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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:

• Who are the members of the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT)
• What happens at hearings of the Guardianship Division of NCAT
• Being represented at a Guardianship Division of NCAT hearing
• How to challenge an order of the Guardianship Division of NCAT

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, who have been practising law for at least seven years
• professional members, have experience assessing or treating adults with 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 (for example, doctors, psychologists, or social workers); and
• community members, who have experience with adults with 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.

There are a number of people appointed as members of 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 in each of these three categories.

Panels made up of one Tribunal member from each category carry out  most Guardianship Division hearings.

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 Division of NCAT

The Guardianship Division of NCAT is located in John Maddison Tower, 86-90 Goulburn Street Sydney.

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 locations.

The Guardianship Division of NCAT deals with applications for:

• 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 orders and 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 orders (including reviews)
• Financial Management Orders (including reviews)
• Powers of Attorney and Enduring Powers of Attorney (including reviews)
• medical and dental treatment
• recognise interstate appointments, and
• clinical trials that involve persons with 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.

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

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 an 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 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) 9556 7600
Freecall*: 1300 006 228 and press 2 for 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 matters
E-mail: gd@ncat.nsw.gov.au
Website: https://ncat.nsw.gov.au/ncat/case-types/guardianship.html
Address: John Maddison Tower,  Level 6 – 86-90 Goulburn Street Sydney.2000

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 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.

The Tribunal holds its hearings as informally as possible. The hearing is designed to allow the fair, quick and inexpensive resolution of the important issues being considered.

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 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. 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 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.

Instead, the Tribunal must consider these principles:

• most importantly, your welfare and interests
• how to restrict your freedom of decision and freedom of action as little as possible
• how to encourage you, as far as possible, to live a normal life in the community
• your reviews about their decisions
• the importance of preserving your family relationships and cultural and linguistic environments
• how you can be encouraged, as far as possible, to be self-reliant in matters relating to your personal, domestic and financial affairs
• how can you be protected from neglect, abuse and exploitation; and
• the community should be encouraged to apply and promote these principles.

If an application to the Tribunal is about you, if possible, you should go to the hearing in person. 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 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 will make every effort to get your views before the hearing. If you cannot be there 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: 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
NSW Civil and Administrative Tribunal
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
PO Box K1026, Haymarket NSW 1240

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. They 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 explaining your point of view to the Tribunal 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 are encouraged to do to ask for leave a few days before the hearing.

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

* Please note, 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 (called ‘leave’). This is because the hearings are designed to be informal and most hearings are held without people being represented. The Tribunal must grant leave for you to have a lawyer or advocate represent you.

The Tribunal will consider the following factors when deciding whether to grant leave:

• whether a lawyer will promote your interests and the principles listed above
• whether a lawyer will help a fair, quick and cheap resolution of the issues in the hearing
• any 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 or other factor that negatively impacts your 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 fully participate in the hearing
• the nature and seriousness of your interests that are affected by the proceedings
• whether your interests and point of view conflict with those of other parties
• whether the proceedings involve complex issues
• fairness between the parties (i.e. it may be unfair if the other party is represented but you are not); and
• whether representation may assist a party to focus on the relevant issues and may promote a friendly approach in the proceedings.

The Tribunal may also consider other factors not in this list.

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

Legal aid may be available in certain cases. There are also specialist free legal services whose solicitors are regularly involved with 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 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 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 Rights Service, click here.

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

In some circumstances, where the Tribunal is concerned that you may have difficulty communicating your views, the Tribunal may appoint 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 ad Litem’, which means family member, a friend or an advocateAn advocate is a person who will support someone and help them stand up for their rights, needs and wants. An advocate can also sometimes speak or write on the behalf of another person. A person’s family or friends can be their advocates, or their advocate may be a professional. An advocate may or may not be a lawyer. More who will argue for your best interests in the course of the hearing. They do not need to be a lawyer. They should attempt to obtain your views about the issues being considered by the Tribunal. When appointing a non-legal representative, the Tribunal will consider whether the proposed person:

• has sufficient knowledge of the issues in dispute to enable them to represent you effectively
• has the ability to deal fairly and honestly with the Tribunal and other people involved in the hearing; and
• is vested with sufficient authority to bind the party.

5D.2.2: Separate Representatives at Guardianship Division of NCAT hearings

A Tribunal may order that a lawyer comes to the hearing as a Separate Representative to assist the Tribunal in limited circumstances. A Separate Representative may be appointed if:

• there is a serious doubt about your 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 give legal instructions but there is a clear need for your interests to be independently represented at the hearing
• there is an intense level of conflict between the parties about what is in your best interests
• you are have been vulnerable to or have been subject to pressure or intimidation by others involved in the proceedings
• there are serious allegations about exploitation, neglect or abuse you have experienced
• other parties to the proceeding have been granted leave to be legally represented; or
• the proceedings involve serious issues likely to have a profound impact on your interests and welfare, such as end of life decision-making or proposed sterilisation treatment.

A Separate Representative will make submissions about your best interests and they will ask you what you think is important. However, their job is not to tell the Tribunal exactly what you want them to say and you may not always agree with what they tell the Tribunal. They may also ask others involved in the hearing about their views.

5D.3: 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 Appeal Panel of the NSW Civil and Administrative Tribunal or to the Supreme Court (an ‘appeal’). You cannot appeal to both the Appeal Panel and Supreme Court at the same time.

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 twenty eight (28) days of receiving the written reasons for decision. An extension may be granted in some circumstances.

For more about appeals of guardianship-related decisions, click here.

Updated April 2, 2020