Definitions​

Guardianship Division

The definitions on this page are for terms commonly used in NCAT's Guardianship Division. Select a letter from the alphabetical list below to go to the list of words starting with that letter.

A | B | C | D | E | F | G | H | I | J | K | L | M | N | O | P | Q | R | S | T | U | V | W | X | Y | Z

C

Clinical Trial

A clinical trial is a trial of a drug or technique that involves medical or dental treatment. The Tribunal must approve a clinical trial that will involve an adult who is unable to give a valid consent to their own treatment. Once a clinical trial has been approved, a person responsible will be able to provide substitute consent for the person’s participation in the trial. Before an application can be made to the Tribunal, the approval of the relevant ethics committee must be obtained. Also, the trial must comply with the relevant guidelines of the National Health & Medical Research Council. Learn more about clinical trials.   

Consent to medical or dental treatment
If a person cannot understand the general nature or effect of treatment or cannot communicate whether or not they consent to treatment, they cannot give a valid consent to that treatment. Part 5 of the Guardianship Act 1987 sets out who can consent on their behalf. Usually, this will be a 'person responsible'. If there is no 'person responsible' or the person is objecting to the treatment, the Tribunal can act as a substitute decision-maker. Only the Tribunal may act as substitute decision-maker in relation to special medical treatments. Learn more about consent to medical or dental treatment.  

E 

Enduring guardian
An enduring guardian is someone you appoint to make personal or lifestyle decisions on your behalf when you are not capable of doing this for yourself. You choose which decisions you want your enduring guardian to make. These are called functions. You can direct your enduring guardian on how to carry out the functions. The appointment of an enduring guardian comes into effect when you lose capacity to make personal or lifestyle decisions. Learn more about enduring guardianship.

Enduring power of attorney
An enduring power of attorney is a legal document appointing an attorney or attorneys who can act on your behalf in financial matters under your instruction while you have capacity or without your instruction if you lose capacity. Learn more about enduring power of attorney.

F

Financial management order
A financial management order is an order which the Tribunal makes when it is satisfied that a person is incapable of managing their financial affairs, needs someone else to manage those affairs on their behalf and that it is in their best interests that a financial order be made. It authorises the financial manager to make financial decisions for the person the order is about. Most financial management orders are permanent. Learn more about financial management.

Financial manager
A financial manager is a legally appointed substitute decision-maker with authority to make decisions about and manage a person's financial affairs (e.g. their money, property and other financial assets, such as share portfolios) and their legal affairs (e.g. instructing a solicitor). A private financial manager may be appointed - a family member or friend - provided they are a 'suitable person' as required by the legislation. Otherwise, the Tribunal will appoint the NSW Trustee and Guardian.

G

Guardian
A guardian is a substitute decision-maker with authority to make personal or lifestyle decisions about the person under guardianship. A guardian is appointed for a specified period of time and is given specific functions (e.g. the power to decide where the person should live, what services they should receive and what medical treatment they should be given). A private guardian may be appointed - a family member or friend - provided the circumstances of the matter allow for this and they meet the criteria set out in the legislation. Otherwise, the Tribunal will appoint the NSW Public Guardian.

Guardianship order
A guardianship order is made by the Tribunal when it is satisfied that an adult has a disability that means they are partially or totally incapable of managing their person and require a guardian to make decisions on their behalf. The order names the guardian who has been appointed by the Tribunal, the length of their appointment and their functions. It authorises the guardian to make certain decisions for and instead of the person under guardianship. For more information, refer to Guardianship.

O

Order
Refer to the definition of 'Guardianship order' or 'Financial management order'.

P

Parties to a hearing
The parties to a hearing will always include the applicant and the person the application is about. Those who are automatically parties to a hearing are set out in Section 3F of the Guardianship Act 1987 and section 35 of the Powers of Attorney Act 2003. Read the fact sheet Who is a party to Guardianship Division proceedings [PDF, 49kB]​. The Tribunal may join others as parties to a proceeding as detailed in the fact sheet Applying to be joined as a party [PDF, 36kB].

Person responsible
A person responsible is someone who has the authority to consent to treatment for an adult who is unable to give a valid consent to their own medical or dental treatment. The person responsible is determined by the health practitioner according to the hierarchy of persons set out in section 33A of the Guardianship Act 1987. For more information, refer to the fact sheet Person responsible [PDF, 54kB].

R

Requested review of financial management order
Anyone with a genuine concern for the welfare of a person under a financial management order can request a review of the order or of the appointment of a financial manager. On review the Tribunal can confirm, vary or revoke the order or the appointment of the financial manager.

Requested review of guardianship order
Anyone with a genuine concern for the welfare of a person under guardianship can request a review if the order is no longer working in the best interests of the person. The Tribunal can vary, suspend, revoke or confirm the order.

Review of financial management order
The Tribunal may order that a financial management order be reviewed within a specified time. However, the order can be revoked only if the person regains the capability to manage their own affairs or if the Tribunal is satisfied that it is in the person's best interests to revoke the order.

Review ​of Guardianship order
Most guardianship orders are made for a specified term and are reviewable before the expiry of the term. The Tribunal will hold a hearing to decide whether the order is still required or whether it will allow to lapse. If the order is renewed the Tribunal will consider who should be appointed as the guardian and what decision making functions are required.