Information for private guardians

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

The Tribunal use the obligation and duties of a guardian as set out in the Guardianship and Administration Act 1995 (the Act) to determine the suitability of a person to act as a guardian, specifically sections 5, 8 and 9, and Part 4 Division 3.

Section 5 - meaning of promoting a person's personal and social wellbeing

a) to respect the inherent dignity of the person and their autonomy, including the freedom to make their own choices and their right to independence;

b) to respect and promote the person's own decision-making ability;

c) to ensure the person is free from neglect, abuse, exploitation and other forms of harm;

d) to recognise the importance of preserving the dignity of risk of the person and using it to inform decisions;

e) to ensure the person is treated without discrimination;

f) to respect the persons individuality, including person and lifestyle activities that provide pleasure, purpose and fulfilment to the person;

g) to have regard to the person's existing supportive relationships, religion, values, gender identity, gender expression, sexual orientation and cultural and linguistic environment;

h) to respect the right of the person to enjoy their culture, including with other people who share their culture;

i) to respect the person's right to privacy and to contact and communicate privately with others;

j) to regosnise the importance of, and facilitating access to the provision of supports that enable the person to exercise autonomy;

k) to resognise the importance of the person of,  and the benefits obtained from having a companion animal.

Section 8 - principles to be observed

a) to respect and promote the  person's decision-making ability;

b) to provide access to the support necessary to enable the person to make and participate in decisions affecting them, express their will and preferences and to develop their decision-making ability;

c) to respect the views, wishes and preferences of the person in respect of decisions and use them to inform decisions;

d) to resognise the role of close family members, carers and other significant people in the life of the person in respect of decisions;

e) to recognise the importance of preserving the cultural and linguistic environment of the person;

f) to promote the personal and social wellbeing of the person in respect of decisions;

g) to adopt the means which is the least restrictive of the person's freedom of decision and action as possible in the circumstances.

Section 9 - decision-making process

In determining whether to make a decision for the person, to have regard to:-

• an advance care directive if one has been made in respect of the decision to be made, and
• whether the person is likely to regain decision-making ability in respect of that decision, and if so, whether the decision can be postponed without the delay causing harm to the person.

If a decision needs to be made for the person:-

• to give effect to the views, wishes and preference of the person, if known, and if not known, to give effect to what I reasonably believe the views, wishes and preferences are, based on all available information;
• act in a manner that promotes the person and social wellbeing of the person in accordance with section 5;
• is the least restrictive of their human rights;
• to consult with close family members, carers and other significant people in the person's life who reasonably believe the person would want to be consulted;
• to only override the views, wishes and preferences of the person if necessary to prevent serious harm, or the risk of serious harm to the person or another person or if the implementation of the decision would be unlawful;
• if I override the views, wishes or preferences of the person I will provide the person with information as to why I have done so in a way that is appropriate to the person's circumstances.

Section 25 of the Act stipulates that a guardian understand that they can only make decisions as specified in the formal guardianship order.

Section 26 of the Act details the exercise of authority by the appointed guardian:

a) I must promote the personal and social well being of the person;

b) I must act in accordance with the principles set out in section 8;

c) I must have regard to the decision-making process set out in section 9;

d) I must act honestly;

e) I must treat the person with respect and dignity;

f) I must communicate with the person by means that the person will be best able to understand;

g) I must keep the person informed about decisions made, information obtained and steps taken by me, as appropriate in the circumstances;

h) I must regularly consult with any other guardian or administrator of the person and keep them informed about substantial decisions or actions subject to the terms of my appointment;

i) I must act as an advocate for the person where possible;

j) I must encourage and support the person to develop their decision-making ability where possible;

k) I must protect the person from violence, neglect, abuse and exploitation.

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.

A private guardian is a person appointed by the Tribunal under a guardianship order, after the person with impaired decision-making 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.

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

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.