Life can take an unexpected turn, and the safety and wellbeing of a child or young person can become your top priority. Whether you're stepping in for a family member, becoming a stepparent or seeking guardianship for an adult, understanding the legal process is important.
That's why our family lawyers have put together this article on how to be a guardian in Australia. So, whether you're seeking guardianship for a child or young person or exploring options, we'll break it down for you.
What is legal guardianship?
Legal guardianship is a formal arrangement that gives someone the legal authority to make important decisions for another person who can't make those decisions themselves. For children or young people, this includes decisions about their daily care, education, health, and overall well-being.
In family law, guardianship usually comes into play when a child's parents are unable to meet their responsibilities. A legal guardian takes on the role of providing stability and ensuring the child grows up in a safe and supportive environment. Unlike informal caregiving, legal guardianship gives the guardian the authority to act in the child's best interests.
What is guardianship for adults?
Guardianship isn't just for children or young people—it can also apply to adults who are unable to make decisions for themselves. This might include adults living with a disability, severe mental illness, or age-related cognitive decline.
For adults, guardianship arrangements focus on personal decisions like healthcare and living arrangements. While guardianship can also apply to adults, adult guardianship is handled under different legal frameworks, like the Guardianship Act 1987 in New South Wales, and is may also be handled by tribunals, such as NCAT or VCAT (in Victoria). In this article, we're largely focusing on guardianship for children and young people. If you're looking for guidance on guardianship for adults, seeking legal advice specific to this area is a good next step.
Types of legal guardianship in Australia
Legal guardianship comes in different forms depending on the circumstances and the child, young person or adult involved. Knowing these types will help you work out what's best for your situation.
- Permanent guardianship: This is a long-term arrangement, usually granted when a child or young person can't safely return to their parents. The guardian has full parental responsibility, providing stability and security for the child's life.
- Temporary guardianship: This type of guardianship is for a specific period or situation, like emergencies or while a permanent arrangement is being worked out.
- Informal guardianship: In some cases, guardianship arrangements can be made without court involvement, through written consent or agreements between the child's parents and the guardian. However, these arrangements may not have the legal protections of formal guardianship.
- Emergency guardianship: For emergency situations where a child or adult needs immediate protection a court or tribunal may make an emergency guardianship order to ensure their safety and wellbeing.
Each type of guardianship has its own legal ties and responsibilities. For example, a parenting order may also be involved in cases involving children, to clarify the care arrangements. We highly recommend talking to a family lawyer to work out your options and what's right for you.
How is guardianship different from adoption?
While guardianship and adoption both involve taking on the care of a child, they are distinct legal arrangements with different implications. Understanding these differences can help you determine which option is best for your situation.
Legal authority and family ties:
In guardianship, a legal guardian takes on parental responsibility, allowing them to make decisions about the child's day-to-day care, education, and well-being. However, guardianship does not sever the child's legal ties to their biological parents. Adoption, on the other hand, permanently transfers all parental rights and responsibilities to the adoptive parents, creating a new legal family. The child's birth certificate is updated to reflect this change, fully integrating them into the adoptive family.
Flexibility:
Guardianship can be either temporary or long-term, providing flexibility based on the child's needs and family circumstances. Adoption is always a permanent arrangement, making it a more significant legal and emotional commitment. For instance, a stepparent may seek guardianship to formalise their role without pursuing the permanence of adoption.
Court involvement and complexity:
Both guardianship and adoption require court involvement, but adoption typically involves more complex legal and emotional considerations. Guardianship is often viewed as a more adaptable solution, especially when maintaining the child's connection to their biological family is a priority.
If you're unsure which path to take, consulting with independent family lawyers can help you explore your options and decide what's best for the child's well-being and future.
Who can be a legal guardian?
Becoming a legal guardian is a big responsibility and not everyone is eligible for the role. Generally, courts and tribunals look for people who can provide a stable and secure environment for the child or young person.
Eligibility for legal guardianship:
To be eligible to be a guardian, you must be an adult who can make sound decisions in the best interests of the child or young person. There also is usually an existing relationship with the child. Guardians are often family members, grandparents, aunts, uncles or older siblings. In some cases, a stepparent or a trusted member of the extended family may also be eligible.
The court will look at your ability to meet the child's day to day needs, education, healthcare and emotional support. Your living arrangements, financial situation and character references may also be considered.
If the child's biological parents are alive their consent is often required unless the court determines they are unable or unwilling to fulfill their parental responsibilities.
Special cases:
It's important to note some special circumstances that can make guardianship possible. For example, it is a step parent's right to apply for guardianship to formalise their role in the child's life if they are already involved in the child's care and upbringing. And in some cases, an older sibling can be a legal guardian if they can provide the care and stability the child needs.
If you're thinking of guardianship, it's important to understand the legal and emotional side of things. Again, to understand your options and responsibilities, we suggest talking to family lawyers.
How to become a legal guardian
Becoming a legal guardian in Australia involves several steps and while the details may vary between states and territories the overall general process tends to follow these steps:
1. Check your suitability
Before you apply think about whether you can meet the responsibilities of a legal guardian. This means providing a safe, stable and supportive environment for the child or young person and being able to manage their day-to-day care and long-term needs.
2. Collect your documents
You'll need to gather:
- Identification (e.g. passport or driver's license)
- Proof of financial situation
- Character references
- Evidence of your relationship with the child or young person (if applicable)
3. Talk to a family lawyer
Getting independent legal advice will help you through the process, understand the legal side of things and make sure you have everything you need.
4. File your application with the court
Submit your application to the relevant court or tribunal in your state or territory. Your application will include all the necessary documents and a statement of why you want to be a guardian.
5. Court hearings
The court will consider your application and may hold hearings to assess your suitability. During this time, they will consider the child's best interests, your ability to provide parental responsibility and the child's wishes if they are old enough to express them.
6. Get the guardianship order
If your application is approved a guardianship order will be made and you will be the legal guardian of the child. This may include conditions or restrictions depending on the circumstances.
Each step is designed to put the child or young person's best interests first. A family lawyer can help you through the process.
How to get guardianship of a child without going to court
While formal guardianship requires court involvement, there are times when you can arrange informal guardianship without going to court. For example, parents may give written consent for someone they trust – e.g. a grandparent, stepparent or close family member – to care for their child. These informal arrangements are often used for temporary situations like when a parent is away on travel, sick or other personal circumstances.
In many families, informal care is provided by extended family members – e.g. grandparents or aunts and uncles – who step in to support a child's needs without going to court. But it's important to acknowledge the limitations of these arrangements. Unlike a court made guardianship order, informal agreements don't give legal authority for big decisions about the child's education, healthcare or relocation.
If you're thinking of informal guardianship but not sure if it's right for your situation, talking to a family lawyer will help you work out your options. They can also help you formalise the arrangement if you need more legal certainty.
Responsibilities of Being a Legal Guardian
Being a guardian is a big commitment that comes with big responsibilities. As a guardian you will be making decisions that put the child or young person's best interests first. These decisions will be about their day-to-day care, education, medical needs and overall wellbeing.
Guardianship means providing a safe environment for the child to grow. This means emotional support, keeping them safe and stable. Guardians may also need to manage the child's relationships with their extended family and ensure contact arrangements are in place when needed.
Remember being a guardian is more than just a legal role – it's a commitment, sometimes a lifelong commitment, to the child's wellbeing and future. Talking to a family lawyer will help you understand your responsibilities and prepare for the journey.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
