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FAQs for parents of children with a decision-making disability

Many parents of children with a disability want to make plans for the future care and support their child will need once they become an adult (turn 18 years of age).

These Frequently Asked Questions (FAQs) are designed to help parents of children with a decision-making disability understand more about the Guardianship and Administration Act 1990 and how this may be of help in planning for the future.

1. Why do I need to know about the Guardianship and Administration Act 1990?

The Act provides processes for the protection of adults with a decision-making disability, and many parents are interested in how it may be relevant as they prepare for the future of their children aged 18 and over, where that child has a disability which impacts on their ability to make decisions in their own best interests. This decision-making disability may be as a result of intellectual disability, mental illness, or acquired brain injury.

2. How does the Guardianship and Administration Act 1990 protect adults?

The Guardianship and Administration Act 1990 recognises that adults who are not capable of making reasoned decisions for themselves may need additional support and assistance not only to ensure their quality of life is maintained, but also to protect them from the risk of neglect, exploitation and abuse. The Act enables a substitute decision-maker to be appointed to make decisions in the best interests of an adult with a decision-making disability.

3. What types of decision makers can be appointed?

There are two main types of substitute decision-makers: a guardian and an administrator.

  • Guardianship applies to personal, lifestyle and medical treatment decision-making.
  • Administration applies to financial and legal decision-making.

For more information on guardianship and administration read the Information sheet 1: The Guardianship and Administration System.

4. My child has an intellectual disability and is just about to turn 18, why won’t I still be the legal decision-maker?

When someone turns 18 they become an adult and legally entitled to make their own decisions. This is the same for someone with a decision-making disability. What needs to happen is some discussion about whether the decision-making disability means that the person lacks capacity to make decisions in their own best interests.

This discussion may occur when a decision is needed, and a health professional or service provider would be involved. If they think your (adult) child can make informed decisions, your (adult) child makes their own decisions. Your child may still want to seek your advice and support but they will make the decision required.

5. Will my (adult) child have to have a guardian or administrator appointed?

It is not always necessary for someone to have a guardian or administrator appointed, if there are informal ways that decisions can be made in the best interests of the person with the decision-making disability.

Personal and lifestyle decisions – For example, when arranging new support services, activities or accommodation, if the adult with the decision-making disability, family, and professionals are all in agreement that this is in the person’s best interests, the decision could be made informally.

Medical treatment decisions – The Guardianship and Administration Act 1990 sets out an order of people who can make treatment decisions for a person when the treating health professional says they cannot make the decision themselves because they lack the capacity to provide informed consent to treatment. This order can be seen as a ‘Hierarchy of treatment decision-makers’.

For more information on the 'Hierarchy of treatment decision-makers' see the Making treatment decisions page.

Financial decisions - Informal processes are more limited with financial decisions because most organisations which deal with money and contracts want to see a formal authority before they will talk to someone about another person’s finances. This might be because the information is confidential and they want to make sure that they do not talk to the wrong person.

You may be able to work with some companies to find informal ways of managing a bank account, or to receive a Centrelink payment on behalf of an adult with a decision-making disability, but it is more likely that you will need to make an application for administration at some point.

For more information read the Information Sheet 5: Administration.

6. I have been told by a friend/service provider that I have to apply to be the guardian/administrator or I will not be able to make decisions when my child turns 18, is this true?

It is not always necessary for someone to have a guardian or administrator appointed, as long as there is no conflict and informal processes are working well. If there is conflict, or if a bank or other financial institution wants to see a formal authority before they will talk to you about another person's finances, you may need to make an application to the State Administrative Tribunal (SAT) for guardianship or administration.

7. If I need to make an application to the State Administrative Tribunal, how do I do this?

To apply for someone to have a guardian or administrator, you need to complete an application form which is available from the State Administrative Tribunal (SAT). It is free to make an application, and there is no cost for any related hearing.

For more information go to the page on how SAT handles guardianship and administration matters available from the SAT website.

8. I am getting older and want to prepare for the future, can I apply to have a guardian and administrator appointed for my child now so I do not have to worry?

If you and your family are making decisions at the moment without a guardianship and administration order then the ‘informal processes’ are working well. In most cases it is best to allow this to continue until there needs to be a change. A change could occur if you, the parent, become unwell so can no longer provide the care and support or if someone feels that the person’s (with a decision-making disability) situation has changed and a legal authority is required.

The best thing you can do now to prepare for the future is to talk to family or friends about guardianship and administration, and what they may need to do in the future if you are no longer able to act as the informal decision-maker. You may want to provide family and friends with some of the information sheets mentioned in these questions so that they know who to contact in the future.

As soon as a guardian or administrator is appointed, that person takes over decision-making authority – so if the informal processes are working well you may think it is best to leave these in place until the circumstances change for you or your (adult) child.

9. I have heard about enduring powers of attorney and enduring powers of guardianship, what are these?

These two powers are documents that anyone who is 18 years of age or older and who has full legal capacity can complete to nominate another person to be their substitute decision maker.

This means if the person making the power(s) ever loses capacity then the person they have chosen will step in to make decisions.

  • The enduring power of attorney applies to property and/or financial decisions.
  • The enduring power of guardianship applies to personal, lifestyle and medical treatment decisions.

These powers might be useful for you in thinking about how your decisions will be made if you ever lose capacity.

For more information on the enduring power of attorney, read the Information Sheet 8: Enduring Powers of Attorney.

For more information on the enduring power of guardianship, read the Information Sheet 9: Enduring Powers of Guardianship.

10. Is it possible for my (adult) child who has a decision-making disability to make these powers?

To make either power an adult must have full legal capacity. This means that the person must know and understand what the document is and the consequences of making it, including an understanding that they will be giving someone else the authority to make decisions about them.

If a person is already diagnosed with some form of decision-making disability it does not automatically mean that they lack the capacity to make the document.

However, for people in this situation it is recommended that they see a qualified health professional who can assess if they have the capacity to make the document.

If the health professional says that they have this capacity it is recommended the written assessment is kept with the document which they complete so that everybody knows that they had the capacity to make it.

If someone does not have the capacity to make the document then that is when guardianship and administration may come into consideration – but as previously stated, not having capacity does not always mean an application needs to be made for Guardianship and Administration. Refer to points 4 and 5 above for more information.

11. How can I - the parent of an adult with a decision-making disability - make an enduring power of attorney, and/or an enduring power of guardianship for that person?

It is not possible for you to make either power for your (adult) child - or for anyone else.

These documents are only able to be completed by adults with full legal capacity. The parent or guardian of an adult with a decision-making disability cannot make any of these documents on their behalf.

If someone has not made an enduring power of attorney or enduring power of guardianship, or they do not have the 'full legal capacity' required to make the documents, and a substitute decision-maker is required that is when a guardian or administrator may need to be appointed by the State Administrative Tribunal (SAT). Refer to points 4 and 5 above for more information.

12. Can I nominate a guardian for my (adult) child in my Will?

It is not possible to will the guardianship of an adult to another person, even when that adult has a decision-making disability. Therefore, it is not possible to nominate someone to be the guardian in your Will.

It is better to talk to trusted family and friends now about who might be available to help the person with a decision-making disability in the future. This might be as simple as giving people the contact details for the Office of the Public Advocate or the State Administrative Tribunal (SAT) so that they know who to contact in the future. Refer to point 8 above for more information.

13. Who will make decisions about my (adult) child's property and finances, or personal, treatment and lifestyle options after I pass away?

For an adult who has lost, or who never had, capacity, the 'least restrictive' alternative can apply. This means that where informal processes work in the person's best interests, decisions can be made informally by family and/or close friends. Refer to point 5 above for more information.

It is very important to have discussions now with family and/or close friends about who is suitable, willing and available to make decisions on behalf of your (adult) child if you are no longer able to, either in an informal capacity or as a legally appointed guardian and/or administrator.

If informal processes are not working an application can be made to the State Administrative Tribunal (SAT) for the appointment of a guardian and/or administrator.

14. I have no family who can make an application to the State Administrative Tribunal – what will happen to my (adult) child?

Any interested party can make an application to the State Administrative Tribunal (SAT) for the appointment of a guardian and/or administrator for an adult with a decision-making disability. Interested parties can include residential care home managers, local area coordinators, social workers, doctors or bank managers, as well as any other agency which requires a decision.

At some point there will be a person or agency which needs a decision to be made - and that means there will be someone who will make an application to the State Administrative Tribunal, if it is needed.

15. If I have no family, who will be appointed?

The Public Advocate can be appointed by the State Administrative Tribunal (SAT) as guardian of last resort to make decisions about personal, treatment and lifestyle matters in the best interests of the person with a decision-making disability.

The Public Trustee can be appointed by the State Administrative Tribunal (SAT) as administrator of last resort to make decisions about property and financial matters in the best interests of the person with a decision-making disability.

 

Last updated: 18-Dec-2015

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