On 1 April 2016, the Guardianship function of the former Public Advocate of the ACT, joined the Public Trustee for the ACT, in forming a new agency the Public Trustee and Guardian.
The purpose of the change was to provide a more efficient, conjoined service to the community for persons accessing financial management and guardianship services.
What is Guardianship?
In the ACT, a Guardian is a person appointed by the ACT Civil and Administrative Tribunal (ACAT) under the Guardianship and Management of Property Act 1991.
A Guardian is appointed to make a range of personal and health decisions for a person who is found by ACAT to have a decision-making disability. For the purposes of that Act, a person under guardianship is referred to as a Protected Person.
A Guardian may be an individual or the Public Trustee and Guardian. The Public Trustee and Guardian may only be appointed as guardian as a last resort ie only where an individual is unavailable, unsuitable or unwilling to be appointed or, if the willing parties are in conflict about the needs and interests of the protected person.
The role of the guardian is to act as substitute decision-maker for the protected person.
How does the role of a Guardian differ from the role of an Attorney under an Enduring Power of Attorney (EPA)?
These roles are established under different legislation and have a different practical application.
Adults are encouraged to appoint a person of their choice, while they are competent, to become their substitute decision maker in the event that they become unable to make their own decisions. This might be because of an accident, illness, injury, dementia or mental illness. Appointing a substitute decision-maker is straightforward and all competent adults can do so by completing an EPA.
The Public Trustee and Guardian may be appointed either as attorney under EPA or as guardian or manager under an order of ACAT. Generally, the difference is that an EPA may be made during a person’s capacity and in contemplation of their loss of capacity, whilst a guardianship order may be made after a person has lost capacity.
An EPA allows a person to make a choice about who will represent them in their inability or incapacity. In contrast however, the appointment of a guardian is made by ACAT after considering who is best to represent your interests and wishes.
The Public Trustee and Guardian as Guardian
When appointed as Guardian, the Public Trustee and Guardian may make decisions about -
- where and with whom the person lives;
- the education or training the person receives;
- whether the person is to be allowed to work;
- if the person is allowed to work - and, if so, the nature of the work, place of employment and employer;
- consent for medical procedures or other treatment; or
- bringing or continuing legal proceedings for the person.
How the Public Trustee and Guardian undertakes the role of Guardian
Application may be made to ACAT to consider the appointment of a guardian or (financial) manager. Representatives of the Public Trustee and Guardian attend ACAT hearings every week providing advice and assistance in the making of orders.
Hearings are usually attended by the person (where possible), family members or carers or friends and will be informed by medical professionals about the person’s capacity.
A guardian may be appointed for a maximum term of three years after which time a review is undertaken by ACAT.
ACAT may revoke the appointment of a guardian, manager or attorney.
The Guardianship and Management of Property Act 1991 empowers ACAT to appoint the Public Trustee and Guardian as emergency guardian and/or manager.
An emergency appointment is made when an urgent decision is required on behalf of a person with impaired decision-making capacity and where there is no legally appointed substitute decision-maker already in place (eg as Attorney or Health Attorney).
Only the Public Trustee and Guardian can be appointed as emergency guardian/manager. The Public Trustee and Guardian will generally not make decisions under an emergency order that have long-term implications for the protected person, such as a decision about an individual’s permanent accommodation.
The Public Trustee and Guardian will assist in making emergency applications to ACAT.
Principles to be followed by Guardians in making decisions
In making decisions, a guardian must observe the following principles -
- the protected person’s wishes, as far as they can be worked out, must be given effect to, unless making the decision in accordance with the wishes is likely to significantly adversely affect the protected person’s interests;
- if giving effect to the protected person’s wishes is likely to significantly adversely affect the person’s interests—the decision-maker must give effect to the protected person’s wishes as far as possible without significantly adversely affecting the protected person’s interests;
- if the protected person’s wishes cannot be given effect to at all—the interests of the protected person must be promoted;
- the protected person’s life (including the person’s lifestyle) must be interfered with to the smallest extent necessary;
- the protected person must be encouraged to look after himself or herself as far as possible; and
- the protected person must be encouraged to live in the general community, and take part in community activities, as far as possible.
Before making a decision, the guardian must consult with the person’s carer/s unless the consultation would adversely affect the protected person’s interests. A guardian is not limited in who they may consult in making a decision.
What interests must be protected by guardians and/or managers?
- protection from physical or mental harm;
- prevention from physical or mental deterioration;
- the ability of the person to:
- look after him/herself;
- live in the general community;
- take part in community activities; and
- maintain the person’s preferred lifestyle (other than any part of the person’s preferred lifestyle that is harmful to the person);
- promotion of the person’s financial security;
- prevention of the wasting of the person’s financial resources or the person becoming destitute.