Common Questions
Because the Guardianship Tribunal is a legal tribunal, it is governed by certain NSW Acts and Regulations. This means that often we use terms not familiar to the general public. The Definitions section of this website explains many of the terms that are used frequently.
Many people who contact the Tribunal have the same questions. The answers to the following questions may contain the information you require.
- How long before a hearing is held?
- What is the difference between guardianship and financial management?
- Does the subject person have to come to the hearing?
- Does the applicant have to come to the hearing?
- Do I have to be represented by a lawyer or solicitor?
- Who is on the Tribunal?
- Do I have to bring anything to the hearing?
- When will I know the outcome of the hearing?
- How long does an order last for?
- If the Public Guardian or Protective Commissioner is appointed will they keep me informed and can I contact them about the person?
- Do I have to tell the person and others involved that I am making the application?
- I am not happy with the decision made by the Tribunal. What can I do?
- How do I get rid of a financial management order?
- If I want to propose myself as guardian or financial manager do I have to lodge an application?
- How do I make an application?
- What happens at a hearing?
How long before a hearing is held?
The time taken for an application to reach hearing depends on:
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how much time Tribunal staff need to spend ensuring that the necessary evidence is gathered and the matter is prepared for hearing, and
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the urgency of the matter.
When a new application arrives, Tribunal staff begin to investigate it, by contacting the people who are most significantly involved in the matter. The information required to support the application includes medical and professional evidence about the person the application is about. The applicant is responsible for organising the relevant evidence to support their application.
A hearing may be delayed until all relevant evidence arrives.
Although the majority of applications state that they are 'urgent', the Tribunal views a matter as urgent where there is an immediate risk of harm or significant financial loss to the person. If circumstances change increasing the risk to the person, the Tribunal should be notified as this may make the matter urgent.
What is the difference between guardianship and financial management?
Guardianship relates to decisions about a person's lifestyle and other personal matters, such as where they live, what services they should receive, and what medical and dental treatment they receive. Financial management relates to decisions about a person's money and assets.
Does the subject person have to come to the hearing?
Yes. The Tribunal is legally obliged to have regard to the person's views. It is best if those views are obtained directly by the Tribunal from the person. Therefore, the Tribunal's policy is to have the person present at the hearing. Because the Tribunal has the authority to make significant changes to the rights of the person, every effort is made to involve the person in the process regardless of their level of understanding.
In exceptional circumstances it may not be physically possible for the person to attend the hearing. In these cases, talk to the Tribunal staff member about alternative methods of seeking the person's views.
Does the applicant have to come to the hearing?
Yes. One of the key responsibilities of the applicant is to attend the hearing and arrange for the person the application is about to attend.
Do I have to be represented by a lawyer or solicitor?
No. Usually, it is unnecessary for those participating in hearings to be legally represented. The Tribunal requires the parties and witnesses to give their evidence and express their views in their own words. However, the Guardianship Act does allow for people who are parties to a hearing to be represented by a lawyer or another advocate. This only happens with the permission (leave) of the Tribunal. The Tribunal only grants permission for legal representation if it believes that the person concerned would be disadvantaged without it. If you think you or another party should be represented, discuss this with a Tribunal staff member.
Who is on the Tribunal?
For the majority of matters the Tribunal sits in panels of three members with one member from each category (legal, professional and community members) Very occasionally four members will sit. No more than five can sit on a panel.
Applications for medical consent, reviews of guardianship and financial management orders and a range of procedural matters such as applications to be joined as a party, can be heard by fewer than three members.
The presiding member is an Australian lawyer with at least seven years' experience. The professional member is a person such as a doctor, psychologist or social worker who has experience treating and assessing people with disabilities. The community member either works with people with disabilities or has personal or familial experience of people with disabilities. If a matter requires particular expertise the Tribunal will try to select the best qualified members to participate in the hearing.
The membership of the Tribunal is made up of people who have expertise and experience in one or more of the major areas of disability, namely dementia and age related disabilities, intellectual disability, acquired brain damage, or mental illness.
Do I have to bring anything to the hearing?
Generally it is not necessary to bring anything to hearings. You should bring any financial records that are requested of you. If you want the Tribunal to consider a document, you should submit it to the Tribunal staff member at least three days before the hearing. The Tribunal members read the documents before the hearing so that they are aware of the issues involved before the hearing begins. Documents presented at the hearing may delay the resolution of the matter.
When will I know the outcome of the hearing?
It is the practice of the Tribunal to inform those attending the hearing of the Tribunal's decision at the end of the hearing. If a guardianship or financial management order is made, it takes effect immediately. The Tribunal's written orders and reasons for decision will be sent out as soon as practicable after the hearing.
How long does an order last for?
For first time guardianship applications, the Tribunal can make an order for up to three years. However, most initial guardianship orders are made for 12 months or less. The Tribunal will hold another hearing to review the order near the time it is due to end. On these occasions, the Tribunal may make an order up to three years or, in certain circumstances, up to five years.
A financial management order lasts indefinitely unless the Tribunal specifies in the order that it is to be reviewed within a particular timeframe. Financial management orders are not automatically reviewed. However, anyone who has a genuine concern for the welfare of the person can apply at any time for the order to be reviewed if they have sufficient grounds for doing so. If the Tribunal adjourns a financial management application to seek further information about the person's capability to manage their finances, it can make an interim order lasting up to six months.
If the Public Guardian or Protective Commissioner is appointed will they keep me informed and can I contact them about the person?
One of the principles under the Guardianship Act is to maintain the person's significant relationships. If you are close to the person and have a genuine interest in their welfare, your views will be taken into account by the Public Guardian or the Protective Commissioner. If you have a concern about the person's welfare you should contact the Office of the Public Guardian or the Office of the Protective Commissioner to discuss it with them.
The Office of the Public Guardian and the Office of the Protective Commissioner are separate organisations and you will need to contact them directly.
Do I have to tell the person and others involved that I am making the application?
Yes. This is one of the key responsibilities of the applicant. The Guardianship Act 1987 requires that each party to an application, including the subject person, is served with a copy of the application. The Tribunal sends a copy of the application with its notice of hearing to all the parties. As applicant you will receive the subject person's notice of hearing and copy of the application to serve on them.
I am not happy with the decision made by the Tribunal. What can I do?
If you are a party you may be able to appeal decisions of the Guardianship Tribunal to either the Supreme Court or the Administrative Decisions Tribunal. The Tribunal's reasons for decision will indicate who is a party to the hearing. You have a right of appeal if your appeal raises a question of law. If it is an appeal on any other grounds, the Supreme Court or the Administrative Decisions Tribunal will have to give you leave before they will consider the appeal. If you want to appeal a decision of the Guardianship Tribunal you should seek your own independent legal advice.
If a guardianship or financial management order is no longer in the best interests of the person, an application can be made to the Guardianship Tribunal to review the order. If the Tribunal thinks there is sufficient reason for the order to be reviewed it can hold another hearing to confirm, vary, or revoke the order.
How do I get rid of a financial management order?
The Tribunal can revoke a financial management order only if it is satisfied that the person is now capable of managing their financial affairs themselves or that it is in their best interests that the order be revoked. If you are able to provide evidence to support either of these grounds, you can lodge an application to revoke the order. The Tribunal has a form for this purpose. If the evidence you supply is sufficient, the Tribunal will hold a hearing to consider whether the order should be revoked.
If I want to propose myself as guardian or financial manager do I have to lodge an application?
An applicant indicates who they are proposing as guardian and/or financial manager in their application. If you disagree with the applicant's proposal and you wish to propose yourself or someone else you should discuss this with the Tribunal staff member coordinating the application. If you are proposing yourself you will need to attend the hearing but there is no need to lodge a separate application.
How do I make an application?
The Tribunal has application forms if you need to make an application for guardianship and/or financial management, for consent to medical and dental treatment, and for other matters. All of the application forms are available to print out from this website in the Publications section as PDF files. You can also make an application for guardianship and/or financial management online. To find out more about how to make an application, read through the Applications section.
What happens at a hearing?
A Tribunal hearing is the formal occasion when an application is heard by the Tribunal. There is a procedure to every Tribunal hearing when the applicant, the person the application is about, and other 'parties' are asked their views and evidence is presented. To find out more about what happens at a hearing, read through the During the Hearing section.