Guardianship Orders

A person may need a guardian if they have trouble making healthcare, lifestyle and medical decisions on their own because of a decision-making disability and there are decisions that need to be made and:

• they do not have family, friends or a carer to support them in their decision-making
• their family, friends or carers disagree about a decision or what is best
• they are at risk of abuse, neglect or exploitation because of their lifestyle or the actions of other people
• they are unable to give their own consent to medical treatment or to the use of a restrictive practice.

A person responsible (spouse, carer or family member) is also able to consent to medical treatment if a person is unable to do so themselves and does not have a guardian.

Generally, most people with disability do not need a guardian and may be able to make decisions on their own or with support from family, friends and carers through supported decision-making.

Learn more about supported decision-making and what it means to lack the capacity to make decisions.

Download our Helping people make decisions easy ready guide.

A guardian makes healthcare, lifestyle and medical decisions for a set period of time. Their primary role is to ensure the person has access to the same care, treatment and services as the rest of the community. The types of decisions they may need to make for the person can include:

• where they live
• what services they receive
• consenting to their medical and dental treatment.

A guardian is not able to make any decisions about money or other financial affairs unless they are also legally appointed to be the person’s attorney under the powers of an Enduring Power of Attorney or private financial manager.

Download our How your guardian makes decisions easy read fact sheet (PDF 560.01KB)

Guardians are appointed by NCAT, which is independent of NSW Trustee and Guardian.

NCAT holds hearings for both guardianship and Financial Management Order applications to determine whether a person has capacity and to legally appoint a substitute-decision maker if a person is unable to make their own decisions.

Private guardian

A person who no longer has decision-making capacity, who did not appoint an Enduring Guardian and cannot be supported to make their own decisions can have a private guardian appointed by a court or tribunal.

This is usually a family member, close friend or unpaid carer over the age of 18.

Get support if you're a private guardian

The Public Guardian

A person who no longer has decision-making capacity, who did not appoint an Enduring Guardian and has no family member, close friend or unpaid carer available to be the private guardian, will have the NSW Public Guardian appointed by a court or tribunal to make healthcare, lifestyle and medical decisions on their behalf.

The Public Guardian may also be appointed jointly with a private guardian but with different decision-making areas of responsibility.

Learn more about the Public Guardian

If you have a genuine concern for the wellbeing of another person, you can make separate applications to have a guardian or financial manager appointed on behalf of the person. 

A guardianship or financial management order application is made to the Guardianship Division of NCAT, and should only be requested after exploring other decision-making support options, including supported decision-making. Find out more and apply to NCAT.

If you are 18 years or over, you are presumed to have capacity to make your own decisions unless it can be legally shown that you:

• lack capacity due to disability, including an age-related condition, intellectual disability, brain injury or mental illness
• temporarily lack capacity, for example during a coma following an accident
• are able to make some decisions but not others.

Having a disability does not automatically mean that a person lacks capacity.

Many people with disability can make their own decisions with some guidance to:

• clarify issues and choices to aid decision-making
• help you make a specific type of decision.

A person’s lifestyle or a poor or controversial personal decision does not mean that they lack capacity.

You may not agree with their decision, but it’s important to determine if:

• the person is simply making a 'bad' decision
• they lack capacity to make decisions.

It’s important to help someone get all the support that they need to make their own decisions and to protect their rights if they are being assessed for capacity.

If there is disagreement, then an assessment can be requested from a clinical neuropsychologist, geriatrician or psychiatrist.

• Communication support will vary from person to person and should be tailored to meet individual need.
• Communication is two way and breakdown can occur on either side.
• We all have times when we have difficulty understanding what has been said or what is happening. Build trust by being honest with the person about this and seek out help from others.
• People who have communication difficulties frequently rely on non-verbal cues to help them understand what is being said or what is happening.
• Communicate in an environment free from distraction and at a time that suits the person’s ability to concentrate.
• Consider how much you can cover in one sitting; some people may only have the ability to pay attention for short periods of time.
• Physical and mental health can affect a persons ability to give or receive information.
• Cultural factors can impact on how a person provides or receives information.
• Communication is complex and expert input from a Speech Pathologist may be beneficial.

It's important to remember that stress, trauma and anxiety can affect a person’s comprehension or ability to understand information.

• Speak slowly using familiar terms and short simple sentences.
• Avoid using jargon or complex words.
• Simplify the discussion by giving one piece of information at a time.
• Stick to one topic of conversation.
• Give the person enough time to process what you have said.
• Keep discussion relevant and in the here and now.
• Where you have to talk about abstract issues such as time, support the discussion by relating to concrete events such as mealtimes or by using visual supports such as calendars.
• Visual supports such as pictures, objects and for some people accessible written information, may be useful to help support understanding, attention and memory.
• Regularly check that the person understands the conversation.
• Use clear non-verbal cues such as facial expression, body language, gestures and tone of voice.
• Be aware that sometimes people may:
  • Say ‘yes’ or ‘no’ to questions they have not really understood
  • Frequently choose or repeat the last item presented to them without understanding the choice.
  • Be mindful of the timing and the environment, to make sure the circumstances are best suited to the exchange.

• Give the person plenty of time to express themselves. Don’t finish sentences for them or make assumptions about what they are trying to say or communicate.
• Observe the person’s non-verbal communication such as body language and facial expression.
• What is it telling you about their understanding, will and preference?
• Pictures, objects and accessible written supports may be helpful to enable some people express their will and preference.
• If the person uses an electronic aid to communicate, ensure it is available and programmed for the discussion. For example, pictures or words relevant to the discussion may need to be added to the aid.
• An unsafe or restrictive environment can affect someone’s willingness to express themselves.
• Be aware that some people experience significant side effects from medications that can affect how they express themselves.
• Ask the person if they would like someone in particular to support them to express their views.

You can request a review if:

• you have a genuine concern for the person with a guardianship order
• the order is not working in the best interest of the person
• circumstances have changed affecting the order
• there is no further need for a guardian.

A guardianship order is reviewed at a NCAT hearing. At the hearing, NCAT can:

• renew the order for 3 years (or 5 years in special circumstances)
• renew and vary the order (this means changing the guardian and/or their decision-making areas)
• allow the order to lapse.

Find out more about how to request a review.

No. Most people with disability don't need a guardian because they can either make their own decisions or can be supported to make their own decisions.

The NDIS aims to build their capacity for self-determination, and decision-making support may be an area for inclusion in the NDIS plan.

Things that help support a person include:

• an approved NDIS plan
• services that meet the person's needs. These are services that promote the person's choice and control
• having confidence in their existing service providers to understand and meet their needs and preferences
• strong relationships with informal supporters who can help the person access and understand information and options for decision-making
• having contact with a Local Area Coordinator (LAC) to find support services
• having a support coordinator funded in their plan.

In making decisions for a person who we are the Public Guardian for, we will consent to the person becoming an NDIS participant and also to specific services to support them as outlined in their NDIS plan.

We will advocate to help them get reasonable and necessary support needs that they may require now and in the future that are built into their NDIS plans and help them if there are gaps in current support.