Information for private guardians
More often than not, people with impaired decision-making capacity manage with support from family, friends and service providers. Guardianship is generally only required when there is a problem that cannot be resolved with informal support.
The Tribunal may consider it necessary to appoint a guardian if the needs of the person with a disability cannot be met in any other less restrictive way (such as with informal decision-making support). A suitable family member or friend will be appointed as guardian wherever possible.
Guardianship is an important responsibility. To be appointed as a private guardian you need to:
- Agree to act as guardian
- Be suitable to act as guardia, consistent with the requirements of the Guardianship and Administration Act 1995
- Act in the person’s best interests
When may a guardian be needed?
A guardian may be needed when:
- there are significant decisions to be made and a need for legal authority to give effect to a decision
- the person is unable to make a significant decision themselves, even with support
- there is disagreement about the decision/s or options
- there is no-one else involved who has formal authority to make decisions
- there is significant risk to the well-being and safety of the person if a particular course of action is not taken and the person is objecting
What does being suitable to act as guardian mean?
When deciding whether a person is suitable to act as a guardian, the Tribunal will take into account:
- What the person with a disability wants
- The need to preserve family relationships
- Whether there is a current or perceived conflict of interest between parties
- Whether the proposed guardian and the person with a disability are compatible
- Whether the proposed guardian is available to carry out the role
- The compatibility of the person proposed as guardian with an existing or potential administrator or enduring power of attorney (where applicable)
What does acting in someone’s best interests mean?
Acting in someone’s best interests means:
- Consulting with the person you represent when making decisions
- Promoting their views and wishes (what they want) as far as possible
- Advocating for the person
- Encouraging them to participate as much as possible in the community
- Encouraging and assisting them to become independent and able to make their own decisions
- Protecting them from abuse, neglect and exploitation
what are the reporting obligations?
Private guardians are required to keep a record of the decisions they make and provide annual reports to the Tribunal. More information and an example of an annual report can be found in the Tribunal’s Private Guardian Handbook.
What is the difference between a private guardian and an enduring guardian?
A private guardian is a person appointed by the Tribunal under a guardianship order, after the person with a disability loses decision-making capacity, to make decisions in one or more areas of a person’s life for a limited period of time. An enduring guardian is appointed by a person themselves while they have decision-making capacity and the enduring guardian only starts making decisions if capacity is lost.
Where can I go if I need support?
If you have questions about the role of a guardian you can:
- Read the Tribunal’s Private Guardian Handbook
- Contact the OPG for advice
- Contact the Tribunal for advice
What can I do if I think a guardian isn’t acting appropriately?
If you have concerns that someone is not upholding their responsibilities as a guardian you can:
- Contact the OPG for advice
- Contact the Tribunal for advice
- If you are a person under guardianship, you can apply for a review of your order and also seek assistance from Legal Aid or an advocate to do so if needed.