Guardianship & Administration – How are they different?

The Guardianship and Administration Act 1993 (SA) allows the South Australia Civil and Administrative Tribunal (SACAT) to make guardianship and administration orders for a person who is no longer able to make vital decisions independently, specifically if a person is mentally incapacitated.

Mental incapacity is when a person is unable to take care of their own well-being, health, safety and manage their own affairs due to:

• Any form of brain damage, illness, disorder, development delay or imperfection, neurological disease (i.e. a person who suffered from a brain injury or neurological disease)
• Any physical condition or illness that causes the person to be unable to communicate their intentions or wishes in any manner (i.e. a person having physical disability such as hearing, speech and sight impartments and a person with stroke)

With a Guardianship Order, the appointed person is allowed to make decisions about a person’s personal, lifestyle and healthcare choices. Whereas with an Administration Order, the appointed person is allowed to make decisions about a person’s financial choices.

Examples of a Guardian’s Order:

• Making decisions about medical or dental decisions
• Giving or withdrawing consent to any necessary treatment excluding terminations of pregnancy, sterilization and electro-convulsive therapy

Examples of an Administrator’s Order:

• Making decisions about the person’s expenditure and investments
• Dealing with the person’s financial portfolio (i.e. collecting income and paying bills)
• Gaining access to the person’s will or other records
• Continuing the management of a person’s estate after death for a short time span and handing over the management to an executor under the person’s will
• Varying or revoking any enduring power of attorney

A Guardianship Order is usually not required because most people receive support from their family members and friends who are able to make decisions on their behalf. A formal order is also not necessary if the protected person has a valid Enduring Power of Attorney or Advance Care Directive in place. However, an application for an order can be made by a certain class of people if it is essential to protect the person’s finances from exploitation, misuse and abuse.

In South Australia, the laws surrounding Guardianship and Administration are strict. Anyone who does not act in the best interest of the protected person may be found to be incompliant with the laws. For instance, an Administrator who misappropriates the funds of the protected person may face criminal charges.

If you are concerned about the idea that you or your loved ones’ personal and financial decisions are in the hands of another person and would like to find out more about your options, Straits Lawyers are here to help. Simply send us an email at info@straitslawyers.com or give us a call on 8410 9069 to arrange an appointment for an online interview.

Please note that this article does not constitute legal advice and Straits Lawyers will not be legally responsible for any actions you take based on this article.