MHCC Mental Health Rights Manual

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Chapter 5 Section D: The Guardianship Division of the NSW Civil and Administrative Tribunal

In this section of the Manual, you can find out more about:

5D.1: Members of the Guardianship Division of the NSW Civil and Administrative Tribunal

There are three types of members of the Guardianship Division of the NSW Civil and Administrative Tribunal:

  • legal members;
  • professional members; and
  • community members.

Legal members must be legal practitioners and have been practising law for at least seven years.

Professional members must have experience assessing or treating adults with disability (for example, doctors, psychologists, or social workers).

Community members must have experience with adults with disability.

There are a number of people appointed as members of the Guardianship Division of NCAT in each of these categories.

Panels made up of three Tribunal members carry out most Guardianship Division hearings: one legal member, one professional member and one community member.

A three-member panel will deal with any applications for Guardianship and/or Financial Management Orders.

In some limited circumstances, a Guardianship Division hearing may be run by a single Tribunal Member, or by two Tribunal members from different categories of members. Mostly, single members will conduct reviews of continuing guardianship and financial management orders.  Click here to read about hearings of the Guardianship Division of NCAT.

5D.2: Hearings of the Guardianship Divion of NCAT

The Guardianship Division of NCAT has its office in Balmain, in Sydney, and most Guardianship Division hearings are held at this office. However, the Tribunal also holds hearings in other places in Sydney and in regional and rural NSW.

The Guardianship Division of NCAT deals with applications for guardianship and financial management orders (including reviews) as well as applications to review or cancel enduring guardianship and powers of attorney. It is responsible, in certain circumstances, for giving (or refusing) consent to minor and major medical treatment. The Guardianship Division of NCAT is also responsible for giving (or refusing) consent to special medical treatments (which include those treatments that would render a person infertile and those which are still at a very early stage of development) and to conduct of clinical trials that involve persons with disability.

Using an application for guardianship as an example, the hearing process is usually started by someone (‘the applicant’) applying to the Guardianship Division of NCAT to be appointed as another person’s guardian.

Once the Guardianship Division of NCAT gets the application, it is assessed. Not all applications go to a formal hearing of the Guardianship Division. A Tribunal staff member may contact the applicant to talk about the application and explore alternative, including more informal ways of resolving the situation that has led to the application. In a lot of cases, the applicant withdraws the application after this discussion.

The Tribunal’s staff members will also collect information about the application and prepare the application for a hearing by the Tribunal. If the application is about you, you can talk about the application with staff at the Tribunal’s office and ask about the Tribunal’s processes. (Family members and friends can also contact the Tribunal staff for information).

The Tribunal can be contacted at:

Phone: (02) 9555 8500
Fax: (02) 9555 9049
Freecall*: 1800 463 928
E-mail: gt@gt.nsw.gov.au
Website: http://www.ncat.nsw.gov.au/ncat/guardianship.html
Address: Level 3, 2a Rowntree Street,
BALMAIN NSW 2041

The Tribunal will send all the individuals who have an interest in the application  a letter (called the 'Notice of Hearing') that sets out all the details about when and where the hearing of the application will take place. If the application goes to a hearing, the Tribunal will decide at the end of the hearing whether or not to appoint a guardian or financial manager.

The Tribunal holds its hearings as informally as possible. The hearings are not like courts where one party is 'against' another party. Instead, the focus is on deciding whether a person needs a guardian or financial manager. Hearings are run with that question in mind, rather than deciding whether anyone is 'right' or 'wrong'.

Most importantly, the purpose of the hearing is not to put you 'on trial' or to show that you have done something wrong or are not doing something properly. The Guardianship Division emphasises that, although the hearing is likely to focus on you, it is not being held to criticise or punish you. Rather it is about looking at whether you need help and/or support to make decisions in particular areas of your life so that your interests are protected.

If an application to the Tribunal is about you, you should go to the hearing in person, if possible. However, you can take part in the hearing by phone if you can't get to the hearing. If you are not able to be part of the hearing, the Guardianship Division will make every effort to get your views before the hearing. If you cannot be there (in person or by phone) you are strongly advised to write to the Tribunal before the hearing setting out your views. You can ask someone to help you do this, if you, for some reason, you cannot do it yourself.

Postal address: Guardianship Division of NCAT
Locked Bag 9
BALMAIN NSW 2041
E-mail: gt@gt.nsw.gov.au

Other people who know you and say they have an interest in your wellbeing may have relevant views or information to give to the Tribunal, and are encouraged by the Tribunal to go to the hearing to give these views and information. This is one reason why it is important that you, as the person most affected, should put your views to the Tribunal in some way. Having Tribunal orders varied later or challenging a decision of the Tribunal later is usually much harder than changing the Tribunal's approach at the initial hearing.

You have the right to ask questions at the hearing and to bring documents to show the Tribunal. You may also ask others, such as family, friends or professionals, to come to the hearing to speak about the application. You can also have a lawyer represent you at the hearing as long as you have permission (called 'leave') from the Tribunal.

You should let Tribunal staff know in advance if you need an interpreter at the hearing to help you or your family members. The staff member will then arrange for an interpreter to be at the hearing at no cost to you. This includes an Auslan interpreter who can interpret for you if you are deaf.

Usually, everyone at the hearing will be told the Tribunal’s decision at the end of the hearing. Copies of the written Order and the Reasons for the Decision will be sent to all the parties to the matter including you, if you are the person the Order is about, and the applicant for the Order.

To find out more about Guardianship Division of NCAT hearings, click here to go to the Tribunal's website.

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

5D.2.1: Being represented at Guardianship Division of NCAT hearings

Parties at hearings conducted by the Guardianship Division of NCAT are not allowed to have a lawyer or other advocate represent them unless they obtain the Tribunal’s permission. The Tribunal must be asked for permission to have a lawyer or advocate represent you in a hearing (this is called ‘leave’). Most hearings are held without the people involved having legal representation.

In some circumstances, where the Tribunal is concerned that you may have difficulty in putting your views, the Tribunal may appoint a ‘Guardian-ad-Litem’ to argue your best interests in the course of the hearing. In doing so, the Guardian-ad-Litem will attempt to obtain your views about the issues being considered by the Tribunal. The Guardian-ad-Litem may be a lawyer or another professional with specific expertise relevant to this role.

The Law Society of NSW can give you the names of private lawyers with experience in guardianship matters.

Legal aid may be available in certain cases and there are also specialist free legal services whose solicitors are regularly involved with guardianship hearings and may be able to help, for example, the Older Persons’ Legal Service and the Intellectual Disability Rights Service. For more about legal services, click here. To find out more about advocacy services, click here.

For more about the Older Persons’ Legal Service click here.

For more about the Intellectual Disability Rights Service, click here.

To find out more about representation at Guardianship Tribunal hearings, click here to go the website to download the brochure, 'Legal representation at hearings'.

5D.3: Review of guardianship orders

The Guardianship Division of NCAT automatically reviews Continuing Guardianship Orders prior to the time that they are set to lapse.

The Tribunal may also review the order at any time if it gets a request for a review from the person under guardianship, the guardian, or any other person who has a genuine concern for the welfare of the person under guardianship and they are able to show that there are good reasons for conducting the review. For example, one reason might be that you believe that the appointed Guardian is not acting in your best interests. 

At a review, the Tribunal may decide to:
  • continue the order appointing the guardian;
  • change the tasks that the guardian has under the order;
  • change who will be the guardian; or
  • revoke (cancel) the order if the person is now able to make their own decisions or if a guardian is no longer needed to make decisions for the person.

The Guardianship Division will also automatically review a Temporary Guardianship Order prior to its lapse, if it decided that it should do so when it made the Order. Upon review of a Temporary Guardianship Order, the Tribunal may make one further Temporary Guardianship Order, or make a Continuing Guardianship Order, or decide that a Guardianship Order is no longer necessary. A person subject to a Temporary Guardianship Order, the Public Guardian, and any other person with a genuine concern for the welfare of the person under guardianship can request a review of a Temporary Guardianship Order prior to its lapse if there are good reasons for doing so.

5D.4: Challenging decisions of the Guardianship Division of NCAT

If you are unhappy with a decision of the Guardianship Division of NCAT and you want the decision to be overturned, then you can apply to the Supreme Court or the Appeal Panel of the NSW Civil and Administrative Tribunal. This is called an ‘appeal from the order’.

You are strongly advised to seek legal advice before you begin an appeal. Appeals are only allowed on certain legal grounds. If you lose an appeal in the Supreme Court, you are likely to have to pay the legal costs of the process. Sometimes NCAT can also order you to pay these costs.

You must appeal within 28 days of receiving the written reasons for decision. An extension may be granted in some circumstances.

For more about the range of guardianship related decisions that the NSW Civil and 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 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.