Do you have questions about Guardianship? Find out more here.
At Butlers, we aim to make the law understandable. Guardianship & Administration is a complicated area that requires early advice and guidance.
What is the State Administrative Tribunal?
The State Administrative Tribunal (SAT) is an independent statutory body that has the power to appoint a guardian or administrator to act in the best interests of a person with a decision-making disability.
An application may be made to SAT to appoint a guardian (personal, lifestyle and treatment decisions) or administrator (financial and property decisions) where a person has a decision making disability or has become incapacitated. An application to appoint a guardian or attorney can be made in instances where a person is vulnerable or particularly at risk of being exploited or abused, whether physically or financially.
Guardianship and administration applications require medical evidence to be attached.
What powers does SAT have?
The SAT has the power to:
- consider applications for the appointment of a guardian and/or administrator;
- make orders appointing guardians and administrators;
- reviews previous orders made by SAT;
- consider applications intervening into Enduring Powers of Attorney, Enduring Powers of Guardianship and Advance Health Directives.
Most SAT applications will go straight to a final hearing and a final decision will be made. The SAT will give notice of the hearing to interested parties – generally immediate family members. These persons are entitled to attend the hearing and put forward their views.
What does the SAT consider when reviewing an application?
The SAT will consider the application, any views expressed at the hearing and the medical reports submitted. The SAT must carefully consider each application based on the circumstances of the particular individual. In applications for guardianship and/or administration, the SAT will follow the following principles:
- the best interests of the person;
- as a starting point, assume that the person that is the subject of the application, has the capacity to make their own decisions unless proved otherwise;
- appointing a guardian or administrator only when there is no other possible solution;
- limiting the authority of a guardian or administrator to a specific function in which the person that is the subject of the application is experiencing problems so as to not restrict a person’s freedom to make decisions; and
- where possible, respecting the wishes of the person who is the subject of the application.
In reaching a decision, the SAT will consider the following, where appropriate:
- The impact of the person’s disability on their ability to manage their affairs;
- Whether the person needs a guardian and/or administrator;
- If appointing a guardian and/or administrator is in the best interest of the person;
- Who is the most appropriate person to take on the role of guardian and/or administrator;
- Whether there should be a limit to the powers of the guardian and/or administrator; and
- How long the order will be in force before it should be reviewed.
Generally, a decision and reasons will be given at the conclusion of the hearing.
Please contact us for advice if you are considering making an application to the SAT for a guardianship and/or administration order.
When does an Advanced Health Directive take effect?
Your AHD would only take effect in the instance that you required medical treatment and you were unable to make those decisions regarding the treatment at the particular time you required that treatment.
An AHD outranks an Enduring Power of Guardianship, meaning that your medical professional would be obliged to follow your instructions as per your AHD, as opposed to the decision of your enduring guardian.
An AHD is a direction as to your wishes, rather than an appointment of a guardian to manage your affairs.
Preparing an AHD will give your loved ones the peace of mind that your wishes are set out, as opposed to them having to make difficult decisions relating to your medical treatment and health care decisions at an already difficult time.
We prepare your AHD collaboratively with your medical practitioner so that you are properly informed as to the legal and medical implications of each of these decisions that you make.
What is Guardianship & Administration?
The Guardianship and Administration Act 1990 (“the Act”) recognises that people who are not capable of making reasonable judgements for themselves may need someone to make decisions for them. This is not only to ensure their quality of life is maintained but also to protect them from the risk of neglect, exploitation and abuse.
A decision-making disability may affect a person's ability to manage various aspects of their lives. For example, an inability may arise due to Alzheimer's, degenerative disease, brain injury caused by trauma or substance abuse. This support is often given by people who are already involved in their lives, such as family, friends and service providers.
The Act provides that SAT may appoint a guardian and/or an administrator for a person with a decision-making disability as a substitute decision-maker.
Because the appointment of a guardian and/or an administrator involves removing a person's fundamental decision-making rights, it is a course of action which is taken by SAT as a last resort - only after less restrictive measures of managing the person's best interests have been considered and found to be insufficient.”