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Where am I now? Lawlink > Administrative Decisions Tribunal of NSW > Practice and Procedures > Practice Notes > Practice Note Number 15
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ADMINISTRATIVE DECISIONS TRIBUNAL PRACTICE NOTE NO. 15 (PN 15/04) All Divisions: Incapacitated Persons: Appointing a Representative 1. Purpose 1.1 This Practice Note sets out the procedure to be followed by the Tribunal when appointing a representative for an incapacitated person under s 71(4) or s 71(4A) of the Administrative Decisions Tribunal Act 1997 (“ADT Act”). It also provides guidelines as to the role of the appointed representative. Please note that it does not cover the appointment of a guardian ad litem or a separate representative for a child under s 33 of the Community Services (Complaints, Reviews and Monitoring) Act 1993. 2. Background 2.1 Under s71(4) of the ADT Act:
2.2 The term “incapacitated person” is defined to mean:
2.4 The power in s 71(4) relates to the appointment of a representative for any party to proceedings before the ADT. An order appointing a representative can be made either on the application of a party or on the Tribunal’s own motion and should be made as soon as it is apparent that a party is totally or partially incapable of representing himself or herself in proceedings before the Tribunal because of a disability. It is not possible to define the conduct or behaviour which indicates incapacity. The decision as to incapacity is one that the Tribunal or Appeal Panel must make relying on objective evidence. 2.5 Section 71(4A) relates to external appeals and allows the ADT to appoint a representative for any person who is the subject of a guardianship or financial management order or in relation to whom such an application has been made. Section 74(4A) states that:
(a) in the case of an external appeal made under section 67A of the Guardianship Act 1987 — appoint any person the Tribunal thinks fit to represent a party to the proceedings who:
2.6 The effect of s 71(4A) is to expand the category of people for whom the Tribunal may appoint a representative. 2.7 Subject to any directions or orders of the Tribunal in a particular case, the role of a person appointed under s 71(4) or s 71(4A) is to be a “best interests” representative of the person. That means that rather than acting on that person’s instructions, the representative is to impartially and objectively determine what is in the best interests of the person and tender evidence or make legal submissions in accordance with those interests. 3. Procedure for appointment of a representative 3.1 Where the Tribunal has decided to appoint a representative, or is contemplating such an appointment, the Tribunal will:
(b) if the view is preliminary, indicate whether it requires evidence on the question of “incapacity” (this will not be required for external appeals because the Tribunal is not required to find incapacity under s 71(4A)); (c) make any directions for the filing of evidence and the determination of the incapacity issue; (d) obtain consent from a representative to act for the person; (e) prepare an Appointment Document, if a decision is made to appoint a representative. That document should contain: (i) the name of the person appointed (ii) the terms of the appointment (remuneration, time periods, relinquishment of appointment etc.) (iii) the role of the person appointed, for example, whether the representative is acting on the person’s instructions or as a “best interest” representative. (f) give all parties including the representative and the incapacitated person, a copy of the Appointment Document; (g) clarify with the representative, the evidence and/or submissions that are relevant to the issues in dispute. For example: (i) assessing the specific needs and preferences of the person he or she is representing so far as they are relevant to an issue in dispute in the proceedings; (ii) tendering evidence as to specific factual issues in dispute; (iii) making legal submissions on specific issues; and (iv) participating in any alternative dispute resolution process which he or she considers to be appropriate and in the best interests of the person. (h) Make it clear to other unrepresented parties when making the appointment, that the person appointed is only representing the incapacitated person. 3.2 The Tribunal will usually appoint a lawyer as the representative however the Tribunal may appoint a non-lawyer as a representative for an incapacitated person and arrange for the representative to be legally represented. Original issued 30 June 2004 Re-issued with amendments 22 September 2004 Judge KEVIN O’CONNOR President |
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