What it does
The Guardianship Act 1987 (NSW) establishes a statutory framework for substitute decision-making for adults who, because of disability, are partially or totally incapable of managing their person (s 3(1) definition of “person in need of a guardian”). At its core the Act does three things: (1) it enables competent adults to appoint enduring guardians who can exercise personal decision-making powers once the appointor loses capacity (Part 2, ss 6–6O); (2) it empowers the Civil and Administrative Tribunal (NCAT) to make guardianship orders (Part 3, ss 14–25C) and financial management orders (Part 3A, ss 25E–25U) when no less restrictive alternative exists; and (3) it regulates consent to medical and dental treatment for adults who lack capacity (Part 5, ss 32–48), including urgent treatment, minor treatment, major treatment, special treatment, and clinical trials.
Section 4 sets out the paramount principles that every person exercising functions under the Act must observe: the welfare and interests of the person with disability are paramount; freedom of decision and action is to be restricted as little as possible; the person should be encouraged to live a normal life in the community; their views must be taken into account; family, cultural and linguistic relationships preserved; self-reliance promoted; protection from neglect, abuse and exploitation afforded; and the community encouraged to apply these principles.
Part 2 (inserted in 1997) allows an adult to execute an instrument in the prescribed form appointing an enduring guardian (s 6C). The appointment only takes effect when the appointor is a “person in need of a guardian” (s 6A). Functions that may be conferred are listed in s 6E(1): deciding where the person lives, what health care they receive, what personal services they receive, giving consent under Part 5 to medical or dental treatment, and any other function specified in the instrument. The enduring guardian has the same right of access to information as the appointor (s 6E(2A)) and ancillary powers to sign documents (s 6F). Acts of the enduring guardian are taken to be the acts of the appointor and to have been done with legal capacity (s 6G).