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Where am I now? Lawlink > Administrative Decisions Tribunal of NSW > Practice and Procedures > Practice Notes > Practice Note Number 32
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ADMINISTRATIVE DECISIONS TRIBUNAL APPOINTING A GUARDIAN AD LITEM: GUIDELINE 1. Purpose 1.1 This Guideline sets out the procedure to be followed by the Tribunal when appointing a representative for an incapacitated person under s71(4) or s71(4A) of the Administrative Decisions Tribunal Act 1997 (“ADT Act”). We refer to this representative as a guardian ad litem or GAL. It also provides guidelines as to the role of the GAL. It does not cover the appointment of a GAL or a separate representative for a child under s33 of the Community Services (Complaints, Reviews and Monitoring) Act 1993. 2. Relevant Legislation 2.1 If it appears to the Tribunal that a party is an incapacitated person, the Tribunal may appoint any other person the Tribunal thinks fit to represent the party. (s71(4) ADT Act) 2.2 The term “incapacitated person” is defined to mean:
(b) a person who is totally or partially incapable of representing himself or herself in proceedings before the Tribunal because the person is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled, or (c) any other person of a class prescribed by the regulations for the purposes of this paragraph. 2.3 The power in s 71(4) relates to the appointment of a GAL for any party to proceedings before the Tribunal. 2.4 An order appointing a GAL 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 under 18 years old or totally or partially incapable of representing himself or herself in proceedings before the Tribunal because of a disability or advanced age. 2.5 Whether a person lacks capacity is a question of fact to be determined by the Tribunal on the basis of all the evidence. 2.6 Section 71(4A) relates to external appeals and allows the Tribunal to appoint a GAL 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:
(ii) is a person in respect of whom a guardianship order (within the meaning of that Act) has been made or in respect of whom an application for such an order has been refused, and 2.7 The effect of s 71(4A) is to expand the categories of people for whom the Tribunal may appoint a GAL. 3. Procedure for appointment of a GAL 3.1 When the Tribunal is contemplating the appointment of a GAL it will:
ii) if agreed, ask whether the person has a suitable relative or friend who can fulfil the role; iii) if opposed, make directions for the filing and service of evidence on the question of “incapacity”. (No evidence will be required for external appeals because the Tribunal does not have to find incapacity under s 71(4A)); iv) conduct a hearing either in person or ‘on the papers’ as to whether a GAL should be appointed; v) if an appointment is made and there is no suitable relative or friend the Tribunal will notify the Legal Services Branch (LSB) of the Department of Attorney General and Justice (within 2 working days) and request that the GAL co-ordinator allocate a GAL to the matter; vi) The details provided by the Tribunal to the GAL co-ordinator are:
whether the person is a child/young person or adult and the extent of their involvement in the proceedings, the names of the parties to the proceedings, the file number and the nature of the proceedings, the date and time the matter is next listed and whether it is listed for directions, planning meeting, case conference, mediation or hearing, if the person is legally represented, their details, any other special circumstances relevant to the appointment of a GAL. viii) The Tribunal will notify all parties of the GAL’s contact details. 3.2 All parties must serve all documents on and communicate with the GAL as if the GAL, rather than the incapacitated person, is the party to the proceedings. 4. The role of the GAL 4.1 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, while the person’s views will be taken into account, the GAL is not bound by the person’s instructions. 4.2 The role of the GAL includes but is not limited to:
ii) ensuring that the person understands and participates in the proceedings as much as is practicable in the circumstances; iii) assessing the specific needs of the person he or she is representing and attempting to accommodate those needs; iv) determining what is in the best interests of the person; v) if the GAL does not have legal representation, conducting the proceedings in accordance with those interests; vi) participating in any alternative dispute resolution process which he or she considers to be in the best interests of the person. 5. Legal representation for the GAL 5.1 A GAL may be legally represented in the proceedings. The Tribunal does not arrange for legal representation for the GAL. If the GAL is represented by a lawyer, the lawyer will conduct the proceedings in accordance with the GAL’s instructions. Judge KEVIN O’CONNOR President 23 November 2011 |
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