Guardianship and Administration Act 2000

Advance appointments are available under s.13 for an individual aged 17½ but not yet 18 where there is a reasonable likelihood of impaired capacity on turning 18, a need or risk, and inadequate protection without appointment. The appointment commences on the 18th birthday (s.13(3)) and ordinarily ends on the 19th birthday unless extended (s.13(4)–(6)); extension is permitted only where need will continue and review is “very limited”. A parallel regime exists for restrictive-practice guardians under s.13A (inserted 2008, amended 2016 and 2019), which adds requirements that the individual’s behaviour has previously caused harm and is likely to do so again. Section 14 governs who may be appointed: guardians must generally be over 18, not a paid carer or health provider, and not the public guardian unless no other suitable person exists (s.14(2)); administrators must satisfy similar criteria and not be bankrupt. The tribunal must have regard to the “appropriateness considerations” in s.15, which include the general principles, potential conflicts, compatibility, availability, competence (including criminal history, prior removals, bankruptcy), and whether the person has been a paid carer. Family relationship or potential inheritance do not of themselves create a conflict (s.15(2)–(3)). Proposed appointees must disclose relevant matters by statutory declaration (s.16), with a continuing duty to update (s.17). The tribunal or registrar may inquire into suitability, including criminal history via the police commissioner (s.18).

The Act then regulates the relationship with enduring documents (ss.22–25). An attorney’s power is subordinated to a later tribunal appointment of which the tribunal was aware (s.22); if the tribunal appoints without knowledge of an enduring document, the appointee’s power is suspended on discovery pending review (s.23). Protection is afforded to attorneys and third parties who act without knowledge of the tribunal order (ss.24–25). Part 3 governs revocation and change: automatic revocation occurs on events such as the appointee becoming a paid carer, marriage dissolution, or death (s.26); withdrawal is possible with tribunal leave (s.27). Specific rules apply to missing-person administrators (ss.27A–27B). Periodic reviews are mandatory at least every five years (s.28), with additional reviews available on application (s.29). The review process in s.31 requires the tribunal to revoke unless satisfied a new application would succeed; removal is permitted only for incompetence or where another person is more appropriate.

Chapter 4 sets out the functions and powers of appointees. Guardians and administrators may do anything the adult could have done if capacitated (s.33), must apply the general principles (and health-care principles for health matters) (s.34), act honestly and diligently (s.35), comply with tribunal orders (s.36), and avoid conflict transactions unless authorised (s.37). Multiple appointees act jointly unless otherwise ordered (ss.38–39). Consultation duties exist (s.40), with mechanisms for resolving disagreements (ss.41–43). Appointees have a right to information (s.44) and may execute documents in their own name (s.45). Administrators must keep records (s.49), separate property (s.50), invest only in authorised investments (s.51), make limited gifts (s.54) and maintain dependants (s.55). Remuneration is available only for professional administrators where ordered (s.48). Enforcement includes penalties (up to 200 penalty units for breaches of honesty or conflict rules), compensation orders (s.59), and court relief for honest mistakes (s.58).

The Act interacts with the Powers of Attorney Act 1998 (enduring documents take priority unless the tribunal intervenes), the Public Guardian Act 2014, the Mental Health Act 2016 (forensic orders), and the Disability Services Act 2006 (restrictive practices). Chapter 5B (added 2008) regulates containment, seclusion and other restrictive practices for adults with intellectual or cognitive disability receiving disability services, requiring tribunal approval in most cases and applying the general principles. The tribunal’s jurisdiction is protective and inquisitorial; it must ensure it has all relevant information (s.130) and may make interim orders where there is immediate risk (s.129).

Recent changes (principally the 2019 amendments) introduced the missing-person regime (ss.12A–12B, 27A–27B), expanded s.15 appropriateness factors, aligned review periods, and inserted ss.60A–60C to preserve beneficiary interests in estate property dealt with by administrators. These changes responded to gaps exposed by coronial findings on missing persons and to harmonise with national disability-insurance schemes. Court challenges have centred on the balance between autonomy and protection (e.g. whether “unreasonable risk” in s.12(1)(b) is objectively or subjectively assessed) and the interaction with the parens patriae jurisdiction of the Supreme Court, which the Act expressly preserves (s.240). Controversies include the breadth of “impaired capacity” (defined by reference to the Powers of Attorney Act 1998, s.5), the potential for over-appointment of the public guardian, and the practical burden of five-yearly reviews.

Gotchas that practising lawyers should note: (1) the tribunal’s obligation under s.31(2) to revoke unless it would make a fresh appointment means that on review the onus effectively shifts to the appointee to demonstrate ongoing need; many practitioners assume existing orders continue indefinitely. (2) Section 15(1)(c) requires the tribunal to consider likely conflicts, yet s.15(2)–(3) expressly state that family relationship or beneficiary status do not of themselves create conflict; the distinction is often misunderstood, leading to unnecessary objections. (3) An administrator who fails to notify the registrar of titles within three months of appointment concerning land (s.21) risks removal for incompetence under s.31(5)(c); the 2019 amendments tightened this to three months from the previous “reasonable time”. (4) The continuing duty under s.17 to update appropriateness information survives appointment and carries a 40-penalty-unit sanction; failure can found later compensation claims under s.59 even if the original appointment was valid. (5) For missing-person administrators, the obligation under s.27A to notify the tribunal immediately upon discovering the adult is alive or dead is absolute; breach can trigger automatic revocation under s.27B and personal liability. (6) Section 37’s conflict-transaction prohibition is wider than many realise: it catches not only direct self-dealing but also transactions with close relatives or where the administrator has a separate duty; the safe-harbour for joint property or estate benefits is narrowly construed. (7) The public guardian’s power under ss.42–43 to intervene in health-matter disagreements or where principles are breached is rarely invoked but, when exercised, suspends the guardian’s or attorney’s power pending tribunal review; practitioners often overlook the mandatory written notification to the tribunal. Finally, the general principles in sch.1 (incorporated by s.34) are not mere aspirational statements; breach can found removal for incompetence (s.31(5)(d)) or compensation (s.59). Compliance checklists should therefore begin with a documented application of each principle to every major decision.