Guardianship and Administration Adelaide and Torrensville

Medical power of attorney

Are you involved in a dispute over the care and welfare arrangements of a loved family member?

Is there disagreement or the potential for disagreement between family members over the terms of a Power of Attorney, Power of Guardianship, Medical Power of Attorney or Advance Care Directive?

We are able to assist in relation to any such disputes, which are usually dealt with by the Guardianship Board of South Australia which is empowered to make guardianship and administration orders for a person who is mentally incapable of managing their own affairs.

The difference between guardianship and administration

A guardianship order is an order by which the Guardianship Board appoints a guardian to make decisions regarding the personal and health care issues of a particular person, called the protected person.

An administration order is an order by which the Guardianship Board appoints an administrator to make decisions regarding matters of finance, property and associated legal affairs. The Board may choose to ignore the terms of an existing Enduring Power of Attorney, which may be overridden by the order and appointment of the administrator.

It is possible for the Guardianship Board to make orders for the same or different people to be appointed guardians and administrators.

A guardian has the power to make a range of personal or lifestyle decisions as may be specified by the Board.

A guardian can only be a natural person (not, for example, the Public Trustee) over 18 years of age. This usually means the guardian will be a family member. As a last resort, where there is no suitable relative or friend available the Board can appoint the Public Advocate as a guardian. There can be one or more guardians appointed.

An administrator has the right to manage the financial and legal affairs of the protected person as may be specified by the Board.

Like a guardian, an administrator can be a person such as a relative or friend or a professional person such as a doctor or lawyer. Unlike a guardian, an administrator can be a trustee company, or the Public Trustee. There can be one or more administrators appointed.

What if an Advance Care Directive or Power of Attorney is already in place?

A guardian must take reasonable steps to determine if the protected person has given an Advance Care Directive. If so the guardian must where possible act consistently with the terms of the Advance Care Directive.

On the other hand, an administrator has the power to vary or revoke any Enduring Power of Attorney.

An administrator usually has the power to make decisions about the protected person’s finances and legal affairs which the protected person could have made if they were not incapacitated.

An administrator must provide a regular account of their management of the protected person’s affairs.

An administrator must work co-operatively with any guardian appointed by the Board.

Guardianship Board Hearings

Applications to the Guardianship Board require a hearing at which all interested persons, namely family members, health providers and so on are invited to attend even if or especially if there is or may be conflict between them.

If there is conflict or the potential conflict, we can advise you in relation to your rights and obligations, and assist you in terms of how to present evidence or make submissions to the Board. Often, we can be instructed to attend on behalf of interested persons, if the potential for conflict and dispute is greater.

An order that is made by the Board can be appealed to the Administrative and Disciplinary Division of the District Court, which involves a more legalistic determination of the issues in dispute.

What you must do

As our population ages in South Australia, and lives and families become more complex in our modern society, so will the number of people who may require assistance and representation in the care, welfare and management of their loved families, particularly where there is conflict or potential for conflict.

We are experienced practitioners in elder law and can be called on for caring, supportive legal advice in relation to guardianship and administration issues.

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