NCAT Guardianship
Protecting the Vulnerable
Falzon Legal — Your Compassionate NCAT Lawyers
If a friend or loved one loses the mental capacity to make decisions — and there are no existing safeguards in place — NCAT Guardianship may be required.
Under ideal circumstances, a person will make Power of Attorney or Enduring Guardianship arrangements while they still have the cognitive ability. These powerful legal tools allow them to choose a trusted representative to make financial and lifestyle decisions on their behalf — should they become incapacitated.
However, if no such documentation is in place — it’s the responsibility of a Tribunal to decide who takes on the role.
As experienced NCAT lawyers, Falzon Legal will considerately guide you through the entire NCAT process — in addition to the more preferable Enduring Guardianship and Power of Attorney routes.
What Is NCAT and What Does NCAT Do?
Since 2014, The NSW Civil and Administrative Tribunal (NCAT) has been responsible for making determinations on a wide spectrum of civil cases — under the authority of the Civil and Administrative Tribunal Act 2013.
Aiming to resolve issues swiftly and simply — its self-proclaimed straightforward processes and easy-to-understand forms are designed to allow laypersons to address disputes without the need for a legal representative.
While not exhaustive, the areas it covers include:
- Property and housing — including tenancy disputes.
- Business and consumer disagreements.
- Harassment and discrimination complaints.
- Professional misconduct.
- Review of Governmental agency decisions.
- Guardianship — when an individual loses the capacity to make decisions.
NCAT — The Guardianship Division
The vicissitudes of life can throw challenging and emotionally heart-wrenching circumstances at us all.
One of the most upsetting and poignant is the degeneration of cognitive ability — where accident, illness, or age impair or prevent your decision-making ability.
Proactively, you can make peace-of-mind promoting action today while you still have mental clarity. This is by arranging for a trusted person of your choosing to make financial and lifestyle decisions on your behalf — through Power of Attorney (financial) and Enduring Guardianship (lifestyle).
However, without protection, your fate will be in the hands of the Guardianship Division of NCAT.
It has the power and authority to:
- Appoint a designated Guardian that is entitled to make decisions relating to your lifestyle, accommodation, health treatment, and support services — when you cannot make decisions for yourself.
- Appoint a Financial Manager — to administer your investments, property, and cash when you are determined to be incapable of doing so.
They will organise a Hearing to appraise your mental position — and to assess the qualities and suitability of the person who is to be considered as Guardian.
Don’t Leave It to NCAT To Decide Your Future — Talk to Falzon Legal NOW
What Is an NCAT Guardian?
At a Hearing, an NCAT Guardian will be appointed to look after the affairs of the person who is determined to lack the cognitive ability to do so.
While typically, the Guardian is a close friend or a relative — this is not always the case. They have the authority to make decisions on areas including:
Furthermore, they must pledge to:
- Only make decisions based upon what is considered to be the person’s best interests.
- Wherever possible, discuss with the person under Guardianship their opinions on decisions.
- Shield the person under Guardianship from neglect or abuse.
- Encourage the person under Guardianship to make their own decisions — wherever possible.
However, an NCAT-appointed Guardian cannot act in the financial affairs of the affected person. This requires a separate assignment of a Financial Manager — which can be the same person as the Guardian.
Is an NCAT Guardian Always Needed?
As humans, we have an innate sense of compassion, care, and love — this extends beyond purely familial ties, and into strong friendship and neighbourly bonds.
This means that many individuals with impaired mental cognition live day-to-day with the robust generosity, assistance, and ministration of friends, relatives, and social support professionals. For many, this is sufficient to lead a happy, content, and fulfilling life. Meaning, there’s no requirement for formal Guardianship.
However, despite the relentless work of others — sometimes it’s insufficient.
Conflicts can occur. Not just with the cognitively challenged person, but also in trying to make health and lifestyle arrangements with professional organisations — who do not recognise the informal authority of a third party.
In these circumstances, with the best interests and wellbeing of the affected person at heart, an NCAT Guardian application needs to be considered.
Contact Us to Discreetly Discuss the Need for NCAT Guardianship
How to Apply for an NCAT Guardian
If you believe the time has come to consider applying to an NCAT Guardian — speak to us.
We will compassionately take you, and indeed, the person for whom you’re seeking Guardianship, through the process’s steps and implications. Furthermore, we can advise on whether a Financial Manager is more suitable — or indeed preferential alternatives to Guardianship.
However, if we together establish the NCAT system is needed, we will go through a Guardianship Application Form. The information it requires includes:
- Reliable and professional proof that the person’s ability to make decisions is impaired — for example, from a medical practitioner or social worker.
- Why, in your honest opinion, the person needs a Guardian to be appointed.
- The routes you have previously taken to informally address the issue prior to applying for Guardianship.
- Where possible, a signed statement from the affected person, stating they cannot make solid and informed decisions — and their personal feelings and thoughts on Guardianship.
After applying, a Hearing date will be arranged. At this meeting, NCAT will listen to:
- You — as the person making the application.
- The person who is the subject of the application.
- The people who have provided evidence/statements about the mental ability of the subject.
In most circumstances, an appointed NCAT official will tell you the Tribunal’s decision at the conclusion of the Hearing.
Typically, this will be that:
- A Guardian can be appointed, or
- The subject does not have mental incapacity, or
- The subject does not need a Guardian.
- The length of the Guardianship.
Can a Lawyer Represent Me at NCAT?
The concept behind NCAT is simplicity and informality.
As such, lawyers are typically not permitted to attend Guardianship Hearings — unless a request has been made in advance to have representation, and this plea has been agreed — known as granting leave.
If a request for a solicitor’s assistance is made to NCAT, they will consider:
- Any disability or impediment that makes it difficult for you to participate effectively in a Guardianship Hearing.
- Whether legal representation is in your best interests.
- If a solicitor would deliver rapid, fair, and cost-effective resolution.
- Any matters of seriousness that require the attendance of a lawyer.
- Equality — for example, if you have representation but the other party does not.
- Whether the use of a solicitor will work against the generally informal and amiable nature of a Hearing.
Additionally, NCAT may permit a Guardian ad Litem — a representative such as a family member or friend to communicate on your behalf, should you have difficulty or impairment in sharing your views and opinions adequately.
At Falzon Legal, we will advise whether legal representation is preferential or required for an NCAT Hearing. Furthermore, we are more than happy to talk you through what to expect at a Hearing, and assist in preparation of any forms or supporting documentation and statements.
Solutions Without NCAT Guardians
If you’re worried about the Tribunal making decisions on your own future, there are preemptive steps you can take. Having Power of Attorney and Enduring Guardianship arrangements in place can avoid the need for an NCAT Hearing.
As a boldly proactive move — it gives authority and control back to you.
We fully understand that it can be concerning, uncomfortable, and sometimes upsetting to contemplate a time when you no longer have the capacity to make decisions yourself.
However, knowing that you have a trusted friend or family member ready and authorised to take control — should you lose cognition — is profoundly reassuring.
At Falzon Legal, we will considerately and compassionately take you through the Power of Attorney and Enduring Guardianship process. Enabling you to choose who to act in your best interests — not an NCAT Hearing.
Falzon Legal — Your Understanding Lawyer in Parramatta
Whether you need assistance and advice on Power of Attorney, Enduring Guardianship, or a prospective NCAT Guardian — we are here for you.
Relentlessly professional, yet unceasingly compassionate and patient, we will considerately and delicately navigate you through all matters relating to Guardianship.
Located conveniently in Parramatta — we’re ideally placed to serve Sydney from our comfortable offices.
Alternatively, we’re happy to meet you in your home, senior residence premises, or care establishment. With face-to-face consultations promoting a powerful feeling of trust and openness — together we can address the most challenging of considerations with clarity and understanding.
NCAT Guardianship isn’t as officious or intimidating as it sounds — allow Falzon Legal to guide you through its processes and alternatives.
NCAT Guardian FAQs
What’s the Difference Between Financial Management vs Guardianship?
Both appointed through NCAT, a Financial Manager is authorised to make decisions relating to investments, property, and cash — on the behalf of a person who lacks the mental capability to make these choices themselves.
Guardianship allows a designated person to make decisions for the cognitively impaired in matters relating to lifestyle, wellbeing, and accommodation.
When Will the Result of the Guardianship Hearing Be Announced?
In most circumstances, the Tribunal makes a decision at the end of the Hearing — usually effective immediately. A written copy will be sent to all parties as soon as possible.
How Long Does NCAT Guardian Last For?
An order for Guardianship can range from a few months up to three years. Further Hearings are required — before the active order expires — to allow the Guardianship to continue.
Do I Need To Tell the Subject of the Guardianship I Am Making an Application?
Yes. It is a prerequisite that the subject is made aware of the Guardianship application. If this is not done, the Guardianship will not be approved.
How Long Does It Take To Get an NCAT Guardian Hearing?
On receipt of an Application for Guardianship, NCAT will assess whether the subject is immediately at risk. Furthermore, they will take into account the length of time required for the applicant to gather evidence to support their application.
These factors will determine the rapidity that an NCAT Hearing is granted.