The legal guardianship of children and young people with disabilities is generally not required if such child or young person is still capable of making decisions on his or her own.
The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) to which Australia is a signatory, recognises that people with disabilities have equal rights to:
- own or inherit property,
- control their own financial affairs and
- have equal access to bank loans, mortgages, and other forms of financial credit.
Moreover, the Convention emphasises that, while they need protection and assistance, it must be appropriate, proportional, and tailored to his or her circumstances. Thus, when a child turns 18, they can legally make their own decisions.
Note that guardianship is not mandatory even when the decision-making capacity of a young person is limited. However, legal guardianship of children and young people come into play when such a person can no longer manage his or her affairs on their own.
In this article, we will discuss an overview of the concept of guardianship when it comes to minor children or young people with disability.
Parental Responsibility
The Australian Family Law Act states that parents have the duty to take care of their children until they can take care of themselves. This means having responsibility of providing proper housing, clothes, school needs, medical needs, or the young person’s cultural needs. The Family Law Act 1975 also highlights the best interests of a child which is to have:
- A meaningful relationship with both parents; and
- Protection from physical or psychological harm
In the first condition, let’s say that the relevant child has no surviving parent to care for them. Being the legal guardian of a child or young people with disabilities will mean that you are accepting parental responsibility over them. A guardianship order can convey parental responsibility of the children on the prospective guardian until the children reach 18 years of age.
Who Is a Supportive Attorney?
A supportive attorney (in Victoria, Australia) is a person you appoint to assist you in making fundamental life decisions. It requires a formal appointment process to appoint a supportive attorney.
However, the power of a supportive attorney is limited only to making financial, personal and other decisions. For medical treatment or research, you will need to appoint a different support person you can trust.
Remember, your supportive attorney cannot make decisions for you. Their role is limited to:
- accessing information about you from organisations such as banks and utility providers
- communicating with organisations
- communicating your decisions to organisations
- taking reasonable steps needed to make your decisions happen.
If you’re planning to make an appointment, please check the laws of the state or territory where you live. Laws may vary between states and territories in Australia. Currently, there are eight different guardianship laws.
Moreover, there are various departments, courts, and tribunals responsible for them. Also, they vary differently as to how they operate, so it’s important to always seek accurate information specific to where you live.
If you’re unsure of what steps to take, consult a family lawyer and Wills and estate lawyer so they can assist you with any legal procedure. Talking to an solicitor will ensure that you’re on the right track.
Legal Guardianship of Children and Young People With Disabilities in NSW
In New South Wales, the NSW Civil and Administrative Tribunal (NCAT) appoints legal guardianship of children and young people with disabilities. During the process of appointment, the NCAT holds hearings for both guardianship and financial management order to:
- Determine if the person has capacity; and
- Legally appoint a substitute decision-maker if the person is unable to make decisions independently.
Basically, there are two types of guardians:
- Private Guardian
- Public Guardian
A private guardian is for someone who has no decision-making capacity and did not appoint an enduring guardian. This type of guardian can either be a family member, a close friend, or an unpaid carer over 18 years of age.
A public guardian, on the other hand, is an appointment by the courts or tribunal for a person who has no decision-making capacity. The difference is that this guardian is appointed for persons who don’t have family members or friends that can be private guardians.
The legal guardianship of children and young people with disabilities can involve paperwork and requirements that may need the assistance of an attorney. To help you in accomplishing this process, set a date when you can talk to a lawyer for legal advice.