Public trustees and public guardians in New South Wales

What are public trustees and public guardians?

Public trustees and public guardians are independent statutory authorities that provide services that help people – particularly vulnerable people – to manage their personal affairs. Every state and territory in Australia has a public guardian and a public trustee, although sometimes they have different titles. They are appointed under state government legislation, and the offices they run are state government agencies.

• What is a public trustee? It’s an organisation that protects people’s financial interests by providing services like assistance with making wills and powers of attorney. Generally, a public trustee can be appointed to look after financial and property decision-making for someone who has lost their capacity to make those decisions themselves.

• What is a public guardian? This term often refers to both the office and the official who support people with impaired decision-making capacity and help to protect their rights and interests. If the official is appointed as someone’s guardian, their team members can manage the person’s personal, lifestyle and/or health decisions for them. They may also be able to investigate allegations of abuse or neglect of older people who have lost decision-making capacity.

In New South Wales, the public trustee and the public guardian are two parts of one agency – the NSW Trustee and Guardian. In some states and territories, they are two separate agencies or have different names.

Different kinds of guardianship appointments

There are two types of guardianship appointments that can assist older people:

• One you make yourself. You can appoint your own choice of future decision-maker(s) under a formal document like an Enduring Power of Attorney or Enduring Guardian. This can only be done while you still have decision-making capacity.

• One made for you. If you lose capacity and have not formally appointed your own future decision-makers, someone can be appointed for you by an authorised and specialist organisation, such as an administrative tribunal.

This article talks about guardians who are appointed for you if you need one but haven’t appointed one yourself.

To find out more about appointing your own substitute decision-makers while you still have capacity, see our Enduring Powers of Attorney section.

What is a guardian?

A guardian is a substitute decision-maker: someone authorised to make decisions for another person who is unable to decide for themselves. Guardians are authorised by law to make some or all decisions on the person’s behalf, and they should always act in the person’s best interests.

Often, someone who knows the person well becomes their guardian – a family member, for example – but sometimes a public office, like the NSW Trustee and Guardian (or, in some situations, the Supreme Court) is appointed.

More about guardians

• Guardianships in New South Wales cover different types of decisions and have different names. For simplicity, in this article ‘guardian’ is sometimes used to refer to any kind of appointed decision-maker.

• You can read more about guardianships in our Introduction to guardianships in Australia section.

How are guardians appointed in?

If your health changes and things become difficult to manage, there may be someone – like a close family member or friend – who can step in and help you. When they make decisions for you, it’s called ‘informal decision-making’. As long as this arrangement is working well, there may be no need for a formal guardianship appointment.

If there is no informal decision-maker, or the informal arrangement isn’t working well, someone involved in your life can ask to have a guardian formally appointed for you. They do this by applying to the state’s administrative tribunal.

Both formal and informal decision-makers should try to help you make any decisions that you can. This is called ‘supported decision-making’.

What does ‘supported decision-making’ mean?

Supported decision-making means your helper empowers you to make your own decisions wherever you can by providing you with whatever you need to do so. For example, your decision-making supporter could:

• explain information, so you are able to make the decision

• get you a translator, so you can understand information thoroughly

• go with you to the doctor to write down what they say, so you can remember it later and decide what to do.

You can find out more about this in our article, Supported decision-making.

The role of the NSW Civil and Administrative Tribunal

An administrative tribunal is like a court that decides minor disputes and administrative matters. It operates under state legislation, and the decisions it makes are called ‘orders’. The NSW Civil and Administrative Tribunal (sometimes called ‘NCAT’) operates under the Civil and Administrative Tribunal Act 2013 (NSW) and other legislation. One of the administrative matters it can decide is guardianships.

The role of the NSW Civil and Administrative Tribunal in guardianships is to consider applications to have a guardian appointed for you if you need one. Someone who is concerned about you can apply to the Guardianship Division, either to be formally appointed as your guardian themselves or to have someone else appointed. If they get a lawyer to help them with the guardianship proceedings, they’ll need to pay the lawyer’s fees, but the tribunal doesn’t charge fees.

The tribunal will hold a hearing to determine whether there is a genuine need for a guardian to be appointed, consider who could be appointed, and decide how the guardianship would work best. They will keep your best interests in mind when deciding on the application.

Usually, they will first try to find an individual person who knows you well and would be an appropriate guardian, such as a family member, friend or carer. A trustee company may also be considered. This type of appointment is called a ‘private guardian’ (or, for financial decisions, ‘private financial manager’). A guardian must have legal capacity and be aged 18 or over to be appointed.

• Watch this video to see how NCAT’s Guardianship Division hears a typical guardianship matter for a person with impaired decision-making capacity. (11 minutes)

• Having someone else make decisions for you is often called ‘substitute decision-making’. For more about this, you can read the tribunal’s Substitute decisions fact sheet (PDF, 104KB).

Sometimes, it’s not possible for NCAT to appoint a private guardian or financial manager. They may be unable to find someone available, suitable and willing, or there may be a dispute between your family, friends or carers over who your guardian should be.

In cases like these, the tribunal may appoint a public office such as the NSW Trustee and Guardian to be your ‘public guardian’ for personal, lifestyle, health or medical decisions (or ‘public financial manager’ for decisions about your property and finances).

The tribunal may make joint appointments: for example, a private guardian jointly with a public guardian or more than one private guardian. Each guardian might be given different types of decisions to look after.

They can also receive and consider requests for reviews of guardianship orders in New South Wales.

The role of the NSW Trustee and Guardian

The NSW Trustee and Guardian helps vulnerable people with the management of their affairs. In a guardianship matter, they may be appointed by NCAT as your guardian or financial manager, or both. Fees may apply; see the Fees webpage for more information.

The role of the NSW Trustee and Guardian is to help ensure any decisions made for you promote your independence, quality of life and existing relationships. They will try to keep your best interests in mind and consider your wishes and preferences, as far as they can determine what those are.

As much as possible, they will work with you in making your decisions. If it’s appropriate, they will also talk to your family, friends and carers to get their views on how your decisions should be made.

The NSW Trustee and Guardian also offers services to support private guardians and financial managers in their role. Read more on their Information for private financial managers webpage.

The NSW Trustee and Guardian doesn’t hear applications for reviews of the guardianship or financial management orders. Those are generally handled by the NCAT (or the Supreme Court, if it made the guardianship order).

What matters can a guardian decide?

New South Wales guardianships are covered by the Guardianship Act 1987 (NSW), which sets out the matters that guardians may manage for you.

In New South Wales, guardianships, financial and legal affairs are considered separately from health care, lifestyle and medical decisions. A decision about financial matters is called a ‘financial management order’, and the person appointed for these decisions is called a ‘financial manager’. An individual person or trustee company appointed for financial decisions is called a ‘private financial manager’.

If the NSW Trustee and Guardian is appointed to help you, they will need to get some information about you and what’s happening in your life, what decisions need to be made, and what your options are. They will talk to you and to your carers to gather the information and find out what everyone thinks would be best for you. The information will be kept private.

If you (or someone else) disagree with a particular decision the NSW Trustee and Guardian makes about your affairs, you can ask for it to be reviewed. You must make the request for review within 28 days of the decision, and you should receive a response from the Public Guardian Complaints Support Officer within 21 days. Details of how to make your request are available on the Request a review of a Public Guardian decision webpage.

Financial and property decisions

Examples of financial decisions the NSW Trustee and Guardian, as your financial manager, can make include:

• helping to manage your day-to-day spending

• paying your bills

• contacting your bank

• finding out if your tax is up to date.

For details of how the NSW Trustee and Guardian acts as your financial manager and what they can do to help you, visit the NSW Trustee and Guardian is my financial manager webpage.

Personal and lifestyle decisions

Examples of personal and lifestyle decisions the NSW Trustee and Guardian, as your guardian, can make include:

• where you live

• what care services you receive

• what other kinds of services you receive.

Health and medical decisions

Examples of health and medical decisions the NSW Trustee and Guardian, as your guardian, can make include:

• whether to consent to medical treatment, and which ones

• what dental treatment you receive

• when to advocate for your care, services and treatment.

What are a guardian’s responsibilities?

NSW law requires your guardian to act in ways that are in your best interest and to consider and respect your wishes and preferences. The New South Wales Trustee and Guardian will do everything possible to act according to this requirement. To do this, they will need to gather information about you, your preferences and options, and the decisions that need to be made, and the information they gather will be kept private.

The NSW Trustee and Guardian will keep records of the transactions and decisions they make for you, and a private guardian should do the same.

Most importantly, guardians can only decide matters they are authorised to decide. Financial managers can’t make decisions about your lifestyle or medical options, and guardians can’t make financial decisions. The Guardianship Division of the NSW Trustee and Guardian can’t make financial decisions for you.

Information for guardians

Guardians can find out more about their role and responsibilities on our Being a guardian webpage.

Ending or changing a guardianship

A guardianship appointment made by the NSW Civil and Administrative Tribunal usually lasts for up to one year or, in special circumstances, up to 3 years. The tribunal will usually review a guardianship order before the end date, unless it decides there’s no need for a review.

People involved with you may also request a review of a guardianship order. This may happen if your circumstances change or if there is concern that your appointed guardian isn’t acting in your best interests.

At the review hearing, the tribunal may decide to:

• renew the guardianship order as it is

• renew the guardianship order with some changes (for example, they may appoint a different guardian or change the guardian’s decision-making areas)

• let the order lapse.

Your guardianship appointment ends naturally when you die.

More information and resources

NSW Civil and Administrative Tribunal

Provides information about guardianship orders and financial management.

Tel: 1300 006 228, follow the verbal prompts and press 2 for the Guardianship Division (8.30 am to 4.30 pm Monday to Friday, except public holidays)

Email: gd@ncat.nsw.gov.au

Website: Click here

NSW Trustee & Guardian

Can act as an independent and impartial guardian and trustee for the people of New South Wales.

Tel: 1300 361 389 (9 am to 5 pm Monday to Friday, except public holidays)

Email: pg.engagement@opg.nsw.gov.au

Website: Click here

Seniors Rights Service

Provides free legal and assistance for older people.

Tel: 1800 424 079

Website: Click here

Other useful resources

Supported decision-making and capacity

This NSW Trustee and Guardian webpage explains supported decision-making, capacity and how to act if someone’s capacity is uncertain. It includes a helpful video about supported decision-making as a human right, along with simple examples.

How to apply for guardianship orders in New South Wales

Information and guardianship application forms are available under this heading on NCAT’s Guardianship Orders webpage.

Disclaimer: The information provided on this website is not a substitute for individual legal advice.