The Guardianship Tribunal are for people who are planning for their future, they will generally understand the need to have an Enduring Power of Attorney in the event that, they are unable to make financial decisions.
However, often people do not consider who, or how, decisions about their lifestyle will be made for them in the event that they suffer a disability. The best way to plan for this possibility, is to make an Enduring Guardianship which appoints a person you know and trust, to make these lifestyle decisions on your behalf.
If a person does not have an Enduring Guardianship, it is possible to apply to the Guardianship Tribunal for a Guardianship Order. Both Enduring Guardianships and Guardianship Orders are governed by the Guardianship Act 1987 and administered by the Guardianship Tribunal which is a division of the NSW Civil and Administrative Tribunal (NCAT).
The Guardianship Tribunal has the power to appoint a “Guardian” over a person who is totally, or partially, incapable of managing their personal and lifestyle choices because of a disability.
The Guardianship Tribunal will consider a number of factors when deciding to appoint a Guardian under a Guardianship Order including:
- The views (if any) of the person over who the Guardian is to be appointed;
- The views of the person’s spouse if the relationship between them is close and continuing;
- The views of any person who has care of the person;
- The importance of preserving the person’s existing family relationships;
- The importance of preserving the person’s cultural and linguistic environments; and
- The practicability of services being provided to the person without the need for the making of a Guardianship Order.
A Guardian appointed by the Guardianship Tribunal has the legal authority to make personal or lifestyle decisions for example:
- Decisions about medical or dental treatment;
- Decisions on where the person should live; and
- Decisions on what type of support the person requires.
If you are in the process of planning for your future, it is important to remember that, having an Enduring Guardianship in place, is as important as having an Enduring Power of Attorney in place. One will govern the way you wish your finances to be looked after and the other will govern the way you wish to live your life, in the event that you suffer a disability and can no longer make these decisions.
Expert Estate Lawyers can draft Enduring Guardianships to ensure that they comply with all aspects of the Guardianship Act and will be valid and binding in the event that you suffer a disability.
Graeme Heckenberg is an expert Wills & Estates lawyer and will be able to guide and advise you on Enduring Guardianships, as well as the process of obtaining a Guardianship Order. If you are living on the Northern Beaches and surrounding Peninsula and need expert advice, call The Northern Beaches Lawyer today for an appointment close to home on: 9221 0341
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