Do you need to apply?
Most people with a decision-making disability manage in the community with help from their family, friends and service providers. They do not need a guardian or a financial manager.
Before commencing the legal process of making an application for guardianship and/or financial management, you should consider whether there is an appropriate alternative.
Talking it over
If a disagreement is preventing decisions being made for the person perhaps bringing everyone concerned (family, carers, friends of the person with the decision-making disability) together to talk about options might assist to resolve the problem.
A Community Justice Centre might also be able to provide advice or mediation to assist with family disputes(see link at bottom).
What is the current situation?
Are you concerned about someone who cannot make personal or financial decisions?
There are alternatives to applying to the Guardianship Tribunal
- Is there already an enduring guardian to make lifestyle decisions or an attorney appointed under an enduring power of attorney to handle the person's financial affairs on their behalf?
- Are friends, family or carers already assisting the person?
If you said 'yes' to one of the above, then a guardianship order or financial management order may not be required.
There are options for helping someone apart from coming to the Guardianship Tribunal. A number of government and non-government organisations can offer help or information on available services.
These organisations can provide advice about:
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aged care
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intellectual disability
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mental health
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brain injury
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legal issues
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financial problems.
Are you concerned about someone who cannot make decisions about medical or dental treatment?
- Is there already a 'person responsible' to make decisions about treatment on their behalf?
Under the Guardianship Act 1987, a 'person responsible' can make decisions about most medical or dental treatments as long as the person is not objecting to the treatment. A 'person responsible' can make these decisions because they are, in order of priority:
- the legally appointed guardian of the person (including enduring guardian) with the function of consenting to medical/dental treatment or, if there is no guardian:
- their spouse or de facto spouse or same sex partner, or if there is no spouse or de facto spouse or same sex partner:
- their unpaid carer or, if there is no carer:
- their relative or friend who has a close relationship with the person.
For more information about 'person responsible', read the information sheet Person Responsible.
When to apply to the Tribunal
Often just trying one of the above alternatives will mean there is no need to approach the Tribunal with an application.
Only if you find the alternative does not work, or if there are disagreements among those involved on how to proceed, or if the person concerned is objecting to any of the arrangements, should you consider making an application to the Guardianship Tribunal.
Working out an alternative, as long as it is in the best interests of the person concerned, may be better than having to go through the legal process for appointing a guardian or financial manager.
Related Link
- Community justice centres (Questionable link)
http://www.lawlink.nsw.gov.au/cjc