The Public Advocate is appointed as Guardian of last resort by the South Australian Civil and Administrative Tribunal (SACAT).The Public Advocate delegates the day to day responsibility for decision making to the advocate/guardian staff of the OPA. We can only act as guardian for a person who has a mental incapacity. The person under guardianship is known under the Guardianship and Administration Act 1993 as the “Protected Person”.
What does a guardian do?
SACAT defines the decisions for which the guardian is legally responsible.
The guardian will only make a substitute decision on behalf of a protected person if they are not able to make the particular decision for themself. Decisions may include-
- Accommodation: decisions about the appropriateness of current living arrangements, any/or suitable alternative accommodation options.
- Health: decisions about health care needs, preferred treatment options, consent to medical or dental treatment, consent to palliative care approaches and/or withdrawal of treatment under certain circumstances.
- Lifestyle: decisions about appropriate support programs, social activities, social contacts, education or employment.
- Access: decisions about contact between a protected person and other people if there are associated risks for the protected person or others, the nature and extent of contact and/or stopping contact.
Where the Tribunal has made a full guardianship order decisions can be in all major areas that affect health and wellbeing.
When making decisions a guardian will:
- respect the protected person’s past and present wishes, but at the same time balance this with his or her proper care and protection;
- respect cultural backgrounds and confidentiality;
- consider family relationships and consult with anyone who has a real interest in the protected person’s wellbeing.
How will decisions be made?
The guardian will try to develop an understanding of the person’s history and personal circumstances, their wishes, obtain assessments of their treatment and support needs and consider any risks or need for protection. This may involve meetings, gathering of assessment reports and written requests for information. If the protected person is capable of participating in the decision making then their views will be sought and the person supported to make their own decision if they can do this.
Wherever relevant, opinions will be gathered from those family members and friends who have an active and positive role in the life of the protected person. However urgent decisions may be made without consultation.
We aim to reach agreement on key decisions. If this cannot be achieved, the protected person’s previous lifestyle and their current wishes will be supported by the guardian unless the risks to their health and wellbeing are so great that protection is required.
How long are we appointed guardian for?
SACAT determines the length of the order. Generally orders are set to a maximum of three years but these can be reviewed at other times agreed by the Tribunal.
What else do Guardians do?
The guardian may need to advocate for access to services or promote coordination of services. The guardian may also encourage effective communication and conflict resolution between all interested parties involved with a protected person if it is relevant to the protected person’s wellbeing.
For further information please see our fact sheet called Guardianship and the Public Advocate.