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Chapter 5 Section B: Guardianship

This section is about guardianship. It has information about:

5B.1: When will a Guardian be appointed?

The Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) may appoint a guardian if they are satisfied someone is totally or partially incapable of managing themselves because of a disability. This disability may include:

  • an intellectual, physical, psychological or sensory disability
  • advanced age
  • mentally illness within the meaning of the Mental Health Act 2007 (NSW); or
  • any other disability.

The Guardianship Division of NCAT will consider whether the person is restricted in one or more major life activities to the extent that he or she requires supervision or cannot function by themselves in the community without special services.

The decision to appoint a Guardian is a significant decision and not made lightly. In making the decision, The Tribunal will consider:

  • the views of the affected person
  • the views their spouse (if their relationship with their spouse is close and continuing)
  • the views of their carers
  • the importance of preserving the person’s existing family relationships
  • the importance of preserving the person’s particular cultural and linguistic environments; and
  • the practicability of services being provided to the person without a Guardianship Order.

5B.2: Who can be appointed as guardians

The requirements for appointment as a ‘Private Guardian’ are set out in the Guardianship Act 1987 (NSW), and include:

  • Being over 18 years of age
  • A personality that is generally compatible with the person who will be under guardianship
  • No conflict of interest, particularly of a financial kind, between the proposed Private Guardian and the person who will be under guardianship; and
  • Willingness and ability 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 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  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’) and 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.

For more information about hearings before the Guardianship Division of NCAT click here.

5B.3: The 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. Plenary Guardianship can rarely be justified as the least restrictive alternative, and such orders are rarely, if ever, made. Instead, the Guardianship Division usually 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 functions 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
  • Services: authorising others to provide personal services to the person (such as home care services to assist them to live in their own home)
  • Access: decisions about who may/may not visit the person
  • Restrictive Practices: decisions about behaviour support and intervention; and
  • Advocacy: advocating generally for the person.

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

Guardians don’t report to the Guardian Division of NCAT. For example, the Guardianship Division doesn’t regularly supervise Guardians or review specific 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.

5B.4: 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 (1) year, although the Guardianship Division of NCAT can make an initial Guardianship Order for up to three (3) years in special circumstances.

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

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 (3) years. However, in special circumstances, a Guardianship Order can be renewed for a period of up to five (5) years. All renewed Guardianship Orders are reviewed prior to their lapse and may be renewed for a period of up to three (3) years, or in special circumstances, for a period of up to five (5) years.

The Guardianship Division of NCAT may also make a Temporary Guardianship Order for a period of up to thirty (30) days. This Order can be extended by a maximum of another period of thirty (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.5: 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 Communities 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.

*Please note, 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:
Telephone: (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: Head Office & Western Team
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 Team
Street address: Level 5, 19 O’Connell St SYDNEY NSW 2000
Postal address: PO Box H304 AUSTRALIA SQUARE NSW 1215
Phone: (02) 9692 1533
Fax: (02) 9692 1531
Freecall*: 1800 451 428

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

5B.6: 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 the same functions of guardianship listed above (i.e. where you are to live, and healthcare and personal services you are to receive).

It is important that you trust the person you appoint as your Enduring Guardian to make appropriate decisions for you. You should inform this person of your wishes about decisions and involve them in discussion about your views. If your views change, you should also let your Enduring Guardian know.

If you have capacity, you can appoint someone as your Enduring Guardian by completing a form and having it witnessed by a lawyer, the registrar of a Local Court or approved public servant. The Enduring Guardian must sign their acceptance for the appointment to be effective.

The appointment is ongoing and not time-limited. However, you can change your mind later and cancel (‘revoke’) the appointment of a person as your Enduring Guardian, if the law recognises you as having the legal capacity  when you do this. If you marry after you appoint an Enduring Guardian, then the appointment will be automatically revoked.

Your Enduring Guardian can resign at any time, by giving you notice in writing. If you have lost capacity to make decisions at that time, then your Enduring Guardian can only resign with the approval of NCAT.

If you appoint more than one Enduring Guardian, you should indicate whether the Enduring Guardians will act jointly, severally, or jointly and severally. Enduring Guardians who are appointed jointly are only able to make decisions if they all agree about the decision. Enduring guardians who are appoint severally, or jointly and severally are able to make decisions independently of each other.  You can also appoint an Alternate Enduring Guardian who will have responsibility to make decisions for you only if your primary Enduring Guardian dies, resigns or becomes incapacitated.

You should seek legal 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.

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 NCAT. If it decides that you need a Guardian, the Guardianship Division may either appoint a Private Guardian for you or the Public Guardian.

Enduring guardianship appointments are not automatically accessible on a public register. It is important that key people in your life are aware of the appointment so that they can contact the Enduring Guardian if required. You should provide a copy of the Enduring Guardianship appointment to your Enduring Guardian, and keep a copy for yourself in a safe place. You should also let close friends or family know about it and give a copy to your lawyer, doctor and heath service provider.

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.

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

5B.7: Review of Guardianship Orders

The Guardianship Division of NCAT automatically reviews Guardianship Orders before they lapse.

The Tribunal may also review the order at any time after receiving 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.

A review of a Guardianship Order will include consideration of 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 they should be, what functions the Guardian should have, and how long a further Guardianship Order should last.

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.

NCAT can also decide that it is in the person’s best interests for the order not to be reviewed. If this is the case NCAT will state in the order that it will not be reviewed. This usually applies when the order is required for specific decisions that, once made, will end the need for guardianship.

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 appeal 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, 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 circumstances 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 should have 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 costs associated with both 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 twenty eight (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 twenty-eight (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 twenty-one (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 twenty-one (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 twenty-eight (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.

Updated March 25, 2020