What is a guardianship appointment?

A guardianship appointment is a document that allows you to appoint someone to make health, lifestyle and personal decisions on your behalf in circumstances where you do not have the capacity to make decisions for yourself.

Why do I need a guardian?

While individuals are under 18 years of age, their parents are typically responsible for making decisions regarding their welfare. Once you are over 18, you are responsible for making those decisions for yourself.

Issues arise where someone who is over 18 loses mental capacity (either temporarily or permanently), as they do not automatically have someone who is legally authorised to make personal decisions on their behalf.

Many people assume that their spouse or children are authorised to make decisions on their behalf, but this is not necessarily the case. Due to the varying family types in Australia, institutions often exercise caution when dealing with individuals who aren’t legally authorised to make decisions. They are reluctant to risk being held liable if they incorrectly deal with the wrong person.

The absence of a guardianship appointment in circumstances where you lose mental capacity may require your next of kin to attend the New South Wales Civil and Administrative Tribunal (NCAT) in order to make an application to become your guardian.

The NCAT process is time consuming, requiring the preparation of standard forms which request evidence as to why the applicant is the most appropriate person to be appointed. Additionally, receiving a tribunal hearing date to have the matter determined could take weeks and sometimes months. If a decision can’t be made on behalf of an incapacitated person quickly, this may lead to issues with arranging care or securing a spot in a chosen facility.

How can we help?

Having a guardianship appointment in place means that you have the ability to choose those who will be responsible for making decisions on your behalf if you become incapacitated. It will also save your loved ones the additional stress of having to go through a tribunal process when they may be struggling with the emotions that come with having a family member who has lost capacity.

Please contact our Wills & Estates Team on (02) 9964 0499 should you have any questions on preparing a guardianship document.

This article refers to processes in New South Wales; however, similar processes apply throughout all Australian states and territories.

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The articles on this website comprise legal general information and not legal advice. The general information presented here must not be relied upon without legal advice being sought. In the event that you wish to obtain legal advice on the contents of this general information you may do so by contacting our office or your existing solicitor.