There are various legal issues involved in the administration of a protected person’s estate.
It is always best to seek independent advice from a lawyer.
As administrator, you might have to sign documents on behalf of the protected person.
The usual way of signing a document is:
Signed for and on behalf of the said
JOHN SMITH by GLENDA JONES of
10 Brown Street
GREENVALE 5063 SA
Administrator appointed under the Guardianship and Administration Act 1993
Make sure you seek independent advice from a solicitor or conveyancer before executing any real estate related documents.
Wills and testamentary capacity
You do not have the power to make or change the protected person’s Will, and in most cases you cannot prevent them from making a Will.
A protected person usually has the right to make a Will even though an administrator has been appointed.
When SACAT creates the Administration Order it will specify whether the protected person can make a Will.
A Will is only valid if the person making the Will:
- understands and approves the contents of the Will
- has testamentary capacity, meaning they:
- know what a Will is
- realise, in general terms, the amount and type of property to be covered by the Will
- be able to understand the nature of the claims of others who, by the Will, are being excluded from participation in that estate.
A Will can be challenged in court after the protected person’s death if its validity is in question.
The Will maker should take precautions to protect a Will from this kind of challenge by obtaining a medical certificate and a statement from a professional, such as a clinical psychologist, who is skilled in assessing whether the protected person had testamentary capacity at the time the Will was made.
A Will can also be challenged on the basis that it was made under undue influence or pressure from a beneficiary. This is something to be aware of and potentially discuss with the protected person and their solicitor.
Other legal issues
This is a list of some other legal issues that may arise when administering an estate. However, you should check the Private Administrator’s Guide (PDF, 1.7 MB) for more details and always seek independent legal advice.
Sometimes the protected person will own property with someone else - like jointly owning a house with their spouse.
In most cases there will be no reason to change these arrangements.
If there is a case where assets need to be divided between the owners, SACAT would need to give you certain approvals before you can organise this.
Upon their death the protected person’s share in jointly owned assets automatically passes to the other surviving owner, and vice versa.
If required, an administrator can defend any legal action or proceedings relating to the protected person’s estate.
However, you cannot represent the protected person:
- in the case of criminal proceedings - you can pay a solicitor to represent the protected person.
- in Family Court proceedings for custody, guardianship of, or access to the
- person’s children
- in adoption proceedings or ‘in need of care’ applications in the Children’s Court.
If a guardian has been appointed it will be their role to represent the protected person in the proceedings.
If there are associated legal costs, you will need to advise the guardian if the protected person can pay them. You may need to make an application to the Legal Services Commission for financial assistance.
It is important for you to liaise closely with the appointed guardian in such cases.
Legal Services Commission
Phone: 1300 366 424 (local call cost)
Monday to Friday 9.00am - 4.30pm
Women’s Legal Services SA
Phone: 08 8221 5553
Country Callers: 1800 816 349
TTY: 1800 670 864
SA Community Legal Services
Phone: (08) 8342 1800
PO Box 697, Salisbury, South Australia, 5108