If an adult (over the age of 18 years) is unable to make reasoned and informed decisions about their personal and financial matters, the Northern Territory Civil and Administrative Tribunal (NTCAT) can make a Guardianship Order to appoint a guardian/s under the Guardianship of Adults Act ( the ‘Act’).
Any action taken by a guardian within the scope of their guardianship authority has the same effect as if the decision were made by the adult that is under guardianship. It is possible to have more than one guardian. Each guardian can have different responsibilities. For example, one may act for health matters and another for finance matters. Alternatively, joint guardians can act on the same matter either together or as a substitute if one is unavailable or unable to act.
Decision-making capacity means a person can understand and remember information about their personal or financial matters; can consider the information to make reasoned and informed decisions; and can communicate their decisions in some way even when others may not agree with their decision. It is assumed adults have capacity unless shown otherwise – in which case they have impaired decision making capacity.
Impaired decision-making capacity
Decision-making capacity may be impaired even if the impairment is only at times, only for some matters, or the extent of the impairment varies over time or depending on the circumstances.
An adult does not have impaired decision making capacity solely because of factors such as a medical condition, unusual behaviour or lifestyle, a lack of literacy, or illegal or immoral conduct.
When is a Guardianship Order required?
It may be appropriate to apply for a Guardianship Order when a person:
- Is unable to recognise that they need assistance and may put their life or well-being at risk;
- Has family willing and able to provide care or support, but there is disagreement within the family about the kind of care or support that should be provided; or
- May be subject to neglect and/or abuse.
Who can be a guardian?
A guardian must be over 18 years of age and can be a family member, close friend, professional, a person who is related to the adult through customary law or tradition, or anyone who has an interest in the well-being of an adult with impaired decision-making capacity. A guardian should not have any conflict of interest – this means that they must be able to act in the best interests of the adult under guardianship and not their own.
How do I make an application for guardianship?
The Northern Territory Civil and Administrative Tribunal (NTCAT) make orders about guardianship. To make an application you can download the forms at https://ntcat.nt.gov.au/getting-started/forms. There is also more information on the NTCAT website about the process that NTCAT will follow to make the decision. Additionally you may be asked to provide further documents to support your application, such as medical evidence.
Darwin Community Legal Service may be able to assist with legal advice or help completing forms, so please contact us for more information or to book an appointment.
Darwin Community Legal Service 2019: Non-profit community groups have permission to reproduce parts of this publication as long as the original meaning is retained and proper credit is given to DCLS, as the publisher.
Disclaimer: The information contained in this publication is a guide to the law in the Northern Territory. It is not a substitute for legal advice. You should talk to a lawyer about your particular legal issue. The information contained in this factsheet is current as at JANUARY 2019.