Guardianship in NSW
If a person is no longer able to manage their own affairs, it may be necessary to appoint someone to make decisions on their behalf.
The person may have earlier granted another person a formal Power of Attorney over affairs for this purpose. If not, and it then becomes necessary to have someone manage their affairs, a tribunal can appoint a guardian and or an administrator or financial manager on a person’s behalf.
Applications to appoint a guardian or a financial manager are dealt with by the New South Wales Civil and Administrative Tribunal (NCAT).
The Guardianship Division is a specialist disability division within NCAT. The Division conducts hearings to decide guardianship in NSW applications regarding adults with a decision-making disability who are incapable of making their own decisions and who may require a legally appointed substitute decision-maker.
The Guardianship Division considers applications about people who are in NSW or who have property or other financial assets in NSW. It can only consider applications regarding people who are aged 16 years or older.
The Guardianship Act sets out the limits of its responsibilities and functions and the principles to be applied when making decisions.
What is a Guardian?
A guardian, who could be a member of the person’s family or a friend, is an alternative decision-maker who may make lifestyle decisions or personal decisions.
Lifestyle or personal decisions may include decisions about housing, medical or dental treatment and other services.
What is a Financial Manager?
A financial manager has the authority to make decisions about financial affairs on behalf of a person who is incapable of making such decisions for themselves.
Financial affairs can refer to things such as bank accounts, investments, paying bills, buying or selling property and includes legal affairs such as engaging a solicitor to act in court or other proceedings.
In New South Wales the term financial management is used but in most other Australian jurisdictions they use the term administration.
Appointing a Financial Manager or Guardian
Applications may be made to the Guardianship Division of NCAT to make guardianship or financial management orders to appoint a private guardian or financial manager (being a family member or friend) and/or the NSW Trustee and Guardian.
There are several factors that the tribunal will need to take into account before making a decision to appoint a guardian or financial manager. These include:
- the ability of the person to manage their own affairs
- any relevant medical or health conditions that might affect their decision-making ability (such as an intellectual disability, a mental illness, dementia, or an acquired brain injury), and
- whether it is in their best interests to have a guardian or financial manager appointed.
The Tribunal will not make an order regarding guardianship in NSW unless they are satisfied by the evidence that the person has a decision-making disability and that disability results in the person being partially or wholly incapable of managing themselves and there is a need for them to have a guardian appointed.
If the person already has an informal decision-making or enduring guardianship appointment arrangement in place that is working in their best interests, the tribunal may not make an order.
A financial management order will only be made if the person is not capable of managing their affairs and it is in the person’s best interests to have a financial management order and they have assets in New South Wales. The tribunal can make a financial management order only, or a guardianship and financial management order, or a guardianship order only.
The tribunal may:
- make an order appointing the guardian or financial manager requested in the application
- may not consider the evidence to be adequate and may not appoint anyone as guardian or administrator, or
- may appoint another individual or the NSW Public Guardian.
NSW Trustee and Guardian
After an order is made appointing the NSW Trustee as financial manager, the Trustee will ensure that the person’s financial affairs are managed in a way that best meets their needs. The person’s financial resources and their current and long term needs must be taken into account. Whenever possible, the views of the person and close family members are sought before any major decisions are made.
A representative from the NSW Trustee will contact the person the order is about and/or family members, friends or service providers and will set up suitable arrangements to manage the person’s affairs.
Anyone involved with the person’s affairs, including friends, family and service providers, can make direct contact with the NSW Trustee, by phoning (02) 8688 2600 or 1300 360 466.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.