Guardianship and Administration Act 1993

The Act directly affects persons with mental incapacity (defined in s 3(1)), described throughout as the person to whom the proceedings relate or, once an order is made, the protected person. Any individual whose brain or mind function or communicative ability is impaired to the statutory threshold falls within scope, regardless of age or cause.

Guardians and administrators appointed under the Act (whether private individuals, the Public Advocate, the Public Trustee or trustee companies) are subject to its duties, reporting requirements, principles in s 5, and potential personal liability (for example, disallowed expenditure under s 44(6)). Joint appointees must concur in every act (s 52).

The Public Advocate holds a central role: investigative (s 28), advocacy (s 21), and potential appointment as guardian of last resort (s 29(4)). The Tribunal is the primary decision-making body for orders, consents, reviews and advice (Parts 4, 5, 6 and 7). Medical practitioners, dentists, psychologists and other health professionals are regulated in relation to prescribed treatment (s 61), certificates and reports (s 77), and conflicts of interest involving relatives (s 78).

Family members, domestic partners, prescribed relatives (defined in s 3(1) to include spouses, adult domestic partners, blood or marriage relatives, adopted relatives and Aboriginal or Torres Strait Islander kin), friends, and persons responsible (those in close continuing relationships or overseeing day-to-day care) may apply for orders (ss 33 and 37), make submissions (s 61(5)), or be appointed. They are also entitled to notice of proceedings (s 66) and may be granted access to accounts (ss 44(7) and 45(4)).

Carers, whether professional or informal, are affected by detention and force authorisations (s 32(1)(c)) and by the offence of ill-treatment or wilful neglect (s 76). The Public Trustee receives copies of administration orders (s 38), examines private administrators' accounts (s 44(4)), and may retain funds post-revocation or death (s 41A). The Supreme Court exercises jurisdiction over missing-persons orders (s 48A) and equitable intervention where administration has disturbed testamentary entitlements (s 43).

Finally, the Act binds persons who might otherwise deal with a protected person's property: dispositions and contracts while under administration are voidable (s 42), subject to the other party's knowledge of incapacity. Publishers, those handling confidential information, and persons executing warrants are all subject to offence provisions (ss 80, 81, 69(6)).

Section 5 imposes paramount duties on guardians, administrators, the Public Advocate, the Tribunal, courts and any other decision-maker: (a) ascertainable wishes of the person are paramount; (b) present wishes must be sought where possible; (c) existing informal arrangements must be considered and not disturbed without cause; and (d) the least restrictive order consistent with proper care and protection must be chosen. These principles are repeated as suitability criteria for appointment (s 50(1)(c)).

Guardians possess all powers a guardian has at law or in equity (s 31), but must take reasonable steps to ascertain and give effect to any advance care directive, including avoiding outcomes the person would wish to avoid (s 31A). An alternative guardian steps in automatically on death, absence or incapacity of the original (s 31B) and must notify the Tribunal.

Administrators owe trustee duties (s 39(1)(b)), must keep the guardian informed of substantial decisions where both are appointed (s 75), and exercise powers in s 39(2) subject to Tribunal approval for real property transactions (s 39(4)) and any regulatory limits (s 39(3)). They must report accounts at Tribunal-determined intervals (s 44 for private administrators, s 45 for the Public Trustee).

Protected persons retain rights to apply for orders or reviews (ss 33(1)(a), 37(1)(a)), to be heard, to representation by the Public Advocate or recognised advocate (s 68), and to receive a statement of appeal rights (s 55). They enjoy confidentiality protections (s 80) and restrictions on publication that could identify them (s 81). Testamentary capacity may be restricted by Tribunal direction (s 56).

The Public Advocate's rights and duties are set out in ss 21–23: independent review and advocacy functions, power to raise concerns with Ministers and Parliament, and delegation rights. The Tribunal must give notice to the person, the Public Advocate and others with proper interest (s 66), provide reasons on request (s 67), and may require psychiatric, psychological or medical reports (s 69).

Applicants, including persons responsible or those with proper interest, must satisfy change-of-circumstances thresholds for certain variation applications (ss 33(1a) and 37(1a)). Health professionals cannot act in respect of relatives (s 78) and face offence provisions for false or unexamined certificates (s 77).

The Act creates a range of summary offences with monetary penalties and, in some cases, imprisonment. Removing or aiding the unlawful departure of a detained person carries a maximum penalty of $10 000 (s 32(7)). Ill-treatment or wilful neglect of a person with mental incapacity is punishable by $10 000 or two years' imprisonment (s 76). Signing a certificate or report without personal examination attracts $20 000 (s 77(1)); wilfully false certification or misleading statements attract $10 000 or two years (s 77(2)). Fraudulently procuring a guardianship or administration order for a person without mental incapacity is also $10 000 or two years (s 77(4)).

Breach of confidentiality by a person engaged in administration of the Act is $10 000 (s 80(1)). Unauthorised publication of proceedings is $10 000, and even authorised publication that identifies the protected person is likewise $10 000 (s 81). Refusal to allow an administrator access to wills or records is $2 500 (s 40(2)); unauthorised disclosure of a will's contents by an administrator is $5 000 (s 40(3)). Hindering or obstructing execution of a warrant under s 69 is $10 000 (s 69(6)).

Prescribed treatment without Tribunal consent (or otherwise than in accordance with regulations) carries $10 000 or two years' imprisonment (s 61(1)). Failure by a private administrator to furnish accounts without reasonable excuse is $5 000 (s 44(2)).

Enforcement mechanisms include Tribunal disallowance of expenditure (ss 44(5)–(6) and 45(2)), personal liability of administrators for disallowed items (s 44(6)), Crown liability where the Public Trustee is at fault (s 45(3)), and Supreme Court equitable intervention to adjust testamentary entitlements disturbed by administration (s 43). Police may apprehend persons unlawfully at large under s 32(6) without warrant. The Tribunal may revoke appointments for incompetence, negligence, breach of principles or dishonesty (s 54(2)).

Section 4 states that the Act is in addition to, and does not derogate from, any other Act, subject to express provisions. It interacts heavily with the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act). Parts 6 and 6A of the Guardianship and Administration Act modify the application of Part 5 of the SACAT Act regarding internal reviews, appeals, representation, costs and time limits. For example, internal review of publication suppression orders is prohibited (s 64(a)), permission is required for most internal reviews (s 64(c)), and expedited hearings are mandated for termination-of-pregnancy and detention matters (s 64(f)). Reviews under s 57 are treated as within the Tribunal's original jurisdiction (s 57(5)).

The Advance Care Directives Act 2013 is integrated by the definitions of advance care directive and substitute decision-maker (s 3(1)). Guardians must give effect to advance care directives (s 31A), investigations may follow revocation of such directives (s 28(1)(b)), and s 32 applies to persons who have given an advance care directive with at least one substitute decision-maker. Transitional provisions in the Advance Care Directives Act converted former enduring guardians into advance care directives.

The Mental Health Act 2009 is referenced in s 32(3) and (3a) to prevent use of detention powers in approved treatment centres set aside for mental illness. The Consent to Medical Treatment and Palliative Care Act 1995 is expressly preserved for emergency treatment but otherwise overridden in relation to prescribed treatment (s 61(1)).

The Real Property Act 1886 is engaged by administrator powers to exercise proprietor's powers, lodge caveats (s 39(2)(u) and (v)), and register administration orders (s 47(2)). The Registration of Deeds Act 1935 permits registration of administration orders (s 47(1)). The Trustee Companies Act 1988 defines trustee companies that may be appointed (s 3(1)). The Family Relationships Act 1975 supplies the definitions of domestic partner and informs prescribed relative status (s 3(1)).

Reciprocal arrangements with other States and Territories are authorised for both guardianship (s 34) and administration (s 48). The Succession Act 2023 and earlier probate legislation interact with administrator powers to apply for grants (s 39(2)(za)), post-death continuation of powers (s 41), and Supreme Court adjustment of wills (s 43).

The legislative history records numerous amendments that have progressively widened and modernised the Act. The Advance Care Directives Act 2013 (commencing 1 July 2014) inserted references to advance care directives, repealed Part 3 on enduring guardians, and required guardians to give effect to such directives (new s 31A). These changes reflected a policy shift toward recognising prior expressed wishes through formal instruments rather than separate enduring guardianship appointments.

The Statutes Amendment (SACAT) Act 2014 (commencing 29 March 2015) replaced the former Guardianship Board with the Tribunal, substituted Part 6, inserted Part 6A, and made consequential changes to notice, reasons, representation and review provisions (ss 64–69, 74). The stated purpose was to streamline administrative justice by consolidating tribunal functions.

The Statutes Amendment (Attorney-General's Portfolio) Act 2017 and related statutes added alternative guardians (new ss 29(2a) and 31B in 2017), refined application standing (amendments to ss 33 and 37), and adjusted reporting (amendments to s 44). These addressed practical difficulties when a guardian dies or becomes incapacitated and tightened eligibility for variation applications.

In 2023 the Succession Act 2023 and Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) Act 2023 inserted Division 3A for missing persons (s 48A) and amended s 61(3) on termination of pregnancy. The missing-persons provisions respond to gaps where a person disappears and no one has authority to manage their estate, allowing the Supreme Court to appoint administrators for debts, dependants and property preservation. The 2024 Statutes Amendment (Public Trustee and Litigation Guardian) Act inserted s 41A (Public Trustee retention of money for outstanding debts) and s 83 (matters to consider before appointing the Public Advocate as litigation guardian), both commencing 1 July 2025. These changes clarify post-revocation or death administration and ensure the Public Advocate is appointed as litigation guardian only where no suitable relative or friend exists.

Uncommenced 2025 amendments will further adjust Tribunal proceedings. Collectively the changes respond to evolving policy priorities: recognition of advance planning, administrative efficiency, protection of missing persons' estates, and clarification of financial and litigation guardian roles.

The source text itself does not record specific judicial decisions; however, the structure of the Act reveals areas of potential contention that have historically generated litigation or policy debate. The breadth of the mental incapacity definition in s 3(1) has been a recurring focal point. Because it encompasses both cognitive impairment and physical conditions preventing communication, boundary disputes arise as to whether a particular condition meets the threshold. Tribunal satisfaction of mental incapacity is a jurisdictional fact (ss 29(1) and 35(1)), and erroneous findings have been challenged on internal review or appeal under the SACAT Act pathways preserved in s 64.

The s 5 principles, particularly the paramountcy of ascertainable wishes and the least-restrictive-order requirement, have produced disputes when family members disagree on what the protected person would have wanted. Section 31A's obligation to give effect to advance care directives adds a further layer; conflicts between a guardian's view of the directive and the Tribunal's interpretation have led to review applications.

Detention and residence orders under s 32 have been controversial because they authorise deprivation of liberty outside the mental health system. The preconditions (serious risk to health, safety or others) and the prohibition on correctional or mental illness wards (s 32(3)–(3a)) reflect legislative awareness of civil-liberty concerns. The power to use reasonable force (s 32(1)(c)) and police apprehension without warrant (s 32(6)) have generated challenges regarding proportionality and procedural fairness.

Sterilisation and termination-of-pregnancy consents under s 61 have attracted strict scrutiny. The statutory preconditions (therapeutic necessity or permanent incapacity plus sexual activity or menstrual management needs, with no known prior refusal) are designed to prevent abuse, yet the requirement that the Tribunal have "no knowledge" of a prior refusal has produced procedural disputes. The two-working-day internal review limit for termination decisions (s 64(d)) and prohibition on further appeal (s 64(i)) were inserted to balance urgency with oversight, but have been criticised for restricting rights.

The Supreme Court's equitable jurisdiction under s 43 to adjust wills disturbed by administration has been used sparingly but raises questions of testamentary freedom versus administrative necessity. Reporting and accountability provisions (ss 44–46) have led to disallowance proceedings and personal liability claims against administrators.

Finally, the shift from the Guardianship Board to SACAT in 2015 produced transitional litigation concerning whether pre-2015 orders retained force and the status of pending reviews (see transitional provisions in the 2014 amending Act). The Act's confidentiality and non-publication rules (ss 80–81) have also generated applications for leave to publish where public interest is asserted.

Most practitioners assume that once a full administration order is made the protected person loses all contractual capacity. Section 42, however, makes dispositions and contracts merely voidable at the administrator's option, and only if the other party knew or ought reasonably to have known of the incapacity. An innocent third party may therefore enforce the transaction, leaving the estate exposed.

Another trap is the interaction between advance care directives and guardianship. Section 31A requires a guardian to ascertain and give effect to any directive (including one revoked by the Tribunal in the same proceedings), yet the guardian's powers under s 31 remain subject only to the Tribunal's order and the Act. Where a directive and a guardianship order appear to conflict, the least-restrictive principle in s 5(d) and the paramountcy of wishes in s 5(a) must be reconciled; many guardians overlook the statutory duty to take "reasonable steps" to ascertain the directive.

Private administrators frequently fail to appreciate that real-property dealings (sale, lease beyond two years, or acquisition other than for accommodation) require prior Tribunal approval (s 39(4)). Retrospective ratification is not guaranteed, and personal liability for disallowed expenditure can follow (s 44(6)). The reporting obligation under s 44 is ongoing and Tribunal-determined; late or incomplete accounts can trigger disallowance hearings, audit costs charged to the estate, and personal repayment orders.

The "person responsible" definition in s 3(1) includes the director of nursing in an aged-care facility. Such persons can apply for orders but only if they satisfy the Tribunal of a change in circumstances for variation applications (ss 33(1a) and 37(1a)). Many facility staff inadvertently breach s 78 by signing certificates concerning residents with whom they have a professional relationship that has become quasi-familial.

Section 32(7a) expressly includes temporary residence (for example, hospital rehabilitation). Guardians and facilities sometimes assume that a s 32 order expires on discharge; the order remains in force until varied or revoked (s 32(5)), and the police apprehension power continues.

The missing-persons regime in s 48A is heard by the Supreme Court, not the Tribunal, and the administrator must notify the Court immediately the person is located alive or dead (s 48A(6)). Failure to do so can expose the administrator to Court direction or removal. Finally, s 41A (commencing 2025) allows the Public Trustee to retain funds for outstanding liabilities after revocation or death up to the lesser of the estimated liability or the prescribed amount. Many practitioners are unaware that this statutory retention right survives revocation and operates independently of general trust accounting rules.

Compliance begins with a thorough capacity assessment grounded in the s 3(1) definition. Any application to the Tribunal (ss 33 and 37) must be made in the approved form and served on the Public Advocate and other interested parties (s 66). Applicants should prepare evidence addressing the s 5 principles, especially ascertainable wishes and the adequacy of less restrictive alternatives.

If appointed, guardians must immediately ascertain whether an advance care directive exists (s 31A(1)(a)) and, where one does, take reasonable steps to give effect to its provisions (s 31A(1)(b)). Both guardians and administrators must keep each other informed of substantial decisions (s 75). Administrators must obtain Tribunal approval before dealing with real property (s 39(4)), maintain accurate records, and lodge accounts at intervals set by the Tribunal (ss 44 and 45). Professional administrators should seek a remuneration order under s 46 before charging at prescribed rates or higher.

Organisations overseeing care must train staff on the offence provisions (ss 76–78, 80–81) and the prohibition on acting for relatives (s 78). Health practitioners contemplating prescribed treatment must apply to the Tribunal in writing (s 63) and satisfy the strict preconditions in s 61(2)–(4). Facilities using s 32 detention powers must document the serious-risk threshold and ensure force is no more than reasonably necessary.

Annual compliance checklists should include: review of orders under s 57 (six-monthly for detained persons, three-yearly otherwise), confirmation that the least-restrictive option remains appropriate, updating of contact details for notice purposes (s 66), and archiving of Tribunal statements of appeal rights (s 55). Where an order is no longer needed, prompt application for revocation should be made (ss 30, 36 and 54).

Lawyers advising clients should register administration orders under the Real Property Act or Registration of Deeds Act (s 47) to protect title, advise on the voidable nature of transactions (s 42), and consider Supreme Court relief under s 43 where testamentary expectations have been disturbed. For missing-persons matters, applications to the Supreme Court must demonstrate 90 days' absence, reasonable search efforts and best interests (s 48A(1)), with ongoing record-keeping and immediate notification obligations (s 48A(6)–(8)).

Finally, all parties should maintain confidentiality, restrict publication, and utilise the Public Advocate's advisory function (s 21(1)(f)) before litigation. Regular file audits against the s 5 principles and the specific powers and duties in ss 31, 39 and 50 will minimise risk of Tribunal disallowance, personal liability or revocation for unsuitability.