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«Making decisions can be difficult. Decisions involving financial and legal issues are even more complicated. Minor and major brain injury caused by a ...»

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BINSA Information on Legal and Finance

Making decisions can be difficult. Decisions involving financial and legal issues are even more complicated.

Minor and major brain injury caused by a motor vehicle or work place accident, illness, age, drug, alcohol or

criminal abuse may affect a person’s decision-making capacity.

Making decisions

A person with a brain injury may still be able to make some or all of their own decisions with help from a relative

or friend. If this is not possible, and it is necessary to do so, a person appointed formally by the Guardianship Board may be made to deal with personal decisions, or appointed as an administrator to manage financial decisions depending on the need. This may be either the Public Trustee for financial matters or Public Advocate for personal matters.

If you’re the person helping someone who is injured, the Public Advocate can offer help and advice. If necessary, a Guardian may request the advice of the Guardianship Board on matters where some direction or extra authority is required, for example, to ensure the injured person receives proper medical and day to day care.

This may help with some of the decisions you have to make. Certain specific legal and financial issues may require expert professional advice.

Guardianship When a person has a brain injury every day decisions still have to be made. This includes decisions ranging from medical treatments to where a person will live.

If a person is unconscious they are obviously legally incapable of deciding for themselves. However, doubts may arise if injury, age, or illness has affected the person’s memory, concentration, ability to understand information or make informed choices and this incapacity may change from time to time.

If these doubts do arise someone else must make the decisions. In a medical emergency doctors usually treat the patient without the patient’s or anyone else’s consent. If on-going treatment is necessary, consent must be sought from the patient’s guardian or a direct family member. Some special treatments by law such as sterilisation or termination of pregnancy, must have the consent of the Guardianship Board.

Administration There will be a need to make decisions about money. A person with a brain injury may be able to cope with day to day expenses but possibly unable to cope with big items of expenditure or matters like buying or selling a house.

There may also be a need for someone to make the decisions in a legal case. In these circumstances an order can be made by the Guardianship Board or the Court to appoint an administrator or manager. The order may be comprehensive and cover all financial transactions or decisions, or may be limited in scope so a person can continue having some responsibility.

Litigation Guardian - previously ‘Next Friend’ or ‘Guardian ad litum’ Page

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If a person has a mental incapacity and is unable to conduct a legal case personally, the Court may appoint another person, or the Public Trustee, to do so on his or her behalf. That person (or the Public Trustee) is called the Litigation Guardian. This term has replaced the previous titles of ‘next friend’ if the protected person was the plaintiff and ‘guardian ad litum’ if he or she was the defendant. The legal matter may involve an insurance claim for damages, but can also relate to family law, criminal charges, criminal injury compensation or a civil law claim.

Enduring Power of Attorney and Enduring Power of Guardianship The injured person may have anticipated the possibility that one day he or she might not be able to make decisions and so may have prepared an Enduring Power of Attorney or an Enduring Power of Guardianship. These agreements are private ‘agency’ agreements and do not involve the Guardianship Board.

An Enduring Power of Attorney provides the authority for someone to manage financial and legal affairs.th Australia Inc • Fact An Enduring Power of Guardianship enables others to make personal or lifestyle decisions. For example, decide where a person lives, what dental or medical treatment is received, which holidays or day care programs are appropriate. These decisions may be made temporarily, for a set period, or vary, depending on a person’s condition and what needs to be decided. A person must still have legal capacity, in spite of an injury, in order to voluntarily sign these documents.

Why appoint an Enduring Guardian?

The advantage of appointing an Enduring Guardian is that you are the person choosing who will be your guardian, directly influencing the decisions made for you.

What happens if the Enduring Guardian can’t do the job?

If an Enduring Guardian is unable, unwilling, or unsuitable to continue the responsibility, the Guardianship Board can be asked to revoke the Enduring Guardian’s authority and if necessary appoint someone else as guardian.

Is there a need for formal Guardianship arrangements?

After a brain injury, a person is more likely to rely on the advice and support of people close to them than they did before the injury. Relatives and friends can make many decisions without going to the Guardianship Board so long as there is agreement between all concerned.

Board involvement may be necessary when the decisions to be made are so important that ‘outside scrutiny’ is needed to ensure the rights of the person with reduced mental capacity are protected. Examples may include selling the person’s house or resolving a dispute between doctor and carer or if a conflict within the family cannot be sorted out.





What is the Guardianship Board?

The Guardianship Board is an official tribunal with the legal power to appoint guardians and financial administrators for people who are unable to make all, or some decisions, for themselves. If necessary, the Board can also authorise certain medical and dental treatments for people who can’t consent. Its prime aim is to protect people with disabilities from abuse, exploitation and neglect, including self-neglect.

Page 2 of 13 BINSA Information on Legal and Finance What Orders can the Board make?

There are a number of Orders that the Guardianship Board can make, however the two main Orders relating to a person with a brain injury are: a Guardianship Order and/or an Administration Order. If the Board is satisfied a person has mental incapacity and is unable to manage his or her financial affairs it will make an Administration Order appointing someone else to do the job. For example a relative, friend or, if there is no one else suitable, the Public Trustee.

If the Board is satisfied a person is mentally incapable of making his or her own personal lifestyle decisions, does not have an Enduring Guardian and there is no one suitable to make decisions about accommodation, health care or relationships, then a Guardianship order may be the least restrictive option. The Order appoints a person as guardian who then has the legal ability to make decisions on behalf of the person, as set out in the Order. In either case it will take into account what might have been the person’s wishes had they not become incapacitated. The present wishes of the person, if they can be expressed, are also considered. The Board will also consider whether existing care arrangements are adequate, which decision or order would least restrict the person’s rights and personal freedom but still be consistent with his or her proper care and protection.

What is the role of a Guardian?

A Guardian’s duty is to protect the personal and lifestyle interests of the individual and to oversee his or her medical and social well-being. In making decisions, a guardian must apply the principle of ‘substitute judgment’, i.e. he or she must consider what might be the wishes of the individual in the circumstance and what decisions the person would make if he or she could.

A Guardian has NO authority to prevent the individual marrying, authorise the person to be placed in a locked residence without the consent of the Board, or to intercept the person’s mail or deal with their money or property.

Who can be appointed Guardian?

Parents, spouses, partners and friends are often the best source for a guardian or ‘substitute’ decision maker since they are usually the best source of information about the incapacitated person’s likes or dislikes.

The Board is likely to ask whether there is someone among the injured person’s family or friends who is suitable to be a guardian, so it’s a good idea for those concerned to discuss this beforehand.

A Guardian must be a person, not a company, and anyone who cares for an individual on a professional basis cannot be appointed his or her Guardian. If no one is available, willing or suitable to be appointed Guardian, the Guardianship Board can appoint the Public Advocate as Guardian of Last Resort. This ensures there will always be someone with legal authority to make decisions on behalf of the person with the brain injury.

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ensures their position in the community is strengthened, the risk of exploitation, abuse and neglect minimised and their carers are protected and promoted.

The Public Advocate provides information and advice to carers, service providers and the community about Guardianship and Administration and the alternatives to be considered before Guardianship Board involvement.

The Public Advocate can provide assistance with all applications to the Board.

Other duties The Public Advocate also has a ‘watchdog’ role to ensure that the programs available meet the needs of people with brain Injury and are appropriate. They may recommend improvements to existing programs as necessary and raise any concerns regarding this work with the Minister of Health and/or the Attorney-General.

What information is available?

The Office of the Public Advocate provides a range of literature on adult guardianship and support and procedures to help people with brain injury and their carers. It is government funded. There is NO charge for its services. Staff welcome your call, email, fax or letter, though if you’re planning to drop in, an appointment is appropriate to ensure the person you need to see is available.

The Office of the Public Advocate is open Monday to Friday from 9.00am to 5.00pm. It provides a general enquiry service and endeavours to return calls within 24 hours.

Will making Although the protected person’s capacity may be diminished he or she may still have sufficient awareness to make a will. An order may be made allowing for a will to be made and signed in the presence of the Public Trustee. The will instructions may be taken by a staff member or by a private solicitor, who will draft the will document. However, before the will is signed and witnessed, the Public Trustee requires a medical certificate stating that on the day of signing the will the protected person has sufficient capacity to give instructions and understand the document. This requires a doctor’s visit on the day. The Public Trustee or authorised officers of the Public Trustee may also assess the legal capacity of the testator on the day.

Contact the Public Trustee or a lawyer for more information on wills.

The address is:

Office of the Public Advocate Level 7, ABC Building 85 North East Road Collinswood SA 5081 PO Box 213 Prospect SA 5082

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Ph: 08 8342 8200 / 1800 066 969 (country callers) Fax: 08 8342 8250 Email: Please use the feedback form on the website Much of the information produced by the Office of the Public Advocate is available online.

Who is the Public Trustee?

The Public Trustee is an independent public official whose office provides a range of safe, independent, trustee, estate management and will making services. There is a staff of 150 to do this work.

The Public Trustee manages the affairs of some 3500 people who lack the capacity to do so on their own. This includes the majority of appointments made by the Guardianship Board and the Supreme Court.

The Public Trustee also has a legal responsibility to oversee financial reports from private financial administrators and managers and to report on them to the Guardianship Board and the Supreme Court. If the Public Trustee believes an administrator is making an inappropriate expenditure without reasonable care, it may recommend the Guardianship Board disallows the expenditure.

How do you become a client of the Public Trustee?

There are five main ways people become clients of the Public Trustee.

• If damages are awarded to minors, the Court, usually the Supreme Court, may appoint the Public Trustee as trustee of these funds. The Court may direct that money paid to a person be transferred to the Public Trustee to manage under trust for that person.

If compensation payouts are awarded under the Aged and Infirm Person’s Property Act, the Supreme Court • may appoint the Public Trustee as manager. Payments under this Act are often very large, but the Act may also apply to smaller amounts.

• If the person is deemed to be mentally incapable, the Guardianship Board may appoint the Public Trustee as financial administrator of the protected person’s estate.

• The Public Trustee can also be appointed by a Court to manage the legal affairs of a person with a mental disability as Litigation Guardian (previously known either as ‘next friend’, ‘guardian ad litum’ or ‘case guardian’).

• If a person has signed an enduring Power of Attorney naming the Public Trustee as attorney that person may ask the Public Trustee to act as their attorney at any time. If the Power of Attorney has not been activated and the person is later deemed to be suffering a mental incapacity, the Public Trustee will act as his or her attorney. In assessing the person’s mental capacity, medical opinion is always sought.

What does it cost?

The Public Trustee charges a commission for its services which varies between one and four per cent of capital depending on the size of the estate. A commission of five per cent is charged on income received. As a service to the community Public Trustee waives all commissions if the person is only in receipt of a pension and the capital is less than $2,000. The services are available to all South Australians.

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