Administrative Decisions Tribunal - Guardianship and Protected Estates List, General Division - Adminstrative Decisions Tribunal : Lawlink NSW

Administrative Decisions Tribunal

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Administrative Decisions Tribunal - Guardianship and Protected Estates List, General Division What sort of matters are dealt with by the Guardianship and Protected Estate List of the Administrative Decisions Tribunal? The Administrative Decisions Tribunal (ADT) can decide appeals against certain decisions of the Guardianship Tribunal, the Mental Health Review Tribunal and Magistrates made under the Guardianship Act 1987, the NSW Trustee and Guardian Act 2009 and the Powers of Attorney Act 2003. These appeals are called external appeals. The Tribunal can also review certain decisions of the NSW Trustee and Guardian (formerly called the NSW Trustee and Guardian and the NSW Trustee and Guardian). These applications are called applications for review. I am seeking advice about appealing a decision of the Guardianship Tribunal or Mental Health Review Tribunal or I am seeking advice about getting a decision of the NSW Trustee reviewed External Appeals What decisions of the Guardianship Tribunal can be appealed to the ADT? Can an appeal be lodged about a decision made by the Mental Health Review Tribunal under the NSW Trustee and Guardian Act 2009? Who can lodge an external appeal? Who are the parties to the external appeal? What are the grounds of the appeal? What is a question of law? Is there anything I need to do before lodging an appeal? How do I lodge an appeal? What information do I need to provide on the appeal form? When should I lodge the appeal? What happens to the original decision while I am waiting for the appeal to be heard? Can I ask for the decision to be suspended while I am waiting for the appeal? Is there a fee? What do I need to do when corresponding with the Tribunal? Who will hear the appeal? What orders can the Appeal Panel make? How do I get more information? Will details of this case be published anywhere? What decisions of the Guardianship Tribunal can be appealed to the ADT? An external appeal can be lodged with the ADT if the Guardianship Tribunal makes a decision under the following sections of the Guardianship Act 1987: A review of the appointment of an enduring guardian under s6K The substitution of an enduring guardian under s6MA The making of a guardianship order under s14 The review of a guardianship order under s25C The making of a financial management order under the NSW Trustee and Guardian Act 2009 by the Guardianship Tribunal under s25E The making of an interim financial management order (as above) under s25H The review of a financial management order under s25P The review of the appointment of a manager of a protected estate under s25U The giving of directions as to the exercise of a guardian’s functions under s28. An external appeal can be lodged with the ADT if the Guardianship Tribunal makes a decision under the following sections of the Powers of Attorney Act 2003: decisions to review the making of, or operation and effect of, powers of attorney under section 36 a decision not to carry out a review under section 36 joinder of party decisions under section 35(3) including a decision to refuse a joinder application Can an appeal also be lodged about a decision made by the Mental Health Review Tribunal under the NSW Trustee and Guardian Act 2009? An external appeal can be lodged if the Mental Health Review Tribunal (MHRT) makes an order that a person be subject to management under the Act (s50). These orders are commonly referred to as estate management orders. Who can lodge an external appeal? Any person who was a party to the proceedings including the person to whom the order relates can lodge an appeal. Who are the parties to the external appeal? Section 67(2A) of the ADT Act provides that that the parties to an external appeal are: the appellant any person who is made a party by the Appeal Panel or by virtue of the rules of the Tribunal the Attorney General, if the Attorney General intervenes in the matter Clause 41A of the Administrative Decisions Tribunal Rules provides that any person who was a party to the original proceedings will automatically be made a party to the appeal proceedings. What are the grounds of the appeal? An external appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other ground. What is a question of law? It is not possible to give a complete definition of 'a question of law' but the following are some examples: Applying the wrong statutory provision to the facts of the case Misinterpreting the words in a stuatory provision Making a finding of fact where there is no evidence to support that finding Not giving a party an adequate opportunity to present their case Not giving a party an adequate opportunity to repsond to any relevant information which is against them; and Not giving a party reasonable notice of the hearing A question of law in NOT: that you disagree with the decision that the decision maker accepted the evidence of other witnesses and did not accept your evidence or the evidence of people who supported you the meaning of an ordinary word in a statute (as opposed to the meaning of a legal or technical word) You cannot appeal if all you want to do is argue your case again. You must be able to identify the way in which the Tribunal went wrong either in the procedure it followed or the way it appplied the law to the facts of your case. Is there anything I need to do before lodging an appeal? The Guardianship Tribunal is required to provide written reasons as soon as practicable after giving the decision. At that time the Guardianship Tribunal is also to advise each party that the decision may be appealed to the ADT (s68(1BA) of the Guardianship Act 1987). The Mental Health Review Tribunal must provide formal written reasons if requested to do so. At that time the MHRT must also advise the party concerned that the order may be appealed to the ADT (s51 of the NSW Trustee and Guardian Act 2009) How do I lodge an appeal? Fill out an application form Notice of Appeal (External Appeal) which is available on the Internet or from the ADT Registry. You cannot lodge the application through the internet or by facsimile. Please post or bring your application to the ADT Registry. What information do I need to provide on the appeal form Your name address and telephone number The date the decision was made and a copy of the decision The date you received the written decision The names and addresses of other parties involved in the original matter your reasons for appealing the decision on a question of law When should I lodge the appeal? An external appeal must be made within 28 days after the Guardianship Tribunal or the Mental Health Review Tribunal provides written reasons for the decision. The Appeal Panel may, however, extend the time for lodging the appeal. What happens to the original decision while I am waiting for the appeal to be heard? Lodging an appeal does not stay the operation of the appealable decision or prevent the taking of action to implement the decision. Can I ask for the decision to be suspended while I am waiting for the appeal? Yes. This is called a 'stay'. You can fill out an application form which is available from the Internet or the ADT Registry. You cannot lodge the form over the internet. Please post or bring the application to the ADT Registry. Is there a fee? The fee for lodging an appeal is $280. What do I need to do when corresponding with the Tribunal? All correspondence to the Tribunal in relation to current proceedings should be addressed to the Registrar of the Tribunal. Correspondence of this kind should not be addressed to a Member of the Tribunal. A copy of all correspondence sent to the Tribunal must also be sent to each other party of the proceedings. The author should record the fact that the correspondence has been sent to the other parties by writing cc: Name of party at the end of the letter. If it has not been copied to the other party, the author must explain in writing why this has not been done. The Registrar will decide how the correspondence is to be handled. Who will hear the appeal? In most cases the matter will be heard by a panel of three members comprising a presidential judicial member, a judicial (or legal) member, and a member who has experience in dealing with persons in this area. For the purpose of dealing with external appeals under the Powers of Attorney Act 2003 the Tribunal is to be constituted by an Appeal Panel consisting of at least 3 members assigned by the President to the Panel for the purpose of the proceedings. What orders can the Appeal Panel make? The Appeal Panel can make orders as it thinks appropriate. The orders that the Appeal Panel can make include: an order affirming or setting aside the decision an order remitting the matter back to the original body that made the decision an order in substitution for the original order. What can I do if I don't agree with the Appeal Panel's decision? You may be able to appeal to the Supreme Court. Review Decisions Can I have a decision of the NSW Trustee (formerly the Protective Commissioner or Public Guardian) reviewed by the ADT? Who can lodge an application for review of a decision of the NSW Trustee? Who is the respondent to the application of a review of a decision by the NSW Trustee? Can I have a decision of the NSW Trustee made under the Guardianship Act 1987 reviewed by the ADT? Who can lodge an application for review of a decision by the NSW Trustee made under the Guardianship Act 1987? Is there anything I have to do before I ask the ADT to review a decision of the NSW Trustee? How do I get my decision reviewed by the ADT? What information do I need to provide on the application form for review? Is there a fee for lodging an application to review a decision of the NSW Trustee? What happens after I fill in the application form and send it to the ADT? Who can represent me before the Tribunal? Who will hear my case? What happens if I can't attend the hearing? What kind of decision can the ADT make? What happens to the decision of the NSW Trustee while I am waiting for a review by the ADT? Can I ask for the NSW Trustee to be suspended while I am waiting for a review by the ADT? What can I do if I don't agree with the ADT's decision? How do I get more information? Will details of this case be published anywhere? Can I have a decision of the NSW Trustee reviewed (formerly the Protective Commissioner or Public Guardian) by the ADT? The ADT can review any decision made by the NSW Trustee under Part 4.5 Division 1 of the NSW Trustee and Guardian Act 2009can be reviewed by the ADT. These include: all functions necessary and incidental to its management and care of the estate of a managed person (s56) all functions that the managed person or missing person would have if had capacity or were not missing (s57) execution and signing of documents on behalf of the managed person (s58) application of money of managed estate (s59) for the purposes listed. making arrangements during the absence of patient from mental health facility (s60). The ADT can also review decisions by the NSW Trustee under Part 4.5 Division 2 of the Act in relation the management of estates by a manager who is not the NSW Trustee (s70). A review cannot be lodged if the decision by the NSW Trustee was made in accordance with a direction given by the Supreme Court to the NSW Trustee. Who can lodge an application for review of a decision of the NSW Trustee? An application under s62 can be made by: the managed person in respect of whose estate the decision was made, or the spouse of the managed person, or any other person whose interests are, in the opinion of the ADT, adversely affected by the decision An application under s70 can be made by: the person appointed as manager, or any other person who, in the opinion of the ADT, has a genuine interest in the matter to which the NSW Trustee's decision relates Who is the respondent to the application of a review of a decision by the NSW Trustee? The NSW Trustee. Can I have a decision of the NSW Trustee made under the *Guardianship Act 1987* reviewed by the ADT? Yes, all decisions made by the NSW Trustee in connection with the exercise of the NSW Trustee's functions under the Act as a guardian are prescribed for the purposes of Section 80A of the Guardianship Act 1987. Who can lodge an application for review of a decision by the NSW Trustee made under the *Guardianship Act 1987? Applications can be made by: the person to whom the decision relates the spouse of the person the person who has the care of the person to whom the decision relates any other person whose interests are, in the opinion of the ADT, adversely affected by the decision. Is there anything I have to do before I ask the ADT to review a decision of the NSW Trustee? The first step is to ask the NSW Trustee to review its decision. This is called an internal review. The request must be made within 28 days of being told of the decision of the NSW Trustee. The NSW Trustee has 21 days to respond. If you still dont agree with the decision, or you havent received a response after 21 days, the next step is to make an application to the ADT to review the decision. You need to lodge your application within 28 days of receiving the internal review decision. In some cases the ADT can review a decision without an itnernal review being conducted. This is where it is necessary for the Tribunal to deal with the application in order to protect the person’s interests and the application was made within a reasonable time. How do I get my decision reviewed by the ADT?* Fill out an application form which is available on the internet or from the ADT Registry. You cannot lodge the application through the internet or by facsimile. Please post or bring your appplication to the ADT Registry. What information do I need to provide on the application form for review? Your name, address and telephone number The date the decision and the internal review decision were made A copy of the decision and internal review decision (this is normally the letter sent to you by the NSW Trustee and Guardian) A brief outline of why you think the decision is wrong Is there a fee for lodging an application to review a decision of the NSW Trustee? The fee for filing an application for review is $68.00. What happens after I fill in the application form and send it to the ADT? You will receive a letter from the ADT informing you that your application has been received. There will also be some information about what happens next. The government agency who made the decision will be asked to give you and the ADT a statement outlining the reason for their decision and copies of supporting documents used to make the decision. You should also be given a date to attend the ADT. This is called a 'directions hearing' or a ' case conference'. A Member of the ADT will talk to you and a representative from the government agency about the best way to deal with your application. Who can represent me before the Tribunal? You can either appear in person or get a lawyer or agent to represent you. Who will hear my case? These applications for review are allocated to the General Division and are heard by a judicial member attached to the Guardianship and Protected Estates List. In some cases the ADT will be able to give their decision at the end of the hearing. However, in most cases the ADT will require time to consider the matter and will give their decision at a later date. You will be informed when the decision has been made. What happens if I can't attend the hearing? If you live outside the Sydney metropolitan area, the directions hearing or conference can be conducted by telephone. In some cases, the ADT may hold the hearing in a regional area of NSW. If you have a disability that makes it difficult for you to attend, the directions hearing or conference can be conducted by telephone. In some cases, the hearing may also be conducted by telephone. What kind of decision can the ADT make? The ADT can make various decisions including: affirming the decision of the NSW Trustee; reversing the decision completely or in part; substituting a new decision for the original decision; or ordering the NSW Trustee to reconsider the decision. The ADT does not award costs unless it is satisfied that there are special circumstances. See s80 of the ADT Act for more information. What happens to the decision of the NSW Trustee while I am waiting for a review by the ADT? The lodging of an application does not stop the decision of the NSW Trustee from taking effect nor does it prevent the agency from implementing its decision. Can I ask for the NSW Trustee decision to be suspended while I am waiting for a review by the ADT? Yes. This is called a 'stay'. You can fill out an application form which is available from the Internet ADT Registry. You cannot lodge the application through the Internet or by facsimile. Please post or bring the application to the ADT Registry. You will be required to give a reason for asking for the government agency's decision to be suspended. The ADT will also seek the views of the government agency before deciding whether to grant a suspension of the decision. What can I do if I don't agree with the ADT's decision? You may have the right of appeal to the Appeal Panel of the ADT if you do not agree with the ADT's decision. If you are not sure whether you can appeal the decision, contact the ADT Registry. How do I get more information? You can select any of the following links to find out more about the legislation or the procedures before the General Division of the Tribunal. Otherwise you can telephone the ADT Registry on 9223 4677 to discuss your application Will details of this case be published anywhere? Section 126 of the ADT Act applies to external appeals under the Guardianship Act 1987 and the NSW Trustee and Guardian Act 2009. This means that the name of any party or person mentioned in the proceedings before the Tribunal cannot be published or broadcast without the consent of the Tribunal. This does not preclude the Tribunal publishing names in its written decisions, hearing lists etc. This does not apply to external appeals under the Powers of Attorney Act 2003. Useful Links Guardianship Act 1987 Guardianship Regulation 2005 Powers of Attorney Act 2003 NSW Trustee and Guardian Act 2009 NSW Trustee and Guardian Regulation 2008 Frequently asked questions Practice and Procedure Previous Decisions Brochures Guardianship Tribunal NSW Trustee and Guardian Back to top

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