Protective Matters

Planning Ahead vs Stepping In

When someone can no longer make their own decisions — through illness, dementia, accident or disability — someone else needs the legal authority to decide for them. In New South Wales, there are two very different ways this can happen, and which one applies depends on whether the person planned ahead or whether NCAT needs to step in.

We act for clients in both stages — planning, applying to NCAT, defending NCAT applications, and reviewing or revoking existing appointments.

Planning Ahead: Enduring Power of Attorney

An Enduring Power of Attorney is a legal document made under the Powers of Attorney Act 2003 (NSW) that lets you appoint someone to make financial and legal decisions on your behalf — and unlike an ordinary Power of Attorney, it continues to operate after you lose capacity. Without one, your family has no automatic right to deal with your money, sell your home or manage your investments if you become incapacitated; they'd need to apply to NCAT.

The attorney can pay your bills, sell or rent property, manage shares and bank accounts, and run a business on your behalf — within the limits you set in the document.

Planning Ahead: Appointment of Enduring Guardian

An Appointment of Enduring Guardian is the personal-decisions equivalent. Made under the Guardianship Act 1987 (NSW), it appoints someone to make decisions about where you live, what medical treatment you receive, who provides your care, and similar lifestyle matters — but only once you lose capacity. It doesn't cover finances. We typically prepare an EPOA and an Enduring Guardian appointment together so all bases are covered.

Advance Care Directives

An Advance Care Directive (sometimes called a "living Will") records your wishes about medical treatment in the event you can no longer make those decisions — for example, whether you want artificial nutrition, resuscitation, or life-prolonging treatment in particular circumstances. It guides your enduring guardian and your treating doctors. Recognised under NSW common law and Department of Health policy.

Stepping In: NCAT Guardianship Applications

If a loved one has already lost capacity without putting an Enduring Guardian appointment in place, anyone with a genuine interest in their welfare can apply to the Guardianship Division of NCAT for a Guardianship Order. The Tribunal can appoint:

• A private guardian — usually a family member or close friend
• A joint guardianship — two or more people, useful in larger families to share the workload and provide accountability
• The Public Guardian — a government-appointed guardian where no suitable private guardian is available or where family conflict makes private appointment unworkable

NCAT will only appoint a guardian if it's satisfied the person lacks capacity to make the decisions in question and that an appointment is necessary. The guardian's authority is tailored to specific decision areas (e.g. accommodation, healthcare, services) rather than being open-ended.

Stepping In: NCAT Financial Management Orders

NCAT can also make a Financial Management Order under the NSW Trustee and Guardian Act 2009. The Tribunal appoints either:

• A private financial manager — usually a family member, who must be approved by the NSW Trustee & Guardian and report annually
• The NSW Trustee & Guardian itself — the public body that manages the affairs of people who lack capacity, usually appointed where no private manager is available, where the estate is complex, or where family conflict makes private management unworkable

Private financial managers are subject to ongoing oversight: they must keep accurate records, follow an authorised plan, and submit annual accounts to the NSW Trustee & Guardian.

Disputed Guardianship Applications

Guardianship and financial management hearings can become highly contested, particularly where family members disagree on the appropriate care arrangements, where one family member is alleged to have exerted influence over the proposed protected person, or where there's underlying concern about elder financial abuse. We act for applicants seeking appointment, family members opposing an application, and the proposed protected person themselves where they wish to be heard at the hearing.

Review & Revocation

An existing Guardianship Order or Financial Management Order isn't permanent. NCAT can review either at the request of any interested person, and on review the Tribunal can:

• Continue the existing appointment unchanged
• Vary the appointment — change who acts, expand or narrow their powers
• Revoke the appointment entirely — for example where the person has regained capacity, or where the appointed guardian/manager is no longer suitable

Reviews are commonly sought where the guardian or financial manager is alleged to have acted improperly, where family circumstances have changed, or where the protected person's condition has improved.

Common Questions

What's the difference between Power of Attorney and Guardianship?

A Power of Attorney covers financial and legal decisions. A Guardian (whether an Enduring Guardian appointed by you, or one appointed by NCAT) covers personal, lifestyle and medical decisions. Most people need both, covering both categories of decision-making.

Do I need a Power of Attorney if I already have a Will?

Yes. A Will only operates after your death. A Power of Attorney operates during your life if you lose capacity. They do different jobs and you need both for complete planning. We typically prepare them together with an Enduring Guardian appointment.

When does an Enduring Power of Attorney start?

You choose. It can start immediately on signing, only when you lose capacity, or on a specific date. Most people choose "on loss of capacity" so the attorney's authority only activates if and when needed.

What is capacity, and who decides if someone has lost it?

Legal capacity means understanding the nature and effect of a particular decision. It's decision-specific — someone may have capacity for simple choices but not complex ones. Capacity is usually assessed by a treating doctor, geriatrician or psychogeriatrician, often using a recognised cognitive assessment. NCAT relies on this medical evidence when deciding whether to make a guardianship or financial management order.

What happens if no one has Power of Attorney and my parent loses capacity?

You'll need to apply to the Guardianship Division of NCAT for a Guardianship Order and/or Financial Management Order. The process typically takes 2 to 4 months and is more involved than putting Enduring Power of Attorney and Enduring Guardian appointments in place beforehand.

Can NCAT decisions be reviewed?

Yes. Any interested person can apply to NCAT to review an existing Guardianship Order or Financial Management Order. NCAT can continue, vary or revoke the appointment depending on the evidence. For serious or systemic issues, appeals can go to the NCAT Appeal Panel or the Supreme Court.

What can I do if I think someone is being financially exploited?

Urgent applications can be made to NCAT, and in serious cases to the Supreme Court, to suspend or revoke an attorney's authority and freeze assets. The NSW Trustee & Guardian, the Public Guardian and NSW Police all have roles in protecting vulnerable people. We can advise on the right combination of steps for the specific circumstances.