Your questions answered this month
This month, you asked us about enduring guardianship, what decisions can be made with the ‘accommodation authorise others function,’ and services.
Q&A
My sister and I have been appointed as joint private guardians for our brother. What do I do if my sister doesn’t agree with me?
The NSW Civil and Administrative Tribunal (NCAT) has appointed you and your sister as substitute decision makers for your brother. The Guardianship Order details what decisions you can make.
If more than one person is appointed, you may share the functions jointly, or you may be responsible for separate functions.
If you share functions jointly and disagree on the decisions you are required to make, then the order is not working in the best interests of the person you have been appointed as guardian for, in this instance, your brother.
Anyone with a genuine concern for the welfare of a person under guardianship can request that NCAT review a guardianship order.
Are Guardianship Orders from other states recognised in NSW?
NCAT can recognise appointments of guardians and financial managers (or administrators) made by other courts or tribunals under corresponding law in another Australian state or territory, or in New Zealand.
To apply to NCAT for interstate recognition, you must complete the form for ‘Application for recognition of interstate appointment’, which can be found here, and attach a copy of the original orders issued by the interstate court or tribunal.
A recognition order gives the guardian or financial manager appointed in another state the authority to act in NSW. The recognition order is valid for the same period of time as set out in the original order.
Recognition orders can only authorise functions allowed under the Guardianship Act 1987 (NSW). A guardian or financial manager can only exercise a function in NSW if the NSW Act authorises it. This applies even if the function is authorised in another state or territory.
I’m a private guardian – how can I apply for the access function?
If informal access can be arranged you may not need to use the access function. However, suppose informal arrangements cannot be agreed upon. In that case, a private guardian can apply to the NSW Civil and Administrative Tribunal (NCAT) to have the access function added to the Guardianship Order.
The access function authorises the private guardian to decide:
- who can or can’t visit the represented person;
- what type of contact is allowed with the represented person, for example visiting the person at home, taking them on social outings or appointments, telephone calls, or other contact such as email or social media;
- When contact can occur, for how long and under what circumstances.
Overall, an access decision must consider the principles of the Guardianship Act 1987 (NSW) and prioritise the represented person’s welfare as much as possible.
An access decision can sometimes be challenging to enforce. For example, if:
- the person lives alone, and there is no person or service provider to monitor or supervise visits;
- family or friends refuse to cooperate with the access decision, for example, when the owner of the home in which the represented person lives prohibits others from accessing the person.
If there are concerns for the safety of the represented person due to the behaviour of others and they are still attempting to access them, the private guardian may need to apply for an Apprehended Violence Order. However, the preferred option is that the person themselves, someone close to them or the police make the AVO application.
Contact the Guardian Support Unit
Do you have questions about guardianship? Contact the Guardian Support Unit on 1300 361 389 or pg.engagement@opg.nsw.gov.au.
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