Guardianship and enduring guardianship in New South Wales 

This article states the law of New South Wales. Under the Guardianship Act 1987 (NSW), decisions about an adult who cannot manage their own person may be made by a guardian the person appointed while capable, or by a guardian appointed by the New South Wales Civil and Administrative Tribunal¹. The prior question is which of those two routes is in play, because Part 2 and Part 3 have different triggers and produce different instruments.

The threshold: a person in need of a guardian

Section 3 defines a person in need of a guardian as "a person who, because of a disability, is totally or partially incapable of managing his or her person".

Three features matter. The incapacity must be caused by a disability, so the definition has a gateway the mere fact of poor decisions does not satisfy. It concerns managing the person rather than the estate — financial management orders are dealt with separately under Part 3A. And partial incapacity is enough, which is what makes limited orders workable.

The general principles, and how they differ from South Australia

Section 4 imposes a duty on everyone exercising functions under the Act to observe eight principles. The first is that "the welfare and interests of such persons should be given paramount consideration". The others require that freedom of decision and action be restricted as little as possible; that people be encouraged as far as possible to live a normal life in the community; that their views be taken into consideration; that the importance of preserving family relationships and cultural and linguistic environments be recognised; that they be encouraged to be self-reliant in personal, domestic and financial affairs; that they be protected from neglect, abuse and exploitation; and that the community be encouraged to apply and promote the principles.

This is where a student must be careful about jurisdiction. New South Wales makes welfare and interests paramount and requires the person's views to be taken into consideration. South Australia's Guardianship and Administration Act 1993 makes paramount what the person's wishes would be if they were not mentally incapacitated. The two statutes put a different thing at the top, and an answer that imports the New South Wales formula into a South Australian problem, or the reverse, states the wrong test.

Enduring guardianship under Part 2

Section 6 allows a person aged 18 or more to appoint a guardian by instrument in writing. Section 6A(1) then states when the appointment operates: it has effect only during such period of time as the appointor is a person in need of a guardian, and, unless revoked or suspended, during all such periods. A person so appointed is an enduring guardian (s 6A(2)).

The appointment therefore switches on and off with the appointor's condition rather than running continuously from execution. Where the question is whether the appointor was a person in need of a guardian on a particular day, the Act makes a medical practitioner's certificate to that effect evidence of the fact.

Guardianship orders under Part 3

Section 14(1) empowers the Tribunal, after a hearing, to make a guardianship order if satisfied the person is a person in need of a guardian. Section 14(2) directs it to have regard to the views of the person, of a spouse in a close and continuing relationship, and of the person who has care of them; the importance of preserving existing family relationships; the importance of preserving cultural and linguistic environments; and the practicability of services being provided without the need for an order. That last matter is the analogue of asking whether informal arrangements make an order unnecessary.

Section 15 then restricts the power in four ways, and three of them are least-restrictive rules:

• no order for a person under 16, or for a person subject to a Supreme Court guardianship order or a relevant Children's Court order, without that court's consent (s 15(1));
• no temporary order where it is practicable to make a continuing order appointing someone other than the Public Guardian (s 15(2));
• no continuing order appointing the Public Guardian where such an order can be made appointing someone else (s 15(3)); and
• "A plenary guardianship order shall not be made in circumstances in which a limited guardianship order would suffice" (s 15(4)).

Section 15(3) is worth naming: the Public Guardian is a last resort, and an argument for appointing it must establish that no other person can be appointed.

What the order must contain

Section 16(1) requires a guardianship order to appoint a person aged 18 or more as guardian, to specify whether it is continuing or temporary, to specify whether it is plenary or limited, and permits conditions. A limited order must specify the extent, if any, of the guardian's custody of the person and which of a guardian's functions the guardian is to have (s 16(2)).

Two or more guardians may be appointed under one or more limited orders, either jointly with the same functions or separately with different functions — but the Public Guardian is not to be appointed a joint guardian (s 16(3)). Section 8 preserves the Supreme Court's own guardianship jurisdiction, which the Part does not limit.

Applying this in a problem question

1. Establish the disability gateway in s 3 and say whether incapacity is total or partial.
2. State the paramount consideration as welfare and interests, and do not import another jurisdiction's formula.
3. Ask whether an enduring guardian was appointed under Part 2 before considering a Tribunal order.
4. For an enduring guardian, apply s 6A(1) — the appointment operates only while the appointor is a person in need of a guardian.
5. Work through s 14(2), and address s 14(2)(d) on whether services can practicably be provided without an order.
6. Argue the s 15 restrictions in order: limited before plenary, someone other than the Public Guardian before the Public Guardian.

Self-check

• Have I applied the disability gateway rather than treating incapacity alone as sufficient?
• Have I stated welfare and interests as paramount, rather than a substituted judgment standard?
• Have I checked for an existing enduring guardianship appointment?
• Have I treated the Public Guardian as a last resort under s 15(3)?