Guardianship and administration in South Australia 

This article states the law of South Australia. Adult guardianship is State law, so nothing in it carries across a border, and the terminology alone differs between jurisdictions. Under the Guardianship and Administration Act 1993 (SA) the South Australian Civil and Administrative Tribunal may appoint a guardian to make decisions about a person, or an administrator to manage their estate¹. The prior question in every application is whether the person has a mental incapacity as the Act defines it, because that is the gateway to both kinds of order.

The statutory gateway: mental incapacity

Section 3 defines mental incapacity as the inability of a person to look after their own health, safety or welfare, or to manage their own affairs, as a result of either of two things.

The first limb is any damage to, or any illness, disorder, imperfect or delayed development, impairment or deterioration of, the brain or mind. The second is any physical illness or condition that renders the person unable to communicate their intentions or wishes in any manner whatsoever.

The second limb is easily overlooked and is doing distinct work. It reaches a person whose cognition is unimpaired but who cannot communicate at all. The inquiry is functional — inability to look after health, safety or welfare, or to manage affairs — rather than diagnostic, so a diagnosis alone neither establishes nor defeats the threshold.

The principles, and what is paramount

Section 5 governs every decision or order made under the Act, by a guardian, an administrator, the Public Advocate, SACAT, or any court or other person or authority. It contains four principles, and their order matters.

Paragraph (a) states what is expressly "the paramount consideration": what would, in the decision-maker's opinion, be the wishes of the person if he or she were not mentally incapacitated, so far as there is reasonably ascertainable evidence on which to base such an opinion. This is a substituted judgment standard, not a best interests standard, and a student who answers in the language of best interests has stated the wrong test.

Paragraph (b) requires that the person's present wishes be sought, unless it is not possible or reasonably practicable to do so, and that consideration be given to them. Paragraph (a) and paragraph (b) are therefore distinct: the hypothetical wishes of the unimpaired person are paramount, but the actual present wishes must still be sought and considered.

Paragraph (c) requires consideration, when making or affirming a guardianship or administration order, of the adequacy of existing informal arrangements for the person's care or the management of their financial affairs, and of the desirability of not disturbing those arrangements. An application may fail because informal arrangements are working.

Paragraph (d) requires that the decision or order be "the least restrictive of the person's rights and personal autonomy as is consistent with his or her proper care and protection".

Guardianship orders

Section 29(1) empowers SACAT, if satisfied that the person has a mental incapacity and that an order should be made, to place the person under limited guardianship, or — only "if satisfied that an order under paragraph (d) would not be appropriate" — full guardianship, of the person or persons the Tribunal considers most suitable.

That structure is the s 5(d) least-restrictive principle written into the order-making power. Limited guardianship is the default and full guardianship requires a further affirmative finding that a limited order would not be appropriate. A limited guardianship order specifies the particular aspects of the protected person's care or welfare that become the guardian's responsibility (s 29(2)).

What a guardian may do

Section 31(1) gives a guardian, subject to the Act and the terms of the order, all the powers a guardian has at law or in equity. The generality is then supplemented by a specific and significant power.

Where a protected person is admitted as an inpatient at an incorporated hospital, s 31(2) allows the guardian, subject to the terms of the order, to determine that the person is to reside at a specified residential aged care facility on discharge, to authorise the person's detention for the purpose of transporting them between the hospital and that facility, and to authorise their detention at that facility. This is a power to deprive a person of liberty exercised by a private appointee under a tribunal order, and it should be identified as such rather than folded into the general words of s 31(1).

Section 31A imposes a duty running the other way. A guardian must take reasonable steps to ascertain whether the protected person has given an advance care directive and, if so, must so far as reasonably practicable give effect to it. The directive the person made while capable therefore constrains the substitute decision-maker.

Administration orders

Section 35(1) mirrors s 29 for the estate. If satisfied that the person has a mental incapacity and that an order should be made, SACAT may appoint an administrator of a specified part of the estate — a limited administration order — or, if satisfied that a limited order would not be appropriate, of the whole estate, a full administration order. The Public Trustee is among those who may be appointed.

Applying this in a problem question

1. Establish mental incapacity under s 3, and say which of the two limbs is relied on.
2. Frame the inquiry functionally, around inability to look after health, safety or welfare or to manage affairs, rather than around a diagnosis.
3. State the s 5(a) paramount consideration in substituted judgment terms, and do not substitute best interests.
4. Deal with present wishes under s 5(b) separately from the hypothetical wishes under s 5(a).
5. Address the adequacy of informal arrangements under s 5(c) before assuming an order is needed.
6. Argue for a limited order first, and require an affirmative finding of inappropriateness before a full order under s 29 or s 35.

Self-check

• Have I identified which limb of the mental incapacity definition applies?
• Have I stated the paramount consideration as substituted judgment rather than best interests?
• Have I considered whether informal arrangements make an order unnecessary?
• Have I named this as South Australian law and avoided carrying any section number across a border?