Guardianship FAQ

Guardianship is the appointment of a person (guardian) to make lifestyle and personal decisions on behalf of an adult who lacks the capacity to make those decisions themselves. A guardian may be authorised to make decisions about accommodation, healthcare, services, and daily living. It is a measure of last resort.

Financial management (called administration in some states) is the appointment of a person to manage the financial affairs of an adult who lacks capacity to manage their own finances. The financial manager can pay bills, manage bank accounts, sell property, and handle investments on behalf of the person.

Each state and territory has its own legislation: Guardianship Act 1987 (NSW), Guardianship and Administration Act 2019 (Vic), Guardianship and Administration Act 2000 (Qld), Guardianship and Administration Act 1993 (SA), Guardianship and Administration Act 1990 (WA), Guardianship and Administration Act 1995 (Tas), Guardianship and Management of Property Act 1991 (ACT), and Adult Guardianship Act 1988 (NT).

A person has decision-making capacity if they can understand information relevant to the decision, retain that information, use or weigh the information as part of the decision-making process, and communicate their decision. Capacity is decision-specific and time-specific — a person may lack capacity for some decisions but not others.

Applications can be made by any person with a genuine concern for the welfare of the person, including family members, friends, doctors, social workers, service providers, or the Public Guardian. The relevant tribunal (NCAT in NSW, VCAT in Victoria, QCAT in Queensland) determines the application.

The tribunal must be satisfied that the person lacks capacity for the relevant decisions, that there is a need for a guardian or financial manager, and that the proposed order is the least restrictive option. The tribunal considers the person's views and wishes, cultural background, existing support arrangements, and the suitability of the proposed guardian.

A legal document appointing a person (attorney) to make financial and legal decisions on the principal's behalf, which continues (endures) even after the principal loses capacity. Must be executed while the principal has capacity, with prescribed witnessing requirements. Different forms exist in each state.

A legal document appointing a person to make lifestyle and personal decisions (accommodation, healthcare, services) if the principal loses capacity. In NSW it is separate from an enduring power of attorney; in Victoria, an enduring power of attorney can cover both personal and financial matters under the Powers of Attorney Act 2014.

A document in which a person sets out their wishes, values, and instructions for future healthcare and treatment decisions if they lose capacity. Different states have different frameworks — some give advance care directives statutory force (SA, Qld), while others rely on common law principles.

Each state has a Public Guardian (or equivalent) who acts as guardian of last resort when no suitable private guardian is available. The Public Guardian also investigates allegations of abuse, neglect, or exploitation of adults with impaired capacity, and provides advocacy services.

In NSW, the NSW Trustee and Guardian can be appointed as financial manager when no suitable private person is available. It manages the person's finances, pays fees from the managed person's estate, and is subject to oversight by NCAT. Similar public trustees exist in all states.

A guardian can make decisions about accommodation (where the person lives), healthcare and medical treatment, access to services, daily living, and who the person associates with. The specific functions are set out in the guardianship order. A guardian cannot make financial decisions unless also appointed as financial manager.

Yes, but with limitations. A guardian can consent to routine and minor treatment. For major treatment (involving significant risk), the guardian must consent in accordance with the person's known wishes and best interests. Some treatments require tribunal approval, including special medical treatments such as sterilisation and experimental procedures.

Orders are typically made for a fixed period (often 1-3 years) and reviewed before expiry. The tribunal can renew, vary, or revoke the order. Interested persons can apply for early review if circumstances change. The order automatically lapses at the end of its term unless renewed.

Yes. In most states, an appeal lies to a higher court or an internal appeal panel. In NSW, appeals from NCAT go to the NCAT Appeal Panel on questions of law. In Victoria, appeals from VCAT go to the Supreme Court. Time limits for appeal are short (typically 28 days).

A valid enduring power of attorney or enduring guardian appointment can prevent the need for a guardianship order, as the attorney or enduring guardian can make decisions without tribunal involvement. However, if the attorney is not acting in the person's interests or there is a dispute, the tribunal can override or revoke the appointment.

Guardians and financial managers must act in the person's best interests, keep records, avoid conflicts of interest, and submit to tribunal oversight. The Public Guardian can investigate allegations of abuse or exploitation. Tribunals can revoke appointments and courts can order compensation for financial abuse.

An approach that helps people with impaired capacity make their own decisions with support, rather than having decisions made for them. Victoria's 2019 Act prioritises supported decision-making over substitute decision-making. Support persons help the individual understand information and communicate their own choices.

A person under guardianship retains any capacity they have. If they have testamentary capacity (a separate legal test), they can make or change their will. If they lack testamentary capacity, some states allow the tribunal or court to authorise a statutory will on their behalf.

Tribunal application fees are generally low or waived — in NSW, NCAT guardianship applications are fee-free. If legal representation is needed, solicitor costs vary from $2,000 to $10,000 for straightforward matters. Contested hearings with multiple parties and expert evidence cost significantly more.