Guardianship: What to know

This section deals only with guardianship of adults (unless for example the child is a state ward). Parents are of course the guardians of intellectually disabled children. However, as with all children, legal parental responsibility ceases at 18. (s61C(1), Family Law Act 1975 (Cth)).

Guardianship of intellectually disabled adults involves the same sort of control as a parent has over a young child. This includes controlling where the person is to live or work, what education the person is to have, and what medical treatment a person should have (for example, operations). Guardianship is different from the financial management of a person’s money and property.

The Guardianship and Administration Act 1995 (Tas) establishes the Guardianship Stream of the Tasmanian Civil and Administrative Tribunal (TASCAT). The Tribunal performs a number of functions including the appointment of guardians for adults with a disability, to make personal life-style decisions. The Act has also created the Office of the Public Guardian whose function is, amongst other things, to act as guardian of last resort and, where desirable, to intervene in guardianship proceedings that come before the Tribunal.

Mental Capacity

A guardian, enduring guardian or enduring power of attorney are for when a person lacks mental capacity. Mental capacity has a definite meaning. Mental capacity is where you know what you are doing and understand the consequences of your actions. If you lack mental capacity, you will need a guardian, enduring guardian or enduring power of attorney.

Guardianship

Guardianship is the legal responsibility and power to make important decisions on behalf of another adult, who cannot make reasonable decisions for themselves. Decisions may be about where that person will live, the care and services they receive, or financial matters.

Guardian

A guardian is a person who has been given the legal power to make important decisions on behalf of another adult – such as where that person should live, or what care and services the person should have. A guardian exercises the powers of guardianship. If the Guardianship Stream of TASCAT (the Tribunal) has to appoint a guardian for an adult with a disability, they will often appoint the Public Guardian. However, a guardian can also be a spouse, parent, relative or friend of the represented person. To be a guardian, a person must:

• Be at least 18 years of age
• Act in the best interest of the represented person
• Not be in a position where their interests conflict with the interests of the represented person
• Be suitable to act as the person’s guardian

The Tribunal website provides the Private Guardian’s Handbook – a resource for private guardians appointed by the Tribunal.

A guardian:

• makes decisions for you that are in your best interests.
• will make decisions for you in the areas set out in the guardianship order.

If you do not understand what this means or have not yet received a copy of this order, just speak to your guardian.

When asked to make a decision on your behalf, your Guardian may talk to you about what you would like. They may also talk to people who know you, such as your family or your doctor.

A Guardian must act in your best interests, and take into account your wishes.

A Guardian’s job is to encourage and  assist you to make reasonable judgements for yourself, and to help protect you from neglect, abuse and exploitation, and act as your advocate. This does not always mean your Guardian will agree with you.

Your Guardian will act with respect, integrity, open-mindedness and will try to understand your individual needs.

The Public Guardian

The Public Guardian is a public official who can be appointed to be the guardian of an adult with a disability. The Public Guardian would fulfil the same duties as a private guardian. The Public Guardian can be appointed by the Tribunal, but also be appointed by a person who wishes to appoint an enduring guardian. The Tribunal will set out the various types of decisions that the Public Guardian can make. Under an enduring guardianship, a person can make the same conditions toward a Public Guardian as toward any other appointee.

An Enduring Guardian

An enduring guardian is a person you appoint to make your medical or accommodation decisions if you should lose the ability to decide for yourself because you lack mental capacity. This period of incapacitation is called the ‘enduring phase’. It can be permanent, such as where you have dementia, or it could be temporary, for example, if you are in a coma.

When you appoint an enduring guardian, your are ‘the appointor’. You appoint them under a document called an enduring guardianship. To appoint an enduring guardian, the enduring guardianship must be registered with the Tribunal.

Typical situations in which an enduring guardian may be appointed include:

• Anticipation of dementia
• A “just in case” appointment for if a person finds themselves incapacitated mentally or physically in an accident

An enduring guardian is much like a guardian in that they are legally bound to act in your best interests. However, because they are appointed in anticipation of a possible loss of ability, there are often specific directions that they are required to follow, rather than just a legal responsibility to promote your interests. The difference between a guardian and an enduring guardian is that an enduring guardian is appointed by the appointor, the person that the enduring phase applies to. A guardian is appointed by another person or by the Tribunal.

An enduring guardian is legally bound to do several things. An enduring guardian MUST:

• be over 18 years of age,
• Follow your specific directions, stipulated in the instrument of appointment
• Act in your best interests and promote your dignity
• Ensure that you retain as much freedom of action and decision as is possible.
• Keep records of their decisions (s 32D)

An enduring guardian CAN NOT:

• be involved in your life, either directly or indirectly in an administrative or professional capacity. For example, your G.P. cannot be an enduring guardian.
• be the Public Guardian. The Public Guardian cannot be the enduring guardian
• act when there is a conflict of interest.
• Make decisions about your finances or estate.

An enduring guardian SHOULD BE:

• Trustworthy
• Decisive
• Level headed
• Able to advocate for you
• Able to cooperate, if you appoint two guardians
• Aware that they have been appointed as an enduring guardian

Enduring guardians are bound to follow the conditions you have stipulated before your disability prevented your ability to make decisions. These conditions may be about medical care or accommodation. These conditions should be clear, lawful and possible to carry out. So, it is not lawful to include that your enduring guardian euthanise you, or procure you illicit drugs for the purpose of euthanasia.

You can have a single enduring guardian, or joint enduring guardians. You can also appoint an alternative guardian for circumstances where the original guardian is absent or incapacitated. An enduring guardian cannot make decisions about your finances or your estate. Tasmanian law requires that you appoint a separate enduring power of attorney for matters to do with your finances or estate.

Changes that came into effect from 21st October 2013 mean that for decisions made after that date, an enduring guardian has the right to access all information about you to which you would have been entitled access (s32B, Guardianship and Administration Act). This information must be reasonably required for the purpose of exercising a power or deciding to exercise a power of guardianship. This can include medical or financial information. For example, if the enduring guardian has to consider whether you should be admitted to a nursing home, your financial position will be important to understand for the guardian. Or, if the enduring guardian must decide whether or not you should take certain medication, access to your medical records will help to inform that decision. This right only applies to decisions or actions taken by the guardian after 21st of October 2013, and applies to both existing and future instruments.

The enduring guardian can also access the appointor’s will if it is reasonably relevant to the decision that the guardian is considering. For example, if the guardian is considering the option of nursing home care, and finances show that selling the appointor’s house may be the only way to finance the decision, looking at the will may be reasonably relevant to the decision as the will may contain specific instructions to do with the house.

Another change that came into effect in October concerns conflicts of interest. If the enduring guardian must make a decision that creates a conflict of interests with themselves, a relative, business associate or close friend of the guardian, it will be necessary to apply to the Tribunal for approval of the decisions (see ss 27, 32C and 35). However, you can exclude this from the instrument of appointment and authorise the enduring guardian to act in situations of conflict of interests, without the need to seek approval from the Tribunal. Like the information provision, this applies to existing and future instruments, but only applies to decisions made after the 21st of October 2013.

So, while the enduring guardian cannot make decisions about your finances or estate, they may make decisions that affect those things, and access information about your finances or estate, if it is reasonably relevant to their decision making.

If someone is concerned with the activities of an enduring guardian, it is possible to lodge an application with the Tribunal for review of the appointment. Amendments to the instrument of appointment also need to be lodged with the Tribunal.

For an excellent handbook on enduring guardianship, see the Tribunal website.

Enduring Power of Attorney

You should always seek legal advice before creating an enduring power of attorney. An enduring power of attorney is the other half to the Enduring equation. The Enduring power of Attorney is a document, such as with an enduring guardianship, which gives certain powers to an appointed person. An Enduring Power of Attorney is for making financial decisions. The person you appoint is called ‘the attorney’ or ‘the enduring attorney’. When you appoint an enduring attorney you are ‘the donor’. The applicable Act is the Powers of Attorney Act 2000.

As with enduring guardianship, the enduring attorney power applies where the donor lacks mental capacity, and this phase can be either permanent or temporary, such as where a person has dementia, or where they are in a coma.

An enduring attorney should be someone you trust, someone who is capable and has knowledge of financial decisions, who is decisive, and who will act in your best interests.

The enduring attorney has the obligation to act in the best interests of the donor, in consultation with the donor, and take into account the wishes of the donor. The wishes of the donor may not be known, and so the attorney is required to act in accordance with what would reasonable likely be those wishes (s 14).

Several changes with enduring power of attorney have been passed, but they have not commenced. This will occur early in 2014. These changes include:

• A close relative cannot witness the instrument appointing an enduring attorney. This means that souses, parents, grandparents, siblings, children, in-laws, aunts and uncles of the donor cannot witness the document. This new provision does not invalidate existing instruments (s 9)
• Death, bankruptcy or insolvency of the donor must be registered with the Recorder of Titles. This applies to all past and future enduring powers of attorney (s 11)

The scope of authority has been further defined. The powers of the enduring attorney are numerous. They include, but are not limited to the enumerated powers at s 31. These include carrying on business on behalf of the donor, expending money to maintain property of the donor, bringing and defending legal action on behalf of the donor, fulfil contractual obligations, pay debts, etc.

Changes similar to those for enduring guardianship include the right to the information to which the donor is entitled, including information which, but for the mental incapacity, the donor would have been entitled to (s 32AA). Restrictions on activities that would create a conflict of interest also apply.
The Tribunal has extensive power to intervene in a Power of Attorney where an attorney decides they no longer wish to act as attorney, or where the attorney is not exercising their power appropriately. The Tribunal can:

• Appoint a substitute attorney
• Revoke the enduring power of attorney
• Appoint an administrator of the donor’s estate

The Tribunal can also declare an enduring power of attorney is invalid if:

• The donor did not have mental capacity at the time of making the power of attorney
• The instrument does not comply with legislative requirements
• The donor was induced because of dishonesty or undue influence to make the power of attorney

The Tribunal can also assist an attorney in their decision making by providing advice, approving or disapproving an act proposed by the attorney, they can vary a term of the order as well, and advise on the role and responsibilities of the attorney. The Tribunal can also receive complaints where an attorney is alleged to be acting improperly, and decide an application to revoke the power of attorney in such circumstances.