Chapter 5: Guardianship and Financial Management
The Guardianship Tribunal
Guardianship Tribunal members
Where are Guardianship Tribunal hearings held?
Making an application to the Guardianship Tribunal
Hearings at the Guardianship Tribunal
Having a lawyer at Guardianship Tribunal hearings
Interpreters
When is a guardian appointed?
What powers or functions do guardians have?
Length of guardianship orders
When is a financial manager appointed?
What powers does a financial manager have?
Length of financial management orders
Interim financial management orders
The order and reasons for decision
Consent to Medical Treatment - The 'person responsible' and the Tribunal's role
Approval of informal admission to a psychiatric facility
Reviews and Appeals
Reviews of guardianship orders
Reviews of financial management orders
Appeals from Guardianship Tribunal decisions
Further information
Office of the Protective Commissioner (OPC)
Who is the Protective Commissioner?
Where do the Powers of the Protective Commissioner come from?
Services provided by the Protective Commissioner
How does the Protective Commissioner become involved?
How clients come to the Office of the Protective Commissioner
The role of the Protective Commissioner
Fees
The Office of the Public Guardian
Support for Private Guardians
Urgent decisions
Complaints
The Guardianship Tribunal (GT), the Office of the Public Guardian (OPG) and the Office of the Protective Commissioner (OPC) are three separate organisations. They work to promote the rights of people with disabilities and to protect them from abuse, exploitation or neglect.
The Guardianship Tribunal is a legal tribunal. It has the power to appoint a Guardian or a Financial Manager (or both) for a person with a disability over 16 years who is not capable of making their own decisions and who needs a legally appointed substitute decision maker where no appropriate arrangements are in place.
The Public Guardian can be appointed as a person’s guardian by the Guardianship Tribunal. The Public Guardian may make decisions on behalf of someone in the areas identified in the Guardianship Order.
The Protective Commissioner can be appointed as a person’s financial manager by the Guardianship Tribunal or by the Supreme Court of NSW. The Protective Commissioner may also be appointed by the Mental Health Review Tribunal or by a magistrate exercising powers under the Mental Health Act. The Protective Commissioner can make decisions about the person’s financial affairs and property.
The Guardianship Tribunal
The Guardianship Tribunal is a legal tribunal established by the Guardianship Act 1987. The Tribunal’s main role is to decide whether a person with a disability, including a psychiatric disability, is able to make their own decisions about personal or financial matters and whether or not the person needs a legally appointed decision maker to make decisions on their behalf.
Most adults with disabilities do not need a guardian or financial manager because they can organise their own personal or financial needs.
Often, when a person is unable to make decisions about how they will live or arrange their financial affairs, their family and the local community rally around, provide support and make decisions on their behalf. In some cases, when there is no one available or there is a problem in providing support, an application may have to be made to the Guardianship Tribunal for the appointment of a substitute decision maker.
However, the Tribunal is seen as a last resort, used only when there are no appropriate or safe informal arrangements in place that can assist the person with a disability to make decisions.
Guardianship Tribunal members
Members of the Tribunal are appointed by the Governor of NSW. There are three types of Tribunal members: legal members, professional members and community members. Legal members must be legal practitioners of at least seven years’ standing. Professional members must have experience assessing or treating adults with disabilities (eg. a doctor, psychologist, or social worker) and the community members must have experience with adults with disabilities.
Tribunal hearings are conducted by panels made up of three Tribunal members: one legal member, one professional member and one community member.
Where are Guardianship Tribunal hearings held?
The Tribunal’s offices are located in Sydney and the majority of hearings are held at these offices. However, the Tribunal also holds hearings in other locations around the State. See Chapter 18 for contact details.
Making an application to the Guardianship Tribunal
Anyone with a genuine concern for the welfare of a person who is incapable of making their own decisions can apply to the Tribunal for a guardian or financial manager to be appointed for the person. The application should be made on an application form obtained from the Tribunal. There is no fee for making an application.
Application forms can be downloaded from the Tribunal's website (www.gt.nsw.gov.au). Applications can also be completed and submitted online (see website for details).
Once received, an application is assessed by the Tribunal. Not all applications proceed to a hearing. A Tribunal staff member may contact the applicant and discuss more informal ways of resolving the situation. If the matter does proceed to a hearing, the Tribunal will decide whether or not to appoint a guardian or financial manager.
Hearings at the Guardianship Tribunal
The Tribunal conducts its hearings with as little formality as possible. The hearings are not like courts where one party is ‘against’ another party. Instead, the focus is on deciding whether a person needs a guardian or financial manager. Hearings are conducted with that question in mind, rather than deciding whether anyone is ‘right’ or ‘wrong’.
Most importantly, the purpose of the hearing is not to put the person with a disability ‘on trial’ or to show that they have done something wrong or are not doing something properly. Although the hearing is about the person with a disability, it is not being held to criticise or punish that person; rather it is about looking into whether the person needs help to make decisions in particular areas of their life so that their interests can be protected.
The person who made the application and the person with the disability should attend the hearing if this is possible but evidence can be taken by phone if necessary. If the person with the disability is not able to attend the hearing, the Tribunal will make every effort to obtain their views before the hearing proceeds.
Other people who know the person the hearing is about, and have an interest in their welfare, may have relevant views or information to contribute and they are welcome to attend the hearing and give evidence.
The person the hearing is about has the right to ask questions at the hearing and to bring documents to show the Tribunal. The person may also ask others, such as family, friends or professionals to come to the hearing to speak about the application.
At the hearing the Tribunal members provide all relevant people with the opportunity to put their views forward and to ask questions.
Having a lawyer at Guardianship Tribunal hearings
The parties may have a lawyer or other advocate represent them but only with the Tribunal’s permission. The reason for this is the desire to keep the hearings as informal as possible. Most matters proceed without legal representation.
The Law Society of NSW can provide the names of private solicitors who have experience in guardianship matters (contact details in Chapter 18: Contacts).
Legal aid may be available and there is also a specialist mental health legal aid service, the Mental Health Advocacy Service (contact details in Chapter 18: Contacts), whose solicitors are regularly involved with guardianship matters and may be able to assist.
Interpreters
A person should let Tribunal staff know in advance if an interpreter is required at the hearing to help the person with a disability or their family members. The staff member can then arrange for an interpreter to be present at the hearing. This includes interpreters who can sign for the deaf, in Auslan.
When is a guardian appointed?
At the hearing, the Tribunal will decide whether a guardian is needed and who the guardian will be. The Tribunal will make a Guardianship Order appointing a guardian only if there is evidence that the person who is the subject of the application:
- Has a disability; and
- Is incapable of making their own lifestyle decisions; and
- Needs someone with legal authority to make important lifestyle decisions for them.
If the person’s lifestyle decisions can be made informally in the best interests of the person, the Tribunal will not appoint a guardian.
Anyone over 18 years of age is eligible to be appointed as a guardian. The guardian must be willing and able to carry out the duties of a guardian and must be considered suitable for appointment by the Tribunal. A family member or friend can be appointed guardian.
If there is no appropriate person or there are other circumstances (eg. conflict), the Tribunal has the option of appointing the Public Guardian, who is a statutory official separate from the Guardianship Tribunal. The Tribunal can appoint a single guardian, joint guardians and alternative guardians.
What powers or functions do guardians have?
In most cases, the Tribunal appoints guardians with specified powers or functions. This means that the Guardian can make decisions in specific areas of a person’s life. The most common functions are:
- Accommodation - to decide where the person should live;
- Health care - to decide what medical and dental practitioners the person should consult;
- Consent to medical and dental treatment - to act as the person’s substitute decision-maker about medical and dental treatment proposed for them by others; and
- Services - to authorise others to provide personal services to the person (usually to assist them to remain in their own home).
If a guardian has been appointed to give consent regarding medical and dental treatment, then a medical practitioner must get their consent before treating the person under guardianship.
A Guardian cannot make decisions about financial matters.
Length of guardianship orders
Guardians are appointed for a specified period of time. In most cases, initial orders can only be made for a maximum of one year at a time. However, in special circumstances, initial orders can be made for a maximum of three years or five years in special circumstances.
The Tribunal must conduct review near the end of the order unless it decides, when making the order, that there is no need for a review. In this case, the order will lapse at the end of the specified period. At the review hearing, the Tribunal decides whether or not to extend the order for a further period.
When is a financial manager appointed?
At the hearing of a financial management application, the Tribunal will decide whether a financial manager is needed and who should be the financial manager. A financial manager is a substitute decision maker. The Tribunal will appoint a financial manager only if there is evidence that the person who is the subject of the application:
- Is incapable of managing their own financial affairs; and
- Needs someone with legal authority to make important financial decisions on their behalf.
The Tribunal must also be satisfied that it is in the person’s best interests to make a financial management order for them. If the person’s financial decisions can be made informally in the person’s best interests, the Tribunal will not appoint a financial manager.
The Tribunal can appoint a family member or friend as financial manager. The Protected Estates Act requires that this person must be supervised by the Protective Commissioner.
The Guardianship Tribunal can appoint the Protective Commissioner as financial manager, who is a statutory official separate from the Tribunal. The Office of the Protective Commissioner charges fees for its services.
What powers does a financial manager have?
A financial manager has the authority to make decisions about all of a person’s financial affairs, including the authority to operate bank accounts, pay bills, make investments and authorise payments for items or services the person may need. A financial manager is able to act in legal proceedings on behalf of the person whose financial affairs they are managing and to ensure their interests are protected in legal matters.
In limited circumstances, the Guardianship Tribunal can exclude part of a person’s estate from the financial management order which means the person keeps control of part of their financial affairs and the financial manager has authority over the rest of the estate.
If a financial management order is made, it suspends any Power of Attorney the person may have made beforehand.
Length of financial management orders
Most financial management orders are indefinite. However, there is scope for the Guardianship Tribunal to review the financial management orders in some circumstances.
Interim financial management orders
The Tribunal can also make an interim financial management order. An interim financial management order is for a specified length of time not exceeding six months. These orders protect a person’s financial affairs while information is being gathered about their capability to manage their own affairs.
The order and reasons for decision
Everyone attending the hearing will usually be advised verbally of the Tribunal’s decision at the end of the hearing. Copies of the written order and the reasons for the decision will be sent to the person who is the subject of the order, the applicant, parties to the matter and other people nominated by the Tribunal.
Consent to Medical Treatment - The 'person responsible' and the Tribunal's role
If a person is an Involuntary Patient, then the Mental Health Act provisions about medical treatment override the Guardianship Act provisions about medical treatment and consent. This means that the medical superintendent has authority to consent to medical treatment - not the person's guardian or the Tribunal.
The information below only applies where the patient is not an Involuntary Patient under the Mental Health Act but is living in the community or is an Informal Patient admitted under s12(2) on the Mental Health Act.
All medical practitioners have a legal and professional responsibility to obtain consent before treating any patient, except in emergencies. The patient ususally gives their own informed consent to the treatment.
If a medical practitioner wishes to treat a patient who cannot give their own informed consent to treatment then the medical pratitioner should get the consent of the 'person responsible' before treating the patient. The Guardianship Act sets out who is the 'person responsible'.
A 'person responsible' is not necessarily the patient's next of kin. He or she is either:
- A guardian (including an enduring guardian) who has the function of consenting to medical or dental treatments; or
- If there is no guardian: the most recent spouse or de facto spouse with whom the person has a close, continuing relationship. 'De facto spouse' includes same sex partners; or
- If there is no spouse or de facto spouse: an unpaid carer who is now providing support to the person or provided this support before the person entered residential care; or
- If there is no carer: a relative or friend who has a close personal relationship with the person.
It is not necessary to get consent for treatment the medical practitioner considers to be urgent and necessary to save the patient's life, prevent serious damage to the patient's health or alleviate significant pain or distress.
Consent is also not required for over-the-counter medications or first-aid treatments.
In all other circumstances, however, consent to treatment is required. The Guardianship Act divides medical and dental treatment into three categories (special, major and minor) and identifies who can give consent to those treatments.
The 'person responsible' can consent to minor or major treatment, but only the Guardianship Tribunal can consent to special treatment.
If there is no ‘person responsible’, the Tribunal can provide substitute consent for medical or dental treatment if the patient is incapable of consenting to their treatment.
The Tribunal will hold a hearing to decide whether consent should be given to the medical practitioner for the particular treatment or whether treatment should be given to a person even if they are objecting to treatment.
It is not necessary to get consent for treatment the practitioner considers to be urgent and necessary to save the patient’s life, prevent serious damage to the patient’s health or alleviate significant pain or distress.Approval of informal admission to a psychiatric facility
A person’s guardian may arrange for them to be admitted to a psychiatric facility as an Informal Patient under s12 (2) of the Mental Health Act. This may happen because the guardian is concerned about the person but the situation does not warrant them being scheduled as an Involuntary Patient.
The guardian must apply to the medical superintendent for permission for the person to be admitted.
To safeguard the interests of the person under guardianship, the guardian must also obtain approval of the Guardianship Tribunal for the application to the medical superintendent. The guardian must request the Tribunal’s approval in writing. They may use the request form available at most mental health facilities.
The Tribunal will then hold a hearing to decide whether to approve the guardian’s application to the medical superintendent. If the Tribunal approves the application, the guardian may proceed with the application. If the person has already been admitted to a psychiatric facility, then the guardian must seek the Tribunal’s approval as soon as possible.
Although the Tribunal may approve the guardian’s application, the medical superintendent has the final say over whether the person is admitted to the hospital.
Most importantly, the Tribunal’s approval cannot override section 65 of the Mental Health Act that states that informal patients may discharge themselves from hospital or leave the hospital at any time. This provision is intended to protect the rights of people who admit themselves voluntarily to psychiatric hospitals as informal patients and it applies equally to guardian-admitted patients.Reviews and Appeals
The Guardianship Tribunal has power to hold another hearing where it reviews a guardianship or financial management order. This is called a review of the order.
If a person is dissatisfied with a decision of the Tribunal and wishes an independent organisation to look at the Tribunal’s decision, then the person can take action in the Supreme Court or the Administrative Decisions Tribunal (only for decisions made on or after 28 Feb 2003). This is called an appeal from the order.
Reviews of guardianship orders
The Guardianship Tribunal will automatically hold a review of a guardianship order at the end of the term of the order. However, the Tribunal may also review the order if it receives a request for a review from the person under guardianship, the guardian, or any other person who has a genuine concern for the welfare of the person under guardianship.
At the review the Tribunal may decide to:
- Continue the order appointing the guardian for a further specified period;
- Change the functions;
- Change who will be the guardian; or
- Dismiss the order if the person is now able to make their own decisions or if the guardian is no longer needed to make decisions for the person.
Reviews of financial management orders
Although most financial management orders are indefinite, sometimes the Tribunal can decide to review a financial management order after a specified time.
Alternatively the Tribunal may hold a review hearing at the request of the person who has a financial manager, the financial manager or any other person who has a genuine concern for the welfare of the person whose estate is under financial management. The review may be about the need for financial management or it may be a request to replace the financial manager with someone else.
At the review hearing, the Guardianship Tribunal can:
- Revoke the financial management order if it is satisfied that the person is able to manage their own affairs;
- Revoke the financial management order if it is satisfied that this would be in the person’s best interests;
- Confirm the financial management order as it was made;
- Confirm the financial management order but order that a different person should be the financial manager; and/or
- Vary the financial management order.
Appeals from Guardianship Tribunal decisions
If someone is dissatisfied with a Guardianship Tribunal decision to make a guardianship order or financial management order, they may appeal to either the Supreme Court of NSW or the NSW Administrative Decisions Tribunal.
They must appeal within 28 days of receiving the written reasons for decision. An extension may be granted in some circumstances. Appeals are only permitted on certain legal grounds and may involve costs so they should seek legal advice before lodging an appeal.
For information about how to make an appeal, costs and other matters contact the Supreme Court or the Administrative Decisions Tribunal directly (contact details can be found in Chapter 18).
Further information
The Guardianship Tribunal has a free telephone and email Enquiry Service available to the public. Enquiry Service staff can help people decide whether guardianship or financial management is the best option in the circumstances or whether there might be other ways of resolving problems. They also help if someone already has a guardian or financial manager but wants to ask for the guardianship or financial management order to be reviewed.
The Tribunal’s website contains information about the role of the Guardianship Tribunal, publications and details of upcoming seminars, and education sessions about the Tribunal. The Tribunal's brochure "What does the Guardianship Tribunal do?" explains the role of the Tribunal and what happens at a hearing.
The website also contains application forms which can be downloaded and sent to the Tribunal. Applications for guardhianship and/or financial management can be completed and submitted on-line.
People may also borrow the Tribunal’s video ‘In Their Best Interests’ from their local library or Legal Information Access Centre. This video shows a typical Tribunal hearing and deals with the kinds of issues and concerns that are involved. Contact details can be found in Chapter 18.
Office of the Protective Commissioner (OPC)
Who is the Protective Commissioner?
The Protective Commissioner is an independent public official legally appointed to protect and administer financial affairs and property of people unable to make financial decisions for themselves where there is no other person suitable or able to assist.
The people who the Protective Commissioner helps have a disability that affects their capacity to make financial decisions. Usually this is due to mental illness, brain injury, intellectual disability, psychiatric disability, dementia or other disability.
The Protective Commissioner can be appointed by the Supreme Court, Guardianship Tribunal and in certain circumstances the Mental Health Review Tribunal or a magistrate.
The Protective Commissioner also directs and authorises people who have been appointed as Private Financial Managers by the Guardianship Tribunal or court to manage the financial affairs of those who are unable to manage their own affairs.
Where do the Powers of the Protective Commissioner come from?
- Protected Estates Act 1983
Services provided by the Protective Commissioner
A wide range of legal, technical, financial, specialist disability and other services are provided by the Protective Commissioner, such as:
- Protecting assets and legal rights;
- Facilitating the buying and selling of a home;
- Organising an adequate cash flow to pay bills;
- Liaising with financial and legal institutions;
- Managing a business; and
- Making investments.
How does the Protective Commissioner become involved?
An application for a Financial Management Order is usually made to the Guardianship Tribunal or Supreme Court by someone with a genuine concern for the welfare of a person who is having serious difficulty managing their own affairs. In most instances, the applicant is a family member, friend, social worker or health care professional. In certain circumstances a magistrate or the Mental Health Review Tribunal can make an order appointing the Protective Commissioner.
A Financial Management Order is a legal decision of the relevant tribunal or Court to appoint the Protective Commissioner, or a private individual under the supervision of the Protective Commissioner, to manage the financial affairs of a person.
The Guardianship Tribunal and the Supreme Court make most Financial Management Orders.
How clients come to the Office of the Protective Commissioner
The role of the Protective Commissioner
Liaison Officers at the OPC consult with OPC's clients regularly about their future plans and needs. Additional specialist professional services are available to assist on taxation, investments, legal services, disability issues and property. Where appropriate, external specialist advice is sought.
The Protective Commissioner is a substitute decision-maker for client's financial matters. In making any significant financial decision OPC staff seek the views of the client and disability, legal and financial specialists. Where it is appropriate, the views of people important to the client such as family, close friends and guardian are also sought.
Decisions are made in accordance with the Office's Decision-Making Guidelines, as well as the Protected Estates Act, the Guardianship Act and the Disability Services Act. OPC staff undertake the following roles:
- Keep in regular contact with the person about their financial affairs and future plans;
- Assist the client to be as independent as possible with their financial affairs;
- In consultation with clients, OPC staff prepare a plan to ensure that the client's financial affairs are managed in a timely and professional manner;
- Ensure that financial entitlements and income are received by clients and that clients receive an equitable or fair share of government-subsidised services;
- Ensure clients' bills are paid and other financial obligations are met, while taking account of the client's financial situation;
- Safeguard the legal interests of clients;
- Protect and arrange for the investment of clients' money for future needs;
- Provide money to clients to meet their present needs; and/or
- Seek professional advice when complex financial decisions are to be made, for example, taxation or investment advice.
Fees
The Office of the Protective Commissioner charges fees for managing the financial affairs of people who have a decision-making disability. Where a person other than the Protective Commissioner has been appointed as manager of a person's affairs, the OPC charges fees for supervising the private manager.
The Protected Estates Regulation 1995 sets out the fees that they can charge. The Protective Commissioner's management fees do not attract any GST liability because they are included in the exemptions nominated in "A New Tax System (Goods and Services Tax) (Exempt Taxes, Fees and Charges) Determination 2000 (No. 2)".
For information on contact details of the Protective Commissioner, go to Chapter 18.
The Office of the Public Guardian
The Office of the Public Guardian (OPG) promotes the rights and interests of people with disabilities through guardianship, advocacy and education. The Guardianship Tribunal appoints the NSW Public Guardian as guardian of last resort and the Office is part of the Attorney General's Department. The OPG's main role is to:
- Make a particular lifestyle decision on behalf of a person under the guardianship of the Public Guardian when given the authority to do so;
- Provide or withhold consent to medical and dental treatment on behalf of a person under guardianship of the Public Guardian when given the authority to do so;
- Be an advocate on behalf of a person under guardianship for services that person may need;
- Be the guardian for the time specified in the guardianship order;
- Provide information and support to private and enduring guardians; and
- Provide information on the role and function of guardians to the community.
The NSW Guardianship Act 1987 is the governing legislation for the appointment of guardians and for guardianship practice in NSW. The Act created the NSW Guardianship Tribunal and the Office of the Public Guardian in 1989. In 1998 it was amended to allow for the appointment of enduring guardians. The Act has again been amended to enable the NSW Administrative Decision Tribunal to hear appeals against decisions made by the Guardianship Tribunal and to review decisions of the Office of the Public Guardian.
Guardians are appointed to make lifestyle decisions on behalf of another adult, who has a disability, for a limited period of time. There are three types of guardians in NSW:
- Enduring guardians - people appointed by the person with the disability, prior to the person's lack of capacity, to be her/his guardian.
- Private guardians - family members and/or friends who are appointed by the Guardianship Tribunal to be the guardian of a person with a disability.
- The NSW Public Guardian - a public official who can be appointed by the Guardianship Tribunal to be the guardian of a person with a disability when there is no other person suitable or able to be the guardian.
Support for Private Guardians
In NSW, people appointed as a guardian by the Guardianship Tribunal or the Supreme Court, can receive support and information from the Private Guardian Support Unit (PGSU).
The PGSU gives out information on:
· The responsibilities of a guardian;
· Making decisions on behalf of another person;
· Working with service providers and doctors when making decisions; and
· Resources that may assist a guardian to make the best decision possible.
The PGSU does not supervise the actions of private guardians nor tell a guardian what decisions to make. The details of any conversations between guardians and staff of the PGSU are strictly confidential. The staff will be experienced with guardianship and the support of people with disabilities. People can discuss concerns or questions about being a guardian or making a particular decision with the Information Officer.
Staff at the PGSU can also send additional information on particular topics or refer people to other services needed. The PGSU also produces a regular newsletter that is sent out 6 times a year to people who have been appointed as a guardian. Contact for the PGSU can be found in Chapter 18.
Urgent decisions
To contact the Public Guardian for an urgent decision outside of office hours, call
9265 3184. A recorded message will give the number for a pager service. Callers should give the pager service their name and number and a staff member from the Office of the Public Guardian will return their call. Do not give any information regarding the client to the paging service.
Complaints
A complaint to the Public Guardian or a request for review of a guardianship decision may be made by the person under guardianship, family members or friends or service providers.
People can make a complaint or ask for a decision to be reviewed if:
- An action or decision of the Public Guardian is not in the best interest of the person with the disability;
- Information known was not considered and/or
- Someone has been treated unfairly or inappropriately.
If someone has regular contact with a staff member, there may be benefits in raising the concerns with that person first. It may be possible to resolve any concerns and achieve a better outcome for the person under guardianship. Concerns may also be raised with the staff member’s supervisor.
To make a formal complaint or request a review do so over the phone, in writing, or in person. A complaint or request may be made to:
- The staff member with whom the person has contact;
- The staff member’s supervisor;
- The Complaints Support Officer; or
- The Public Guardian in writing.
After a complaint is made the person will receive written notification within five working days that the complaint or request has been received. They will receive a response to their complaint or request in ten working days unless additional information is required.
A request for an internal review is dealt with within 21 days.