NCAT guardianship applications in NSW: capacity evidence explained

An NCAT guardianship application asks the NSW Civil and Administrative Tribunal to appoint someone to make personal or lifestyle decisions for an adult with a decision-making disability. Financial matters are dealt with through a separate financial management order.

This guide is for lawyers, health and disability professionals and families in New South Wales. It explains the legal framework, what NCAT must be satisfied of, the Health Professional Report Form, and what makes capacity evidence persuasive.

The NSW legal framework

In New South Wales, guardianship and financial management applications are heard by NCAT’s Guardianship Division. An NCAT overview explains that the Guardianship Act 1987 sets out the Division’s functions and the principles it must apply. The Division also has functions under the Powers of Attorney Act 2003.

The Guardianship Division can:

• make guardianship orders for personal and lifestyle decisions
• make financial management orders
• review enduring guardianship appointments and enduring powers of attorney
• consent to some medical and dental treatment
• approve some clinical trials.

Applications must concern a person who is in NSW, or who has property or financial assets in NSW.

Guardianship orders: what NCAT must be satisfied of

A guardian makes personal and lifestyle decisions, such as where the person lives, what services they use and consent to medical and dental treatment. A guardian cannot manage the person’s money.

According to NCAT’s guidance on guardianship orders, the tribunal must be satisfied that:

1. the person has a decision-making disability
2. because of that disability, the person is partially or wholly unable to manage themselves
3. the person needs a guardian.

NCAT also notes that if informal decision-making, or an enduring guardianship appointment, is already working in the person’s best interests, it may not make an order. Guardianship orders are time-limited and are reviewed.

What “decision-making disability” means in practice

The disability may come from dementia, an intellectual disability, an acquired brain injury, a mental illness or another condition. The diagnosis matters, but the key question is how it affects the person’s ability to make particular decisions. Evidence needs to show that link.

For example, a person with a brain injury might manage daily routines well and speak confidently about their plans. Testing and a careful interview might still show they cannot weigh up risks when choosing where to live. Another person with a similar diagnosis might make that decision well with written information and a support person. The evidence should explain which of these is happening.

Financial management orders and other applications

Financial matters are handled separately. NCAT will only make a financial management order if:

• the person is not capable of managing their affairs
• there is a need for someone else to manage their affairs
• the order is in the person’s best interests.

NCAT can appoint a private financial manager, such as a family member or friend, or the NSW Trustee and Guardian. Evidence for these applications should address financial decision-making specifically, not just general cognition.

Reviews of enduring appointments

NCAT can also review enduring guardianship appointments and enduring powers of attorney. Sometimes the question is whether the person had capacity when they signed. Evidence from around that time, such as medical records, the lawyer’s file notes and any assessment done then, is especially valuable. A retrospective opinion from a neuropsychologist can help, but it should explain its limits and the records it relies on.

The Health Professional Report Form and other evidence

NCAT provides a Health Professional Report Form. The current version asks about:

• the person’s conditions, such as dementia, intellectual disability, brain injury or mental illness
• how severe the condition is and how it is likely to progress
• how the condition affects decisions about accommodation, care and services
• how it affects health and medical decisions
• how it affects financial affairs
• whether the person’s cognitive ability has been assessed, with copies of any reports.

A neuropsychological report is one way to answer that last question in detail. It can sit alongside a GP or specialist report and give the tribunal a fuller picture.

What makes capacity evidence persuasive

The NSW Capacity Toolkit, published by the Department of Communities and Justice, sets out principles that apply to any capacity assessment in NSW:

• always presume a person has capacity
• capacity is decision-specific
• do not assume a person lacks capacity based on appearances
• assess the person’s decision-making ability, not the decision they make
• respect the person’s privacy
• substitute decision-making is a last resort.

Evidence that reflects these principles is more likely to help the tribunal. In practice, a persuasive report will:

• identify the condition and how it was diagnosed
• address each area of decision-making separately, such as accommodation, health care and money
• explain which abilities are affected, such as memory, planning, reasoning or insight
• give concrete examples from the assessment and from daily life
• describe supports tried and whether they helped
• record the person’s own views and wishes
• say whether capacity may change and when a review would make sense
• set out the reasoning behind each opinion.

Common gaps in evidence

• A diagnosis with no explanation of how it affects decisions.
• A global statement that the person “lacks capacity” for everything.
• Reliance on a single brief screening test.
• Out-of-date information about a condition that has changed.
• No discussion of informal supports or less restrictive alternatives.

When a neuropsychological assessment helps

A neuropsychologist (a psychologist with specialist training in brain and behaviour) combines a detailed interview with standardised tests. This can be particularly useful when:

• the person presents well socially but struggles with complex decisions
• there is an acquired brain injury, early dementia or a mild intellectual disability
• family members, services or clinicians disagree about the person’s abilities
• capacity appears to fluctuate
• an order is being reviewed and the person’s abilities may have improved.

The Capacity Toolkit suggests seeking a specialist assessment where there is a dispute, family disagreement or a serious decision.

The hearing

NCAT explains that most Guardianship Division hearings are heard by a three-member panel. It is chaired by a lawyer and includes a professional member with experience in the treatment and assessment of people with decision-making disabilities, and a community member.

The person the application is about can take part and have their views heard. Clear, well-reasoned written evidence helps the panel focus on the real issues during what is often a short hearing.

How Invictus Health can help

Our neuropsychologists provide decision-making capacity assessments that can support NCAT applications, reviews of orders and reviews of enduring appointments. For disputed matters we also provide medico-legal assessments. Neuropsychology reports are reviewed by Dr Judy Tang OAM.

We have assessment clinics in NSW and across Australia. Please contact us to discuss a referral. This article is general information and is not legal advice. Please get advice from a qualified professional about a specific application.