APPLICATIONS TO NCAT
MAKING AN APPLICATION TO THE TRIBUNAL (NCAT) WHEN YOU ARE CONCERNED AN INCAPACITATED PERSON MIGHT BE AT-RISK
If you are concerned about someone’s welfare you can make an application to NCAT:
if there is no guardian in place, to ask that a guardianship order be made, or
if there is a already a guardian and you believe the guardian is not acting in the best interests of the person to ask that a different guardian be appointed, or
if NCAT has previously made an guardianship order and you believe it should be changed, you can request a review
THERE MUST BE GROUNDS FOR MAKING AN APPLICATION TO NCAT
You should tell NCAT about any possible risk to the person. It may, for example, be a risk of:
• Being physically abused or neglected
• Being exposed to verbal abuse, intimidation or conflict
• Engaging in behaviour exposing them to harm or danger
THESE GROUNDS MUST BE SUPPORTED BY EVIDENCE
This can be in the form of :
Reports, letters or statutory declarations from a doctor, nurse, social worker, a provider of accommodation or services, or family members and friends
Character references
Medical reports
Contracts
Letters
Emails
Invoices
Phone records
Minutes of meetings
Photographs and film (CCTV footage).
NCAT WILL DECIDE
if the person has a disability (some persons with disability will not need a Guardian)
as a result are they totally or partially incapable of making their own decisions
do they need an appointed Guardian to make decisions on their behalf
if so who should that Guardian be
what areas of life should that Guardian make decisions about
should the order be subject to any conditions
how long should the order last
is it in the best interests of the person to make an order
GUARDIANSHIP APPLICATIONS
In BFT [2014] NSWCATGD Mr OGT, the son, wanted to be appointed joint guardian of his elderly father in conjunction with his sister, who was already doing the job. He was unsuccessful. He was unable to explain and support the reasons for his application with relevant documents and evidence and he did not have an accurate understanding of the orders NCAT could make. He was unprepared and out of his depth.
On the other hand in The Husband v The Public Guardian [2016] NSWSC a husband who applied for a review of the NCAT guardianship orders already made for his wife was successful in having these orders reversed and being appointed as Guardian himself. The Court noted that the husband, assisted by his solicitors, filed “thorough statements … giving a detailed and admissible narrative account of the husband’s long relationship with the wife (which) …have been an important integer in the Court’s decision-making in this case”. He was well-prepared with relevant documents and evidence.
Making guardianship applications is a usually a complex, lengthy and demanding task: a solicitor’s assistance improves the odds of getting a good result. Lynn Flanagan can also advise beforehand if making such an application is likely to succeed.