Guardianship And Enduring Powers Of Attorney Disputes
The Guardianship Division of the NSW Civil & Administrative Tribunal (NCAT) resolves disputes or concerns in respect of an incapacitated person’s guardianship or financial matters.
NCAT’s Guardianship Division exercises a protective jurisdiction under the Guardianship Act 1987 (NSW). Its express purpose is to protect and promote the rights and welfare of adults with impaired decision making capacity.
NCAT can determine applications for the appointment of guardians and/or financial managers (being similar to attorneys), as well as review enduring guardian and enduring power of attorney appointments.
Guardians make personal and lifestyle decisions with and on behalf of a person with impaired decision making capacity. This includes accommodation and medical care decisions. Importantly, NCAT requires evidence of decision making disability prior to determining any matters.
Guardianship is different to coordinating or providing care to a person. This distinction can sometimes cause stress and frustration for unpaid family care givers, for example, as they often consider themself to also be that person’s guardian.
Enduring Powers of Attorney
Attorneys make financial, legal and property decisions with and on behalf of a person with impaired decision making capacity.
NCAT can review an enduring power of attorney, including the circumstances of its making as well as its operation. Importantly, NCAT cannot review general (non-enduring) powers of attorney. General powers of attorney are used for example when the principal will be out of NSW for a period of time and property, legal or financial decisions need to be made in his or her absence.
NCAT’s Guardianship Division will at all times focus on the rights and welfare of the incapacitated adult in question. It is of vital importance that all parties to any NCAT proceedings seek to advance the incapacitated person’s best interests at all times. This can be difficult for parties who have genuine concerns about guardianship or enduring power of attorney matters, but their personal interests’ conflict or are inconsistent with the best interests of the incapacitated adult.
We invite you to discuss these topics with a member of our experienced Wills and Estates team, please call Matthew Smith or Patrick Campion on (02) 9279 4888.