Financial Management and Guardianship orders

Who needs an Enduring Power of Attorney and an Appointment of Enduring Guardianship?

It is recommended that all people over the age of 18 years have an Enduring Power of Attorney and Appointment of Enduring Guardian to ensure that their affairs, including health and financial matters, can be managed by someone they trust.

To appoint an Attorney or Guardian you must have sufficient legal capacity. Once you have lost capacity, for any reason, the legal ramifications can be serious because you can no longer nominate someone to act on your behalf.  Essentially, by the time you need an Attorney or Guardian, it is often too late to appoint one.

When a person hasn’t appointed an Attorney or Guardian and has now lost capacity, what next?

The average Australian is living longer than ever before and there are many causes for people to lose decision-making capacity.  So what can be done if a loved one has lost capacity without having nominated an Attorney or Guardian in a valid legal document?

An application can be made to the New South Wales Civil & Administrative Tribunal (“NCAT”) setting out the circumstances and requesting that NCAT make a Guardianship order and/or Financial Management order in favour of a particular person.

Following receipt of the application, NCAT will hold a hearing by telephone conference.  The hearing is an opportunity for the person who is the subject of the application and other interested persons to outline their concerns and suggest an appropriate person to manage their affairs.   NCAT must be satisfied that the person in relation to whom an order is being sought:

·         is incapable of managing their own affairs;

·         has a disability that effects their decision making; and

·         there is a need for someone else to make decisions for them. 

They will then assess who should be appointed to act on upon the person’s behalf. If NCAT determine that no person is suitable, they can appoint the NSW Public Guardian.

Financial Management or Guardianship?

A financial manager is someone legally authorised to make financial and legal decisions on behalf of the person incapable of managing their affairs, excluding personal or lifestyle decisions.  NCAT can only consider financial management in respect of persons who have assets in NSW.

A Guardian is someone who is legally authorised to make personal or lifestyle decisions for someone who cannot manager their affairs, excluding financial decisions. Personal and lifestyle decisions include:-

·         where a person shall live;

·         what support services they receive;

·         what healthcare and medical treatment they receive; and

·         whether restrictive practices are appropriate.

NCAT can only consider Guardianship applications in respect of people who live in NSW.

To find out more or commence an application, visit www.ncat.nsw.gov.au