Questions 2. Enduring guardianship Question 2.1: Witnessing an enduring guardianship appointment What changes, if any, should be made to the Guardianship Act 1987 (NSW) concerning: (a) the eligibility requirements for witnesses (b) the number of witnesses required, and (c) the role of a witness? Question 2.2: When enduring guardianship takes effect Should the Guardianship Act 1987 (NSW) contain a procedure that must be followed before an enduring guardianship appointment can come into effect? If so, what should this process be? Question 2.3: Reviewing an enduring guardian appointment Are the powers of the NSW Civil and Administrative Tribunal to review an enduring guardian appointment sufficient? If not, what should change? Question 2.4: Ending an enduring arrangement What changes, if any, should be made to the Guardianship Act 1987 (NSW) concerning: (a) the resignation of an enduring guardian, and (b) the revocation of an enduring guardianship arrangement? Question 2.5: Other issues Would you like to raise any other issues about enduring guardianship procedures? 3. Guardianship orders and financial management orders Question 3.1: Applying for a guardianship or financial management order What are your views on the process for applying for a guardianship or a financial management order? Question 3.2: Time limits for orders (1) Are the time limits that apply to guardianship orders appropriate? If not, what should change? (2) Should time limits apply to financial management orders? If so, what should these time limits be?
The NSW Council for Intellectual Disability suggests “[t]here should be greater consistency between the broad powers the Tribunal has when reviewing a power of attorney and the very narrow powers it currently has when reviewing an appointment of enduring guardian”. Question 2.3: Reviewing an enduring guardian appointment Are the powers of the NSW Civil and Administrative Tribunal to review an enduring guardian appointment sufficient? If not, what should change? Ending an enduring arrangement The Guardianship Act sets out when an enduring guardianship arrangement will end. There are two key processes: resignation and revocation. Resignation by the enduring guardian An enduring guardian (or substitute enduring guardian) can resign their appointment. Before the appointment takes effect, the enduring guardian can resign by giving written notice to the appointor. The enduring guardian and an eligible witness must sign this notice. After the appointment takes effect, the enduring guardian can only resign with the Tribunal’s approval. Revocation processes An enduring guardianship appointment can be revoked in one of three ways. First, an appointor can revoke an enduring guardian’s appointment before it takes effect. They do this by completing and signing a form. An eligible witness must witness their signature. Written notice must be given to the enduring guardian. Second, the Tribunal can revoke an appointment after conducting a review. This revokes the appointment document “as a whole”. The Tribunal can do this if the enduring guardian has requested it or if the Tribunal is satisfied that revocation is in the appointor’s best interests. Third, an appointment is revoked automatically if, after the appointment is made, the appointor marries or remarries someone other than the enduring guardian. This happens even if the appointor wants the enduring arrangement to continue. It is arguable that this automatic revocation procedure clashes with the purpose of enduring guardianship – to give “people the dignity to decide who will make personal decisions for them”. Queensland provides an alternative approach that NSW could consider. While marriage automatically revokes an enduring power of attorney appointment in Queensland, an appointor can state in their appointment document that they want the arrangement to continue if they marry. If so, the automatic revocation procedure will not apply. The QLRC believed this gives “maximum effect” to the appointor’s wishes. Question 2.4: Ending an enduring arrangement
the Public Guardian (in the case of guardianship orders) or the NSW Trustee and Guardian (“NSW Trustee”) (in the case of financial management orders), or anyone who, in the Tribunal’s view, “has a genuine concern for the welfare” of the person who is the subject of the application. The applicant must state why they believe the Tribunal should make the order. A penalty can apply if they make false and misleading statements. The Tribunal conducts a hearing to determine if it should make the order. We consider the Tribunal’s procedures in Chapter 8. Question 3.1: Applying for a guardianship or financial management order What are your views on the process for applying for a guardianship or a financial management order? Limits to guardianship orders and financial management orders The United Nations Convention on the Rights of Persons with Disabilities (“UN Convention”) emphasises that measures relating to legal capacity must be “proportional and tailored to the person’s circumstances” and “apply for the shortest time possible”. This reflects the principle of least restriction. According to this principle, a person’s autonomy should be limited as little as possible. In Question Paper 3, we considered how the authority of guardians and financial managers can be limited. In this section, we consider other options for ensuring that guardianship orders and financial management orders respect the principle of least restriction. Time limits Guardianship orders Guardianship orders are time limited in NSW. The time limits vary depending upon whether the Tribunal makes a “temporary” or a “continuing” order. A temporary guardianship order can be in force for no longer than 30 days initially. The Tribunal can renew a temporary order once for up to 30 days. In its preliminary submission, the Mental Health Coordinating Council suggests that the limit on renewals could be reconsidered as “some people require longer stays in hospital”. Continuing guardianship orders are also time limited. A continuing order is initially in force for no longer than one year. The Tribunal can renew a continuing order for up to three years from the renewal date. The Tribunal can make a longer order if satisfied the person has permanent disabilities, is unlikely to “become capable of managing his or her person”, and there is a need for a longer order. If so, the initial order can apply for no more than three years. The Tribunal can renew the order for up to five years from the date it was made originally.