Guardianship Orders

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

The Guardianship Orders enable the appointed Guardian to make health and wellbeing decisions, such as accommodation arrangements, medical treatments, care, maintenance, education and support. The appointed Guardian can also make decisions surrounding who can contact and visit the person, who the person can contact and visit, as well as where any visits will take place, the length of those visits and whether another person must be present during those visits. 

Applying for Guardianship Orders

To initiate the Guardianship application with NCAT, a family member, close friend or concerned individual must complete the prescribed NCAT application form and prepare copies of the supporting documentation. These documents must then be posted or delivered in person to the Guardianship Division of NCAT. 

The applicant will then receive a letter informing them about a hearing date. The hearing involves the applicant and the person whose capacity is in question meeting with the Tribunal and the Tribunal making an assessment on whether someone is needed to make healthcare and lifestyle decisions on the person’s behalf. After the hearing, the Tribunal will make a decision on whether to make a Guardianship Order. 

The duration of a Guardianship Order will be listed on the order. Most Guardianship Orders made in the first instance are made for one year, however, some orders can be made up to three years. Upon review, most can be renewed for up to three or five years at a time, depending on the circumstances and criteria met. 

Review of a Guardianship Order

There are three instances when a Guardianship Order can be reviewed:

• Statutory Review

Most Guardianship Orders will be automatically reviewed close to the end of the period of the order. 

• Review Request

An application requesting a review can be lodged by a person who has genuine concern for the person under Guardianship. NCAT can refuse to deal with the review application if there are no valid grounds to warrant a review, or if the order had been reviewed on a previous occasion. 

• ‘Own Motion’ Reviews

If NCAT decides at any given time that a review would be in the best interests of the person under the Guardianship Order, it can conduct a review. 

A review hearing will be conducted and NCAT will consider any evidence presented by the concerned individuals, family members, close friends and professionals involved in the care and management of the person under guardianship. 

Appealing a Guardianship 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 Guardianship Orders is a long and tedious process. Additionally, should someone you know seek appeal or review of the Guardianship Orders, further legal proceedings arise, which will only bring stress and incur costs for you and your family members and/or close friends. 

To avoid the unnecessary process of needing a Guardian to be selected for you once you have lost capacity, and to avoid being involved with Tribunals and the Courts, it is far easier for you to appoint Enduring Guardians while you still have capacity. Here at Green & Associates Solicitors, our experienced lawyers will work with you to appoint the most suitable Guardians 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 guardianship 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 the Public Trustee & Guardian to save money, expedite and improve care;
• We have successfully challenged capacity and had enduring guardian 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).