In this overview, there is important information about some of the terms used in this chapter of the Manual. It is useful to read this section before you read other sections of this chapter. It may also be useful to refer back to it when you are reading about different types of substitute decision-making later in this chapter.
This overview includes pages on the following topics:
Capacity is a term that is used to describe your ability under the law, to make your own decisions, undertake certain actions, fulfil particular roles, and enter into certain relationships with others. The law may recognise your capacity to make some decisions in some instances, but not others. This may depend on the type of decision, its complexity, and its consequences for you and for others. In this way, legal capacity is usually determined on a decision-specific basis. You may be viewed as legally capable of making day-to-day decisions about what you will wear, what you will eat and how you will spend small amounts of money, but viewed as legally incapable of entering into a contract for the provision of a service (such as housing), consenting to surgery, or managing large sums of money or property.
A person may be viewed as legally incapable of making some decisions for a short time only because they are experiencing an active and temporary phase of mental illness which results in a serious cognitive impairmentThe loss or limitation of physical, mental or sensory function on a long-term or permanent basis. For people with mental health conditions this would also include a loss of function on an episodic basis, which in many cases leads to long term or permanent impairment and subsequent disablement. More. Alternatively, a person could be viewed as permanently legally incapable of making some decisions because of a continuing or progressive cognitive impairmentThe loss or limitation of physical, mental or sensory function on a long-term or permanent basis. For people with mental health conditions this would also include a loss of function on an episodic basis, which in many cases leads to long term or permanent impairment and subsequent disablement. More, such as dementia.
The NSW Department of Justice has produced a small guidebook to help people understand and assess capacityCapacity refers to a person’s ability to make his/her own decisions and give informed consent. These may be small decisions, such as what to do each day, or bigger decisions like where to live or whether to have a medical procedure. A person may lack capacity in some areas, but still be able to make other decisions. More (called The Capacity Toolkit). You can get free copies of The Capacity Toolkit from the Department’s Diversity Services.
Follow this link to download the Capacity Toolkit.
The law requires that a person is capable of understanding the nature and consequences of their actions as a precondition (requirement) to making certain decisions (such as a decision to consent to, or refuse, medical treatment), holding a particular status (such as public office), or entering into certain relationships with others (such as marriage). This requirement is referred to as ‘legal capacityCapacity refers to a person’s ability to make his/her own decisions and give informed consent. These may be small decisions, such as what to do each day, or bigger decisions like where to live or whether to have a medical procedure. A person may lack capacity in some areas, but still be able to make other decisions. More.’ The law may view a person as not having legal capacityCapacity refers to a person’s ability to make his/her own decisions and give informed consent. These may be small decisions, such as what to do each day, or bigger decisions like where to live or whether to have a medical procedure. A person may lack capacity in some areas, but still be able to make other decisions. More because of a cognitive impairment that is associated with a long-term disabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More, such as mental illness (when long-term impairmentThe loss or limitation of physical, mental or sensory function on a long-term or permanent basis. For people with mental health conditions this would also include a loss of function on an episodic basis, which in many cases leads to long term or permanent impairment and subsequent disablement. More has occurred), intellectual disability or acquired brain injury, or short-term injury or illness, such as a stroke or acute mental illness (that is episodic).
Under limited circumstances, the law may give another person(s) or certain organisations the legal power to make a decision on another person’s behalf. This is called “substitute decision-makingSubstitute decision-making refers to a situation where an adult who has legal capacity to make decisions for another adult who does not have legal capacity to make these decisions for themselves. The substituted decision has legal effect as if it were a decision made by the person. A substitute decision-maker may be entitled to make some decisions on behalf of another person without being given specific authority to do so under a Guardianship or Financial Management Order, or under Enduring Guardianship or Power of Attorney. More”. A good example of this is when parents make decisions on behalf of their very young children. For adults, substitute decision-makingSubstitute decision-making refers to a situation where an adult who has legal capacity to make decisions for another adult who does not have legal capacity to make these decisions for themselves. The substituted decision has legal effect as if it were a decision made by the person. A substitute decision-maker may be entitled to make some decisions on behalf of another person without being given specific authority to do so under a Guardianship or Financial Management Order, or under Enduring Guardianship or Power of Attorney. More should be used as a last resort.
Most of the time, if you are an adult living with mental illness or intellectual disability who has a cognitive impairment that renders you unable, under the law, to make certain decisions, and you have a family member, friend or carer that helps you out with decision-making, this person may be informally recognised as being able to make decisions for you. For example, they may give you advice and support you make difficult decisions in relation to day to day health and dental care. If these decisions are about your health and dental care, they may also be recognised as the ‘person responsible’ under the law for making such decisions.
These people may guide the person so that they can understand the nature of the decision, the options and consequences, and may support the person as they weigh up options for themselves. In these situations, there is no need for a legally appointed GuardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More, or ‘substitute decision-maker’. This process is called ‘supported decision-making’ rather than substitute decision-makingSubstitute decision-making refers to a situation where an adult who has legal capacity to make decisions for another adult who does not have legal capacity to make these decisions for themselves. The substituted decision has legal effect as if it were a decision made by the person. A substitute decision-maker may be entitled to make some decisions on behalf of another person without being given specific authority to do so under a Guardianship or Financial Management Order, or under Enduring Guardianship or Power of Attorney. More. Supported decision-making is an accepted international human rights standard under the Convention on the Rights of Persons with Disabilities.
However, in some circumstances, the law says you will need someone to be legally appointed to make decisions on your behalf. For decisions about your money or property, this person or organisation is called a Financial Manager or an Attorney. For decisions other than decisions about your money or assets, this person or organisation is called a GuardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More.
A Guardian or Financial Manager may need to be appointed because of:
Your GuardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More and your Financial ManagerA Financial Manager can make decisions about the ‘estate’ of a person who does not have legal capacity to make these decisions for themselves. The ‘estate’ of a person includes their financial, property and legal affairs. A Financial Manager can be a person, officer (e.g. NSW Trustee and Guardian), or organisation (e.g. a trustee company) appointed by a Tribunal (e.g. the Guardianship Division of NSW Civil and Administrative Tribunal, or the Mental Health Review Tribunal) or the Supreme Court of NSW. More may be two different people (or organisations) or they may be the same person.
‘Guardianship’ is a legal concept that only applies to certain persons over the age of 16 years. In NSW, a ‘Guardian’ is someone who is appointed by the GuardianshipGuardianship is the legal relationship that is created when someone is given the legal authority to make certain decisions on another person’s behalf because that the person does not have the legal capacity to make these decisions for themselves. In NSW, Guardians are appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal to make some medical and lifestyle decisions for a person. A Guardian does not have authority to make financial decisions on a person’s behalf. More Division of the NSW Civil and Administrative Tribunal (NCAT) under the GuardianshipGuardianship is the legal relationship that is created when someone is given the legal authority to make certain decisions on another person’s behalf because that the person does not have the legal capacity to make these decisions for themselves. In NSW, Guardians are appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal to make some medical and lifestyle decisions for a person. A Guardian does not have authority to make financial decisions on a person’s behalf. More Act 1987 (NSW), to make decisions on behalf of a person who is viewed as legally incapable of making certain healthcare and lifestyle decisions for themselves. A GuardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More may be ‘Private’ or ‘Public’. A Private GuardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More may be a family member or friend of a person with a decision-making disabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More. The Public GuardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More is a NSW Government agency that can be appointed by the GuardianshipGuardianship is the legal relationship that is created when someone is given the legal authority to make certain decisions on another person’s behalf because that the person does not have the legal capacity to make these decisions for themselves. In NSW, Guardians are appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal to make some medical and lifestyle decisions for a person. A Guardian does not have authority to make financial decisions on a person’s behalf. More Division of NCAT or the Supreme Court, and they are often the decision maker of last resort.
You can also appoint an ‘Enduring Guardian’ under the Guardianship Act 1987 (NSW) while you still have legal capacityCapacity refers to a person’s ability to make his/her own decisions and give informed consent. These may be small decisions, such as what to do each day, or bigger decisions like where to live or whether to have a medical procedure. A person may lack capacity in some areas, but still be able to make other decisions. More. This might be a relative or friend. An Enduring Guardian can make decisions for you when you become legally incapable of making decisions for yourself (for example an older person may appoint a partner, son or daughter as Enduring Guardian to make decisions for them if they later develop dementia). In some circumstances, the Guardianship Division of NCAT can also appoint an Enduring Guardian if the one you chose is no longer capable of acting for you.
For more about the GuardianshipGuardianship is the legal relationship that is created when someone is given the legal authority to make certain decisions on another person’s behalf because that the person does not have the legal capacity to make these decisions for themselves. In NSW, Guardians are appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal to make some medical and lifestyle decisions for a person. A Guardian does not have authority to make financial decisions on a person’s behalf. More Division of NCAT, follow this link.
For more about guardianshipGuardianship is the legal relationship that is created when someone is given the legal authority to make certain decisions on another person’s behalf because that the person does not have the legal capacity to make these decisions for themselves. In NSW, Guardians are appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal to make some medical and lifestyle decisions for a person. A Guardian does not have authority to make financial decisions on a person’s behalf. More, follow this link.
In NSW, a GuardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More is not a person or organisation responsible for making financial and property related decisions on behalf of an adult who is viewed under the law as being incapable of making these decisions personally. This person is called a Financial Manager or an Attorney.
The relationship between a child and their parent(s) or other persons or organisations responsible for their care and support is one of parental responsibility, not of guardianshipGuardianship is the legal relationship that is created when someone is given the legal authority to make certain decisions on another person’s behalf because that the person does not have the legal capacity to make these decisions for themselves. In NSW, Guardians are appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal to make some medical and lifestyle decisions for a person. A Guardian does not have authority to make financial decisions on a person’s behalf. More. Despite its name, the Children’s Guardian in NSW does not have parental responsibility for children.
Decisions about your financial matters, which includes decisions about spending or saving your money, your property, and dealing with your other assets, are separate to guardianshipGuardianship is the legal relationship that is created when someone is given the legal authority to make certain decisions on another person’s behalf because that the person does not have the legal capacity to make these decisions for themselves. In NSW, Guardians are appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal to make some medical and lifestyle decisions for a person. A Guardian does not have authority to make financial decisions on a person’s behalf. More. This can be confusing as one of the main organisations involved in financial management for adults who are viewed under the law as being incapable of managing their financial affairs is the NSW Trustee and GuardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More. The NSW Trustee and Guardian is not a guardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More, despite its name.
An adult can appoint a person to manage their financial affairs while they are legally capable. This person is called an Attorney and the powers they exercise on your behalf are called Powers of Attorney. While you still have legal capacity you can also appoint an Attorney to act for you when you become legally incapable of making these decisions for yourself. This is called an Enduring Power of AttorneyAn Enduring Power of Attorney is made by a person who has legal capacity to do so at the time. It comes into effect if that person loses capacity to make financial and legal decisions in the future. The person appointed to make these decisions is called the ‘Attorney’. More.
If a person has not appointed an Attorney under an Enduring Power of AttorneyAn Enduring Power of Attorney is made by a person who has legal capacity to do so at the time. It comes into effect if that person loses capacity to make financial and legal decisions in the future. The person appointed to make these decisions is called the ‘Attorney’. More, or if they have a cognitive impairment which means that at law they are not capable of doing so, and they require someone to make decisions about finances and property for them, a Financial Manager can be appointed under a Financial Management OrderIf a person with a mental illness or mental disorder is unable to manage their own financial affairs the NSW Trustee and Guardian Act 2009 allows for a Financial Management Order (FMO) to be made. The Mental Health Review Tribunal is one of the bodies with the power to make FMOs for management of part of or the whole of an estate. FMOs can also be made by the Supreme Court and the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT). When the Mental Health Review Tribunal makes a FMO, it appoints the NSW Trustee to manage the financial affairs of the person. The NSW Trustee manages the property, business and financial interests in close consultation with the person, and if appropriate, his or her nominated friend, relative, guardian or designated carer or principal care provider. The actual day to day management of the person’s affairs is undertaken by staff who work for the NSW Trustee. More.
A Financial Management OrderIf a person with a mental illness or mental disorder is unable to manage their own financial affairs the NSW Trustee and Guardian Act 2009 allows for a Financial Management Order (FMO) to be made. The Mental Health Review Tribunal is one of the bodies with the power to make FMOs for management of part of or the whole of an estate. FMOs can also be made by the Supreme Court and the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT). When the Mental Health Review Tribunal makes a FMO, it appoints the NSW Trustee to manage the financial affairs of the person. The NSW Trustee manages the property, business and financial interests in close consultation with the person, and if appropriate, his or her nominated friend, relative, guardian or designated carer or principal care provider. The actual day to day management of the person’s affairs is undertaken by staff who work for the NSW Trustee. More can be made by:
Under the Guardianship Act 1989 (NSW), a Financial Manager can be called a Private Financial ManagerA Financial Manager can make decisions about the ‘estate’ of a person who does not have legal capacity to make these decisions for themselves. The ‘estate’ of a person includes their financial, property and legal affairs. A Financial Manager can be a person, officer (e.g. NSW Trustee and Guardian), or organisation (e.g. a trustee company) appointed by a Tribunal (e.g. the Guardianship Division of NSW Civil and Administrative Tribunal, or the Mental Health Review Tribunal) or the Supreme Court of NSW. More, which is either another person, such as a family member. A Private Financial Manager is subject to the supervision of the NSW Trustee and GuardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More. Alternatively, the NSW Trustee and GuardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More can be appointed.
For more about financial management, click here.
There are several organisations that deal with substitute decision-making in NSW, including:
The GuardianshipGuardianship is the legal relationship that is created when someone is given the legal authority to make certain decisions on another person’s behalf because that the person does not have the legal capacity to make these decisions for themselves. In NSW, Guardians are appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal to make some medical and lifestyle decisions for a person. A Guardian does not have authority to make financial decisions on a person’s behalf. More Division of NCAT makes GuardianshipGuardianship is the legal relationship that is created when someone is given the legal authority to make certain decisions on another person’s behalf because that the person does not have the legal capacity to make these decisions for themselves. In NSW, Guardians are appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal to make some medical and lifestyle decisions for a person. A Guardian does not have authority to make financial decisions on a person’s behalf. More and Financial Management Orders and also sometimes decides whether or not someone can have an operation or a medical or dental procedure. For more about the GuardianshipGuardianship is the legal relationship that is created when someone is given the legal authority to make certain decisions on another person’s behalf because that the person does not have the legal capacity to make these decisions for themselves. In NSW, Guardians are appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal to make some medical and lifestyle decisions for a person. A Guardian does not have authority to make financial decisions on a person’s behalf. More Division of NCAT, follow this link.
The GuardianshipGuardianship is the legal relationship that is created when someone is given the legal authority to make certain decisions on another person’s behalf because that the person does not have the legal capacity to make these decisions for themselves. In NSW, Guardians are appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal to make some medical and lifestyle decisions for a person. A Guardian does not have authority to make financial decisions on a person’s behalf. More Division of NCAT can appoint the Public GuardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More as your GuardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More if you have a decision-making disabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More (such as mental illness). For more about the Public GuardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More, follow this link. Friends, relatives and carers can also be appointed as private Guardians; for more about this, follow this link.
The Guardianship Division of NCAT can appoint the NSW Trustee and Guardian as your financial managerA Financial Manager can make decisions about the ‘estate’ of a person who does not have legal capacity to make these decisions for themselves. The ‘estate’ of a person includes their financial, property and legal affairs. A Financial Manager can be a person, officer (e.g. NSW Trustee and Guardian), or organisation (e.g. a trustee company) appointed by a Tribunal (e.g. the Guardianship Division of NSW Civil and Administrative Tribunal, or the Mental Health Review Tribunal) or the Supreme Court of NSW. More if you have a disabilityDisability is defined in the Disability Discrimination Act 1992 (Cth) as total or partial loss of the person’s bodily or mental functions; total or partial loss of a part of the body; the presence in the body of organisms causing disease or illness, capable of causing disease or illness; the malfunction, malformation or disfigurement of a part of the person’s body; a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. More (such as mental illness). The NSW Trustee and GuardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More also has other functions, which include managing wills and Powers of Attorney for members of the general community who are not subject to Financial Management Orders. For more about the NSW Trustee and GuardianIn NSW, guardians can make some medical and lifestyle decisions for a person who does not have capacity to make the decision themselves. These decisions may include decisions such as where the person lives; the services they should receive, and what medical and dental treatment they receive. A Guardian does not have authority to make financial decisions on a person’s behalf. A guardian can be a person or officer (e.g. Public Guardian) appointed by the Guardianship Division of NSW Civil and Administrative Tribunal. A guardian can be a relative or kinship carer, a family friend or is a carer who has an established and positive relationship with the person. There is no legal definition of who may be a suitable person. More, follow this link.
The Mental Health Review Tribunal can also make financial management orders if you are an involuntary patient under the Mental Health Act 2007 (NSW).
‘Persons responsible’ can also, in certain circumstances, consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More to medical and dental procedures on your behalf if you lack capacityCapacity refers to a person’s ability to make his/her own decisions and give informed consent. These may be small decisions, such as what to do each day, or bigger decisions like where to live or whether to have a medical procedure. A person may lack capacity in some areas, but still be able to make other decisions. More to consentAgreeing to medical treatment is called ‘consent’. A provider of health care must take reasonable steps to make sure that a patient is able to give informed consent to treatment. This means you must be able to understand key aspects of any treatment suggested before asked whether you agree to the treatment. Key aspects include, for example, what the treatment involves and the potential risks of that treatment. You agreeing to the treatment once you have been given the information and state that you understand what you have been told, is called ‘informed consent’ to treatment. Informed consent by a person who has capacity has validity. More. For more about this, follow this link.
If you appoint an Enduring GuardianThe Guardianship Act 1987 (NSW) makes it possible for a person with legal capacity to appoint an Enduring Guardian. An Enduring Guardian can make decisions for you in areas such as accommodation, health and services, if you lose the capacity to make your own decisions at some time in the future. An Enduring Guardian cannot make decisions about your money or assets. More at a time when you have capacityCapacity refers to a person’s ability to make his/her own decisions and give informed consent. These may be small decisions, such as what to do each day, or bigger decisions like where to live or whether to have a medical procedure. A person may lack capacity in some areas, but still be able to make other decisions. More , that Enduring GuardianThe Guardianship Act 1987 (NSW) makes it possible for a person with legal capacity to appoint an Enduring Guardian. An Enduring Guardian can make decisions for you in areas such as accommodation, health and services, if you lose the capacity to make your own decisions at some time in the future. An Enduring Guardian cannot make decisions about your money or assets. More has very similar powers to Guardians appointed by the GuardianshipGuardianship is the legal relationship that is created when someone is given the legal authority to make certain decisions on another person’s behalf because that the person does not have the legal capacity to make these decisions for themselves. In NSW, Guardians are appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal to make some medical and lifestyle decisions for a person. A Guardian does not have authority to make financial decisions on a person’s behalf. More Division of NCAT to make health and lifestyle decisions for you after you lose capacityCapacity refers to a person’s ability to make his/her own decisions and give informed consent. These may be small decisions, such as what to do each day, or bigger decisions like where to live or whether to have a medical procedure. A person may lack capacity in some areas, but still be able to make other decisions. More. For more about enduring guardianshipGuardianship is the legal relationship that is created when someone is given the legal authority to make certain decisions on another person’s behalf because that the person does not have the legal capacity to make these decisions for themselves. In NSW, Guardians are appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal to make some medical and lifestyle decisions for a person. A Guardian does not have authority to make financial decisions on a person’s behalf. More, follow this link.
Similarly, if you grant someone your Enduring Power of AttorneyAn Enduring Power of Attorney is made by a person who has legal capacity to do so at the time. It comes into effect if that person loses capacity to make financial and legal decisions in the future. The person appointed to make these decisions is called the ‘Attorney’. More when you have capacityCapacity refers to a person’s ability to make his/her own decisions and give informed consent. These may be small decisions, such as what to do each day, or bigger decisions like where to live or whether to have a medical procedure. A person may lack capacity in some areas, but still be able to make other decisions. More to do this, that person can make substitute financial decisions on your behalf when you lose capacityCapacity refers to a person’s ability to make his/her own decisions and give informed consent. These may be small decisions, such as what to do each day, or bigger decisions like where to live or whether to have a medical procedure. A person may lack capacity in some areas, but still be able to make other decisions. More in the future. For more about enduring powers of attorney, follow this link.
Updated March 25, 2020
