Concerns Regarding the Actions of an Enduring Guardian

Enduring Guardianship is not a familiar concept in the general community.  As a result, there may be confusion or uncertainty about the role of an Enduring Guardian.  This could lead to:

• the Enduring Guardian acting outside his or her roles and responsibilities

• other people questioning the role of the Enduring Guardian

• the guardian using their powers to exploit, abuse or neglect the appointor

If you have concerns about the actions of an Enduring Guardian, you can refer them to the resources available on this website for more information about their roles and responsibilities.  The Private Guardian Support Unit, operated by the Public Guardian, provides information and support to Enduring Guardians including telephone support, a handbook and regular newsletter.  You can contact the PGSU for more information or access publications including a brochure and booklet by phoning 02 8688 6070 or 1300 451 510 or going to the Public Guardian Support Unit website.

You may be faced with difficulties in working with an Enduring Guardian due to conflict.  Common reasons for conflict include:

• Dispute about whether the person has lost capacity and the Enduring Guardianship Appointment is ready to be activated

• Objection to the appointment of the Enduring Guardian

• Concerns that the Enduring Guardian is not acting in the interests of the person

Disputes about capacity can often be resolved by arranging for a Capacity Assessment.  It is not necessary to obtain a family consensus around decisions if the Enduring Guardian has been appropriately appointed and is making decisions that appear to be in the best interests of the person involved.  However, at times the conflict is so persistent that it becomes difficult to work with the Enduring Guardian and implement the guardian’s decisions.

Enduring Guardians are not supervised and are not required to report to any other authority.  This means that there is no formal complaints process, or avenue that you can raise concerns about the decision-making or actions of an Enduring Guardian.  There is no process for review of the decisions of the Enduring Guardian.  Enduring Guardians must act within the principles of the Guardianship Act which state:

• The welfare and interests of the person should be given paramount consideration

• The freedom of decision and the freedom of action of the person should be restricted as little as possible

• The person should be encouraged as far as possible to live a normal life in the community

• The view of the person should be taken into consideration

• It is important to preserve family relationships and the cultural and linguistic environment of the person should be recognised

• The person should be encouraged as far as possible to be self reliant in matters relating to personal, domestic and financial affairs

• The person should be protected from abuse, neglect and exploitation

• The community should be encouraged to apply and promote these principles

Enduring Guardians can only make decisions in the areas nominated in the Enduring Guardianship Appointment Form.  There are no other guidelines or rules about how the Enduring Guardian acts as a decision maker.  You may not agree with the decisions of the guardian.  This is not necessarily a reason to question to actions or appointment of the Enduring Guardian, however, if you genuinely believe that the guardian is not acting in the interests of the person under guardianship, you can make an application to the Guardianship Tribunal to review the appointment. Before taking this step, it may be helpful to encourage the guardian to contact the Private Guardian Support Unit for information and support in their role.

Sometimes, the Enduring Guardian may have lost capacity themselves. This can occur particularly in situations where a person has appointed his or her spouse as Enduring Guardian and both parties are of an advanced age. In this case, the Guardianship Tribunal can review their appointment and if necessary make a Guardianship Order appointing another person or the Public Guardian as the person’s guardian.