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Policies

6. Civil law matters - when legal aid is available

6.16. Guardianship matters

6.16.1 Types of guardianship matters

Legal aid is available for matters under the Guardianship Act 1987 (NSW).

6.16.2 Matters before the Guardianship Division of  NCAT


Legal aid is available to an applicant who is the subject of the proceedings under Guardianship Act 1987 (NSW), unless leave has not been granted to be represented at the Tribunal.

For legal aid to be granted in these types of matters the following test must be satisfied:

Legal aid is also available to make a leave application.

6.16.3 Matters before the Guardianship Division of NCAT– Separate Representation

Legal aid is available to a person who is the subject of proceedings under Guardianship Act 1987 (NSW)  where the Tribunal has made an order that they be separately represented.

For legal aid to be granted for these types of matters the following tests must be satisfied:

  • the Availability of Funds Test, and
  • the Tribunal has made an order that the person  be separately represented, and
  • Legal Aid NSW is satisfied that it is reasonable to provide a grant of aid for the person  to be separately represented.

Legal Aid NSW will not be satisfied that it is reasonable to provide a grant of aid for the person to be separately represented where there is a high degree of conflict between the parties, and this is the principal reason for the application to the Tribunal.

6.16.4 Guardianship Division of NCAT - special treatment

Legal aid is available for Guardianship Division of NCAT proceedings which relate to seeking consent to carry out Special Treatment on an adult or a child.

Note: 'Special Treatment' is defined under Part 5 of the Guardianship Act 1987 (NSW).

Where the legal aid applicant is the person who is the subject of the application for Special Treatment

Legal aid is available to a child or adult who is the subject of proceedings relating to an application for Special Treatment.

There is no means or merit test applied.

Where the legal aid applicant is a carer

Legal aid is available to an applicant who is significant to the care and well-being of the child or adult who is the subject of proceedings relating to an application for Special Treatment.

For a grant of legal aid to be made to a carer the following tests must be satisfied:

See family law policy for policies covering special medical procedures matters in the Family Court.

6.16.5 Other parties before the Guardianship Tribunal

Legal aid is available to an applicant for legal aid who is an affected person in proceedings before the Guardianship Tribunal.

For legal aid to be granted in these matters the following tests must be satisfied:

6.16.6 Appeals against decision of the Guardianship Division of NCAT

Legal aid is available to a person who is under a guardianship order made under the Guardianship Act 1987 (NSW) and who is appealing to the Appeals Panel of NCAT or the Supreme Court against:

  • a decision of the Guardianship Division of NCAT.

For legal aid to be granted in these matters the following tests must be satisfied:

6.16.7 Revocation of financial management orders or guardianship orders

Legal aid is available to an applicant who is seeking revocation of an existing financial management order or guardianship order.

For legal aid to be granted in these matters the following tests must be satisfied:

6.16.8 Appeal against a decision of the Public Guardian

Legal aid is available to the person to whom the decision relates or to affected persons for an application to the Administrative and Equal Opportunity Division of NCAT:

  • a review of a decision of the Public Guardian.

For legal aid to be granted in these appeal matters the following tests must be satisfied:

6.16.9 Review of a decision of the NSW Trustee

Legal aid is available to a person who is the subject of an order under NSW Trustee and Guardian Act 2009 or affected persons for an appeal to the Administrative Decisions and Equal Opportunity Division of NCAT for:

  • a review of a decision of the NSW Trustee.

For legal aid to be granted in these matters the following tests must be satisfied:

6.16.10 Other appeals to NCAT and the Supreme Court

Legal aid is available to applicants (except witnesses) who are affected persons for an appeal to the Appeals Panel of NCAT and the Supreme Court against:

  • a decision of the Guardianship Tribunal.

For legal aid to be granted in these matters the following tests must be satisfied:

Date last published: 14/01/2019