Fact Sheet

Guardianship

Relevant Legislation

The Guardianship Act 1987 is the governing legislation for the appointment of guardians and for guardianship practice in New South Wales. The Guardianship Act was created to protect the legal rights of people over the age of 16 years, who have a disability which affects their capacity to make decisions.

What is a guardian?

The Guardianship Act provides for the appointment of a guardian to make substitute decisions, on behalf of a person, who is aged 16 years and over, with a disability who is unable to do so on their own or without support.

A guardian is a person appointed to make decisions on behalf of a family member or friend. A guardian can be an enduring guardian or a guardian appointed by the NSW Guardianship Tribunal. A guardian is aged 18 years and over.

Some of the decision-making areas include; accommodation (deciding where a person may reside), medical and dental treatment, health care and services.

As a guardian you can assist the person to make decisions in lifestyle areas that will be in the person’s best interests. You may assist the person get the services and care they need and that may protect them from abuse, neglect or exploitation.

A person with a guardian may not need a financial manager. A person with a financial manager may not need a guardian.

When is a guardian required?

Most people with a disability are able to make personal and lifestyle choices and decisions. If not, they may be supported by family and friends in this. Sometimes a person who is unable (due to * incapacity) to make these types of decisions for themselves, may not have anyone who can help, or their family or friends disagree about the matter. When there is such a need for a decision to be made, the Guardianship Tribunal may consider it in the best interest of the person with a disability to appoint a guardian to make these decisions on their behalf.

What does a guardian do?

A guardian is a legally appointed # substitute decision-maker. The role of a guardian is to make a lifestyle decision or provide medical and dental consent on behalf of a person under guardianship during the time of a guardianship order. Guardians are responsible to ensure that a decision or consent is in the best interests of the person.

How do I apply for someone to have a guardian appointed?

You need to fill out an Application for Guardianship and/or Financial Management Form and send it to the NSW Guardianship Tribunal You will need to provide some information about the person's disability, her or his incapacity to make their own decisions and the person's need for a guardian. Anyone who has a genuine concern for the welfare or wellbeing of the person with the disability can make this application. The Guardianship Tribunal will hold a hearing which will involve the person with the disability, the applicant and others who are important in the person's life. In making an order, the Tribunal considers, where possible, the appointment of a family member or friend as the person's guardian.

* What is capacity?

Capacity is the ability to make decisions for oneself.

A person is said to have capacity when the person can go through the process of making his or her own decisions by understanding the information and choices presented, weighing up the information to determine what the decision will mean for him or her and then communicating that decision.

If a person is unable to follow this process and make his or her own decisions, that person is said to lack capacity.

# What is a substitute decision?

A substitute decision involves providing consent on behalf of another person when they are unable to do so for themselves. Substitute consent can be provided for personal decisions. For example where a person lives, what services a person may receive, or what medical treatment a person may or may not receive.

A substitute decision-maker tries wherever possible to make the decision that the person themselves would make, and where that isn't possible, to make a decision that is in the interests of the person.

A substitute decision-maker tries wherever possible to make the decision that the person themselves would make, and where that isn't possible, to make a decision that is in the interests of the person.

To do this a substitute decision-maker needs to talk to the person for whom the decision needs to be made, service professionals, family members and friends.

You can also visit their website at: www.lawlink.nsw.gov.au/opg

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