Guardianship and Financial Management
There can be little doubt that when our friends, family or colleagues face cognitive (or some other) decline they may need outside help in making important decisions especially if the informal arrangements do not work. In some cases there might be a valid enduring power of attorney or perhaps an enduring guardianship in place that removes the need for formal orders from the Guardianship Division of the New South Wales Civil and Administrative Tribunal (or Supreme Court). However, not everyone has a workable arrangement in place so that it may be necessary to get help from the tribunal (a.k.a. Guardianship Division of NCAT) or Supreme Court of New South Wales.
The guardianship division of NCAT does most of the state's work when it comes to appointing substitute decision-makers for personal decisions (guardianship) and financial decisions (financial management) although the Supreme Court still has jurisdiction. Given that there are different procedures in place between the Tribunal and the Court and because proceedings are far less expensive at NCAT it often makes sense to bring the application there. Whilst the role of lawyers has been reduced (or maybe non-existent) for many tribunal applications there can be great merit in getting legal help with preparing your application. In assisting you with preparing such an application, a guardianship or financial management lawyer can help you focus your mind on what questions to ask, the type of evidence needed and how to put it all together. In some cases leave can be obtained from the Tribunal to appear at the hearing of your case (but that is not as of right as it involves an application).
Potential Scenarios – Obtaining Guardianship and Financial Management
- You have a family member and the informal arrangements no longer work and important decisions need to be made about where that person lives, what healthcare they should receive, the medical and dental services they require and who should have access to that person.
- There is a need to review a guardianship order because the guardian is making decisions that go beyond his or her authority e.g. telling the protected person how to vote in the upcoming elections or perhaps making financial decisions without proper authority.
- A family member doesn’t have an enduring power of attorney, that have lost their capacity and there is an important need for the financial affairs to be managed and ordered. This is particularly so because the family member has ownership of real estate (i.e. a house) and large investments that need to be looked after.
- An enduring power of attorney no longer works and needs to be reviewed by the tribunal.
Important Quotes In Guardianship and Financial Management
- Section 41 of the NSW Trustee and Guardian Act 2009 i.e Orders by Supreme Court for management of affairs
- Section 25G of the Guardianship Act - Grounds for making financial management order
In the absence of an express legislative definition, the expression “(in)capable of managing his or her affairs” should be accorded its ordinary meaning, able to be understood by the broad community (lay and professional) it serves, remembering that:
* the concept of incapacity for self-management is an integral part of the protective jurisdiction which, historically, arose from an obligation of the Crown (now more readily described as the State) to protect each person unable to take care of him or her self: Marion’s Case (1992) 175 CLR 218 at 258, citing Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243.
* of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (i) his or her status as a person who may, or may not, lack “mental capacity” or be “mentally ill”; or (ii) particular reasons for an incapacity for self-management: PB v BB  NSWSC 1223 at - and .
* the focus for attention, upon an exercise by the Court of its protective jurisdiction (whether inherent or statutory), is upon protection of a particular person, not the benefit, detriment or convenience of the State or others: Re Eve  2 SCR 388 at 409-411, 414, 425-428, 429-430, 431-432 and 434; (1986) 31 DLR (4th) 1 at 16-17, 19, 28-30, 31, 32 and 34; JPT v DST  NSWSC 1735 at ; Re RB, a protected estate family settlement  NSWSC 70 at .
* the “affairs” the subject of an enquiry about “management” are the affairs of the person whose need for protection is under scrutiny, not some hypothetical construct: Re R  NSWSC 1810 at ; PB v BB  NSWSC 1223 at .
* an inquiry into whether a person is or is not capable of managing his or her affairs focuses not merely upon the day of decision, but also the reasonably foreseeable future: McD v McD  3 NSWLR 81 at 86C-D; EB & Ors v Guardianship Tribunal & Ors  NSWSC 767 at .
* the operative effect given to the concept of capacity for self-management, upon an exercise of protective jurisdiction by the Court (whether inherent or statutory), is informed, inter alia, by a hierarchy of principles, proceeding from a high to a lower level of abstraction; namely:
* an exercise of protective jurisdiction is governed by the purpose served by the jurisdiction (protection of those not able to take care of themselves): Marion’s Case (1992) 175 CLR 218 at 258.
* upon an exercise of protective jurisdiction, the welfare and interests of the person in need of protection are the (or, at least, a) paramount consideration (the “welfare principle”): Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238B-C and 241A-B and F-G; A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 4)  NSWSC 31 at -.
* the jurisdiction is parental and protective. It exists for the benefit of the person in need of protection, but it takes a large and liberal view of what that benefit is, and will do on behalf of a protected person not only what may directly benefit him or her, but what, if he or she were able to manage his or her own affairs, he or she would, as a right minded and honourable person, desire to do: H.S. Theobald, The Law Relating to Lunacy (London, 1924), pages 362-363, 380 and 462: Protective Commissioner v D (2004) 60 NSWLR 513 at 522  and 540 .
* whatever is to be done, or not done, upon an exercise of protective jurisdiction is generally measured against what is in the interests, and for the benefit, of the person in need of protection: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D-F and 241G-242A; GAU v GAV  QCA 308 at .- CJ v AKJ  NSWSC 498
Let Us Help You
- Consider and determine the legal effect of contracts, gifts or a Will made by a person whose legal capacity may be affected.
- Decide whether in your case an application for guardianship (a.k.a. obtaining guardianship) should be made, and if so whether to bring it and how to go about it i.e. what guardianship forms need to be completed.
- Understand whether or not you are eligible to bring an application for guardianship.
- Appreciate the types of orders that NCAT can make at the time of the Review of a guardianship application.
- Gain a better understanding of the structure and procedure before NCAT noting the tribunal usually consists of a legal member, a professional member and a community member.
- Know in advance that the Tribunal will be concerned to apply the general principles in the legislation so that the welfare and interests of a person with a disability will have paramount consideration.
- Prepare evidence in a way that addresses the criteria for guardianship so the tribunal can make an effective decision.
- Learn about the questions NCAT will ask in deciding who should be appointed as Guardian.
- Consider whether a financial management order is in fact needed since many applications are withdrawn before they are heard;
- Prepare an application for a financial management order if the informal arrangements do not work and there isn’t an enduring power of attorney.
- Assist you with the preparation of a summons, and the affidavit material in the event that the application needs to be made to the Supreme Court.
- Bring an application to revoke a financial management order (in appropriate cases).