A substitute decision is a decision made on behalf of a client under a financial management order. The legal effect of the decision is the same as if the client had made the decision themselves.
How we make substitute decisions
When NSW Trustee & Guardian makes a substitute decision we consider financial reasons and also think carefully about promoting a client's independence, increasing their quality of life and strengthening their relationships with friends, family and the community.
When making decisions, we strive for a balanced view by considering the following factors:
- client's own views
- client's immediate and long term needs
- financial resources available
- requests, plans and objectives of a client's guardian
- client's previous, current and hoped-for lifestyle
- client's family commitments or obligations
- arrangements made by the client when they were able to manage their affairs themselves
- views of the client and their family, and rights and views of probable beneficiaries after the person's death and
- any other relevant factors
In making decisions, we are also guided by the general principles set out under the NSW Trustee and Guardian Act 2009, which are:
- the welfare and interests of such persons should be given paramount consideration,
- the freedom of decision and freedom of action of such persons should be restricted as little as possible,
- such persons should be encouraged, as far as possible, to live a normal life in the community,
- the views of such persons in relation to the exercise of those functions should be taken into consideration,
- the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
- such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
- such persons should be protected from neglect, abuse and exploitation.
In addition, our decisions should further the principles and application of the principles of the Disability Services Act 1993 which guides service provision (such as financial management) to people with a disability.
What is a significant decision?
Significant decisions are decisions about:
- real estate - sales, leasing and purchasing
- the change in status of an asset e.g. selling shares, collecting bank accounts
- legal issues
- dispute or conflict
- requests for expenditure from nursing homes, group homes or other large residential centres
- matters costing over $1,000 which require approval of a senior officer
- commercial issues such as a sole trader partnership or company interests.
When are reasons for substitute decisions provided?
NSW Trustee & Guardian makes thousands of decisions each year and it is not possible to provide a formal document for each decision. It is for this reason that we define certain decisions as 'significant'. We provide reasons for significant decisions and inform the client, their family, close friends or guardian of the significant decision in writing.
Why provide reasons for significant decisions?
It is important to provide reasons for significant decisions in order to:
- ensure clients and their family, close friends or guardian know why a substitute decision has been made
- show that we respect a client's need to understand why a decision was made
- promote accountability, consistency, transparency and fairness in decision making
- promote the rights of clients to receive information about themselves and the services they receive.