Guardianship and Financial Management
At some time in your caring role, you may need to make decisions for the person you care for because the informal (and sometimes formal) arrangements you have with this person regarding decision making are breaking down.
You may have concerns that the person can no longer make decisions for themselves, and that this could affect their day-to-day life. This could include decisions such as consenting to medical or dental procedures, or other "lifestyle" decisions; it often referred to as "losing capacity".
Capacity is the ability to make decisions for yourself. A person is shown to have capacity when they can go through the process of making their own decisions by:
- Understanding the information and choices presented
- Weighing up the information to determine what the decision will mean for them
- Communicating that decision.
If a person is unable to follow this process and make their own decisions, that person is said to lack capacity.
If this seems to be the case for the person for whom you care, it may then be necessary to apply for guardianship, which can sometimes formalise arrangements which are already in place. A guardian is a substitute decision-maker. The application needs to go through the NSW Guardianship Tribunal.
The Guardianship Tribunal is usually seen as "the avenue of last resort" and only hears applications where there are no suitable arrangements already in place or where a suitable alternative to an application cannot be found.
The Tribunal needs evidence to show that a person can't make their own decisions.
If a substitute decision-maker (guardian) is appointed, they will have the authority to make lifestyle and/or personal decisions for the person. Lifestyle or personal decisions may include where someone lives, what services they need and what medical treatment and care they receive. (See last paragraph for more info on the Guardianship Act).
The Tribunal can also appoint a financial manager to manage the financial affairs of a person who is incapable of making their own decisions about their finances. A family member or friend, or the NSW Trustee and Guardian could be appointed as the manager.
When you apply for financial management, you are asking to be appointed to manage the financial and legal affairs of the person you care for. This role is called a Power of Attorney. "Financial affairs" refers to matters such as operating bank accounts, paying bills, investing money, selling or buying property and includes legal matters such as instructing a solicitor to act in legal proceedings.
Some Important Points
- Next of Kin has NO legal meaning in NSW when discussing substitute medical, personal and lifestyle decision making. "Next of kin" is a term more commonly used about matters such as property settlement, autopsy consent and funeral arrangements following a person's death.
- Power of Attorney does NOT automatically allow a person to make decisions about medical treatment /lifestyle matters. People may confuse the functions of a Power of Attorney with the functions of a Guardian.
- If a person already has guardianship or power of attorney in place, you should check whether this is "enduring". "Enduring" means that the guardianship order will remain valid even when/if a person loses their decision-making capacity, for example, if they have advanced dementia or acquired brain injury.
- If a person has appointed a guardian to act on their behalf but the order does not specifically refer to the guardian as an enduring guardian, it may prevent the guardian from making decisions on their behalf. This may happen if there is conflict between the person and the potential guardian.
This is because an ordinary guardianship that is not enduring will become void when or if the person loses capacity. For example, if a person develops dementia, a guardian who is NOT enduring cannot necessarily make decisions on their behalf. An enduring guardian CAN act as a substitute decision-maker when the person has lost capacity to make decisions.
For more information on capacity see Important Links
The NSW Guardianship Act (1987) provides a legal framework for substitute decision making to protect people who have lost capacity to make decisions themselves. This decision maker is called the guardian.
Under the Guardianship Act (1987), the Guardianship Tribunal and the Office of the Public Guardian have power to;
- appoint and manage public guardians;
- Appoint a private guardian, e.g., a family member or friend, who may be a Carer.
Generally, the Tribunal is regarded as "the avenue of last resort" and only hears applications where there are no suitable arrangements already in place or where no suitable alternative to an application can be found.
The Guardianship Act
The Act defines the "person responsible" who can act as a substitute decision maker. The Guardianship Act lists the order of the individuals who can act as "Person Responsible":
- The legally selected guardian (including enduring guardian) of the person with the function of consenting to medical/dental treatment or, if there is no guardian;
- Their spouse or de facto spouse or same sex partner, or if there is no spouse or de facto spouse or same sex partner;
- Their unpaid Carer or, if there is no Carer;
- Their relative or friend who has a close relationship with the person.
Applications for guardianship or financial management can be made by completing an application form and submitting it to the Tribunal.
The above information was drawn from the website of the NSW Guardianship Tribunal. For more information on the Guardianship Tribunal and the Office of the Public Guardian see Important Links:
Monday to Friday 9.00am to 5.00pm
Phone: 9556 7600
Toll free: 1800 463928
TTY: 9556 7634
2a Rowntree Street
Balmain NSW 2041
Locked Bag 9
Balmain NSW 2041