There is often a moment when a family realises that someone they love can no longer make safe decisions on their own. It might be a parent with advancing dementia who insists on staying at home, or an adult child with an acquired brain injury who keeps signing agreements they do not understand. Informal arrangements work well for many families, but sometimes they are not enough, and a formal decision maker needs to be appointed.

In New South Wales, that decision is made by the Guardianship Division of the NSW Civil and Administrative Tribunal, known as NCAT. Understanding what NCAT can and cannot do helps you work out what your family actually needs, and what you may be able to put in place now to avoid an application later.

What Is NCAT’s Guardianship Division?

The Guardianship Division of NCAT helps protect adults who cannot make certain important decisions for themselves because of a disability or impaired decision-making ability. This may include people living with dementia, an intellectual disability, an acquired brain injury or mental illness.

NCAT can make guardianship orders and financial management orders. These orders serve different purposes, and it is important not to confuse them.

What Is a Guardianship Order?

A guardianship order appoints a person to make specified personal or lifestyle decisions for another adult. The appointed person is called a guardian.

What Decisions Can a Guardian Make?

Depending on the order, a guardian may be authorised to decide:

• where the person lives;
• what health or medical services they receive;
• what personal services or support they need; or
• whether access to the person should be restricted or supervised.

An order is tailored to the person. NCAT gives the guardian only the specific powers, known as functions, that the person actually needs.

When Will NCAT Make a Guardianship Order?

NCAT will only make an order if satisfied that the person is not capable of making the relevant decisions, needs a guardian and an order is appropriate. The order should interfere with the person’s independence as little as possible.

For example, an older person with advanced dementia may be unable to understand why they can no longer live safely at home. NCAT could appoint their adult child as guardian, with authority to decide where they live and arrange suitable care.

Who Can Be Appointed as Guardian?

NCAT may appoint a suitable family member or friend. If no suitable private person is available, it may appoint the NSW Public Guardian.

What Is a Financial Management Order?

A financial management order deals with a person’s money, property and financial affairs.

NCAT may make this order if the person cannot manage their finances, there is a need for someone else to do so, and the order is in the person’s best interests. The person also needs a connection to New South Wales, either by being in the state or by having assets or income here.

A financial manager may be responsible for:

• paying bills and expenses;
• managing bank accounts and investments;
• dealing with property;
• lodging tax returns; and
• protecting the person from financial abuse or exploitation.

For example, a person with an acquired brain injury may repeatedly enter contracts they do not understand and fail to pay essential bills. NCAT could appoint a trusted relative as financial manager. If no suitable person is available, it may commit management of the person’s estate to the NSW Trustee and Guardian.

How Does NCAT Approach These Cases?

NCAT generally holds a hearing and considers medical evidence, the person’s views, family circumstances and any existing enduring guardian or power of attorney. The person concerned should be involved as much as possible.

This is not a process that happens to someone in their absence. Their wishes matter, even where capacity is in question, and family members are often asked to explain what support is already working and where it is falling short.

Are These Orders Permanent?

No. Orders are tailored to the person’s needs and may be reviewed, changed or ended if circumstances change.

A first guardianship order is usually made for up to one year, or up to three years in special circumstances. When an order is renewed, it can run for up to three years, or up to five years in special circumstances. NCAT reviews guardianship orders at the end of their term as a matter of course, and it can renew the order, vary it, replace the guardian, or let it lapse if it is no longer needed. Financial management orders can also be reviewed and revoked.

One Order Does Not Cover Everything

This is the point families most often miss. A guardianship order does not automatically give control over finances, and a financial management order does not automatically authorise personal or medical decisions.

If a family needs both personal decisions and financial decisions covered, both orders need to be considered.

Can You Plan Ahead and Avoid an Application?

In many cases, yes. An enduring guardianship appointment lets you choose who will make lifestyle, accommodation and medical decisions for you if you lose capacity. An enduring power of attorney lets you choose who will manage your finances.

Putting these documents in place while you still have capacity means your family is far less likely to need a NCAT application at an already difficult time, and it means the choice of decision maker is yours rather than the Tribunal’s. NCAT will look at any existing appointments when an application is made.

Get Advice on Guardianship and Financial Management in NSW

Applications to the Guardianship Division are often made when a family is already under pressure, and the difference between the two types of order is not always obvious from the outside. Getting the scope of the application right from the start saves time and stress.

Whether you are considering an application, responding to one, or simply want to plan ahead with an enduring guardianship appointment and power of attorney, we can explain your options in plain English.

Get in touch to discuss your situation and our experienced team will help you work out the right next step.

This article provides general information only and is not legal advice. Your circumstances are unique, so please obtain advice specific to your situation.