Guardianship and Financial Management Orders
Guardianship and Financial Management Orders are legal mechanisms that appoint individuals or organisations to make personal, medical, legal, or financial decisions on behalf of someone who lacks capacity, ensuring their rights, dignity, and wellbeing are protected through lawful and ethical processes across Australia.
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Guardianship and Financial Management Orders: Considerations
Capacity Assessment for Guardianship:
Orders are granted only when an individual is assessed as lacking capacity due to illness, injury, disability, or other cognitive impairment. A formal medical or psychological assessment is typically required to confirm incapacity for either personal or financial decision-making.
Scope and Authority of the Orders:
Guardianship Orders may cover personal and healthcare decisions, while Financial Management Orders are focused on property, income, and financial responsibilities. Orders can be tailored to suit the individual’s needs, from limited decision-making power to broader authority, depending on their circumstances.
Balancing Protection and Autonomy:
Whether acting as a guardian or financial manager, the appointed individual must act in the person’s best interests, considering their values, preferences, and cultural background. The law seeks to strike a balance between protective oversight and the preservation of independence where possible.
Overview
In Australia, these orders are governed by legislation such as the Guardianship Act 1987 (NSW) and the Guardianship and Administration Act 2019 (Vic). Applications are assessed by state tribunals, which examine eligibility, the individual’s current and future capacity, and whether the proposed guardian or financial manager is suitable.
Tribunals often hear both Guardianship and Financial Management applications at the same time, especially when comprehensive support is necessary. Periodic reviews of the orders ensure they remain appropriate and reflect any changes in the person’s condition or circumstances
How We Can Help
At Our Lawyers, we assist clients with both Guardianship and Financial Management Orders. Our experienced team can guide you through the process of preparing and submitting tribunal applications, and we provide representation throughout the hearing process. We also support clients with reviewing and updating existing orders.
Whether you are acting for an elderly parent with dementia or supporting a younger person who has suffered a sudden loss of capacity, we offer practical, compassionate legal support that puts the needs of the protected person first.
Guardianship and Financial Management Orders: Common Scenarios
Cognitive Impairment: When an individual is no longer able to manage their personal and financial affairs due to a cognitive condition such as dementia or Alzheimer’s disease, it is often necessary to apply for both Guardianship and Financial Management Orders. These orders provide a structured and lawful way to ensure that the person’s needs are met and their rights are upheld. For example, a guardian may be appointed to consent to medical treatment, make lifestyle decisions, or coordinate care arrangements. At the same time, a financial manager may be appointed to oversee pensions, bank accounts, bill payments, and property transactions. This dual support structure helps protect vulnerable individuals from financial abuse and ensures their well-being is actively managed.
Sudden Loss of Capacity: In instances where a person suddenly loses capacity, such as through a stroke or traumatic brain injury following an accident, Guardianship and Financial Management Orders can be urgently sought to provide immediate and comprehensive support. These legal instruments enable trusted individuals or organisations to take control of critical decisions without delay. For example, a financial manager can ensure ongoing financial commitments, such as mortgage repayments or aged care fees, are handled efficiently. Simultaneously, a guardian can make decisions about medical treatment, rehabilitation plans, or living arrangements. Together, these orders help safeguard the individual’s interests during a time of unexpected vulnerability.
Legal Terms Related to Guardianship and Financial Management Orders
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Capacity: The ability to understand and make informed decisions about personal or financial matters.
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Guardian: A person appointed to make non-financial decisions (e.g., healthcare, living arrangements).
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Financial Manager: A person appointed to manage financial and legal matters on behalf of someone who lacks capacity.
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Tribunal: A legal body (e.g. NCAT) that determines applications for both Guardianship and Financial Management Orders.
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Best Interests: Acting in a way that prioritises the individual’s needs, preferences, rights, and well-being.
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Enduring Guardian / Enduring Power of Attorney: Legal arrangements made voluntarily by an individual while they still have capacity, to take effect if they later lose it.
Guardianship and Financial Management Orders: FAQs
What is the difference between a Guardianship Order and a Financial Management Order? A Guardianship Order authorises someone to make personal, medical, and lifestyle decisions on behalf of a person who lacks capacity. This may include decisions about healthcare, accommodation, and daily living arrangements. In contrast, a Financial Management Order relates to financial and legal matters, such as managing bank accounts, paying bills, and handling property transactions. Both types of orders can be made at the same time if the individual requires support across multiple areas of life.
Can one person be appointed as both guardian and financial manager? Yes. A tribunal may appoint the same individual to act as both guardian and financial manager if they are deemed suitable for both roles. The person must demonstrate the ability to make sound, fair, and informed decisions across personal and financial matters. This dual appointment can help ensure consistent decision-making and streamlined support for the protected person.
Can Financial Management Orders be revoked? Yes. Financial Management Orders, like Guardianship Orders, are subject to review and can be revoked or varied by the tribunal. If the individual regains decision-making capacity or if the appointed financial manager is no longer suitable, an application can be made to update or cancel the order. Regular reviews help ensure the arrangement continues to meet the person’s needs and best interests.
Do I need legal advice to apply? While legal advice is not mandatory, it is highly recommended. Applying for Guardianship and Financial Management Orders involves completing detailed forms, obtaining supporting documentation, and attending a tribunal hearing. Legal guidance can help ensure that all requirements are met and that your application is properly prepared. This increases the likelihood of a favourable and timely outcome.
How long do Guardianship and Financial Management Orders last? Guardianship and Financial Management Orders generally apply for a specific duration, as determined by the tribunal at the time of granting. They are regularly reviewed to assess whether they are still necessary or need to be modified. If the protected person’s condition improves or circumstances change, the tribunal can amend, suspend, or revoke the orders accordingly. This ongoing oversight ensures the legal arrangements remain fair, effective, and appropriate.
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Disclaimer: Any information found in articles or pages on our website is for general guidance only and should not be considered legal advice. For advice tailored to your specific situation, please contact us directly to speak with one of our qualified legal professionals.
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