Guardianship: information for our Minda families
Guardianship may need to be considered when a person with cognitive disability has limited decision making capacity and requires someone to make decisions on their behalf.
As a parent or other close family member, you will have been doing this ‘second nature’ for a long time. But it’s important to consider who will make these important decisions for your loved one if you are no longer able to do so.
Having appropriate guardianship in place means your loved one will be appropriately taken care of when it comes to the big things in life – decisions around medical care, accommodation and lifestyle.
A guardian is a decision maker only – they don’t provide case management or day-to-day care for a person. It could be another family member or a close friend who might be happy to be the decision maker, someone you know will have your loved one’s best interests at heart.
If there’s no-one else in the person’s life who you consider appropriate to be the guardian, then the Public Advocate can be appointed to take on this role.
The process to appoint a guardian starts with the South Australian Civil and Administrative Tribunal (SACAT).
You as the parent or close family member, are best placed to apply to SACAT. Minda is not legally able to do this for you as a registered NDIS service provider.
During the application for a formal substitute decision maker, SACAT will decide on guardianship as well as whether your loved one may need an administrator to manage and protect their financial and legal affairs. An administrator can be another family member or close friend, or the Public Trustee may be appointed as the administrator.
Information from SACAT is available on their website, as well as information about guardianship from the Office of the Public Advocate, and administration from the Public Trustee.
The first step is to fill in SACAT’s ‘Medical or Psychological Report’ form and have your loved one’s doctor complete it. You can then complete the online application form on the SACAT website or if you don’t have a computer, call SACAT on 1800 723 767 for assistance over the phone.
What is SACAT
- The South Australian Civil and Administrative Tribunal (SACAT) helps resolve issues within specific areas of law, either through conciliation or mediation, or through a decision of the Tribunal at hearing.
- SACAT’s Community Stream makes orders appointing substitute decision makers for people with cognitive disability when it affects their decision-making. Guardians are substitute decision makers for health, accommodation and personal/lifestyle decisions, while Administrators are substitute decision makers for financial and legal decisions.
- Anyone with a “proper interest” in the welfare of a person needing a formal substitute decision-maker can apply to SACAT. During the application for a formal substitute decision maker, SACAT will decide whether the person needs a guardian or an administrator appointed to make decisions for them.
What is OPA
- The Office of the Public Advocate (OPA) is an independent statutory Office of the South Australian Government and exists to promote the rights and interests of people who may need assistance with decision making.
- OPA services include finding alternatives to guardianship, advocacy, investigations, and acting as guardian of last resort.
- The Public Advocate is appointed as Guardian of last resort by SACAT.
- The Public Advocate delegates the day-to-day responsibility for decision-making to the advocate/guardian staff of OPA, with the person under guardianship known as the “protected person”.
- SACAT determines the length of guardianship appointments, but the timeframe is generally up to three years.
- SACAT defines the decisions for which the guardian is legally responsible, but they generally include: accommodation (appropriateness of living arrangements), health (including consent to palliative care, withdrawal of treatment), lifestyle (social activities, education, employment) and access (contact between the protected person and others).
What is the Public Trustee
- The Public Trustee is an agency of the South Australian Attorney General’s Department. One of its key roles is to provide financial and administrative services to South Australians who cannot manage their own affairs.
- SACAT can appoint the Public Trustee, through an Administration order, to manage and protect a person’s financial and/or legal affairs (when that person has “lost mental capacity”, which includes people with cognitive disability).
- The Public Trustee is never appointed as a guardian, but the Public Trustee ensures it communicates with the protected person’s guardian when significant decisions are required.
Step-by-step guide to guardianship
- Think about whether now, or in the near future, you may need to hand over decision-making for your loved one to someone who will have their best interests at heart.
- Have conversations within your own family and see if someone is happy to take on the role.
- If there is no-one else to do this, you can apply to the South Australian Civil and Administrative Tribunal (SACAT) for guardianship and administration.
- The first thing you need to fill out is SACAT’s ‘Medical or Psychological Report’ form (hyperlink) www.sacat.sa.gov.au. You will need to have your loved one’s doctor complete this form.
- You can then complete the full online application form on the SACAT website. If you don’t have a computer, you can call SACAT on 1800 723 767 and they will help you over the phone.
- You can apply for a Guardianship Order and/or an Administration Order.
- Once your application is submitted, the process normally takes around 4-6 weeks.