Legal matters

8 minute read
 

As a carer, you have legal rights about your role and how you should be treated. You may also need to manage the legal affairs of the person you care for.

Legal powers for carers

Carers may have different legal powers and responsibilities, depending on their role and the person they care for.

The legal powers you may need as a carer can change over time, depending on whether the condition of the person improves or gets worse.

If you are caring for a child

You can have different responsibilities depending on whether the child you are caring for is yours or not:

  • If you are a parent caring for your child – you are legally responsible for their care and welfare until they are 18 years old
  • If you’re an adult caring for a child who is not your own (for example, a grandchild) – a Children’s Court may let you make decisions about their care and welfare through a custody order, guardianship order, or permanent care order

The legal powers you may need as a carer can change over time, depending on whether the condition of the person improves or gets worse.

If you are caring for an adult

You can have different responsibilities depending on what sort of help the person you are caring for needs:

  • If you are caring for an adult (over 18) who needs help with finances, legal matters or property management – you may be able to get a power of attorney to act for them
  • If you’re caring for an adult (over 18) who can’t make their own decisions about health care or living arrangements – you may be able to be appointed as their guardian

Guardianship

If the person you care for can't manage their own health affairs and living arrangements, a guardian can be legally appointed to make decisions for them.

What a guardian can do

Guardians can make decisions about:

  • medical and dental treatment
  • health care
  • living and lifestyle arrangements
  • using support services

Guardians can’t make many decisions about legal or financial matters – these decisions usually need a power of attorney. A guardian can also apply to get a power of attorney.

How is a guardian appointed

If the person you care for can still make decisions but might not be able to in the future, they should appoint an ‘enduring guardian’. They can appoint an enduring guardian at any time if they are over 18 years old and have the mental capacity to do so. The enduring guardian can act for the person when the person can’t make decisions anymore.

If the person you care for can’t make decisions, you can arrange to have a guardian appointed. A guardian will be appointed by a tribunal or similar body in a state or territory government. Each state and territory has different laws for guardianships and rules about how a guardian is appointed. These are:

What you should do

It’s important to plan ahead and decide what the person you care for may need now and in the future. If the person may need a guardian in the future, it’s a good idea for them to appoint an enduring guardian when they can.

If you or the person you care for would like to appoint a guardian, you should talk with a legal service in your state or territory to see what you need to do. Legal Aid commissions in each state or territory provide free legal services.

If the person you care for has a guardian, you should keep a copy of the guardianship documents with your emergency care plan.

Power of attorney

If the person you care for can’t manage their financial or legal affairs, a power of attorney can be given to someone else to make decisions for them.

What can a power of attorney do

A power of attorney gives a person or organisation the legal right to manage the money and legal affairs of another person.

A person with power of attorney usually can’t make many decisions about the person’s lifestyle or medical treatment. These kinds of decisions usually need a guardian.

How is power of attorney given

If they can still make decisions, the person you care for may appoint someone as their power of attorney. They can choose a trusted friend, family member or a specialist organisation, such as a public trustee.

There are different sorts of power of attorney that act at different times. A power of attorney can be used for the time the person has allowed, and it stops when the person can’t make decisions any more. An enduring power of attorney can be used when the person can’t make decisions any more. You may want to set up both sorts.

Formal documents are needed to appoint a power of attorney. The documents must say what the person is authorising the attorney to do for them. It must be signed by the person being cared for and the person being appointed, as well as witnesses.

If a person can’t make their own decisions anymore and no enduring power of attorney has been given, state or territory boards can appoint someone to make financial and legal decisions for them. Each state and territory has different rules about powers of attorney. These are:

What you should do

It’s important to plan ahead and decide what the person you care for may need now and in the future. If the person may not be able to make decisions in the future, it’s a good idea for them to appoint an enduring power of attorney when they can.

If you or the person you care for would like to appoint a power of attorney, you should talk with a legal service in your state or territory to see what you need to do. Legal Aid commissions in each state or territory provide free legal services.

If the person you care for has a power of attorney appointed, you should keep a copy of the power of attorney documents with your emergency care plan.

Legal services

As a carer, you may sometimes need legal advice or to take legal steps or action to help the person in your care.

Why you might need legal services

You may need legal advice if the person you care for:

  • needs somebody to make decisions about their medical treatment, living arrangements or personal matters
  • needs somebody to manage some or all of their financial or legal affairs
  • gets into debt
  • is at risk of abuse, exploitation, neglect or harm
  • is in trouble with the police

Getting help with legal services

You can get legal advice from Legal Aid or from other expert legal services. Legal Aid commissions in each state or territory provide free services in family, criminal and civil law matters.

Legal rights for carers

It’s important to know your legal rights as a carer. The rights of Australia’s carers are recognised by national, state and territory laws and policies.

Legal rights for carers

If you are a carer, you have the right to:

  • be treated with respect and considered as a partner with other care providers
  • work and be supported by employers
  • use public spaces and businesses without discrimination – the Australian Human Rights Commission has a guide to anti-discrimination in Australia
  • complain about services
  • appeal against decisions
  • privacy and confidentiality

In general, you also have the right to information about the health of the person you care for. Health professionals are allowed to share information with patients and carers so that all can work together.

Carer laws and policies

The Australian Carer Recognition Act 2010 has 10 principles about how carers should be treated and how services should be delivered to carers and the people they care for.
States and territories also have carer laws and policies. These are:

Privacy and confidentiality

When you use health and support services, you may be asked for personal information about yourself or the person you care for. This information must be handled in a way that protects your privacy.

Sometimes you may need to give other people information about the person you care for. It’s important that you ask permission from the person you care for to do this. It’s also important that you respect their privacy and only provide information that is relevant to the situation.

Privacy laws

Professionals and services must protect your privacy under state or territory law and the Commonwealth Privacy Act 1988. You have the right to:

  • make choices and control your information
  • be told how your information will be used
  • see your health record and ask for corrections
  • be told why and when your information will be shared

Getting help with privacy

You can find information about your rights and those of the person you care for on the Office of the Australian Information Commissioner webpage and in this privacy fact sheet. If you believe there has been a breach of confidentiality, you can make a complaint.