How do State Guardianships work?

Key points:

• A Guardianship order allows an individual to select another person to make decisions around their accommodation, health and lifestyle, in case of an inability to choose for themselves
• An Enduring Power of Attorney (EPOA) makes decisions around an individual’s finances, health and care, on behalf of the person who is incapable of choosing for themselves
• A public guardian of last resort is a role assigned to a Public Advocate

This edition of Aged Care Guide will go over what the role of a guardian or administrator is in settling affairs such as finances, estate, end-of-life decisions and health or living circumstances.

This article will also elaborate on the role of Public Advocates as guardians of last resort, which is the process for someone incapable of making decisions independently and requiring intervention from the state, in lieu of voluntary or existing orders — such as an Enduring Power of Attorney order.

Wills, Advance Care Directives, EPOA orders and voluntary guardianship

Wills may contain a testamentary trust, which takes effect after the trustor (the person laying out their wishes) has passed away, with the trust containing information about how they wish different assets, estates or belongings should be handled or distributed. You can generally arrange a Will through a lawyer, in order to properly safeguard your directions against legal contest after dying.

An EPOA can make big or little financial, lifestyle or medical decisions on your behalf, if you are alive and unable to act, due to reduced mental capacity or impairment. However, the rules about what decisions an appointed EPOA can make are different depending on what State or Territory you live in.

Some States/Territories are very strict on what your EPOA is allowed to do. Some will not allow your EPOA to make any decisions around lifestyle or medical treatments. Instead, these roles or responsibilities fall under either an Advance Care Directive (ACD) or an Enduring Power of Guardianship (EPOG).

In some parts of the country, the division between an EPOA, EPOG and ACD can vary, but generally:

• EPOA — financial and property decisions (may include lifestyle or medical)
• EPOG — lifestyle, medical or healthcare (in lieu of an EPOA not covering these decisions)
• ACD — lifestyle, medical or healthcare (in lieu of an EPOG applying)

For a comprehensive overview for creating a strong estate plan, please refer to the extended Aged Care Guide on the topic.

Public Advocate as a guardian of last resort

If a person is unable to make decisions for themselves, but a person has not or can not fulfil the duties of a guardian, as per the person’s Will or through EPOA, EPOG or ACD orders, then the Office of the Public Advocate (OPA) will assign a Public Advocate as a guardian of last resort or administrator.

The state or territory Civil and Administrative Tribunal will then appoint a Public Advocate through the OPA to investigate the situation, person, wishes, family and make informed decisions based on their findings to decide on the person’s behalf.

The respective offices for situations which require an appointed or Public Advocate can be referred to the following departments:

Australian Capital Territory – Public Advocate, call on 02 6205 2222

New South Wales – NSW Trustee & Guardian, call on 1300 109 290

Northern Territory – Office of the Public Guardian, call on 1800 810 979

Queensland – Office of the Public Advocate, call on 07 3738 9513

South Australia – Office of the Public Advocate, call on 1800 066 969

Tasmania – Office of the Public Guardian, call on 1800 955 772

Victoria – Office of the Public Advocate, call on 1300 309 337

Western Australia – Office of the Public Advocate, call on 1300 858 455

Related content:

Creating a strong estate plan

What should you specify in your Advance Care Directive?

Do I really need a Will and last testament?