Trusts & Guardianship

The South Australian Civil and Administrative Tribunal (SACAT) is a state tribunal that helps people in South Australia to resolve issues within specific areas of law, either through agreement at a conference, conciliation or mediation, or through a decision of the Tribunal at hearing. SACAT has replaced many previous different tribunals and boards, including the Guardianship Board.

A guardian is legally responsible to act in accordance with the terms of the order to make all or some accommodation, health or lifestyle decisions in the interests of a protected person, after consultation with the protected person (if possible) and other relevant professionals or support agencies.

The guardian will only make a substitute decision on behalf of a protected person if they are not able to make the particular decision for themselves.

Decisions may include:

a) accommodation – decisions about the appropriateness of current living arrangements, any/or suitable alternative accommodation options

b) health – decisions about health care needs, preferred treatment options, consent to medical or dental treatment, consent to palliative care approaches and/or withdrawal of treatment under certain circumstances

c) lifestyle – decisions about appropriate support programs, social activities, social contacts, education or employment

d) access – decisions about contact between a protected person and other people if there are associated risks for the protected person or others, the nature and extent of contact and/or stopping contact.

A person who is unable to make certain decisions about their personal health and living circumstances due to mental incapacity has their rights and interests protected by the law. SACAT can appoint a guardian under a guardianship order to make accommodation, health and lifestyle decisions to support a person who has mental incapacity.

SACAT deals with the following types of applications in this area:

a) appointing a guardian to make decisions about the medical, accommodation, health and lifestyle decisions for a person with mental incapacity

b) cancelling the appointment of a particular guardian

c) providing advice or directions to a guardian

d) consenting to prescribed medical treatment

e) making additional orders to grant special powers authorising the use of force to ensure proper treatment and care, restriction of movement and detention

f) changing or cancelling a previous guardianship order.

g) appoint an administrator in certain circumstances regarding financial decisions

h) make certain decisions about advance care directives

i) provide consent to medical treatment, consent to prescribed psychiatric treatment and consent to prescribed medical treatment

j) review mediation decisions and make directions and declarations about consent to treatment decisions and advance care directives in certain circumstances

k) make and review treatment orders for people with mental illness.

SACAT does not:

l) appoint a guardian for children under the age of 18.

m) appoint a guardian in cases where a person with a mental incapacity is coping well or has appropriate supports in place through ‘informal arrangements’

n) appoint a guardian when other formal legal protections are already in place and are working well together with informal arrangements (such protections are put in place before a person loses mental capacity and include an advance care directive, an enduring power of guardianship or a medical power of attorney).

A person with a mental incapacity may be unable to make certain important decisions about personal matters such as accommodation, health and lifestyle.

SACAT can authorise another person under an order to make those decisions for the person. This order is called a guardianship order. You can apply to SACAT for a guardianship order.

SACAT will not make a guardianship order unless satisfied that the person:

a) has a mental incapacity and

b) that there is a need for an order to be made.

SACAT will consider and weigh up evidence to decide if there is a need for an order and, if so, what type of order should be made. SACAT must consider:

c) what, in SACAT’s opinion, the person’s wishes would have been had they not become mentally incapacitated, if there is evidence available about that
d) what the person’s present wishes are, if these can be expressed
e) whether existing arrangements for the person’s treatment and care are adequate and should not be disturbed
f) what is the least restrictive of the person’s rights and personal autonomy, that also ensures that the person is properly cared for and protected.

Financial decisions

A guardian has no authority under a guardianship order to make financial decisions for the person. This is the role of an administrator appointed by SACAT under an administration order or a person acting under an Enduring Power of Attorney if there is one in place.

Where an administrator is appointed (who may be a different person), the guardian and administrator must work together and keep each other informed of any substantial decisions or actions.

What is a protected person?

If SACAT makes a guardianship order or an administration order , or both, the person who the order is about is described as a ‘protected person’ (under the Guardianship and Administration Act). This means that their legal rights are being protected under the order made by SACAT.

SACAT will make the least restrictive order to address the individual circumstances of the protected person, in accordance with their past and present wishes and needs, so far as these can be determined, and will consider the adequacy of current informal arrangements.

Full order

A full guardianship order gives the guardian the authority to make important decisions in most areas of the protected person’s life. This includes decisions about:

a) accommodation

health care (medical and dental treatment) and some types of prescribed treatment for mental illness; but not for prescribed medical treatment)

b) contact with the protected person

lifestyle decisions, such as what services and supports the protected person receives, education, employment, social issues and involvement in recreational activities.

c) Limited order

If a person with mental incapacity is coping well in most areas of their life but needs some assistance in certain areas then a limited guardianship order can be made by SACAT. For instance, SACAT may make a guardianship order limited to accommodation decisions. In that example the guardian cannot make any other decisions for the protected person outside of the decisions about accommodation. The limitation will be specified in the order.

d) Reviews/cancellation/changing an order

An application can be made to SACAT to change or cancel a guardianship order at any time if there is new information or a change in circumstances.

Guardianship orders must be regularly reviewed by SACAT, at intervals of not more than three years. This is an automatic review.

An application can be made to SACAT for a Review of a SACAT decision with the permission of the Tribunal.