Why is the Guardianship Board referred to as a quasi judicial body?
The Guardianship Board is not a court and does not conclusively determine disputes between parties about antecedent rights. It makes orders that create new rights and duties. Thus it exercises the administrative power of the State and not its judicial power. While it exercises administrative power its proceedings resemble in many respects those of a court. Thus it may properly be described as a quasi judicial body.
What Orders Can the Guardianship Board Make?
The Guardianship Board receives applications for Orders under two different South Australian laws - the Guardianship and Administration Act 1993 and the Mental Health Act 2009.
Orders for people who have a mental incapacity are made under the Guardianship and Administration Act 1993 include:
- Guardianship Order – appointing a Guardian to make decisions about accommodation and health care
- Section 32 powers under a Guardianship Order - providing legal authority to authorise the use of physical force
- Administration Order appointing an Administrator to make decisions about finance and property
- Consent to sale of property – for an administrator
- Consent to medical/dental treatment - where there is no other suitable person to give or refuse consent
- Consent to sterilisation or termination of pregnancy - these procedures MUST be authorised by the Board
Orders for people with a mental illness under the Mental Health Act 2009 include:
- Level 2 Community Treatment Order
- Level 3 Inpatient Treatment Order
- Consent for Electro-convulsive Therapy (ECT)
- Consent to neurosurgery
How is a Guardianship Order different to an Administration Order?
An Administration Order appoints an Administrator to made decisions about a person's financial affairs, whereas a Guardianship Order appoints a Guardian to make decisions about medical treatment, accommodation and other personal matters.
What is a Guardian's relationship with the Guardianship Board?
The Guardian is responsible for decision making and does not have to report to the Guardianship Board. A guardian may formally seek advice or direction from the Board. Where advice or direction is given, the guardian is bound to comply with that advice or direction.
Who can be appointed as a Guardian?
A guardian must be a natural person (not a company or organisation). This may be a relative or friend. A person who cares for a person with a mental incapacity on a professional basis cannot be appointed as his or her guardian. In deciding who should be appointed the Guardianship Board must consider, among other things:
- the potential guardian and the proposed protected person’s compatibility
- any existing family arrangements or relationships that are working well and should be preserved
- whether the potential guardian is competent to perform the role
- the availability of the potential guardian
- if any conflict of interest would arise from the appointment. The fact that a proposed guardian is related to the proposed protected person by blood or marriage will not, of itself, give rise to a conflict of interest.
Why might the Public Advocate be appointed as Guardian?
In the absence of an appropriate person and as a last resort, the Board may appoint the Public Advocate as the person's guardian. The Board will only appoint the Public Advocate when there is no one else who is suitable, available and willing to be a guardian.
The Board may also appoint the Public Advocate in situations where it is not appropriate to appoint family or friends (ie if there is conflict).
Are there any limits on a Guardian’s authority?
A guardian or substitute decision-maker can make all personal decisions for the person except for those which are already covered by law such as marriage, assault or false imprisonment, and a person's mail. A guardian has no authority to:
- prevent a person marrying
- authorise a person to be restrained physically in a locked room, or residence (or in other ways)
- intercept a person's mail
- deal with the person's money or property.
Who may be appointed as Administrator?
The Guardianship Board may appoint as administrator the Public Trustee, a trustee company or any individual such as a family member or friend, an accountant or solicitor. In deciding who should be appointed, the Board must consider:
- the wishes of the person with the mental incapacity, both past and present, if these wishes can be established
- whether there are any family arrangements or relationships that should not be disturbed
- the compatibility of the proposed administrator with the person whose affairs they are to manage
- whether the proposed administrator would be readily available and competent to perform the role
- whether there would be any conflict of interest arising from the appointment.
It will be necessary for the applicant, or the person who wishes to be the administrator, to show the Board that the proposed administrator has the appropriate qualifications and/or experience to fulfil the role of administrator. This includes an understanding of the legal responsibilities and limits on powers of an administrator. The person must keep good records so they can provide financial reports. More information can be obtained from the Public Trustee’s Guide for Financial Administrators.
What happens to a person’s property when an administration order has been made?
The South Australian Government does not take away the assets of a person for whom an Administration Order has been made. The order is made for the protection of a person and his or her property. It provides the Administrator with authority to manage the estate of that person and places him or her in the position of a trustee, whose duty it is to manage the estate for the benefit of the person with the mental incapacity.
If a person is under an inpatient treatment order, do I need their consent for medical treatment?
When a person is receiving involuntary inpatient care, the hospital is able to treat the mental illness and any other illness or condition. The basis for this is the Mental Health Act 2009.
Are there any limits on the power of an Administrator?
The duties, powers and obligations of an administrator are contained in the Guardianship and Administration Act 1993, the Regulations of that Act, the Trustee Act 1936, and in the Guardianship Board's order itself. Any particular obligations will be stated in the Guardianship Board's Order.
Who gets information about the financial affairs managed by an administrator?
The Administrator has general duty to keep information about the affairs of a protected person confidential. Information cannot be disclosed by the administrator unless there are exceptional circumstances. Failure to understand this sometimes causes offence, but a person has a right to confidentiality even though he or she has a mental incapacity.
Where a Guardian is also appointed under the Guardianship and Administration Act 1993 for the same protected person, the Administrator and Guardian must keep each other informed of significant decisions and actions.
What records must an administrator keep?
The Guardianship Board and Public Trustee have a legal responsibility to oversee the conduct of the administrator and to ensure that the estate is protected and used only for the welfare of the protected person. An Administrator is required to keep detailed records of how the estate is managed. A statement of the accounts must be presented to the Public Trustee as often as is stated on the Board’s Order. The protected person, whose affairs are being managed must have access to the statement unless the Guardianship Board thinks that the person would not understand it. The Board may also order that other specified people should receive a copy. The Public Trustee audits the financial reports.
What is a liaison person?
When the Administrator is an organisation (e.g. Public Trustee), the Board may appoint a liaison person to keep the Administrator informed of the needs of the protected person and provide information about the characteristics of the person with the mental incapacity, to enable the administrator to act as the person would have wished. S
Sometimes circumstances change and people are no longer willing or able to be the liaison person. If someone else is willing to take over as liaison person they can put a request in writing to the Board and all parties will be consulted before making any change.
See Fact Sheet 24 - What is a Liaison Person? - 71kb PDF