In a recent column we provided a refresher on Power of Attorney and Enduring Guardianship documents and how they work.
Following on from that discussion, this week we explain how an appointment of an attorney and/or guardian can be reviewed if for some reason there is a question mark over the effectiveness of the appointment.
For the purposes of this column, we are talking about a scenario where the person who made the appointment has lost their capacity to manage their affairs and a third party wishes for the appointment of their existing attorney or guardian to be reviewed.
There are two technical ways this can be done. The first, more uncommon path is via the Supreme Court of New South Wales.
The most common review method though is to make an application for review by the guardianship division of the NSW Civil and Administrative Tribunal.
This is because parties are able to participate in the Tribunal process without legal representation (in fact, if you want to have a lawyer represent you in NCAT you need special leave to do so).
Essentially any person who is concerned about a Power of Attorney or Enduring Guardianship appointment concerning an incapacitated person or a person whose capacity is in question can make an application to the Tribunal to review the appointments.
There are a number of circumstances in which the need for a review might arise:
• There is concern that the attorney and/or guardian is not fulfilling their duties or is making decisions that are not in the best interests of the person who appointed them;
• The attorney and/or guardian themselves feel as though they are not able to fulfil their duties for some reason, whether it be something like conflict with other people or family members close to the appointor or something like being a long physical distance away from where the appointor lives;
• Where there is a question mark over whether or not the appointor still has the capacity to manage their own affairs or it is time for the attorney and/or guardian to take full control.
The process starts by one or more concerned parties lodging an application at NCAT.
NCAT will then schedule a “directions hearing” which will be a short, initial meeting to discuss the case, nominate some dates by which certain information has to be shared by the parties to the proceedings, and fix a hearing date. The hearing date is the date is the date on which the Tribunal will listen to all of the relevant information and make a decision about what to do next.
The Tribunal will hear from “witnesses”, being people who have relevant information concerning the application. This usually includes the person or people who are appointed as the attorneys or guardians, the appointor if they are able to give evidence about their own wishes and/or experiences to the Tribunal, other concerned people who might have relevant information, and people like social workers and/or medical professionals who might provide evidence about the appointor’s ability to look after themselves and manage their own affairs.
Once the Tribunal has heard from all of the witnesses and reviewed the relevant information it will make a decision about whether or not the existing Power of Attorney and Enduring Guardianship documents should be cancelled and someone else appointed as the appointor’s financial manager or guardian, whether or not the documents are to remain in place, or, where there is a question about whether or not the appointor has the ability to keep looking after themselves, the Tribunal will try to answer that question.
This process can also be undertaken in relation to a person who has not got a Power of Attorney or Enduring Guardianship in place, that is, an application can be made to NCAT for the appointment of a financial manager and/or guardian if there are concerns about the person’s ability to manage their own affairs.
Daniel McKinnon
Since graduating with two degrees in Law and Commerce from the University of Wollongong, Daniel’s spent over ten years solving a wide range of legal problems for the people of Western Sydney.