Adult guardianship

Contributed by LorraineKing and current to 14 February 2019

About guardianship

What is guardianship?

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

What is impaired decision-making capacity?

An adult may have impaired decision-making capacity if they have difficulty:

• understanding and remembering information relevant to a decision about their personal and/or financial matters;
• weighing up this information to make a decision;
• communicating their decision in some way; or
• understanding the effect of the decision.

An adult’s decision-making capacity is, generally, in relation to specific personal and/or financial matters. This means that an adult may have capacity to make decisions about some aspects of their life (for example, decisions about their lifestyle) while having impaired decision-making capacity in relation to other matters (for example, decisions about money and healthcare).

An adult's level of capacity may also change over time. This means an adult's decision-making capacity may be impaired for discrete periods of time (for example, a person experiencing a psychotic episode).

An adult is presumed to have decision-making capacity until the opposite is shown.

The Guardianship of Adults Act 2016 (NT)

The Guardianship of Adults Act 2016 (NT) (the Act) provides a legal framework for the guardianship of adults in the Northern Territory.

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

The Act:

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

The Public Guardian

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

The Public Guardian’s functions include:

• being a guardian for an adult when appointed by a guardianship order;
• advocating on behalf of adults with impaired decision-making capacity;
• advising and supporting persons who are guardians or making (or proposing to make) applications for guardianship orders;
• monitoring and investigating complaints about the conduct of guardians; and
• ensuring compliance with, and prosecuting offences against, the Act.

The Office of the Public Guardian

The Office of the Public Guardian was established on 28 July 2016.

The Office of the Public Guardian provides, among other things, information and support to adult guardians and the Northern Territory community. Their offices are located in Darwin and Alice Springs.

The Office of the Public Guardian publishes helpful resources about adult guardianship on their website (https://pgt.nt.gov.au/resources).

Who determines guardianship applications?

The Northern Territory Civil and Administrative Tribunal (NTCAT) has jurisdiction in all guardianship proceedings in the Northern Territory.

See the NTCAT website (https://ntcat.nt.gov.au) for more information about the NTCAT.

What is a guardianship order?

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

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

What are the guardianship principles?

From 1 July 2024, the guardianship principles in the Act no longer apply to health care. Decisions about health care are now governed by the Health Care Decision Making Act 2023 (NT).

The guardianship principles are a set of decision-making principles that apply to anyone exercising decision-making authority under the Act including all guardians, the Public Guardian, the Public Trustee and the NTCAT. The guardianship principles are outlined in section 4 of the Act (https://legislation.nt.gov.au/Legislation/GUARDIANSHIP-OF-ADULTS-ACT-2016).

A decision maker must exercise their authority in the way that the decision maker reasonably believes is in the adult's best interests. In determining what is in the adult's best interests, the decision maker must:

• seek to obtain the adult's current views and wishes, as far as it is practicable to do so;
• take into account all relevant considerations; and
• weigh up the relevant considerations, giving each of them the weight that the decision maker reasonably believes is appropriate in the circumstances.

Relevant considerations may include:

• the adult’s current and previously stated views and wishes;
• the views and wishes of an interested person for the adult;
• maintenance of the adult’s freedom of decision and action;
• the adult’s ability to be a independent as practicable;
• protection of the adult from harm, neglect, abuse, and exploitation;
• the provision to the adult of appropriate care;
• promotion of the adult's happiness, enjoyment of life, and wellbeing;
• the adult's ability to achieve their maximum physical, social, emotional, and intellectual potential;
• the adult's ability to live in the general community and take part in community activities;
• maintenance of the adult's right to be treated with dignity and respect;
• the adult's ability to maintain their preferred living environment and lifestyle;
• protection of the adult's property and financial resources from loss, damage, or misuse; and
• protection of the adult’s right to confidentiality of information about them.

In deciding what is appropriate in the circumstances the decision maker must use their authority in a way that:

• is least restrictive of the adult’s freedom of decision and action; and
• gives the adult as much support as is practical to make their own decisions.

The Office of the Public Guardian publishes helpful resources about adult guardianship on their website (https://pgt.nt.gov.au/resources).

Who can have a guardian appointed?

The NTCAT may appoint a guardian for an adult if the adult satisfies three (3) criteria:

• the adult has impaired decision-making capacity;
• the effect of the impairment is that for some or all personal matters or financial matters the adult is unable to exercise decision-making capacity; and
• the adult is in need of a guardian for some or all of those personal or financial matters.

The Act prescribes the considerations that must be taken into account when determining if an adult is in need of a guardian including:

• the nature and extent of the adult’s decision-making impairment (for example, the extent and duration of the impairment);
• if there are already any other persons appointed with decision-making authority for the adult;
• any views and wishes stated by interested persons for the adult;
• the desirability of preserving existing family and other relationships for the adult; and
• if the adult’s needs can be met in a way that is less restrictive of the adult’s freedom of decision and action than appointing a guardian.

The NTCAT may appoint a guardian for a young person who is at least 17 years of age if the three criteria are satisfied, however, the order has no effect until the young person reaches 18 years of age.

Who can be a guardian?

The NTCAT may appoint the following as a guardian:

• an individual who is eligible for appointment;
• the Public Guardian; and/or
• the Public Trustee (for financial matters only).

To be eligible for appointment as a guardian, an individual must be at least 18 years of age, must consent to the appointment, and must be considered by the NTCAT to be suitable to be a guardian for the adult. The term individual has been interpreted to preclude the appointment of a corporate entity (for example, a trustee company) as a guardian; see Re NN [2020] NTCAT 1, [10]-[17] (Bruxner P).

Generally, the NTCAT may appoint the Public Guardian and/or the Public Trustee only if there is no adult eligible for appointment, however, this does not prevent the NTCAT from appointing the Public Guardian and/or the Public Trustee together with any eligible adult(s). This effectively makes the Public Guardian a guardian of last resort; see Northern Territory of Australia v EH & Anor [2021] NTSCFC 5, [22] (the Court).

The Act prescribes the matters that must be considered by the NTCAT in determining if an individual is suitable to be appointed as a guardian for an adult. The suitability criteria is outlined in sub-section 15(2) of the Act and includes considerations such as whether the individual is likely to comply with the Act, the individual's criminal history, and the desirability of preserving any existing support network for the adult. Suitability is, generally, considered by the NTCAT on a case-by-case basis, as observed by Bruxner P in Re SC [2019] NTCAT 35, [20]:

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

Guardians

Role of a guardian

A guardian must do the following in relation to the personal and/or financial matters for which the guardian has authority under the guardianship order:

• make decisions on behalf of the adult; and
• advocate for the adult.

In performing these duties, a guardian must:

• act in accordance with the guardianship principles;
• comply with the guardianship order;
• comply with any other orders by the NTCAT;
• comply with the Act;
• act honestly with care, skill, and diligence; and
• cooperate with any other agent(s) for the adult:
  • appointed by a guardianship order;
  • appointed by the adult's advance personal plan (if any);
  • given power by the adult's enduring power of attorney (if any); or
  • appointed to be a health care decision maker for the adult under the Health Care Decision Making Act 2023.

The Office of the Public Guardian publishes helpful resources about adult guardianship on their website (https://pgt.nt.gov.au/resources).

Authority of guardians

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

Personal matters relate to the adult's personal affairs or lifestyle, including:

• health care
• accommodation
• relationships with other people, including who can visit the adult
• care and support arrangements
• employment
• education and training
• day-to-day living matters, such as diet and daily activities
• legal matters relating to a personal matter

Financial matters relate to the adult's property or financial affairs, including:

• receiving and paying money
• banking
• property (including real estate) ownership
• investment and management of assets
• personal or property insurance
• trade or business operations
• legal matters relating to a financial matter

The guardianship order will clearly state which matters a guardian has authority for and the extent of the authority, including any:

• restrictions on the guardian’s authority; and/or
• requirements or directions that must be complied with by the guardian.

Number of guardians

The NTCAT may appoint multiple guardians for an adult. Multiple guardians may be appointed with authority for the same matters or for different matters.

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

Two or more guardians who are appointed jointly must exercise their authority unanimously. If the guardians are unable to exercise their authority unanimously (for example, they cannot agree on a decision for a personal matter for the adult), they may apply to the NTCAT to facilitate the resolution of their differences.

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

Guardianship orders

The NTCAT has responsibility for making guardianship orders.

The guardianship order will include:

• the name and date of birth of the adult;
• the name(s) of the guardian(s) appointed for the adult;
• the matter(s) that each guardian(s) has decision-making authority;
• the date when the order starts (‘date given’); and
• the date when the order will be reassessed or expires.

The duration of an order may be as brief as 90 days (interim guardianship order) or extend for several years. This decision is made by the NTCAT at the application or reassessment hearing.

Applying for guardianship

Who can make a guardianship application?

An adult who is worried about their own capacity to make decisions in some areas, and thinks they need a guardian, can apply to the NTCAT for a guardianship order. An interested personfor the adult (for example, their spouse or de facto partner) may also make an application for a guardianship order if they reasonably believe the adult has impaired decision-making capacity and needs a guardian to make decisions in relation to their personal and/or financial matters.

An application to the NTCAT for a guardianship order for an order may only be made by:

• the adult; or
• an interested person for the adult.

An interested person for the adult is:

• a relative of the adult;
• a guardian for the adult;
• the Public Guardian;
• the Public Trustee;
• a decision maker appointed by the adult's advance personal plan;
• a donee under the adult's enduring power of attorney;
• a health care decision maker appointed under the Health Care Decision Making Act 2023;
• a person who is primarily responsible for providing support or care to the adult; or
• any other person who has a genuine and sufficient interest in protecting the adult's best interests.

Each of the following is a relative of an adult:

• a spouse or de facto partner;
• a child or stepchild;
• a parent or foster parent;
• a sister or brother (including a half-sister, half-brother, or person who was adopted by one or both of the adult's parents);
• a grandparent;
• an aunt or uncle;
• a niece or nephew; and
• a person who is related to the adult in accordance with customary law or tradition (including Aboriginal customary law or tradition).

The Office of the Public Guardian publishes helpful resources about adult guardianship on their website (https://pgt.nt.gov.au/resources).

Making a guardianship application

An application for a guardianship order is made to the NTCAT by filing a Application for Guardianship Order (Form AG1). A Form AG1 may be downloaded from the NTCAT website (https://ntcat.nt.gov.au/publications/form-ag1-application-guardianship-order).

There is no fee for making an application.

A person applying for guardianship must:

• supply information about the adult
• supply information about the adult's impaired decision-making capacity and how it affects the adult’s decisions;
• confirm whether the adult has an advance personal plan and/or an enduring power of attorney;
• identify possible guardian(s) for the adult; and
• confirm whether an interim guardianship order is needed because of a genuine urgency.

Evidence of the adult’s impaired decision-making capacity may require a recent medical or psychological assessment report. The Coversheet and Guidelines for Report by Medical Practitioner or Other Health Practitioner (Form AG3) may be provided to a medical practitioner or other health practitioner for completion for evidence of an adult’s impaired decision-making capacity. A Form AG3 may be downloaded from the NTCAT website (https://ntcat.nt.gov.au/publications/form-ag3-medical-or-other-professional-report).

Other forms that may need to be completed include:

• A Proposed Guardianship Eligibility Declaration (Form AG2); and
  
• A Primary Carer’s Report (Form AG4).

All forms are available on the NTCAT website (https://ntcat.nt.gov.au/getting-started/forms).

After a guardianship application is made

When a guardianship application is filed, the NTCAT will, generally, issue a standard order to the person making the application. The standard order will state a date for a directions hearing in relation to the guardianship application.

Before the directions hearing, the standard order must be provided to:

• the adult subject of the application;
• the proposed guardian(s) for the adult; and
• any other person who has an interest in the guardianship application.

The NTCAT will also notify the Public Guardian of the directions hearing.

The directions hearing

Attendance at the directions hearing is required by:

• the person making the guardianship application
• any interested persons for the adult
• the Public Guardian.

The adult subject of the application is encouraged to attend and participate in the directions hearing.

If required, attendance at the directions hearing may be by telephone or video conference. A person should request permission to attend via telephone or video conference by filing an Ordinary Application (Form 3) with the NTCAT. A Form 3 may be downloaded from the NTCAT website (https://ntcat.nt.gov.au/publications/view-form-3-ordinary-application).

At the directions hearing the NTCAT Member will:

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

Interested persons

Any interested person with concern for the adult can attend the hearing. An interested person might be:

• a relative, friend or a social worker of the adult
• someone who provides support or care
• anyone else with a genuine and sufficient interest in protecting the adult’s best interests
• the Public Guardian or the Public Trustee.

Legal representation

Legal representation is not required at guardianship proceedings before the NTCAT.

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

The guardianship order

When the NTCAT has received all the information needed to consider the guardianship application it may make a guardianship order or dismiss the application (i.e., decide not to make a guardianship order).

When a guardianship order is needed urgently

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

An interim guardianship order may be sought via the Form AG1, which is available on the NTCAT website (https://ntcat.nt.gov.au/publications/form-ag1-application-guardianship-order).

Reassessment of guardianship orders

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

On the reassessment of a guardianship order NTCAT will consider whether:

• the adult's decision-making capacity is still impaired and, if so, the extent of the impairment;
• the adult is still in need of a guardian for their personal and/or financial matters;
• any changes should be made to the person(s) appointed as guardians under the order (including whether they are suitable to remain a guardian); and
• any changes should be made to any other terms of the order.

Following reassessment, the NTCAT must:

• continue the order without changes ('confirm the order');
• continue the orders with some changes ('vary the order');
• revoke ('end') the order and replace it with a new order; or
• revoke ('end') the order.

Registering an interstate guardianship order

An adult to whom a guardianship order relates or any interested person for the adult may apply to the NTCAT to register an interstate guardianship order if the adult is living in the NT. A person may apply to the NTCAT by filing an Application to Register an Interstate Guardianship Order (Form AG6). A Form AG6 may be downloaded from the NTCAT website (https://ntcat.nt.gov.au/publications/form-ag6-application-registration-interstate-guardianship-order).

Decision-making authority of guardians

Health care decisions

A guardian may have authority to make decisions to commence, continue, cease, or refuse health care for an adult. A guardian's authority for health care decisions may be subject to the Advance Personal Planning Act 2013 (APP Act) and the Health Care Decision Making Act 2023 (HCDMA).

Guardians with authority for health care decisions must be mindful of the HCDMA when making decisions relating to an adult's health care. This is because the Act and the HCDMA (the Acts) both apply to health care decisions, and the HCDMA prevails if the Acts are inconsistent.

The HCDMA provides a hierarchy of potential decision makers for the health care of an adult with impaired decision making capacity. Generally, a guardian with authority for health care decisions ranks second behind only a person with authority appointed by an advance personal plan or interstate equivalent.

Health care is a broadly defined to mean any kind of health care. This includes:

• services provided by medical practitioners or other AHPRA registered health practitioners (for example, treatment requiring a doctor or dentist to do or supervise);
• hospitals services;
• mental health services;
• pharmaceutical services (for example, giving prescribed medications);
• ambulance services;
• community health services; and
• pathology services (for example, undertaking blood tests).

A guardian cannot make or consent to ‘restricted health care’ decisions under the Act. Only NTCAT can make these decisions.

Conversely, a guardian who is also a health care decision maker appointed under the HCDMA may consent to some restricted health care decisions if certain circumstances apply (see below).

Restricted health care

Restricted health care includes:

• actions that result in sterilisation;
• termination of a pregnancy;
• removal of tissue that won’t grow back for transplanting to another person;
• medical research or experimental health care for a condition that an adult either has or is of significant risk of being exposed;
• medical research or experimental health care intended to gain knowledge about a condition the adult has or had;
• health care that is not accepted as evidence-based or best practice by a substantial number of health care providers specialising in the relevant area of health care;
• electroconvulsive therapy; and
• any treatment that involves punishment (of any kind) to influence behaviour.

Generally, a guardian has no authority, and cannot consent to, restricted health care for an adult. Despite this, a guardian who is also a health care decision maker appointed under the HCDMA may, in some cases, consent to:

• sterilisation or the termination of pregnancy if the reason for the procedure is to treat an illness, injury or other organic malfunction and serious or irreversible damage to the adult's health is likely unless the procedure is performed; and
• clinical trials or the collection of information that is approved by a Human Research Ethics Committee registered with the National Health and Medical Research Council (NHMRC) and conducted in accordance with any NHMRC human research guidelines.

See section 30 of the Health Care Decision Making Act 2023 for ‘restricted health care', section 4 of the Transplantation and Anatomy Act 1979 for ‘non-regenerative tissue’, and the National Health and Medical Research Council website for the National Statement on Ethical Conduct in Human Research.

A health care decision maker should always seek legal advice before making any decision in relation to restricted health care.

If the adult has an advance person plan or enduring power of attorney

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

An APP may include any of the following:

• an advance consent decision;
• an advance care statement; and/or
• the appointment of substitute decision-maker(s).

An enduring power of attorney (EPOA) is a legal document that gives someone else the legal right to act on your behalf under the law. You can no longer make an EPOA in the Northern Territory, however, an EPOA made prior to 17 March 2014 remains valid. The maker of the EPOA is referred to as the donor and the person appointed under the EPOA is referred to as the donee.

The NTCAT must take an APP and/or an EPOA into account in determining:

• whether an adult needs a guardian;
• whether a guardianship order should be made; and
• if so, the terms of the order.

The NTCAT must not make a guardianship order that confers on the guardian authority for a matter for which a decision maker under an APP and/or a donee under an EPOA already has authority. The guardian for the adult and/or the Public Guardian must apply to the NTCAT for a reassessment of a guardianship order if:

• they become aware that an adult has an APP and/or EPOA; and
• the NTCAT is unaware of the APP and/or EPOA.

Advance personal planning is governed by the Advance Personal Planning Act. Powers of attorney are governed by the Powers of Attorney Act.

Further information on advance personal plans is available on the NT Government website (https://nt.gov.au/law/rights/advance-personal-plan).

Financial matters

A guardian with authority for financial matters must:

• keep reasonable and up-to-date records of the adult’s assets and liabilities
• comply with any record keeping and reporting requirements stated in the Guardianship of Adults Act and any Guardianship of Adults Regulations
• complete a Form AG9 Asset Management Plan for the NTCAT
• complete a Form AG10 Financial Statement for the NTCAT

All guardians with authority for financial decisions will be required to complete a Form AG10 Financial Statement for NTCAT. A financial statement is a document which provides information about income, expenditure, assets and liabilities in relation to the represented adult. The Form AG10 is available on the NTCAT website.

Dealing with the adult’s property

A guardian with authority for financial matters:

• must deal with the adult's property as if they hold it in trust for the adult, acting only in the adult’s interests; and
• in dealing with the property, is subject to the same duties, obligations and limitations of a trustee.

A guardian may deal with property otherwise than as a trustee only when permitted to do so by a provision of the Act or authorised by the Tribunal to do so. In any event, a guardian must act honestly and with care, skill and diligence, as Bruxner P observed in Re SC [2019] NTCAT 35, [35]-[37]:

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

A guardian can use their authority to benefit someone other than the adult if that benefit:

• is similar to one the adult provided when they had decision-making capacity, or might reasonably be expected to provide;
• is reasonable in the circumstances; and
• does not significantly adversely affect the adult’s best interests.

Providing for dependants and giving gifts

A guardian may only use the adult’s property to provide for the adult’s dependants or to give a gift if:

• the gift or provision is of a kind the adult made when they had decision-making capacity, or might reasonably be expected to make; and
• the value of the gift or provision is reasonable in the circumstances.

NTCAT can restrict or expand a guardian’s authority to make gifts or provide for dependants. A guardian must not make a gift to themself from the adult's property unless the NTCAT has authorised them to do so.

Access to information

A guardian has the right to access information relating to the adult, as long as it is relevant to the exercise of their authority.

If the information a guardian requests is refused without reasonable excuse, the guardian can apply to NTCAT for an order that the information be provided. A guardian may apply by filing a Form AG7 Miscellaneous Application in the NTCAT.

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

What can’t a guardian do?

A guardian cannot do any of the following for the represented adult:

• vote for the adult in a government election or referendum;
• make, change or revoke their will, power of attorney, or advance personal plan (or anything having similar effect);
• exercise their rights as an accused person in criminal investigations or proceedings (including those under part 10 of the Mental Health and Related Services Act) ;
• make or give effect to decisions about the care and wellbeing of the adult’s children or the adult adopting a child;
• make or give effect to decisions about the adult starting or ending a relationship, or marrying or divorcing; or
• make or give effect to decisions about the adult entering into a surrogacy arrangement for which a parentage order may be made under the Surrogacy Act 2022.
  

If a guardian cannot perform the duties of guardian

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

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

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

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

If a represented adult will not follow the directions of a guardian, a guardian may file a Form AG11 Application for Specified Measures in the NTCAT. The NTCAT has the power to authorise specified persons to take specified measures to ensure the represented adult complies with the guardian’s decisions.

The Full Court of the Supreme Court of the Northern Territory provided an example of a situation in which such an application may apply in relation to health care decisions in Northern Territory of Australia v EH & Anor [2021] NTSCFC 5, [55]:

Make contact with OPG

Contact points

Office of the Public Guardian

Phone: 1800 810 979

Email: pgt@nt.gov.au

Webpage: https://pgt.nt.gov.au

Fax: (08) 8942 6891

Office Hours: 8 am to 4 pm Monday to Friday

Darwin Office

Level 1, Building 3, Darwin Corporate Park

631 Stuart Highway, Berrimah NT 0828

Postal: GPO Box 1722, Darwin NT 0801

Alice Springs Office

Jalistan House
First Floor, 18 Parsons Street (cnr Todd Mall)
Postal: GPO Box 1722, Darwin NT 0801