Breaking down substitute decision-making
When a person cannot make decisions on their own or with support, they might need to have a substitute decision-maker appointed.
The role of a substitute decision-maker is to make decisions on behalf of the person they represent.
The legal effect of a decision made by a substitute decision-maker is the same as if the person had made the decision themselves.
Who’s who in substitute decision-making?
The following courts and tribunals can appoint substitute decision-makers:
- The Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT)
- The Supreme Court of NSW
- The Mental Health Review Tribunal can appoint substitute decision-makers for legal and financial decisions only.
NCAT appoints substitute decision-makers for people aged 16 years and over who cannot make decisions on their own or with support and need a legally appointed substitute decision-maker. This may be because:
- there are no appropriate or safe informal decision-making arrangements in place
- there is conflict
- the person objects to decisions that are being considered or made, and is at risk
- there is a legal reason, such as consent to medical or dental treatment.
NSW Trustee and Guardian, including the Public Guardian, can be appointed by one of these courts or tribunals as a substitute decision-maker.
What types of substitute decision-makers are there?
There are two broad areas where substitute decisions-makers can be appointed:
- Health and lifestyle decisions.
- Financial and legal decisions.
Health and lifestyle decisions
Substitute decision-making for health and lifestyle decisions is called guardianship. Health and lifestyle decisions can include decisions such as where a person lives, what health care and services they receive, and what medical and dental treatment they have.
A substitute decision-maker for health and lifestyle decisions can be:
- A person responsible – only if the decision is about consent to medical or dental treatment
- An enduring guardian – someone the person themselves appointed while they had capacity
- A private guardian – someone appointed by a court or tribunal if the person did not appoint an Enduring Guardian while they had capacity
- The Public Guardian (part of NSW Trustee and Guardian) – appointed as the guardian of last resort by a court or tribunal
- NCAT, if the decision is about consent to medical or dental treatment.
Financial and legal decisions
Substitute decision-making for financial and legal decisions is called financial management. Financial and legal decisions can include decisions about a person’s everyday spending, bills and debts, and assets.
A substitute decision-maker for financial and legal decisions can be:
- An attorney appointed through a Power of Attorney while the person had capacity
- A private financial manager – someone appointed by a court or tribunal if the person did not appoint an Enduring Power of Attorney while they had capacity
- A private trustee company
- NSW Trustee and Guardian – appointed as the financial manager of last resort by a court or tribunal.
How are substitute decision-makers appointed?
While a person has capacity, they can:
- create an Enduring Power of Attorney, a legal document that sets out who they want to make their future financial and legal decisions if they lose capacity to make those decision for themselves in the future.
- create an Enduring Guardianship, a legal document that sets out who they want to make their future health and lifestyle decisions if they lose capacity to make those decisions for themselves in the future.
If a person did not appoint an Enduring Guardian or Attorney and no longer has capacity to do so, or if the Enduring Guardian or Attorney is not able to make decisions in the best interests of the person they represent, an application to NCAT should be considered.
Anyone with a genuine concern for a person can apply to the Guardianship Division of NCAT to have a guardian and / or financial manager appointed. Information about this process is available on NCAT’s website.
Definitions
- person responsible
A person who can help decide what medical and dental treatment you receive if you can’t make those decisions yourself.
- private guardian
A person appointed by the Guardianship Division of the NSW Civil & Administrative Tribunal or the Supreme Court of NSW to make health and lifestyle decisions on your behalf if you cannot make them yourself.
- substitute decision
A decision made by an appointed financial manager or guardian on behalf of a person under a financial management or guardianship order. The legal effect of a substitute decision is the same as if the person had made the decision themselves.
- tribunal
A legal forum to make and review decisions and settle conflicts. Tribunals are like courts but are usually more specialised and less formal.
- consent
Permission for something to happen or agreement to do something.
- assets
All of a person’s property including real and personal e.g. bank accounts, realty, shares in companies, cash etc.
- Substitute decision
A decision made by an appointed financial manager or guardian on behalf of a person under a financial management or guardianship order. The legal effect of a substitute decision is the same as if the person had made the decision themselves.
- Tribunal
A legal forum to make and review decisions and settle conflicts. Tribunals are like courts but are usually more specialised and less formal.
Contact the Guardian Support Unit
Contact the Guardian Support Unit on 1300 361 389 or pg.engagement@opg.nsw.gov.au.
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