The Guardianship and Administration Act 1990 act recognises that adults (people over the age of 18) who are not capable of making reasoned decisions for themselves, may need additional support and assistance not only to ensure their quality of life is maintained, but also to protect them from the risk of neglect, exploitation and abuse.
Many parents of children with decision-making disabilities are interested in how the Act will protect their children as they move into adulthood, enabling the appointment of substitute decision-makers in the future, to make decisions in the best interests of their adult children.
There are two main types of substitute decision-makers:
- a guardian – guardianship applies to personal, lifestyle and medical treatment decision-making
- an administrator – administration applies to financial and legal decision-making.
There are three main types of decision:
- Personal and lifestyle decisions – For example when arranging new support services, activities or accommodation, if the adult with the decision-making disability, family, and professionals are all in agreement that this is in the person’s best interests, the decision could be made informally.
- Medical treatment decisions – The Guardianship and Administration Act 1990 sets out an order of people who can make treatment decisions for a person when the treating health professional says they cannot make the decision themselves because they lack the capacity to provide informed consent to treatment. This order can be seen as a ‘Hierarchy of treatment decision-makers’. For more information on the 'Hierarchy of treatment decision-makers' see the Making treatment decisions page.
- Financial decisions - Informal processes are more limited with financial decisions because most organisations which deal with money and contracts want to see a formal authority before they will talk to someone about another person’s finances. This might be because the information is confidential and they want to make sure that they do not talk to the wrong person. You may be able to work with some companies to find informal ways of managing a bank account, or to receive a Centrelink payment on behalf of an adult with a decision-making disability, but it is more likely that you will need to make an application for administration at some point. Refer to Information Sheet 5: Administration for more information.
For more information on guardianship and administration, refer to the Information sheet 1: The Guardianship and Administration System.
Frequently Asked Questions
Show moreMy child has an intellectual disability and is about to turn 18, will I still be the legal decision-maker?
When someone turns 18, they become an adult and legally entitled to make their own decisions. This is the same for someone with a decision-making disability. What needs to be decided is whether your adult child has the capacity to make decisions in their own best interests.
This discussion may occur when a decision is needed, and a health professional or service provider would be involved. If they think your adult child can make informed decisions, then they will support this, but they may still want to seek your advice and support during the process.
Does an adult child with a decision-making disability need a guardian or administrator?
If there is no conflict and informal processes are working well, it is not always necessary for someone to have a guardian or administrator, so long as the decisions made are in the best interests of the adult child.
However if a parent can no longer provide the necessary support, if there is conflict, or if a bank or other financial institution needs to see a formal authority before they will talk to you about your child’s finances, legal authority may be required and you can make an application to the State Administrative Tribunal (SAT) for guardianship and/or administration.
The best way to prepare for the future is to talk to family and friends about guardianship and administration and what they may need to do if you are no longer able to act as the informal decision-maker. You may want to provide family and friends with information on our publications page.
It is important to note that as soon as a guardian or administrator is appointed, that person takes over decision-making authority. So, if the informal processes are working well, you may want to leave these in place until circumstances change for you and/or your adult child.
How to make an application to the State Administrative Tribunal?
To apply for someone to have a guardian or administrator, you need to complete an application form which is available from the State Administrative Tribunal (SAT). It is free to make an application, and there is no cost for any related hearing.
For more information go to the page on how SAT handles guardianship and administration matters available from the SAT website.
Can I make an Enduring Power of Attorney (EPA) or Enduring Power of Guardianship for my adult child?
No, it is not possible for you to make either power for your adult child - or for anyone else.
These documents can only be completed by adults with full legal capacity. The parent or guardian of an adult with a decision-making disability cannot make any of these documents on their behalf.
If someone has not made an EPA or EPG, or they do not have the 'full legal capacity' required to do so, and a substitute decision-maker is required, that is when a guardian or administrator may need to be appointed by the State Administrative Tribunal (SAT).
Can my adult child, who has a decision-making disability, make these powers for themselves?
To make either power an adult must have full legal capacity. This means that the person must know and understand what the document is and the consequences of making it, including an understanding that they will be giving someone else the authority to make decisions about them.
If a person is already diagnosed with some form of decision-making disability it does not automatically mean that they lack the capacity to make the document. However, for people in this situation it is recommended that they see a qualified health professional who can assess if they have the capacity to make the document.
If the health professional says that they have this capacity it is recommended the written assessment is kept with the document which they complete so that everybody knows that they had the capacity to make it.
If someone does not have the capacity to make the document then that is when guardianship and administration may come into consideration – but as previously stated, not having capacity does not always mean an application needs to be made for Guardianship and Administration. See above for more information.
Can I nominate a guardian for my adult child in my Will?
No, it is not possible to will the guardianship of an adult to another person, even when that adult has a decision-making disability. Therefore, it is not possible to nominate someone to be the guardian in your Will.
It is better to talk to trusted family and friends now about who might be available to help the person with a decision-making disability in the future. This might be as simple as giving people the contact details for the Office of the Public Advocate or the State Administrative Tribunal (SAT) so that they know who to contact in the future.
Who will make decisions about my adult child’s property/finances, or personal, treatment and lifestyle options after I die?
For an adult who has lost, or who never had, capacity, the 'least restrictive' alternative can apply. This means that where informal processes work in the person's best interests, decisions can be made informally by family and/or close friends.
It is important to have discussions now with family and/or close friends about who is suitable, willing and available to make decisions on behalf of your (adult) child if you are no longer able to, either in an informal capacity or as a legally appointed guardian and/or administrator.
If informal processes are not working an application can be made to the State Administrative Tribunal (SAT) for the appointment of a guardian and/or administrator.
I don’t have family who can make an application to the State Administrative Tribunal – what will happen to my adult child?
Any interested party can make an application to the State Administrative Tribunal (SAT) for the appointment of a guardian and/or administrator – it doesn’t have to be a friend or family member.
Interested parties can include residential care home managers, local area coordinators, social workers, doctors or bank managers, as well as any other agency which requires a decision.
At some point there will be a person or agency which needs a decision to be made and this means there will be someone who will make an application to the State Administrative Tribunal if required.
If I have no family to support my adult child when I can no longer do so, who will be appointed?
The Public Advocate can be appointed by the State Administrative Tribunal (SAT) as guardian of last resort to make decisions about personal, treatment and lifestyle matters in the best interests of the person with a decision-making disability.
The Public Trustee can be appointed by the State Administrative Tribunal (SAT) as administrator of last resort to make decisions about property and financial matters in the best interests of the person with a decision-making disability.
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