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When a person loses capacity to make decisions about their finances or health and does not have appropriate estate planning in place (Power of Attorney and Enduring Guardianship documents) an application will need to be made to the Guardianship Tribunal for a financial management and/or guardianship order. An application can also be made to vary or discharge an existing Power of Attorney or Enduring Guardianship.
In cases where parties no longer have the capacity to execute an Enduring Power of Attorney and an Enduring Guardianship loved ones often have to make an application to the Guardianship Tribunal for a Financial Management or Guardianship Order.
Under the Guardianship Act 1987 the Guardianship Tribunal has the authority to appoint financial managers and guardians for people with decision making disabilities.
The Guardianship Tribunal must conduct a Hearing to assess capacity of the person of whom a Financial Management or Guardianship Order is applied on behalf of, and their capacity as well as the appropriate person who should be appointed that position.
At the Hearing, there is an opportunity for the person who is subject to the Application as well as other interested people to present their views to the tribunal for their consideration.
The Tribunal also considers reports from professionals including mental health assessments prepared by psychologists and well as other reports prepared by other medical practitioners.
A Financial manager is someone who is authorised to make financial and legal decisions on behalf of a person who is not capable of managing their own affairs.
This means that a financial manager can conduct all undertake all financial decisions on behalf of the person who no longer has capacity which includes the following:
- To buy and sell any assets (including buying and selling any homes);
- To pay all bills on behalf of the person who has lost capacity;
- To buy assets and to invest money on behalf of the person; and
- Any other financial decisions on behalf of the person who has lost capacity.
A Guardian is someone who is authorised to make personal or lifestyle decisions on behalf of the person who has lost capacity. They cannot make financial decisions.
The kind of decisions a guardian can be authorised to make include:
- Where a person should live;
- What support services the person should receive;
- What health care and medical treatment the person should receive; and
- Restrictive practices appropriate in the management of the persons behaviour.
When making an Application to the Tribunal it is recommended that you consider”
- Whether it is you who should be applying for the Application;
- Whether the person needs a Financial Management Order or a Guardianship Order or in some cases both;
- Who is the appropriate person who could be appointed as the financial manager or guardian;
- Be aware that other people are entitled to see a copy of the Application and file material in response;
- Be clear about your role and responsibilities as the Applicant;
- Complete and lodge the Application with the tribunal and participate in the process of Hearing to obtain the Financial Management or Guardianship Order.
To make a Financial Management Order the Tribunal must be satisfied that:
- The person is incapable of managing their own financial affairs;
- That there is a need for someone else to manage their affairs; and
- It is in the best interest for an Order to be made.
It is important to know the Tribunal will only make an Order for the issues currently at hand and usually will not make a blanket Order for Financial Management on a long-term basis if this can be avoided.
With regards to a Guardianship Order the Tribunal must be satisfied that:
- The person has a disability that affects their decision-making capacity;
- There is a current need for someone else to make personal decisions for them.
It is important to know the Tribunal will only make an Order for the issues currently at hand and usually will not make a blanket Order for Guardianship on a long term basis if this can be avoided.
At the initial consultation we will take instructions from you to commence the process of making an application for Financial Management and/or Guardianship.
Prior to attending your conference with us, we will send you an information form for your completion and to assist you to gather the relevant information required.