Sometimes circumstances change and what once seemed like the right choice for managing your affairs may no longer be working. If you’re concerned about someone’s Power of Attorney or Enduring Guardianship appointment, there are legal pathways to have these decisions reviewed and potentially changed.

Understanding When Reviews Are Necessary

Last week we explored how Power of Attorney and Enduring Guardianship documents work. This week, we’re focusing on what happens when these appointments need to be reconsidered.

When someone has lost the capacity to manage their own affairs, concerned family members or friends may question whether the appointed attorney or guardian is still the right person for the role. The good news is that NSW law provides clear mechanisms to address these concerns.

Two Pathways for Review

There are two technical ways to review these appointments in NSW. While you can apply through the Supreme Court of New South Wales, this is the less common route.

The most practical option is making an application to the guardianship division of the NSW Civil and Administrative Tribunal (NCAT). This pathway is designed to be more accessible – in fact, parties typically represent themselves without lawyers (you need special permission to have legal representation at NCAT).

When Might You Need a Review?

Several circumstances can trigger the need for a review:

Concerns About Performance

• The attorney or guardian isn’t fulfilling their duties properly
• Decisions being made don’t appear to be in the appointor’s best interests
• There are questions about the quality of care or financial management

Personal Circumstances of the Appointed Person

• The attorney or guardian feels unable to continue their duties
• Family conflicts are interfering with their ability to act effectively
• Physical distance makes it impractical to provide proper oversight

Questions About Capacity

• Uncertainty about whether the appointor still has capacity to manage their own affairs
• Determining when it’s appropriate for the attorney or guardian to take full control

The NCAT Review Process

The process begins with one or more concerned parties lodging an application at NCAT. Here’s what happens next:

Directions Hearing

NCAT schedules an initial “directions hearing” – a short meeting to discuss the case, set deadlines for sharing information between parties, and fix a hearing date.

The Main Hearing

At the hearing, the Tribunal listens to all relevant information and makes decisions about next steps. The Tribunal hears from various witnesses who can provide relevant information:

• Current attorneys or guardians
• The appointor themselves (if they’re able to give evidence)
• Other concerned family members or friends
• Medical professionals and social workers who can assess the appointor’s capacity

Tribunal Decisions

After reviewing all evidence, the Tribunal can make several types of decisions:

• Cancel existing documents and appoint someone else as financial manager or guardian
• Keep current arrangements in place
• Determine whether the appointor has capacity to manage their own affairs
• Make orders about how the attorney or guardian should fulfil their duties

Applications for People Without Existing Documents

This review process isn’t limited to existing Power of Attorney or Enduring Guardianship documents. You can also apply to NCAT for the appointment of a financial manager or guardian for someone who never put these documents in place but now lacks capacity to manage their own affairs.

Getting the Support You Need

Reviewing Power of Attorney and Enduring Guardianship appointments can be emotionally challenging, especially when family relationships are strained. The legal process, while designed to be accessible, still requires careful preparation and understanding of what evidence will be most persuasive.

If you’re concerned about someone’s appointment as attorney or guardian, or if you’re an appointed person struggling to fulfil your duties, don’t wait until the situation becomes critical.

Ready to discuss your concerns about a Power of Attorney or Enduring Guardianship appointment? Contact our experienced team at Complete Legal for a consultation. We’ll help you understand your options and guide you through the process with the clarity and support you need during this challenging time.