MHCC Mental Health Rights Manual

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Part 5 Section B: Guardianship

This section is about guardianship. It has information on:

5B.1: Who can be appointed as guardians

Anyone over 18 years of age with capacity can be appointed as a guardian. The Guardianship Tribunal can appoint a single guardian, joint guardians and alternative guardians. The guardian must be willing and able to carry out the duties of a guardian and must be considered suitable for appointment by the Guardianship Tribunal. 

If it decides that you need a guardian, the Guardianship Tribunal can appoint a family member or friend as your guardian (called a 'private guardian'), or the Public Guardian if there is no-one else suitable.

The guardianship order made by the Guardianship Tribunal will spell out the guardian's authority (what decisions the guardian can make on your behalf) and how long they are appointed your guardian for.

Click here for more information about hearings before the Guardianship Tribunal .

Enduring guardians can be appointed by an adult with capacity. Click here for information about enduring guardians.

5B.2: The powers and functions of guardians

In most cases, guardians are appointed with specific powers or functions. 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).

Private Guardians and enduring guardians don't have to report to the Guardianship Tribunal. The Tribunal doesn't supervise guardians or review decisions that have been made by guardians.

If you have a guardian, it is most likely that the guardianship orders say your guardian, in exercising their decision-making powers, should involve you in decision-making by:

  • taking all reasonable steps to help you understand what your guardian is taking into account when making decisions for you;
  • getting your views and taking them into account when they are making significant decisions on your behalf.

Your guardian should always give you information about the decision that they are going to make in language that you can understand. The guardian has to take into account your views, but there is no legal obligation on the guardian to do what you want.

If you have concerns about the actions or decisions of a guardian, you can apply to the Guardianship Tribunal to have the appointment reviewed.

5B.3: Length of guardianship orders

Guardians appointed by the Guardianship Tribunal are appointed for a set period of time. Initial orders can only be made for up to one year at a time. In the case of an order that is renewed the period must not exceed three years from the date when it was renewed.

The Guardianship Tribunal must review the 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 Tribunal will decide whether or not to make the order for a further amount of time.

In certain circumstances, the Tribunal can make an initial order for up to three years and renew a guardianship order for up to five years from the date of renewal.  Such longer orders can only be made if the person concerned has permanent disabilities, it is unlikely they will regain the capacity to make their own decisions and there is a need for a longer guardianship order.

For more about reviews of guardianship orders by the Guardianship Tribunal, click here.

Enduring Guardianship appointments do not take effect unless the person loses capacity. Once this has happened, the appointment is long-term and not time limited.

5B.4: The public guardian

The Public Guardian is a public official appointed by the Guardianship Tribunal or the Supreme Court under the Guardianship Act 1987 (NSW).

The Public Guardian is part of the NSW Department of Justice and Attorney General, 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 (NSW).

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 Tribunal; for more about this, click here .

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 Decisions Tribunal to review the decision. For more about this review process, click here. For information about reviews by the Administrative Decisions Tribunal, click here.

As well as making guardianship decisions, the Public Guardian provides information to the public about guardianship. The Public Guardian also operates the Public Guardian Support Unit, which provides information and support to other guardians in NSW. Both services can be contacted through a telephone enquiry line: 1800 451 510 or by email at: informationsupport@opg.nsw.gov.au
or write to the Private Guardian Support Unit Locked Bag 5116, Parramatta NSW 2124

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

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.

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 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.

Adults who have capacity to make their own decisions can appoint an enduring guardian to make decisions, if in the future 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 you have capacity when you do this.

For more information about enduring guardians or to download the relevant forms (including a revocation form), click here.

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. If the person has lost capacity only the Guardianship Tribunal can revoke the appointment.

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, click here.

If you are going to appointment 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 appoint an enduring guardian at the same time as you complete the form. You should keep this certificate with a copy of the form.

Enduring guardianship appointments are not registered and the Guardianship Tribunal does not supervise enduring guardians. If anyone has concerns about the actions or decisions of an enduring guardian they can make an application to the Guardianship Tribunal for a review of the appointment.

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.

Click here for more about enduring guardians or to download standard forms.

5B.6: Review of guardianship orders

  • The Guardianship Tribunal has the power to review various aspects of guardianship;
  • Whether or not to make a new guardianship order or extend an existing guardianship order before it runs out;
  • The appointment of a guardian, including the Public Guardian or an enduring guardian.

Click here for more information about hearings of the Guardianship Tribunal.

If you are unhappy with the appointment of the Public Guardian and want to have the appointment reconsidered, or you want to help a person under guardianship to do this, you can ask for a review by the Guardianship Tribunal, appeal to the Administrative Decisions Tribunal or to the Supreme Court. There are some costs associated with both of these processes.

If you appeal to the Administrative Decisions Tribunal, the appeal must be made within 30 days of getting a copy of the guardianship order and the reasons for the decision from the Guardianship Tribunal. The Administrative Decisions Tribunal also has power to review decisions made by the Public Guardian.

For more about the range of decisions that the Administrative Decisions Tribunal can review and how to apply for a review, click here.

 

Disclaimer

  • The legal and other information contained in this Section is up to date to 6 February 2011
  • This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW).
  • 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.