What do I do if someone is in need of a guardian but cannot appoint a guardian?

A person (called the appointer) can only appoint a guardian to decide where the appointer lives and what health care the appointer receives if the appointer has signed and understood the effect of the document appointing the guardian.

In some instances this may not be possible, either because the person in need of a guardian has lost the capacity to understand the effect of the document, or refuses help.

In these circumstances an application can be made to the Guardianship Tribunal under the Guardianship Act 1987 for a Guardianship Order.

An application can be made by the person themselves, the Public Guardian, or any other person who in the opinion of the Tribunal has a genuine concern for the welfare of the person. This may be a family member or health provider, such as a community nurse.

Once the application has been filed the Tribunal will allocate a date for hearing of the application. The application should be accompanied by the supporting evidence for the application in the form of witness statements or medical reports.

What does the Tribunal consider in making a determination whether to appoint a guardian?

Section 4 of the Guardianship Act requires the Tribunal to consider and have regard to the views of the person subject to the application, the person’s spouse, and any person who has care of the person. The Tribunal must also consider the importance of preserving the person’s existing family relationships, cultural environment and the practicability of services being provided without an order being made.

Will an order be made?

After considering the evidence and matters outlines in section 4 the Tribunal will make a Guardianship Order appointing a Guardian if the Tribunal is satisfied that the person is in need of a guardian. A person is in need of a guardian if the person is, because of a disability, totally or partially incapable of managing his or her person.

Once an order has been made the appointed guardian will have power to make decisions for the person under the disability, in accordance with any restrictions or limitations set out in the appointment.

The initial appointment of an attorney is usually for a period of 12 months before such is reviewed. The renewal following is usually for a period of 3 years.

If you need advice concerning the appointment of a guardian for you, or someone who you have genuine concerns for their welfare then get in touch with your nearest Prime Lawyers office, or make an appointment online.

We have power of attorney, guardianship and wills lawyers located at Sydney, Parramatta, Chatswood, Sutherland and Wollongong.