Guardianship Act 1987

This Act may be cited as the Guardianship Act 1987.

This Act shall commence on a day or days to be appointed by proclamation.

In this Act—

authorised officer, in relation to any provision of this Act, means—

an employee who is declared to be an authorised officer for the purposes of that provision, or

an employee who belongs to a class of employees who are declared to be authorised officers for the purposes of that provision,

by an order in force under subsection (3).

child means a person who is under the age of 18 years.

Department means the Department of Family and Community Services.

employee means a Public Service employee who is employed to enable the Tribunal to exercise its functions in the Guardianship Division of the Tribunal.

enduring guardian means a person appointed as an enduring guardian under Part 2.

estate of a person means the property and affairs of the person.

exempt premises means—

the premises of—

a government school or non-government school within the meaning of the Education Act 1990,

a private health facility licensed under the Private Health Facilities Act 2007 or a nursing home within the meaning of the Public Health Act 2010,

a mental health facility within the meaning of the Mental Health Act 2007,

a statutory health corporation or affiliated health organisation under the Health Services Act 1997, or

a public hospital or health service under the control of a local health district constituted under the Health Services Act 1997,

any premises belonging to a class of premises prescribed by the regulations, or

in relation to any provision of this Act, any premises declared to be exempt premises for the purposes of that provision by an order in force under subsection (4).

guardian means a person who is, whether under this Act or any other Act or law, a guardian of the person of some other person (other than a child who is under the age of 16 years), and includes an enduring guardian.

guardianship order means an order referred to in section 14.

NSW Trustee means the NSW Trustee and Guardian constituted under the NSW Trustee and Guardian Act 2009.

person in need of a guardian means a person who, because of a disability, is totally or partially incapable of managing his or her person.

person under guardianship means a person who has a guardian within the meaning of this Act.

premises includes any land, building, vehicle or vessel.

proprietor, in relation to premises, means—

if the premises are not leased—the owner, or (if there is more than one owner) any of the owners, of the premises, or

if the premises are leased—the lessee, or (if there is more than one lessee) any of the lessees, who is entitled to immediate possession of the premises.

Public Guardian means the Public Guardian referred to in section 77.

Secretary means the Secretary of the Department.

spouse means—

the person to whom a person is legally married (including the husband or wife of a person), or

a de facto partner,

but where more than one person would so qualify as a spouse, means only the last person so to qualify.

Note—

“De facto partner” is defined in section 21C of the Interpretation Act 1987.

Tribunal means the Civil and Administrative Tribunal.

Note—

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

In this Act, a reference to a person who has a disability is a reference to a person—

who is intellectually, physically, psychologically or sensorily disabled,

who is of advanced age,

who is a mentally ill person within the meaning of the Mental Health Act 2007, or

who is otherwise disabled,

and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation.

For the purposes of the definition of authorised officer in subsection (1), the Minister may, by order published in the Gazette—

declare any employee to be an authorised officer, or

declare any class of employees to be authorised officers,

for the purposes of any provision of this Act.

For the purposes of paragraph (c) of the definition of exempt premises in subsection (1), the Minister may, by order published in the Gazette, declare any premises to be exempt premises for the purposes of any provision of this Act.

(Repealed)

In this Act—

a reference to a function includes a reference to a power, authority and duty, and

a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

Notes included in this Act are explanatory notes and do not form part of this Act.

A guardianship order may be made in respect of a patient within the meaning of the Mental Health Act 2007.

The fact that a person under guardianship becomes a patient within the meaning of the Mental Health Act 2007 does not operate to suspend or revoke the guardianship.

However—

a guardianship order made, or

an instrument appointing an enduring guardian,

in respect of a person who is, or becomes, a patient within the meaning of the Mental Health Act 2007 is effective only to the extent that the terms of the order or instrument are consistent with any determination or order made under the Mental Health Act 2007 in respect of the patient.

For the purposes of this Act, the circumstances in which a person is to be regarded as having the care of another person include (but are not limited to) the case where the person, otherwise than for remuneration (whether from the other person or any other source), on a regular basis—

provides domestic services and support to the other person, or

arranges for the other person to be provided with such services and support.

A person who resides in an institution (such as a hospital, nursing home, group home, boarding-house or hostel) at which he or she is cared for by some other person is not, merely because of that fact, to be regarded as being in the care of that other person, and remains in the care of the person in whose care he or she was immediately before residing in the institution.

In this section, remuneration does not include a carer’s pension.

A person is a close friend or relative of another person for the purposes of this Act if the person maintains both a close personal relationship with the other person through frequent personal contact and a personal interest in the other person’s welfare. However, a person is not to be regarded as a close friend or relative if the person is receiving remuneration (whether from the other person or some other source) for, or has a financial interest in, any services that he or she performs for the other person in relation to the person’s care.

The Division Head of the Guardianship Division of the Tribunal may issue guidelines, not inconsistent with subsection (1), specifying the circumstances in which a person is to be regarded as a close friend or relative of another person.

In this section, remuneration does not include a carer’s pension.

A person is a party to proceedings before the Tribunal under this Act as provided by this section.

Each of the following persons is a party to any proceedings before the Tribunal in respect of an application for a guardianship order under this Act—

the applicant,

the person to whom the application relates,

the spouse, if any, of the person to whom the application relates, if the relationship between the person and the spouse is close and continuing,

the person, if any, who has care of the person to whom the application relates,

the enduring guardian, if any, of the person to whom the application relates,

the Public Guardian,

any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013.

Each of the following persons is a party to proceedings consisting of a review by the Tribunal of a guardianship order made under this Act—

the person, if any, who requested the review,

the person the subject of the order,

the spouse, if any, of the person the subject of the order, if the relationship between the person and the spouse is close and continuing,

the person who has care of the person the subject of the order,

the enduring guardian, if any, of the person the subject of the order,

the guardian appointed under the order,

the Public Guardian,

any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013.

Each of the following persons is a party to proceedings consisting of a review by the Tribunal of an appointment (or purported appointment) of an enduring guardian under this Act—

the person, if any, who requested the review,

the person appointed as the enduring guardian,

the person who appointed the enduring guardian,

the spouse, if any, of the person who appointed the enduring guardian, if the relationship between the person and the spouse is close and continuing,

the person, if any, who has care of the person who appointed the enduring guardian,

the Public Guardian,

the NSW Trustee,

any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013.

Each of the following persons is a party to any proceedings before the Tribunal in respect of an application for a financial management order under this Act—

the applicant,

the person to whom the application relates,

the spouse, if any, of the person to whom the application relates, if the relationship between the person and the spouse is close and continuing,

the person, if any, who has care of the person to whom the application relates,

the person, if any, appointed attorney by the person to whom the application relates under a power of attorney that is in force,

the NSW Trustee,

any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013.

Each of the persons specified in subsection (7) is a party to proceedings consisting of a review by the Tribunal of—

a financial management order made under this Act, or

the appointment under this Act of a manager of an estate.

For the purposes of subsection (6), the persons are—

the person, if any, who requested the review,

the protected person to whom the relevant financial management order relates,

the spouse, if any, of the protected person, if the relationship between the person and the spouse is close and continuing,

the person, if any, who has care of the protected person,

the person, if any, appointed attorney by the person to whom the relevant financial management order relates under a power of attorney (whether in force or suspended),

the person appointed as the manager of the estate concerned,

the NSW Trustee,

any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013.

In this section, financial management order and protected person have the same meanings as in Part 3A.

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles—

the welfare and interests of such persons should be given paramount consideration,

the freedom of decision and freedom of action of such persons should be restricted as little as possible,

such persons should be encouraged, as far as possible, to live a normal life in the community,

the views of such persons in relation to the exercise of those functions should be taken into consideration,

the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

such persons should be protected from neglect, abuse and exploitation,

the community should be encouraged to apply and promote these principles.

In this Part—

appointee means a person appointed as an enduring guardian under this Part.

appointor means a person who has appointed an enduring guardian under this Part.

eligible signer, in relation to a notice or other instrument, means a person who—

is at least 18 years of age, and

is not a witness to the notice or other instrument, and

in the case of an instrument appointing an enduring guardian or revoking an appointment—is not an appointee or substitute enduring guardian.

eligible witness means a person who—

is any of the following—

an Australian legal practitioner,

(Repealed)

a registrar of the Local Court,

a person (or a person belonging to a class of persons) prescribed by the regulations for the purposes of this subparagraph, and

in the case of an instrument appointing an enduring guardian or revoking an appointment—is not an appointee or substitute enduring guardian.

A person of or above the age of 18 years may, by instrument in writing, appoint a person as his or her guardian.