More and more of us today are doing the wise thing, and appointing attorneys and guardians by Enduring Powers of Attorney and Guardianship Appointments.
These are discussed in an earlier Newsletter, but basically provide for the appointment of one or more attorneys and guardians to look after your finances and make health and lifestyle decisions for you if you become incapable of making those decisions.
However, that is not necessarily the end of it, as the Guardianship Tribunal - and the Supreme Court - has the power to cancel those appointments, and make their own.
In this newsletter we will only look at the Tribunal, as it is the usual body involved in such matters.
The Tribunal does not operate like a conventional court. It can act on the application of any interested person, and it can and does make it own enquiries into a matter. Hearings are normally before a three-person panel, and legal representation is only allowed on application, with some justification being required. A panel is comprised of a lawyer as chair, a medical practitioner or someone from a medical background and a lay person, someone with a background in community service, and hearings are conducted in an informal manner. The allegedly incapable person will be provided with legal assistance on a legally aided basis.
The Tribunal has the power to cancel powers of attorney and guardianships, and to appoint guardians and financial managers itself. A financial manager is the equivalent of an attorney, but if an individual will operate under the supervision of the NSW Trustee and Guardian.
The Tribunal will commonly be called upon when someone has lost their capacity and does not have an Enduring Power or a guardianship appointment. A guardianship order is not automatically made in such circumstances, as next of kin have powers to give consent to medical treatment anyway.
Other examples of the Tribunal being called upon to act are where there is a dispute or a doubt about a person's capacity to sign a Power or a Guardianship when one was executed, or where there is a dispute within a family about who should be an attorney or guardian for a parent or partner.
If someone wants to ensure that their affairs will be managed by someone of their choice, the lesson is to appoint an attorney and a guardian when there is no doubt at all about mental capacity. This will minimise the chances of the Tribunal being brought into the picture, and of doing something different.