decisions. This is acknowledged in the legislation in Queensland and the Australian Capital Territory which provides that the person must have impaired decision-making ability in relation to all or any matters relating to their health or welfare. (664) The complexity of decision-making varies with the task and accordingly, it may be easier, for example, for someone with impaired cognition to consent to simple medication or meals on wheels than to weigh the pros and cons of staying at home.

The following is a guide to the kind of questions the clinician might use to assess decision-making in the domains of accommodation, services and health care:

  1. Accommodation: Is the person aware of their disabilities and ability to manage at home? Do they understand choices or alternatives such as residential care and the consequences of their choice? Can they weigh the options of placement versus community support at home?
  2. Services: Does the person acknowledge/understand that they have functional impairment in activities of daily living? Do they understand their choices for dealing with their disability or need for support? Are they willing to accept help in the way of services, and if not, why? Are they aware of the consequences of their choices?
  3. Health care and medical and dental consents: Does the person know and understand their health condition(s) and treatments? Do they know what medications they are on, and for what purpose? Do they use health care professionals when necessary and if not why not?

6.12.1.4 Activities of daily living

In New South Wales, for example, NCAT must be satisfied that the person is restricted in one or more major life activities to such an extent that they require supervision or social habilitation. (665) It is therefore helpful to document the extent of the person's functional impairment in basic (e.g. hygiene, dressing, feeding) and instrumental (e.g. shopping, cooking, cleaning) activities of daily living when making assessments. Although not all jurisdictions require this information, it has been suggested that its inclusion will be of assistance to all Australian guardianship tribunals as it is evidence of the person's disability. (666)

6.12.1.5 Need and best interests

In most States and Territories it is necessary to provide evidence that there is a need to make an order or that an order is in the person's best interests. (667) Consider the current situation regarding practicability of services being provided without the need for an order? Is there any risk? Why might an order be needed or what are the consequences of making, or not making, an order?

It is important to understand that lack of capacity, of itself, is insufficient justification to make an order. Informal mechanisms may obviate the need for an order. For example, the person may be unable to make decisions about personal care but decisions are still being made in their best interests with the assistance of others. As a result of these informal mechanisms, the incapable person may still accept community support services, nursing home placement or the support of their general practitioner and medication as appropriate and therefore not need an order. It is usually when the person is objecting to support that an application to the relevant tribunal becomes necessary.

The Queensland and Australian Capital Territory legislation provides that one of the reasons why an order may be needed is that the person the subject of the application is likely to do something that involves or is likely to involve, unreasonable risk to their health, welfare or property. (668) Sometimes health care professionals will be aware of such risks. These risks can include the person neglecting basic safety measures in the home such as leaving the gas on or otherwise creating fire risks by, for example, smoking in inappropriate places. They might also be at risk of recurrent falls or getting lost, or recurrent presentations to the emergency department due to infections, dehydration or malnutrition consequent upon self-neglect. If such risks have been observed by a health care professional, they should be referred to in any report that health care professional makes to any of the Australian guardianship tribunals.

A consideration of will and preferences has often been included in the notion of best interests. Accordingly, consider the person's wishes in regards to who should be appointed, while recognising the potential risk of undue influence having shaped these wishes. Another consideration with regard to best interests is the preservation of family relationships and cultural and linguistic environments. Consider the wishes of close family members and carers, and if there are any disputes. Family conflict does not benefit the person, who is often caught in the middle as a pawn in family disputes over who is the favourite child, or who "really cares" or "knows what is best". In such cases, the appointment of a neutral decision-maker, ideally still within the family, or as a last resort a Public Advocate/Guardian, is in the best interests of the person. Often health care professionals can provide valuable input into who should be guardian, by virtue of knowledge of personal history and family relationships.

6.12.2 What should a report contain?

A suggested outline for report writing is included in the following box:

A suggested outline of a medico-legal report relating to an application for a guardianship order:

  1. Expertise : An outline of the health care professional's qualifications, experience or expertise that they bring to their assessment
  2. Involvement: What has been the health care professional's involvement with the person?
  3. Is there a diagnosis or disability? What is the nature of the disability (i.e. is it intellectual disability, mental illness such as schizophrenia or bipolar disorder, or acquired brain injury or dementia?) Provide the basis for that diagnosis (i.e. results of examination, including cognitive examination). It is helpful to make specific reference to the cognitive functions relevant to decision-making such as judgment, reasoning and planning.
  4. Severity: An estimate of the severity of the diagnosis
  5. Is there incapacity with regards to matters relating to health and welfare? In what way does the diagnosis/disability impact on the person's decision making about:
    1. Where the person should live;
    2. What services they should receive;
    3. What medical treatment they should be given;
    4. To whom they should have access.
  6. Extent of restriction in life activities - description indicating performance in basic (e.g. hygiene, dressing, feeding) or instrumental (e.g. shopping, cleaning) activities of daily living.
  7. Is there a need for an order? i.e. What is the current situation regarding practicability of services being provided without the need for an order? Is there any risk? Why might an order be needed or what are the consequences of making or not making order,
  8. Do you have any input into who should be guardian? Do you have knowledge of personal history and family relationships, keeping in mind the aim of preserving family relationships and cultural and linguistic environments?

Notes

1 : Gardner; re BWV [2003] VSC 173, [99], 7 VR 487.

2 : P v NSW Trustee and Guardian [2015] NSWSC 579 [24].

3 : Ibid. [52]

4 : Guardianship Act 1987 (NSW) ss 9 and 14

5 : Ibid. s 8. For an example of the Supreme Court making a guardianship order see, Re BC [2009] NSWSC 835. See also Secretary, Department Family and Community services; Re "Lee" [2016] NSWSC 138.

6 : Ibid. s 22.

7 : Ibid. s 15(1)(b).

8 : Ibid. s 23(b).

9 : Boviard v Boviard [2007] NSWSC 146 [16]. See also Johnson v NSW Guardianship Tribunal [2009] NSWSC 664 [12].For a similar view of the Guardianship and Administration Tribunal of Queensland (now QCAT) see, VJC v NSC [2005] QSC 68 [28]. For an earlier, different view see, Re R [2000] NSWSC 886 [18].

10 : P v NSW Trustee and Guardian [2015] NSWSC 579 [25]-[26].

11 : Ibid. [33].

12 : Ibid. [34] and [36].

13 : Ibid. [39].

14 : See Civil and Administrative Tribunal Act 2013 (NSW) Sch 6 cl 14(1).

15 : P v NSW Trustee and Guardian [2015] NSWSC 579 [40].

16 : Ibid. [41].

17 : G v G [2016] NSWSC 511.

18 : Ibid. [17].

19 : Ibid. [29].

20 : Guardianship Act 1987 (NSW) s 15(1)(a).

21 : Ibid. s 9(2).

22 : Ibid. s 9(3).

23 : Ibid. s 3C.

24 : EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501.

25 : Service and Execution of Process Act 1992 (Cth) s 48.

26 : Ms A v Public Guardian [2006] NSWADTAP 55 [49]-[50].

27 : Matter No 2007/1899 (unreported, Guardianship Tribunal, 31 October 2007).

28 : NCK [2004] WAGAB 6 [47].

29 : Ibid. [53].

30 : EAK [2013] NSWGT 18 [18]-[28]. For an earlier example see, NAO [2012] NSWGT 10.

31 : HWS [2016] NSWCATGD 32.

32 : Guardianship Act 1987 (NSW) s 9(1)(a).

33 : Ibid. s 9(1)(c).

34 : Ibid. s 9(1)(d).

35 : In NBX [2013] NSWGT 19, a welfare officer with the NSW Corrective Services with the role of assisting in the planning of NBX's release from custody was sufficient to provide the basis of her genuine concern for NBX's welfare and so her standing to apply to the NSW Guardianship Tribunal for a guardianship order in relation to him.

36 : NEJ [2017] NSWCATGD 1 [6] and [25].

37 : MAQ [2004] NSWGT 1. For a case in which a grand-daughter was held to have standing to bring an application for a guardianship order during a family dispute because she was motivated by a desire to resolve issues in dispute for the benefit of the person the subject of the application, see BDN [2014] NSWCATGD 15.

38 : QAG [2007] NSWGT 12. For a case in which the three aspects of "genuine concern" set out in OAG were applied and the husband in a marriage that had broken down was found to have standing to make a guardianship application in relation to his wife was upheld, see UUU [2013] NSWGT 24. See also, ACJ [2007] NSWGT 15 in which an application for a financial management order by a niece of an elderly lady with dementia was refused on the grounds that the Tribunal was not satisfied that the niece's application was motivated by the desire to advance her aunt's welfare in circumstances in which there was litigation between members of the family. Also FAM [2009] NSWGT 1 in which the Tribunal refused to join a person as a party to an application as he did not have sufficient interest in the welfare of the person the subject of the application. See also BSI [2012] NSWGT 14 and United States Tobacco v Minister for Consumer Affairs [1988] FCA 213; (1988) 20 FCR 520, 526-530.

39 : For a description of "having the care of the person" see, Guardianship Act 1987 (NSW) s 3D. It provides that a person has the care of another person if they, on a regular basis and otherwise than for remuneration (widely defined) provide or arrange for the provision of domestic services and support for that other person. In K v K [2000] NSWSC 1052 [22], Young J of the NSW Supreme Court said: In my view, apart from paid professionals and other people who are outside the section on its clear words, the Tribunal should admit as a party every private person who provides domestic services and support for the person concerned, even if that person gets some remuneration from some source for doing so, if they are not in the class of a professional carer unemotionally involved with the person cared for.

40 : The Public Guardian rarely takes an active part in the hearing of an application for a guardianship order, unless he is the applicant. However, the Public Guardian will take an active part in the review of a guardianship order if appointed guardian.

41 : The Tribunal may join, as a party any person who, in its opinion, should be a party whether because of their concern for the welfare of the person the subject of the application or for any other reason. See s 44 and cl 7 of Sch 6 of the Civil and Administrative Tribunal Act 2013 (NSW). For an example of a case in which an application to be joined as a party was refused see, FAM [2009] NSWGT 1. Note also that, under s 44(2) the Guardianship Division of NCAT may have power to remove as a party a person who been improperly or unnecessarily joined or who has ceased to be a proper or necessary party.

42 : Guardianship Act 1987 (NSW) s 10.

43 : Civil and Administrative Tribunal Act 2013 (NSW) cl 11(1) of Sch 6. There are some minor exceptions in cl 11(2) of Sch 6.

44 : Ibid. cls 12 and 14 of Sch 6 and ss 29, 32, 80, 81 and 83. Appeals against decisions of the Guardianship Division of NCAT can be made to the Appeal Panel of NCAT or the Supreme Court.

45 : Guardianship Act 1987 (NSW) s 14(1).

46 : Ibid. s 3(2).

47 : Ibid. s 3(1). For a case in which a person was held to be at least partially unable to make important decisions about her person and a guardianship order was made in relation to her see, BDN [2014] NSWCATGD 15.

48 : The spouse must have a close and continuing relationship with the person in order to be entitled to have their views sought s 14(2) of the Guardianship Act 1987 (NSW). This provision is intended to overcome problems arising from spouses who have been separated, lost contact but not divorced.

49 : The term "has the care of the person" is defined in s 3D to apply to, but are not limited to, those who, otherwise than for remuneration, but on a regular basis provide domestic services and support to the person with the disability or arranges for the person with the disability to be provided with such services and support. Section 3D also makes it clear that where the person with the disability resides in an institution (such as a hospital, nursing home, group home, boarding-house or hostel) and is cared for there by others, those people do not become the person's carers for the purposes of s 14(2) or any other section of the Guardianship Act 1987 (NSW). Furthermore, those who were the carers of the person with the disability immediately before they began residing in the institution remain the cares of the person for the purposes of s 14(2) or any other section of the Act. The carers pension is not regarded as remuneration for the purposed of these provisions, see Find Young J's decision.

50 : Ibid s 14(2).

51 : IF v IG [2004] NSWADTAP 3, [26]; Ms A v Public Guardian [2006] NSWADTAP 55, [10].

52 : In more recent times while the Administrative Appeals Tribunal continues to adhere to its view that section 14(2) is mandatory, a less censorious attitude to the Guardianship Tribunal's reasons for decision on this issue appears to have been adopted by it. See DG v Public Guardian [2008] NSWADTAP 58.

53 : Ms A v Public Guardian [2006] NSWADTAP 55 [10].

54 : EB & Ors v Guardianship Tribunal [2011] NSWSC 767, [113] and [115].

55 : Civil and Administrative Tribunal Act 2013 (NSW) s 36(1) and (2).

56 : For a case in which all the provisions of s. 14(2) were relevant and were considered see, Matter No. 2003/441 (unreported, Guardianship Tribunal, 7 November 2003).

57 : [2006] NSWADTAP 55.

58 : [2015] NSWSC 579 [312].

59 : P v NSW Trustee and Guardian [2015] NSWSC 579 [317] and Guardianship Act NSW (1987) ss, 14, 3(2) and 4.

60 : Guardianship Act 1987 (NSW) s 15(3).

61 : W v G [2003] NSWSC 1170 [25].

62 : Guardianship Act 1987 (NSW) s 17(1).

63 : In SAB v SEM [2013] NSWSC 253, [62], White J noted that, in deciding whether a guardianship order should be made, NCAT is entitled to have regard to a conflict, whether undue or not, between the interests of the person the application is about and a person being considered for the role of guardian. In IR v AR [2015] NSWSC 1187, [35] Lindsay J noted that: "A "conflict of interest" is "undue" within the meaning of section 17(1)(b) if it is reasonably likely, to an unacceptable degree, to impede the proposed guardian's performance of the duties of a guardian in the particular case". He referred to a number of cases on and around the issue.

64 : Ibid. s 17(1). In a 1999 case, Windeyer J expressed the view that ss. 17(1)(c) and 4 should not be looked at separately and that the requirements of being willing and able to exercise the functions to be conferred on the guardian cannot be looked at without regard to s. 4. See 67/99 (unreported, Supreme Court of NSW, Windeyer J, 29 November 1999), [10]-[12].

65 : Guardianship Act 1987 (NSW) s 16(1)(a).

66 : P v D1 [2011] NSWSC 257.

67 : Guardianship Act 1987 (NSW) s 17(2).

68 : Ibid. s 4.

69 : See the Guardianship Act 1987 (NSW) generally and ss. 15(4) and 18 in particular.

70 : See annual reports for 2012-2013 of the NSW Guardianship Tribunal and the Public Trustee and Guardian.

71 : For an example see, Matter No. 2006/7212 (unreported, Guardianship Tribunal, 29 January 2007).

72 : Guardianship Act 1987 (NSW) s 4(a).

73 : For a case in which the issue of appointing a private person or the Public Guardian was discussed from a different perspective see, Re B (No. 1) [2011] NSWSC 1075 [63]-[70].

74 : HNI [2016] NSWCATGD 12.

75 : Ibid. [24].

76 : Note ZCA v NSW Trustee and Guardian [2016] NSWCATAP 192 [56] as a recent example of the mandatory approach.

77 : For an example see Guardianship Tribunal Matter No 2004/5028 (15 September 2004).

78 : Guardianship Act 1987 (NSW) s 22A.

79 : Matters Nos 97/1071 and 97/1060 (unreported , Guardianship Board, 21 March 1997).

80 : Guardianship Act 1987 (NSW) ss 20 and 22A.

81 : Ibid. s 22A.

82 : Ibid. ss 15 and 16.

83 : Ibid. s 15(4).

84 : Ibid. s 16(2).

85 : Ibid. s 16(1).

86 : For an example of an example of the making of an initial guardianship order see, IBX [2014] NSWCATGD 3.

87 : Guardianship Act 1987 (NSW) s 18(1A) and (1B).

88 : Ibid. s 21(1). For a description of the functions of a guardian see, Chapter 7.

89 : Ibid. ss 16(1) and 21(1).

90 : Ibid. s 16(2A).

91 : EQK [2016] NSWCATGD 29 [14].

92 : EQK [2016] NSWCATGD 29 [26]. See also NEJ [2017] NSWCATGD 1 [50].

93 : Ibid. s 18(2)and(3).

94 : Ibid. s 17(4).

95 : See YLS [2012] NSWGT 13 and Guardianship Act 1987 (NSW) ss 17(4) and 18(2) and (3). See also BDI [2015] NSWCATGD 19.

96 : Ibid. s 11.

97 : Ibid. s 3(3). An "authorised officer" is an officer declared to be an authorised officer, or a member of a class of officers declared to be authorised officers, by the Minister in an order published in the Gazette. (As at 14 April 2014 there was no current gazettal of authorised officers.)

98 : Guardianship Act 1987 (NSW) s 13. At the time of writing the Director-General was the Director-General of the Department of Aging, Disability and Home Care and the Minister was the Minister for Disability Services. However both of them have delegated their powers to officers of the Department of Aging, Disability and Home Care.With the proposed change of the structure of the government agencies in this area of government, the question of who is the "Director General" for the purposes of this section should be checked.

99 : File No C/0020 (unreported, Guardianship Board, 24 August 1989). See also, Matter No 89/0201 (unreported, Guardianship Board, 23 October 1989)

100 : Guardianship Act 1987 (NSW) ss 12 and 13.

101 : Ibid. s 25.

102 : Civil and Administrative Tribunal Act 2013 (NSW), cl 12, Sch 6.

103 : Guardianship Act 1987 (NSW), s 25A.

104 : Civil and Administrative Tribunal Act 2013 (NSW) s. 44(1) and cl. 7 of Sch. 6.

105 : FAM [2009] NSWGT 1, [33] and [35].

106 : Guardianship Act 1987 (NSW), s 4.

107 : Ibid. s 3D for the meaning of "has the care of the person".

108 : Ibid. s 3F(3)(f). See also Civil and Administrative Tribunal Act 2013 (NSW) s 44.

109 : Ibid. s 3F(3).

110 : Ibid. s 25C(2).

111 : Ibid. s 25C(1).

112 : For an example see, Matter No. 2001/4708 (unreported, Guardianship Tribunal, 13 May 2004).

113 : NTL [2013] NSWGT 6 [55]. For another example of a guardianship order not renewed because there was no need see, XAD [2013] NSWGT 10.

114 : For example, in 2012-2013, approximately 39% of guardianship orders were not renewed on review, but approximately 60% were. During that reporting period, 71 non-renewable orders were made.

115 : IF v IG [2004] NSWADTAP 3.

116 : Guardianship Act 1987 (NSW) s 25C.

117 : Gardner; re BWV [2003] VSC 173, [99], 7 VR 487.

118 : See also Jones J's consideration of the scheme of the Victorian Act in Re M and R and the Guardianship and Administration Board (1988) 2 VAR 213, [16]-[21] where at [21] he suggests that the Act replaces the previous system.

119 : P v NSW Trustee and Guardian [2015] NSWSC 579 [24]-[41].

120 : Guardianship and Administration Act 1986 (Vic) s 66. See, PL (Guardianship) [2007] VCAT 2485 and SB (Guardianship) [2007] VCAT 333.

121 : Ibid. s 19.

122 : Ibid. s 19(1).

123 : Ibid. s 19(2). However, note that it is not necessary to nominate a proposed administrator. VCAT will decide who is to be the administrator if it determines that an administrator should be appointed.

124 : Ibid. s 20(a). The "nearest relative: of the person is their spouse or domestic partner or, where they do not have a spouse or domestic partner, the first listed relative in list below who is 18 years or older. If there are of two or more relatives at the same level then the elder or eldest: (a) son or daughter; (b) father or mother; (c) brother or sister; (d) grandfather or grandmother; (e) grandson or granddaughter; (f) uncle or aunt; (g) nephew or niece, see ibid. s 3.The nearest relative available of the person is the nearest available who is not the applicant, the proposed guardian or the administrator of the person's estate.

125 : Ibid. s 20(b). The primary carer of the person is the person who is primarily responsible for providing support or care to the person, see ibid. s 3.

126 : Ibid. In Victoria, at the request of VCAT, the Office of the Public Advocate investigates a substantial number of the matters coming before VCAT and presents reports at the hearing of a number of applications for guardianship orders.

127 : Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 60.

128 : Guardianship and Administration Act 1986 (Vic) s 20.

129 : Ibid. and for any parties not specifically covered by s 20, the common law relating to procedural fairness.

130 : Ibid. s 21.

131 : "Disability" means intellectual impairment, mental disorder, brain injury, physical disability or dementia. See, ibid. s 3.

132 : Ibid. s 22(1).

133 : Ibid. s 22(2).

134 : Ibid. s 22(3).

135 : Ibid. s 23(4).

136 : See as an example; A (Guardianship) [2012] VCAT 1386.

137 : Guardianship and Administration Act 1986 (Vic) s 23(1).

138 : Ibid. s 23(2).

139 : Ibid. s 23(4).

140 : Ibid. s 16(2)(b).

141 : Ibid. s 23(5).

142 : Ibid. ss 34 and 35.

143 : Ibid. ss 19 and 22.

144 : Ibid. s 22(4).

145 : Ibid. s 24(1).

146 : Ibid. s 22(5).

147 : Ibid. s 25(1).

148 : Ibid. ss 32 and 33.

149 : Ibid. s 33(2).

150 : Ibid. s 33(3).

151 : www.publicadvocate.vic.gov.au.

152 : Guardianship and Administration Act 1986 (Vic) s 60A(1) and (6).

153 : Ibid s 60A(1) and(3).

154 : Ibid. s 60A(2).

155 : Ibid. s 60A(4).

156 : Ibid. s 60A.

157 : Ibid. s 60(2).

158 : For examples of reassessments of guardianship order see, WAI [2015] VCAT 1542 and FWJ [2015] VCAT 1595.

159 : Guardianship and Administration Act 1986 (Vic) s 61(1).

160 : Ibid. s 61(2) and (3).

161 : Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 60 and Guardianship and Administration Act 1986 (Vic) s 61(4).

162 : Ibid. s 62(1)(a). The "nearest relative" of the person is their spouse or domestic partner or, where they do not have a spouse or domestic partner, the first listed relative in list below who is 18 years or older. If there are of two or more relatives at the same level then the elder or eldest: (a) son or daughter; (b) father or mother; (c) brother or sister; (d) grandfather or grandmother; (e) grandson or granddaughter; (f) uncle or aunt; (g) nephew or niece. See, Guardianship and Administration Act 1986 (Vic) s 3.

163 : Ibid. s 62(1)(b). The primary carer of the person is the person who is primarily responsible for providing support or care to the person. See, Guardianship and Administration Act 1986 (Vic) s 3.

164 : Guardianship and Administration Act 1986 (Vic) s 62(1).

165 : Ibid. s 62(2A) and (3).

166 : Good Guardianship: A Guide for Guardians appointed under the Guardianship and Administration Act 1986, 2005, Office of the Public Advocate, www.publicadvocate.vic.gov.au.

167 : Guardianship and Administration Act 1986 (Vic) s 63. For an example of a reassessment see, KCB [2015] VCAT 2050

168 : Guardianship and Administration Act 1995 (Tas) ss 7 and 19.

169 : Ibid. s 77. For an example of a case in which this was done, in Victoria, see, SB (Guardianship) [2007] VCAT 333.

170 : Ibid. s 76.

171 : Gardner; re BWV [2003] VSC 173, [99], 7 VR 487. But see also P v Public Trustee and Guardian [2015] NSWSC 579 [24]-[41].

172 : Guardianship and Administration Act 1995 (Tas) s 19(1).

173 : Ibid. s 19(1). The "prescribed information" is set out in regulation 4 of the Guardianship and Administration Regulation 1997 (Tas).

174 : See www.guardianship.tas.gov.au/process.

175 : Ibid.

176 : Guardianship and Administration Act 1995 (Tas) s 11(2)(b).

177 : See www.guardianship.tas.gov.au/process.

178 : Guardianship and Administration Act 1995 (Tas) s 20(1). For the matters and tests VCAT must be satisfied about, see 6. 4. 4. above.

179 : Ibid. s 20(3).

180 : Ibid. s 6(c).

181 : Ibid. s 21.

182 : W v G [2003] NSWSC 1170 [26].

183 : Guardianship and Administration Act 1995 (Tas) s 6.

184 : Ibid. s 21(2)(b).

185 : Ibid. s 21.

186 : Acts Interpretation Act 1931(Tas) s 24(d).

187 : Guardianship and Administration Act 1995 (Tas) s 20(6).

188 : Ibid. s 22.

189 : Ibid. s 21(1).

190 : Ibid. ss 24 and 68.

191 : Ibid. s 67.

192 : Ibid. s 25.

193 : Ibid. s 20(4).

194 : Ibid. s 24(1).

195 : Ibid. s 26.

196 : Ibid. s 20(5).

197 : Ibid. s 26(1).

198 : Ibid. s 65(2).

199 : Ibid. s 65(3), (4) and (5).

200 : For an example of an emergency guardianship order case see, BO (No. 2) (Guardianship) [2003] TASGAB 2. For an application for an emergency guardianship order that was not granted see, JO (Emergency Guardianship) [2014] TASGAB 5.

201 : Guardianship and Administration Act 1995 (Tas) s 65(1).

202 : Ibid. s 65(3) and (4).

203 : Ibid. s 65(5).

204 : Ibid. s 29(1) and (3).

205 : Ibid. s 29(2).

206 : Ibid. s 30.

207 : Ibid. s 24.

208 : Ibid. s 67.

209 : Ibid. s 68.

210 : See South Australian Civil and Administrative Tribunal Act 2013 (SA)ss 6 and 31, and Guardianship and Administration Act 1993 (SA) s 29.

211 : See South Australian Civil and Administrative Tribunal Act 2013 (SA)s 70 and Guardianship and Administration Act 1993 (SA) ss 29 and 35.

212 : South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 71(2) and (2a).

213 : Ibid. ss 24 and 72.

214 : Ibid. s 70(1).

215 : Colmer v O'Brien (1974) 9 SASR 378.

216 : Gardner; re BWV [2003] VSC 173, [99], 7 VR 487.

217 : District Court Act 1991 (SA) s 8. That section provides that the District Court has the same civil jurisdiction as the Supreme Court subject to "qualifications" that do not exclude the parens patriae jurisdiction.

218 : P v NSW Trustee and Guardian [2015] NSWSC 579 [24]-[41].

219 : District Court Act 1991 (SA) s 8.

220 : Guardianship and Administration Act 1993 (SA) s 33(1)(a).

221 : Ibid. s 33(1)(b).

222 : Ibid. s 33(1)(c).

223 : Ibid. ss 3 and 33(1)(c).

224 : Ibid ss 3 and 33(1)(ca).

225 : Ibid.

226 : Ibid.

227 : Ibid ss 3 and 33(1)(d).

228 : Ibid. s 33(1)(e).

229 : Ibid. s 33(2). The application form is available from SACAT's website.

230 : South Australian Civil and Administrative Tribunal Act 2013 (SA) s 53(1)(b).

231 : Ibid s 53(1)(d).

232 : Guardianship and Administration Act 1993 (SA) s 66(1)(b).

233 : Ibid. s 66(1)(a).

234 : Ibid. s 66(1)(c).

235 : Ibid. s 66(1)(d).

236 : See www.opa.sa.gov.au.

237 : Guardianship and Administration Act 1993 (SA) s 29(1)(a)-(c). For a case in which a guardianship order made by the then Guardianship Board was quashed because the evidence of mental incapacity was insufficient to ground the order see, Canham [2002] SADC 88.

238 : Guardianship and Administration Act 1993 (SA) s 3.

239 : Ibid. s 5(a).

240 : Ibid. s 5(b).

241 : Ibid. s 5(c).

242 : Ibid. s 5(d).

243 : Ibid. s 29(1)(d) and (e).

244 : Ibid. s 29(6).

245 : Ibid. s 29(1).

246 : Ibid. s 29(3).

247 : Ibid. s 29(5). However, an adult who is charged with overseeing the ongoing day-to-day supervision, care and well-being of a mentally incapacitated person can be their 'person responsible' for medical and dental treatment. The Guardianship and Administration Act 1993 (SA) suggests that a director of nursing at an aged care facility would be such a person - see s 3.

248 : Ibid. s 29(4).

249 : Ibid. s 51.

250 : Ibid.

251 : See ibid. s 5.

252 : Ibid. s 50.

253 : Ibid. s 29(1) and (4).

254 : Ibid s 52.

255 : Ibid. ss 33 and 54.

256 : Ibid. s 29(1).

257 : Ibid. s 31.

258 : Ibid. s 29(2).

259 : Ibid. ss 29(6) and 57.

260 : Ibid. s 14(7) now repealed and current s 31. See also South Australian Civil and Administrative Tribunal Act (2013) (SA) Part 4.

261 : Guardianship and Administration Act 1993 (SA) ss 32 and 33.

262 : Ibid. ss 31 and 29(2).

263 : South Australian Civil and Administrative Tribunal Act 2013 (SA)s 70.

264 : These orders are made under s 32 of the Guardianship and Administration Act 1993 (SA) and are reviewed under s 57. See 6. 6. 10 below.

265 : Guardianship and Administration Act 1993 (SA) s 57.

266 : Guardianship and Administration Act 1993 (SA) s 57.

267 : South Australian Civil and Administrative Tribunal Act (2013) (SA) s 53(1)(b).

268 : Guardianship and Administration Act 1993 (SA) s 30.

269 : South Australian Civil and Administrative Tribunal Act (2013) (SA)ss 53 and 54.

270 : Ibid. s 53(1)(b).

271 : Guardianship and Administration Act 1993 (SA) s 30. Contrast the terms of s 30 with those of s 57.

272 : Guardianship and Administration Act 1993 (SA) s 32.

273 : Ibid. ss 3 and 32(8).

274 : Ibid. s 32(1a).

275 : Ibid. s 32(1).

276 : Ibid. s 32(3) and (3a).

277 : Ibid. s 33(4) and (6).

278 : Guardianship and Administration Act 2000 (Qld), see Chapter 3 generally.

279 : Ibid. s 240.

280 : Ibid. s 241. Note the comments of Morris J of the Supreme Court of Victoria and Lindsay J of the Supreme Court of NSW about the impact on the exercise of inherent parens patriae jurisdiction of Supreme Courts by the existence of tribunals specifically invested with jurisdiction to make guardianship and administration orders or their equivalents set out in 6.2 and 6.3.1, above. For an example of the transfer of a matter from the then Queensland Guardianship and Administration Tribunal to the Supreme Court see, Re Langham & Ors [2005] QSC 127.

281 : Ibid. s 245.

282 : VJC v NSC [2005] QSC 68.

283 : Ibid. [13]

284 : Ibid. [28].

285 : P v NSW Trustee and Guardian [2015] NSWSC 579 [24]-[41].

286 : Guardianship and Administration Act 2000 (Qld) s 13. For example see, Re MBGJ [2005] QGAAT 3.

287 : Note that on 1 July 2014 the Adult Guardian's roles and functions were taken over by the newly created Public Guardian as a result of the coming into force of the Public Guardian Act 2014 (Qld).

288 : Ibid. ss 12(3) and 115.

289 : Ibid. Schedule 4.

290 : Ibid. s 126.

291 : Ibid. s 116. See also Guardianship and Administration Regulation 2000 (Qld) reg 3 and QCAT's website, www.qcat.qld.gov.au.

292 : Guardianship and Administration Act 2000 (Qld) s 117.

293 : Ibid. s 118(1).

294 : Ibid. s 118(3) and 4.

295 : Ibid. s 118(2), (5) and (6).

296 : Ibid. s 119.

297 : Ibid. ss 123 and 124.

298 : Note that applications may be made to QCAT for a declaration about capacity. See, for example, HLD [2015] QCAT 163

299 : Ibid. s 12(1).

300 : Ibid.

301 : Ibid. s 12(3).

302 : See for example, Re SKE [2006] QGAAT 92; Re MLA [2006] QGAAT 91; Re HMV [2006] QGAAT 87; Re CAJ [2006] QGAAT 73 and Re GMAV [2006] QGAAT 88.

303 : Guardianship and Administration Act 2000 (Qld) Schedule 4.

304 : Ibid. Schedule 2, s. 2.

305 : Ibid. s 11. The general principles are set out in Schedule 1 ss. 1 to 11.

306 : Ibid. s 14(1)(a)(i). Those proposed for appointment as a guardian (or an administrator) must be named in any application to QCAT for it to appoint a guardian or an administrator for an adult. If they don't meet any of the requirements for appointment set out in s 14(1)(a)(i), they must advise the Tribunal before it makes the appointment. They must advise the Tribunal of other matters as well. See, the Guardianship and Administration Act 2000 (Qld) s 16(1)(a) and (b) and (2).

307 : Ibid. s 15(1).

308 : Ibid. s 15(2) and (3).

309 : Ibid. s 15(4)(a) and (b). If they don't meet any of these requirements for appointment, they must advise the Tribunal before it makes the appointment. They must advise the Tribunal of other matters as well. See, the Guardianship and Administration Act 2000 (Qld) s 16(1)(c) and (d) and (2).

310 : Ibid. s 17.

311 : Ibid. s 18.

312 : Ibid. s 14(1)(a)(ii). See also Public Guardian Act 2014 (Qld) s 12(1)(f).

313 : Ibid. s 14(3). In relation to successive guardians see also s 57.

314 : Ibid. s 38.

315 : Ibid. s 26(4).

316 : Ibid. ss 39-43.

317 : Ibid. s 26(1). Section 26(3) requires the guardian to tell the Tribunal if their appointment as a guardian ends because any of the events in 1 - 4 occur.

318 : Ibid. s 31(2).

319 : Ibid. s 27.

320 : Ibid. s 12.

321 : Ibid. s 3 of Part 2 of Sch 2.

322 : Ibid. s 33.

323 : Ibid. s 129.

324 : Presidential Direction No 3 of 2007.

325 : VJM [2012] QCAT 53 and WJP [2012] QCAT 714. For examples of circumstances in which QCAT has made both interim guardianship orders and interim financial management orders see, GMB [2012] QCAT 113 and MB [2013] QCAT 714.

326 : GEM [2016] QCAT 123.

327 : PE [2015] QCAT 520.

328 : DP [2015] QCAT 519. See also BW [2015] QCAT 517.

329 : Guardianship and Administration Act 2000 (Qld) s 180.

330 : Ibid. s 197.

331 : Ibid. s 148.

332 : Ibid. ss 33 - 47.

333 : Ibid. s 28.

334 : Ibid. s 29 and Sch 4. If there is doubt or argument about whether an applicant for a review has sufficient and continuing interest in the person under guardianship to bring their application, this matter may be dealt with QCAT. See, s 126.

335 : Ibid. s 29. While it is unlikely that the Public Trustee or a trustee company will seek a review of a guardianship order, they are empowered to do so and appropriate circumstances may arise.

336 : Ibid. s 31(1).

337 : JTL [2015] QCAT 153 [4] and [5]. Guardianship and Administration Act 2000 (Qld) ss 7 and 12 and general principle 1 of Schedule 1 of the Act.

338 : JTL [2015] QCAT 153 [11]-[14].

339 : Guardianship and Administration Act 2000 (Qld ss 16 and 30.

340 : Ibid. s 31(2). For an example see, Re GI [2004] QGAAT 11.

341 : Ibid. s 31(3).

342 : Ibid. s 81(1)(d).

343 : Supreme Court Act 1935 (WA) s 16(1)(d)(ii).

344 : Guardianship and Administration Act 1990 (WA) s 3A. See also Mr CAD [2001] WAGAB 1 [9] and [10], (2001) 28 SR (WA) 333, 335. For a discussion of the WA Supreme Court's parens patriae jurisdiction, see S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306 [47]-[52].

345 : Re R (1993) 13 SR (WA) 10.

346 : P v NSW Trustee and Guardian [2015] NSWSC 579 [24]-[41].

347 : Guardianship and Administration Act 1990 (WA) s 43(1).

348 : Ibid. s 40.

349 : Ibid. s 43(1)(a).

350 : Ibid. s 41.

351 : Ibid. s 43(1)(b).

352 : Ibid 43(2).

353 : Ibid. s 43(3).

354 : Ibid. s 4(2)(a).

355 : Ibid. s 4(2)(f).

356 : G v K [2007] WASC 319 [77] and State Administrative Tribunal Act 2004 (WA) s 32(1).

357 : G v K [2007] WASC 319 [85].

358 : Ibid [157]-[158].

359 : Guardianship and Administration Act 1990 (WA) s 4(2)(c).

360 : Ibid. s 4(2)(e).

361 : WASAT case E [2017] WACAT 27 [99]

362 : Ibid. s 44(1).

363 : Ibid s 44(2).

364 : Ibid. s 44(3) and (4).

365 : Ibid. s 44(5). For an example of a private guardian and the Public Advocate as guardians see, VGR [2006] WASAT 64.

366 : Guardianship and Administration Act 1990 (WA) s 53.

367 : Ibid. ss 55 and 85(4)(b).

368 : Ibid. s 45(1).

369 : Family Court Act 1997 (WA) ss 68 and 84.

370 : Ibid. s 84(2)(f).

371 : Guardianship and Administration Act 1990 (WA) s 45(1).

372 : Ibid. s 46.

373 : See 7. 2. 4 and Chapter 7 generally.

374 : Guardianship and Administration Act 1990 (WA) s 84. For an example of a guardianship order made for five years and why see, RJC [2006] WASAT 279.

375 : Guardianship and Administration Act 1990 (WA) s 85(1).

376 : Ibid. s 85(2).

377 : Ibid. ss 86-88.

378 : Ibid. s 89(1).

379 : Ibid. s 90.

380 : A v Guardianship and Management of Property Tribunal [1999] ACTSC 77.

381 : Ibid. [70].

382 : Ibid. [71].

383 : Public Trustee v Thompson [2000] ACTSC 4.

384 : Supreme Court Act 1933 (ACT) s 20. See also the power of the Supreme Court to direct ACAT to appoint a guardian under s 316 of the Crimes Act 1900 (NSW) as it applies in the ACT and Guardianship and Management of Property Act 1991(ACT) s 7A.

385 : P v NSW Trustee and Guardian [2015] NSWSC 579 [24]-[41].

386 : Guardianship and Management of Property Act 1991(ACT) s 8C.

387 : ACT Civil and Administrative Tribunal Act 2008 (ACT) s 9.

388 : Ibid. S 7(b).

389 : Ibid. S 7(a).

390 : Guardianship and Management of Property Act 1991(ACT) s 67.

391 : ACT Civil and Administrative Tribunal Act 2008 (ACT) s 117. The approved form is available at www.acat.act.gov.au.

392 : Ibid. S 29(1).

393 : The "domestic partner" of the person the hearing is about is their spouse or the person with whom the person the hearing is about is living with as a couple on a genuine domestic basis, whether of a different or the same sex. There are 9 indicators to help decide whether people are living as domestic partners. See Legislation Act 2001 ACT s 169.

394 : Guardianship and Management of Property Act 1991(ACT) s 72A.

395 : ACT Civil and Administrative Tribunal Act 2008 (ACT) s 30.

396 : Guardianship and Management of Property Act 1991(ACT) s 7(1).

397 : Ibid s 5.

398 : Ibid s 6A.

399 : Ibid s 5A.

400 : Ibid s 7(2).

401 : Ibid s 11.

402 : Ibid ss 9(1) and 10(2).

403 : Public Trustee and Guardian Act 1985 (ACT) s 13(4).

404 : Guardianship and Administration of Property Act 1991 (ACT) s 10(3). The decision-making principles are found in s 4, but are set out below at 6.9.11.

405 : Ibid s 10(4) and (5).

406 : Ibid s 10(3).

407 : Ibid. s 9(4).

408 : Ibid s 10(2).

409 : Guardianship and Management of Property Act 1991(ACT) s 9(3).

410 : Ibid s 32(1).

411 : Ibid s 19(3).

412 : Ibid ss 7(3) and 7B.

413 : Ibid s 11. See 6. 9. 4.

414 : IN THE MATTER OFE.R (Mental Health and Guardianship and Management of Property) [2015] ACAT 73[ 83]

415 : Ibid., [121]

416 : Ibid., [82]

417 : Ibid s 67.

418 : Ibid s 68.

419 : Ibid. If it is not practicable for the application to be made in writing, an alternative procedure, still requiring a hearing and authorisation, is provided in s 68(6).

420 : Ibid ss 16 and 18.

421 : Ibid s 7(3).

422 : Ibid s 7B.

423 : Ibid s 4(2)(a) and (b).

424 : Ibid s 4(2)(c) to (f).

425 : Ibid s 4(3) and (4). The term "carer" is defined in the Guardianship and Management of Property Act 1991 (ACT) s 6.

426 : Ibid. s 29.

427 : Ibid s 31.

428 : Ibid s 28.

429 : Ibid ss 19(2) and 31.

430 : Ibid s 19(1).

431 : Ibid s 19(3).

432 : See, ibid.ss 7 and 11.

433 : Guardianship of Adults Act 2016 (NT) ss 10 to 15.

434 : Supreme Court Act 1979 (NT) s 14 and Supreme Court Act (SA) s 17.

435 : Northern Territory Civil and Administrative Tribunal Act (NT) s. 141.

436 : Ibid. s. 99A - s. 99(2)(b) in particular.

437 : Supreme Court Act (NT) s. 16.

438 : Interpretation Act (NT), s. 17. However the Guardianship of Adults Act (NT) provides, in s. 12, that applications can be made for guardians of persons who are 17. However, if such orders are made, they cannot come into effect until the person the subject of the order turns 18.

439 : The following are relatives of the adult person, as provided for in the Guardianship of Adults Act (NT), s. 3: (a) a spouse or de facto partner; (b) a child; (c) a stepchild; (d) a parent; (e) a foster parent; (f) a brother or sister. For the purposes of the Guardianship of Adults Act ((NT), a brother or sister includes, (i) a half-brother or half-sister and (ii) a person who was adopted by one or both of the adult's parents ; (g) a grandparent; (h) an uncle or aunt; (i) a nephew or niece; (j) a person who is related to the adult in accordance with customary law or tradition (including Aboriginal customary law or tradition). (2) For subsection (1)(f), a brother or sister of an adult includes, (i) a half-brother or half-sister and (ii) a person who was adopted by one or both of the adult's parents.

440 : As provided for in the Guardianship of Adults Act 2016 (NT), s. 3, an agent for an adult person means: (a) a guardian for that adult; (b) a decision maker appointed by that adult in their advance personal plan (if the adult person has made such a plan); (c) if the adult has made an enduring power of attorney - the enduring attorney (d) any other person who has lawful authority to make decisions for the adult about personal matters or financial matters.

441 : Guardianship of Adults Act 2016 (NT), s. 3.

442 : Ibid. s. 80.

443 : Northern Territory Civil and Administrative Tribunal Act (NT), s. 127(1)(a).

444 : Guardianship of Adults Act 2016 (NT), s. 81(1)(c). Note that the Public Guardian is not a party to particular proceedings if, first, the Public Guardian is not the applicant or a guardian or proposed guardian and, second, the Public Guardian informs NTCAT that the Public Guardian does not wish to be a party to those proceedings. However, NTCAT may order the Public Guardian to be joined as a party to the proceedings. In relation to such an order see, Northern Territory Civil and Administrative Tribunal Act (NT), s. 127(1)(d) and 128.

445 : As to 5- 8 see, Northern Territory Civil and Administrative Tribunal Act (NT), s. 127(1)(d)-(g).

446 : Ibid. s 128.

447 : Guardianship of Adults Act (NT), s 84.

448 : Ibid. s 11.

449 : Ibid. s. 5(1) and (2).

450 : Ibid. s. 5(4).

451 : Ibid. s. 5(2)

452 : Advance Personal Planning Act (NT) s. 8 (and surrounding sections).

453 : Guardianship of Adults Act 2016 (NT), s. 5(6).

454 : Ibid. s.11(1).

455 : Ibid. s. 11(2)(a)

456 : Ibid. ss. 1(2)(b).

457 : In relation 3-5 above see, ibid. s 11(2)(c) to (e).

458 : Ibid. s 78.

459 : Ibid. s 4(3).

460 : Ibid. s 4(4).

461 : Ibid. s 4(5).

462 : Ibid. s 4(6). The Act gave examples of s. 4(6) as follows: First, it may be appropriate for a guardian to make provision out of the adult's money for educational expenses for the adult's children, even though that is not directly for the benefit of the adult and will mean that the money is not available to pay for the adult's own expenses. Second it may be appropriate for NTCAT to consent to the adult donating bone marrow to treat the adult's child who has leukaemia, even though doing so may involve some risk to the adult.

463 : Ibid. s 4(7).

464 : Ibid. ss 13(1)(a) and 15.

465 : Ibid. s 13(1)(b) and (2).

466 : Ibid. s 13(1)(c) and (3).

467 : Ibid. s 14(3).

468 : Ibid. s 3.

469 : Ibid. The Act gives the following as examples of s 15(2)(g): a professional relationship with the person under guardianship may include being their doctor or financial advisor, or the manager of the nursing home where they live.

470 : Ibid. s 15(2)(a)-(l).

471 : Ibid. s 4(1) and (3).

472 : Note that where two or more guardians are appointed jointly for a matter, they must exercise their authority unanimously. See, s 22(2).

473 : Ibid. ss 14 and 16(2).

474 : Ibid. s 17.

475 : Ibid. s 18. Also note to 18(3) - See Advance Personal Planning Act (NT), s 61 Powers of Attorney Act (NT), s 15.

476 : Ibid. s 16(1).

477 : Ibid. 16(1) and 17.

478 : Ibid. s 3 - examples of personal matters. Note that an example in the text of an Act is part of the provision of the Act to which it relates. However, an example is not exhaustive, nor does it limit or extend the meaning of the provision. Also, if the example is inconsistent with the provision, the provision prevails to the extent of the inconsistency. See, ss. 55(4) and 62D of the Interpretation Act (NT).

479 : Ibid. s 24(e).

480 : Ibid. s 24.

481 : Ibid. s 20(1) and (2).

482 : Ibid. s 20(2).

483 : Ibid. s 20(4).

484 : Ibid. s 20(7).

485 : Ibid. s 20(5).

486 : Ibid. s 20(6).

487 : Ibid. s 20(8).

488 : The list of those who are interested persons for a person under guardianship the same as those who are interested persons for an adult as set out in s. 3 of the Guardianship of Adults Act 2016 (NT). They are listed in 10. 6. 2. Section 7 of that Act sets out who are the relatives of the person under guardianship as follows: The following are relatives of the adult person, as provided for in the Guardianship of Adults Act 2016 (NT), s. 3: (a) a spouse or de facto partner; (b) a child; (c) a stepchild; (d) a parent; (e) a foster parent; (f) a brother or sister. For the purposes of the Guardianship of Adults Act 2016 ((NT), a brother or sister includes, (i) a half-brother or half-sister and (ii) a person who was adopted by one or both of the adult's parents ; (g) a grandparent; (h) an uncle or aunt; (i) a nephew or niece; (j) a person who is related to the adult in accordance with customary law or tradition (including Aboriginal customary law or tradition). (2) For subsection (1)(f), a brother or sister of an adult includes, (i) a half-brother or half-sister and (ii) a person who was adopted by one or both of the adult's parents. For the purposes of sections 3 and 35(6)(b) of that Act, the following are agents of the person under guardianship: a decision maker appointed by the person under guardianship in their advance personal plan, if they made one. If they made an enduring power of attorney - the enduring attorney. Also any other person who has lawful authority to make decisions for the person under guardianship about personal matters or financial matters.

489 : Ibid. s 35.

490 : Ibid. s 35(5).

491 : Ibid. ss 47 and 48.

492 : Ibid. s 40(a). Note that orders made under section 12 come into force when the person the order is about turns 18. See, s 12(2).

493 : Ibid. s 40.

494 : Ibid. s 19.

495 : Ibid. s 36.

496 : Ibid. s 37(1).

497 : Ibid. ss 11 and 37(1)(b).

498 : Ibid. ss 13-15, 22(1) and 37(1)(b) and (2).

499 : Ibid. s 38(1). Note that if a guardianship order reaches its expiry date while being reassessed, it continues in force until NTCAT completes the reassessment and makes an order. See, s 38(2).

500 : Ibid. ss36-38. See also the previous paragraphs in 6.10.10.

501 : Guardianship Act 1987 (NSW) s 66.

502 : For example in 2005-2006, 11% of guardianship applications were withdrawn during the hearing process. Guardianship Tribunal Annual Report 2005/2005, 21.

503 : Civil and Administrative Tribunal Act 2015 (NSW) Sch. 6, item 10. See also, Guardianship Act 1987 (NSW) s 4(a).

504 : Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 74.

505 : Guardianship and Administration Act 2000 (Qld) s 122.

506 : Department of Human Services v G (Guardianship) [2007] VCAT 160, [23].

507 : Ibid. [22] and [23].

508 : Guardianship and Administration Act 1993 (SA) s 49.

509 : State Administrative Tribunal Act 2004 (WA) s 46(1).

510 : THB [2005] WASAT 25, [5].

511 : Ibid. [9] and [11]. As to examples of withdrawals of other guardianship related applications see, CT and ALT [2014] WASAT 42 and TR and CJ [2013] WASAT 119.

512 : HDH (No 1) (Guardianship) [2005] TASGAB 2.

513 : See for example, Re KJM [2006] QGAAT 80.

514 : For cases showing the advance of dementia see, Re HMV [2006] QGAAT 87; Re BCV [2006] QGAAT 25 and Re GMAV [2006] QGAAT 88; Alzheimer's Disease see, Re HAS [2001] QGAAT 3 and Re KAM [2006] QGAAT 90; for gradual decline because of stroke and possible dementia see, Re CAJ [2006} QGAAT 73; Down's Syndrome see, MH [2015] QCAAT 432; mental illness (chronic schizophrenia) see, Re RG [2006] WASAT 265 and Re SLD [2005] QGAAT 51; mental illness (late onset schizophrenia) see, NE [2015] QCAT 434; acquired brain injury through motor vehicle accident see, Re MLA [2006] QGAAT 91; acquired brain injury compounded by the effects of chronic alcohol abuse see NBX [2013] NSWGT 19; stroke see, Re MCD [2006] QGAAT 3; coma see, Re SKE [2006] QGAAT 92; permanent vegetative state see, Re PLC [2006] QGAAT 89; Huntington's Disease CFN (Guardianship and Administration) [2014] TASGAB 13.

515 : E [2017] WASAT 27 [73].

516 : For examples see, CFL [2007] NSWGT 21 and OTR [2012] NSWGT 26. For a useful description of anoxia nervosa see A Local Authority v E [2012] EXHC 1639 (COP), [23] to [30]. That case is taken up again in Chapters 13 and 14.

517 : PL and SL [2012] WASAT 167, [123] and [124]. Note for example that s. 3(2)(d) of the Guardianship Act 1987 (NSW) provides that a person who has a disability is, after more specific descriptions of a disability, a person, "who is otherwise disabled". Section 3 of the Guardianship and Administration Act 1990 (WA) states that a mental disability includes an intellectual disability, a psychiatric condition, an acquired brain injury and dementia - leaving open the possibility that others matters could be included in the definition of "mental disability". For an example of the same approach being taken to the lack of a formal diagnosis in another context see, Grant v HCCC [2003] NSWCA 73, [11] and [12].

518 : Matter No 92/3609, (unreported, Guardianship Board, 8 March 1993).

519 : For an example see, Re BSK [2013] QCAT 218, [8] in particular.

520 : For a US example see, In re Doe 696 N.Y.S. 348 (1999).

521 : Matter No. 93/2337, (unreported, Guardianship Board, 3 September 1993).

522 : HDH (No 1) (Guardianship) [2005] TASGAB 2.

523 : PL and SL [2012] WASAT 167. See also DRL [2014] WASAT 63 in which the evidence about the capacity of the person the hearing was about to make decisions, particularly about the complex medical interventions that would face her in the future was considered in detail.

524 : Ibid. [139].

525 : Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423.

526 : Ibid. [139] to [141].

527 : Re Bridges (Unreported, Queensland Supreme Court, Ambrose J, (S 2000 of 2000)) and Re IM [2003] QGAAT 16 [53]. See also, Re KB (1994) 12 SR (WA) 380.

528 : Section 4(2)(a).

529 : GC and PC [2014] WASAT 10 [36]. See also KAB and KB [2015] WASAT 65.

530 : For a legislative statement of the presumption of incapacity see, Guardianship and Administration Act 1990 (WA), s 4(2)(a); for a direct reference to the common law presumption of capacity, see Guardianship and Administration Act 2000 (Qld)Sch 1, cl 1. The continued existence of the common law presumption is assumed by the Guardianship and Administration Act 1986 (Vic), s 22, the Guardianship and Administration Act 1995 (Tas), s 20, the Guardianship and Administration Act 1993 (SA), s 29 and Guardianship and Management of Property Act 1991 (ACT) s 7 and the Guardianship Act 1987 (NSW).

531 : Ex parte Lyttleton [1801] EngR 189; (1801) 31 ER 911; In re B (an alleged lunatic) [1891] 3 Ch 274; M v M [1981] 2 NSWLR 334, 336; RH V CAH [1984] 1 NSWLR 694, 706-707.

532 : RH V CAH [1984] 1 NSWLR 694, 706.

533 : For examples see, Re BMR [2006] QGAAT 21 and Re SCRB [2005] QGAAT 76. For a case in which a guardianship order was held not to be needed in NSW because the person the subject of the application had made appointment of an enduring attorney for personal care and health care matters (as well as property matters) in the ACT, but which was recognised in NSW, see NVP [2016] NSWCATGD 1.

534 : Re M and R and the Guardianship and Administration Board (1988) 2 VAR 213. For a similar but more recent example of a case in which no need was found for making a guardianship order see, MFX [2013] NSWGT 13.

535 : Re M and R and the Guardianship and Administration Board (1988) 2 VAR 213, 219.

536 : Ibid. and M v M [1981] 2 NSWLR 334.

537 : Public Trustee v Blackwood [1998] TASSC 130, 8 Tas R 256, 265.

538 : HDH (No. 1) (Guardianship) [2005] TASGAB 2.

539 : Public Trustee v Blackwood [1998] TASSC 130, 8 Tas R 256, 266.

540 : Re MM (2001) 28 SR (WA) 320, 329-330. See also ADP [2005] WASAT 131 and JI and WG [2009] WASAT 79.

541 : Williams v Guardianship and Administration Tribunal [2002] QSC 237.

542 : Ibid. [1]-[2].

543 : Ibid. [5], [8] and [15].

544 : For an example of where the matters in the last two paragraphs were discussed, but a family member was still needed as a guardian to advocate for a man with whole of life disabilities living in a group home see, Matters Nos 1999/208 and 1999/3154 (unreported, NSW Guardianship Tribunal, 6 July 1999 and 7 September 2000, respectively).

545 : Williams v Guardianship and Administrative Tribunal [2002] QSC 237, [8].

546 : MRA, Re [2004] QGAAT 14.

547 : Ibid. [36].

548 : Re AAJ [2006] QGAAT 12.

549 : Re NB Mc (1989) 3 VAR 87. 90.

550 : Ibid. 92-93.

551 : Batchelor v Guardianship Board [1999] SADC 13.

552 : Ibid. [9]. For another example of a case in which the order was seen to be premature and left the Public Advocate unable to take decisions on the person's behalf see, Williams v Guardianship Board [1999] SADC 25. Sometimes the need for the guardian is resolved in those Stated in which interim orders can be made. For example in a Queensland case the Adult Guardian, acting under an interim order, placed a man with severe dementia in appropriate accommodation. As the placement was successful and family members could make any health decisions required, there was no need for a guardian. See, EGS [2012] QCAT 111. For an example of a case in which a guardian was not appointed after QCAT revoked an enduring power of attorney for personal and financial matters see, HB [2012] QCAT 68. HB was a 72 year old woman who lived in a residential aged care facility in Queensland where she was receiving high-level care because of her Alzheimer's Disease. After revoking the enduring power of attorney that she had made, QCAT noted that her accommodation was appropriate, permanent and stable and while there were no imminent decisions to be made about her health care, the statutory health care provisions of the + would provide the means by which substitute consent for medical treatment could be obtained when it was needed. Consequently QCAT did not make a guardianship order in relation to HB.

553 : See for examples see, Re AJH (1993) 12 SR (WA) 393 and Re KB (1994) 12 SR (WA) 380.

554 : McD v McD [1983] 3 NSWLR 81, 86; CF v TCML [1983] 1 NSWLR 138, 141; Public Advocate v RCS [2004] VCAT 1880 [10]. See also the two reviews related to the same person in Matters Nos 1999/208 and 1999/3154 (unreported, NSW Guardianship Tribunal, 6 July 1999 and 7 September 2000, respectively).

555 : Re DAP (1994) 13 SR (WA) 31. See also, Re Y (1993) 12 SR (WA) 372.

556 : In re B (an alleged lunatic) [1891] 3 Ch 274.

557 : DQH (Guardianship) [2013] TASGAB 25.

558 : ZJ [2013] WASAT 12.

559 : Ibid. [27] to [29].

560 : ZJ [2013] WASAT 12, [23]. See AS and AA [2007] WASAT 54, [60] and LGW [2004] WAGAB 4, [34].

561 : See s. 14(2)(d) of the Guardianship Act 1987 (NSW).

562 : IT and AT [2014] WASAT 34.

563 : MGH [2013] WASAT 142, [27].

564 : See s. 110ZD (4) of the Guardianship and Administration Act 1990 (WA).

565 : Ibid. (3)(a) and MGH [2013] WASAT 142, [23].

566 : See s. 110ZD (3)(b) and (4) of the Guardianship and Administration Act 1990 (WA).

567 : MGH [2013] WASAT 142, [20].

568 : See for example Re BPV [2006]QGAAT 6 in which there had been interim guardianship orders because of accommodation problems which had been resolved and there were no outstanding issues.

569 : KAS (unreported NSW Guardianship Tribunal, 13 May 2004, Matter No 2001/4708).

570 : The best statement of these principles is found in the Guardianship Act 1987 (NSW) s 4. See also Guardianship and Administration Act 2000 (Qld) Schedule 1.

571 : MW (Guardianship and Administration) [2003] TASGAB 6.

572 : Ibid. [28].

573 : Ibid. [34].

574 : See for example, Re ELF [2006] QGAAT 74, Re KAM [2006] QGAAT 90, QNE [2014] NSWCATGD 10 and Re T (2000) 24 SR (WA) 177.

575 : See, for example, LAQ [2009] NSWGT 4. For a case in which the Public Guardian was appointed guardian because of the conflict between family members see, FBP [2008] WASAT 21. In PSB [2013] QCAT 17, one of PSB's daughters sought a review of the appointment of two of her sisters as joint guardians of PSB. QCAT noting that, "the simmering ill-feeling between PSB's daughters was palpable at the hearing", was not satisfied that any of her daughters were appropriate decision-makers for PSB and appointed the Adult Guardian [now the Public Guardian] as guardian. QCAT noted that; " the Adult Guardian is experienced, independent, competent and will liaise with all parties who have an interest in ensuring that the best decisions are made for PSB" [25].

576 : Peisah C. Brodaty H, Quadrio C. (2006) "Family conflict in dementia: prodigal sons & black sheep" Int J Ger Psychiatry (2006) 21(5):485-492

577 : For examples see, Matter No. 1999/4756 (Unreported Guardianship Tribunal (NSW), 9 November 1999), Re HAS [2001] QGAAT 3, Re HIO [2006] QGAAT 75, LM and MM [2010] WASAT 110. and FNB [2010] NSWGT 9.

578 : EP v AM [2006] WASAT 11, 41 SR (WA) 176.

579 : Ibid. [103].

580 : Ibid. [112].

581 : D Lane v Northern NSW Local Health District and E Lane v Northern NSW Local Health District [2013] NSWDC 12 [1].

582 : For an example see, Re BCV [2006] QGAAT 25.

583 : WBN [2009] NSWGT 9.

584 : BAN [2013] NSWGT 8.

585 : Ibid. [32] to [34].

586 : MW [2005] WASAT 205. See also, AB [2005] WASAT 303; JJB and EWB [2006] WASAT 110 and EEM [2006] WASAT 94.

587 : Re IHE [2001] QGAAT 2. See also, Re BOW [2005] QGAAT 64.

588 : QAX [2009] NSWGT 11.

589 : NZO [2014] NSWCATOD 9.

590 : RS [2016] WASAT 17 [51] and {52].

591 : Guardianship of Adults Act 2016 (NT), s 35.

592 : [1991] UKHL 1; [1990] 2 AC 1. Also reported as, F v West Berkshire Health Authority [1989] 2 All ER 545. Medium neutral citation, F v West Berkshire H A [1991] UKHL 1.

593 : Ibid. 72-73.

594 : Ibid. 74.

595 : Ibid. 75.

596 : Re application for a guardianship order (BCB) (2002) 28 SR (WA) 338, 345 and 348.

597 : R v Bournemouth Community and Mental Health NHS Trust Ex Parte L [1999] AC 459, 490, In re L [1998] UKHL 24. See also, In re F (Adult: Court's Jurisdiction) [2001] Fam 38, 53, Re F [2000] EWCA Civ 192.

598 : Sheffield City Council v E [2004] EWHC 2808 (Fam) [99]. See also, A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, [39]-[40], Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, and Re S (Adult's Lack of Capacity: Carer and Residence, [2003] EWHC 1909 (Fam), [2003] 2 FLR 1235.

599 : Re JG (unreported, NSW Guardianship Board, 12 June 1996, Matter No. 96/1970).

600 : Ibid. 5.

601 : Darcy (bht Diane Aldridge) State of New South Wales [2011 NSWCA 413, [190].

602 : State of South Australia v Lampard-Trevorrow [2011] SASC 56. See [289] and following.

603 : NCAT Fact Sheet Guardainship Division Restrictive Practices and Guardianship http://www.ncat.nsw.gov.au/Documents/gd_factsheet_restrictive_practices_and_guardianship.pdf

604 : Ibid.

605 : Ibid.

606 : Guardianship Act 1987 (NSW) s 14(2)(a)(i).

607 : Guardianship and Administration Act 1993 (SA) s 5(a)and(b).

608 : Guardianship and Administration Act 1990 (WA) s 4(f). In ES [2014] WASAT 91, the hostility of a father to his son being involved in his affairs was a major contributor to WASAT's decision to appoint the Public Advocate as the father's guardian despite evidence, that WASAT accepted, that the son, "had demonstrated a commitment over time to [his father's] best interests" and that the relationship between him and his father was, "the most enduring relationship" that the father had. Nevertheless, WASAT appointed the son as the administrator of his father's estate.

609 : Guardianship and Administration Act 1986 (Vic) s 4(2)(c).

610 : Guardianship and Administration Act 1995 (Tas) s 6(c) and Adult Guardianship Act 1988 (NT) s 4(c).

611 : Re JD [2003] QGAAT 14.

612 : Guardianship and Management of Property Act 1991 (ACT) s 4(2).

613 : For an example see, HDH (No 1) (Guardianship) [2005] TASGAB 2.

614 : For US cases which discuss the issue of appointing a public official or other non-relative as guardian and the need to explain why see, Estate of Romberg 942 S.S. 2d 417 (1997), Oliva v Oliva 113 S.W. 3d 269 (2003), Estate of Bragdon 875 A. 2d 697 (2005) and Prost v Schuffman 202 S.W. 3d 41 (2006). For an example of a case where this issue is dealt with see, UVT [2015] NSWCATGD 39.

615 : [1988] HCA 68, [21]-[24], 166 CLR 69.

616 : Ibid. [23]-[24].

617 : W v G [2003] NSWSC 1170 [25] and [26].

618 : See as examples, Matter of Hancock 828 S. W. 2d 707 (1992) and Matter of Benson 124 S. W. 3d 79 (2004). For an example of disputes within the family leading to the appointment of the Public Guardian as guardian see, IKB [2008] NWSGT 8.

619 : RL (Guardianship) [2002] VCAT 12.

620 : Ibid. [21].

621 : Ibid. [24].

622 : Ibid. [26] and [27].

623 : Ibid. [26].

624 : AS (Guardianship) [2006] VCAT 2143.

625 : Ibid. [35].

626 : Ibid. [35].

627 : Ibid.

628 : Ibid. [37] - [39]. For another case involving a son wanting to be appointed guardian, but the best interests of the person under guardianship requiring the Public Advocate as an independent guardian see, BK (Guardianship) [2007] VCAT 332. For a case in which one of three sons wanted to replace the Public Advocate as their father's guardian despite the evidence of his unsuitability and the opposition of his two brothers, see HDB [2014] WASAT 108.

629 : See for example, Re R (1993) 13 SR (WA) 10.

630 : For examples of cases in which the public official was appointed and why see, Re F (1993) 12 SR (WA) 375; Re NRM (1994) 12 SR (WA) 384; Matter No 1999/4756 (Unreported, NSW Guardianship Tribunal, 9 November 1999) and EP v AM [2006] WASAT 11, 41 SR (WA) 176.

631 : Adult Guardian v Hunt [2003] QSC 297 [30].

632 : LA [2006] WASAT 297. See for example Guardianship and Administration Act 1990 (WA) s 44(1)(b) and Guardianship Act 1987 (NSW) s 17(1)(b).

633 : Ibid. [31]-[32].

634 : See for example DM [2012] QCAT 152, in which QCAT refused to appoint the partner of a 26 year old aboriginal woman with acquired brain injury, a history of drug use and a psychiatric condition as her guardian and appointed the Adult Guardian instead. QCAT noted that DM's partner had the appropriate cultural knowledge and experience to be appointed, but no ability to comprehend the complexity of his partner's needs. In addition he had continuing ill-health and related stress which threatened his availability and access to his partner. In HKE (Guardianship) [2013] TASGAB 28, the Tasmanian Guardianship and Administration Board refused to appoint HKE's nominee as his guardian. HKE had alcohol related dementia and (possibly) Alzheimer's Disease. The Board found him to be in need of a guardian. Its refusal to appoint his nominee as his guardian was because she appeared to confuse the role of guardian with having the ability to control his money. The Board also considered that there was a conflict between the proposed guardian's interests and HKE's interests. In WP and CK [2013] WASAT 145, WASAT continued the appointment of the Public Advocate as guardian of CK after her youngest son (WP) applied to be appointed his mother's guardian in place of the Public Advocate. WASAT noted that the proceedings about CK had involved a significant number of hearings and considerable time and that the distrust and conflict between the family members had not lessened. It also noted that WP's advocacy for what he believed to be in his mother's best interests was expressed in a manner that was; "highly critical, combative and accusatory" [52] and [53]. In ES [2014] WASAT 91, WASAT appointed the Public Advocate and not the applicant son who wished to be appointed. WASAT accepted that the son had demonstrated a commitment over time to the best interests of his father, the person the subject of the hearing, but noted that if he were appointed the guardian and made the decisions which needed to be made and which would have been against his father's wishes this would be likely lead to further breakdown in what the son claimed and other family members acknowledged was most enduring relationship the father had. In that case, the Public Advocate reported that, when interviewed, the father was hostile to his son and did not want him involved in his affairs. WASAT also accepted the possibility of an increase in the father's anxiety if he were to become aware that his son was making decisions about residential care for him. However, WASAT appointed the son the administrator of his father's estate. For a case setting out the evidence and the reasons why WASAT appointed the Public Advocate and not the person's daughter as her guardian see EE and JM [2015]142.

635 : FGE (2) [2012] NSWGT 3.

636 : Guardianship Act 1987 (NSW) s. 3.

637 : FGE (2) [2012] NSWGT 3, [38].

638 : Ibid. [37]

639 : Ibid. [78].

640 : Ibid.

641 : For a case in which the then NSW Guardianship Tribunal found that a husband and wife who had been living in the home of a man with dementia who were willing to be appointed as the man's joint guardians were not able to be his guardians see, RHH [2012] NSWGT 25, [106] to [116] in particular. For a case in which the then NSW Guardianship Tribunal appointed the Public Guardian for a short period and not the sister of the person under guardianship see, DHM [2013] NSWGT 22, [22] to [33] in particular. In that case the Tribunal considered that it would be detrimental to DHM's mental health to appoint his willing and otherwise able sister as his guardian because he was adamant that he did not want her involved. For an example of a case in which conflict between the parents of an adult with intellectual disability and a clear need for a guardian led QCAT to appoint the Adult Guardian as the adult's guardian see, BLT [2013] QCAT 712. However, for a case in which, despite the conflict between the parents of an adult with intellectual disability and a clear need for a guardian, QCAT appointed the adult's mother as his guardian under a limited guardianship order see, HFG [2013] QCAT 327.

642 : ASX [2012} NSWGT 12.

643 : Sched. 1.

644 : See for example, MAE [2013] QCAT 184 and BMD [2013] QCAT 479. CS and NS [2015] WASAT 116 was a case in which a son wanted to be his mother's guardian, but his sisters wanted the Public Advocate to continue to be her guardian. WASAT sets out in detail the evidence and reasons for its decision to continue the appointment of the Public Advocate. The evidence shows the son unable to appreciate the nature of the decisions facing a substitute decision-maker for his mother and his inability to appreciate what his mother's real needs were likely to be either currently or in the near future.

645 : DLH [2013] NSWGT 4.

646 : JN and TD [2016] WASAT 9. In this case, after a thorough consideration of the evidence, WASAT decided not to accede to the father's request to replace the mother with the Public Advocate as their son's guardian.

647 : See JH [2016] WASAT 20 and SM [2016] WASAT 44.

648 : Re LXN [2016] SACAT 23 [28].

649 : CB (Guardianship) [2006] VCAT 1812 [10] and [11].

650 : Guardianship of Adults Act 2016 (NT), ss 19(1)(a) and 36(1).

651 : Ibid. s 4(5). For reassessments of guardianship orders in the Northern Territory see, 6. 10. 9 above.

652 : For an example of an (unsuccessful) application to replace a Public Advocate on the ground that they were not acting in the best interests of the person under guardianship see, RLB and PMB [2015] WASAT 64.

653 : Bennett HP, Hallen P. "Guardianship and financial management legislation: what doctors in aged care need to know" Intern Med J. (2005) 35(8):482-7.

654 : See for example Guardianship and Administration Act 1986 (Vic) s 4(2) and Guardianship and Administration Act 1990 (WA) s 4. For a differently stated but even stronger statement see, Guardianship and Administration Act 2000 (Qld) Chapter 2 Explanation ss 5-11 and also Sch 1.

655 : Guardianship Act 1987 (NSW) s 3(2).

656 : Guardianship of Adults Act (NT) s 5.

657 : Guardianship and Administration of Property Act 1991 (ACT) s 6A. See also Guardianship of Adults Act (NT) s 5(6) for a longer list of matters that are irrelevant to the question of impaired decision-making incapacity.

658 : Bennett HP, Hallen P, op cit (footnote 565).

659 : Guardianship and Administration Act 2000 (QLD) s 12(1)(a), Schedule 2 s 2 and Schedule 4.

660 : Guardianship and Administration Act 1986 (Vic) s 22(1)(b); Guardianship and Administration Act 1995 (Tas) s 20(1)(b); Guardianship and Administration Act 1990 (WA) s 43(1)(b)(ii) and Adult Guardianship Act 1988 (NT) s 3.

661 : Guardianship Act 1987 (NSW) s 3.

662 : Bennett HP, Hallen P, op cit (footnote 565).

663 : Darzins, P, Molloy DW, Strang D. (Ed) Who can decide? The six step capacity assessment process, Memory Australia Press, Adelaide, 2000, 34-57.

664 : Guardianship and Management of Property Act 1991(ACT) s 7(1); Guardianship and Administration Act 2000 (Qld) s 12(1).

665 : Guardianship Act 1987 (NSW) s 3(2).

666 : Darzins, P, Molloy DW, Strang D op cit (footnote 574).

667 : Guardianship Act 1987 (NSW) s s 14(2); Guardianship and Administration Act 1995 (Tas) s 20(3); Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 22(1) Guardianship and Administration Act 2000 (Qld) s 12(1); Adult Guardianship Act 1988 (NT) s 15(1).

668 : Guardianship and Administration Act 2000 (QLD) s 12(1); Guardianship and Management of Property Act 1991(ACT) s 7(1).


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