Appointed as a guardian for an adult: NSW and Victoria

You have been appointed as a guardian

A guardian for an adult makes personal decisions, such as health care, where the person lives and the services they use, for someone who can’t make those decisions themselves. Money is outside the role: in NSW a guardian can make financial decisions only if separately appointed as attorney or financial manager.

How you came to the role matters. The person may have chosen you while they still could, or a tribunal may have appointed you by order. This letter sets the routes side by side, then the duties Victoria writes down for a guardian appointed by its tribunal.

§1Three routes to the same title

How a person becomes a guardian, by route
	NSW enduring guardian	NSW guardian by order	Victorian guardian by order
Who appoints	The person, in an Appointment of Enduring Guardian.	The Guardianship Division of NCAT, or the Supreme Court of NSW.	The Victorian Civil and Administrative Tribunal (VCAT), under the Guardianship and Administration Act 2019.
What it covers	Health, lifestyle, accommodation and medical decisions, in the areas the person chose, following any directions they gave.	The health care, lifestyle and medical decisions the order names.	The personal matters the order names, such as where and with whom the person lives, access to services, or restricting visits.
When it applies	Only when the person can’t make the decision; if they regain capacity, the authority stops.	For a set period.	VCAT reassesses the order within 12 months, unless the order says otherwise.
Who may hold it	Someone the person trusts. Not a person paid to provide them with care, accommodation or daily support services (a relative on Carer Payment can still be appointed), and not the Public Guardian or NSW Trustee and Guardian.	Usually a family member, close friend or unpaid carer over 18. The Public Guardian is the guardian of last resort, usually appointed when no suitable person is available or willing.	The person VCAT appoints.

How a person becomes a guardian, by route

NSW enduring guardian

NSW guardian by order

Victorian guardian by order

Who appoints

The person, in an Appointment of Enduring Guardian.

The Guardianship Division of NCAT, or the Supreme Court of NSW.

The Victorian Civil and Administrative Tribunal (VCAT), under the Guardianship and Administration Act 2019.

What it covers

Health, lifestyle, accommodation and medical decisions, in the areas the person chose, following any directions they gave.

The health care, lifestyle and medical decisions the order names.

The personal matters the order names, such as where and with whom the person lives, access to services, or restricting visits.

When it applies

Only when the person can’t make the decision; if they regain capacity, the authority stops.

For a set period.

VCAT reassesses the order within 12 months, unless the order says otherwise.

Who may hold it

Someone the person trusts. Not a person paid to provide them with care, accommodation or daily support services (a relative on Carer Payment can still be appointed), and not the Public Guardian or NSW Trustee and Guardian.

Usually a family member, close friend or unpaid carer over 18. The Public Guardian is the guardian of last resort, usually appointed when no suitable person is available or willing.

The person VCAT appoints.

NSW Trustee and Guardian advises choosing an enduring guardian who understands they won’t be paid for the role. The appointment lasts until the person revokes it while they still have capacity, until the guardian resigns, dies or can’t continue, or until NCAT or the Supreme Court changes or revokes it. Some decisions are beyond an enduring guardian altogether: special treatments such as those that would prevent the person having children, restrictive practices not expressly authorised in the document, and making or changing the person’s will or advance care directive.

§2What Victoria asks of a guardian

OPA describes the role in two halves: supporting the person to make their own decisions where that is practicable, and deciding for them only when they can’t, even with support. When the guardian does decide, the decision follows the person’s will and preferences as far as is practicable and appropriate, unless that would cause them serious harm. Where their likely wishes can’t be worked out, the test becomes their personal and social wellbeing.

Alongside that method, a VCAT-appointed guardian has standing duties. Read them as a checklist:

Act as the person’s advocate.
Be honest and act in good faith, with reasonable skill and care.
Encourage and help the person to build their own decision-making capacity.
Protect them from neglect, abuse and exploitation.
Never profit from the position, and step aside where there is a conflict of interest, unless the law or VCAT allows it.
Keep confidential what the role reveals, unless VCAT or the law authorises disclosure.

When VCAT reassesses the order, it looks at whether the guardian has carried out these duties, and a guardian who acts dishonestly or negligently can face legal consequences. A guardian unsure about a particular decision can write to VCAT to ask for advice.

§3Support comes first

The NSW guidance is firm that a guardian is a last step, not a first one. Most people with disability don’t need a guardian, and many can make decisions with support from family, friends and carers. An application to NCAT should come only after other ways of supporting the person’s own decisions have been tried.

It also warns against easy assumptions about capacity. An adult is presumed able to make their own decisions unless shown otherwise; a disability doesn’t mean a person lacks capacity; and a choice others think poor or controversial is not, on its own, a sign that they do. Where people disagree about someone’s capacity, an assessment can be sought from a clinical neuropsychologist, a geriatrician or a psychiatrist.