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Applying for guardianship in Australia can be a complex process to navigate, with different states and territories having their own laws and terminology. Guardianship appointments aim to provide someone trustworthy to help manage the affairs of those who cannot make decisions for themselves. The process for applying for guardianship of a child differs from applying for guardianship of an adult. This introduction will outline the key considerations for both processes.
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What You'll Learn
Application requirements
The requirements for guardianship applications vary across Australia, with each state and territory having its own laws. In general, a guardianship appointment gives someone the power to help another person with decision-making and managing their affairs when they cannot.
In Queensland, the Civil and Administrative Tribunal (QCAT) has jurisdiction over guardianship applications. Before QCAT considers an application for guardianship, it must be satisfied that the current decision-making arrangements are untenable. You must prove that there is a specific requirement for appointing a guardian, as stipulated in the Family Law Act. An individual may have impaired decision-making capacity but not necessarily need a guardian—certain decisions can be made with limited capacity. However, circumstances must necessitate the appointment of a guardian. QCAT will give a copy of the application to the adult intended to receive guardianship, and it is critical that the adult is aware of the application and has the opportunity to express their views.
In Tasmania, applications for guardianship are made to the Tasmanian Civil and Administrative Tribunal (TasCAT). The Tribunal has the authority to appoint guardians and administrators for adults who have impaired decision-making ability. The Tribunal will invite relevant people to attend a hearing where everyone will have an opportunity to have their say. The Tribunal can make, amend or revoke a guardianship or administration order, and give advice or directions to a guardian.
In Western Australia, an Enduring Power of Guardianship (EPG) is a private legal agreement that does not have to be registered. The EPG form is a straightforward document that can be completed without legal assistance. Both parties must have full legal capacity at the time of signing the EPG, and if there is any doubt, an assessment of capacity should be sought from a doctor. The signatures of both parties must be witnessed by two people who are at least 18 years old and have full legal capacity. One of the witnesses must also be authorised to witness statutory declarations under the Oaths, Affidavits and Statutory Declarations Act 2005.
In New South Wales, parties can apply to become the legal guardian of a child by obtaining a "guardianship order" through the Children's Court under the Children and Young Persons (Care and Protection) Act 1998. Guardianship orders are final and long-term, transferring parental responsibility for the child to the guardian until the child reaches the age of 18.
Additional Information
Guardians must be over 18 and not paid carers. In most cases, guardianship orders do not sever the legal ties of a child to their parents, and children can still maintain contact with their parents and/or extended family members if the Court deems it appropriate. Written consent is given by the child if they are aged 12 years or older and have the capacity to provide consent.
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Application process
The process for applying for guardianship in Australia varies depending on the state or territory and the type of guardianship. Here is a general overview of the application process:
Identify the Type of Guardianship
First, determine the type of guardianship you are seeking. In Australia, guardianship typically refers to the authority to make decisions on behalf of a person with impaired decision-making ability. This can include financial, legal, personal, health, or other matters. Each state and territory has its own laws and terminology regarding guardianship. For example, in some states, the term "enduring power of guardianship" is used, while in others, it may be referred to as "guardianship and administration."
Understand the Legal Requirements
Before applying for guardianship, it is essential to understand the legal requirements and criteria. In most cases, you must prove that there is a specific need for appointing a guardian. This means demonstrating that the individual has impaired decision-making capacity and that certain decisions cannot be made without the assistance of a guardian. It is also important to understand the rights of the individual, including their right to privacy and self-determination.
Identify the Potential Guardian
Determine who you believe should be appointed as the guardian. This can be a private guardian, such as a family member or friend, or it could be a public guardian, who is appointed by a tribunal or court. The potential guardian should be someone who can provide a safe, nurturing, and stable environment for the individual.
Gather Evidence and Documentation
To support your application for guardianship, you will need to provide evidence of the individual's impaired decision-making ability. This can be done through a medical practitioner's or psychologist's report. If you are unable to obtain such a report, you can provide a statement to the tribunal or court explaining the reasons for your inability to do so. Additionally, you may need to include other documentation, such as the individual's enduring power of attorney or advance health directive.
Submit the Application
Submit your application to the appropriate body, which could be a guardianship board, administrative tribunal, or court, depending on your state or territory. In some cases, there may be specific forms or procedures to follow. For example, in Tasmania, applications are made to the Tasmanian Civil and Administrative Tribunal (TasCAT), while in Queensland, it is the Queensland Civil and Administrative Tribunal (QCAT). There is generally no cost associated with making an application for guardianship.
Attend a Hearing
After submitting your application, a hearing will typically be held to discuss the application and determine whether the appointment of a guardian is necessary. The individual concerned, as well as any relevant parties, will be invited to attend the hearing and express their views. Hearings are generally less formal than court proceedings, and the tribunal has a responsibility to encourage the participation of all involved parties.
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Types of guardianship
In Australia, there are several types of guardianship that can be applied for, depending on the specific circumstances and needs of the child and the potential guardian. Here is an overview of the types of guardianship that are commonly recognised:
Permanent Guardianship: This type of guardianship is typically ordered by a court when the child's parents are unable or unfit to care for them. The guardian, who can be an individual or a couple, assumes all parental rights and responsibilities
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Guardianship orders
To apply for a guardianship order, you must demonstrate that the current decision-making arrangements are untenable and that there is a specific requirement for appointing a guardian. This involves providing evidence of the individual's impaired decision-making ability, such as a Health Practitioner Report from a medical practitioner or psychologist. In some cases, a statement outlining the reasons for not being able to obtain such a report may be accepted.
The application is typically made to the relevant Civil and Administrative Tribunal (CAT), which is an independent body authorised to act on civil and administrative matters. In Queensland, for instance, the Queensland Civil and Administrative Tribunal (QCAT) has jurisdiction over guardianship applications. The Office of the Public Guardian, an independent body acting as a public advocate, can also provide assistance and guidance in these matters.
It is important to note that guardianship orders do not sever legal ties between children and their parents. Children can still maintain contact with their parents and extended family if the Court deems it appropriate. Additionally, guardianship orders normally limit the areas in which a guardian can make decisions, focusing on the specific needs and circumstances of the individual.
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Responsibilities of guardians
When you are a guardian, you are responsible for making decisions about the lifestyle and care of the person in your guardianship, who is known as the 'ward'. The guardian's role is to support and promote the ward's best interests and well-being. Here is a detailed list of the guardian's responsibilities:
The guardian is responsible for the ward's daily care and well-being, including providing a
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Frequently asked questions
The process of applying for guardianship in Australia can vary depending on the state or territory. In general, a guardianship appointment aims to provide someone trustworthy to help manage the affairs of someone who cannot make decisions for themselves. Each state has its own laws that establish how guardianship works and what a guardian can look after. For example, in New South Wales, guardianship orders are made through the Children's Court under the Children and Young Persons (Care and Protection) Act 1998.
Guardians must be over 18 and not paid carers. In some cases, the guardian may be required to provide evidence of the person's impaired decision-making ability with the application, which can be done through a medical practitioner or psychologist.
There is no cost to make an application for guardianship in Australia.
