NSW Civil and Administrative Tribunal (NCAT) Guardianship Hearings
What is NCAT?
NCAT stands for NSW Civil and Administrative Tribunal. NCAT deals with a range of legal and administrative matters, including guardianship matters through its Guardianship Division.
What is a guardianship order?
NCAT’s Guardianship Division can make a guardianship order for a person with a decision-making disability. A guardian can make personal and lifestyle decisions such as health, accommodation, services and other day-to-day matters. A guardian does not make financial decisions. Financial decisions are dealt with separately through financial management orders.
MDAA supports people with disability from multicultural communities to understand the process, participate in it, and have their language and cultural needs respected.
Who can apply?
Anyone with a genuine concern for the welfare of the person can apply to NCAT. NCAT manages the process and considers the evidence before deciding whether a guardian should be appointed.
What does NCAT have to be satisfied about?
To make a guardianship order, NCAT must be satisfied that:
- the person has a decision-making disability
- the disability means they are partly or wholly incapable of managing themselves
- there is a need for a guardian to be appointed
What happens before the hearing?
After an application is filed, NCAT reviews it and prepares the matter for hearing. A NCAT officer may contact the applicant and the person who is the subject of the application. The applicant is responsible for providing the evidence that supports the application.
Supporting material often includes medical evidence, professional reports, and information about the person’s ability to make decisions and any risks they may face.
What happens at the hearing?
Guardianship hearings are intended to be conducted with as little formality as possible. The Tribunal hears from the person, the applicant and other parties, and considers the available evidence.
Parties may sometimes have a lawyer or another representative, but this usually requires the Tribunal’s approval. Interpreters and remote attendance by phone or video may also be available where needed.
What does the Tribunal consider?
Under the Guardianship Act, the welfare and interests of the person are given paramount consideration. The Act also says the person’s freedom of decision and action should be restricted as little as possible, and they should be encouraged, as far as possible, to live a normal life in the community.
What orders can NCAT make?
If NCAT decides the criteria to make a guardianship order have been met, and all three criteria are satisfied, NCAT then decides who should be appointed as guardian.
NCAT will consider whether there is an appropriate private guardian who is willing and able to take on the role. A private guardian is generally preferred. The Public Guardian (from the NSW Trustee and Guardian) is only appointed when there is no suitable private person available, as it is considered an option of last resort.
Depending on the evidence, NCAT may:
- make a guardianship order
- dismiss the application
- adjourn the matter
- allow the application to be withdrawn
- reserve its decision and give it later
How long does a guardianship order last?
An initial continuing guardianship order is usually made for up to 1 year. In some cases NCAT can make a longer order. Renewed orders can run for longer periods. NCAT reviews guardianship orders at the end of their term unless legislation allows otherwise.
Reviews and appeals
A review is different from an appeal. A guardianship order can be reviewed by NCAT. A party may also be able to appeal a decision to the NCAT Appeal Panel or the NSW Supreme Court.
If you are thinking about challenging a decision, check official NCAT information. The process can be technical.