Guardianship Division – 11 Points to Prepare You

The Guardianship Division of NSW Civil and Administrative Tribunal (NCAT) serves an important role. These 11 points will help prepare you. There are things you need to DO and other things you should NOT do.

1.  Read the hearing notice

The Tribunal sits most often at 2a Rowntree Street, Balmain.  However, the Guardianship Tribunal may also travel and hold temporary sitting rooms in hotels or conference rooms around New South Wales depending on the needs and location of the person who is the subject of the Application.

2.  Do not forget first principles

Section 4 of the Guardianship Act 1987 sets out the principles under which the Guardianship Tribunal operates and makes decisions.  These principles are as follows:

1. the welfare and interests of such persons should be given paramount consideration,
2. the freedom of decision and freedom of action of such persons should be restricted as little as possible,
3. such persons should be encouraged, as far as possible, to live a normal life in the community,
4. the views of such persons in relation to the exercise of those functions should be taken into consideration,
5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
7. such persons should be protected from neglect, abuse and exploitation,
8. the community should be encouraged to apply and promote these principles.

Every submission and piece of evidence should be made through a filter which considers these principles.  Overall, and before all else, the Tribunal is a jurisdiction which is concerned about the “best interests” of the person who is the subject of the Application.  It is uninterested in the personal private interests of a particular party to the Application except in so far as it relates to and is connected with the interests of the person who is the subject of the Application.

3.  Jurisdiction

Remember what Application it is that you are making.  Is it one about Financial Management or Guardianship?  Or is it a review of an existing Power of Attorney under the Power of Attorney Act 2003?  There are different questions to be asked (and answered) depending on the type of Application. Read the Guardianship Act 1987 and Power of Attorney Act 2003!

4.  Practice notes

As a Tribunal that most practitioners have little practical experience of appearing in, it is important that each practitioner potentially advising their clients or are seeking to appear should have regard to the conventions and manner in which the Tribunal conduct itself from a practical Hearing matter.  Read the Practice Notes.  They’re available on the Guardianship website at www.gt.nsw.gov.au.

5.   Appearance

There is no right of appearance by legal practitioners in this jurisdiction!  Appearance as an advocate for a party who is a participant in this jurisdiction is by way of leave only.  There is no inherent right for one party to be represented and accordingly make submissions.

Have regard to section 58 which sets out the terms under which a Guardianship Tribunal may permit legal representation of parties involved in an application before the Guardianship Tribunal.

6.   Jurisdiction

Remember the jurisdiction of the Guardianship Tribunal is very narrow.  It has quite discrete questions and powers under the Guardianship Act 1987 and the Power of Attorney Act 2003.

It cannot deal with concurrent issues involving Corporations Act or “equity”.  If there are intractably intertwined legal and factual issues which require a judicial determination under legislation or in law that are outside of the jurisdiction of the Guardianship Tribunal – consider whether or not this is the appropriate jurisdiction for the dispute resolution.  The Supreme Court has concurrent jurisdiction under the “protective division” of the Supreme Court.

7. What is a separate representative and what do they do?

Separate Representative is appointed by the Tribunal if the Tribunal has concerns that the interests of the person the subject of the Application should have an independent advocate to lead evidence and make submissions on behalf of the Concerned Person before the Tribunal.

The principles and guidelines for Separate Representatives are found in PVP and are as follows:

1. Act as an independent and unfettered way in the best interest of the Concerned Person.
2. Act impartially but if thought appropriate, make submissions suggesting the adoption of a particular course of action if such a course is in the best interest of the Concerned Person.
3. Inform the court of the wishes of the Concerned Person.
4. Arrange for the collation of expert evidence and otherwise ensure that all relevant evidence is before the court.
5. Test by cross examination where appropriate the evidence of the parties and their witnesses.
6. Ensure that the views and the attitudes brought to bear on the issues are drawn from the evidence and not from a personal view or opinion of the case.
7. Minimise the trauma to the Concerned Person associated with the proceedings.
8. Facilitate an agreed resolution to the proceedings.

8. Rules of evidence

The Tribunal is not limited by the rules of evidence.  Evidence can be adduced in forms that would not otherwise be admissible in a Court.

9. The inquisition?

The nature of the Tribunal, and the manner in which the Hearings are conducted are very much by way of an “inquiry”.  The members of the Tribunal actively intervene and direct questions and seek to elicit evidence addressing their particular concerns.  The “control” by a party or their legal representatives over the Hearing process is much more limited than in a conventional Court room environment.

10.   The bench

The Tribunal will conventionally (for non-procedural matters) be constituted by three separate individuals, who collectively are the Tribunal in relation to an Application.  The Tribunal members will each have a particular area of expertise but generally their three roles are as follows:
(a)   A Presiding Legal Member
(b)   A Community Member
(c)   A Professional Member (Doctor or other suitably qualified medically qualified person)

11.  Investigation officer

Each application before the Tribunal will be “case managed” by an Investigation Officer.  The Investigation Officer’s role is to ensure the relevant information and material is available to the Tribunal for its deliberations and considerations.

If necessary, the Investigation Officer will contact medical service providers and seek to elicit medical reports and other documents relevant to the decision of the Tribunal.

Need further assistance?

Streeterlaw’s principal solicitor, Mark Streeter, has appeared in dozens of matters as Solicitor Advocate in the Guardianship Divison over the past few years. If you require assistance with your matter, call us on 02 8197 0105 today!

Written by Mark Streeter

The Director of Streeterlaw, Mark has been practicing Law since 1994. He has attained his Masters of Law in 1999 and in 2006 was awarded his Specialist Accreditation in Commercial Litigation. Mark is a member of ARITA, a graduate of the AICD and a member of AICM. A member of STEP, Mark enjoys working in the area of Wills and Estates. In 2020 Mark is the Chair of STEP NSW.

Call us on 02 8197 0105 to book an appointment with Mark Streeter!