This page provides information on the following topics:
What is guardianship?
Guardianship applies when an adult does not have capacity to make decisions about their personal matters. The court must make a guardianship order to allow someone else to make decisions for the adult.
The adult who is the subject of the guardianship order is the represented adult. The person named in the guardianship order to make decisions for the represented adult is the guardian.
If an adult has a Personal Directive, then a guardianship order is not necessary unless the Personal Directive does not deal with all types of personal matters. A guardianship order may be necessary to deal with personal matters not mentioned in the Personal Directive. An Agent named in a Personal Directive and a guardian cannot have the same powers.
A guardianship order can be made for a person up to twelve months before their 18th birthday. This way, the order can come into effect immediately when the represented adult turns 18.
Guardianship orders specifically list the personal matters that the guardian may make decisions about on behalf of the represented adult. The options include:
- the represented adult’s health care;
- where, with whom, and under what conditions the represented adult is to live (either permanently or temporarily);
- who the represented adult may associate with;
- the represented adult’s participation in social activities;
- the represented adult’s participation in any education, vocational or other training;
- the represented adult’s employment; and
- the carrying on of any legal proceedings that do not relate primarily to the represented adult’s financial matters.
Guardians cannot make decisions about the represented adult’s finances. However, a guardianship order and trusteeship order can be applied for together.
The guardianship order will include a guardianship plan, which outlines future decisions the guardian might make.
Being a guardian
The court appoints a guardian but the person must agree to be a guardian.
A guardian must:
- be 18 years of age or older;
- consent to act as the guardian;
- be able to act for the adult (they must have capacity).
A guardian’s responsibilities include:
- acting in the best interests of the adult;
- knowing and acting according to the represented adult’s beliefs, values and wishes;
- encouraging the represented adult to become capable of caring for themselves and of making decisions for themselves, including consulting with the represented adult before making decisions (if appropriate);
- respecting the represented adult’s dignity and privacy;
- having a good relationship with the adult;
- informing the represented adult of any decisions they make;
- complying with the terms of the guardianship order; and
- acting in good faith, or else they can be held liable for their actions.
A relative or close friend can be a guardian. The Public Guardian will only be the guardian if there is no one else who is willing, able and suitable to act for the represented adult and if the Public Guardian consents.
Applying for a guardianship order
There many documents that must be completed and submitted to the Office of the Public Guardian and Trustee before the court will grant a guardianship order.
The necessary documents include:
- a Capacity Assessment Report (Form 3);
- the application forms (available online or from the Office of the Public Guardian and Trustee); and
- the background check forms.
The order can be made by way of a “desk application”. A desk application is a process for getting a court order without going to court. If the matter is straightforward and no one is challenging the proposed arrangement, then the application involves submitting the completed forms to a Review Officer at your local Office of the Public Guardian and Trustee.
The Review Officer reviews the documents, prepares a report, and files that report with the court. If the court is satisfied with the information it receives, it can grant the order. A judge will set a court date if they are not satisfied with the information and wants to hear from the represented adult, proposed guardian, or others.
If someone is contesting (opposing) the application, then it must be filed directly with the court and a hearing will be scheduled.
Before granting a guardianship order, the court must find that:
- the adult does not have capacity to make decisions about the personal matters listed in the guardianship order;
- less intrusive and less restrictive supports are not suitable; and
- it is in the adult’s best interests to have a guardian.
For more information on guardianship and applying for a guardianship order, see: