NCAT's Guardianship Division makes decisions about people who have a decision making disability.
Learn about the role of the Guardianship Division of the NSW Civil and Administrative Tribunal.
Learn about the role of the Guardianship Division of the NSW Civil and Administrative Tribunal.
Part 1: Introduction to the Guardianship Division
In hearings before the Guardianship Division, we try to be less formal than in other forms of legal proceedings, but nonetheless they're important proceedings.
The majority of hearings are heard by a three-member panel chaired by a lawyer. There's also a professional member. They are somebody who has experience in the treatment and assessment of people with decision-making disabilities. The third member is a community member, and they are somebody who usually has the lived experience of disability.
At the start of a Guardianship Division hearing, all participants will be asked to introduce themselves and explain their role in the proceedings.
The Tribunal will usually then give a brief overview of the legal test that's applicable to the hearing on that day.
The Tribunal will also go through the documents that it has received and make sure that the parties have received the same documents so that everyone has seen the same evidence.
The Tribunal then generally turns first to the applicant as the driver of the proceedings and asks them to outline why they believe the orders are necessary.
Each of the parties then will be asked to express their views on that as well, and importance of course, the subject person who hopefully is a participant in the hearing.
In most matters before the Guardianship Division, after a short break, the Tribunal will come back to the hearing room and announce their decision.
The issues which can delay proceedings is a failure to involve the subject person or to assist them to participate in the proceedings if they are able to do so.
Any failure to assist the Tribunal identifying the parties to the proceedings, as they are required to have notice of those proceedings, and any lack of evidence or any difficulty with the quality of evidence or a difficulty in ensuring that the author of any documentary evidence can participate in the hearing. All of those factors can possibly delay a matter getting a hearing or could cause an adjournment of a hearing.
Part 2: When can the Tribunal make a guardianship order?
The Tribunal can only make a guardianship order if it's satisfied of the legislative test provided in the Guardianship Act.
The first thing that we need to be satisfied of is "does the person have disability that impacts upon their decision-making".
Without clear evidence before the Tribunal on that important issue, we can't proceed to make any orders, even if we think that an order might be in that person's best interest.
So that's why it's so important, particularly if you're an applicant, that you provide us with clear documentary evidence as to the person's disability and how it impacts upon their ability to make decisions.
Part 3: What is the next step in the hearing?
Once the Tribunal is satisfied in a hearing that it can conclude that the person is someone for whom they could make a guardianship order, they need to decide whether to exercise the discretion to do so.
Before the Tribunal can do that, it needs to take account of the views of the person. That's very important.
If they have a spouse or a carer, they need to take account of their views. And then the Tribunal needs to decide why is there a need now, and that's particularly important if a person has had a lifelong disability or a disability for a long time. The question that really needs to be asked is "why now?".
Part 4: What information does the Tribunal need to make a guardianship order?
If the Tribunal receives evidence written from a treating health professional, it's not enough to simply say a person has dementia and therefore they need a guardianship order.
What we need is a much more fulsome report. A report that explains how long the person has been treating the patient, their history, what testing has been engaged in to assess their cognitive capacity, what's the formal diagnosis, how that diagnosis impacts upon their decision-making, and anything else that really will assist the Tribunal in making its decision.
It's especially important where there's conflict as to a diagnosis, or where there might be views in a hearing expressed that the person doesn't have a disability at all for example, that the person who writes the report is available to give evidence to the Tribunal. This would be best in person when possible, but certainly availability by phone is important in those matters.
Part 5: Why does the Tribunal insist that the subject person attend the hearing?
Often people enquire why is it necessary for the person, the subject of the application, to be involved in the hearing.
It's very important because, firstly the legislation requires us to take on board the views of the person wherever possible. And secondly, if we make an order for a person, it effectively can remove the most basic of rights to decide for yourself where you live and who you live with and what medical treatment you have.
So naturally we really want to hear from the person wherever possible. Obviously if a person is too unwell to participate, then that's a reason why they may not participate, but we need clear evidence of the illness.
Similarly, if it's asserted that because of their disability they can't express a view in the hearing, we need evidence that confirms that. And that's important also because if the person isn't able to come to the hearing, and the evidence before the Tribunal suggest that they could participate, that raises the likelihood of an adjoining.
There's also what's called the "coercive accommodation function". That's a very powerful order that allows a guardian to utilise the services of police, ambulance officers and others as necessary to take the person for whom they appointed guardian to a location and if necessary, keep them there for their own safety and wellbeing.
Part 6: When can the Tribunal make a guardianship order?
In order to make a financial management order, the Tribunal needs evidence around the person's inability to manage their affairs.
So evidence is needed from a treating health professional as to why they believe their capacity to manage their financial affairs is impaired in some way.
We need information as to the nature of their estate. So by that I mean their assets, their liabilities, their income, their debts and, of great importance, why is there a need for an order now.
Even if a person has appointed an enduring power of attorney, the Tribunal can proceed to make a financial management order if the evidence supports such.
Having said that, obviously given that the subject person has gone to the time and the trouble to make these appointments, there needs to be clear reliable evidence before the Tribunal as to why it should disturb those appointments.
If, however we are satisfied, we can proceed to make a financial management order that suspends for the life of the order, any power of attorney that's been appointed.
Part 7: Summary
The main points to remember if you're an applicant in proceedings is first of all, you're the driver of the proceedings. You’re the reason that the matter is occurring, and you need to ensure that wherever possible you have identified the parties to the proceedings, because the Tribunal is required to provide a notice of a hearing to the parties.
It's also important that you’ve provided us with the evidence necessary to support your application.
In terms of final advice for applicants, I think the best thing I can say is – the better the quality of the application and the evidence supporting the application at the get go, the less likelihood there is of delays of a matter receiving a hearing or having a final outcome.
How NCAT hears a typical guardianship and financial management application for a person with decision-making disability.
How NCAT hears a typical guardianship and financial management application for a person with decision-making disability.
Because they are getting older or have a disability that affects their decision making, some people are unable to make their own decisions about their care. Some people are no longer able to look after their own finances either. NCAT’s Guardianship Division handles these cases. It decides on applications for appointing guardians and financial managers for people living with a decision-making disability. Almost half of the applications in the Guardianship division are about people with dementia and more than 60% concern people over the age of 65. In the following scenario, Steffi wants to apply for guardianship of her sister, Lena, who has dementia. She also wants to be appointed as her sister’s financial manager to allow her to look after Lena’s financial and legal affairs. Lena is a 68-year-old woman who lives alone in a unit. Lena has a sister, Steffi, who has become more and more concerned about Lena’s wellbeing and worries that she can no longer look after herself physically or mentally, and that she is not able to take care of money matters anymore. Steffi has also tried in the past to get Lena’s permission to take over her legal and financial decisions, but Lena has said no. She says she has done it for 50 years on her own and that she is OK to keep doing it herself. Steffi did not agree, but there was only so much she could do while her sister seemed to be getting by. For a while, Steffi has thought that Lena has dementia but, because Lena keeps refusing to be checked by a doctor, no diagnosis of dementia has been made. Steffi knew Lena needed fulltime care, but Steffi could not do anything without legal permission to make decisions for her sister. A few weeks ago Lena had a fall in her home and ended up in hospital. The doctor said Lena was not looking after herself and she wasn’t eating properly. Lena spent some time in hospital and then moved to respite to recover. The fall was a turning point for Steffi – she needed to get legal permission to take over her sister’s affairs. As a first step, Steffi contacted the Tribunal about her options. NCAT explained that Steffi needed to apply for ‘guardianship’ of her sister. NCAT said that if her application was successful and she was appointed as Lena’s guardian, Steffi would have the right to make lifestyle and personal decisions on Lena’s behalf. Lifestyle or personal decisions include decisions about Lena’s medical or dental treatment, where she lives and what services she needs. The representative from the Tribunal explained that to make a guardianship order, the Tribunal must be sure that Lena has a decision-making disability, that the disability means she cannot look after herself properly, and there is a need for Lena to have a guardian appointed. The Tribunal representative also explained that to make a financial management order the Tribunal must be sure that Lena is not capable of managing her own money, there is a need for someone else to manage her money, and it is in Lena’s best interests that an order is made. As part of the application process for guardianship and financial management of Lena’s affairs, Steffi had to make a formal application to the Tribunal. This meant she had to fill out an application form and provide medical reports about Lena’s physical and mental health and about Lena’s ability to make decisions. When the Tribunal received the application, they had to first assess the risks to Lena, asking: What could happen to Lena if a guardian was not appointed for her? Is Lena in any immediate danger? The hearing was held at an NCAT hearing location close to the facility where Lena was staying so that she could come to the hearing .At the hearing Steffi brought along her husband and her sister Lena. Steffi told the three Tribunal members that Lena was diagnosed with depression in her 50s and since that time Lena hardly ever let Steffi visit her and rarely talked to her when she tried to telephone. Steffi said that about 12 months ago Lena started to have trouble remembering to eat or to take her medication. Steffi had organised Meals on Wheels and a care worker to visit Lena at her home but Lena had not let them into her unit. Walter, a social worker, and Isaiah, a doctor specialising in working with older people who have mental health issues, both told the hearing that in their professional opinions, Lena has dementia. Sonia, a community mental health case worker, said that she had been working with Lena for the past five years and had noticed that Lena could no longer look after herself and her home. Sonia said that she noticed this the most in the past year and that Lena needed to be reminded to take her medication, make meals and to have showers. Sonia said that Lena now refused to see her and would not see her local doctor either. The Tribunal asked Lena whether she thought she needed someone to help her make decisions about where she should live and other parts of her life. Lena told the Tribunal she wanted to go home and that she didn’t need any help. Lena was unable to say what she would do once she got home. When the Tribunal asked if Lena would like her sister to help her, Lena said ‘definitely not’. Steffi said that Lena would not accept help from any family member. Regarding Steffi’s application for financial management of Lena’s money, Lena clearly told the Tribunal that she did not want a financial manager and that she would be fine to manage her money on her own. Lena told the Tribunal about her savings account and budget. She also said she wanted to buy a new unit closer to the beach. However, when the member asked for more information about her plans Lena was unable to explain how she would go about finding a new unit, how she would know she was getting value for money or what was involved in selling her existing home. Lena was also unable to tell the Tribunal what kind of people she should speak to about these plans and didn’t seem to understand that it would be hard to sell her unit and buy another one by herself because of her health problems. In making its decision about the guardianship order, the Tribunal had to consider the risk to Lena against her right to make her own decisions. Before the Tribunal can appoint a private guardian, it has to be satisfied that the guardian and the person will be able to get along with each other and that there is no conflict of interest. The guardian must be willing and able to take on the role. The Tribunal can appoint the Public Guardian to make decisions for a person with a disability if there are no family or friends available or if it wouldn’t be right to appoint a private guardian for other reasons. Because of her disabilities, the Tribunal decided that Lena had difficulty with making decisions and managing on her own. The Tribunal decided that there was a need for a guardian to be appointed because Lena would not let Steffi help her and decisions needed to be made for Lena that would probably be against her wishes but necessary to keep her safe and as healthy as possible. The Tribunal took into consideration that Steffi did not want to be Lena’s guardian because she was worried about the effect it may have on her relationship with her sister, especially if she had to make decisions that Lena did not agree with. Because there was no other suitable person available, the Tribunal appointed the Public Guardian to make decisions about Lena’s accommodation and her medical, dental and other healthcare needs for 12 months. The Tribunal let Lena know that she could appeal the decision. Lena said that she would think about this but that she was happy that someone other than her sister would be looking out for her wellbeing. Then it was time for the Tribunal to decide about Lena’s financial affairs. To make the right decision, the Tribunal needed to be satisfied that Lena was not able to look after her own money matters, that there were things that needed to be done about her money and property and that it would be better for Lena if someone else did these things. The Tribunal also had to decide whether Steffi would be the best person for the task. If Steffi was appointed, then she would be overseen by the NSW Trustee and Guardian. The Tribunal also had the option to appoint the NSW Trustee and Guardian to look after Lena’s money and property for her. The Tribunal decided that Lena’s health condition meant she was incapable of managing her financial affairs because she was not able to plan for the future or make decisions about her pension and these things needed to be take care of. The Tribunal also decided that it was in Lena’s best interests for a financial management order to be made to make sure her money was looked after. At the hearing, Lena told the Tribunal that she would prefer to have her sister manage her money rather than the NSW Trustee and Guardian. So the Tribunal made a financial management order for Lena, appointing Steffi to manage her sister’s affairs. Most people with a decision-making disability manage with help from family, friends and service providers. They do not need a guardian or a financial manager. But if you believe that a family member or someone else you care for needs someone to make lifestyle and personal decisions because they have a decision-making disability or needs someone to take over management of their financial matters, you can go online to www.ncat.nsw.gov.au to find more information. |
The Guardianship Division determines applications about adults who are incapable of making their own decisions and who may require a legally appointed substitute decision maker.
Applications to the Guardianship Division include:
Applications must be about people who are in NSW or have property or other financial assets in NSW.
The Guardianship Act 1987 sets out the limits of its responsibilities and functions and the principles to be applied when making decisions.
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