An overview of the process of Guardianship
Do I need to think about this, what is the
process and who can assist me?
EMMA HEAGNEY
CIVIL SOLICITOR
LEGAL AID NSW
[email protected]
WHAT IS A GUARDIAN?
A guardian is an alternate decision maker for someone who does not have
the capacity to make his or her own decisions.
The NSW Civil and Administrative Tribunal (‘NCAT’) can appoint a
guardian under the Guardianship Act 1987 for a person with a
decision making disability.
A guardian is a substitute decision-maker not a case manager or carer.
WHAT DECISIONS DOES A GUARDIAN
MAKE?
A guardian can be authorised to make personal and lifestyle
decisions on behalf of the person under guardianship.
These include decisions about where to live, what services to use
and consenting to medical and dental treatment.
A guardian is not authorised to make financial decisions. However a
person can be appointed as both guardian and financial manager.
WHEN DO I NEED TO THINK ABOUT
GUARDIANSHIP FOR SOMEONE I AM CARING FOR
The Tribunal makes guardianship orders where
1.
The person does not have the capacity to make their own decisions
AND
2.
that person needs a guardian appointed
Most people with a decision-making disability manage in the community with help from their
family, friends and service providers without the need for a guardian (or financial manager) to be
appointed for them.​
The Tribunal will only appoint a guardian if it thinks there is a need for a guardian.
WHO CAN BE APPOINTED GUARDIAN
The Tribunal can appoint a private person or the Public Guardian of NSW
The Tribunal will not appoint a private person unless :
◦ (a) the personality of the proposed guardian is compatible with that of the person
under guardianship
◦ (b) there is no conflict between the interests (particularly, the financial interests) of
the proposed guardian and those of the person under guardianship, and
◦ (c) the proposed guardian is both willing and able to take on the role of guardian
WHAT IS THE PROCESS FOR
APPOINTMENT OF A GUARDIAN?
Application
Anyone with a genuine concern for the welfare of the person they consider incapable of making their
own decisions may apply to the Tribunal.
When an application is made to the Tribunal, it begins a formal legal process which the Tribunal
controls. Applications can only be withdrawn with the consent of the Tribunal.
At the hearing
Before making any orders about financial management or guardianship, NCAT will conduct a hearing.
The hearing is an opportunity for the person who is the subject of the application as well as other
interested people, including the person making the application, to present their views.
NCAT will consider reports from health professionals and others before making its decision.
Parties and witnesses can attend the hearing and give evidence over the telephone or by
videoconference if necessary.
ISSUES FOR THE TRIBUNAL TO CONSIDER
Does the person the application is about have a disability?
If so, is this person totally or partially incapable of making their own decisions because
of this disability?
If so, does the person need a guardian appointed to make decisions on their behalf?
If so, who should that guardian be?
What areas of the person’s life should the guardian make decisions about?
Should the order be subject to any conditions?
How long should the order last?
Is it in the best interests of the person to make an order? (If the person already has
informal decision making or an enduring guardianship appointment in place that are
working in their best interests, NCAT may not make an order.)
WHO CAN ASSIST ME?
THE GUARDIANSHIP DIVISION OF NCAT
The Guardianship Division's Enquiry Service can help with questions about:
The role and functions of the Guardianship Division
Tribunal practice and procedure
Planning ahead through appointment of enduring guardians and enduring power of attorney
Issues relating to guardianship, financial management, consent to medical or dental treatment,
review of enduring power of attorney and review of enduring guardianship appointments.
Most applications to the Tribunal are prepared for hearing by a Tribunal officer. The role of
the Tribunal officer is to provide information about NCAT practice and procedure, to list the
application for hearing and to send notices of the hearing to the parties.
WHO CAN ASSIST ME cont….
LEGAL AID NSW
Legal Aid NSW offers free advice appointments to anyone (applicant, subject
person, carer,) about guardianship generally and the tribunal process.
Representation by a solicitor is available from Legal Aid for the subject person
if the tribunal has granted leave for representation or made an order for
separate representation.
Representation is available for other people involved in guardianship
proceedings in limited circumstances.
WHO CAN ASSIST ME cont….
THE COMMUNITY LEGAL CENTRE:
The Community Legal Centre offers free legal advice appointments about guardianship and
tribunal procedure to anyone (applicant, subject person, carer,)
LAW ACCESS:
Law Access offers free phone advice about guardianship and the tribunal process
DOES A PERSON NEED TO HAVE A LEGALLY APPOINTED
GUARDIAN TO BE A PARTICIPANT IN THE NDIS?
The usual general principles for the making of guardianship orders apply to the
NDIS
Most people with disability don't need a guardian because they can be
supported to make their own decisions.
When a Guardian is appointed with a services or advocacy function (either a
private person or the NSW Public Guardian), the guardian can consent to the
represented person becoming an NDIS participant.
The guardian will advocate for the participant’s reasonable and necessary
support needs, both current and future, to be built into their NDIS plans.
GUARDIANSHIP AND THE NDIS cont…
What can the guardian do?
provide consent for represented people to access the NDIS
provide information to the NDIS about the person’s current supports and unmet
needs
advocate on behalf of the participant where there are gaps in their current
supports
consent to services to support the person, as identified in the NDIS plan
seek alternative providers if we are not satisfied the needs of the participant are
being met
CONTACT DETAILS
Legal Aid NSW Lismore 66212082
Northern Rivers Community Legal Centre 66211000
LawAccess NSW 1300 888 529