If a person can’t make his or her own decisions because of a legal incapacity, there might be people authorised by an Enduring Power of Attorney or by an Advance Care Directive (or similar document) to make those decisions. If not, or if the people authorised cannot be found or refuse to act, the South Australian Civil and Administrative Tribunal (“SACAT”) can make orders appointing guardians and administrators. These orders are made under the Guardianship and Administration Act 1993.
SACAT also has the jurisdiction under the Mental Health Act 2009 to make and review treatment orders relating to people suffering from mental illness.
Both of these matters used to be looked after by the Guardianship Board. The Guardianship Board ceased to exist in March 2015, and these matters are now looked after by SACAT. Treloar & Treloar have advised and acted for many people in Guardianship Board and SACAT proceedings.
Guardianship and Administration Act proceedings
Who can apply?
Anyone concerned with the care of a person can apply to SACAT. The applicant and the person about whom the application is made will be parties to the application. Other people with an interest in the application can also participate.
Applications can only be completed on-line. If computer access or use is a problem, SACAT have officers you can telephone who will complete an application with you.
Do I need a lawyer?
SACAT tries to be user-friendly and informal so members of the public can represent themselves if they want to but many benefit from the advice of a lawyer. We can provide as much or as little help as required, at any stage of proceedings.
What orders can be made?
There are two broad areas of orders: guardianship (which relates to medical and lifestyle matters) and administration (which relates to financial and legal matters).
Orders can be all-encompassing, or only relate to specific matters such as where someone lives. Some orders will give special powers to detain a person.
SACAT must be satisfied a person has a mental incapacity before making any order, and SACAT must make the least restrictive order that will protect the person and their rights. Making guardianship or administration orders which take away a person’s ability to make their own decisions is a very serious step, and not one which will be taken without careful consideration and clear need.
Mental Health Act proceedings
When a person suffers under a mental illness (as distinct from a mental incapacity) their treatment may become subject to the laws of the Mental Health Act 2009. Under this Act, doctors or other health professionals can also make orders about a person’s treatment.
Treatment and orders under the Mental Health Act are subject to strict oversight by SACAT. Appeals and reviews can be heard, in the first instance, by SACAT. If that does not yield a satisfactory result, a further appeal to a Court may be possible.
We can provide advice and advocacy at every step of the process to protect rights and to ensure your voice is heard.