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NSW Guardianship Application And Financial Management
A financial manager makes decisions about finances, investments and property on behalf of somebody who is unable to make these decisions for themselves. This could be due to mental illness, dementia, intellectual impairment, or brain injury. A financial manager can pay bills, enter into agreements and contracts on behalf of the other person, buy and sell assets and real estate and manage debts and bank accounts.
However, a financial manager cannot make personal lifestyle decisions. They cannot make decisions on where the person resides or what healthcare they require. An Enduring Guardian is the one who makes these decisions.
Enduring Guardianship is designating the authority to make healthcare choices on behalf of another person. This can include what medical treatment or healthcare a person receives, where they live (including in a group home, aged care facility, or private accommodation), what services they use, and whether restrictive practices can be used.
The person about whom a financial management or guardianship order is made is known as the “principal”. An individual (or individuals, jointly) or NSW Trustee and Guardian can be appointed financial manager and/or guardian.
The Role of NCAT
New South Wales Civil and Administrative Tribunal (NCAT) has the authority to make financial management orders and guardianship orders.
Financial management and guardianship applications can be made at the same time, or only one made. A different application must be filed for each order.
If you’re concerned that an adult is having difficulty managing their finances, it may be in their best interests to have a financial manager appointed. You can apply to NCAT for an order that you or someone else to be appointed to this position. At NCAT, a member hears the case and has the authority to issue financial management orders. NCAT may however decline to make such an order.
To grant a financial management order, NCAT must be satisfied that:
- The person is unable to manage their financial or legal affairs;
- It is in the person’s best interests for a financial management order to be made;
- Decisions cannot be made informally; and
- The person has assets in NSW.
If a financial management order is made, the person named as financial manager has the authority to make financial and legal decisions on behalf of the principal. It can apply to all financial decisions or be more limited, depending on the needs of the person.
When NCAT considers an application, it considers a number of further criteria:
- The ability of the nominated financial manager to handle money;
- Whether there is an existing power of attorney or other order in place relevant to financial decision making;
- The income, expenses, and assets of the person;
- The risk to the person if a financial management isn’t assigned;
- Any risk of conflict of interest between the proposed financial manager and the principal or other relevant people.
Similar considerations occur in an application for Guardianship but focus instead on the ability of an individual to make decisions about their personal life rather than their finances. To grant a guardianship order, NCAT must be satisfied that:
- The person is unable to make personal or lifestyle decisions;
- It is in the person’s best interests for a guardianship order to be made; and
- Decisions cannot be made informally.
They will consider the suitability of the nominated guardian, any existing orders, and the particular needs of the principal when determining if a guardianship order should be made. Guardians are appointed for a specified period of time. NCAT reviews guardianship orders at the end of its term as a legal requirement.
If you wish to apply to NCAT, you must complete a Financial Management Application or a NSW Guardianship Application, which can be accessed on the NCAT website.
The form should be accompanied by the relevant evidence to support the spplicstion. The evidence required includes details of the principal’s decision-making impairment. A doctor, social worker, nurse, carer, lawyer, or an accountant can provide a report, statutory declaration, or letter setting out their observations.
If the person can comfortably write, a statement from the individual regarding their inability to make choices on their own and their feelings about having a financial manager or guardian can assist. If they cannot, they will have the opportunity to speak to the NCAT Member before a decision is made.
Family members or friends who wish to provide their views and what they have observed can be asked to provide statements. The potential financial manager or guardian should also write a statement of their own setting out why they think an order should be made and why they are suitable to be appointed.
Details regarding the principal’s income, expenses, liabilities and assets, should be provided including bank statements and mortgage statements when available. A copy of any powers of attorney or other relevant orders about the principal should also be included with the application. Any relevant medical reports from doctors or specialists should be provided.
The completed form must be submitted to NCAT by mailing it, delivering it in person, or emailing it together with supporting evidence. A copy of the application and supporting documentation must also be sent or delivered to NSW Trustee and Guardian, the principal, their spouse and/or their carer, and any current attorney/guardian.
At the hearing, NCAT will hear from the person who filed the application, the person who is the subject of the case, and any other individuals who have submitted statements or reports. The potential financial manager or guardian and family members of the individual may also be contacted.
During the hearing, NCAT may ask questions of any person at the hearing to assist them in making a judgment. At the conclusion of the hearing, the NCAT Member will usually inform you of the decision. The conclusion might be to appoint a financial manager or decline the application. NCAT will also determine the duration of the financial management order, which can be temporary or permanent. You can appeal to the NCAT Appeal Panel or the Supreme Court of NSW if you disagree with the decisions made.
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