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What is the Office of the Public Guardian? How is it different from the Public Trustee or a Litigation Guardian?

Thursday, 11 April, 2019

The Office of the Public Guardian delivers a range of services, which safeguard the legal interests of certain individuals. It is not to be confused with the Public Trustee who is responsible for managing the finances of people who are unable to make their own decisions about their monetary affairs; or with a litigation guardian who accepts the position of acting for a person in legal proceedings, by standing in their shoes.

The Public Guardian can become the guardian, pursuant to the provisions of the Guardianship and Administration Act 2000 (Qld), upon appointment by QCAT (the Queensland Civil Administrative Tribunal), for a person who cannot make decisions on their own, due to suffering such problems as serious mental health issues, dementia or impaired cognitive functioning.

Once appointed, the Public Guardian, (often referred to as the OPG – Office of the Public Guardian), can only make decisions which are within the scope and limited time period of the Order. It must, as far as possible and within reason, try to make the decisions which the person would make for themselves (if not affected by impairment), and it must act, at all times, in the person’s best interests. By comparison, a litigation guardian argues every detail of a person’s legal case and is expected to be able to do so with reliable knowledge of their personal affairs, and more particularly the legal dispute on foot. 

In family law proceedings, a member of staff acting under the delegation of the Public Guardian may find themselves appearing before the Court for a parent who has lost decision making capacity (either before or during the proceedings). In these circumstances and contrary to popular belief, the OPG in that case, does not automatically become the person’s litigation guardian for reasons which are set out below. 

More often than not, a litigation guardian is not needed because where the OPG has been appointed as it is usually more than capable of doing all such things and acts as necessary to assist the Court without becoming a person’s actual litigation guardian. The Court can dispense with certain Rules which allow the OPG to do this, (see Rule 11.09 of the Federal Circuit Court Rules, which stipulates that “ A person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by his or her litigation guardian”). 

The OPG will not act as a person’s litigation guardian per se because:

  1. a) Doing so exposes it to costs orders, which is unacceptable; 
  1. b) It will generally not consent to the appointment, which makes it impossible for the OPG to become a litigation guardian, (as consent to accepting the role as litigation guardian is a legislative requirement); and moreover; 
  1. c) The OPG is not usually in the position to be able to argue the intricate nuances of disputes, which are oft the subject of family law proceedings, (unlike the nuances of a dispute between Department of Child Safety matter involving a person with a serious mental health issue, for example).

It is important to understand that the OPG is often involved as a guardian to a person, only because there is no one else to act on that person’s behalf. Therefore, if the OPG finds itself intervening, commencing or responding to family law proceedings, there is not usually anyone else who is willing to accept the role as litigation guardian. In these instances, the OPG can stay involved but only once the Federal Circuit Court dispenses with the litigation guardian Rule (11.09). Any doubt as to this position was settled in the case of Public Guardian (Queensland) & Beasley and Ors (No. 2) [2015] FamCAFC 201; (21 October 2015). In that case, Judge Jarrett dismissed Legal Aid’s oral application for an order dispensing with such an appointment whereupon the Public Guardian appealed. May J of the Full Court (with whom Strickland and Austin JJ agreed) said at ([81]-[82]):

 … The public guardian will be able to take instructions from the mother to the extent she is able to communicate them, and brief Legal Aid to appear on her behalf – confirming an informal arrangement which has already occurred…

In circumstances where the court can be satisfied that the mother’s interests could be adequately represented and protected, and where there is no barrier to dispensing with compliance with r 11.09, it is clear the primary judge should have accepted Legal Aid’s application to dispense with the FCC Rules.

In summary, the roles of Public Guardian, Public Trustee and a litigation guardian differ greatly. The OPG will not act as a litigation guardian, even where no one else is willing or available to do so. In refusing to do so, it considers that it best protects the interest of the person for whom it acts in accordance with the requirements upon it to do so. It is a stand in decision make for a person who has lost capacity to make every day decisions for themselves. The Public Trustee, however, takes care of a person’s finances where the person is unable to do so safely. In contrast, a litigation guardian has peculiar knowledge of a person’s legal case and if they accept the role, can argue the person’s legal case on their behalf, or give instructions to the person’s solicitors throughout the proceedings, as if they were the person themselves.

 Author: BRUCE LEGAL