IMPAIRED CAPACITY; GUARDIANSHIP, ADMINISTRATION, POWERS OF ATTORNEY

Many adults need assistance in relation to the management of their personal and financial affairs because of an intellectual disability, mental illness, acquired brain injury, dementia or any age related illness. Many members of the community chose to appoint a person to look after their affairs only if they become incapable of making their own decisions. These are sensible precautions which many people do not consider until it is too late.

State Administrative Tribunal

In circumstances where a person is not capable of

  • looking after his/her own health and safety;
  • making reasonable judgments in respect of matters relating to his/her person;
  • managing his/her own affairs;
  • making reasonable judgments in respect of matters relating to his estate;
  • in need of oversight, care or control in the interests of his own health and safety or for the protection of others;

an application can be made to the Tribunal for the appointment of a person who might be in a position to make such decisions for the person, unless the person has already appointed someone before the incapacity.

The Tribunal may appoint a guardian with authority to;

(a)     decide where the person is to live, whether permanently or temporarily;

(b)     decide with whom the person is to live;

(c)     decide whether the person should work and, if so, the nature or type of work, for whom he is to work and matters related thereto;

(d)     subject to certain conditions, make treatment decisions for the person;

(e)     decide what education and training the person is to receive;

(f)     decide with whom the person is to associate;

(g)     as the next friend of the person, commence, conduct or settle any legal proceedings on behalf of the person, except proceedings relating to the estate of the person;

(h)     as the guardian ad litem of the person, defend or settle any legal proceedings taken against the represented person, except proceedings relating to the estate of the person.

A guardian cannot vote for the person at any election or make a will for that person.

The Tribunal may also appoint an administrator if the person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his/her estate. The administrator must prepare accounts and submit them to the Public Trustee.

If you believe that a relative, for example is not capable of managing their affairs and has not appointed an attorney, you may apply to the State Administrative Tribunal for the appointment of  suitable person to look after the relatives affairs.

The Public Advocate will then become involved and will investigate the matter and report to the Tribunal before any final decision is made. The role of the Public Advoate is to look after the interestes of the person in respect of whom the application is made.

To complete an on line application, go here.

For other information relating to the State Administrative Tribunal, go here.

How Can This be Avoided

Many people who are healthy and of sound mind, appoint others to take care of them and their estate should their health deteriorate.

A person can appoint an enduring power of attorney by completing a statutory form before two qualified witnesses. To complete the appropriate form, go here.

The enduring power of attorney continues to operate after the person ceases to be of sound mind; section 105 of the Guardian and Administration Act 1990 but is limited in operation to the management of the person’s estate in much the same way as an administrator. It does not allow the person appointed to make important personal, lifestyle or treatment decisions or conduct/compromise litigation on the person’s behalf. A person has those powers if he or she holds an enduring power of guardianship. The powers are similar to those of a guardian mentioned above.

A person can appoint an enduring power of guardianship by completing a statutory form before two qualified witnesses. To complete the appropriate form, go here.

Advance Health Directives

Since 2008, the legislation also permits a person of sound mind to make an advanced health directive in which the person can make certain types of treatment decisions by again completing a statutory form.

Notes about treatment decisions:

  • Treatment is any medical, surgical or dental treatment or other health care (including palliative care and life sustaining measures such as assisted ventilation and cardiopulmonary resuscitation).2
  • A treatment decision is a decision to consent or refuse consent to the commencement or continuation of any treatment.
  • A treatment decision operates only in the circumstances that you specify.
  • Treatment to which you consent in this advance health directive can be provided to you.
  • Treatment to which you refuse consent in this advance health directive cannot be provided to you.
  • Your enduring guardian or guardian or another person cannot consent or refuse consent on your behalf to any treatment to which this advance health directive applies.