Information about Guardianship
If a person's decision-making ability is impaired due to disability, age, mental illness or injury they may need to have a guardian appointed to make healthcare, lifestyle and medical decisions on their behalf.
The guardian appointed could be someone they know or the Public Guardian.
What is a guardianship order?
A guardianship order is a legal document issued by the Guardianship Division of the NSW Civil & Administrative Tribunal or the Supreme Court of NSW.
The order outlines who the legal guardian is and the type of healthcare, lifestyle and medical decisions that a guardian is authorised to make on behalf of another person.
When would a person need a guardian?
A person may need a guardian if they have trouble making healthcare, lifestyle and medical decisions on their own because of a decision-making disability and there are decisions that need to be made and:
they do not have family, friends or a carer to support them in their decision-making
their family, friends or carers disagree about a decision or what is best
they are at risk of abuse, neglect or exploitation because of their lifestyle or the actions of other people
they are unable to give their own consent to medical treatment or to the use of a restrictive practice.
Generally, most people with disability do not need a guardian and may be able to make decisions on their own or with support from family, friends and carers through supported decision-making.
A person responsible (spouse, carer or family member) is also able to consent to medical treatment if a person is unable to do so themselves and does not have a guardian.
What does a guardian do?
A guardian makes healthcare, lifestyle and medical decisions for a set period of time. Their primary role is to ensure the person has access to the same care, treatment and services as the rest of the community. The types of decisions they may need to make for the person can include:
where they live
what services they receive
consenting to their medical and dental treatment.
A guardian is not able to make any decisions about money or other financial affairs unless they are also legally appointed to be the person’s attorney under the powers of an Enduring Power of Attorney or private financial manager.
Permission for something to happen or agreement to do something.
What types of guardians can be appointed?
A person with decision-making capacity can legally choose to appoint a close friend or family member to become their Enduring Guardian to make healthcare, lifestyle and medical decisions for them if they lose the ability to make these decisions in the future.
The person you appoint as your Enduring Guardian must be aged 18 years or older and should have a good understanding of your lifestyle, the things you like and what your future wishes may include.
The Public Guardian cannot be appointed as an Enduring Guardian.
A person who no longer has decision-making capacity, who did not appoint an Enduring Guardian and cannot be supported to make their own decisions can have a Private Guardian appointed by a court or tribunal.
This is usually a family member, close friend or unpaid carer over the age of 18 appointed by the Guardianship Division of the NSW Civil & Administrative Tribunal (NCAT)
A person who no longer has decision-making capacity, who did not appoint an Enduring Guardian and has no family member, close friend or unpaid carer available to be the Private Guardian, will have the Public Guardian appointed by a court or tribunal to make healthcare, lifestyle and medical decisions on their behalf.
The Public Guardian may also be appointed jointly with a Private Guardian but with different decision-making areas of responsibility.
When a person or organisation is appointed jointly as a guardian or financial manager, they must make all decisions together, not separately.
A legal forum to make and review decisions and settle conflicts. Tribunals are like courts but are usually more specialised and less formal.