Information for people seeking to be appointed as a Private Guardian
As adults, we can choose where we live, who we see or visit, what medical treatment we want, and what services we wish to have.
Generally, if a person has an impaired ability to make decisions, decisions are still made by the family or carers along with the person with a disability. Usually this arrangement works well, but sometimes there are disagreements about what is the best decision that can be made, or who is best placed to make those decisions, or what decisions can be made that best promote their dignity and freedom.
A guardian is someone who has legal authority to make certain decisions on behalf of another person. If a person has lost decision-making capacity and a guardian needs to be appointed, then unless that person has already appointed an Enduring Guardian, the only way this appointment can be made is by an application to the Guardianship and Administration Board.
The Board has an obligation to only make an appointment if the needs of the person with a disability cannot be met in any other less restrictive ways, and must not make an order unless that order is in the best interests of the person with a disability.
If you wish to seek appointment as the Guardian of someone with a decision-making disability, then:
- You must consent to act as Guardian
- You agree to act in the best interests of the person with a disability
- Your interests do not conflict with the interests of the person with a disability
- You are deemed to be a "suitable" person to take on the role.
In determining whether a person is suitable to act as guardian, the Board will take into account:
- The wishes of the person with a disability, so far as they can be ascertained
- The desirability of preserving existing family relationships
- The compatibility of the person proposed as guardian with the person with a disability
- Whether or not you are available and accessible to the person with a disability so that you can carry out your role.
If the Board appoints you as a full guardian, then you would have the ability to decide:
- Where the person with a disability lives
- With whom the person with a disability lives
- Whether the person with a disability should work
- If it is necessary to restrict visits to that person as necessary in his or her best interests
- To consent to or health care or refuse or withdraw consent to health care decisions
The Board must not make a full order unless it is satisfied that an order for limited guardianship is insufficient to meet the needs of the person with a disability. You have the right to ask the Board for a Statement of Reasons as to why they have made the type of order that they have made.
If you are appointed as guardian, then you must act at all times in the best interest of the person under guardianship. This means you must act:
- In consultation with that person, taking into account their wishes, as far as possible
- As an advocate for them
- In such a way as to encourage them to participate as much as possible in the life of the community
- In such a way as to encourage and assist them to become capable of caring for themselves and of making reasonable judgements
- In such a way as to protect them from neglect, abuse and exploitation.
You will be required to keep track of major decisions and to provide annual reports about these decisions to the Guardianship Board.
The Guardianship Board will also provide you with a Manual on appointment which outlines your responsibilities.
If you have any questions about the role of a guardian, feel free to contact the Office of the Public Guardian for advice and assistance.
If you would like to apply to become the guardian of a person with a decision-making disability, you can contact the Guardianship and Administration Board on 6233 3085 or email them at OPG@publicguardian.tas.gov.au or visit the Guardianship and Administration Board website.