Planning Ahead – Family and Friends of ageing people with decision-making disability

Does an elderly relative with a decision-making disability need a guardian or administrator?

If there is no conflict and informal processes are working well (i.e. family or friends are effectively supporting this person), it is not always necessary for them to have a guardian or administrator, so long as the decisions made are in their best interests.

However, if loved ones can no longer provide the necessary support, if there is conflict, or if a bank or other financial institution needs to see a formal authority before they will talk to you about that person’s finances, legal authority may be required and you can make an application to the State Administrative Tribunal (SAT) for guardianship and/or administration.

It is important to note that as soon as a guardian or administrator is appointed, that person takes over decision-making authority.  So, if the informal processes are working well, you may want to leave these in place until circumstances change.

My mother has received an early diagnosis of Alzheimer’s can I be her legal decision-maker?

An adult is legally entitled to make their own decisions and this is the same for someone with a decision-making disability such as Alzheimer’s.  What needs to be decided is whether your mother has the capacity to make decisions in their own best interests.

This discussion may occur when a decision is needed, and a health professional or service provider would be involved. If they think your mother can make informed decisions, then they will support this, but they may still want to seek your advice and support during the process.

How to make an application to the State Administrative Tribunal?

To apply for someone to have a guardian or administrator, you need to complete an application form which is available from the State Administrative Tribunal (SAT). It is free to make an application, and there is no cost for any related hearing. 

For more information go to the page on how SAT handles guardianship and administration matters available from the SAT website.

Can I write an Enduring Power of Attorney (EPA) or Enduring Power of Guardianship (EPG) on behalf of an elderly relative/friend with a decision-making-disability?

No, these documents can only be completed by adults with full legal capacity. Other people cannot make any of these documents on someone else’s behalf.

If someone has not made an EPA or EPG, or they do not have the 'full legal capacity' required to do so, and a substitute decision-maker is required, that is when a guardian or administrator may need to be appointed by the State Administrative Tribunal (SAT).

Can someone with a decision-making-disability make an EPA or EPG?

To make either power an adult must have full legal capacity. This means that the person must know and understand what the document is and the consequences of making it, including an understanding that they will be giving someone else the authority to make decisions about them.

If a person is already diagnosed with some form of decision-making disability it does not automatically mean that they lack the capacity to make the document.  However, for people in this situation it is recommended that they see a qualified health professional who can assess if they have the capacity to make the document.

If the health professional says that they have this capacity it is recommended the written assessment is kept with the document which they complete so that everybody knows that they had the capacity to make it.

If someone does not have the capacity to make the document, that is when guardianship and administration may come into consideration – but as previously stated, not having capacity does not always mean an application needs to be made for Guardianship and Administration. See above for more information.

My brother has an intellectual disability and I am his guardian.  I have recently retired and I want to plan for my future.  Can I nominate a guardian for my brother in my Will, in case I die before he does?

No, it is not possible to will the guardianship of an adult to another person, even when that adult has a decision-making disability. Therefore, it is not possible to nominate someone to be the guardian in your Will.

It is better to talk to trusted family and friends now about who might be available to help the person with a decision-making disability in the future. This might be as simple as giving people the contact details for the Office of the Public Advocate or the State Administrative Tribunal (SAT) so that they know who to contact in the future.

Who will make decisions about my mum’s property/finances, or personal, treatment and lifestyle options if I die before she does?

For an older person who has lost, or who never had, capacity, the 'least restrictive' alternative can apply. This means that where informal processes work in the person's best interests, decisions can be made informally by family and/or close friends.

It is important to have discussions now with family and/or close friends about who is suitable, willing and available to make decisions on behalf of your mum, if you are no longer able to, either in an informal capacity or as a legally appointed guardian and/or administrator.

If informal processes are not working an application can be made to the State Administrative Tribunal (SAT) for the appointment of a guardian and/or administrator.

I want my spouse to look after me if I lose capacity, and vice versa.  But we were thinking of nominating our adult son as Enduring Guardian and Attorney, so that we have ‘back-up’?

While the principle of having your son as back-up is a good idea.  This is not the best implementation, as an Enduring Guardian with authority supersedes a spouse when it comes to the hierarchy of decision-making. This would mean that should either of you lose capacity, your son will be the decision-maker, not your spouse.

The best way to have your son as ‘back-up’ is to appoint your spouse as your attorney/enduring guardian and to appoint your son as your substitute attorney and substitute enduring guardian.  That way, if one of you loses capacity, the other person can continue making the decisions.  But your son can step in, should further issues arise.

I want to plan ahead, but I do not have family who I can trust to support me should I lose capacity. What should I do?

If you end up losing capacity, it is important to understand that any interested party can make an application to the State Administrative Tribunal (SAT) for the appointment of a guardian and/or administrator as and when required.  It doesn’t have to be a friend or family member.

Interested parties can include residential care home managers, local area coordinators, social workers, doctors or bank managers, as well as any other agency which requires a decision. 

As an older person, the chances are that you will have interactions with a number of the aforementioned people and if your health deteriorates, there will be people or agencies on hand to make an application to the State Administrative Tribunal (SAT).

In short, an application to SAT is as valid from a service provider as it is from a loved one and should result in the same outcome of appointing a guardian and/or administrator, if required.

When planning for the future, you can draft an Enduring Power of Attorney (EPA) and Enduring Power of Guardianship (EPG).

When drafting your Enduring Power of Attorney (EPA), if you meet the criteria, the Public Trustee can be nominated to look after your financial and property decision-making, should you lose capacity.  To find out more visit Enduring Power of Attorney or call 1300 746 116.

The Public Advocate does not act as an Enduring Guardian to look after your personal, lifestyle and treatment decisions included in an Enduring Power of Guardianship (EPG).  You can appoint someone other than a family member to be your Enduring Guardian, so long as you feel they are trustworthy, know your wishes, are 18 years of age or older and have full legal capacity.  For more information visit Enduring Power of Guardianship or call 1300 858 455.

I have been diagnosed with an illness that will impact on my decision-making ability in the future.  What should I do?

While you still have capacity, you can make an Enduring Power of Attorney (EPA), Enduring Power of Guardianship (EPG) and Advance Health Directive (AHD), all of which will help communicate your wishes, when you are no longer able to.

You can also talk to family and friends about these documents and how they can support you once you are no longer able to make your own decisions, remembering that they can make an application to the State Administrative Tribunal (SAT) if/when necessary (see information above).

The Public Trustee can be appointed by the State Administrative Tribunal (SAT) as administrator of last resort to make decisions about property and financial matters in the best interests of the person with a decision-making disability.

The Public Advocate can be appointed by the State Administrative Tribunal (SAT) as guardian of last resort to make decisions about personal, treatment and lifestyle matters in the best interests of the person with a decision-making disability.

I keep telling my elderly mother that she should make an Enduring Power of Attorney (EPA) and Enduring Power of Guardianship (EPG), but she says that she doesn’t want to.  What can I do?

While making an EPA or EPG can be a useful way of planning for the future, it is not compulsory.

It is up to the individual to decide if they want to make an EPA or EPG.  It is a personal choice.  If they do not want to make these powers, that is their right. 

Making an EPA or EPG cannot be a condition of receiving a service or support.  A person must not be coerced or forced to make these documents and you cannot make an EPA or EPG on behalf of another person.

For more information on the benefits, see publications below.