Financial Management Orders

A Financial Management Order is an order made by the Guardianship Division of the NSW Civil and Administrative Tribunal (‘NCAT’). The order empowers an individual to make legal and financial decisions on behalf of a person who does not have the capacity to make these decisions on their own. This is distinct to Guardianship Orders that are designed for healthcare and lifestyle decisions. 

It is important to note that NCAT can only consider financial management applications regarding individuals who have assets in NSW. 

Applying for Financial Management Orders 

To initiate the application process, a family member, close friend or concerned individual can lodge the prescribed NCAT application form and supporting documentation either via post or in person. NCAT will then notify all relevant parties of the hearing date, time and place.

Before making a Financial Management Order, NCAT must first be satisfied of the following elements: 

• that the person is incapable of managing their financial affairs; 
• that there is a current need for someone else to manage the person’s financial affairs; 
• it is in the person’s best interests for an order to be made. 

If the abovementioned elements are satisfied, a Financial Manager will be appointed by NCAT. The Financial Manager is able to make decisions about any aspect of a person’s finances, unless NCAT specifically excludes a part of the person’s estate from management. 

The person lodging the application can suggest a Financial Manager on the application form, but NCAT is not bound by it and will make its own assessment. At the hearing, NCAT will determine whether the individual suggested is suitable for the role. NCAT may ask about the individual’s experience with managing money, their own financial history, and any conflict of interest that may arise. 

Upon assessment, if NCAT finds that there is no one in the person’s life who is suitable or willing to take on the role as private Financial Manager, NCAT can appoint the NSW Trustee and Guardian as Financial Manager. 

Review or Revocation of a Financial Management Order 

An application for revocation of a Financial Management Order can be made if the person has regained capacity to manage their financial affairs, or if it is in the best interests of the person that the order be revoked. 

The prescribed NCAT application form for review or revocation will have to be lodged with NCAT. The application can be made for a review of the Financial Manager appointed, rather than the Financial Management Order itself. 

NCAT has discretion to refuse to review a Financial Management Order if the application does not disclose the grounds that warrant a review or if the order has been reviewed previously. 

If there are genuine grounds to review the Financial Management Order, NCAT will set a hearing date to make an assessment on the matter. NCAT can only revoke the appointment of a Financial Manager if it is satisfied of any of the following; 

• the appointed Financial Manager seeks revocation; 
• the revocation is in the best interests of the person lacking capacity to manage their own financial affairs; or
• the Financial Management Order itself is revoked. 

Appealing a Financial Management Order

The right to appeal any decision of NCAT’s Guardianship Division is set out in Schedule 6 of the Civil and Administrative Tribunal Act 2013. 

The appeal can be made to the NCAT Appeal Panel or the NSW Supreme Court. Appeals must be made within 28 days of the date of the decision or from the date written reasons for the decision were given. 

As you can see, the process of obtaining Financial Management Orders is a tedious one, and there is risk of appointment of a Financial Manager who will not act in your best interests. As such, we strongly recommend that you appoint attorneys under the Enduring Power of Attorney while you have the capacity to select trusted family members and close friends. 

Here at Green & Associates Solicitors, our experienced solicitors will work with you to appoint the most suitable attorneys who have your best interests at heart. Contact us on (02) 8080 7585 for a free consultation.

Green & Associates Solicitors Experience and Success 

• We have successfully resisted an application for financial management orders even where the subject was in her early 80s and had been diagnosed with dementia;
• We have successfully resisted applications and overturned appointments by proving elder abuse, both in a physical and financial sense;
• We have successfully replaced other appointed attorneys to save money, expedite and improve care;
• We have successfully challenged capacity and had attorney appointments documents set aside, leading to successes in unravelling messes in commercial, family and property disputes.

We also provide in-house advice to companies on a range of matters, including:

• employment-law issues (i.e. enforcing or dispute a restraint of trade clause for previous or new employees);
• compliance and regulatory issues (i.e. licencing and underquoting breaches)
• criminal matters;
• property matters;
• defamation proceedings; and
• all types of commercial matters (i.e. drafting shareholder agreements).