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Making the decision to be a guardian or co-decision-maker is an important one. The process involves an appointment by the court.
Although an adult may need a guardian or co-decision-maker, it should only be considered as a last resort. This is because it involves taking away a person’s ability to decide things for themselves. Before deciding, it is important to know your what your role and responsibilities would be. You should only make the decision with the full knowledge of what you are getting into.
The court will consider the needs of the adult. This includes whether other documents are already in place, such as an enduring power of attorney or health care directive. If the court determines that an adult needs help making decisions, they can appoint a co-decision-maker. If the court determines that an adult is not capable of making decisions, they can appoint a guardian.
The Public Guardian and Trustee has information about how to decide when this kind of help is needed. This can help in deciding if you want to become a guardian or co-decision-maker.
There are two general types of guardianship or co-decision-making powers. The first type allows the person who is appointed to make decisions about personal matters. The other type allows them to make decisions about property.
Decisions about personal matters relate to the day-to-day life of the adult. This may involve decisions about things like:
A property guardian or co-decision-maker is concerned with the financial affairs and property of the adult.
In some cases, a guardian or co-decision-maker will have to be appointed for both property and personal decisions. In other cases, an appointment is need only for one of those types of decisions. If both are needed, then a single person can be appointed to make both types of decisions. Alternatively, different decision-makers can be appointed for each type of decision.
The Adult Guardianship and Co-decision-making Act is the law that sets out the rules around this process.
The process of appointing a guardian or co-decision-maker starts with a court application. Someone who wants to be appointed must complete certain application forms. Applicants can fill these forms out on their own or with the help of a lawyer. There is a self-help kit for people doing this without help from a lawyer. Once the forms are complete, they are filed with the court.
Often times, the spouse of a dependant adult or one of their adult children make the application. However, anyone with a sufficient interest in the welfare of the person can make the application. The person being appointed must:
A person may have no family or friends willing to be appointed. In this case, the Public Guardian and Trustee may become a property guardian or co-decision-maker.
The application must be served on the adult’s nearest relatives unless they have consented to the application. It must also be served on certain people who are in a position of trust with the adult. This includes their power of attorney or the proxy in their health care directive. The public guardian and trustee must also be served. Usually, the adult must be served with notice as well. However, if the court decides that this would be harmful to the adult, it may decide that serving the adult is not necessary.
Anyone who has been served with a notice of the application, or anyone else who has a sufficient interest, can file an objection with the court. A written objection must include the reasons for an objection and be served on the other interested parties.
Before the court makes an order, it must be provided with a medical assessment. This requires two written opinions about the adult’s ability to make their own decisions. Assessments can be made by the following qualified professionals:
The court can order that the adult needs a co-decision-maker to help make reasonable decisions. If the adult’s condition is serious enough, the court can appoint someone to make decisions for the adult without the adult’s input.
The court will consider all of the information in the application, as well as any objection that has been filed. The court can hold a hearing with the parties present if more evidence is needed. However, the court can also decide based only on written evidence, such as affidavits and medical reports.
In deciding whether to make an order, the court will consider the physical, psychological, emotional, social, health, residential, vocational and economic needs of the adult. Less intrusive ways of support or assistance for the adult must be tried or at least fully considered. The court must be satisfied that making an appointment is in the best interests of the adult.
The court must also consider the suitability of the person applying to be a guardian or co-decision-maker. This includes things like whether the person:
The court can make an order for an indefinite duration or have it subject to review within a certain period of time. For example, the court can consider a built-in review of the order in circumstances where the adult’s condition may improve over time.
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