Most people with disabilities do not need substitute decision-makers, and can be supported to make their own decisions. However, substitute decision-makers can be appointed by the NSW Civil and Administrative Tribunal (NCAT) when a person with a disability lacks decision-making capability. The two most common applications to be made to the NCAT Guardianship Division are about:
1. Guardianship – This is when a person is appointed under the Guardianship Act to make decisions on behalf of another person who lacks decision-making capability in regards to their own personal and lifestyle decisions, because of a disability. These may include decisions such as where the person lives, what services they receive, and what medical and dental treatment they receive.
2. Financial management – This is when NCAT appoints someone as the financial manager for the person who is the subject of the application. A financial manager has the authority to make decisions about financial affairs for someone who is incapable of making these decisions for themselves. Financial affairs refers to things such as operating bank accounts, paying bills, investing money, selling or buying property and includes legal affairs such as instructing a solicitor to act in legal proceedings.
There are some important things to remember about guardianship and financial management:
- If you are not happy with the decision of the tribunal you can appeal to either the Supreme Court or the NACT Appeal Panel. An appeal may be made on a question of law or any other grounds (although the Supreme Court must grant leave for an ‘other grounds’ appeal to be made to it).
- The Tribunal can revoke (cancel) a guardianship order if there is no further needs for a guardian.
- The Tribunal can revoke a financial management order if it is satisfied that the person is now capable of managing their financial affairs themselves or that it is in their best interests that the order be revoked.
- If you are making an application one of the key responsibilities of the applicant is to tell the person and others involved that you are making an application. The Guardianship Act 1987 requires the applicant to give each party to an application, including the subject person, a copy of the application.
- The length of a guardianship order can be for up to 3 years. However, most initial guardianship orders are made for a period of 12 months or less.
The length of a financial management orders is usually indefinite. The orders continue and are not automatically reviewed; they are reviewed if the initial order outlines it to be reviewed within a particular time or someone has a genuine concern for the welfare of the person, and believes that the appointed financial manager is not acting in the best interests of the person whose finances are being managed, or that the person is now able to manage their own finances.