Guardian support services

As a guardian, your decision-making authority is limited by the functions that are included in the guardianship order. At the moment, you can only make decisions for your brother that relate to what health care and disability services he receives. NCAT will only appoint you with the applicable functions for the decisions that need to be made at the time of the guardianship hearing.

If your brother needs decisions made for him that are outside the functions in the guardianship order, you should support him as much as possible to make these decisions himself. This approach is called supported decision making. If he is unable to be supported to make his owns decisions, you can discuss this at the review hearing at the end of the guardianship order. If you think the decision needs to be made urgently, you can make an application to NCAT to have the guardianship order reviewed before the end of the order. At the review hearing, NCAT can decide to add functions to the order if they are needed, such as the accommodation function to allow you to make accommodation decisions on your brother’s behalf. You can also make an application for a review if you would like other changes to be made to the order, such as adding another guardian, or if you are no longer willing and able to be the person’s guardian and you think someone else should be.

The National Disability Insurance Scheme (NDIS) is a Commonwealth scheme that provides funding to ensure people with a significant and permanent disability can receive individualised services and supports throughout their lifetime. People who have a significant and permanent disability, who are Australian citizens and are under the age of 65, are eligible for the NDIS. Provided your brother meets these requirements, he should be eligible.

You can start the application process for your brother by visiting the NDIS website. Where it is not possible for an NDIS participant – a person who is eligible for the NDIS – to make their own decisions, or be supported to make their own decisions, the National Disability Insurance Agency (NDIA) can appoint a nominee to act or make decisions on their behalf. However, if you have been appointed with the services function as the guardian, you will also have the authority to consent to NDIS-funded supports.

If your brother is eligible for the NDIS, he will receive an access decision letter and the next step will be the NDIS planning process to create his NDIS plan. The NDIA will schedule a meeting with you and your brother, to talk about his goals and the types of support he might need. This information will help the NDIS to develop a NDIS plan outlining his goals and the funding he will have available to meet his needs.

For more information on the NDIS planning process, visit the NDIS website or phone 1800 800 110.

For more information on your role as guardian for making NDIS service decisions, read our factsheet on the NDIS and information for Private and Enduring Guardians.

Making an accommodation decision for someone is always a big decision and can take some time. A good place to start is talking to your mother to understand her views. She may prefer to stay at her home with in-home care services provided, or she may be open to moving into an aged care facility if her care needs can be met.

Making this decision can be tricky as you will need to consider her will and preference, that is what she would like and what has been important to her in her life. You will also need to consider what is in her best interests, including if there is any risk to her staying at home. Remember, your role as a guardian is to take the least restrictive approach by making decisions that align with your mother’s will and preference, however these must prioritise her welfare and interests.

To help understand your mother’s care and support needs, you should also seek the views of professionals. This can include her GP or a specialist like a geriatrician. If your mother is over 65, she will be eligible for a My Aged Care Assessment. This is an important step, as My Aged Care will assess her needs and determine what kind of services she might be eligible for and can access. She may only meet the criteria for in-home care, or she may be eligible for an aged care facility package. For more information about a My Aged Care Assessment, visit the My Aged Care website or discuss a My Aged Care referral with her GP.

If your mother needs to be cared for in an aged care facility, you will need to find one that suits her needs. You can work with My Aged Care to find a suitable facility. Once you have found a suitable facility, you will need to consult with the financial manager or attorney, if there is one, about the aged care accommodation costs including the Refundable Accommodation Deposit (RAD)and the accommodation agreement.

Once the accommodation costs have been sorted, you can make the accommodation decision as the guardian, if you have the accommodation function.

Under the NSW Guardianship Act 1987, guardianship for health and lifestyle decision-making only applies to adults 16 years and over in NSW, and 18 years and over for enduring guardianship. This means that your enduring guardianship arrangements will apply to you and your care while you are pregnant but will not apply to your child once they are born.

A legal guardian for a child is different to a substitute health and lifestyle guardian for an adult. If something happens to you during labour and decisions need to be made for your baby after their birth, the treating team will refer to the child’s legal guardian for any treatment needs and medical consent. It is a good idea to seek further legal advice about this to ensure that your wishes in relation to legal guardianship for your child are formally made.

While you are capable of making your own decisions, you can amend and revoke your appointment of an enduring guardian. In NSW, most enduring guardianship appointments are made through a solicitor or a branch of the NSW Trustee and Guardian. In the first instance, you should speak with whoever you made your enduring guardianship documents.

In general, it is usually easier to revoke an enduring guardianship appointment and create a new one, rather than amend your existing one. If you do decide to revoke your enduring guardianship appointment, you will need to complete a Revocation of Appointment of Enduring Guardian form which must be witnessed by either a solicitor, staff member of NSW Trustee and Guardian, or a Clerk of a Local Court. From there, you can appoint a new Enduring Guardian.

If your capacity is impacted and your enduring guardianship is activated, you are not able to amend or revoke your enduring guardianship. If you are unhappy with the decisions your enduring guardian is making, or you think other changes should be made to your arrangements (such as additional guardians or decision-making functions), either you or someone on your behalf can make an application to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) for a review of enduring guardianship. NCAT will hold a hearing to determine if the Enduring Guardian is carrying out their role appropriately and if any changes need to be made to the appointment.

If you have concerns about the way an enduring guardian is carrying out their duties, you should talk to them in the first instance.

If you are unable to resolve your concerns, the Guardianship Act 1987 (NSW) allows anyone with a genuine concern to apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) to have the enduring guardian appointment reviewed. NCAT will review your application and if necessary, hold a hearing to review the appointment.  More information about this process and the application form for review can be found on NCAT’s website.

The NSW Civil and Administrative Tribunal (NCAT) has appointed you and your sister as substitute decision makers for your brother. The Guardianship Order details what decisions you can make.

If more than one person is appointed, you may share the functions jointly, or you may be responsible for separate functions.

If you share functions jointly and disagree on the decisions you are required to make, then the order is not working in the best interests of the person you have been appointed as guardian for, in this instance, your brother.

Anyone with a genuine concern for the welfare of a person under guardianship can request that NCAT review a guardianship order.

As you are your daughter’s guardian with the medical and dental function, her treating medical practitioners are required to obtain your consent before administering all minor and major treatments.

Under Part 5 of the Guardianship Act 1987 (NSW), there are situations where your consent is not required, such as an urgent treatment to save a life. However, in most scenarios, the doctor or dentist should be contacting you for consent.

If the minor medication is being used infrequently and only when needed, such as a Panadol to relieve temporary pain, your consent would not be required for each use. Panadol is a non-prescription, over the counter medication, so obtaining your consent each time would not be practical. If she is being given these types of medications frequently, the group home should discuss this with you in the context of her overall health needs.

If the medication your daughter is being given has been prescribed by a doctor on an ongoing basis, then your consent to this treatment is required. The prescribing doctor should have consulted with you and obtained your consent before writing the prescription.

It is recommended you have a conversation with the group home and her treating doctor. This is to ensure each party understands your role and their obligations around obtaining your consent, and to keep you informed of your daughter’s health needs.

If the group home or doctor need further clarification, please encourage them to contact the Guardian Support Unit and our team will provide further information and education if required.

An access function gives a guardian authority to decide:

• who can visit the person or who the person can visit
• what type of contact the person has with other people, for example, in person, by telephone, email, text message or social media
• when the contact can happen, how long and under what circumstances (including supervised).

Making access decisions

Many guardians feel uneasy about access decisions because they often involve conflict with other people. Sometimes circumstances change and you will need to amend your decision, which can also be stressful. It helps to keep a written record of all the questions and information you have considered so you can feel confident about your decision and can refer to it later if circumstances change or if you need to explain your decision.

Overall, an access decision must consider the principles of the Guardianship Act 1987 (NSW) and should prioritise the represented person’s welfare and interests while aligning with their will and preferences as much as possible.

If there is a lot of conflict surrounding the person you are guardian for, you may consider seeking mediation services to try and resolve the issues. Community Justice Centres provide free and confidential mediation services.

If a person does not have the ability to make their own medical and dental decisions and does not have an appointed guardian with the necessary authority, then their person responsible is able to provide consent on their behalf. A person responsible can provide consent to medical and dental treatment on a person’s behalf when they cannot provide their own consent.

Who is the person responsible?

A person responsible is not necessarily the patient's next of kin or carer. There is a hierarchy of people who can be the person responsible. A person responsible is one of the following people in order of priority:

1. Guardian – a guardian who has been given the authority to consent to medical and dental treatments.
2. Spouse or partner – if there is no guardian, a spouse, de-facto spouse or partner where there is a close continuing relationship.
3. Carer – if there is no spouse or partner, an unpaid carer who provides or arranges for domestic support on a regular basis.
4. Relative or friend – if there is no carer, a friend or relative who has a close personal relationship, frequent personal contact and a personal interest in the person’s welfare, on an unpaid basis.

In this case, if there is no spouse, partner, or carer available, as per the above hierarchy, you would become your father’s person responsible and could provide consent to the medical treatment on his behalf.

For more information on person responsible, see the fact sheet.

The need for a hospital to provide health information to you depends on your mum’s capacity to make decisions about her health care. Even though you are the enduring guardian, your authority is not ‘activated’ until it is determined that your mum does not have capacity to make her own health care decisions – which includes decisions about who accesses her health information.

While she has capacity, your mum can consent to, or authorise, any third party, such as a family member, to have access to her health information. If she has done so and you continue to not receive information, you should raise this with a senior member of staff, request a meeting, or if you think it’s warranted, submit a complaint with the hospital.

If your mum is not able to provide consent to you accessing her health information, a general practitioner or geriatrician can undertake a capacity assessment – this will determine if she requires a substitute decision-maker. If she does, your authority as the enduring guardian is then ‘activated’, and you should be able to access your mum’s health care information to make decisions on her behalf.

Making an accommodation decision for someone is always a big decision and can take some time. A good place to start is talking to your mother to understand her views. She may prefer to stay at her home with in-home care services provided, or she may be open to moving into an aged care facility if her care needs can be met.

Making this decision can be tricky as you will need to consider her will and preference, that is what she would like and what has been important to her in her life. You will also need to consider what is in her best interests, including if there is any risk to her staying at home. Remember, your role as a guardian is to take the least restrictive approach by making decisions that align with your mother’s will and preference, however these must prioritise her welfare and interests.

To help understand your mother’s care and support needs, you should also seek the views of professionals. This can include her GP or a specialist like a geriatrician. If your mother is over 65, she will be eligible for a My Aged Care Assessment. This is an important step, as My Aged Care will assess her needs and determine what kind of services she might be eligible for and can access. She may only meet the criteria for in-home care, or she may be eligible for an aged care facility package. For more information about a My Aged Care Assessment, visit the My Aged Care website or discuss a My Aged Care referral with her GP.

If your mother needs to be cared for in an aged care facility, you will need to find one that suits her needs. You can work with My Aged Care to find a suitable facility. Once you have found a suitable facility, you will need to consult with the financial manager or attorney, if there is one, about the aged care accommodation costs including the Refundable Accommodation Deposit (RAD)and the accommodation agreement.

Once the accommodation costs have been sorted, you can make the accommodation decision as the guardian, if you have the accommodation function.

No. An Enduring Guardian is a person you legally appoint to make decisions in specific areas of your health and lifestyle, if you cannnot make these decisions for yourself. This could be due to a temporary or permanent loss of decision-making ability from illness, injury or disability.

The term ‘next of kin’ in the context of substitute decision-making in areas of a person’s health and lifestyle has no legal status in Australia. However, there is a legal framework for substitute decision-making that applies to all adults in NSW if a person is unable to make specific health and lifestyle decisions for themselves.

1. If the decision is about medical or dental treatment, a ‘person responsible’ can provide or withhold consent. The person responsible, in order, is:
   1. an appointed guardian (or enduring guardian) who has the appropriate authority, as outlined in an Enduring Guardianship instrument or guardianship order
   2. a spouse or partner
   3. an unpaid carer
   4. a family member or friend.
       
2. If the decision is about another aspect of the person’s life, for example their accommodation or services, or there is no person responsible, anyone can make an application to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) to have a guardian appointed. NCAT can appoint a private guardian – usually a family member or friend – or the Public Guardian as a person’s guardian.
   It is always best to plan ahead by appointing an Enduring Guardian while you have capacity. You may find that you have very specific wishes about how you’d like to be cared for, or you may have a close friend that you want to make health and lifestyle decisions on your behalf.

Your role as guardian ceases when the person you represent dies. This is because there is no longer a need to make substitute health and lifestyle decisions for the person.

If you are also appointed as the person’s attorney or financial manager, you may need to make arrangements to pay for funeral costs from their estate. However, it is the role of the executor named in the person’s Will to administer their estate when they die.

If the person did not leave a Will, they are said to die intestate. When this happens, an application needs to be made to the Supreme Court for ‘Letters of Administration’ – a document providing the court’s formal approval for someone to administer the estate of the deceased.

To become your father’s guardian will depend on his capacity.

If your father has legal capacity, he can appoint you as his enduring guardian by completing an enduring guardian document. This means that he must be able to show that he understands he is appointing someone to make health and lifestyle decisions on his behalf for a time when he cannot.

To appoint an enduring guardian, your father will need to fill out a form of appointment and then have it witnessed by either a solicitor, a Registrar of the local court, or an approved officer of NSW Trustee and Guardian. The person who witnesses the document will assess your father’s capacity to ensure he understands the appointment and it is legally valid.

The NSW Trustee and Guardian Wills and Estate Planning team can assist you. Request an appointment.

If you father does not have the legal capacity to appoint an enduring guardian and there are decisions that need to be made, you will need to apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) and request to be appointed as his private guardian.

After an application is made, NCAT may hold a hearing and decide whether your father needs a guardian, who the guardian should be and what decision-making authority, or functions they should have. If there is a need for a guardian and they determine you are the appropriate person, NCAT will make an order appointing you as guardian. For more information on applying for guardianship and what can be included in a guardianship order, visit NCAT’s website.

Before applying for guardianship, remember, informal support arrangements, such as having a person responsible, are often appropriate. Guardianship is a last resort and is only required if the person lacks decision-making ability, is placing themselves at risk, there is a legal imperative for a guardian to be appointed, or there is conflict surrounding the decisions that need to be made.

Every state and territory in Australia have their own laws and processes in relation to guardianship and financial management. They may use different terms for substitute decision-making and different processes for recognising or appointing a substitute decision-maker.

If a person is visiting another state or territory on a short-term basis or on holiday, there can be recognition of the orders made in NSW, if the functions – the areas of decision-making authority – contained in the orders reflect the functions that are available in that state or territory.

Copies of the NSW orders should be sufficient for any involved service providers to confirm the substitute decision-maker’s authority. However, if there are difficulties in making or implementing decisions, then an application can be made to the new state or territory’s relevant court or tribunal for recognition of the interstate orders.

If a person is moving to another state permanently, it is best practice that a new application for guardianship and financial management is made in that state or territory. Each state and territory will have a slightly different application process and may use different terms such as ‘health guardian’ or ‘financial guardian.’ You should contact the relevant court or tribunal for information on their processes.

In NSW, a guardian and/or a financial manager can be appointed for a person who does not have the decision-making ability to make decisions themselves. Financial managers deal with financial and legal matters on behalf of another person. A financial manager does not make health and lifestyle decisions; a guardian makes such decisions. Appointed guardians can make decisions about healthcare, including medical or dental treatment, decisions about where the person resides, and the services they use.

Even though a private guardian and financial manager for a represented person have separate decision-making authorities, they should always work together as much as possible to ensure that decisions are being made in the person’s best interests.

When there are costs involved with a decision, for example, an accommodation decision to move the person into an aged care facility, the guardian may not be able to implement the decision without the financial manager’s approval on the financial aspects of the decision. In these cases, it is important that the guardian explains why the decision is in the person’s best interests and that it cannot be implemented without financial consent.

If your husband is happy with you supporting him and with living at the aged care facility, you should try and push back, provided that:

there is no conflict with other family members, health professionals or other service providers about the decisions you are making for him there is no risk to him there is no legal reason why a formal decision-maker should be appointed.

Applications for formal substitute decision-making authority as a financial manager or guardian should only serve as a back-up when informal arrangements aren’t working.

You can ask to speak to a senior member of staff, or request to see the aged care facility’s policy or procedure around this issue. If you continue to have trouble, you can refer the facility to the Guardian Support Unit and we can provide information to assist.

In the first instance, we recommend contacting the service provider to try to come to a resolution informally. This could be in the form of speaking with a manager to raise your concernsand working together to develop a positive outcome for the person you represent.

However, if attempts to develop an informal resolution have not been successful, the service provider should have a formal complaints pathway. You should be able to find information on the service provider’s complaints process from their website or by speaking to a manager.

If you have proceeded with the service provider’s formal complaint process and are not satisfied with the outcome, you can lodge a complaint with the Aged Care Quality and Safety Commission or NDIS Quality and Safeguard Commission. Depending on the type of service being provided, these commissions may assess your complaint, find a solution or investigate and take action.

An advance care directive (ACD) records a person’s decisions about any future end-of-life medical intervention and treatment, in case they are unable to make or communicate their decisions at the time. An ACD can only be made by a person with capacity and takes effect when the person is no longer able to make decisions. An ACD is the best way to ensure the person’s wishes drive decision-making, even in circumstances when the person’s capacity doesn’t allow them to participate fully in these decisions.

Guardians cannot make an ACD on behalf of a person. If you are aware that the person has written an ACD, you should make it known to the health professionals involved in the person’s care. A valid ACD is legally binding and must be considered by everyone involved in providing and consenting to medical treatment on behalf of the person who made the ACD. A guardian cannot consent to medical treatments that go against what the person has said they want in their ACD.

An advance care plan is different to an advance care directive. An advance care plan records a person’s medical history, current medical conditions, their preferences, values and beliefs in order to guide decisions about future health and treatment options. It may be completed through discussion with the person and their family members, and may be made by, with, or for the person. Advance care plans are a collaborative process between the person, their guardian, their family, friends, and medical and health professionals that documents agreed care arrangements. Plans can be verbal but written plans are a more reliable record. The plan should record the person’s treatment choices and preferences to the fullest extent possible. If you have the health care function, you can consent to an advance care plan if you are asked to.