Guardianship and Financial Management (NSW)
In New South Wales, a guardian and/or a financial manager can be appointed for a person who does not have the capacity to make decisions themselves. Financial managers deal with financial and legal matters on behalf of another person. A financial manager does not make lifestyle decisions; a guardian makes such decisions. Appointed guardians can make decisions about healthcare, including medical or dental treatment, decisions about where the person resides, and the services they use. This article deals with guardianship and financial management in NSW.
How are guardians and financial managers appointed?
While a person has the capacity to do so, they can create an Enduring Power of Attorney, Enduring Guardianship Appointment or an Advanced Health Directive. These documents set out how the person wants their financial affairs or healthcare and lifestyle needs managed if they lose capacity to manage them for themself. For example, such a document might state who is to make these decisions on their behalf after they lose capacity.
Sometimes people lose capacity to make decisions when they do not have an Enduring Power of Attorney, an Enduring Guardianship Appointment, or an Advanced Health Directive in place. In these situations, often friends, family members, or social workers make decisions on behalf of the person. However, sometimes such arrangements do not work, and a more formal arrangement is needed.
Sometimes, the arrangements outlined in an Enduring Powers of Attorney, Enduring Guardianship Appointments or Advanced Health Directives are not working or cannot work. For example, the appointed person may have lost capacity themselves. In such cases, an application can be made to the New South Wales Civil and Administrative Tribunal (NCAT) for an order declaring a guardian and/or financial manager for that person.
The Supreme Court of New South Wales can also hear applications for guardianship and financial management. However, applications to the NCAT are generally more affordable and less formal.
Applications for guardianship and financial management orders to the NCAT
The guardianship division of the NCAT may hear applications for:
- Appointing a guardian;
- Appointing a financial manager;
- Reviewing an existing legal appointment for making decisions such as an Enduring Power of Attorney, Enduring Guardianship Appointment or Advanced Health Directive;
- Consent for dental or medical treatment for the person without capacity; or
- Permission for the person without capacity to participate in a clinical trial.
The applications must relate to people who reside in New South Wales or have financial assets or property in New South Wales. Applications cannot be made for people under the age of sixteen, those who have had orders already made for them by the Supreme Court of New South Wales (unless consent from the Supreme Court is obtained) or for those who have orders made for them by the Children’s Court.
The NCAT may prioritise urgent applications.
What is considered in applications for guardianship and financial management?
The Guardianship Act 1987 at section 4 details the principles to be followed when making orders for guardianship or financial management. This section states that:
- The interests and welfare of the person who is the subject of the order is to be given primary consideration;
- Persons are to be given as much freedom to make decisions and as much freedom to choose to act as they wish as is possible;
- The person who is the subject of such orders should so far as possible be encouraged to live normally within a community;
- If possible, the views of the person who is to be the subject of the orders should be taken into account;
- Family relationships, cultural and linguistic environments should be preserved where possible;
- Self-reliance should be encouraged where possible;
- The subject person is to be protected from abuse, exploitation and neglect; and
- The community is to be encouraged to promote and apply the above principles.
Who may apply for guardianship orders
The following persons can apply for guardianship orders:
- Any person who has a genuine concern for the welfare of the relevant person;
- The Public Guardian;
- The person who is to be the subject of the orders.
To be appointed as a guardian, a person must be at least eighteen years of age. The NCAT also must be satisfied that:
- The personality of the person to be appointed is compatible with that of the subject person;
- The person to be appointed does not have any conflict of interest that would affect their ability to fulfil the role properly; and
- The proposed person is able and willing to perform the duties of the position.
What is considered when making guardianship orders?
NCAT will consider the following in making guardianship orders:
- The views of the person who is to be the subject of the orders;
- The views of the spouse of the person who is to be the subject of the orders;
- The opinions of any carers of the person who is to be the subject of the orders;
- The general principles noted above that are outlined in the Guardianship Act 1987;
- Whether services could be practically provided to the relevant person without a guardianship order being made.
Who can apply for the appointment of a financial manager?
Any person who has a genuine concern for the person who cannot manage their affairs, the NSW Trustee and Guardian or a person for whom the financial manager is to be appointed can apply for the appointment of a financial manager. For an application to be successful, it needs to be shown that the person cannot manage their affairs, and there is a need for a financial manager to be appointed. It also needs to be shown that it is in the subject person’s best interests that the orders be made. A financial manager can be appointed for just a part of the estate of a subject person. They do not need to be appointed to manage all of the subject person’s financial affairs. A financial manager can be a private person or the NSW Trustee and Guardian.
Supporting documents for guardianship and financial management
Applications for the appointment of guardians or financial managers to the NCAT will need to be accompanied by supporting documentation. Such supporting documentation may include medical reports, statutory declarations and relevant financial documentation.
If you require legal advice or representation in any legal matter please contact Armstrong Legal.