All applications in the Guardianship Division are reviewed on receipt to determine whether the application identifies any risk being experienced by the person who is the subject of the application (‘the person’). The time taken for an application to be heard depends on a range of factors including :
When preparing an application for hearing, a Tribunal officer will contact the applicant, the person who is the subject of the application and other people who are most significantly involved in the matter. The applicant is responsible for providing the relevant evidence to support their application.
The information required to support the application includes medical and professional evidence about the person’s capacity to make his or her own decisions and information about any risk to the person.
Applicants are advised to notify the Tribunal if from the time of application the person’s circumstances change and there is an increased risk to the person.
Applicants are usually required to give a copy of the application to the other parties including the person the application. The parties are usually required to give any relevant material to the Tribunal and to each other before the hearing.
Guardianship is about the appointment of someone to make decisions for a person who lacks capacity to make his or her own personal and lifestyle decisions. These may include decisions such as where the person lives, what services they receive, and what medical and dental treatment they receive.
Financial management is about the appointment of someone to make decisions for a person who lacks the capability to manage their own financial affairs, property or money.
The Tribunal would prefer the person who is the subject of the application at risk to attend and participate in the hearing unless it is not possible due to ill health or some other special circumstance. The Tribunal's decision may impact significantly on the rights of the person. For this reason every effort is made to involve the person in the process to the greatest extent possible. The applicant is responsible for making the arrangements for the person to attend the hearing.
One of the key responsibilities of the applicant is to attend and participate in the hearing.
The Tribunal will conduct the hearing with as little formality as possible. Parties to the application can be represented by a lawyer or other person but usually this is not necessary. If you would like to have a legal or other representative, you must get the Tribunal’s approval.
You should make this request in writing to the Tribunal as soon as possible – at least five working days before the hearing. If this is done, the Tribunal may make its decision about whether or not to grant leave for legal representation before the hearing date. Otherwise, it will make this decision at the beginning of the hearing. The request should include the reasons why you want to be represented.
Hearings in the Guardianship Division are conducted by Tribunal Members appointed on the basis of their particular expertise. There are 3 categories of Tribunal Member:
For the majority of matters in the Guardianship Division there will be 3 members,
with at least one member from each category.
Applications for medical consent, reviews of guardianship and financial management orders, can be heard by a panel that has fewer than three members.
Generally it is not necessary to bring anything to hearings. If you want the Tribunal to consider a document and you are the applicant, you can lodge it with the application itself or no later than 14 days of the application being submitted. You must also give a copy to the other parties. If you are a party, you should give any relevant documents to the Tribunal and to each other party no later than 21 days of the application being submitted.
The Tribunal will generally inform those attending the hearing of its decision at the end of the hearing. If a guardianship or financial management order is made, the order will generally take effect immediately. A written orders and a written statement of reasons for decision will be sent to the parties as soon as practicable after the hearing.
The Tribunal can make a guardianship order for up to 3 years. However, most initial guardianship orders are made for a period of 12 months or less. The Tribunal will hold another hearing to review the order before the expiry of the term of the order. The Tribunal may decide that it will not review the order and if so the Tribunal will indicate that in the order.
Most financial management orders continue and are not automatically reviewed. The Tribunal may however order that it to be reviewed within a particular time and this will be set out in the order.
However, anyone who has a genuine concern for the welfare of the person can apply at any time for the order to be reviewed if they have sufficient grounds for doing so. The Tribunal may make an interim order lasting up to six months and adjourns a financial management application to seek further information about the person's capability to manage their finances.
One of the principles under the
Guardianship Act 1987 is to recognise the importance of preserving the person's significant relationships.
If you are close to the person and have a genuine interest in their welfare, your views will be taken into account. If you have any concerns about the person's welfare contact the NSW Public Guardian or the NSW Trustee and Guardian to discuss it with them.
The Public Guardian and the NSW Trustee and Guardian are separate organisations to the Tribunal and you will need to contact them directly.
Yes. This is one of the key responsibilities of the applicant. The
Guardianship Act 1987 requires the applicant to give each party to an application, including the subject person, a copy of the application.
A party to proceedings in the Guardianship Division may appeal any decision to the Supreme Court or the Appeal Panel of NCAT. An appeal cannot be made to both the Court and the Appeal Panel.
An appeal may be made on:
if the Appeal Panel or the Court grants leave for the appeal to be made on those grounds.
If the appeal is against an interlocutory decision, then it can only be made with the leave of the Appeal Panel or the Court.
Some examples of an interlocutory decision are:
The Tribunal can review the guardianship and financial management orders that it makes. The Tribunal reviews a guardianship order at the end of its term as a legal requirement. It can direct particular financial management orders to be reviewed. However, someone who has a genuine concern for the person who is the subject of the order can request a review of an order at any time.
The Tribunal can revoke a financial management order only if it is satisfied that the person is now capable of managing their financial affairs themselves or that it is in their best interests that the order be revoked.
If you are able to provide evidence to support either of these grounds, you can lodge an application to revoke the order.
No. An applicant generally indicates who they are proposing as guardian and/or financial manager in their application.
If you disagree with the applicant's proposal and you wish to propose yourself or someone else as the guardian or financial manager you should discuss this with the Tribunal officer responsible for preparing the application or review for hearing. If you are proposing yourself you will need to participate in the hearing but there is no need to make a separate application.