Guardianship Orders (NSW)
A guardian can be appointed when someone’s decision-making ability is impaired. The disability may be the result of factors such as intellectual disability, mental illness, acquired brain injury or dementia. The guardian makes decisions affecting the disabled person’s health, accommodation and other matters. In New South Wales, guardianship orders are governed by the Guardianship Act 1987.
General principles of guardianship
The Act is based on these general principles about the person for whom a guardian is appointed:
- their welfare and interests are the paramount consideration;
- their freedom of decision and action should be restricted as little as possible;
- they should be encouraged, as far as possible, to live a normal life in the community;
- their views should be considered;
- preserving their family relationships, culture and language is important;
- they should be encouraged to be self-reliant, as far as possible, in personal, domestic and financial affairs;
- they should be protected from abuse, neglect and exploitation;
- the community should be encouraged to promote and apply the principles.
A person aged over 16 can appoint someone as their enduring guardian. The appointment takes effect only when the person is totally or partially incapable of managing their affairs due to a disability. The enduring guardian must be:
- aged over 18;
- not involved in providing medical services, accommodation or any other support service for the person, for fee or reward;
- not a direct relative of someone providing such a support service.
An enduring guardian can:
- decide where a person lives;
- decide the person’s health care;
- decide any other personal care services for the person;
- consent to medical or dental treatment for the person;
- decide whether restrictive practices (such as the use of physical restraint) are appropriate to manage a person’s behaviour.
The guardianship document must be signed by the person or their representative, the prospective guardian, and at least one witness. The witness must certify that the person acted voluntarily in choosing to appoint a guardian and understood the effect of the document.
A person can appoint 2 or more enduring guardians to act jointly and separately, either at the guardians’ discretion or by conferring different functions on each guardian. If a guardian dies, resigns or becomes incapacitated, the remaining guardian appointments do not terminate, and a substitute enduring guardian can be appointed.
An appointment can be revoked by a person if a revocation document is signed by the person and a witness, and written notice of the revocation is given to the now former enduring guardian. An appointment is automatically revoked if the person who made it marries. An enduring guardian can resign their appointment if a person no longer needs a guardian, by giving written notice to the person, or if the person needs a guardian, by approval of the NSW Civil and Administrative Tribunal (NCAT). The tribunal also has the right to revoke the appointment of an enduring guardian if this is in a person’s best interests.
If a person no longer has decision-making capacity and has not appointed an enduring guardian, a private guardian can be appointed by a court or a tribunal. NCAT usually appoints a family member, close friend or unpaid carer aged over 18.
If a person no longer has decision-making capacity, has not appointed an enduring guardian, and has no family member, close friend or unpaid carer aged over 18 available to be a private guardian, the Supreme Court or NCAT can appoint a public guardian. A public guardian can be appointed jointly with a private guardian, but each will have different areas of responsibility.
A guardian is not permitted to make financial decisions on behalf of a person. NCAT can appoint a financial manager to manage any aspect of a person’s affairs unless the tribunal specifies what part of a person’s estate is not to be managed. NCAT can appoint a family member or friend as a financial manager. If this is not possible, it can appoint the NSW Trustee and Guardian.
Reviews of guardianship orders
Guardians are appointed by NCAT for up to 1 year (or 3 years in special circumstances). NCAT reviews an order as it expires or at the request of the guardian, the person under guardianship, the public guardian or another person with a genuine concern.
A review can be requested in situations such as when the order is not working in the best interests of the person, when changed circumstances affect the order, or when a guardian is no longer needed.
After a review hearing NCAT can renew and/or vary the order, or allow it to lapse.
For advice or representation in any legal matter, please contact Armstrong Legal.