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Guardianship and Administration

Temporary Update: Special provisions relating to detention of certain protected persons during the COVID-19 pandemic have been made pursuant to Schedule 1 of the Covid-19 Emergency Response Act 2020 (SA). The provisions are expanded upon in the Covid-19 Emergency Response (Schedule 1) Regulations 2020 (SA).

Protected persons are persons already the subject of a guardianship order under the Guardianship and Administration Act 1993 (SA) or other persons with a mental incapacity (as defined by clause 1 of Schedule 1 of the Act).

On 17 April 2020, the South Australian Attorney-General released the Special Provisions Relating to Detention of Certain Protected Persons During COVID-19 Pandemic Guidelines which must be followed when exercising these emergency powers. [pursuant to clause 4, Schedule 1 of the COVID-19 Emergency Response Act 2020 (SA)].

To access the Guidelines please click here [link opens in new window].

The nature and means of any detention of a protected person pursuant to Schedule 1 of the Act must be the least restrictive of the protected person's rights and personal autonomy, as is consistent with his or her proper care and protection during the COVID-19 pandemic. The regulations and guidelines also establish a community visitor scheme[reg 10], and a right of review of certain decisions to the South Australian Civil and Administrative Tribunal (SACAT) [reg 8].

These emergency powers will continue until all South Australian Government issued declarations in relation to the COVID-19 pandemic have ceased, or 8 October 2020 (whichever date is earlier).

Further resources on these temporary changes can be found below [links will open in a new window].

SACAT Fact Sheet

Office of the Public Advocate

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Under the Guardianship and Administration Act 1993 (SA), the South Australian Civil and Administrative Tribunal (SACAT) is empowered to make guardianship and administration orders for a person who has a mental incapacity. Prior to 30 March 2015, this role was undertaken by the Guardianship Board.

Mental incapacity is defined as [s 3(1)] the inability of a person to look after her or his own health, safety or welfare or to manage her or his own affairs, as a result of:

  • any damage to or any illness, disorder, imperfect or delayed development, impairment or deterioration, of the brain or mind (i.e. a brain injury or neurological disease), or
  • any physical illness or condition that renders the person unable to communicate her or his intentions or wishes in any manner whatsoever (e.g. multiple physical disabilities like hearing, speech and sight impairments and stroke victims).

Generally, an administrator deals with matters of finance, property and associated legal affairs, as distinct from a guardian, who may make decisions regarding personal and health care matters.

The principles of the Guardianship and Administration Act 1993 (SA) outlined in section 5 (see Principles of Substituted Judgement) require SACAT to consider the desirability of not making orders where a person's informal arrangements and networks are adequate and working in that person's best interests. Therefore, an application for a guardianship and/or administration order may only be required in the following circumstances:

  • the person concerned has a mental incapacity due to disability or illness, and this can be supported by a medical practitioner's or psychologist's report; and
  • there are specific decisions to be made concerning such matters as accommodation (such as where to live and with whom) or financial matters (such as what to do with property) which cannot be made without a Guardianship Order giving someone the necessary authority; and/or
  • there is significant conflict or dispute regarding the decisions being made for the person concerned, which someone (or a number of other people) believes is detrimental to the person's interests and/or welfare.

Guardianship orders are often not required because most people are supported by family members and friends who make, or assist in making, decisions for the person concerned informally, that is, without any special authority. If a person has made an advance care directive appointing a substitute decision-maker it is unlikely that a guardianship order will be needed. The scope for informal financial management however, is more limited and the most important consideration is the protection of the person's finances from abuse or exploitation by others and/or poor self management. Consequently, administration orders are needed more often than guardianship orders.

Applications to SACAT for an order can be made by a number of people. The classes of people are [s 33(1)]:

  • the person to whom the proceedings relate;
  • the Public Advocate;
  • a guardian of, or substitute decision-maker for, the person;
  • a person responsible for the person;
  • an administrator of the person's estate;
  • a person with a proper interest in the welfare of the person.

Under the Act, a 'person responsible for the person' must have has a close and continuing relationship with the other person and be any of the following [s 3(1)]:

  • a person who is legally married to the person;
  • an adult domestic partner of the person (within the meaning of the Family Relationships Act 1975 (SA) and whether declared as such under that Act or not);
  • an adult related to the person by blood or marriage;
  • an adult related to the person by reason of adoption;
  • an adult of Aboriginal or Torres Strait Islander descent who is related to the person according to Aboriginal kinship rules or Torres Strait Islander kinship rules (as the case requires);
  • a parent of the other person (including an adoptive parent and a step-parent);
  • if the other person is under 18 years of age, an adult who acts in loco parentis in relation to the other person;
  • an adult friend of the other person;
  • an adult who is charged with overseeing the ongoing day-to-day supervision, care and well-being of the other person.
Guardianship and Administration  :  Last Revised: Tue May 5th 2020
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.