What to know about protected persons

Date: Dec 08, 2014

In some cases, individuals will be awarded additional protections under the law in the form of a guardianship. These protections can have specific conditions that lead many individuals to seek family law advice.

A guardianship can be appointed for anyone who doesn't have the mental faculties to oversee their own affairs. This can include anyone who has a severe disability, or who has reached an advanced age where they are unable to meet their ongoing needs.

Guardians can be either a family member or friend of the individual requiring guardianship (a private guardian) or NSW Public Guardian can be appointed by a tribunal. The criteria for qualifying as a protected person, and therefore requiring a guardian, is laid out in the Guardianship Act 1987 (NSW).

While the appointment of a guardian is usually an uncontroversial, there are times when legal action arises because of this arrangement, especially when it comes to the estate of the individual. When a person with substantial material wealth also requires a guardian, it can easily lead to disputes within a family.

This was recently demonstrated by a case before the NSW Supreme Court, in which a family were in disagreement over the ongoing care of their elderly mother. 

The case involved the mother's three children, who couldn't agree on the correct way to administer and manage her estate.

What's more, the three children shared in the possession of a property, with each holding a 20 per cent share. The last 40 per cent was held by their mother.

These ongoing disagreements over the management of the woman's estate led to the action before the NSW Supreme Court.

In the end, the Judge ruled the estate of the children's mother should be managed by the NSW Trustee, instead of the family members. The children were also referred to a mediator for further work to establish the correct roles of each child as part of their mother's ongoing care.

This case gives some insight into the different issues that can arise when individuals require guardianship. Although this case was complicated by the large value of the estate, it also hinged on the dysfunction within the family. 

What's more, this legal action demonstrates the importance of having a living will included in the estate planning process. This can ensure your ongoing care is guaranteed in the event that you cannot make a decision for yourself. 

If you want more information on the role that guardianships can play in a family, or just want advice on a dispute within your family, it is important to talk to an experienced estate planning lawyer.