In New South Wales, the Guardianship Act 1987 governs the appointment of guardians for adults with a decision making disability. Under guardianship orders, the guardian can make decisions affecting the disabled person’s health, accommodation, support service and other general lifestyle matters.
The Guardianship Act is based on the following principles:
- The welfare and interests of persons with disabilities should be given paramount consideration;
- Their freedom should be restricted as little as possible;
- They should be encouraged to live a normal life in the community;
- Their views soul be taken into consideration;
- It is important to preserve family relationships and cultural and linguistic environments;
- Persons with disabilities should be encouraged, as far as possible, to be self-reliant;
- They should be protected from neglect, abuse and exploitation;
- The community should be encouraged to apply and promote these principles.
When are guardianship orders made?
The NSW Civil and Administrative Tribunal (NCAT) can appoint a guardian if it is satisfied that the person has a decision-making disability that results in them being wholly or partially unable to manage themselves and there is a need for a guardian to be appointed.
If the person is being adequately assisted by friends and family (informal decision making) a guardian does not need to be appointed. However, when informal arrangements break down, guardianship orders may need to be made.
NCAT can appoint guardian in respect of persons who live in NSW and are aged over 16.
What is a guardian?
A guardian is a person who is legally authorised to make certain decisions on behalf of a person with a decision-making disability.
A guardian is not authorised to make financial decisions. To make financial decision on behalf of someone else, one must be appointed as a financial manager.
How is a guardian appointed?
An adult guardian can be appointed in a number of ways. An adult can appoint a person as their guardian or a person can apply for a guardian to be appointed in respect of another person. The NCAT can also appoint a guardian of its own initiative.
After an application is lodged, parties will be given notice of a hearing date. At the hearing, NCAT will hear evidence and consider the written information provided. It will seek to include the person the application is about and to take their views into consideration as much as possible.
Parties at NCAT hearings can be represented by a lawyer or can appear on their own behalf.
Who can act as a guardian?
When a person applies for a guardian to be appointed, they may suggest someone to act as guardian. This may be themselves, another person or more than one person. However, NCAT is not bound by this and will only appoint a person as guardian if it is satisfied that they are suitable for the role and generally compatible with the person with the decision-making disability. It must also be satisfied that the proposed person does not have a conflict of interest. If there is no suitable person to act as a guardian, NCAT can appoint the NSW public guardian.
How long is a guardian appointed for?
Section 18 of the Guardianship Act provides that a guardianship order may be made for a period of up to three years.
Assessment and review of guardianship orders
A guardianship order may specify that an assessment of the person under a guardianship order is to be made at a specified time during the period of the order.
NCAT may review guardianship orders at its own initiative at any time during the order.
NCAT must review guardianship orders at the expiration of the period of the order or at the request of:
- the guardian;
- the person under guardianship;
- the public guardian;
- another person with a genuine concern for the person under guardianship.
On reviewing a guardianship order, the NCAT may vary, suspend, revoke, confirm or renew the order.
If you are unhappy with a NCAT decision, you can appeal to the NCAT Appeal Panel or to the NSW Supreme Court. Appeals must generally be lodged within 28 days of the decision.
If you require legal advice or representation in relation to an adult guardianship order or in any other legal matter, please contact Go To Court Lawyers.