Adult Guardianship (NT)
An adult with impaired decision-making capacity sometimes requires another adult to make decisions for them on important matters such as their medical treatment, personal finances and living arrangements. In the Northern Territory, the Guardianship of Adults Act 2016 governs the appointment of guardians for vulnerable adults. This article explains the role of adult guardianship in the Northern Territory.
Adult guardianship in the Northern Territory
A vulnerable adult, or another interested party, can make a guardianship application to the Northern Territory Civil and Administrative Tribunal (NTCAT). During the hearing, NTCAT hears a range of evidence. If possible, NTCAT consults with the vulnerable adult and takes their views into consideration. The vulnerable adult can appear for themselves at the Tribunal or have legal representation.
Scope of authority
If a guardianship order is made, it can last anywhere from 90 days to several years. NTCAT will specify the scope of the guardian’s authority over personal and/or financial matters. If more than one guardian is appointed to the same vulnerable adult, they may have different areas of authority. These guardians may be appointed “jointly or severally”, so they may act together or separately, depending on the terms of the guardianship order.
The authority of a guardian is inherently limited. A guardian cannot exercise authority over the vulnerable adult’s voting, marriage, divorce, participation in an intimate relationship or care of their child. In addition, a guardian cannot control the adult’s rights as an accused in a criminal proceeding or their testamentary arrangements. Moreover, the guardian order may impose further specific restrictions on the guardian’s authority.
Guardianship principles
A guardian must exercise their authority according to statutory guardianship principles. At all times, the guardian should ensure that:
- the vulnerable adult’s best interests are the primary consideration;
- they are treated with dignity and respect;
- their views and wishes are consulted as far as practicable;
- their freedom of decision-making and actions is restricted as little as possible;
- they are encouraged to be as independent as practicable and take part in the general community;
- their property and finances are protected from harm, neglect, abuse and exploitation;
- their happiness, well-being and enjoyment of life are promoted;
- they are encouraged to reach their maximum physical, social, emotional and intellectual potential;
- they are encouraged to create and maintain a support network;
- they receive appropriate care, including health care; and
- they take into account all relevant considerations, and give them appropriate weight.
Who needs an adult guardian in the Northern Territory?
In the Northern Territory, all adults are presumed to have decision-making capacity until evidence is presented to the contrary. An adult without decision-making capacity lacks the ability to:
- understand and retain information about their personal and financial matters;
- weigh information to make reasoned and informed decisions; and
- communicate their decisions.
If there is evidence that an adult has difficulty making decisions, a guardian may be appointed. An adult might need a guardian even if their impairment is episodic, with periods of capacity in between.
Who does not need an adult guardian?
It is important to be clear that an adult does not necessarily have an impaired capacity to make decisions just because they have a certain disability, medical illness or condition. For instance, just because an adult is diagnosed with dementia, which can impair cognitive function, does not automatically mean that they lack the capacity to make their own decisions. Also, a person does not need an adult guardian just because he or she displays unconventional behaviour or chooses a lifestyle that other people disagree with. The Act specifically notes a list of non-definitive attributes, such as:
- inability to speak English fluently;
- limited literacy and education;
- history of substance dependence;
- engagement in illegal or immoral conduct;
- participation or non-participation in a particular religion or cultural practice; or
- identification as a particular gender identity or sexual orientation.
Further, not every adult with impaired decision-making requires a guardian. An adult may be able to continue to make their own decisions with appropriate support from family, friends and professionals. An adult who can effectively make decisions assisted by others may not need a guardian. However, if an informal support arrangement later falters, it may then be necessary to seek guardianship orders.
Who can act as an adult guardian?
A guardian is typically a family member or close friend of the vulnerable adult, or a person who is related to the adult through customary law or tradition. However, legally a guardian can be anyone who has an “interest” in the welfare of the vulnerable adult. The Tribunal can appoint the Public Guardian or the Public Trustee if there is no eligible party to assume authority. In that case, the Public Trustee’s remit is limited to financial matters, and they must agree to the appointment.
An individual is only eligible to act as a guardian if they are 18 years or older, willingly consents to the appointment and is a suitable person. Suitability is dependent on a range of factors, including the individual’s likelihood of complying with the Act, and their availability and ability to properly exercise authority over their charge.
The Tribunal also considers the prospective guardian’s compatibility with the adult and other co-guardians and their understanding of the importance of preserving existing support networks for the adult. The guardian’s personal circumstances, such as their criminal and financial history, may also be considered significant to suitability. For instance, a potential guardian with a criminal history of fraud would not be deemed suitable to assume financial authority over a vulnerable adult.
Go To Court Lawyers can help if you need legal advice or representation to seek an adult guardianship order in the Northern Territory. Please contact the team on 1300 636 846 for advice on this or any other legal matter.
