Planning ahead

What can I do​ to plan for the future?

There are certain legal documents you can create to plan for your future. These include:

• appointing an Enduring Power of Attorney
  
• appointing an Enduring Guardian
  
• making an Advanced Care Directive
  
• making a Will.
  

You should talk to a lawyer about what is most suitable for your needs.

For more information see the Planning ahead section of My problem is about section of our website.

Why do I need anything other than a Will?

A Will only comes into effect after you die. A Will sets out how your estate is to be dealt with after your death. A Will can't deal with how your finances are managed, or what lifestyle or medical decisions are made whilst you are alive.

You can prepare other documents that appoint other people to make these decisions for you if you lose mental capacity.

For more information see the Planning ahead section of My problem is about section of our website.

How ​do I know if someone has lost mental capacity?

Mental capacity is something that can often be difficult to determine. You need to consider if the person can understand their choices, weigh up the consequences and communicate their decision. There may be signs that a person is losing mental capacity, such as making decisions that seem completely out of character.

If you think someone has lost mental capacity you should seek advice from a doctor or health care provider. Often an assessment can be done to determine whether the person has mental capacity.

For more information, see Capacity Toolkit on the Department of Communities and Justice website.

​What​​ can​​ I do if my relative​ or friend is having problems managing their own affairs?

What you can depends on whether your relative or friend has mental capacity and whether they have appointed an Enduring Power of Attorney and/or an Enduring Guardian. The person may need to see a doctor or health care provider to help determine whether they have mental capacity.

If your friend or relative has lost mental capacity and has appointed an Enduring Power of Attorney, the person appointed will be able to manage their financial affairs. If they appointed an Enduring Guardian, the person appointed will be able to make lifestyle decisions for them.

If your relative or friend has lost mental capacity but had not appointed an Enduring Guardian or Attorney, you can apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) for a Financial Management Order and/or Guardianship Order.

Can I give consent to​ medical or dental treatment for my partner, relative or friend?

If your partner, relative or friend is not capable of consenting to their own treatment, a medical practitioner can seek consent from the Person Responsible, formerly known as the next of kin.

The Person Responsible is their guardian, if they have appointed one. If they don't have a guardian and don't have mental capacity, the Person Responsible is:

• their spouse or de facto, including same sex partner
  
• a person who cares for them (but not a paid carer)
• a close friend or relative.

The Person Responsible can't:

• make decisions about a person's finances, accommodation or support
  
• agree to treatment if they object to it
  
• agree to certain medical treatment, for example, experimental treatment or sterilisation procedures.
  

How do I apply for an adjournment in the NSW Civil and Administrative Tribunal?

If you want to change the date of the hearing, you should inform the other party in writing and ask them if they agree. You will need to put your request in writing to NCAT explaining your reasons for an adjournment. You should include supporting documents with your request. 

NCAT will consider if the case will be affected if the hearing is delayed. If a written request for an adjournment is made more than seven working days before the hearing date, NCAT will hold a separate hearing (called an ‘interlocutory hearing’) before the main hearing to consider the adjournment request. If the request is made less than seven working days before the hearing date, NCAT will consider it at the date set for the main hearing.

What is a ​​Power of Attorney?

A Power of Attorney is a legal document you can make to appoint someone to deal with your financial affairs. There are two types:

• a General Power of Attorney
• an Enduring Power of Attorney.
  

For more information, see Powers of Attorney on the My problem is about section of our website.

What is the​​ difference between a General Power of Attorney and an Enduring Power of Attorney?

A General Power of Attorney gives your attorney, the person you appoint, authority to manage your financial affairs in the way you arranged. It might operate whilst you are overseas, or for a certain period of time until you revoke it. If you die or you lose your mental capacity a General Power of Attorney is no longer valid.

An Enduring Power of Attorney allows your attorney to continue to make financial decisions for you even after you have lost mental capacity.

For more information, see Powers of Attorney on the My problem is about section of our website.

How do I make a Power of​ Attorney?

You must have mental capacity to make a valid Power of Attorney. This means that you must understand what you are making and the effect it can have on you. If you are unsure about your mental capacity, you should speak to your doctor. 

There are different forms depending on whether you want to make a General Powe​r of Attorney or an Endur​ing Power of Attorney.

For more information, see the factsheet Powers of Attorney in New South Wales on the NSW Land Registry Services website.

You should read the instructions on the form carefully. If you are not sure how to complete it, you should get legal advice.

If you want your attorney to deal with buying, selling property or shares you must register the Power of Attorney appointment with NSW Land Registry Services.

For more information, see Powers of Attorney on the My problem is about section of our website.

When does a General Power of Attorney come into effect (start operating)?

This is up to you. When you complete the form, you can choose when you want the Power of Attorney to start and finish. You could decide that the power of attorney:

• starts immediately
• will operate between specific dates 
• operates while you are overseas
• will operate for any other time you choose (and you will need to specify this time).
  

If no option is chosen, or the options chosen are not clear or consistent, the power of attorney will come into effect immediately once the attorney has accepted their appointment by signing the document.

For more information, see Powers of Attorney on the My problem is about section of our website.

Can I still make my own financial decisions if I have a Power of Attorney?

Yes, you can still make your own financial decisions even if you appoint a Power of Attorney. As long as you have capacity, you can keep on dealing with your property and money.

When you appoint an attorney, you can choose what powers to give them, for example, you could choose to allow the attorney to only make particular decisions or make decisions only under certain circumstances. 

If you are appointing someone as an Enduring Power of Attorney, you can choose to make the attorneys power start only when you have lost capacity to make the decisions yourself.

For more information, see Powers of Attorney on the My problem is about section of our website.

Who should I appoint ​​as my attorney?

It is important to choose your attorney carefully as they will be making legal and financial decisions on your behalf. You can appoint anyone over the age of 18 years old, including a family member, relative or a friend.

Alternatively, you can appoint NSW Trustee and Guardian as your attorney if they prepare your Power of Attorney.

If you want to appoint someone who lives interstate or overseas, you should get legal advice.

Can I appoint more than one attorney?

You can appoint more than one attorney. If you appoint more than one attorney you need to decide whether you want them to be able to act jointly or jointly and severally.

If you appoint them jointly they must both agree to any financial decision, for example, if money has to be withdrawn from your bank, they will both need to sign a transfer or withdrawal slip. 

If you appoint them jointly AND severally, your attorneys will be able to make decisions together or individually.

You also have the option to nominate a substitute attorney in case your attorney dies, resigns, becomes bankrupt or loses mental capacity.

For more information, see Planning ahead on the My problem is about section of our website.

If you are not sure what to do in your circumstances, you should get legal advice.

Does a Power of Attorney continue to operate if I die?

A Power of Attorney will no longer operate after you die. Your estate will be dealt with by your executor if there is a Will, or by an administrator if there is no Will. 

For more information about Wills, see the Wills and estates topic and Wills on the My problem is about section of our website.

Is a Power of Attorney​​ still valid if the principal or attorney has changed their name?

A Power of Attorney is still valid even if the principal or attorney has changed their name. If an institution, such as a bank, needs proof of identity, the attorney should provide evidence of the change of name, for example, a change of name certificate or marriage certificate.

Is an Power of Atto​rney​​ I made in another State of Australia valid in NSW?

If the Enduring Power of Attorney was made according to the requirements of that State or Territory, the Power of Attorney will automatically be recognised in NSW. This is not the case if the Power of Attorney was made overseas or if it is a General Power of Attorney.

If you are unsure of the type of Power of Attorney you have, or if it meets the other State or Territory requirements when made, you should get legal advice.

Do I need to register my Power of Attorney? ​

If you want your attorney to deal with buying or selling property you must register the Power of Attorney appointment with NSW Land Registry Services.

You don't have to register a Power of Attorney if you don't intend your attorney to deal with property or shares. 

NSW Trustee and Guardian provides a service where they will safely store your Power of attorney document. 

For more information, see Will and document storage​ on the NSW Trustee and Guardian website. 

How ​do I revoke the appointment of my power of attorney?

If you have mental capacity and you want to revoke the appointment of your power of attorney, you must:

• complete the Revocation of Power of Attorney form. Your signature on the form must be witnessed, but the witness can be any adult (they don't have to be a prescribed witness)
  
• give a copy of your Revocation to your attorney
  
• register your Revocation with NSW Land Registry Services, if you previously registered your Power of Attorney, and 
  
• inform any third parties in writing of the Revocation, if they have been given a copy of the original Power of Attorney.
  

What can I do​ if the attorney I appointed loses mental capacity?

If your attorney loses mental capacity they will no longer be able to manage your affairs. Whilst you have mental capacity, you can revoke the appointment of your attorney and appoint someone else by creating a new Power of Attorney.

What​​​ do​ I have​​​ to​ show​ institutions to prove I am the attorney?

Usually, you will need to​​ show you are the attorney for someone when dealing with their finances, for example, if you are dealing with a bank you will need to show the bank the Power of Attorney that appoints you so that the bank can see it is valid and legal.

You should ensure you keep the original form in a safe place and provide only certified copies to the institutions if they require it.

Some institutions may have different requirements and procedures, so it is best to contact them to discuss what processes they have in place or documentation they need.

What can I do if I am not happy with how my attorney is managing my finances?

If you have mental capacity and you are unhappy with your attorney, y​ou can revoke their appoi​​ntment.

If you don't have the mental capacity the revoke their appointment, you should get legal advice.

What ​if I am one of two attorneys appointed but we are in dispute?

It is important to look at the Power of Attorney to see whether the appointment was made jointly, or jointly and severally.

If the dispute can't be resolved, you should get legal advice.

If you were appointed as an Enduring Power of Attorney and the principal has lost mental capacity, you can apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT). NCAT can vary or revoke an Enduring Power of Attorney.

I was appointed as an attorney. Can I resign if I no longer wish to act?

If you were appointed under a General Power of Attorney, you may resign at any time while the principal has mental capacity. You must give written notice to the person who appointed you as their attorney.

What if I have concerns​ about how an attorney is managing the affairs of a person?

If the appointment was under a General Power of Attorney, you may have grounds to request a review of the appointment from the Supreme Court of NSW. The NSW Civil and Administrative Tribunal (NCAT) does not have power in this situation to review the appo​​​intment.

When does an Enduring Power of Attorney come into effect (start operating)?

This is up to you. When you complete the form, you can choose when you want it to start. This can be: 

• when the person or people you have appointed as your attorney sign the Power of Attorney document
• once a doctor considers you are not able to manage your affairs, and they provide a document stating you are no longer able to do so
• once your attorney considers that you need assistance in managing your affairs
• any other time you choose (and you will need to specify this time).
  

If no option is chosen, or the options chosen are not clear or consistent, the power of attorney will come into effect immediately once the attorney has accepted their appointment by signing the document.

Who can witness an ​​Enduring Power of Attorney?

If you make an Enduring Power of Attorney you need to arrange for a prescribed witness to complete the certificate at the end of your form.

The witness must be:

• a solicitor or barrister of any State or Territory in Australia
• the Registrar of a NSW Local Court
• a licensed Conveyancer
• a NSW Trustee and Guardian employee
• a trustee company employee.

A Registrar at the Local Court may witness your form if it is straightforward, for example, if there are no additional or complex clauses. If they cannot assist, you will need to arrange for another prescribed witness to sign the form.

NSW Trustee and Guardian employees will only witness the document if they have prepared it. 

Who can witness an Enduring Power of Attorney whilst I am overseas?

If you make a NSW Enduring Power of Attorney appointment, you need to arrange for an appropriate witness to complete the certificate at the end of your form.

If you are overseas, the witness must be an independent legal practitioner or lawyer who is qualified to practice in the country you are in. The legal practitioner can only act for you and must only act on your instructions. They can't also act for the person who is going to be appointed under the Enduring Power of Attorney. 

Do my attorney and witness​​ have to be present at the same time when I sign my Enduring Power of Attorney?

You must sign your Power of Attorney in front of an authorised witness. Your attorney can accept the appointment at a later time and at a different place. Your attorney's signature does not need to be witnessed by anyone.

What can happen if I ​​lose mental capacity but don't have an Enduring Power of Attorney?

If you don't have an Enduring Power of Attorney and you lose mental capacity, there will be no one with legal authority to manage your financial affairs, such as banking or paying your bills. This could mean that your bank or electricity provider won't deal with anyone unless they have an Enduring Power of Attorney.

If a person wants to be able to make financial decisions for you after you lose mental capacity, they will need to apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) or Supreme Court of NSW for a Financial Management Order.

What types of ​decisions can I make as an Enduring Attorney?

If you have been appointed as an Enduring Attorney for someone who has lost mental capacity, you have the legal authority to manage the person's financial affairs and you must act in the best interests of the principal. This may include things such as banking, paying bills, or arranging a payment plan on a loan. You should read the Power of Attorney document carefully as there may be certain powers or restrictions listed.

Unless the document says otherwise, you do not have legal authority to:

• give gifts, for example, gifting a sum of money to a relative
  
• give any benefit to yourself for being the attorney
• delegate your authority as attorney to someone else.

If you act outside of your authority as an attorney you may be committing a criminal offence. It's important that you speak to a lawyer first if you are unsure about whether you have the authority to make a certain decision. A lawyer can look at the legislation for you and can advise you about any limitations in the Power of Attorney document.

Can an Enduring Power of Attorney made outside NSW be used in NSW?

Each State and Territory has its own laws on Enduring Powers of Attorney. If an Enduring Power of Attorney was made in another Australian State or Territory and it complies with the legal requirements of that State or Territory, it will be recognised in NSW. 

An Enduring Power of Attorney made overseas is not valid in NSW.

If you are unsure whether your Enduring Power of Attorney is recognised in NSW, you should get legal advice.

Can a NSW Enduring Power of Attorney be used outside NSW?

If you want your attorney to be able to use your NSW Enduring Power of Attorney in another State or Territory or overseas, you should find more information about what the requirements are in that State or Territory. Each State and Territory has its own laws on Enduring Powers of Attorney.

If you are unsure whether your NSW Enduring Power of Attorney is recognised, you should get legal advice in that State or Territory.

How ​do I revoke the appointment of my Enduring Power of Attorney?

If you have mental capacity and you want to revoke the appointment of your Enduring Power of Attorney, you must:

• complete the Revocation of Power of Attorney form. Your signature on the form must be witnessed, but the witness can be any adult (they don't have to be a prescribed witness)
  
• give a copy of your Revocation to your attorney
  
• register your Revocation with NSW Land Registry Services, if you previously registered your Enduring Power of Attorney, and 
  
• inform any third parties in writing of the Revocation, if they have been given a copy of the original Enduring Power of Attorney.
  

I was appointed as an attorney. Can I resign if I no longer wish to act?

If you were appointed under an Enduring Power of Attorney and the principal has mental capacity, you may resign by giving written notice to the person who appointed you as their attorney. If the principal has lost mental capacity, you may only resign with the approval of the NSW Civil and Administrative Tribunal (NCAT). You can apply to the Guardianship Division of NCAT to vary or revoke the Enduring Power of Attorney.

I was appointed as a Power of Attorney but I think someone else has been appointed after me. Do I still have authority to deal with the financial affairs? 

If a person wants to appoint a new Power of Attorney, they can cancel the existing Power of Attorney at any time as long as they have mental capacity. 

They should let you know in writing that they are cancelling the existing Power of Attorney, so that their intentions are clear. If the Power of Attorney has been registered with NSW Land Registry Services, a Revocation of Power of Attorney form should also be registered with NSW Land Registry Services. 

If you think a new Power of Attorney has been appointed and you have not been told, you should check with the person who appointed you before continuing to deal with their finances and property. 

If a new Power of Attorney has been made and you have concerns about the person's mental capacity, you should get legal advice. 

What if I have concerns​ about how an Enduring Attorney is managing the affairs of a person?

If the appointment was under an Enduring Power of Attorney, you may be able to apply for a review in the Guardianship Division of NCAT. In some cases, NCAT may refer the application to the Supreme Court of NSW.

If there is a review of an Enduring Power of Attorney, either in the Supreme Court of NSW or NCAT, the NSW Trustee and Guardian will be added as a party to those proceedings. 

Before applying for a review, you should get legal advice.

For more information, see the factsheet Review of an Enduring Power of Attorney on the NSW Civil and Administrative Tribunal website.

What can I do if the person has lost mental capacity and has not appointed an enduring Power of Attorney?

If someone has lost mental capacity and has not appointed an Enduring Power of Attorney you can apply for a Financial Management Order, either in the NSW Civil and Administrative Tribunal (NCAT) or the Supreme Court of NSW.

If you apply for a Financial Management Order you can appoint yourself or someone else, including the NSW Trustee and Guardian, to manage the person's finances.

NCAT or the Supreme Court of NSW will be responsible for deciding who to appoint as a Financial Manager.

For more information, see the Information for Applicants - Appointment of a financial manager and/or guardian factsheet on the NCAT website.

Before you apply for a Financial Management Order, you should get legal advice.  

What if I am unhappy with ​how NSW Trustee and Guardian is managing my affairs?

If NSW Trustee and Guardian were appointed as your Financial Manager and you are unhappy with its decision you can:

• contact a Client Service Officer or Private Manager Liaison Officer at NSW Trustee and Guardian to raise your concerns
• make a complaint to a manager
• ask for an internal review to be carried out by a senior officer
• apply for a review of the decision in the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal (NCAT) - you should get legal advice about this as some decisions cannot be reviewed by NCAT, such as decisions of NSW Trustee and Guardian based on an order or direction of the Supreme Court of NSW
  
• get legal advice about applying for a review of the Financial Management Order.

What if I am unhappy with the ​​decision made by the NSW Civil and Administrative Tribunal?

If you are unhappy with a decision made in the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) you can apply for an internal appeal to the Appeals Panel of NCAT within 28 days from the date of the decision, or from when written reasons were given. In some cases, you also need to seek leave (permission) to make this type of appeal. Before applying for an internal appeal, you should get legal advice.

If you are still unhappy after making an internal appeal, you may be able to app​​eal the decision to the Supreme Court of NSW. In most circumstances, you can only appeal on a point of law. Before filing an appeal, you should get legal advice.

What is an Enduring Guardian​​​ship?

An Enduring Guardianship is the legal appointment of a person, called your guardian, to act as your substituted decision maker if you lose the mental capacity to make decisions about your lifestyle and health issues.

How do I appoint an Enduring Guardian?

You must have mental capacity to make a valid guardianship appointment. This means that you must understand what you are making and the effect it can have on you.

You will need to prepare an Appointment of Enduring Guardian document. You can do this by:

• going to a private lawyer; or
• making an appointment with NSW Trustee and Guardian.

To find a private lawyer, you can use the Solicitor Referral Service on the Law Society of NSW website.

For more information about how to appoint an enduring guardian and to make an appointment with NSW Trustee and Guardian, see What is an Enduring Guardian? on the NSW Trustee and Guardian website.

For more information, see Enduring Guardianship on the My problem is about section of our website.

When does an Enduring Guardian appointment document come into effect (start operating)?

An Enduring Guardian appointment will come into effect when you are no longer able to make your own personal decisions, for example decisions about your lifestyle and health.

A doctor or specialist might be asked to decide whether your Enduring Guardian should start making decisions for you. Your Enduring Guardian will continue to make lifestyle decisions for you while you can’t.

For more information, see Enduring Guardianship on the My problem is about section of our website.

What i​​s the difference between an Enduring​ Power of Attorney and Enduring Guardianship?

An Enduring Power of Attorney gives your attorney authority to manage your financial affairs after you lose mental capacity. 

An Enduring Guardianship gives your guardian authority to make health or lif​​es​tyle decisions after you lose mental capacity, including decisions about where you live, or what medical treatment you receive.

Can​​​ I ap​point​ more than one guardian?

You can appoint more than one guardian. If you appoint more than one guardian, you need to decide whether you want them to be able t​o act jointly, or jointly and severally.

If you appoint them jointly, they must make decisions allowed by the appointment together. This means that they must all agree before any action is taken. 

If you appoint them jointly and severally, your guardians will be able to make decisions together or individually.

If you are unsure what to do in your circumstance, you should get legal advice.

Do I need to register my Enduring ​​Guardianship?

There is no requirement to register your Enduring Guardianship. However, you may choose to register an Enduring Guardianship with NSW Land Registry Services for a fee.

NSW Trustee and Guardian provides a service where they will safely store your Enduring Guardianship document. 

For more information, see Will and document storage on the NSW Trustee and Guardian website. 

Who can witness an Enduring Guardianship?

You need to arrange for a prescribed witness to sign your Enduring Guardianship form for it to take effect. The prescribed witness must be:

• an Australian Legal Practitioner
• a Registrar of the NSW Local Court
• overseas-registered foreign lawyer
• approved employee of the NSW Trustee and Guardian/Service NSW
  

A Registrar at the Local Court may witness your form if it is straightforward, for example, if there are no additional or complex clauses. If they​ can't assist you will need to arrange for another prescribed witness to sign the form.​​​​​

The person you appoint as your Enduring Guardian can't be your witness.

Do my guardian and witness have to be present at the same time that I sign my Enduring Guardianship?

You must sign your Enduring Guardianship in front of a prescribed witness and your guardian must also sign in front of a prescribed witness. However, there is no requirement that both your signature and the signature of your guardian be witnessed by the same person at the same time and place.​

​What do I have t​o​​​ sho​w i​nstitutions as proof I am an Enduring Guardian?

​You will need to show you are an Enduring Guardian for someone when making life​​style decisions for them, for example, if you are dealing with a dentist.  

You should ensure you keep the original form in a safe place and provide only ce​rtified copies to an institution if they require it.

​Some institutions may have different requirements and processes so it is best to c​​ontact them to discuss what processes they have in pla​ce or what documentation they need.​​​​​

How can I rev​oke the appointment of my Enduring Guardian? ​

​​​If you get married after you have made an Enduring Guardianship your appointment is revoked unless your guardian is your new spouse. The revoca​​tion in this situation is automatic and you do not need to complete any forms.

For all other situations, if you have mental capacity and you want to revoke the appointment of your Enduring Guardian, you should notify your guardian in writing that the appointment is revoked. You should use the ​Revocation o​​​f Appointment of Enduring Guardianship Form​​ to do this, as it will ensure your Revocation is done correctly accordin​g to the requirements set out in the legislation.​​ You will need to prepare a Revocation of appointment of enduring guardianship document. You can do this by going to a private lawyer. 

To find a private lawyer, you can use the Solicitor Referral Service on the Law Society of NSW website.

For more information about how to appoint an enduring guardian and to make an appointment with NSW Trustee and Guardian, see What is an Enduring Guardian? on the NSW Trustee and Guardian website.

If you had registered the Enduring Guardianship with NSW Land Registry Services, you will need to register the Revocation form at NSW Land Registry Services.

For more information, see Enduring Guardianship on the My problem is about section of our website.

What ha​​​ppens if ​​​​I ​los​e​ ​mental ca​p​acity but don't have an Enduring Guardian?

If you are sick or injured and have lost mental capacity and you don't have an Enduring Guardian, your medical practitioner​​ can ask the Person Responsible to make decisions about your treatment for you. The Person Responsible may be:

• your spouse or de facto, including same sex partner
  
• a person that cares for you (but not a paid carer)
  
• a close friend or relative.
  

If you have not appointed an Enduring Guardian but have lost mental capa​​city, a person (usually a partner, friend or relative) can apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) for an order to be recognised as your guardian.​

For more information, see the Guardianship Orders FAQs below and see Enduring Guardianship on the My problem is about section of our website.

What decisions can I make as an Enduring Guardian?

An Enduring Guardian can make lifestyle, health and medical decisions for a person after the person loses the mental capacity to make these decisions for themselves. This could include decisions about where the person will live as well as decide what personal services you think the person needs.  

If you are appointed as an Enduring Guardian with someone else, you will need to check how you were appointed on the guardianship form to know how you can make decisions.

If you are appointed jointly with another person, you and the other person must make the decisions together.

If you are appointed jointly and severally, you can either make decisions on your own, without consulting the other guardian, or together with the other guardian.

If you are appointed severally, it means that you can make decisions on your own, separately from the other guardian. 

I was appointed as an Enduring Guardian. Can I resign if I no longer wish to act?

If the principal still has mental capacity, you can resign by giving written notice to the principal. 

If the principal has lost mental capacity, you may only resign with the approval of the NSW Civil and Administrative Tribunal (NCAT). You can apply to the Guardianship Division of NCAT to vary or revoke an Enduring Guardianship.

Can an Enduring Guardianship appointment document (not an Order) made interstate be used in NSW?

An Enduring Guardianship appointment document made in another Australian State or Territory is automatically recognised in NSW if:

• the document is valid and complies with the rules of the State or Territory it was created in
  
• the document is witnessed by an Australian Legal Practitioner. 
  

If the interstate document is not accepted by an institution in NSW, you can apply for a Guardianship Order in the state or territory where the person the Order is about lives.

What if I am one of two guardians appointed but we are in dispute?

It is important to look at the appointment of Enduring Guardian to see whether the appointment was made jointly, jointly and severally, or severally. How you were appointed will determine how you are able to make decisions for the principal.

If your dispute can't be resolved, you should get legal advice.

If the principal has lost mental capacity, you may be able to apply for a review of Enduring Guardian appointment to the NSW Civil and Administrative Tribunal (NCAT). NCAT can vary, revoke or confirm an Enduring Guardian appointment.

What if I have concerns about how a guardian is making decisions of a person?

If you have a genuine concern about a person's welfare, you may be able to apply for a review of the appointment of an Enduring Guardian to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT).

On reviewing the appointment, NCAT may:

• revoke the appointment
• confirm the appointment
• vary the conditions of appointment, or 
• substitute another person as an Enduring Guardian for the person.

In some cases, NCAT may refer the application to the Supreme Court of NSW.

If there is a review of an Enduring Power of Attorney, either in the Supreme Court of NSW or NCAT, the NSW Trustee and Guardian will be added as a party to those proceedings. 

Before applying for a review, you should get legal advice. 

For more information, see the factsheet Review of an Enduring Guardianship on the NSW Civil and Administrative Tribunal website.

What is a Guardianship Order?

A Guardianship Order is an order made by the NSW Civil and Administrative Tribunal (NCAT) appointing a person as guardian for someone else. 

A guardian is someone who is legally authorised to make personal or lifestyle decisions on behalf of a person with a decision-making disability. A guardian is a substitute decision maker - not a case manager or carer.

Guardians are not authorised to make financial decisions, unless they are also appointed as a financial manager.

Guardians can be authorised to make decisions about:

• where the person should live
• what support services the person should use
• what healthcare and medical treatment the person should receive
• whether restrictive practices are appropriate in the management of the person’s behaviour.

NCAT can only consider guardianship applications about people who live in NSW and are over the age of 16.

For more information, see Guardianship and Financial Management Orders on the My problem is about section of our website.

When will the NSW Civil and Administrative Tribunal make a Guardianship Order?

The NSW Civil and Administrative Tribunal (NCAT) can only make a Guardianship Order if:

• you have a disability, and
• because of that disability, you need a guardian because you are not capable of managing one or more life activities.

A disability can include an intellectual, physical, psychological and sensory disability. It can also include a person who is of advanced age or is mentally unwell. 

Just having a disability is not enough for an order to be made. The disability must restrict one or more major life activities to the extent that you need supervision or social habilitation (help or training for you to gain the skills necessary to function in the community).

If you meet this criteria, it is up to NCAT to consider whether or not to make a Guardianship Order. When deciding this, the Tribunal must consider:

• your views
• the views of your spouse (if you have a spouse, and if you have a close and continuing relationship with them)
• the views of the person who has care of you
• the importance of continuing your existing family relationships
• the importance of continuing your particular cultural and language environments
• how practical it would be for you to get the services you need if an order wasn’t made.

For more information, see Guardianship and Financial Management Orders on the My problem is about section of our website.

What will the NSW Civil and Administrative Tribunal consider when making a Guardianship Order or Financial Management Order?

The NSW Civil and Administrative Tribunal (NCAT) must:

• treat your welfare and your interests as the most important consideration
• restrict your freedom of movement and freedom to make your own choices as little as possible
• encourage you, as far as possible to live a normal life in the community
• consider your views
• recognise the importance of keeping you connected with family, as well as your culture and language
• encourage you to be as self-reliant as possible, in your personal, domestic and financial affairs
• protect you from neglect, abuse and exploitation
• encourage the community to follow all of these principles.

The Tribunal also has an obligation to solve the issues in cases in a way that is fair, quick and cheap. 

For more information, see Guardianship and Financial Management Orders on the My problem is about section of our website.

What things can be included in a Guardianship Order?

Guardianship Orders are usually made in relation to specific functions including:

• where you will live
• what services you should receive, for example, meals on wheels
• what specific types of medical or dental treatment you should receive
• your healthcare or health care plan
• who can visit you and who can’t
• whether restrictive practices are necessary.

What are restrictive practices?

In rare cases, a guardian can be given the power to restrict your movement. This could include locking you in a room, using devices to restrict your movement or giving you medicine that changes your behaviour. 

Restrictive practices can only be used as a last resort and the Tribunal can only make these orders if they are necessary because of behavioural issues.

Does the NSW Civil and Administrative Tribunal need medical evidence if making a Guardianship Order?

It will depend on your situation. Sometimes a diagnosis might help, and in other cases it might not be necessary. 

If you are not sure whether or not you need to get medical evidence in your case, you should get legal advice.

For more information, see Guardianship and Financial Management Orders on the My problem is about section of our website.

What is separate representation?

Sometimes the Tribunal might appoint a lawyer to be a ‘separate representative’ for you if the Tribunal is making decisions about you. The separate representative will present your views to the Tribunal and advise the Tribunal about your welfare and interests. 

If you have a separate representative, they will speak with you, look at all the evidence and tell the Tribunal your views and what they believe is in your best interest.

A separate representative can also tell the Tribunal what they think should be included in Guardian Orders. 

In some cases with permission of the Tribunal, the separate representative might act as a lawyer for you.

How long will a Guardianship Order last for?

Initial orders are usually made one year or less, but in some cases they can be made for up to three years. When orders are reviewed, they are usually made for up to three years, but they can be made for up to five years in some cases.

Temporary orders can also be made appointing the Public Guardian. These orders are only made for 30 days and are reviewed before the end of this time.

Can I apply for guardianship jointly with someone else through the NSW Civil and Administrative Tribunal?

If a person has lost mental capacity and they have not appointed an Enduring Guardian, you can apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) to be recognised as the person’s guardian. You can make the application jointly with someone else. You should discuss with the other person, whether they also agree to act as a guardian, before making the application. You can have separate functions, or the same functions.

NCAT will decide who should be appointed as guardian, and whether it should be more than one person. If NCAT decides that there is no one suitable, they may appoint the NSW Public Guardian. 

For more information, see the factsheet Information for Applicants on the NCAT website.

Before applying for Guardianship Orders, you may want to consider if it is necessary, as some institutions may accept decisions from the Person Responsible.

What if I am unhappy with the decision made by the NSW Civil and Administrative Tribunal?

If you are unhappy with a decision made in the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) you can apply for an internal appeal to the Appeals Panel of NCAT within 28 days from the date of the decision, or from when written reasons were given. In some cases, you also need to seek leave (permission) to make this type of appeal. Before applying for an internal appeal, you should get legal advice.

If you are still unhappy after making an internal appeal, you may be able to appeal the decision to the Supreme Court of NSW. In most circumstances, you can only appeal on a point of law.

Before making an appeal, you should get legal advice. 

How can I have a Guardianship Order reviewed?

You can apply to the NSW Civil and Administrative Tribunal (NCAT) to request Guardianship Orders be reviewed at any time. You can do this if you think they should be changed, or if there is no need for the orders anymore.

For more information, see Guardianship and Financial Management Orders on the My problem is about section of our website.

Can a Guardianship Order made interstate be used in NSW?

A Guardianship Order made outside of NSW is not automatically recognised in NSW.

The Guardian appointed in the Order can apply for a Recognition Order at the NSW Civil and Administrative Tribunal (NCAT). 

This Order gives the Guardian authority to act in NSW for the same time set out in the original Order. 

For more information, see Interstate recognition on the NCAT website. 

Can I apply for a Guardianship Order in the NSW Civil and Administrative Tribunal for a person who lives in another state?

The NSW Civil and Administrative Tribunal (NCAT) can’t make a Guardianship Order for a person if the person the Order is about lives outside of NSW. You will need to apply to the Tribunal or Court in the relevant state or territory where the person lives. 

If the person the Order is about moves to NSW and you want to appoint a new Guardian, you can apply for a Guardianship Order at NCAT.

What is a Financial Management order?

A Financial Management Order is an order by the NSW Civil and Administrative Tribunal (NCAT) appointing a person as a financial manager for someone else. A financial manager is someone who is legally authorised to make financial and legal decisions on behalf of a person who is not capable of managing their affairs.

A financial manager can make decisions about any aspect of the person’s financial affairs unless the Tribunal specifies that a part of the person’s estate is excluded from management. Financial managers do not make personal or lifestyle decisions for the subject person.

NCAT can only consider financial management applications about people who have assets in NSW.

For more information, see Guardianship and Financial Management Orders on the My problem is about section of our website.

When will the NSW Civil and Administrative Tribunal make a Financial Management Order?

The NSW Civil and Administrative Tribunal (NCAT) can only make a Financial Management Order if they have considered your ability to manage your affairs and:

• you aren’t able to manage those affairs
• there is a need for someone else to manage those affairs on your behalf and
• it is in your best interest for an order to be made.

For more information, see Guardianship and Financial Management Orders on the My problem is about section of our website.

How long does a Financial Management Order last for?

Generally, a Financial Management Order does not have a time limit and will continue to run unless it is revoked (cancelled) by the NSW Civil and Administrative Tribunal (NCAT). 

How can I get a Financial Management Order cancelled or changed?

A financial Management Order (FMO) can be reviewed, varied (changed) or revoked (cancelled) at any time. 

You should apply to the same Court or Tribunal that made the FMO. For example, if the NSW Civil and Administrative Tribunal (NCAT) made the FMO, you should apply to NCAT. If the Mental Health Review Tribunal (MHRT) made the FMO, you should apply to change or revoke the order to the MHRT. If the Supreme Court made the order, you should apply to the Supreme Court to get it changed or cancelled.

You will need some evidence to support your application. For example, if you don’t want an FMO anymore because you can now manage your own financial affairs, you will need a supporting letter from your doctor to support your application. 

For more information, see Guardianship and Financial Management Orders on the My problem is about section of our website.

How can I apply to revoke a Financial Management Order made by the Mental Health Review Tribunal?

If a Financial Management Order was made by the Mental Health Review Tribunal, you can apply to the Mental Health Review Tribunal for the order to be revoked if you have supporting evidence that you are capable of managing your own financial affairs.

For more information, see Revoking Financial Management Orders on the Mental Health Review Tribunal website. 

Before making your application, you should get legal advice from the Mental Health Advocacy Service or a private lawyer.

For more information, see Guardianship and Financial Management Orders on the My problem is about section of our website.

I live in my relative's (or friend's) home. They have become subject to a Financial Management Order. What happens if the Financial Manager wants me to leave?

When a Financial Management Order is made, the Financial Manager can make financial decisions on behalf of the person that the order is for. This includes managing their bank accounts, selling or buying property or getting a lawyer to take legal action in their matter.

If the Financial Manager gives you notice to leave, what you can do will depend a number of things, including:

• what agreement you have to stay in the property
• what contributions you have made to the property
• your relationship with the person under the Financial Management Order
• what legal action is taken by the Financial Manager.
  

This is a complex area of law. Depending on your circumstances, you may need to have the Financial Management Order reviewed or defend a Supreme Court action for possession of land.

If you have received notice to leave, you should get legal advice.

If you are in severe hardship and/or at risk of homelessness, you should get legal advice.

Can the NSW Civil and Administrative Tribunal make a Financial Management Order for a person who lives in another state?

Yes. NCAT can make a Financial Management Order about a person who lives in another state, if the person has assets in NSW. 

What is an Advance Care Directive and how do I go about putting one in place?

An Advance Care Directive is a document that sets out your wishes regarding your future health care if you no longer have the mental capacity to make decisions for yourself. It is also known as a living will.

You must have mental capacity and you must put your requests in writing. It is also important to appoint a substitute decision maker in your directive, who is usually your Enduring Guardian. If your directive is unclear, your doctors may speak to a Person Responsible.

Currently in NSW, there is no specific form that you must use to put an Advance Care Directive, however, it is important that your directive meets your needs. You may be able to use the NSW Government's NSW Health Advance Care Directive (ACD) form.

For more information, see What is advance care planning? on the NSW Health website.