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Guardianship tribunal information

What is the Guardianship Tribunal?
The Guardianship Tribunal is a legal tribunal that determines whether or not an adult requires a guardian and/or a financial manager.

The criteria/conditions for appointing a guardian or financial manager are not the same and a different test is applied to the making of the respective orders.

What are Guardianship Orders?
If a guardian is appointed for someone they act as a substitute decision maker for that person. They are not a case manager or a case coordinator.

The Guardianship Tribunal specifies in their orders what decisions a guardian has the power to make. For example, decisions about accommodation, medical and dental consent etc.

Not everyone with a disability requires a guardian. It is only if there is a decision that needs to be made (in the best interests of the person) and it cannot be made unless a guardian/substitute decision maker is appointed.

The Tribunal can appoint a private individual as a guardian, or the Public Guardian. If there is a high degree of conflict among family members as to who should be appointed as a guardian for an elderly or sick relative, the Tribunal is likely to appoint the Public Guardian as they are considered neutral in the proceedings.

Guardianship orders are for a fixed period and are reviewed at the expiry date, or earlier if requested, to see if there still is a need for the order to continue.

What are Financial Management Orders?
The Guardianship Tribunal can also determine whether or not a person requires someone to manage their finances on their behalf.

The Tribunal can appoint a private individual under the supervision of the Protective Commissioner's Office, or the Protective Commissioner, as someone's financial manager. The person under management is charged a fee for this service.

The Tribunal can make interim orders until it has enough information to make a final order or dismiss the application. Once a financial management order is made by the Tribunal it may be ongoing or reviewed after a time specified in the order. Further applications may be made to the tribunal to have the order revoked or varied.

Financial Management Orders can also be made by the Supreme Court. They are usually made in this context when a person, who is considered unable to manage financially, receives a significant compensation/personal injury settlement.

The Supreme Court can appoint a private individual under the supervision of the Protective Commissioner's Office or the Protective Commissioner as someone's financial manager.

A Magistrate or the Mental Health Review Tribunal (MHRT) can make a financial management order for a person while they are an inpatient at a Psychiatric Hospital. They can only appoint the Protective Commissioner as financial manager. On discharge the order is reviewed by the Protective Office and after taking advice from health and welfare professionals, they determine whether or not the order is to continue.

Revocation of Protected Estates Orders
Revocation of an order can be quite a difficult exercise and the evidence required varies depending on where the order was made.

Guardianship Tribunal
The Tribunal can revoke financial management orders if a person can demonstrate, usually by way of reports from at least two health professionals, that he or she has regained capacity; or if they can demonstrate that revocation is in 'their best interest'.

Supreme Court
The Supreme Court will only revoke a financial management order if there are two specialist medical reports, in affidavit form, attesting that the person has regained capacity and is now able to manage their own finances.

Mental Health Review Tribunal
The tribunal can revoke financial management orders made by them or by a Magistrate.

A person cannot seek revocation of their financial management order while they are still a patient under the Mental Health Acti.e. while they are still a patient in a psychiatric hospital. This means they can only apply for the order to be revoked once they have been discharged from hospital.

The Tribunal requires a person to provide evidence from health professionals to support their application for revocation of the financial management order.

Prepared by the Client Assessment and Referral Unit.