The Tribunal –
Where a person loses capacity without having previously prepared a private Enduring Power of Attorney or an Appointment of Enduring Guardian, an application may need to be made to the NSW Civil & Administrative Tribunal (NCAT), in its Guardianship Division (“the Tribunal”), which has jurisdiction under the Guardianship Act, 1987 (“the Act”)
The jurisdiction exercised by the Tribunal is a protective jurisdiction, designed to promote the best interests of the person whose affairs are under consideration.
Guardianship Orders –
1. “Guardianship” is the appointment of a substitute decision maker regarding health, medical and lifestyle decisions (including accommodation) for a person who has lost cognitive capacity.
2. Section 4 of the Act sets out the following general principles for the appointment of a Guardian of a person, namely –
(a) the welfare and interests of the person is paramount,
(b) the freedom of decision and freedom of action of the person should be restricted as little as possible,
(c) the person should be encouraged, as far as possible, to live a normal life in the community,
(d) the views of the person in relation to the exercise of those functions should be taken into consideration,
(e) the importance of preserving the family relationships and the cultural and linguistic environments of the person should be recognised,
(f) the person should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
(g) the person should be protected from neglect, abuse and exploitation,
(h) the community should be encouraged to apply and promote these principles.
3. Section 14 of the Act provides that the Tribunal must first be satisfied that a person is in need of the appointment of a Guardian, and secondly, in considering whether or not to appoint a Guardian, the Tribunal must consider the following factors –
(a) the views of the person and their spouse or carer;
(b) the importance of preserving the person’s existing family relationships,
(c) the practicability of services being provided to the person without the need for the making of an Order.
4. Section 15 of the Act provides that the Public Guardian is to be appointed as the Guardian of a person only as a matter of last resort.
5. Section 15 of the Act also provides that the Tribunal shall not make what is known as a “plenary guardianship order” (ie complete and unqualified powers) where a limited guardianship order would suffice.
6. Section 16 of the Act provides that the Tribunal shall order which of the functions of a guardian shall have in respect of the person placed under guardianship – eg meal preparation, management of prescription medication, assistance with household cleaning, decisions regarding accommodation, etc.
7. Section 17 of the Act provides that, in deciding who to appoint as the Guardian of another person, the Tribunal must be satisfied that:
(a) the personality of the proposed guardian is generally compatible with that of the person under guardianship,
(b) there is no undue 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 exercise the functions conferred or imposed by the proposed guardianship order.
Financial Management Orders –
8. Section 25E of the Act empowers the Tribunal to make a Financial Management Order for persons to protect the property and assets in their estate.
9. Section 25G of the Act provides that before making a Financial Management Order, the Tribunal must first consider the person’s capability to manage their own affairs, and then secondly, in doing so, must be satisfied that:
(a) the person is not capable of managing their affairs, and
(b) there is a need for another person to manage those affairs on the person’s behalf, and
(c) it is in the person’s best interests that the order be made.
10. Section 25M of the Act provides that the Tribunal can appoint as Financial Manager –
- A suitable person; or
- The Public Trustee
- Medical Evidence
11. The Tribunal has the power to inform itself about the circumstances of the person who is the subject of the application, and medical evidence and evidence from ancillary health providers such as Social Workers and Occupational Therapists will play an important role in the Tribunal’s decision making process.
The Tribunal’s website has a lot of useful information and can be accessed here: https://www.ncat.nsw.gov.au/ncat/how-ncat-works/ncat-divisions-and-appeal-panel/guardianship-division.html
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