A Power of Attorney (POA) and Appointment of Enduring Guardian (AEG) are documents that allow you to appoint another person to make major decisions on your behalf, usually when you do not have capacity to make such decisions yourself.
While these are very useful and practical documents to have, many people do not have a POA or AEG. So what happens if a family member or someone you know loses capacity to make decisions in their own best interests without having a POA and AEG in place?
For small decisions it is usually fine for close family members or carers to act informally on behalf of the person that does not have capacity. However, they do not have authority act on that person’s behalf to make major decisions; such as if they needed to sell their house or dispose of other assets, make decisions in relation to the medical treatment that person receives or give consent for them to be cared for in an institution.
In order to legally make decisions on behalf of someone that does not have capacity and does not have a POA or AEG you must make an application to the NSW Civil and Administrative Tribunal (NCAT).
An application for a Financial Management Order is required when you need to make financial or legal decisions on behalf of someone else and an application for a Guardianship Order is required to make medical and lifestyle decisions.
These applications require you to provide information about yourself, the person you are making the application for and any other family member or persons who may be affected if the orders are granted. You will also be required to provide details of why you are making the application and evidence that the person you are making the application on behalf of, no longer has capacity to make decisions in their own best interests.
Once the application has been received by NCAT you will receive a hearing date. Usually, both the person or people making the application and the person whom the application is made for are required to attend the hearing. At the hearing, the application will be considered and the Tribunal Members will want to hear evidence from the person making the application as well as any other significant person, which may include family members or treating doctors of the person that no longer has capacity.
This will allow the Tribunal to decide if the desired order should be made, and if so, who the best person or people are to grant the order to. Simply submitting the application to NACT does not guarantee that such an order will be made in your favour to make decisions on behalf of the person who does not have capacity.
If you need assistance or advice regarding Financial Management Orders or Guardianship Orders or wish to submit an application to the NCAT office in Tamworth, contact a solicitor at Everingham Solomons because Helping You is Our Business.
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