Category Archives: Guardianship

Enduring Guardianship

Individuals in NSW may appoint an enduring guardian under the Guardianship Act 1987 (NSW) to make decisions that affect them if they lose their capacity (ie their mental ability to make decisions). More than one enduring guardian may be appointed. The enduring guardian may make personal decisions on behalf of the individual, such as where they should live and what medical services they should receive. The enduring guardian is appointed by lodging a form with the NSW Civil and Administrative Tribunal.

The NSW Civil and Administrative Tribunal may review the appointment of an enduring guardian, either on its own initiative or at the request of a person who holds a genuine concern for the welfare of the individual.

The tribunal can suspend, revoke, confirm or vary the appointment of an enduring guardian.

An enduring guardian is not the same as an enduring Power of Attorney. An attorney appointed under an enduring Power of Attorney may make decisions that affect an individual’s property or financial affairs if they lose their capacity. The enduring Power of Attorney must be validly prepared by a solicitor. It must be registered with the Land and Property Management Authority if the attorney is required to deal with the individual’s property.

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NSW Civil and Administrative Tribunal

The NSW Civil and Administrative Tribunal (NCAT) commenced on 1 January 2014 pursuant to the NSW Civil and Administrative Act 2013 and Civil and Administrative Regulation 2013.

The NCAT takes over the functions of 22 former state tribunals, including:

  • Aboriginal and Torres Strait Islander Health Practice Tribunal
  • Aboriginal Land Councils Pecuniary Interest and Disciplinary Tribunal
  • Administrative Decisions Tribunal
  • Charity Referees
  • Consumer, Trader and Tenancy Tribunal
  • Dental Tribunal
  • Guardianship Tribunal
  • Chinese Medicine Tribunal
  • Chiropractic Tribunal
  • Medical Radiation Practice Tribunal
  • Medical Tribunal
  • Nursing and Midwifery Tribunal
  • Occupational Therapy Tribunal
  • Optometry Tribunal
  • Osteopathy Tribunal
  • Pharmacy Tribunal
  • Physiotherapy Tribunal
  • Podiatry Tribunal
  • Psychology Tribunal
  • Local Government Pecuniary Interest and Disciplinary Tribunal
  • Local Land Boards
  • Victims Compensation Tribunal (transferred into the ADT in June 2013)
  • Vocational Training Appeals Panel.

The NCAT is constituted by a President (a Supreme Court judge), Deputy Presidents of each of the four divisions, a Principal Registrars and Members including Principal Member, Senior Members and General Members.

The NCAT has four divisions:

  • Administrative and Equal Opportunity, which deals with review of administrative decisions of government agencies and resolution of discrimination matters.
  • Consumer and Commercial, which deals with a broad number of disputes about the supply of goods and services, including agent commissions and fees; agricultural tenancies; boarding houses; consumer claims; conveyancing costs; dividing fences; holiday parks (long-term occupancy); home building; motor vehicles; pawnbrokers and second-hand dealers; residential parks; retail leases; retirement villages; social housing; strata and community schemes; tenancy; travel compensation fund appeals.
  • Guardianship, which has jurisdiction over people who live in NSW or hold property or financial assets in NSW: to make guardianship orders for the appointment of a private or public guardian; make financial orders for a private or public financial manager; provide consent for medical or dental treatment; review enduring powers of attorney; review an enduring guardianship appointment; approve a clinical trial involving people with decision-making disabilities.
  • Occupational, including: administrative review of licensing decisions with respect to transport drivers/operators, security guards, builders, real estate agents, motor dealers and repairers, pawnbrokers and second hand dealers, stock and station agents, business agents, travel agents, valuers and licenced conveyancers; professional discipline of occupations governed by a statutory council, board, panel or authority.

The current President is Justice Robertson Wright SC and the Deputy-Presidents are Magistrate Nancy Hennessy, Mr M D Schyvens, Mr Stuart Westgarth, The Hon. Wayne Haylen QC and Judge Kevin O’Connor AM.

The principal registry is located at Level 9, John Maddison Tower, 86-90 Goulburn Street, Sydney NSW 2000, tel 1300 006 228.

The divisional registries are:

  • Administrative and Equal Opportunity: Level 10, John Maddison Tower, 86-90 Goulburn Street, Sydney NSW 2000.
  • Consumer and Commercial: Level 12, 175 Castlereagh Street, Sydney NSW 2000 (also at Liverpool, Hurstville, Newcastle, Penrith, Tamworth and Wollongong).
  • Guardianship: Level 3, 2a Rowntree Street Balmain NSW 2041.
  • Occupational: Level 10, John Maddison Tower, 86-90 Goulburn Street, Sydney NSW 2000.

Lawyers 1300 00 2088

PZ v NSW Trustee and Guardian [2014] NSWCATAD

ON 23 APRIL 2014, the NSW Civil and Administrative Tribunal delivered PZ v NSW Trustee and Guardian [2014] NSWCATAD 91.

The tribunal refused and dismissed an application by the daughter of a dementia sufferer to review a decision by the NSW Trustee and Guardian refusing funds to be made available for the purchase of a property as a residence for the father and daughter.

Lawyers 1300 00 2088

AHB v NSW Trustee and Guardian [2014] NSWCA 216

ON 7 JULY 2014, the NSW Court of Appeal delivered AHB v NSW Trustee and Guardian [2014] NSWCA 216.

The Court dismissed an appeal of an Appeal Panel upholding a decision of the Administrative Decisions Tribunal to confirm the decision of the NSW Trustee and Guardian to sell sell the protected person’s family home.

Despite being unsuccessful, the protected person was not ordered to pay the NSW Trustee and Guardian’s costs.

Lawyers 1300 00 2088

BEY v NSW Trustee and Guardian [2014] NSWCATAD

ON 3 JULY 2014, the NSW Civil and Administrative Tribunal delivered BEY v NSW Trustee and Guardian [2014] NSWCATAD 87.

The tribunal affirmed a decision of the NSW Trustee and Guardian to sell a property owned by the applicant’s mother, a dementia sufferer whose estate was committed by the Guardianship Tribunal to management by the NSW Trustee and Guardian.

The applicant had sought a review under Part 3A of the Guardianship Act 1987.  He believed that it was in his mother’s best interests that the property be leased even though the mother wished to sell the property. He believed that the mother was being manipulated or influenced by his brother with whom he is in conflict.

The tribunal avoided making any findings regarding the manipulation or influence and instead found that it was the mother’s right to earn the best interest possible with the proceeds of the sale invested in a diversified portfolio.

Lawyers 1300 00 2088