Few decisions are harder than stepping in when someone you love can no longer decide things for themselves. It often happens gradually: a parent with dementia who no longer recognises the risks of living alone, or a family member who cannot manage their money safely after a brain injury. Families are left asking who can lawfully make decisions, and how those decisions should be made.

In New South Wales, that question is often answered by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT). Understanding what NCAT can and cannot do helps families act with confidence at a difficult time.

The Role of NCAT’s Guardianship Division

The Guardianship Division of NCAT helps protect adults who cannot make certain important decisions for themselves because of a disability or impaired decision-making ability. This may include people living with dementia, an intellectual disability, an acquired brain injury or mental illness.

NCAT can make guardianship orders and financial management orders. These orders serve different purposes.

Guardianship Orders

A guardianship order appoints a person to make specified personal or lifestyle decisions for another adult. The appointed person is called a guardian.

Depending on the order, a guardian may be authorised to decide:

• where the person lives;
• what health or medical services they receive;
• what personal services or support they need; or
• whether access to the person should be restricted or supervised.

NCAT will only make an order if satisfied that the person is not capable of making the relevant decisions, needs a guardian and an order is appropriate. The order should interfere with the person’s independence as little as possible.

For example, an older person with advanced dementia may be unable to understand why they can no longer live safely at home. NCAT could appoint their adult child as guardian, with authority to decide where they live and arrange suitable care.

NCAT may appoint a suitable family member or friend. If no suitable private person is available, it may appoint the NSW Public Guardian.

Financial Management Orders

A financial management order deals with a person’s money, property and financial affairs.

NCAT may make this order if the person cannot manage their finances, there is a need for someone else to do so, and the order is in the person’s best interests.

A financial manager may be responsible for:

• paying bills and expenses;
• managing bank accounts and investments;
• dealing with property;
• lodging tax returns; and
• protecting the person from financial abuse or exploitation.

For example, a person with an acquired brain injury may repeatedly enter contracts they do not understand and fail to pay essential bills. NCAT could appoint a trusted relative as financial manager. If no suitable person is available, it may commit management of the person’s estate to the NSW Trustee and Guardian.

How NCAT Approaches These Cases

NCAT generally holds a hearing and considers medical evidence, the person’s views, family circumstances and any existing enduring guardian or power of attorney. The person concerned should be involved as much as possible.

Orders are tailored to the person’s needs and may be reviewed, changed or ended if circumstances change. A guardianship order does not automatically give control over finances, and a financial management order does not automatically authorise personal or medical decisions.

Why Planning Ahead Matters

An application to NCAT is often made because no valid appointment was in place before capacity was lost. While the person still has capacity, they can appoint an enduring guardian to make personal, lifestyle and health decisions, and appoint an attorney under an enduring power of attorney to manage financial and legal affairs.

These documents allow a person to choose who will act for them, rather than leaving that decision to a tribunal. They can also reduce cost, delay and disagreement between family members at a stressful time. Where those documents already exist, NCAT will take them into account, so it is worth reviewing them periodically to confirm they still reflect the person’s wishes and circumstances.

Getting the Right Advice

Guardianship and financial management matters touch on health, housing, family relationships and money, often all at once. The right course of action depends on the person’s capacity, what decisions actually need to be made and what arrangements are already in place. Clear advice early can make a genuinely difficult process more manageable.

We have guided Western Sydney families through these decisions for decades, and we understand what is at stake for the person at the centre of them.

If you are concerned about a family member’s capacity, or you would like to put an enduring guardianship or power of attorney in place, get in touch to discuss your situation.