New South Wales: Guardianship Act 1987 (NSW)

Guardianship Act 1987 No 257 An Act with respect to the guardianship of persons who have disabilities; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Guardianship Act 1987. 2 Commencement This Act shall commence on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— authorised officer, in relation to any provision of this Act, means— (a) an employee who is declared to be an authorised officer for the purposes of that provision, or (b) 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— (a) the premises of— (i) a government school or non-government school within the meaning of the Education Act 1990, (ii) 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, (iii) a mental health facility within the meaning of the Mental Health Act 2007, (iv) a statutory health corporation or affiliated health organisation under the Health Services Act 1997, or (v) a public hospital or health service under the control of a local health district constituted under the Health Services Act 1997, (b) any premises belonging to a class of premises prescribed by the regulations, or (c) 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— (a) if the premises are not leased—the owner, or (if there is more than one owner) any of the owners, of the premises, or (b) 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— (a) the person to whom a person is legally married (including the husband or wife of a person), or (b) 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. (2) In this Act, a reference to a person who has a disability is a reference to a person— (a) who is intellectually, physically, psychologically or sensorily disabled, (b) who is of advanced age, (c) who is a mentally ill person within the meaning of the Mental Health Act 2007, or (d) 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. (3) For the purposes of the definition of authorised officer in subsection (1), the Minister may, by order published in the Gazette— (a) declare any employee to be an authorised officer, or (b) declare any class of employees to be authorised officers, for the purposes of any provision of this Act. (4) 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. (5) (Repealed) (6) In this Act— (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. 3A (Repealed) 3B Notes Notes included in this Act are explanatory notes and do not form part of this Act. 3C Relationship with Mental Health Act 2007 (1) A guardianship order may be made in respect of a patient within the meaning of the Mental Health Act 2007. (2) 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. (3) However— (a) a guardianship order made, or (b) 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. 3D Circumstances in which a person "has the care of another person" (1) 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— (a) provides domestic services and support to the other person, or (b) arranges for the other person to be provided with such services and support. (2) 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. (3) In this section, remuneration does not include a carer's pension. 3E Meaning of "close friend or relative" (1) 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. (2) 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. (3) In this section, remuneration does not include a carer's pension. 3F Persons who are "parties" to proceedings under this Act (1) A person is a party to proceedings before the Tribunal under this Act as provided by this section. (2) 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— (a) the applicant, (b) the person to whom the application relates, (c) 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, (d) the person, if any, who has care of the person to whom the application relates, (d1) the enduring guardian, if any, of the person to whom the application relates, (e) the Public Guardian, (f) any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013. (3) 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— (a) the person, if any, who requested the review, (b) the person the subject of the order, (c) 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, (d) the person who has care of the person the subject of the order, (d1) the enduring guardian, if any, of the person the subject of the order, (e) the guardian appointed under the order, (e1) the Public Guardian, (f) any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013. (4) 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— (a) the person, if any, who requested the review, (b) the person appointed as the enduring guardian, (c) the person who appointed the enduring guardian, (d) 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, (e) the person, if any, who has care of the person who appointed the enduring guardian, (e1) the Public Guardian, (e2) the NSW Trustee, (f) any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013. (5) 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— (a) the applicant, (b) the person to whom the application relates, (c) 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, (d) the person, if any, who has care of the person to whom the application relates, (e) the person, if any, appointed attorney by the person to whom the application relates under a power of attorney that is in force, (f) the NSW Trustee, (g) any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013. (6) Each of the persons specified in subsection (7) is a party to proceedings consisting of a review by the Tribunal of— (a) a financial management order made under this Act, or (b) the appointment under this Act of a manager of an estate. (7) For the purposes of subsection (6), the persons are— (a) the person, if any, who requested the review, (b) the protected person to whom the relevant financial management order relates, (c) the spouse, if any, of the protected person, if the relationship between the person and the spouse is close and continuing, (d) the person, if any, who has care of the protected person, (d1) 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), (e) the person appointed as the manager of the estate concerned, (f) the NSW Trustee, (g) any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013. (8) In this section, financial management order and protected person have the same meanings as in Part 3A. 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles— (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles. Part 2 Appointment of enduring guardians 5 Definitions 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— (a) is at least 18 years of age, and (b) is not a witness to the notice or other instrument, and (c) 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— (a) is any of the following— (i) an Australian legal practitioner, (ii) (Repealed) (iii) a registrar of the Local Court, (iv) a person (or a person belonging to a class of persons) prescribed by the regulations for the purposes of this subparagraph, and (b) in the case of an instrument appointing an enduring guardian or revoking an appointment—is not an appointee or substitute enduring guardian. 6 Adult person may appoint guardian A person of or above the age of 18 years may, by instrument in writing, appoint a person as his or her guardian. 6A When appointment has effect (1) An appointment under this Part— (a) has effect only during such period of time as the appointor is a person in need of a guardian, and (b) unless revoked or suspended under this Part, has effect during all such periods. (2) A person appointed under this Part is appointed as an enduring guardian. 6B Eligibility for appointment (1) A person is not eligible to be appointed as an enduring guardian unless he or she is of or above the age of 18 years. (2) A person is not eligible to be appointed as an enduring guardian if— (a) the person is, in a professional or administrative capacity, directly or indirectly responsible for, or involved in, the provision of any of the following services for fee or reward to the person making the appointment— (i) medical services (whether provided in a hospital, at home or otherwise), (ii) accommodation, (iii) any other services to support the person making the appointment in his or her activities of daily living, or (b) the person is the spouse, parent, child, brother or sister of a person of the kind referred to in paragraph (a). (3) However, if a person who is validly appointed as an enduring guardian becomes responsible for or involved in the provision for fee or reward of a service to the appointor of the kind referred to in subsection (2) (a), the appointment does not lapse. 6C Method of appointment (1) An instrument does not operate to appoint a person as an enduring guardian unless— (a) it is in or to the effect of the form prescribed by the regulations, and (b) it is signed— (i) by the appointor, or (ii) if the appointor instructs—by an eligible signer who signs for the appointor in the appointor's presence, and (c) it is endorsed with the appointee's acceptance of the appointment, and (d) the execution of the instrument by the appointor and appointee is witnessed by one or more eligible witnesses, and (e) each witness certifies that the person or persons whose execution of the instrument is witnessed executed the instrument voluntarily in the presence of the witness and appeared to understand the effect of the instrument, and (f) if the instrument is signed for the appointor by an eligible signer—the person who witnesses the signature certifies that the appointor, in the witness's presence, instructed the signer to sign the instrument for the appointor. (2) Without limiting subsection (1) (b) (i), an instrument is signed by the appointor if the appointor affixes his or her mark to the instrument. (3) If an eligible signer signs an instrument on behalf of an appointor as provided by subsection (1) (b) (ii), the appointor is taken to have signed the instrument for the purposes of this Act (including subsection (1) (e)). (4) For the purposes of subsection (1) (d)— (a) the execution of the instrument by or for the appointor and by the appointee may be witnessed by the same person or by different persons, and (b) the execution of the instrument by or for the appointor does not need to be witnessed at the same time and place as the execution of the instrument by the appointee. 6D Appointment of 2 or more enduring guardians (1) An instrument appointing an enduring guardian may appoint 2 or more such guardians to act jointly, severally or jointly and severally. (2) If an instrument appoints 2 or more enduring guardians to act both jointly and severally— (a) the appointees are authorised to act jointly or severally at their discretion in relation to the appointor except as otherwise provided by the instrument of appointment, and (b) a vacation in the office of one enduring guardian does not terminate the appointment of any other enduring guardian unless the instrument of appointment provides otherwise. (3) Without limiting subsection (1), an instrument appointing more than one enduring guardian may confer different functions on each appointee. In any such case— (a) each appointee is taken to have been appointed to act severally, and (b) a reference in this Act to the enduring guardian is a reference to whichever of the appointees has the relevant function. (4) An instrument appointing 2 or more enduring guardians to act jointly may provide that the death, resignation or incapacity of one or more appointees does not operate to terminate the appointment of any other appointee. (5) For the purposes of this Act, an instrument that makes provision of the kind referred to in subsection (4) is taken to have appointed an appointee to act severally if each other appointee has died, resigned or become incapacitated. (6) A person who was appointed by an instrument executed by an appointor as a joint enduring guardian where that instrument does not make provision of the kind referred to in subsection (4) may apply to the Tribunal for an order confirming his or her appointment as an enduring guardian if each other appointee has died, resigned or become incapacitated. (7) The Tribunal may confirm the appointment of a person as an enduring guardian under subsection (6) only if the Tribunal is satisfied that the appointor did not intend the appointment to terminate if one or more of the other joint enduring guardians died, resigned or became incapacitated. (8) If the Tribunal confirms the appointment of a person as an enduring guardian under subsection (6), the instrument appointing the person is taken to have appointed the person to act severally if each other appointee has died, resigned or become incapacitated. 6DA Substitute enduring guardians (1) An instrument of appointment of an enduring guardian (the original enduring guardian) may appoint another person to be a substitute enduring guardian of the appointor. (2) The instrument of appointment does not operate to appoint a person as a substitute enduring guardian unless it is endorsed with the person's acceptance of the appointment. (3) A substitute enduring guardian has (and may exercise) the functions of an original enduring guardian only— (a) if the original enduring guardian dies, or (b) if the original enduring guardian resigns, or (c) during any incapacity of the original enduring guardian. (4) If 2 or more original enduring guardians are appointed by the instrument of appointment, the substitute enduring guardian— (a) is taken to have been appointed as a substitute enduring guardian for each of the original enduring guardians unless the instrument of appointment provides otherwise, and (b) if the original enduring guardians were appointed jointly and all of them have died, resigned or become incapacitated—section 6D operates in relation to that substitute enduring guardian as if he or she had been appointed as an original enduring guardian by the instrument of appointment and was the only remaining original enduring guardian. (5) A reference in a provision of this Act (other than this section) to an enduring guardian is to be read as a reference to the substitute enduring guardian while that person has, and may exercise, the functions of an original enduring guardian. 6E Functions of enduring guardians (1) Subject to subsection (2), an instrument appointing a person as an enduring guardian authorises the appointee, while the appointment has effect, to exercise the following functions— (a) deciding the place (such as a specific nursing home, or the appointor's own home) in which the appointor is to live, (b) deciding the health care that the appointor is to receive, (c) deciding the other kinds of personal services that the appointor is to receive, (d) giving consent under Part 5 to the carrying out of medical or dental treatment on the appointor, (e) any other function relating to the appointor's person that is specified in the instrument. (2) The instrument of appointment may limit or exclude the authority it confers in relation to any one or more of the functions specified in subsection (1). (2A) For the purpose of exercising a function that an appointee is authorised to exercise by an instrument appointing the appointee as an enduring guardian, the appointee has the same right of access to information about the appointor as the appointor has. (2B) Nothing in the Privacy and Personal Information Protection Act 1998 prevents a public sector agency (within the meaning of that Act) from disclosing information about an appointor to an appointee if the agency is satisfied that the disclosure of the information would assist the appointee to exercise his or her functions as an enduring guardian. (2C) Nothing in subsection (2A) affects the operation of the Health Records and Information Privacy Act 2002 in relation to the disclosure of health information about an appointor to an appointee. Note— Section 7 of the Health Records and Information Privacy Act 2002 (when read with section 8 of that Act) provides that a guardian of an individual may do any act authorised, permitted or required by that Act on behalf of an individual who is incapable of doing that act. An individual is incapable of doing an act for the purposes of section 7 if the individual is incapable, by reason of age, injury, illness or physical or mental impairment, of understanding the general nature and effect of the act or communicating the individual's intentions with respect to the act. If the individual is capable of doing the act, then the guardian may not do the act on behalf of the individual unless expressly authorised to do so. (3) The functions authorised by an instrument appointing an enduring guardian are, unless the Tribunal otherwise directs, to be exercised in accordance with any lawful directions contained in the instrument. 6F Ancillary powers of enduring guardian An enduring guardian may, on behalf of the appointor, sign and do all such things as are necessary to give effect to any function of the enduring guardian. 6G Acts of enduring guardian take effect as acts of appointor A decision made, an action taken and a consent given by an enduring guardian in the exercise of a function of the enduring guardian have effect as if— (a) the decision had been made, the action taken and the consent given by the appointor, and (b) the appointor had the legal capacity to do so (if the appointor would have that legal capacity but for his or her disability). 6H Revocation of appointment by appointor (1) A person who has appointed an enduring guardian may, by instrument in writing, revoke the appointment. (2) An instrument does not operate to revoke the appointment of an enduring guardian unless— (a) at the time of executing the instrument, the appointor had the legal capacity to revoke the appointment, and (b) the instrument is in or to the effect of the form prescribed by the regulations, and (c) the instrument is signed— (i) by the appointor, or (ii) if the appointor instructs—by an eligible signer who signs for the appointor in the appointor's presence, and (c1) the execution of the instrument is witnessed by an eligible witness, and (c2) the eligible witness certifies that the appointor executed the instrument voluntarily in the presence of the witness and appeared to understand the effect of the instrument, and (c3) if the instrument is signed for the appointor by an eligible signer—the eligible witness certifies that the appointor, in the witness's presence, instructed the signer to sign the instrument for the appointor, and (d) written notice of the revocation is given to the appointee. (3) Without limiting subsection (2) (c) (i), an instrument is signed by the appointor if the appointor affixes his or her mark to the instrument. (4) If an eligible signer signs an instrument on behalf of an appointor as provided by subsection (2) (c) (ii), the appointor is taken to have signed the instrument for the purposes of this Act (including subsection (2) (c2)). 6HA Automatic revocation of appointment by marriage of appointor The appointment of a person as an enduring guardian is revoked if the appointor marries or remarries a person (other than the appointee) after the date on which the person was appointed as an enduring guardian. Note— See section 6HC for certain appointments taken not to have been revoked on the recognition of same sex marriages. 6HB Resignation of appointment by appointee (1) An appointee may resign the appointee's appointment as an enduring guardian— (a) if the appointor is not in need of a guardian—by giving written notice to that effect to the appointor, or (b) if the appointor is in need of a guardian—with the approval of the Tribunal. (2) A written notice resigning an appointment as an enduring guardian must— (a) be in or to the effect of the form prescribed by the regulations, and (b) be signed— (i) by the appointee, or (ii) if the appointee instructs—by an eligible signer who signs for the appointee in the appointee's presence, and (c) be witnessed by an eligible witness, and (d) if the notice is signed for the appointee by an eligible signer—contain, or have annexed to it, a certificate signed by the eligible witness that certifies that the appointee, in the witness's presence, instructed the signer to sign the notice for the appointee. (3) Without limiting subsection (2) (b) (i), a notice is signed by the appointee if the appointee affixes his or her mark to the notice. (4) If an eligible signer signs a notice on behalf of an appointee as provided by subsection (2) (b) (ii), the appointee is taken to have signed the notice for the purposes of this Act. (5) The provisions of this section apply to the resignation of a substitute enduring guardian appointed as provided by section 6DA in the same way as they apply to the resignation of an appointee. 6HC Certain appointments not revoked on recognition of same sex marriages (1) This section applies to an appointment of a person as an enduring guardian that— (a) was made by a person who at the time of making the appointment was party to a marriage that had been solemnised and that marriage was a recognised same sex marriage on the recognition day, and (b) was in force immediately before the recognition day, and (c) was revoked by the operation of section 6HA on the recognition day because of the recognised same sex marriage of the person who made the appointment. (2) An appointment to which this section applies is taken not to have been revoked by the operation of section 6HA. (3) However, subsection (2) does not apply if the appointment to which this section applies was made by a person who made a subsequent appointment on or after the recognition day but only from the day on which that subsequent appointment was made. (4) Anything done or omitted to be done by a person, whose appointment as an enduring guardian is an appointment to which subsection (2) applies, that would have been lawful if this section applied at the time concerned, is taken to be (and always to have been) lawful. (5) In this section— recognised same sex marriage means a marriage that— (a) was solemnised before the recognition day, and (b) was recognised in Australia as valid on the recognition day because of Part 5 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 of the Commonwealth, and (c) would not have been recognised apart from that Part. recognition day means the day on which Part 5 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 of the Commonwealth commenced. 6I Automatic suspension (1) A guardianship order made in respect of a person who has appointed an enduring guardian operates to suspend, for the duration of the order, all authority of the enduring guardian to exercise a function under the appointment. (2) If a person who is the subject of a guardianship order purports to appoint an enduring guardian, the purported appointment is of no effect. (3) In this section, a reference to a guardianship order includes— (a) an order to the like effect made by the Supreme Court in the exercise of its jurisdiction with respect to guardianship of persons, and (b) an order to the like effect made under a corresponding law as referred to in Part 5A. 6J Tribunal's review of appointment (1) The Tribunal— (a) may, on its own motion, and (b) must, at the request of any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the appointor, review the appointment (or purported appointment) of an enduring guardian. (2) Before carrying out the review, the Tribunal must cause a notice specifying the date on which, and the time and place at which, the Tribunal will carry out the review to be served on each party to the review. (3) The Tribunal may, by order, suspend the appointment (or purported appointment) of the enduring guardian until the Tribunal takes action under section 6K (1). (4) A failure to serve notice in accordance with this section does not vitiate the decision of the Tribunal on the review. 6K Action on review (1) On reviewing the appointment of an enduring guardian, the Tribunal may— (a) revoke the appointment or deal with the matter as provided by subsection (3) (or both), or (b) confirm the appointment, with or without varying the functions of the enduring guardian under the appointment. (2) The Tribunal must not revoke the appointment of an enduring guardian unless— (a) the enduring guardian requested the revocation, or (b) the Tribunal is satisfied that it is in the best interests of the appointor that the appointment be revoked. (3) The Tribunal may, if it considers that it is in the best interests of the appointor to do so, deal with a review as if any of the following applications had been made in respect of the appointor— (a) an application for a guardianship order under Part 3, (b) an application for a financial management order under Part 3A, (c) applications for both such orders. (4) The Tribunal may confirm the appointment (or purported appointment) of a person as an enduring guardian under subsection (1) (b) even where— (a) the instrument that purported to appoint the person as an enduring guardian was not executed in accordance with the requirements of this Part, or (b) the person purporting to make the appointment announced his or her intention to make the appointment but became incapacitated before an instrument making the appointment could be executed in accordance with the requirements of this Part, if the Tribunal is satisfied that the confirmation of the appointment (or purported appointment) reflects the appointment that the person making the appointment intended to make at the time it was purportedly made. (5) The confirmation of the appointment of an enduring guardian under subsection (1) (b) has effect as if an instrument of appointment had been executed in accordance with the requirements of this Part by the appointor in the terms confirmed by the Tribunal. 6L Supreme Court may review appointment The Supreme Court may review the appointment (or purported appointment) of an enduring guardian and may make such orders as it thinks appropriate in respect of the appointment. 6M Tribunal may declare appointment has effect (1) A person appointed as an enduring guardian may apply to the Tribunal for an order declaring that the appointment has effect. (2) If the Tribunal is satisfied that the appointor of the enduring guardian— (a) is a person in need of a guardian, and (b) has appointed the applicant as his or her enduring guardian, the Tribunal may, by order, declare that appointment of the enduring guardian has effect. (3) The fact that the Tribunal has made an order under this section declaring that the appointment of an enduring guardian has effect does not prevent the Tribunal from making a guardianship order under Part 3, or a financial management order under Part 3A, in respect of the appointor. (4) The Tribunal may at any time, of its own motion or on the application of a person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the appointor, revoke an order made under this section. 6MA Substitution of enduring guardians by Tribunal (1) The Tribunal may, of its own motion or on the application of a person who, in the opinion of the Tribunal, has a genuine concern for the welfare of an appointor, appoint a person as a substitute enduring guardian of the appointor if the appointee has died, resigned or become incapacitated. (2) The Tribunal may appoint a person under subsection (1) only if— (a) the person is eligible to be appointed as an enduring guardian under this Part, and (b) the Tribunal is satisfied that— (i) the appointor is in need of an enduring guardian, and (ii) the person has a close personal relationship with the appointor, and (iii) the person is capable of carrying out the functions of an enduring guardian. (3) An appointment of a person under this section has effect as if the appointor had appointed the person as a substitute enduring guardian as provided by section 6DA. (4) The provisions of sections 6J and 6K apply to an appointment made under this section in the same way as they apply to an appointment made under an instrument of appointment. 6N Evidence as to appointor's capacity In any proceedings in which the question of whether, on a particular day or during a particular period, the appointor of an enduring guardian was a person in need of a guardian is in issue, the certificate of a medical practitioner to the effect that the appointor was, on that day or during that period, totally or partially incapable of managing his or her person because of a disability is evidence of the fact that the appointor was a person in need of a guardian. 6O Recognition of enduring guardians appointed in other States and Territories (1) An instrument appointing an interstate enduring guardian has effect in this State as if it were an instrument appointing an enduring guardian made under, and in compliance with, this Part, but only to the extent that the functions it confers under the law of the State or Territory in which it was made could validly have been conferred by an instrument appointing an enduring guardian made under this Part. (2) In particular, an instrument to which subsection (1) applies— (a) has effect in this State subject to any limitations on the functions it confers that apply to it under the law of the State or Territory in which it was made, and (b) does not operate to confer any function on an enduring guardian in this State that cannot be conferred on an enduring guardian by or under this Part. (3) A document signed by an Australian legal practitioner that certifies that an instrument appointing an interstate enduring guardian was made in accordance with the formal requirements of the law of the State or Territory in which it was made is admissible in any proceedings where the appointment is in issue and is prima facie evidence of the matter so certified. (4) Subsections (1)–(3) apply to an instrument appointing an interstate enduring guardian even if, at the time it was made, it was not an instrument appointing an enduring guardian within the meaning of this section. (5) In this section— interstate enduring guardian means a person who is appointed as a guardian by an instrument (or an instrument belonging to a class of instruments) prescribed by the regulations that is made under a law of a State or Territory (other than New South Wales). Part 3 Guardianship orders Division 1 Preliminary 7 Definitions In this Part— continuing guardianship order means a guardianship order (whether plenary or limited) that is specified to be continuing, as referred to in section 16 (1) (b). guardian, in relation to a person under guardianship, means the person for the time being appointed by a guardianship order as the guardian of that person's person. limited guardianship order means a guardianship order (whether continuing or temporary) that is specified to be limited, as referred to in section 16 (1) (c). person under guardianship means a person in respect of whom a guardianship order is in force. plenary guardianship order means a guardianship order (whether continuing or temporary) that is specified to be plenary, as referred to in section 16 (1) (c). temporary guardianship order means a guardianship order (whether plenary or limited) that is specified to be temporary, as referred to in section 16 (1) (b). 8 Jurisdiction of the Supreme Court not affected (1) Nothing in this Part limits the jurisdiction of the Supreme Court with respect to the guardianship of persons. (2) This section does not affect the operation of section 22 (Termination of Supreme Court orders). Division 2 Applications for guardianship orders 9 Applications (1) An application for a guardianship order in respect of a person may be made to the Tribunal— (a) by the person, (b) (Repealed) (c) by the Public Guardian, or (d) by any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person. (2) An application may not be made in respect of a person who is under the age of 16 years. (3) An application shall specify the grounds on which it is alleged that the person is a person in need of a guardian. 10 Service of applications (1) The applicant for a guardianship order in respect of a person must, as soon as practicable after the application has been made, cause a copy of the application to be served on each party (other than the applicant) to the proceedings before the Tribunal in respect of the application. (1A) Before conducting a hearing into the application, the Tribunal must cause a notice specifying the date on which, and the time and place at which, the Tribunal will conduct the hearing to be served on each party to the proceedings. (2) Failure to serve a copy of an application, or a notice, in accordance with this section does not vitiate the decision of the Tribunal on the application. 11 Removal of persons pursuant to order of the Tribunal (1) If an application for a guardianship order has been made with respect to a person— (a) the Tribunal may, if it considers it to be appropriate in the circumstances of the case, make an order for the removal of the person from any premises, and (b) an authorised officer or a member of the police force may, pursuant to the order, enter the premises, search the premises for the person and remove the person from the premises. (2) An authorised officer or a member of the police force may, for the purposes of entering and searching premises and removing a person pursuant to an order in force under this section, use all reasonable force. 12 Power of search and removal of persons (1) An employee or a member of the police force may apply to an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 for the issue of a search warrant if the employee or member of the police force has reasonable grounds for believing that there is in any premises a person who appears to be a person in need of a guardian and who— (a) is being unlawfully detained against his or her will, or (b) is likely to suffer serious damage to his or her physical, emotional or mental health or well-being unless immediate action is taken. (2) An authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an employee or member of the police force named in the warrant— (a) to enter any premises specified in the warrant, (b) to search the premises for the person, and (c) to remove the person from the premises. (3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section. (4) Without limiting the generality of section 71 of the Law Enforcement (Powers and Responsibilities) Act 2002, a member of the police force or a medical practitioner, or both— (a) may accompany an employee executing a search warrant issued under this section, and (b) may take all reasonable steps to assist the employee in the exercise of the employee's functions under this section. (5) An employee named in a search warrant, or a member of the police force, may, for the purpose of removing a person pursuant to the warrant, use all reasonable force. 13 Care of persons pending proceedings (1) If an employee or member of the police force removes a person from any premises under section 11 or 12, the employee or member of the police force shall forthwith place the person in the care of the Secretary at a place approved by the Minister for the purposes of this section. (1A) The Minister may delegate to the Secretary, or to any other person, the exercise of the Minister's function to approve the place in which a person may be placed in the care of the Secretary under this section. (1B) The Secretary may delegate to any person the exercise of a function delegated to the Secretary by the Minister under subsection (1A). (2) If a person has been removed from any premises under section 12 and placed in the care of the Secretary, the Secretary shall not keep the person in his or her care for more than 3 days unless the Secretary has, before the expiration of that period, made an application for a guardianship order in respect of the person. Division 3 Guardianship orders 14 Tribunal may make guardianship orders (1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person. (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to— (a) the views (if any) of— (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order. 15 Restrictions on Tribunal's power to make guardianship orders (1) A guardianship order shall not be made in respect of a person— (a) if the person is under the age of 16 years, or (b) in the case of a person who is the subject of an order made by the Supreme Court, in the exercise of its jurisdiction with respect to the guardianship of persons—unless the Supreme Court consents to the making of the order, or (c) in the case of a person who is the subject of an order made by the Children's Court in the exercise of its jurisdiction under section 79A of the Children and Young Persons (Care and Protection) Act 1998—unless the Children's Court consents to the making of the order. (2) A temporary guardianship order shall not be made in circumstances in which it is practicable to make a continuing guardianship order appointing a person other than the Public Guardian as the guardian of the person under guardianship. (3) A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person. (4) A plenary guardianship order shall not be made in circumstances in which a limited guardianship order would suffice. 16 Guardianship orders (1) A guardianship order— (a) shall appoint a person who is of or above the age of 18 years as the guardian of the person of the person under guardianship, (b) shall specify whether the order is continuing or temporary, (c) shall specify whether the order is plenary or limited, and (d) may be made subject to such conditions as the Tribunal considers appropriate to specify in the order. (2) A limited guardianship order shall specify— (a) the extent (if any) to which the guardian shall have custody of the person under guardianship, and (b) which of the functions of a guardian the guardian shall have in respect of the person under guardianship. (2A) A guardianship order may contain a statement to the effect that the order will not be reviewed under section 25 (2) (b) at the expiration of the period for which it has effect, but only if the Tribunal is satisfied that, in all the circumstances, it is in the best interests of the person who is the subject of the order that the order is not reviewed at the expiration of that period. Note— Section 25 (1) and (2) (a) provide for the review of a guardianship order on the Tribunal's own motion or at the request of any person entitled to request a review. Those rights to review are unaffected by any statement in the guardianship order that the order will not be reviewed under section 25 (2) (b) at its expiration. (3) Two or more guardians of a person may be appointed under one or more limited guardianship orders, either jointly (each having the same functions) or separately (each having different functions). However, the Public Guardian is not to be appointed a joint guardian. (4) A reference in this Act to the guardian of a person is— (a) in the case of joint guardians, a reference to all of the guardians, and (b) in the case of separate guardians, a reference to whichever of those guardians has the relevant function. 17 Guardians (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that— (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order. (2) Subsection (1) does not apply to the appointment of the Public Guardian as the guardian of a person under guardianship. (3) If, at the expiration of the period for which a temporary guardianship order has effect, the Tribunal is satisfied— (a) that it is appropriate that a further guardianship order should be made with respect to the person under guardianship, and (b) that there is no other person who it is satisfied is appropriate to be the person's guardian, the Tribunal may, in accordance with this Division, make a continuing guardianship order appointing the Public Guardian as the guardian of the person. (4) The Public Guardian shall be appointed as the guardian of a person the subject of a temporary guardianship order. 18 Term of guardianship orders (1) A continuing guardianship order has effect— (a) in the case of an initial order—for such period (not exceeding 1 year from the date when it was made) as the Tribunal may specify in the order, or (b) in the case of an order that is renewed—for such period (not exceeding 3 years from the date when it was renewed) as the Tribunal may specify in the order. (1A) Despite subsection (1), the Tribunal may specify, in a continuing guardianship order, that the order has effect for a period not exceeding— (a) in the case of an initial order—3 years, and (b) in the case of an order that is renewed—5 years, from the date on which it was made. (1B) Subsection (1A) applies in relation to a guardianship order only if the Tribunal is satisfied that— (a) the person the subject of the order has permanent disabilities, and (b) it is unlikely that the person will become capable of managing his or her person, and (c) there is a need for an order of longer duration than the relevant period specified in subsection (1). (2) A temporary guardianship order has effect— (a) in the case of an initial order—for such period (not exceeding 30 days from the date when it was made) as the Tribunal may specify in the order, or (b) in the case of an order that is renewed—for such period (not exceeding 30 days from the date when it was renewed) as the Tribunal may specify in the order. (3) A temporary guardianship order may be renewed only once. 19 Orders to be forwarded to the Public Guardian If the Tribunal makes a continuing guardianship order appointing a person other than the Public Guardian as a guardian, it shall cause a copy of the order to be forwarded to the Public Guardian. 20 Alternative guardians (1) A continuing guardianship order (other than an order appointing the Public Guardian as a guardian) may appoint a person to be an alternative guardian of the person under guardianship. (1A) Subsection (1) applies even if 2 or more persons are appointed (either jointly or separately, as referred to in section 16 (3)) guardians of the person concerned. However, if 2 or more guardians of a person are appointed separately (each having different functions), the guardianship order or orders concerned may appoint persons to be the alternative guardians of the person under guardianship in respect of those different functions. (2) During the absence or incapacity of a guardian of a person under guardianship, the person's alternative guardian for the absent or incapacitated guardian has the functions of that guardian. 21 Relationship of guardians to persons under guardianship (1) Subject to any conditions specified in the order, the guardian of a person the subject of a plenary guardianship order— (a) has custody of the person to the exclusion of any other person, and (b) has all the functions of a guardian of that person that a guardian has at law or in equity. (2) Subject to any conditions specified in the order, the guardian of a person the subject of a limited guardianship order— (a) has custody of the person, to the exclusion of any other person, to such extent (if any) as the order provides, and (b) has such of the functions of a guardian of that person's person, to the exclusion of any other person, as the order provides. (2A) Subject to any conditions specified in the order, the guardian of a person the subject of a guardianship order (whether plenary or limited) has the power, to the exclusion of any other person, to make the decisions, take the actions and give the consents (in relation to the functions specified in the order) that could be made, taken or given by the person under guardianship if he or she had the requisite legal capacity. (3) Section 49 of the Minors (Property and Contracts) Act 1970 does not apply to a person the subject of a plenary guardianship order. 21A Power to enforce guardianship orders (1) Without limiting section 16, a guardianship order may specify that— (a) the person appointed as guardian, or (b) another specified person or a person of a specified class of persons, or (c) a person authorised by the guardian (the authorised person), is empowered to take such measures or actions as are specified in the order so as to ensure that the person under guardianship complies with any decision of the guardian in the exercise of the guardian's functions. (2) If a person referred to in subsection (1) (a), (b) or (c) takes any measure or action specified in the order in the reasonable belief that— (a) he or she is empowered by the guardianship order to take the measure or action, and (b) the measure or action is in the best interest of the person under guardianship, and (c) it is necessary or desirable to take that measure or action in the circumstances, the person concerned is not liable to any action, liability, claim or demand arising out of the taking of that measure or action. 21B Ancillary powers of guardian A guardian may, on behalf of a person under guardianship, sign and do all such things as are necessary to give effect to any function of the guardian. 21C Acts of guardian take effect as acts of person under guardianship A decision made, an action taken and a consent given by a guardian under a guardianship order have effect as if— (a) the decision had been made, the action taken and the consent given by the person under guardianship, and (b) that person had the legal capacity to do so (if the person would have had that legal capacity but for his or her disability). 22 Termination of Supreme Court orders On the making of a guardianship order in respect of a person the subject of an order made by the Supreme Court in the exercise of its jurisdiction with respect to the guardianship of persons, the order made by the Supreme Court shall cease to have effect. 22A Death of guardian (1) If the guardian of a person dies— (a) any other person appointed as a guardian jointly with the deceased guardian (the surviving guardian) may exercise the functions that he or she exercised jointly with the deceased guardian (and, if there is more than one surviving guardian, the surviving guardians may exercise those functions jointly), or (b) if there is no surviving guardian, the person's alternative guardian for the deceased guardian is taken to be the person's guardian, or (c) if there is no surviving guardian or alternative guardian, the Public Guardian is taken to be the person's guardian. (2) The provisions of this section apply until the relevant guardianship order is reviewed. 23 Guardianship orders of no effect in certain circumstances A guardianship order does not have effect in relation to a person while the person is— (a) (Repealed) (b) the subject of a subsequent order made by the Supreme Court, in the exercise of its jurisdiction with respect to the guardianship of persons, appointing a guardian of that person's person. Division 4 Assessment and review of guardianship orders Note— A review by the Tribunal under this Division of a guardianship order it has made is not an internal appeal or an exercise of its administrative review jurisdiction for the purposes of the Civil and Administrative Tribunal Act 2013. It is instead an exercise of the Tribunal's general jurisdiction. 24 Assessment of persons under guardianship (1) The Tribunal may specify in a guardianship order that an assessment of the person the subject of the order, and of the operation of the order in respect of the person, is to be made, by or on behalf of the Tribunal, at a specified time during the currency of the order. (2) The Tribunal is to cause any such required assessment to be made as specified. 25 Review of guardianship orders (1) The Tribunal may, on its own motion, review any guardianship order. (2) The Tribunal must review each guardianship order— (a) at the request of any person entitled to request a review of the order, and (b) at the expiration of the period for which the order has effect. (3) Despite subsection (2) (b)— (a) a review required by that paragraph may be commenced before the expiration of the period concerned, and (b) the Tribunal is not required to review a guardianship order under that paragraph if the order contains a statement (referred to in section 16 (2A)) to the effect that the order will not be reviewed at the expiration of the period for which it has effect. (4) Before carrying out the review, the Tribunal must cause a notice specifying the date on which, and the time and place at which, the Tribunal will carry out the review to be served on each party to the proceedings. The review is taken to have commenced on the issue of such a notice. (5) A failure to serve notice in accordance with this section does not vitiate the decision of the Tribunal on the review. (6) If a review of a guardianship order is commenced but not completed before the expiration of the period specified in the order as the period for which the order has effect, the order is taken to be extended until the completion of the review. 25A Requested review not required in certain cases Despite section 25 (2) (a), the Tribunal may refuse a request to review a guardianship order if— (a) in the opinion of the Tribunal, the request does not disclose grounds that warrant a review, or (b) the Tribunal has previously reviewed the order. 25B Persons entitled to request review The following persons are entitled to request a review of a guardianship order— (a) the guardian, (b) the person under guardianship, (c) the Public Guardian, (d) any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person under guardianship. 25C Action on review (1) On reviewing a guardianship order under section 25 (1) or (2) (a), the Tribunal may— (a) vary the order, or (b) suspend or revoke the order, or (c) confirm the order, or (d) renew, or renew and vary the order. (2) On reviewing a guardianship order under section 25 (2) (b), the Tribunal may— (a) renew, or renew and vary the order, or (b) determine that the order is to lapse (and revoke the order in respect of any unexpired period for which the order is specified to have effect). Part 3A Financial management Division 1 Making of financial management orders 25D Definitions In this Part— financial management order means an order referred to in section 25E, and includes an interim financial management order. protected person means a person whose estate (or part of whose estate) is subject to a financial management order that is in force. 25E Tribunal may make financial management orders (1) The Tribunal may, in accordance with this Part, order that the estate of a person be subject to management under the NSW Trustee and Guardian Act 2009. (2) The Tribunal may exclude a specified part of the estate from the financial management order. (3) (Repealed) 25F When financial management order may be made The Tribunal may make a financial management order subject to and in accordance with this Part— (a) in connection with its making a guardianship order under Part 3 in respect of the person concerned, or (b) following (or in the course of) proceedings under Part 3 in respect of the person, being proceedings in which it decided not to make a guardianship order, or (c) if an application for such an order has been made to it under section 25I in respect of the person (whether or not an application for a guardianship order has also been made in respect of the person), or (d) following (or in the course of) proceedings under section 36 of the Powers of Attorney Act 2003 in respect of an enduring power of attorney given by the person, being proceedings in which it has decided not to make an order under that section. 25G Grounds for making financial management order The Tribunal may make a financial management order in respect of a person only if th