What Is a Guardianship Order?
A guardianship order is a legal arrangement made by NCAT that allows someone—usually a family member or the Public Guardian, to make personal and lifestyle decisions for an adult who lacks decision-making capacity.
These decisions may include decisions such as where the person lives, what medical care they receive, the services they require or can access and who they spend their time with.
It is important to note that guardianship orders do not cover financial decisions. Generally, if a guardianship order is being sought, a financial management order may also be necessary. Be sure to consider this in advance.
When Is a Guardianship Order Needed?
If you are reading this blog, you probably have concerns about a family member or friend’s decision-making capacity, or about an order that has already been made. A guardianship order may be appropriate when:
- The person has a decision-making disability.
- There is a genuine need for decisions to be made.
- No less-restrictive alternative (such as an enduring guardian) is available.
- There is a dispute or concern about the person’s wellbeing.
Real-Life Examples
Whilst every situation requires an application of the facts specific to the individual and their needs with regards to the law, we’ve set out some real-life examples of the types of matters that might give rise to the need to approach the Guardianship Tribunal.
Joan’s Story
Joan, 79, was living at home with help from her son, Michael. As her dementia progressed, she began refusing care. Michael believed she needed supported accommodation, but Joan’s daughter disagreed. Their GP applied to NCAT. After hearing from everyone, NCAT appointed Michael as Joan’s guardian for 12 months to manage her care and accommodation decisions.
Frank’s Story
Angela and Tom were surprised to learn that a Public Guardian had been appointed for their father, Frank, after a stroke, without their knowledge. They applied for a review, submitted medical reports and letters from Frank’s GP, and explained their involvement in his care. NCAT agreed they should have been consulted and appointed Angela as guardian instead.
Who Can Apply for a Guardianship Order?
Applications can be made by:
- Family members or close friends
- Health or social workers
- The person themselves (in some cases)
- Any person with a genuine concern for the individual’s welfare
How the Process Works
- Submit your application to NCAT with supporting documents (e.g., medical reports).
- NCAT notifies relevant parties and schedules a hearing.
- NCAT determines whether a guardian is needed and who should be appointed.
- Orders are usually time-limited and reviewed periodically.
Tips for Families in Crisis
When a loved one’s health suddenly declines or a guardianship decision is made without warning, it’s easy to feel overwhelmed.
It’s okay to feel unsure and nervous, particularly if you have never been to a tribunal hearing before. The hearing itself won’t feel like a court room. Instead, it will be conducted with as little formality as possible. However, the process will move quickly so it is important that you are prepared so that you can accurately and succinctly speak to your points. After all you are likely reading this article because your loved one or friend is in need. This is not the time to wing it as there is likely a lot hinging on getting this right.
One of the most important tips we can give you here is to be overly prepared. Here are some tips that might help:
- NCAT has clear, step-by-step information on its website. This can help you understand your rights and next steps.
- Prepare a list of items you wish to address. It’s easy to forget what you want to say when you are before the Tribunal. Having a list can help you to stay focused.
- Read, save, or compile any medical reports, emails, and notes from doctors or carers as they can be important later. These can be critical to the case.
- When at the hearing you’ll be asked questions and given a chance to speak. Listen carefully to what others say. Bring a notepad and pen to jot down anything important that you may want to respond to.
- Respond thoughtfully. If a doctor says, for example, “Jim’s short-term memory is impaired and he needs 24/7 care,” and you disagree, be prepared to explain why. Dismissing expert opinions without strong evidence (such as another medical report) may affect your credibility.
- If you’re unsure about a question, pause and take a breath. It’s okay to take a moment to think before answering.
- Speak up if needed. If you weren’t consulted or disagree with a decision, you can ask for a review. It’s your right.
- Lean on your support network. Talk to your GP, a social worker, or a lawyer who understands guardianship law.
- Most importantly, try to keep your loved one’s wishes and dignity at the heart of every decision even when things are hard.
Checklist for Preparing for a Guardianship Hearing
Do:
- Be prepared.
- Stay calm and focused.
- Bring relevant documents.
- Explain why you or someone else is suitable as a guardian.
- Remain focused on the person’s best interests.
- Be respectful and clear.
Don’t:
- Interrupt or argue.
- Dismiss professional opinion without good reasons.
- Get caught up in family conflict.
- Make assumptions about others.
- Overlook the person’s voice even if they lack capacity.
Can a Guardianship Order Be Changed?
Yes. If you believe a guardianship order is inappropriate or not in the best interests of the person, there are mechanisms to contest or appeal the order. An application can be made to NCAT to review the appointment if there are concerns about the guardian’s decisions or the person’s capacity at the time of the order. NCAT has the authority to revoke, suspend, confirm, or vary the order if satisfied that such action is in the person’s best interests.
If you are dissatisfied with a decision made by NCAT, you can also appeal to the NCAT Appeal Panel or the NSW Supreme Court, within 28 days of the decision. Common grounds for appeal include procedural fairness or new evidence affecting the person’s welfare.
Do You Need a Lawyer?
Not always. NCAT is designed to be accessible. But if the situation is complex, or there’s family conflict, working with an estate planning lawyer can make a big difference.
You may also want to consult a lawyer if you would like them to advise and assist you to prepare for the hearing. Lawyers can help you prepare what you want to say. They understand how to apply facts to the law and can assist you to present your argument clearly and succinctly. That kind of support can be invaluable especially when emotions are high and the outcome matters deeply.
How We Can Help
At TLB Law & Co, we understand guardianship matters can be challenging and a bit daunting.
Whether you need help applying for a guardianship order, responding to an existing one, or simply wish to understand your options, our experienced lawyers can guide you and let you know if legal advice and assistance might be appropriate for your circumstances.
The first 15-minute call is free. Contact us today to arrange a confidential consultation and take the next step with confidence. While we may not be able to assist with every situation, we’ll let you know quickly if your matter falls outside our scope, and where possible, we’ll point you in the right direction.