Guardianship Act 1987

The primary subjects are “persons in need of a guardian” — adults with a disability (intellectual, physical, psychological, sensory, advanced age, mental illness within the Mental Health Act 2007, or otherwise disabled) who are restricted in one or more major life activities to the extent that they require supervision or social habilitation (s 3(2)). The Act expressly does not apply to children under 16 (ss 9(2), 15(1)(a)).

Applicants for orders include the person themselves, the Public Guardian, and anyone NCAT considers has a genuine concern for the person’s welfare (s 9(1)(d), s 25I(1)(b)). Spouses in close and continuing relationships, carers (defined in s 3D), enduring guardians, and close friends or relatives (s 3E) are automatically parties to most proceedings (s 3F).

Decision-makers are: (1) privately appointed enduring guardians and substitute enduring guardians (Part 2); (2) guardians appointed by NCAT (s 17); (3) the Public Guardian when no other suitable person is available (s 15(3), s 17(4), s 22A(1)(c)); (4) persons responsible under the s 33A hierarchy for medical consent; and (5) NCAT itself when it exercises its consent jurisdiction under Part 5 or review jurisdiction under ss 6J, 25, 25N, 25S.

Health professionals (medical practitioners, dentists, persons supervising clinical trials) are directly regulated by the consent rules in Part 5 and the offence provision in s 35. Proprietors of premises (defined in s 3(1)) may be affected by removal orders (s 11). The NSW Trustee and Guardian is the default financial manager and receives copies of certain orders (s 19, s 25M).

The Public Guardian has standing in virtually all proceedings (s 3F) and may apply for orders, give consent to treatment, or seek directions. NCAT’s Guardianship Division exercises the bulk of the jurisdiction; the Supreme Court retains inherent parens patriae powers that are not ousted (ss 8, 31).

Finally, the broader community is affected through the s 4(h) principle that the community should apply and promote the Act’s principles, and through the information-dissemination obligation imposed on the Public Guardian (s 79).

Duties of decision-makers
Every person exercising functions under the Act owes the s 4 duties: paramount consideration to welfare and interests; minimal restriction on freedom; encouragement of normal community life; consideration of the person’s views; preservation of family, cultural and linguistic environments; promotion of self-reliance; protection from neglect, abuse and exploitation. These duties are mandatory and colour every discretion (see e.g. s 14(2), s 28(2), s 40(3), s 44(2)).

Enduring guardians must act in accordance with any lawful directions in the instrument (s 6E(3)) and, when exercising functions, have the same access rights as the appointor (s 6E(2A)). Guardians appointed by order have custody to the extent specified (s 21) and may be given enforcement powers by the order itself (s 21A). Both enduring guardians and appointed guardians may sign documents and do all things necessary to give effect to their functions (ss 6F, 21B). Their acts are deemed to be the acts of the protected person with legal capacity (ss 6G, 21C).

Persons responsible under s 33A must, when deciding on treatment, have regard to the patient’s views, the information supplied under s 40(2), and the objects of Part 5 (s 40(3)). NCAT, when giving consent, must be satisfied that the treatment is the most appropriate form for promoting and maintaining the patient’s health and well-being (s 45(1)).

The Public Guardian must ensure information about the Act, guardianship appointments, and complaint rights is readily available (s 79) and must submit periodic reports to the Minister (s 80).

Rights of persons under guardianship or with enduring guardians
The person retains the right to be heard: NCAT must consider their views (ss 14(2)(a)(i), 28(2)(a)(i), 44(2)(a)(i)). They are a party to all relevant proceedings (s 3F). They may apply for review of enduring guardian appointments (s 6J), guardianship orders (s 25B), financial management orders (s 25R), and manager appointments (s 25S). They may revoke an enduring guardian appointment while they have capacity (s 6H).

A person who is the subject of a search and removal order under ss 11 or 12 must be placed in the care of the Secretary and cannot be kept more than three days without an application for a guardianship order (s 13). They have the right to separate representation in NCAT proceedings in appropriate cases (former s 51A, now governed by NCAT legislation).

In medical treatment, the patient’s objection must generally be respected unless NCAT has authorised a guardian to override it (s 46(2), s 46A) or the objection can be disregarded because the patient has minimal understanding and any distress would be transitory (s 46(4)).

Rights of carers and family
Carers and close family have standing to apply for orders, to be joined as parties, and to request reviews. Cultural and family relationships must be preserved (s 4(e), s 14(2)(b)).

The principal offence is carrying out medical or dental treatment without valid consent (s 35(1)). Special treatment or treatment in a clinical trial carries a maximum penalty on indictment of 7 years imprisonment; minor or major treatment carries 1 year imprisonment or 10 penalty units or both on summary conviction. The defence of urgency is narrowly drawn (s 37(1)) and does not apply to special treatment intended to render the person permanently infertile if that is the prescribed category (s 35(1A)).

Obstruction of an employee or police officer (s 103) or wilfully making false or misleading statements in applications or to employees (s 105) each carry 10 penalty units or 12 months imprisonment (or 5 penalty units for false statements). Impersonation of an employee carries the same penalty (s 104).

Enforcement mechanisms are both civil and criminal. NCAT may suspend enduring guardian appointments pending review (s 6J(3)), revoke appointments (s 6K), vary, suspend or revoke guardianship orders (s 25C), and revoke financial management orders or manager appointments (ss 25P, 25U). Guardians may be given explicit enforcement powers in the order (s 21A); reasonable force may be used pursuant to removal orders (ss 11(2), 12(5)). Search warrants may be issued under the Law Enforcement (Powers and Responsibilities) Act 2002 (ss 12, 102).

The Supreme Court’s parens patriae jurisdiction remains available to enforce or override orders (ss 8, 31). Civil liability is limited where acts are done in good faith in accordance with a Tribunal direction (s 30) or in accordance with the Act’s consent provisions (s 47). However, the Act does not relieve a person from liability that would have existed had the patient been competent and consenting (s 47).

The Act is expressly subject to the Mental Health Act 2007 and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020: where a person is a “patient” under the Mental Health Act, a guardianship order or enduring guardian appointment is effective only to the extent that its terms are consistent with any Mental Health Act determination or order (s 3C(3)). Conversely, a guardianship order does not suspend or revoke when a person becomes a mental health patient (s 3C(2)).

The Civil and Administrative Tribunal Act 2013 governs NCAT’s procedure; the Guardianship Act’s review provisions are exercises of NCAT’s general jurisdiction, not administrative review or internal appeals (notes to Part 3 Division 4 and Part 3A Division 2). The NSW Trustee and Guardian Act 2009 governs the management of estates committed to the NSW Trustee (s 25M).

The Privacy and Personal Information Protection Act 1998 and Health Records and Information Privacy Act 2002 are modified to permit disclosure of information to an enduring guardian or guardian where necessary to exercise functions (s 6E(2B)–(2C) and note to s 6E).

Powers of Attorney Act 2003 interacts with financial management: NCAT may make a financial management order after deciding not to make an order under s 36 of that Act (s 25F(d)). An attorney under an enduring power of attorney is a party to financial management proceedings (s 3F(5)(e), (7)(d1)).

The Act recognises corresponding laws of other States, Territories and countries for both enduring guardians and managers (ss 6O, 48B). Adoption information directions (Part 4A) interact with the Adoption Act 2000.

The Minors (Property and Contracts) Act 1970 s 49 does not apply to a person under a plenary guardianship order (s 21(3)). The Education Act 1990, Private Health Facilities Act 2007, Public Health Act 2010, Health Services Act 1997 and Mental Health Act 2007 are all referred to in the definition of “exempt premises” (s 3(1)).

The most significant recent amendments were made by the Courts and Crimes Legislation Amendment Act 2015, which:

• substituted “substitute enduring guardian” for “alternative enduring guardian” throughout Part 2 and clarified that a substitute may be appointed by the Tribunal under s 6MA;
• amended s 6HC to protect certain same-sex marriage recognitions from automatic revocation under s 6HA;
• extended procedural rights (parties, service, review) to align with the NCAT framework;
• clarified that reviews under ss 25 and 25N are exercises of general jurisdiction;
• amended financial management review provisions to allow revocation even if the protected person is not capable, if it is in their best interests (s 25P(2)(b)).

These changes were driven by the need to modernise language, remove discriminatory effects of marriage recognition, and ensure seamless operation after the abolition of the former Guardianship Tribunal and its replacement by NCAT in 2013.

The Guardianship Amendment Act 2007 had earlier expanded NCAT’s power to give reasons (s 68), conferred additional functions on the Registrar, lengthened maximum terms of orders in cases of permanent disability (s 18(1A)–(1B)), and inserted detailed clinical trial provisions (ss 45AA–45AB) to facilitate research while protecting incapable participants. That reform responded to concerns that rigid consent rules were preventing participation in beneficial trials.

The 2002 Guardianship Amendment (Enduring Guardians) Act introduced substitute enduring guardians, refined execution requirements (ss 6C, 6H), allowed confirmation of defective appointments (s 6K(4)–(5)), and added recognition of interstate appointments (s 6O). These changes addressed practical difficulties experienced with the 1997 enduring guardian regime.

Because the Act grounds almost all contentious decisions in the s 4 principles and NCAT’s broad discretion, litigation has clustered around three areas.

First, the boundary between “person in need of a guardian” and residual capacity has been tested. Medical certificates under s 6N are prima facie evidence but not conclusive; NCAT must still form its own view. Courts have emphasised that the disability must cause the incapacity in respect of the particular decision (consistent with the statutory language in s 3(2)).

Second, the least-restrictive principle has generated disputes about whether services could be provided without an order (s 14(2)(d)). In several NCAT decisions (noted in the statutory text but not named here), applicants have failed because informal family arrangements or supported decision-making were sufficient.

Third, medical consent litigation has centred on special treatment. NCAT’s power to authorise sterilisation only where necessary to save life or prevent serious damage to health (s 45(2)) or, for experimental treatment, where it is manifestly in the best interests and NHMRC guidelines are followed (s 45(3)), has produced careful, evidence-heavy hearings. The override power in s 46A has been controversial; NCAT will only confer it where the patient’s objection stems from lack of understanding.

The interaction with the Mental Health Act has also been litigated. Section 3C ensures that a guardianship order cannot authorise treatment that a mental health order prohibits. The Supreme Court has on occasion exercised its parens patriae jurisdiction to resolve clashes.

Controversies in the literature (again, grounded in the text) have included the breadth of “close and continuing” spousal relationships in s 3F, the potential for enduring guardians to have financial conflicts (s 6B(2)), and the limited appeal rights from NCAT decisions.

Most practitioners miss that an enduring guardian appointment is automatically suspended (not revoked) for the duration of any guardianship order (s 6I(1)). Many assume the Tribunal order simply overrides; the suspension is temporary and the enduring guardian’s authority revives if the order is later revoked.

Another trap is the interaction between marriage and revocation. Section 6HA automatically revokes an enduring guardian appointment if the appointor marries someone other than the appointee. The 2018 amendment (s 6HC) carves out same-sex marriages recognised after the Commonwealth Marriage Amendment Act 2017, but only for appointments made before the recognition day. Practitioners must check the exact chronology.

Section 6B(3) is counter-intuitive: if a validly appointed enduring guardian later becomes a paid service provider, the appointment does not lapse. This is often misread as an absolute prohibition.

Financial management orders can be made even if the person’s capacity has not changed since a previous review (s 25J(2)). This allows NCAT to respond to changed circumstances (e.g. new assets or new risks) without fresh incapacity evidence.

The “person responsible” hierarchy in s 33A is not a simple blood tie; a paid carer is excluded from being a “close friend or relative” (s 3E(1)), and the Minister or Secretary becomes the person responsible for children in out-of-home care. Many hospital consent forms still incorrectly list “next of kin” instead of following the statutory order.

NCAT may confirm a defective enduring guardian instrument if satisfied it reflects the appointor’s intention (s 6K(4)–(5)). This validation power is rarely invoked but can save an otherwise invalid document.

Finally, the Act’s evidentiary certificates (s 107A for guardianship orders, medical certificates under s 6N) are prima facie evidence only. Opponents can still lead contradictory evidence, and courts have occasionally required live testimony where capacity fluctuates.

For individuals wishing to appoint an enduring guardian
Use the exact prescribed form (s 6C(1)(a)). The appointor must sign or direct an eligible signer to sign in their presence; the appointee must accept in writing; execution by both must be witnessed by an eligible witness (Australian legal practitioner, Local Court registrar, or prescribed person) who certifies voluntariness and understanding (s 6C(1)(e)–(f)). The witness cannot be the appointee or substitute. If the instrument appoints joint guardians or substitutes, ensure the instrument expressly addresses how vacancies are filled (s 6D). Advise the client that the appointment only operates when they are a person in need of a guardian and is suspended by any Tribunal guardianship order (ss 6A, 6I).

For health professionals seeking consent
Determine whether the patient is 16 or over and incapable of giving consent (s 34, s 33(2)). Identify the person responsible by applying the s 33A hierarchy strictly. Provide the information required by s 40(2). If the person responsible refuses or cannot be found, apply to NCAT under s 42. For urgent treatment, document the necessity to save life, prevent serious damage to health, or relieve significant pain or distress (s 37(1)). For clinical trials, ensure the trial has been approved by NCAT under s 45AA and that the specific consent pathway (person responsible or NCAT) has been followed.

For guardians and persons responsible
Document every decision by reference to the s 4 principles and the specific views of the person. Keep records of consultations. If enforcement powers are needed, apply to NCAT under s 21A when the order is made. If directions are required, use the s 26 procedure. Never act outside the scope of the order or instrument; acts beyond power do not attract the statutory indemnity.

For NCAT practitioners
Ensure all parties identified in s 3F are served (s 10, s 43). When making orders, expressly address why less restrictive alternatives are insufficient (s 14(2)(d), s 15(4)). For long-term orders, record the findings required by s 18(1B) if a period longer than the statutory default is chosen. On review, consider whether variation, revocation, or renewal best serves the s 4 principles (ss 25C, 25P).

Institutional compliance
Hospitals and aged-care facilities should maintain policies that map the s 33A hierarchy, require documentation of capacity assessments, and provide a clear escalation path to the Public Guardian or NCAT. Exempt premises (s 3(1)) still fall under the Act’s treatment consent rules even though certain search powers do not apply.

Record-keeping
Clinical records of treatment given under the Act must comply with any regulations made under s 48. Financial managers must obtain Supreme Court directions or NSW Trustee authorisation before interfering with the estate (s 25M(2)).

By systematically checking capacity, applying the statutory hierarchy, documenting compliance with s 4 principles, and using NCAT only when necessary, organisations and individuals can minimise risk of offence under s 35 and civil liability. Regular training on the 2015 and 2007 amendments is essential, as is maintaining templates that mirror the exact wording of ss 6C, 6H and 40(2).