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 the Guardianship Act 1987 (NSW), unless leave has not been granted to be represented at the Tribunal.
To be eligible for legal aid the applicant must satisfy:
- the Tribunal has granted leave for the person to be represented.
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.
To be eligible for legal aid the applicant must satisfy:
- 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.
To be eligible for legal aid the applicant must satisfy:
- the Means Test
- the Merit Test, and
- the Tribunal has granted leave for the person to be represented.
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.
To be eligible for legal aid the applicant must satisfy:
- the Means Test
- the Merit Test
- the Tribunal has granted leave for the person to be represented, and
- the applicant is a party to the proceedings.
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.
To be eligible for legal aid the applicant must satisfy:
- the Merit Test
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.
To be eligible for legal aid the applicant must satisfy:
- the Merit Test
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.
To be eligible for legal aid the applicant must satisfy:
- the Means Test
- the Merit Test
Note: Where the applicant for legal aid is the person to whom the decision relates the Means Test does not apply.
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.
To be eligible for legal aid the applicant must satisfy:
- the Means Test
- the Merit Test
Note: Where the applicant for legal aid is the subject of an order the Means Test does not apply.
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.
To be eligible for legal aid the applicant must satisfy:
- the Means Test
- the Merit Test
Date last published: 05/12/2022