WHAT IS GUARDIANSHIP?
Guardianship is where the NSW Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) appoints a Guardian to manage decisions around your everyday needs. They can do this if they decide that you no longer have decision making capacity and need further support in this area. Guardianship should only be a last resort once all other options have been explored.
WHAT IS A GUARDIANSHIP ORDER?
A Guardianship Order is made to provide another person or organisation with the power to make some decisions on your behalf. These decisions can include healthcare, lifestyle and medical related decisions.
Your treatment team at the mental health unit can apply for a Guardianship Order if they believe you need more support in making decisions about different aspects of your everyday life. This can happen regardless of whether you have been voluntarily or involuntarily admitted to a mental health unit.
Note: A Guardianship Order can only be approved if the NSW Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) is satisfied that you need a guardian. For more information about guardianship or guardianship orders, please visit the NCAT webpage ‘Guardianship Orders’.
WHAT DOES IT MEAN TO HAVE ‘DECISION MAKING CAPACITY’?
The NSW Trustee & Guardian define decision making capacity as the ability to make your own life decisions by:
- understanding the situation, facts or information about a decision
- understanding the choices available
- understanding what will or could happen from making a decision
- using reason to weigh the risks and benefits of a decision
- being able to clearly communicate consistent decisions
WHAT ARE SOME ALTERNATIVES TO GUARDIANSHIP?
Guardianship should only be a last resort. There are a couple of alternatives to guardianship. These include:
- Advanced Care Directive
- Supported decision making
WHAT IS AN ADVANCED CARE DIRECTIVE?
An Advanced Care Directive is a set of directions and decisions provided to your supports ahead of time about your healthcare preferences in the event you lose decision making capacity.
Advanced Care Directives are often used in situations where someone is seriously ill or injured. It can also be helpful for someone who is significantly impacted by their mental health issues.
This can provide extra peace of mind for you, knowing that you have this information ready to guide your supports and clinical staff when you are unable to speak for yourself.
Note: A valid Advanced Care Directive can only be made by an adult with decision making capacity. Health professionals, carers, family members and other supports cannot override a valid Advanced Care Directive unless legally authorised to do so. Please make sure you seek legal advice before completing an Advanced Care Directive.
An Advanced Care Directive may include one or more of the following:
- What treatments you prefer to have or refuse to have
- The person you would like to make medical decisions on your behalf in the event you lose decision making capacity
- Details of what is important to you like life goals and preferred treatment outcomes
HOW DO I MAKE AN ADVANCE CARE DIRECTIVE?
In NSW, an Advanced Care Directive can be made either in writing or spoken verbally. There are a few ways you can make an Advanced Care Directive. You can either:
- use the NSW Advance Care Directive form found at the back of the ‘Making an Advance Care Directive’ booklet
- write a letter or statement about your wishes
- tell someone that you trust and who knows you well
WHAT IS SUPPORTED DECISION MAKING?
Sometimes we need additional supports or systems in place to help us make decisions. This is where having a family member, friend, relative or even a paid support worker or case manager to support you to make decisions can be helpful. This is called supported decision making.
The person supporting you to make decisions should be able to appropriately support you and should be a person you have asked to support you make decisions. This is not necessarily a formal process and can be simply asking a friend or family member to help you communicate with specialists and medical staff about your needs.
It is important to note that, unlike Guardianship, supported decision making DOES NOT mean that the person supporting you makes the decisions on your behalf. They are there to support you to make your own decision. They are there to listen to you, help you better understand the decision and to communicate with you about the decision in a way that is easy for you to understand. In other words, it’s someone who advocates with you rather than for you. They could help you collect and understand information about the decision, look at the benefits and risks of the decision and help you plan to make the decision.
Supported decision making is your right and should be explored first before deciding to apply for Guardianship.
HOW CAN SUPPORTED DECISION MAKING BE HELPFUL?
Supported decision making gives you that extra support in areas of your life you may be struggling with such as:
- Everyday living tasks, for example cooking, cleaning, transport
- Individual advocacy
You can visit the NSW Trustee and Guardian website for more information about supported decision making.
WANT TO LODGE A COMPLAINT?
Consider first providing feedback or making a complaint directly to the health service or staff. Click the link
If you would like to escalate the matter further, you can click here to make an inquiry or lodge a complaint online to the Health Care Complaints Commission or call 1800 043 159.
NEED ADVOCACY SUPPORT?
Visit the Official Visitors website or call 1800 208 218 for more information.
NEED LEGAL REPRESENTATION?
Contact the Mental Health Advocacy Service, Legal Aid on 1300 888 529. You can also visit the Legal Aid website.
NOTE: This is an online resource only. There is no downloadable PDF.