A guide for people appointed as guardians under the Guardianship Act 1987 NSW
1 Introduction to guardianship
2 Understanding your guardianship order
3 Getting started as a guardian
Private Guardian Support Unit
4 Functions of a guardian
4.1 Accommodation function
4.2 Coercive accommodation function
4.3 Health care function
4.4 Medical & dental consent function
4.5 Services function
4.6 Restrictive practices function
4.7 Access function
4.8 Admission of a person to a mental health facility
5 Making a complaint
6 Useful resources
It is my pleasure to greet you now that you have been appointed as a guardian for a person you care about. Being appointed to make substitute decisions for another person brings with it challenges and rewards and this guide, developed by the Private Guardian Support Unit, aims to assist and support you in your new role.
Now that you’re the guardian you are responsible for making important decisions for another person. This guide answers some of the most commonly asked questions about guardianship in NSW. I hope you will find this information useful when working with others, such as service providers.
This guide is the second edition of After the Hearing, first published in 1999. The change of name reflects the growth of enduring guardians in our community, in addition to guardians appointed by the Guardianship Tribunal. The new edition has been completely updated to reflect changes in the law and in guardianship practices.
The Private Guardian Support Unit (PGSU) is here to assist you in your appointment but does not supervise you. I encourage you to contact the PGSU for any information and support you might need in your important role of helping to achieve the best quality of life for the person under guardianship.
I acknowledge the work of all those who created the original After the Hearing guide and thank the many private guardians who contributed their experiences, as well as the NSW Guardianship Tribunal and the former Office of the Protective Commissioner for their valuable comments in updating this important guide.
1. Introduction to guardianship
What is guardianship?
The Guardianship Act 1987 (NSW) was introduced as a result of significant lobbying by people with disabilities and those from community and government organisations, who were concerned about the lives of people with a disability. The Act was created to protect the legal rights of people over the age of 16 years who have a disability that affects their capacity to make decisions, and to enable decisions to be made on their behalf.
Guardianship is when a person is appointed under the Guardianship Act to make decisions on behalf of another person who lacks decision-making capacity because of a disability. Most people with disabilities do not need guardians, and can be supported to make their own decisions. Guardianship is the last resort.
Guardianship is limited to current need and is not intended to last forever. Substitute decision making is a formal appointment and is not assumed by relationship.
Who might need a guardian?
In some instances, a person’s disability affects their capacity to make personal and life choices and decisions for themselves. If this person does not have anyone who can help, or their family or friends disagree about important matters, they may need someone who will act in their best interests and make decisions on their behalf.
What is a guardian?
A guardian is a person appointed under the Guardianship Act to make legally valid decisions on behalf of a person with a disability who is unable to make decisions on their own or without support. A guardian can be appointed by the Guardianship Tribunal or by a legal process known as enduring guardianship.
A guardian will usually be authorised to make decisions on behalf of another person in specific area(s) of the person’s life, for a certain length of time. In guardianship, an area of decision-making authority is called a function.
Guardians are appointed to make health and welfare decisions on behalf of the person under guardianship. They cannot make decisions about financial matters or the person’s estate unless they have been authorised under an enduring power of attorney or have been appointed by the Guardianship Tribunal, the Mental Health Review Tribunal or the Supreme Court as the person’s financial manager.
In appointments made by the Guardianship Tribunal, anyone can apply to become a guardian. In the first instance the Tribunal will consider appointing a relative, friend or unpaid carer of the person, who is willing to make decisions in the best interests of the person with a disability.
Who is the Public Guardian?
When there is no private preson who can be appointed guardian, the Tribunal will appoint the Public Guardian to make decisions on behalf of the person with a disability. The Public Guardian is only appointed as ‘the guardian of last resort’. This usually happens when no one is available or willing to act as a guardian, or where there is conflict within the family about legal decisions in relation to the person under guardianship.
The Public Guardian may also be appointed jointly with a private guardian but only with different functions (areas of decision-making).
What is joint guardianship?
Sometimes, depending on the circumstances, the Tribunal will appoint more than one guardian for a person. There are a number of ways the Tribunal might appoint different people to be guardians for the same person. For example:
> appointed jointly - two or more guardians (but not the Public Guardian) can be appointed to share the same function(s). If you are appointed in this way you need to make decisions together; or
> appointed separately - two or more guardians might be appointed with different functions. If you are appointed in this way you make decisions separately but it is a good idea to keep each other informed about the decisions being considered or that have been made; or
> a guardian might be appointed with one or more functions, and the Public Guardian can be appointed with one or more functions that are different to the guardian. (A private guardian and the Public Guardian cannot be appointed to share the same function). If you are appointed in this way it is a good idea to stay in touch with the Public Guardian about decisions being considered or that have been made.