The Guardianship Tribunal’s role is to appoint substitute decision makers for adults who have a decision making disability.

In 2010/11 there were 7,313 applications filed in the Guardianship Tribunal of New South Wales (“the GT”). There were 8,963 matters finalised, 5,727 hearings and 14,388 enquiries.

The work dealt with by the Guardianship Tribunal is increasing and changing. 49% of all applications related to dementia patients. This trend will continue as the population grows older.

The Guardianship Tribunal’s role is to appoint substitute decision makers for adults who have a decision making disability. Causes of decision making disability include: dementia, intellectual disability, mental illness, stroke, brain injury and other factors. In 2010 88,000 people had dementia in NSW.  By 2030 the number will be 188,000.

The Tribunal general makes 2 types of appointments. Guardianship, if a person can no longer make health, welfare, accommodation and for example end of life decisions. Financial management, if a person is not capable of making financial decisions. The appointments are made on the basis that the person has not made an Enduring Power of Attorney or Enduring Guardianship appointment and has lost the capacity to do so.

43% of the applications to the Tribunal involve guardianship, 63% are appointed to the Public Guardian. 47% of applications involve financial management,  55% are appointed to the NSW Trustee and Guardian..

The Guardianship Tribunal also has the power to review Enduring Powers of Attorney and Enduring Guardianship appointments. These reviews may arise in circumstances where a person acting under Power of Attorney of Enduring Guardianship is not acting in the best interests of the person who has given the power.

The Guardianship Tribunal in hearing these applications can appoint private financial managers or guardians or it can appoint the NSW Trustee or The Public Guardian to take control, meaning the family of the person with the disability may be excluded from the future management of that person.

Legal representation at the Guardianship Tribunal is not permitted without the permission of the Tribunal. In 2009/10 only 2.8% of applications were permitted legal representation.

So what happens if you appear as a party at the tribunal and you are not satisfied with the orders made by them? Perhaps you feel that you were not given a fair hearing or that another party was taken more notice of in putting their side of the story. Given that nearly half of the matters dealt with by the Guardianship Tribunal relate to a person’s finances and property it is very likely there will be dissatisfaction some decisions. What can you do? What is your next step?

There is an opportunity to lodge an appeal or an application for review in the Administrative Decisions Tribunal of New South Wales (“the ADT”). The most common ground for appeal is on the basis of procedural fairness. For example, when you believe you have not been given a fair or proper opportunity to be heard or to put your story to the Guardianship Tribunal you can then appeal to the Administrative Decisions Tribunal.

In addition to being able to review decisions of the Guardianship Tribunal, the Administrative Decisions Tribunal can also review decisions of the NSW Trustee and Guardian (“the NSWTG”) and the Public Guardian (“the PG”) who may have the management of the person and whose decisions you may wish to challenge. You may wish to appeal a decision for example to sell you parent’s family home to fund aged care fees.

Appeals must be lodged within 28 days after the decision maker provides the party with written reasons. There are circumstances when this time limit can be extended. You can have the benefit of legal representation at the Administrative Decisions Tribunal to assist you and appear for you.

James Kelly and our Estate Planning Team have had years of experience in this area of elder law. They are able to advise and represent you at the ADT, so please contact them on 1800 770 780 to get the advice you need.

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