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If your loved one no longer has the capacity to make important life decisions, and there is no valid Appointment of Enduring Guardian document or guardianship order in place, then you may need to apply to the New South Wales Civil and Administrative Tribunal (Tribunal) for a guardianship order.
The Tribunal will consider the following questions before making a guardianship order:
1. Is the person someone for whom the Tribunal could make an order because that person has a disability which prevents them from being able to make important life decisions?
Section 14 of the Guardianship Act 1987 (NSW) (Act) provides that the Tribunal may make a guardianship order for a person if it is satisfied that the person is “a person in need of a guardian”. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person”: section 3(1).
A person with a disability is a person who is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally ill person within the meaning of the Mental Health Act 2007 or otherwise disabled. Further, that person is restricted in one or more major life activities to such an extent that the person requires supervision: section 3(2).
2. Should the Tribunal make a guardianship order and if so, what order should be made?
The Tribunal must consider the matters in section 14(2) of the Act including:
(a) the views (if any) of:
(i) the person, and
(ii) the person’s spouse, and
(iii) the person’s carer and
(b) the importance or preserving the person’s existing family relationships;
(c) the importance of preserving the person’s particular cultural and linguistic environments; and
(d) the practicability of services being provided to the person without the need for the making of such an order.
3. Who should be the guardian?
The Tribunal must be satisfied that any person appointed as a private guardian meets the requirements of section 17(1) of the Act. The person must:
(a) have a personality generally compatible with the personality of the person under guardianship;
(b) have no undue conflict of interest (particularly financial) with those of the person; and
(c) be able and willing to exercise the functions of the order.
4. How long should the order last?
The Tribunal can make an order for as long as it sees fit.
Usually, the parties to the Tribunal hearing are self-represented. If the matter is particularly difficult, you may seek to engage the services of a lawyer to appear on your behalf at the Tribunal. However, you must seek the leave of the Tribunal beforehand.
You’ll find the team at Conditsis Lawyers is here to demystify all of your guardianship questions. Call us on (02) 4324 5688
Your Wills & Estates Team
Associate Lawyer | Property & Conveyancing, Wills & Estates
Wills & Estates, Conveyancing, and Commercial Leasing