If you speak to any lawyer specialising in wills and estates, they will implore you to draft a power of attorney and an enduring guardian. These documents operate to appoint people to make financial and health decisions on your behalf if you are unable to make those decisions for yourself.
However, some people do not end up drafting these documents for various reasons. This article will outline the process of what you need to do if you do not have these documents in place for your family or friends, and they lose the capacity to provide instructions to have the documents drawn up.
Where do you go to submit the application in NSW?
Generally, the NSW Civil and Administrative Tribunal (NCAT) is the body that deals with various types of applications related to the care of others, including those related to financial management orders and guardianship applications. While the Supreme Court of NSW also has the jurisdiction to make orders regarding these affairs, most applications are made through NCAT. In this article, we will provide an overview of financial management orders and guardianship applications and the process to apply for those applications.
What is a Financial Management Order?
A financial management order is an order that appoints a person or organisation to manage the financial affairs of someone who is unable to do so themselves. Financial management orders can be made for a range of reasons, including mental incapacity, disability, or age-related illnesses.
Who Can Apply for a Financial Management Order?
Anyone, who, in the opinion of the court or tribunal has a “has a genuine concern for the welfare of the person who is the subject of the application” can apply for a financial management order, but typically the application is made by a family member, close friend, or a social worker. The applicant must demonstrate that the person in need of assistance cannot manage their own finances and that the appointment of a financial manager is in their best interests. These types of orders are not made lightly and are usually only made after evidence is provided regarding the health and mental ability of the individual in question. This evidence must be sufficient enough to justify making the order, and the person affected has a right to attend the hearing and speak for themselves (if they are able to).
What is a Guardianship Application?
A guardianship application is an order that allows an individual to be appointed to make health decisions on someone’s behalf. The kinds of decisions are where the person can live, what kind of medical or dental treatment they can obtain, or other health-related services.
Who Can Apply for a Guardianship Application?
The same parties that can apply for a financial management order can also apply for a guardianship application as long as they can demonstrate a “a genuine concern for the welfare of the person who is the subject of the application”. Typically, this application is done at the same time as a financial management order, but they are separate applications and can be submitted at different times. The applicant must demonstrate that the appointment of a guardian is necessary for the well-being of the person in need of assistance and that they are unable to make such decisions for themselves. An application must be presented with medical evidence, and the affected person is allowed to attend any hearing and make the case that the order is not necessary to the court or tribunal.
How do they decide on a Financial Management Order or Guardianship Application?
When considering an application for a financial management order or guardianship application, the court or tribunal will consider a range of factors, including the person’s capacity to manage their affairs, their financial situation, and their overall health and wellbeing (including disability, old age or disease). The court or tribunal will also consider the views of the person needing assistance, their family members, and any other relevant parties to the application. This is done at a hearing where all parties attend and present their cases.
Conclusion
Financial management orders and guardianship applications can be complex legal processes, but they are designed to ensure that people who are unable to manage their own affairs receive the necessary support and assistance. If you or someone you know is in need of help managing their finances, it may be worthwhile to consider seeking a financial management order or guardianship application. Here at Eleven Legal, we can assist in the application process by helping prepare the application, and in serious cases, attend the hearing on your behalf.
