Often, when a person is unable to make decisions about how they will live or how to arrange their financial affairs, their family and the local community rally around, provide support and make decisions on their behalf. In some cases, when there is no one available or there is a problem in providing support, a person can approach the Guardianship Tribunal to have an appropriate decisionmaker appointed.
The Guardianship Tribunal is here as a last resort and works with the community and family to provide a legal remedy.
The Guardianship Tribunal can appoint guardians and financial managers for people 16 years and over who are incapable of making decisions about their lifestyle and financial affairs. A person with a guardian may not need a financial manager. A person with a financial manager may not need a guardian.
The Tribunal can consent to medical and dental treatments for people 16 years and over who are incapable of consenting to their own treatment in instances where the treatment is in their best interest and there is no one else to consent for them.
Also, the Tribunal can review its orders and the appointment of an enduring guardian and an enduring power of attorney.
A guardian is a legally appointed substitute decisionmaker. This means a guardian can make decisions about matters such as accommodation, and medical and dental consent for a person with disabilities.
Under the Guardianship Act, the Tribunal can appoint guardians for adults who:
If the person’s lifestyle decisions can be made informally in the best interests of the person, the Tribunal will not appoint a guardian. A family member or friend can be appointed guardian. If the circumstances are not appropriate to appoint a private guardian or there is not suitable person, the Tribunal has the option of appointing the Public Guardian, who is a statutory official separate from the Tribunal. The Tribunal can appoint a single guardian, joint guardians and alternative guardians.
In most cases, the Tribunal appoints guardians with specified functions. The most common functions are:
Guardians are appointed for a specified period of time. Initial orders are usually made for a maximum of one year at a time. Orders can be made for a maximum of three years or five years in special circumstances. The Tribunal undertakes a review near the end of the order unless it decides, when making the order, that there is no need for a review. In this case, the order will lapse at the end of the specified period. At the review hearing, the Tribunal decides whether to:
Under the Guardianship Act, the Tribunal can appoint financial managers for adults who are incapable of managing their own financial affairs and need someone with legal authority to make important financial decisions on their behalf. A financial manager is a substitute decisionmaker. If the person’s financial decisions can be made informally in the person’s best interests, the Tribunal will not appoint a financial manager.
The Tribunal can appoint a family member or friend as financial manager. The Protected Estates Act requires that this person must be supervised by the Protective Commissioner. The Tribunal can also appoint the Protective Commissioner as financial manager, who is a statutory official separate from the Tribunal. The Office of the Protective Commissioner charges fees for its services. The Tribunal can appoint a single financial manager or joint financial managers.
Most financial management orders are indefinite and apply to all of the person’s financial affairs. Sometimes, the Tribunal can decide to review a financial management order after a specified time. These orders are reviewed at another hearing to decide whether the order should continue. The Tribunal can also exclude part of a person’s estate from the financial management order in limited circumstances.
The Tribunal can make an interim financial management order. An interim financial management order is for a specified length of time not exceeding six months. These orders protect a person's financial affairs while information is being gathered about their capability to manage their own affairs.
If requested, the Tribunal can revoke a financial management order if it is satisfied that the person is able to manage their own affairs. The Tribunal can also revoke a financial management order if it is satisfied that this would be in the person's best interests.
If someone has been appointed to consent to medical and dental treatment, the practitioner should get their consent before treating the patient. If there is no guardian and the patient does not object to the treatment, then consent to the treatment must be obtained from the patient's person responsible. For more information, you can obtain the information sheet 'Person Responsible' from the Tribunal.
If there is no person responsible, the Tribunal provides substitute consent for medical and dental treatments when the patient is incapable of consenting to their own treatment. Except in emergencies, practitioners have a legal and professional responsibility to get consent before treating any patient. The patient usually gives this consent. Part 5 of the Guardianship Act identifies who can consent to treatment on behalf of the person who is incapable of giving their own consent. Part 5 also divides medical and dental treatment into three categories (special, major and minor) and identifies who can give consent to treatment. Consent is not required for over-the-counter medications or first-aid treatments.
If the patient is objecting to the proposed treatment, practitioners must seek consent from the Tribunal. There is an 'Application for Consent to Medical or Dental Treatment' form, which must be completed and returned to the Tribunal. The Tribunal will then conduct a hearing, usually by phone, and decide whether consent should be granted or refused. Applications for consent can be made after hours by phoning the Tribunal's after hours service. It is not necessary to get consent for treatment the practitioner considers to be urgent and necessary to save the patient's life, prevent serious damage to the patient's health or alleviate significant pain or distress.
The Tribunal can review the making of an enduring power of attorney or its operation and effect. On review, the Tribunal can make a range of orders, including replacing an attorney or declaring that an enduring power of attorney is invalid. The Tribunal can also decide to convert the review application to an application for financial management and appoint a financial manager. For more information, you can obtain the information sheet ‘Reviews of Enduring Powers of Attorney’ from the Tribunal.
Anyone with a genuine concern for the welfare of a person who is incapable of making their own decisions can apply to the Tribunal for guardianship and/or financial management orders. The Public Guardian and the Protective Commissioner can make applications for guardianship and/or financial management orders when there is no-one willing or able to do this.
An application for a review of an enduring power of attorney can be made by the person who made the enduring power of attorney, their appointed attorney, their guardian (or enduring guardian) or any other person with a proper interest in the review or a genuine concern for the welfare of the person who made the enduring power of attorney.
When an application is received, the Tribunal staff assess it. Not all applications proceed to a hearing. A staff member may contact the applicant and discuss more informal ways of resolving the situation. If the matter does proceed to a hearing, the Tribunal will decide whether or not to appoint a guardian or financial manager. If the matter involves a review of an enduring power of attorney, the Tribunal will decide whether orders should be made affecting the enduring power of attorney.
The applicant is the person who makes the application. The applicant must:
Applications are assessed by staff of the Tribunal’s Coordination and Investigation Unit. If a matter cannot be resolved informally, it will be scheduled for a hearing.The applicant is advised in writing if the matter is scheduled for a hearing.
When preparing an application for hearing, a staff member may gather information for the Tribunal and prepare people for the hearing. The staff member may write a report, which will usually be given to the Tribunal members and others attending the hearing. When speaking with a staff member, remember that they are taking notes for a report. If you have information that you believe should be kept confidential, discuss this with the staff member.
All parties should attend the hearing in person if this is possible but evidence can be taken by phone if necessary. You do not have to be a party to attend a hearing and give evidence to the Tribunal. Many people who know the person the hearing is about and have an interest in their welfare may have relevant views or information to put to the Tribunal. In most cases, people can attend the hearing and give evidence as witnesses.
The parties may have a lawyer or other advocate represent them but only with the Tribunal’s permission. See the ‘Representation at Hearings’ information sheet for more details. Most matters proceed without the need for legal representation.
The Tribunal consists of at least one legal practitioner of at least seven years’ standing, one professional member who has experience assessing or treating adults with disabilities (eg. a doctor, psychologist, or social worker) and one community member who has experience with adults with disabilities.
The Tribunal will decide who will be guardian. The Tribunal will appoint a guardian only if there is evidence that the person who is the subject of the application:
The Tribunal will decide who will be financial manager. The Tribunal will appoint a financial manager only if there is evidence that the person who is the subject of the application:
The Tribunal will decide what orders should be made after reviewing an enduring power of attorney. The types of orders which may be made include orders replacing an appointed attorney or orders varying the enduring power of attorney.
Everyone attending the hearing will usually be advised verbally of the Tribunal's decision at the end of the hearing. Copies of the written order and the reasons for decision will be sent to the person who is the subject of the order, the applicant, parties to the matter and other people nominated by the Tribunal.
The Tribunal must observe the principles in the Guardianship Act. These principles state that everyone should:
The term ‘a party to a hearing’ is a legal phrase which means a person who
has certain rights in connection with the hearing (eg. the right to be given
notice of the hearing or to receive written reasons for a decision). In cases
before the Guardianship Tribunal, the Guardianship Act 1987 outlines
who may be a party to guardianship and financial management hearings.
People, who are always parties in guardianship and financial management cases, are:
In cases where the Tribunal is reviewing an enduring power of attorney, the Powers of Attorney Act 2003 outlines the parties as:
The Tribunal can join a person as a party to the proceeding if it considers that this person has a special interest or relationship that warrants them being joined as a party rather than giving evidence as a witness. If you want to be joined as a party, discuss this with staff of the Tribunal.
Address: 2a Rowntree Street, Balmain, NSW, 2041
Postal Address: Locked Mailbag 9, Balmain NSW 2041
Phone: (02) 9555 8500
Fax: (02) 9555 9049
Tollfree: 1800 463 928
Email: gt@gt.nsw.gov.au
Website: www.gt.nsw.gov.au