General & Enduring Guardianship

A Guardian is a legally appointed substitute decision-maker who makes lifestyle or medical decision during the period of a guardianship order. An Enduring Guardianship will also take effect when the appointer no longer has capacity and for the period of need. The Guardianship Act allows a person to determine who they want to make decisions should they lose capacity as a result of dementia. Legislation does not put forward a test for determining whether the appointer’s capacity is sufficiently impaired to give effect to the Enduring Power of Attorney, while one does exist at common law.

Guardianship Act requires a solicitor to explain the appointment to the appointer and guardian; ensuring the guardian is aware of their duty to give the welfare and interests of the appointer paramount consideration and acting with the parameters of the Act.Accordingly the appointer must understand the nature and effect of the document, which certifies understanding so problems are less likely once capacity is lost.

The appointer can also limit or exclude authority and can add further functions. In support the guardian must follow directions, unless the Guardianship Tribunal directs otherwise.

The Guardianship Tribunal (GT) has authority to hear and appoint a guardianship orders or financial management orders for adults with decision-making disabilities. While the Public Guardian is the statutory body appointed as the guardian of last resort for people lacking capacity to make such an appointment.

The GT can review an Enduring Guardian and Power of Attorney appointments,  thus confirming, revoking or varying the functions in instances of mismanagement. This effectively protects dementia sufferers, however such issues must be brought to the tribunals’ attention, thus a lot of cases may go unnoticed or the detection of abuse delayed. 

The proceedings are conducted informally and are not bound by rules of evidence. However legal representation at the GT is not permitted without permission, which leads to questions about procedural fairness. Decision made by the GT can be reviewed internally or through an application to the Administrative Decision Tribunal of NSW.  (ADT) The ADT can also review decisions by the NSW Trustee and Guardianship and Public Guardian. Beneficially legal representation at the ADT is permitted, which increases the chance of a just resolution for dementia sufferers.

NSW Trustee and Guardianship can be appointed as a financial manager of last resort for people who lack capacity. It may be appointed directly or to oversee a private financial manager. The body allows families and careers to ease the burden of caring dementia patients through the Active Assist service, which provides support through secure management of financial affairs.

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