MHCC Mental Health Rights Manual

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Chapter 5 Section B: Guardianship

This section is about guardianship. It has information about:

5B.1: Who can be appointed as guardians

You can appoint a person to act as your Enduring Guardian if the law considers you legally capable of doing so. Your Enduring Guardian will then have the responsibility to make decisions for you when you are unable to make these decisions for yourself.

Click here for information about Enduring Guardians.

If you have not, or are unable to appoint an Enduring Guardian, a Guardian can be appointed for you by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT). If it decides that you need a Guardian, the Guardianship Division may either appoint a Private Guardian for you or the Public Guardian.

The qualifications for appointment as a “Private Guardian” are set out in the Guardianship Act 1987 (NSW). Anyone over 18 years of age can be appointed as a Private Guardian. Before a person can be appointed a Private Guardian, the Guardianship Division of NCAT must be satisfied that the person has a personality that is generally compatible with that of the person in relation to whom the appointment is sought. There must be no conflict of interest, particularly of a financial kind, between the proposed Private Guardian and the person in relation to whom the appointment is sought. The proposed Private Guardian must also be willing and able to carry out the duties of a Guardian. Typically, family members and friends of a person who has a decision-making disability are appointed Private Guardians, but in certain circumstances other persons may also be appointed.

The Public Guardian is a statutory office holder established under the Guardianship Act 1987 (NSW). The Public Guardian is a particular person who has overall responsibility for the Office of the Public Guardian. Most of the functions of the Public Guardian are undertaken by staff of the Office of the Public Guardian. Generally speaking, the Public Guardian is only appointed Guardian where there is no-one else capable or willing to act as your Guardian, or if there is family conflict which would make it difficult for a Private Guardian to effectively make decisions for you.

The Guardianship Division of NCAT can appoint a single Private Guardian, Joint Private Guardians and Alternative Private Guardians. Joint Guardians may have the same decision-making responsibilities (called ‘functions’) where both Guardians must agree before a decision is made for you. Alternatively, these decision-making functions may be separated by particular areas of life, with each Guardian having a particular responsibility in an area of life. For example, a Private Guardian might be appointed with responsibility for a ‘services function’ in an effort to obtain necessary services for you if this is proving difficult, while another Private Guardian may have responsibility for healthcare decision-making.

Alternative Guardians are appointed to make decisions for you when your Primary Guardian is unable to do so, for example, if they are away or ill. The Public Guardian cannot be appointed a Joint Guardian or an Alternative Guardian.

The Guardianship Order made by the Guardianship Division of NCAT will spell out the Guardian’s authority (what decisions the Guardian can make on your behalf) (called ‘functions’) and the period of time the Guardian is appointed for.

Follow this link for more information about hearings before the Guardianship Division of NCAT.

5B.2: The powers and functions of guardians

A Guardian appointed under the Guardianship Act 1987 (NSW) may be appointed with ‘total’ decision-making responsibility for you (called Plenary Guardianship), or with specific decision-making responsibilities for you (called ‘Limited Guardianship’). The terms of a Guardianship Order must be the least restrictive necessary in the circumstances that give rise to the need for a Guardian. Plenary Guardianship can rarely be justified as the least restrictive alternative, and such orders are rarely, if ever, made. Instead, the Guardianship Division appoints Guardians with specific, or ‘limited,’ powers or functions where there is a need for a decision or decisions to be made. This means that the guardian can make decisions in specific areas of a person’s life.

The most common areas are:

  •  Accommodation: deciding where the person should live;
  • Health care: deciding what medical and dental health care providers the person should see; 
  • Consent to medical and dental treatment: acting as the person's substitute decision-maker about medical and dental treatment proposed for them by others; and 
  • Services: authorising others to provide personal services (such as home care) to the person (usually to assist them to live in their own home).

Once appointed, your Guardian has responsibility for decision-making for you in the areas of life specified in the Guardianship Order. These decisions are binding on you, even if you disagree with them. Your Guardian does however have to obtain your views about these decisions, and give them consideration, prior to making them.

Guardians don’t have to report to the Guardianship Division of NCAT. The Guardianship Division doesn’t supervise Guardians or review decisions that have been made by Guardians. The Guardianship Division can however give directions to a Guardian as to how they are to carry out their responsibilities in the Order appointing the Guardian.

The Guardianship Division also periodically reviews Guardianship Orders, and can be asked to review a Continuing Guardianship Order or a Temporary Guardianship Order at any time if there is a good reason for doing so. This could be because you strongly disagree with the way your Guardian is acting.

If your Guardian is the Public Guardian and you disagree with a decision that the Public Guardian has made for you, you can also ask the Public Guardian to review and give reasons for the decision. If the decision does not change, and you remain dissatisfied, you can ask the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal (NCAT) to review this decision.

Follow this link for more information about seeking review of decisions of the Public Guardian.

The Public Guardian operates a Private Guardian Support Unit. Staff from this Unit can provide free and confidential assistance to Private Guardians and others to better understand their roles, and to talk through problems. 

You can find out more about the Private Guardian Support Unit by following this link.

5B.3: Length of guardianship orders

Guardians are appointed for a set period of time. An initial Guardianship Order can usually only be made for up to one year, although the Guardianship Division of NCAT can make an initial Guardianship Order for up to three years in special circumstances. 

The Guardianship Division of NCAT must review the Initial Guardianship Order before it ends unless it decided; when it made the order, that there is no need for a review. In this case, the order will automatically finish at the end of the period set out in the order.

At the review hearing, the Guardianship Division of NCAT will decide whether or not to make the order for a further amount of time. If an initial Guardianship Order is renewed, the renewed Order may be for a period of up to three years. However, in special circumstances, a Guardianship Order can be renewed for a period of up to five years. All renewed Guardianship Orders are reviewed prior to their lapse and may be renewed for a period of up to three years, or in special circumstances, for a period of up to five years.

The Guardianship Division of NCAT may also make a Temporary Guardianship Order for a period of up to 30 days. This Order can be extended by a maximum of another period of 30 days. Only the Public Guardian can be appointed Guardian under a Temporary Guardianship Order. A Temporary Guardianship Order might be made in a crisis situation to, for example, to enable a person with disability to be immediately removed from a dangerous situation. There can then be further consideration as to whether Continuing Guardianship Order is necessary, and if so, what its terms should be, before the Temporary Guardianship Order lapses.

For more about reviews of guardianship orders by the Guardianship Tribunal, follow this link.

5B.4: The Public Guardian

The Public Guardian is a public official whose role and functions are established under the under the Guardianship Act 1987 (NSW).

The Public Guardian is part of the NSW Department of Police and Justice, and is different from the NSW Trustee and Guardian. The NSW Trustee and Guardian makes financial decisions for a person under the NSW Trustee and Guardian Act 2009.

The Public Guardian is appointed when there is no other suitable person willing or able to take on the role of your guardian. You can ask to have this appointment reviewed by the Guardianship Division of NCAT; for more about this, follow this link. If you are unhappy about a decision made by the Public Guardian, you can ask for the decision to be reviewed and if you are still not happy, you can ask the Administrative and Equal Opportunity Division of NCAT to review the decision.

For more about this review process, click here.

For information about reviews by the Administrative and Equal Opportunity Division of NCAT, follow this link.

As well as making guardianship decisions, the Public Guardian provides information to the public about guardianship through a telephone enquiry line: 1800 451 510*.

The Public Guardian also operates a Private Guardian Support Unit. This is a free and confidential service that assists Private Guardians to understand and carry out their roles.

You can find out more about the Private Guardian Support Unit by following this link.

The Public Guardian says that it will try wherever possible to make the decision that you would have made for yourself, and where that isn’t possible, to make a decision that is in your best interests. To do this, staff from the Public Guardian will need to talk to you, service professionals, your family members and friends. To understand your needs, the Public Guardian can ask that you be assessed, or may ask for your health and medical reports. The Public Guardian may also advocate for better options for you.

 *Remember, mobile phone calls to freecall numbers (numbers starting with 1800) are charged to the caller at the usual mobile rate.

The contact details for the NSW Public Guardian are:
Urgent decisions after hours: (02) 8688 2650
Toll free* outside Sydney area: 1800 451 510
TTY: 1800 882 889
Information and Support: (02) 8688 6070
Private Guardian Support Unit: (02) 8688 6060
E-mail: informationsupport@opg.nsw.gov.au
Website: http://www.lawlink.nsw.gov.au/opg

Public Guardian: Western Regional Office
Street address: Justice Precinct Offices
160 Marsden Street
PARRAMATTA NSW 2150
Postal address: Locked Bag 5116
PARRAMATTA NSW 2124
Phone: (02) 8688 2650
Fax: (02) 8688 9797
Freecall*: 1800 451 510

Public Guardian: Southern Regional Office
Street address: Level 2, Downing Centre
143-147 Liverpool Street
SYDNEY NSW 2000
Postal address: PO Box 20487
WORLD SQUARE SYDNEY 2002
Phone: (02) 9287 7660
Fax: (02) 9287 7355
Freecall*: 1800 451 428

Public Guardian: Northern Regional Office
Street address: Level 3, 4 Watt Street
GOSFORD NSW 2250
Postal address: PO Box 487
GOSFORD NSW 2250
Phone: (02) 4320 4888
Facsimile: (02) 4320 4818
Freecall*: 1800 451 694

*Remember, mobile phone calls to freecall numbers (numbers starting with 1800) are charged to the caller at the usual mobile rate.

5B.5: Enduring guardianship

If you think you might lose capacity to make decisions for yourself in the future, you can appoint an Enduring Guardian to make decisions for you if and when this happens. An Enduring Guardian can make decisions on your behalf about everything except your financial matters. This includes where you are to live, and the healthcare and personal services you are to receive.

Adults who have capacity to make their own decisions can appoint an Enduring Guardian to make decisions in the future when they can no longer make their own decisions. If you have capacity, you can appoint someone as your Enduring Guardian by completing a form and having it witnessed by a lawyer or the registrar of a Local Court. You can change your mind later and cancel (‘revoke’) the appointment of a person as your enduring guardian, so long as the law recognises you as having the legal capacity to do so when you do this.

For more information about Enduring Guardians or to download the relevant forms (including a revocation form), follow this link.

A person can appoint more than one Enduring Guardian. The appointment is not time-limited, and can only be revoked by the person making the appointment while they still have capacity. You can also appoint an Alternate Enduring Guardian who will have responsibility to make decisions for you if your primary Enduring Guardian is unable or unwilling to continue in this role (for example, if they die).

It is probably best to get a lawyer to give you advice about the process of appointing an Enduring Guardian. For more about getting legal advice, follow this link.

If you are going to appoint someone as your Enduring Guardian, it is a good idea to get a certificate from a doctor saying that you have the capacity to complete the form and to appoint an Enduring Guardian at the same time as you complete the form. You should keep this certificate with a copy of the form of appointment.

Enduring guardianship appointments are not registered and the Guardianship Division of NCAT does not supervise Enduring Guardians. However, the Guardianship Division of NCAT is responsible for dealing with disputes concerning Enduring Guardians and situations in which Enduring Guardians are no longer willing or able to fulfil this role. If anyone has concerns about the ability of an Enduring Guardian to perform their role, or about the actions or decisions of an Enduring Guardian, they can make an application to the Guardianship Division of NCAT for a review of the appointment.

The Guardianship Division of NCAT can revoke or confirm the appointment of the Enduring Guardian. It can also make a declaration that the appointment of the Enduring Guardian is now effective (because the person who made the appointment is now considered, at law, to have lost legal capacity). It can also appoint an Alternative Enduring Guardian, or if it revokes the appointment of an Enduring Guardian, it can make a Guardianship Order appointing a Private or the Public Guardian as Guardian.

The Supreme Court of NSW also has the power to review the appointment of and Enduring Guardian and may make an orders in relation to the appointment it thinks are appropriate in relation to the appointment. This includes an Order revoking or confirming the appointment.

To download the form click here.

Enduring guardianship is not the same as an ‘enduring power of attorney’. If you give another person your enduring power of attorney, this means that you are giving that person power to manage your finances if you lose capacity, but not to make other decisions on your behalf. If you appoint someone as your Enduring Guardian, that person cannot make decisions on your behalf about financial matters, but can make other decisions.

Follow this link for more information about enduring guardians or to download standard forms.

5B.6: Review of guardianship orders

    The Guardianship Division of NCAT has the power and responsibility to periodically review Guardianship Orders, unless the Order is specified to be one that will terminate upon its lapse and that a review is not necessary. Guardianship Orders are reviewed prior to their lapse, or can be reviewed at any other time, if the Tribunal believes it is necessary to do so, or if a person who is directly affected by the Order, or who has a genuine concern for the welfare of the person subject to the Order, requests a review, and there are good reasons for doing so.

    The matters considered during the course of a review of a Guardianship Order include whether the person continues to have a decision-making disability and whether there continues to be a need for a Guardian. If the Tribunal considers there is a continuing need for a Guardian, it will consider who that guardian should be, what functions the Guardian should have, and how long a further Guardianship Order should last.

    Follow this link for more information about hearings of the Guardianship Division of NCAT.

    If you are unhappy about a decision of the Guardianship Division of NCAT, you can ask the Tribunal to review its decision if you are a person who is directly affected by the Order or if you are a person with a genuine concern for the welfare of the person under Guardianship.

    You can also seek review of a decision of the Guardianship Division of NCAT by an Appeal Panel of NCAT or by the Supreme Court of NSW if you were a party in the hearing before the Guardianship Division. Generally speaking, you are only a party to a hearing if you are directly affected by the outcome of the hearing. Sometimes you are a party to a guardianship hearing because the law says you are automatically (for example, if the proceeding is about you). In other cases you may need to apply to the Tribunal to be made a party to the proceeding.

    You may seek review of, or appeal, a decision of the Guardianship Division of NCAT if you disagree that a Guardian has been appointed (or not appointed), or with who the appointed Guardian is, or with the functions that the appointed Guardian has been given. There are some costs associated with both of these processes.

    If you appeal to the Appeal Panel of NCAT or to the Supreme Court against a decision made by the Guardianship Division, the appeal must be made within 28 days of getting a copy of the guardianship order and the reasons for the decision from the Guardianship Division.

    If you are directly affected by a decision made by the Public Guardian under a Guardianship Order and you want to challenge that decision, you can ask the Public Guardian to conduct an internal review and provide reasons for its decision. You must do so within 28 days of the decision being made. Requests must be in writing. The Public Guardian must complete this review and provide you with the outcome within 21 days of your request.

    If you remain dissatisfied with the Public Guardian’s decision, or if the Public Guardian has not reviewed its decision within 21 days, you can apply to the Administrative and Equal Opportunity Division of NCAT for an external review of the decision. The Tribunal could decide to confirm the decision, vary the decision, or make a different decision. You must apply to the Tribunal for an external review within 28 days of receiving the outcome of the Public Guardian’s internal review.

    For more about the range of decisions that the Administrative and Equal Opportunity Division of NCAT can review and how to apply for a review, follow this link.

     DISCLAIMER

    • The legal and other information contained in this Section is up to date to 30 January 2015
    • This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW) - unless it states otherwise.
    • MHCC does not guarantee the accuracy nor is responsible for the content or the currency of the content of external documents and websites linked to this Manual.