In New South Wales, guardians for adults with a decision making disability are appointed under the Guardianship Act 1987. A guardian with guardianship orders can make decisions affecting the disabled person’s health, accommodation, support service and other general lifestyle matters.

The Guardianship Act is based on the following principles:

1. The welfare and interests of people with disabilities should be given paramount consideration;
2. They should be encouraged to live a normal life in the community;
3. Their views soul be taken into consideration;
4. Their freedom should be restricted as little as possible;
5. People with disabilities should be protected from neglect, abuse and exploitation;
6. People with disabilities should be encouraged, as far as possible, to be self-reliant;
7. It is important to preserve cultural and linguistic environments and family relationships;
8. The community should be encouraged to apply and promote these principles.

When are guardianship orders made?

The NSW Civil and Administrative Tribunal (NCAT) can appoint a guardian if it is satisfied that the person has a decision-making disability that results in their inability (partial or complete) to manage themselves and a guardian needs to be appointed.

If the person is being adequately assisted by family and friends (informal decision making) a guardian need not be appointed. However, if informal arrangements break down, guardianship orders may be required.

NCAT can appoint a guardian for a person aged over 16 living in NSW.

What is a guardian?

A guardian is legally authorised to make certain decisions (excluding financial decisions) on behalf of a person with a decision-making disability.

One must be appointed as a financial manager to make financial decision on behalf of another person.

How is a guardian appointed?

An adult guardian can be appointed by:-

1. an adult appointing a person as their guardian; or
2. someone applying for a guardian to be appointed for someone else; or
3. the NCAT appointing a guardian of its own initiative.

After an application is lodged with NCAT, parties will be given notice of a hearing date. At the hearing, NCAT will consider documents provided and hear evidence. It will seek to include the person the application is about and to take their views into account as much as possible.

Parties at an NCAT hearing can appear on their own behalf or can be legally represented.

Who can act as a guardian?

When a person applies for a guardian to be appointed, they may suggest someone to act as guardian. This may be themselves, another person or for several people. However, NCAT is not bound by this. NCAT will appoint someone as guardian only if it is satisfied that the person is suitable for the role and generally compatible with the person with the decision-making disability. NCAT must also be satisfied that the proposed person does not have a conflict of interest. If there is no-one suitable to be appointed as a guardian, NCAT can appoint the Public Guardian NSW.

For how long is a guardian appointed?

A guardianship order may be for no longer than 3 years (s. 18 Guardianship Act).

Assessment and review of guardianship orders

A guardianship order may specify that an assessment of the person under a guardianship order is to be made at a specified time during the period of the order.

NCAT may review guardianship orders at any time during the order on its own initiative.

NCAT must review guardianship orders upon the expiry of the period of the order or at the request of:

1. the guardian;
2. the person under guardianship;
3. the public guardian; or
4. someone with a genuine concern for the person under guardianship.

On reviewing a guardianship order, the NCAT may revoke, vary, suspend, confirm or renew the order.

Appeals

If you are unhappy with a NCAT decision, you can appeal within 28 days of the decision to the NCAT Appeal Panel or the NSW Supreme Court.

Here to Help

Contact us if you require legal advice or representation in relation to an adult guardianship order.