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Adult guardianship

14 Sep 2016 - 16:29 | Version 9 |

Contributed by MoniqueHurley and PhilippaMartin and current to 1 May 2016

When a person reaches the age of 18 years they legally become an adult and acquire certain legal rights and duties. Foremost amongst the rights of adulthood is the ability to control and manage one's own personal and financial affairs, something most people can do without help. Some people, however, need help in some areas of their life, such as with decision-making, managing personal and financial affairs and organising daily life, and this is provided by family, friends and others. Still other people are intellectually impaired to the extent that they cannot make informed decisions and reasoned judgments about their own affairs. Such a person can have a legal guardian appointed to make decisions on their behalf.

The Adult Guardianship Act 2014 (AGA) provides for a scheme of guardianship for certain adults who have an intellectual disability. Under the AGA, the Local Court has the authority to make adult guardianship orders; that is, to appoint guardians for adults.

Organisations involved in adult guardianship

Adult Guardianship Office

The Adult Guardianship Executive Office (see Contact points ) processes guardianship applications and assesses eligibility for guardianship. It investigates the personal and family circumstances of the person to determine their most appropriate guardian. A guardianship panel is convened for each case, which prepares a written report that contains recommendations for suitable guardianship orders. This report is submitted to the court. The Office also supervises and educates community guardians and financial managers.

The Public Guardian

The Public Guardian (who is the Minister for Health and Community Services) employs staff to act as guardians for people who do not have an appropriate family member or friend to take on that role. The Public Guardian is the guardian of last resort. The Public Guardian can act as a joint guardian with a 'community guardian' (for example, a friend or family member).

A reader who cannot find the information they need in this section should contact either of these organisations.

Who can be subject to adult guardianship?

Only a person who has an intellectual disability that falls within the definition set out in the AGA can be subject to adult guardianship. In the AGA, an intellectual disability is defined as the inability to make reasonable judgments or informed decisions relevant to daily living [see section 3(1) of the AGA]. This assessment is usually made by doctors and psychologists, but contributions can be made by a variety of other carers. An intellectual disability is not the same as a mental illness (see Mental Health ), but people whose cognitive capacity has been affected by a mental illness may have an intellectual disability under the terms of the AGA Act.

A person under adult guardianship is called a represented person.

When is guardianship needed?

To work out whether a person is eligible for guardianship, an assessment is made of their capacity to make informed decisions and reasoned judgments. Once eligibility is established, it must be shown that the person has a need for an appointed guardian; that is there must be an area in the person's life where a decision needs to be made and there is no-one, apart from the person themselves, who has the legal authority to make it.

There are a variety of situations where it is appropriate to seek an adult guardianship order. These include:
  • where a person's family is available to assist with decision-making or care but disagreements arise within the family or between the family and paid carers about what kind of care or support is to be provided and by whom;
  • where a person with a disability is unable to recognise and understand the need for assistance and, therefore, may put their life at risk. A person is not under any obligation to accept help and has a right to make their own decisions, unless they clearly lack the ability to do so;
  • where a person is subject to neglect, exploitation or abuse. An example would be a person who faces eviction for not paying their rent because they do not understand about money, someone who does not feed or look after themselves, or someone who has lost the capacity to understand and organise their own lives and cannot manage or remember how to do everyday things, such as paying bills, turning off electrical appliances, keeping accommodation clean and tidy, arranging outings, keeping appointments and shopping; or
  • where the family is available to fulfil the carer role, but legal documents need to be signed, consent given to medical treatment or formal arrangements made in regard to financial matters. An example would be a person who needs an operation, but cannot appreciate the risks to their health, so is unable to give the required informed consent.
A person might have an intellectual disability due to dementia, brain damage or long-term substance abuse. In some instances the court considers it appropriate to make an adult guardianship order where an intellectual disability has been caused by a chronic mental illness.

Who may be a guardian?

To be appointed as a guardian, a person must be at least 18 years of age and willing and suitable to fulfil the role. The court generally appoints someone close to the person, such as a family member or friend, and, where appropriate, may appoint more than one person to share the guardianship role. Where the Public Guardian is appointed to act as guardian (see section 14(4) of the AGA) their duties are carried out by adult guardianship officers employed by the Public Guardian. The court can also appoint a family member and the Public Guardian together as joint adult guardians.

A person appointed as guardian does not need any special skills or qualifications, but must meet the following general measures of suitability (see section 14(4) of the AGA):
  • they will act in the best interests of the represented person;
  • their interests do not conflict with those of the represented person;
  • they must have the ability to handle the affairs of the represented person; and
  • they must be available and accessible.

Responsibilities of guardians

Every guardian is expected to consult with and act upon a represented person's wishes and to actively encourage independence and self reliance. Adults under guardianship must, as far as possible, be encouraged and assisted to make their own judgements about their best interests wherever possible (see section 20(2)(c) of the AGA).

Guardianship orders

Adult guardianship orders are made by the Local Court. The court is obliged to notify the Executive Officer of the Adult Guardianship Executive Office about an application for adult guardianship, and the Executive Officer is, in turn, obliged to attend all court proceedings that relate to the AGA (see section 7(3)).

Before the court will make a guardianship order, it must be satisfied that the person has an intellectual disability within the definition set out in the AGA and is in need of a guardian. Three principles set out in section 4 of the AGA are also applied by the court, namely that:
  • those means which are the least restrictive of a represented person's freedom of decision and action as is possible in the circumstances are adopted; and
  • the best interests of a represented person are promoted; and
  • the wishes of a represented person are, wherever possible, given effect to.
Orders are tailored to the needs of each individual. A guardian can be given the authority to act in some or all areas of a represented person's life. For example, an order might see a guardian made responsible for decisions about finances, accommodation, care, medical treatment, education, training and employment.

Some specific powers

A guardian can be given the power to consent to health care and medical treatment on a represented person's behalf (see section 17(3) of the AGA). Examples of the type of medical treatment that would be allowed without the court's consent are generally simple and straightforward procedures that do not involve the use of a general anaesthetic, like dental treatment, some exploratory procedures, flu injections and CAT scans. Some of these treatments or procedures may, however, amount to a major medical procedure if the represented person were frail. If the represented person refuses treatment, the guardian's role is to make a decision that is in the represented person's 'best interests'. A guardian must give effect to the wishes of the represented person wherever possible (see section 4(c) of the AGA). It is unlawful for anyone, even an appointed guardian, to authorise any major medical procedure without the court's consent (see section 21(2) of the AGA).

A major medical procedure is defined in the AGA as one that is generally accepted by the medical or dental professions as being of a major nature (see section 21(4)(a) of the AGA). Examples of a major medical procedure would be a termination of a pregnancy or sterilisation, a triple bypass, kidney transplant, or the removal of a person's last remaining teeth. In emergency situations where the medical procedure is necessary to save the life of the person it is not necessary to obtain the court's consent (see section 21(1) of the AGA).

Part 4 of the Advance Personal Planning Act 2013 (NT) (APP Act) sets out a procedure for the Local Court to follow when giving consent to major medical procedures.

Advance Personal Planning Act

The APP Act also enables people to make plans about how decisions are to be made for them if they lose decision-making capacity. In particular, section 8 of the APP Act gives people with decision-making capacity the opportunity to do either or all of the following:
  1. make consent decisions about future health care action for the person;
  2. set out the person's views, wishes and beliefs as the basis on which he or she wants anyone to act if they make decisions for him or her; or
  3. appoint one or more persons to make decisions for that person if he or she loses decision-making capacity.
Consent decisions can be made in relation to health care to be provided in a particular instance, a course of health care to be provided over a period of time or generally about all health care action. It can be made to apply in particular circumstances or in all circumstances.

An Advance Personal Plan must be in writing and by signed by the person and witnessed by an authorised witness. Depending on the type of Advance Personal Plan, the APP Act sets out approved forms and other formal requirements that need to be considered.

Any disputes in relation to the validity, status or powers set out in an Advance Personal Plan can be heard and determined by the Local Court. The procedure for taking court action with respect to issues arising under the APP Act is set out in Division 5 of the APP Act.

Financial management

A guardian can be appointed to manage a person's financial affairs (see section 16(1)(a) of the AGA). Instead of authorising a guardian to manage a represented person's financial affairs, the court may direct the Public Trustee (see Contact points) or any other person to apply to the Supreme Court for an order under the Aged and Infirm Persons' Property Act 1979 (NT). An order made under that Act would usually see the Public Trustee appointed to manage the person's finances.

Under the AGA, a person appointed as a represented person's financial manager effectively acts as the trustee of the represented person's estate. A manager must keep accurate records of all income and expenditure and provide a financial report of the person's estate to the Executive Office every year (see section 16(3) of the AGA).

Types of orders

The court can make three types of adult guardianship orders:
  • a full order: this order confers all the powers and duties the guardian would have if they were a parent and the represented person their child. This authority includes the power to decide where the represented person lives, who they live with and whether they work.
  • a conditional order: this order imposes conditions or restrictions on the power of the adult guardian. The court determines the conditions or restrictions.
  • a temporary order: this order is granted when an order is urgently needed. It remains in effect for a period not exceeding 90 days.

Urgent orders

Sometimes an order is needed urgently because a person is about to lose their accommodation if they don't pay the rent or because their health is at considerable risk. If an urgent order is needed, an application should be made for a temporary order. A temporary order applies for a maximum of 90 days, within which time a full investigation and assessment is carried out, a guardianship panel convened and a report provided to the court.

Who can apply for an order?

An application for guardianship can be made to the court by a near relative, a person who has provided or is providing substantial care for the person or the Public Guardian (see section 8(1) of the AGA). They can nominate themselves or another person. For example, an elderly spouse of a person suffering dementia might nominate a daughter or son to be that person's guardian.

The application process

An application for adult guardianship can be made to the Local Court, using a simple form that is available from the Adult Guardianship Executive Office. No application fee applies. Staff at the Office can help an applicant with the paperwork; a lawyer is not required. An incomplete application form is not necessarily invalid. Staff will need details of the person's doctor.

When an application is lodged at the court it is given a case number and forwarded to the Adult Guardianship Executive Office. This office then carries out an investigation and a panel is formed, comprised of the Executive Officer of the Adult Guardianship Executive Office; an expert in a relevant field of disability; and a member of the community in or near to which the proposed represented person lives, such as a member of the Aboriginal community, a member of the Council of the Ageing, or a disability advocate. This panel gathers evidence about the application and makes an assessment of the need for guardianship. It then provides a report to the Local Court at the hearing of the application.

The executive officer must arrange and pay for a lawyer to represent the person so that their legal rights are protected, views about the application put forward and best interests served.

Interested parties can also make submissions to the court, but they may be responsible for any associated costs if they cause proceedings to be adjourned or delayed without cause or vexatiously.

Review of orders

Guardianship orders are usually reviewed at two year intervals by the court. Any person can, however, apply to the court for an earlier review if a represented person's circumstances change or additional needs arise. A review may result in an order being continued, varied or revoked, depending on a represented person's needs and situation.

Appeals

Any person who is a party to adult guardianship proceedings can appeal a decision made by the court if they are unhappy with it. An appeal is made to the Supreme Court of the NT and must be made within 28 days. Anyone wanting to make an appeal should seek legal advice first.

Interstate orders

Adult guardianship orders made in the NT can be recognised interstate (see section 30 of the AGA), but the reverse is not true; the AGA does not allow interstate guardianship orders to be recognised in the NT. Interstate guardians must make a new application.

A NT guardianship order can be submitted to an interstate guardianship tribunal, where it should be recognised, enabling a similar order to be issued.

Guardianship of Adults Bill

The NT Government has recently announced the introduction of the Guardianship of Adults Bill, which will substantially change the law around adult guardianship in the NT. This Bill looks to align NT laws with the practices adopted in other Australian states. Some of the significant proposed amendments include the introduction of an independent Office of the Public Guardian with broader powers of advocacy for people with impaired decision making capacity; the introduction of guardianship principles which guide decision makers when making decisions on behalf of another person; the introduction of a more nuanced definition of decision making capacity; the transfer of the jurisdiction from the Local Court to the Northern Territory Civil and Administrative Tribunal and more flexibility in the orders which may be made. The Bill also allows for orders to be made in advance of a person turning 18 and for registration and therefore better recognition of interstate orders. The authors of this chapter understand that the NT Government intends to introduce the Bill before July 2016. More information about the Guardianship of Adults Bill can be found on the NT Department of Health's website.

Contact points

Executive Office of Adult Guardianship
Contact number: (08) 8922 7343 (Darwin)
(08) 8951 6028 (Alice Springs)

Office of the Public Guardian
Contact number: (08) 8922 7116 (Darwin)
(08) 8951 6741 (Alice Springs)

Office of the Public Trustee
Contact number: (08) 8999 7271 (Darwin)
(08) 8951 5493 (Alice Springs)

Email: AGD.PublicTrustee@nt.gov.au
Website: http://www.nt.gov.au/justice/pubtrust/

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