Stephen Lynch, Director, Somerville Legal
Morgan Solomon, Director, Solomon Hollett Lawyers (WA)
Andrew Freer, Principal, KJB Law (ACT)
Katrina Nitschke, Principal, Wills Direct (SA)
One of the most vital areas for consideration by older clients is that of guardianship. Quite simply, guardianship involves decision-making on behalf of a person who is, because of disability, no longer able to manage their own lifestyle, health or affairs other than financial affairs.
Whereas financial decisions are covered by a financial power of attorney or financial management order (see Financial management), guardianship involves decision-making of a more personal nature, particularly relating to lifestyle and healthcare matters.
The importance of having a guardian has increased over time, partly as a result of advancements in medical care which has had the result of:
-
accidents or illnesses which previously may have ended a person’s life now being treatable, with the person surviving albeit with either temporary or permanent incapacity; and
-
a general increase in life expectancy, which brings with it an increased exposure to debilitating conditions such as dementia.
Accordingly, there is now the very real prospect of a person surviving for a very long time while not having the capacity to make decisions regarding their lifestyle and care. During the period of incapacity, these decisions will fall to the guardian.
Appointments of enduring guardian
An appointment of enduring guardian (in South Australia now called an appointment of a substitute decision maker made in an advance care directive) is a document prepared by or on behalf of the person (the principal) while they have capacity, nominating a person, or persons to act as their guardian in the event of their temporary or permanent loss of capacity in the future.
Appointments of enduring guardian (substitute decision maker/s) cover the majority of lifestyle and healthcare decisions, with some exceptions. They allow the principal to consider and plan for the potential for loss of capacity in the future, setting out who will be making decisions on their behalf, as well as any limitations or directions for the making of those decisions.
See Appointments of enduring guardian.
In South Australia see Advance Care Directives.
Guardianship orders
There are a number of circumstances where it is necessary to seek a binding order from either the Supreme Court or the Guardianship Tribunal of the particular state or territory. These circumstances include:
-
no appointment of enduring guardian having been made;
-
there being an existing enduring guardian, but that guardian’s authority being insufficient to cover the decision to be made; and
-
an order is sought revoking an existing appointment of enduring guardian and appointing a replacement guardian.
-
An order is sought to turn a power of guardianship into a formal appointment of a guardian.
See Guardianship orders.
Informal guardianship
A person may still be able to make certain decisions on behalf of the principal, notwithstanding that there is no appointment of enduring guardian and no guardianship order has been made. In particular, the legislation in certain states allows for a ‘person responsible’ to make medical and dental decisions on behalf of the principal.
See Informal guardianship.