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Guardianship & Administration Orders

Guardianship And Administration Orders

While not a pleasant thing to consider, there may come a time in your life, or the life of a loved one, where making independent decisions about personal health or finances is no longer possible. If the necessary documents that are needed in these situations aren’t prepared, the South Australian Civil and Administrative Tribunal (the Tribunal) can make orders appointing a person to make these decisions for you. Any person placed under an order by the Tribunal is called a protected person.

Guardian and Administrator: What is the Difference?

If you or a loved one is no longer able to independently make important decisions about their own health or living circumstances, the Tribunal can make a Guardianship Order. A Guardianship Order is an order that can be made by that allows for a person or organisation to make decisions about a person’s healthcare, personal accommodation and lifestyle choices. This appointment includes:-

  • Making decisions about appropriate accommodation for the protected person
  • Consenting to medical treatment for the protected person, or withdrawing treatment if appropriate
  • Enrolling a protected person in support programs and social activities

However, a guardianship order does not allow a Guardian to make financial decisions for the person. For decisions about a person’s finances to be made, an Administration Order must also be made. An Administrator’s decisions can include:-

  • How to spend, invest and generally deal with a protected person’s financial portfolio, such as collecting income and paying bills
  • Managing a protected person’s real estate, including purchasing or selling property or renting out their home

It is important to note that there are strict laws in South Australia that ensure both Guardians and Administrators are only acting in the best interests of the protected person. There are severe penalties that can be enforced if a Guardian or Administrator does not act in the best interest of the protected person. For example, an Administrator who was using the funds of a protected person for their own benefit would likely face criminal charges.

Who can be appointed?

When appointing a Guardian or Administrator, the Tribunal will usually take into account the protected person’s own wishes (whether expressed in the past or present) as well as any existing care arrangements. The Tribunal also promotes the appointment that will maximise the protected person’s independence and care. It is common for the Tribunal to appoint close family members or friends who are already involved in caring for the protected person, unless allegations of wrongdoing are proven.

In some circumstances, the Guardian and Administrator may be the same person. In others, two different people may take on each role. In the case where two different people are acting as Guardian and Administrator, they are legally obligated to work together and inform each other about any major decisions regarding the protected person’s finances of health.

Do I need a formal Order?

If there are already informal arrangements in place for a protected person where decisions are being made by their family or friends without issue, then it is highly unlikely an order would be required. An order is also not required in circumstances where the protected person has a valid Enduring Power of Attorney (for finances) or Advanced Care Directive (for health and lifestyle) in place. At Webster’s Lawyers, our specialist team can assist you in creating and executing Enduring Power of Attorney and Advanced Care Directive documents to appoint the persons you would prefer to take on these important roles

For some people, it can be an uncomfortable idea that another person could decide who will make financial or personal decisions for you when you are no longer able to do so. Take control of the important decisions by contacting us today and find out how you can future proof your life.  

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*Please note: Websters lawyers is a South Australian based law firm, handling matters exclusive to South Australia, with offices located in Adelaide, Ridgehaven and Smithfield.

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