Guardianship and administration explained: when an enduring power of attorney isn't in place

When an adult can no longer make their own decisions, because of advanced dementia, an acquired brain injury, or another condition that affects capacity, someone has to make those decisions for them. If the person planned ahead and appointed an attorney and guardian while they still could, that is straightforward. If they did not, a state or territory tribunal may need to appoint someone. That process is what guardianship and administration are about, and understanding it is also the clearest argument for putting the right documents in place early.

This guide explains the two roles, how appointments are made, and how all of this relates to an enduring power of attorney. It is general information, not legal advice; the rules and even the terms differ between states and territories.

The two roles: personal decisions and financial decisions

Decisions for a person who has lost capacity fall into two broad areas, and they are handled by two different roles:

• A guardian makes personal and lifestyle decisions. This can include where the person lives, the services and supports they receive, and health care decisions, depending on the appointment.
• An administrator (called a financial manager or administrator depending on the state or territory) makes financial, legal, and property decisions, such as managing money, paying bills, and dealing with assets.

One person can hold both roles, or they can be held by different people. The scope of each is set by the appointment, not assumed.

Who can be appointed

When a tribunal appoints someone, it looks first for a suitable person who knows and cares about the individual, usually a family member or close friend. Where there is no suitable or available private person, or where there is conflict, the tribunal can appoint a public official instead:

• A public guardian (the office title varies by state) for personal and lifestyle decisions.
• A public trustee or state trustee for financial administration.

Tribunals generally prefer the least restrictive arrangement that still protects the person, and appointments can be limited in scope and reviewed over time.

How an appointment is made

Guardianship and administration are decided by the relevant state or territory civil and administrative tribunal (for example VCAT in Victoria, NCAT in New South Wales, QCAT in Queensland, and their equivalents elsewhere). Broadly, the process involves:

1. An application to the tribunal. Anyone with a genuine interest in the person's welfare, often a family member, can apply.
2. Evidence about capacity, typically including reports from treating health professionals about the person's decision-making ability.
3. A hearing, where the tribunal considers whether the person has capacity, whether an appointment is needed, and who should be appointed.
4. An order, which sets out the role, its scope, and any limits, and which can be reviewed.

It is a formal process that takes time and can be stressful for a family, which is exactly why the alternative below is preferable.

The better path: plan ahead and avoid the tribunal

Almost all of this can be avoided. While a person still has capacity, they can appoint the people they trust themselves, without any tribunal:

• An enduring power of attorney lets them choose who will make financial (and, in some states, personal) decisions if they lose capacity. See our guide to enduring power of attorney.
• An enduring guardian (the name varies by state) lets them choose who will make personal and health decisions.
• An advance care directive records their wishes about future health care. See our guide to advance care directives.

When these are in place, there is usually no need for a tribunal-appointed guardian or administrator, because the person has already chosen who acts for them. This is the single strongest reason to make these documents early, well before they might be needed, and it is especially important after a diagnosis of a condition like dementia, where capacity will decline over time. See our guide to dementia care options.

Where to get help

Each state and territory has a public advocate or public guardian office and a public trustee that provide information about guardianship and administration, and community legal centres and Legal Aid can help with the process and with making enduring documents. For appointing your own attorney and guardian properly, it is worth getting advice, as the requirements differ by state. You can also browse support services on Our Mate. Because the roles, names, and procedures vary between jurisdictions and change over time, confirm the current position for your state or territory.

Frequently asked questions

What is the difference between a guardian and an administrator?

A guardian makes personal and lifestyle decisions for someone who has lost capacity, which can include where they live, their services, and health care. An administrator (called a financial manager or administrator depending on the state) makes financial, legal, and property decisions. One person can hold both roles, or they can be separate, and the scope is set by the appointment.

What happens if someone loses capacity without an enduring power of attorney?

If there is no enduring power of attorney or enduring guardian in place, a family member or other interested person may need to apply to the state or territory tribunal to have a guardian and/or administrator appointed. The tribunal considers evidence about capacity and decides who should act. It is a formal, sometimes stressful process that appointing an attorney and guardian in advance would have avoided.

Who appoints a guardian in Australia?

Guardianship is decided by the relevant state or territory civil and administrative tribunal, such as VCAT in Victoria, NCAT in New South Wales, or QCAT in Queensland. Anyone with a genuine interest in the person's welfare can apply, the tribunal considers medical evidence about capacity at a hearing, and it makes an order appointing a suitable person, or a public official if no suitable private person is available.

Can I avoid guardianship by making an enduring power of attorney?

In most cases, yes. If a person appoints an enduring power of attorney and an enduring guardian while they still have capacity, there is usually no need for a tribunal to appoint a guardian or administrator later, because they have already chosen who will act for them. This is the main reason to make these documents early, especially after a diagnosis affecting future capacity.

Is guardianship the same as power of attorney?

No. A power of attorney is something you set up yourself, while you have capacity, to choose who acts for you. Guardianship and administration are arrangements a tribunal imposes when someone has already lost capacity and has not appointed anyone. The first is a matter of your own choice made in advance; the second is decided by a tribunal after the fact.