Common questions
Guardianship
What is a guardian?
When is guardianship required?
What does a guardian do?
How do I apply for someone to have a guardian appointed?
What is a substitute decision?
Public Guardian
Why is the Public Guardian appointed?
What happens after the appointment?
What can you expect from the Public Guardian?
Public Guardian and Decision-Making
How does the Public Guardian make decisions?
What guides the Public Guardian when making decisions?
How long does it take to make a decision?
Can you ask for the reasons why a decision has been made?
Consent to medical and dental treatment
What is substitute consent for medical and dental treatment?
Why is consent required?
Who can give substitute consent for medical and dental treatment?
Who is the 'person responsible'?
What happens when a patient objects?
When is substitute consent not required?
Where do I obtain an application to obtain consent to carry out medical or dental treatment on a person under Guardianship?
NSW Guardianship Act 1987
What are the principles of the Guardianship Act 1987?
What are the differences between Mental Health Act procedures and the Guardianship Act?
What is Part 5?
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Guardianship
What is a guardian?
The Guardianship Act provides for the appointment of a guardian to make substitute decisions, on behalf of a person, who is aged 16 years and over, with a disability who is unable to do so on their own or without support.
A guardian is a person appointed to make decisions on behalf of a family member or friend. A guardian can be an enduring guardian or a guardian appointed by the NSW Guardianship Tribunal. A guardian is aged 18 years and over. Click on this link for more information about enduring guardianship.
A guardian is responsible for making decisions in the areas for which they have been appointed, and for making those decisions in line with the general principles of the NSW Guardianship Act 1987. Click here to link to the Guardianship Principles. Some of the decision-making areas include; accommodation (deciding where a person may reside), medical and dental treatment, health care and services. Guardians are appointed to make personal decisions on behalf of another adult who has a disability.
A personal decision can be about where a person should live, what services they should receive or what medical and dental treatment the person might need. A guardian does not make decisions about a person’s money.
When a guardian is appointed by the NSW Guardianship Tribunal to make decisions on behalf of another person in specific area(s) of their life, this appointment is for a specific length of time.
When is guardianship required?
Most people with a disability are able to make personal and lifestyle choices and decisions. If not, they may be supported by family and friends in this. Sometimes a person who is unable (due to incapacity) to make these types of decisions for themselves, may not have anyone who can help, or their family or friends disagree about the matter. When there is such a need for a decision to be made, the Guardianship Tribunal may consider it in the best interest of the person with a disability to appoint a guardian to make these decisions on their behalf.
What does a guardian do?
A guardian is a legally appointed substitute decision-maker. The role of a guardian is to make a lifestyle decision or provide medical and dental consent on behalf of a person under guardianship during the time of a guardianship order. Guardians are responsible to ensure that a decision or consent is in the best interests of the person.
How do I apply for someone to have a guardian appointed?
You need to fill out an Application for Guardianship and/or Financial Management Form and send it to the NSW Guardianship Tribunal. You will need to provide some information about the person's disability, her or his incapacity to make their own decisions and the person's need for a guardian. Anyone who has a genuine concern for the welfare or wellbeing of the person with the disability can make this application. The Guardianship Tribunal will hold a hearing which will involve the person with the disability, the applicant and others who are important in the person's life. In making an order, the Tribunal considers, where possible, the appointment of a family member or friend as the person's guardian.
What is a substitute decision?
A substitue decision involves providing consent on behalf of another person when they are unable to do so for themself. Substitute consent can be provided for personal decisions. For example where a person lives, what services a person may receive, or what medical treatment a person may or may not receive.
A substitute decision-maker tries wherever possible to make the decision that the person themself would make, and where that isn't possible, to make a decision that is in the interests of the person.
To do this a substitute decision-maker needs to talk to the person for whom the decision needs to be made, service professionals, family members and friends.
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Public Guardian
Why is the Public Guardian appointed?
The Public Guardian is only appointed as ‘the guardian of last resort’ when the Guardianship Tribunal considers that no private guardian can be appointed. This usually happens when no one is available, or when there is no one suitable, for example, when there is conflict within the family about decisions in relation to the person under guardianship.
What happens after the appointment?
When the Guardianship Tribunal appoints the Public Guardian the written order and reasons for the decision are sent to the Public Guardian's central office. These documents are sent to the regional team, depending on which area of NSW the person resides. When a staff member receives this information, decisions can be made on behalf of the person under guardianship.
If you have important information to provide to the Public Guardian and you have not been contacted by a staff member from the office, you should telephone the central office on (02) 9265 3184 and ask to speak to a duty officer.
What can you expect from the Public Guardian?
The Public Guardian has been appointed to make decisions or provide consent on behalf of the person under guardianship for a specified period. This does not mean that the Public Guardian becomes the case manager or takes custody of the person. In making decisions, the Public Guardian needs to gain information about the issues requiring a decision or consent, from people involved with the person under guardianship to make decisions in their best interests. This is usually done by telephone or by a visit. The Public Guardian will listen to what the person under guardianship wants and make an assessment of the risks and benefits of the decision, seeking professional opinion where necessary.
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Public Guardian and Decision Making
How does the Public Guardian make decisions?
The Public Guardian needs to know what decisions are necessary, what choices are available and what the effect the proposed decision may have on the person's life. We will talk to the person under guardianship. Her or his views past and present, lifestyle choices, beliefs and values help direct our decision making on the person's behalf. We will also talk to those who know the person under guardianship well and who may be affected by the decision. We are interested in their thoughts and opinions about what the person wants or what is considered best for them. We will also ask service providers to give us information about the support and services available and to give an opinion on the outcome of potential decisions. When we have this information and have considered all the options available, the Public Guardian will make a decision.
What guides the Public Guardian when making decisions?
The Public Guardian can only make decisions in the areas set out in the guardianship order. The guardianship order lists the areas of authority (functions) the Public Guardian has. The Public Guardian must make decisions that reflect the principles of the Guardianship Act 1987. Staff are also guided by written position statements on particular decision-making areas and a number of internal decision-making procedures. Position statements of the Public Guardian.
How long does it take to make a decision?
It can take time to collect all the information that is needed and to talk to the person under guardianship and other people who will be affected by the decision. At times a decision may not be possible until services or support provided by government departments and other agencies become available. The guardian may be consulted about the length of time they think it will take to make a particular decision.
Can you ask for the reasons why a decision has been made?
If you are affected by a decision you can ask the guardian for reasons why a decision was made. You can also ask for these reasons to be given to you in writing. >> more on reasons for decision
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Consent to medical and dental treatment
What is substitute consent for medical and dental treatment?
The giving or witholding of consent to proposed medical or dental treatment on behalf of a person who is incapable of providing this consent themselves.
>>More information on Part 5 of the Guardianship Act and how this relates to substitute consent.
Why is consent required?
Before medical or dental treatment is provided to a patient, the medical/dental practitioner has a professional and legal responsibility to obtain consent for the treatment. The consent is only valid if the practitioner has told the patient about:
the nature of the proposed treatment and its effects
the risks associated with the proposed treatment
alternative treatments (their nature, effects and risks) or the impact of undertaking no treatment
The patient must be able to understand the treatment provided and agree to the proposed treatment before the treatment can be administered. The patient has a right to refuse or to withhold consent to the proposed treatment. If a patient is not able to comprehend the proposed treatment options or is unable to communicate their choice, the practitioner must seek lawful substitute consent.
Who can give substitute consent for medical and dental treatment?
Substitute consent can be sought from the person responsible or the Guardianship Tribunal.
Who is the 'person responsible'?
When a person is unable to give valid consent to treatment, medical and dental practitioners have a responsibility to obtain consent from the patient’s ‘person responsible’.
The ‘Person Responsible’ is not necessarily the person’s next of kin but is either:
A guardian who has the function of consenting to medical, dental and health care treatments;
Or, if there is no guardian appointed with this authority:
A spouse, de facto or same sex partner with whom the person has a close, continuing relationship
Or, if there is no guardian such spouse, defacto or same sex partner:
An unpaid carer who is now providing support to the person or who provided this support before the person entered residential care
Or if there is no carer:
A relative or friend who has a close personal relationship with the person.
It is up to the medical or dental practitioner to determine who is the ‘person responsible’. A person who is considered to be the ‘person responsible’ can decline in writing, not to have the responsibility of consenting to a particular medical or dental treatment. The medical practitioner must then request consent from the next person down on the list of people who qualify to be ‘person responsible’ (see above list).
What happens when a patient objects?
A patient who cannot give a valid consent to his or her own treatment is considered to be objecting to treatment if they indicate or have previously indicated, by whatever means, that they do not want the treatment carried out and have not withdrawn their objection. If a practitioner considers that the patient should receive the treatment, the practitioner must seek consent from the Guardianship Tribunal to override a patient's objection to treatment.
A patient's objection can be disregarded by the guardian or 'person responsible' if:
the treatment is not a special treatment, and
the patient has minimal or no understanding of what the treatment entails, and
the treatment will cause the patient no distress, or
it will cause the patient some distress which is likely to be reasonably tolerable and only transitory.
When is substitute consent not required?
If the practitioner considers the treatment to be urgent and necessary to save the person's life, prevent serious damage to health or prevent or alleviate significant pain or distress (except if the treatment is special medical treatment), they may treat without consent.
Where do I obtain an application to obtain consent to carry out medical or dental treatment for a person under Guardianship of the Public Guardian?
Consent form to carry out Medical or Dental Treatment for a person under Guardianship of the Public Guardian (Guardianship Act 1987 – Part 5). (To view this PDF document you will need a copy of Adobe Acrobat on your computer. If you do not have a copy of Adobe Acrobat, you can download a copy for free from the Adobe site at www.adobe.com).
If you are a treating medical or dental practitioner and are seeking consent to carry out medical or dental treatment for a person under guardianship of the Public Guardian print off and complete the attached form (from the above link) and fax or post to the Public Guardian.
Alternatively, you can make an application for consent by letter, including in it the information necessary to enable the Public Guardian to provide an informed consent. If a proposed treatment is a minor medical treatment, a verbal application may be made.
Should the patient be able to provide her/his own consent to medical treatment, you should inform the Office of your assessment. In this event, given the Public Guardian’s responsibilities under the health care function, you are requested to provide information detailing your treatment plan.
If the proposed treatment needs to be carried out quickly a request can be made over the phone but must be confirmed in writing as soon as possible.
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NSW Guardianship Act 1987
What are the principles of the Guardianship Act 1987?
the welfare and interests of the person should be given paramount consideration
the freedom of decision and the freedom of action of the person should be restricted as little as possible
the person should be encouraged as far as possible to live a normal life in the community
the views of the person should be taken into consideration
It is important to preserve family relationships and the cultural and linguistic environment of the person should be recognised
the person should be encouraged as far as possible to be self-reliant in matters relating to personal, domestic and financial affairs
the person should be protected from abuse, neglect and exploitation
the community should be encouraged to apply and promote these principles.
What are the differences between Mental Health Act procedures and the Guardianship Act?
The Mental Health Act provides for involuntary detention of patients in special cases where, for example, there is a risk of serious physical harm to the person or to others. Because such circumstances are often very urgent, the scheme for involuntary admission allows compulsory detention, containment and even treatment without any form of hearing until after the event.
The Guardianship Act, on the other hand, requires a hearing to take place and an order to be made before any coercive action can be taken. The Guardianship Tribunal's focus is not on balancing public interest with private rights but rather its sole concern is with the welfare, interests and rights of the person with the disability.
What is Part 5?
Part 5 of the Guardianship Act and the Guardianship Regulations relate to anyone 16 years and over who is incapable of consenting to their own treatment.
A person cannot give valid consent if they cannot understand the nature and effects of the proposed treatment or cannot communicate whether or not they consent to the proposed treatment.
The Guardianship Act establishes:
who can give valid substitute consent for treatment on behalf of a patient who is incapable of consenting (i.e. who can be a substitute decision-maker)
when treatment can occur without consent
the penalties for practitioners who fail to obtain a substitute consent when required.
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