Family Court orders for your welfare and property: How decisions can be made when there’s no EPA
Personal orders and welfare guardians: Decisions about your care and welfare
Overview of personal orders
If you lose the capacity to manage your own personal care and welfare, but you haven’t made an enduring power of attorney, the Family Court can place you under a “personal order” to deal with your personal care and welfare – that is, with issues like where you live, who looks after you, and what kind of medical treatment you should have.
Personal orders aren’t made for children – that is, anyone under 18. If you’re under 18, your parents are your legal guardians. This means that, in general, they can make decisions for you, although ordinarily the law sees their powers as dwindling to something more like a guidance role as you mature as a teenager and become increasingly capable of making your own decisions.
Note: The law assumes you’re able to make decisions for yourself about your personal care and welfare, and are able to communicate those decisions, unless it’s proven that you’re not able to do these things. The Family Court can’t make a personal order simply because you’re making decisions that might seem odd or unreasonable to other people.
The judge’s decision to make a personal order
How will the judge decide whether to make a personal order?
The Family Court will make a personal order dealing with your personal care and welfare only if
- you’ve lost the ability to make and understand decisions yourself or to communicate your decisions to others, and
- the judge thinks the order is necessary.
We explain those two separate factors below.
Question 1: Have you lost “mental capacity”?
The judge can make a personal order for you only if
- you’re unable, completely or partly, to understand decisions about your own personal care and welfare and to foresee the consequences of those decisions, or
- you’re able to do those things, but you’re completely unable to tell other people about your decisions.
The judge will look at various kinds of evidence to decide this, including medical evidence about your memory and level of understanding, about your ability to focus on issues, and about your ability to exercise judgment and form opinions and communicate your views and decisions to other people. They’ll also look at any affidavits (sworn statements) from family, friends and health professionals who know you and who’ve been in a position to observe you.
The law assumes you’re able to make, understand and communicate decisions for yourself, unless someone proves otherwise. The Family Court can’t make a personal order for you simply because you’re making decisions the average person wouldn’t make.
Question 2: If you’ve lost “mental capacity”, is a personal order necessary?
If they’re satisfied you’ve lost “mental capacity”, the Family Court judge will then decide whether a personal order is necessary, and, if it is necessary, then exactly what kind of order should be made. A key principle here is that the judge must intervene as little as possible in your life, taking into account how far you’ve lost “mental capacity”. They must also allow or encourage you to be as self-reliant as possible.
A court-appointed lawyer will represent you, if you don’t already have your own lawyer. The lawyer will report to the judge about your situation and make recommendations.
Types of personal orders and their effect
What kind of personal orders can the judge make?
The Family Court judge can make an order to deal with specific kinds of issues, like where you’ll live and who you’ll live with. The specific directions that a personal order can make include:
- for your parents to make suitable arrangements for your care after they die
- for you to be provided with specific living arrangements
- for you to be given medical advice or treatment
- for you to be provided with specific educational, rehabilitative, therapeutic or other services.
If you’re completely unable to make or communicate decisions about your care and welfare, then rather than the judge making specific decisions about you they can instead appoint a “welfare guardian”, who will have a general power to make care and welfare decisions for you (see “Welfare guardians: Someone to make decisions for you” below in this section).
The judge can also make a personal order appointing someone to manage smaller amounts of property, if they think it’s not necessary to make a full “property order” appointing a property manager for you (see “Property orders and property managers: Decisions about your money and property” below). They can do this for any property worth less than $5,000, or any income or benefit you’re entitled to that’s less than $20,000 a year.
How long does a personal order last for?
The Family Court will usually set a date when the personal order ends. If it doesn’t specify a date, the order comes to an end after 12 months, or when all the things that the order requires have in fact been done.
Welfare guardians: Someone to make decisions for you
What are welfare guardians and when can they be appointed?
A welfare guardian is someone appointed by a Family Court judge to look after your personal care and welfare if you’re completely unable to understand or communicate decisions about those issues – like who you should live with.
The judge can’t appoint a welfare guardian unless this is the only satisfactory way to make sure that appropriate decisions are made about your personal care and welfare. If there’s a specific or short-term problem, the judge will prefer to make other, more limited personal orders to deal with the problem (see above, “What kind of personal orders can the judge make?”).
Who will the Family Court appoint as my welfare guardian?
Your welfare guardian has to be an individual person, not an organisation, and they have to be at least 20 years old.
The judge can appoint more than one welfare guardian for you (for example, both your parents) if they think this is in your best interests. If you do have more than one welfare guardian, they must consult regularly with each other.
The judge has to be satisfied the person is capable of doing the job properly, and that they’ll act in your best interests and that there’s unlikely to be any conflict of interest between you. The judge will also try to find out, as far as this is practical, who you want to be appointed.
What powers will my welfare guardian have?
Your welfare guardian will have a wide range of powers: they can do everything that’s reasonably necessary to make decisions for you and carry them out. However, they can only deal with the issues specified by the judge when they were appointed.
Typically, your welfare guardian will be responsible for making decisions about where you live and what your care arrangements will be (including who your carers will be), and what medical treatment or therapy you might have.
But the law specifically says that a welfare guardian can’t:
- make decisions for you about getting married or divorced, or adopting out your children
- agree to you having electro-convulsive treatment (ECT) or brain surgery, or being part of medical experiments
- refuse to allow you to have standard medical treatment when it’s necessary.
What are my welfare guardian’s responsibilities?
Your welfare guardian always has to promote and protect your welfare and best interests.
They have to consult with you, encourage you to be as self-reliant as possible, and help you be a part of your community as much as possible. They’ve also got a duty to consult, as far as practical, with other people who are involved with your welfare and can give competent advice, like hospital caregivers and any property manager the Family Court has appointed for you.
Safeguards against welfare guardians misusing their powers
The following things help prevent a welfare guardian misusing their position:
- Limits set by the judge – The Family Court order appointing the welfare guardian will have specified the areas of life the guardian can make decisions about. There are also certain decisions that no welfare guardian can make (see above, “What powers will my welfare guardian have?”).
- Reviews by a judge – At any time you can ask a Family Court judge to review the order appointing your welfare guardian, and in any case, it has to be reviewed within three years (and if the judge then renews the order, it has to be reviewed within five years after that). You can also ask a judge to review specific decisions that the welfare guardian has made. As a result of a review, the judge can decide to replace a welfare guardian who the judge thinks hasn’t done a satisfactory job.
- Responsibility for misusing powers – A welfare guardian can be held personally responsible for things they do as your welfare guardian if they act in bad faith or without reasonable care. They’ll also be personally responsible for contracts or other arrangements they enter into (for example, a mortgage) if they didn’t first tell the other person that they were doing this as your welfare guardian.
- No payments – Welfare guardians aren’t paid, so there’s no financial motive for them to get themselves appointed. (However, they are allowed to get back their reasonable expenses out of your money or property. If there’s not enough to cover these expenses, the guardian can apply to the Family Court to be reimbursed by the government.)