A person with a mental incapacity may be unable to make certain important decisions about their care or welfare, including accommodation, health, or the services they receive.
A guardianship order is a document through which SACAT authorises another person to make those decisions.
A guardian has no authority to make financial decisions for the person - that is the role of an administrator.
What is mental incapacity?
A mental incapacity can affect a person's ability to look after their own health, safety or welfare and can include:
- an intellectual disability
- brain damage
- mental illness
- conditions such as dementia
- being in a physically unwell state where a person cannot communicate their intentions, such as being in a coma.
Types of guardianship orders
In many cases, you will not need to come to SACAT and can make other arrangements.
SACAT will not make a guardianship order unless satisfied that the person:
- has a mental incapacity and
- there is a need for an order to be made.
There are two types of guardianship 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:
- accommodation
- health care (medical and dental treatment) and some types of prescribed treatment for mental illness - but not for prescribed medical treatment
- contact with the protected person
- services (including NDIS)
If a person with mental incapacity is coping well in most areas of their life but needs a guardian to make decisions in other areas, a limited guardianship order can be made.
For example SACAT may make a guardianship order that is limited to accommodation decisions.
The guardian cannot make any other decisions for the protected person outside of those about accommodation. The limitation will be specified in the order.
How long is a guardianship order?
A guardianship order generally starts on the day SACAT makes the order. It can be for a fixed period.
It is usually an ongoing order and remains in place until another order is made by SACAT.
It must be automatically reviewed at least every three years to see if the orders should still be in place or if any changes are needed.
What does SACAT consider when making a guardianship order?
SACAT will weigh up evidence to decide if there is a need for an order and will consider:
- what the person’s wishes would have been had they not become mentally incapacitated
- what the person’s present wishes are - if these can be expressed
- whether existing arrangements are adequate and should not be disturbed
- 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.
