Lawyers for guardianship, what can they do for you? To learn more about guardianship and its legal implications, keep on reading this article.
In Australia, the term "guardianship" refers to a legal procedure wherein one individual (the guardian) is designated to make decisions on behalf of another individual (the ward) who is incapable of making decisions for themselves. Age, disease, or an intellectual handicap (mental illness) are some of the possible causes of this disability.
Depending on the form of guardianship given, the guardian's job is to manage certain parts of the ward's life while acting in their best interests.
Administrator vs Guardian
So, what's the difference between these two terms? An administrator usually has authority to make decisions about the person's finances, which may include managing bank accounts, property, investments, and insurance payouts. A guardian usually has authority to make decisions about a person's lifestyle such as where the person should live, what services they should access and what medical treatments they require.
Both of these may be the same person. In others, two different people may take on each role. In the case where two different people are acting as Guardian and Administrator, they are legally obligated to work together and inform each other about any major decisions regarding the protected person's finances of health.
Types of Lawyers for Guardianship
There are three types of guardians that may be appointed:
- Enduring guardian. If a person with the capacity to make decisions chooses to designate a close friend or family member as their Enduring Guardian, that person may legally designate that person to make lifestyle, healthcare, and medical treatment on their behalf should the person loses capacity to do so.
- Private guardian. A court or tribunal may appoint a Private Guardian on behalf of an individual who lacks the capacity to make decisions for themselves, did not designate an Enduring Guardian, and cannot be assisted in making decisions for their own affairs.
- Public guardian. The Public Guardian will be chosen by a court or tribunal to make choices on behalf of an individual who has lost the ability to make lifestyle, healthcare, and medical decisions for themselves, who did not designate an Enduring Guardian, and who does not have a suitable family member, close friend, or unpaid carer available to serve as the Private Guardian.
Guardianship Process in Australia
Here's the process on how to appoint a guardian:
- For enduring guardianship:
- Submit your request for appointment.
- Read the Wills and Estate Planning Appointment Guide.
- Pay the corresponding fee of AUD 231.
- For public and private guardianship:
- Complete the guardianship and administration applications form.
- Submit the completed form to NSW Civil and Administrative Tribunal's Guardianship Division:
- In person:
NCAT Guardianship Division
Level 6 John Maddison Tower
86-90 Goulburn Street, Sydney
- By post:
Guardianship Division
NSW Civil and Administrative Tribunal
PO Box K1026
Haymarket NSW 1240
READ: How To Become a Legal Guardian
Lawyers for Guardianship: Services Offered
Lawyers for guardianship play an important role in establishing guardianship. They ensure that the process is smooth and protects the best interests of the individual who may need a guardian (often referred to as the "ward"). Here's a breakdown of their key functions:
- Guiding You Through the Process. Lawyers for guardianship can explain the different types of guardianship and advise on what's most appropriate for your situation. Moreover, the guardianship process involves various legal documents and court filings. Lawyers ensure these are completed accurately and meet all court requirements.
- Strong Representation in Court. In case the situation requires representation in court, lawyers for guardianship will effectively advocate for your rights and legal remedies, presenting evidence and arguments to the court. If there are objections to the guardianship from family members or other parties, your lawyer will defend your position in court.
- Protecting the Ward's Interests: The lawyer ensures the court prioritises the well-being and best interests of the ward throughout the proceedings. In some cases, lawyers for guardianship may assist with managing the ward's financial affairs or legal matters on an ongoing basis.
Lawyers for Guardianship: Qualities Checklist
Getting a lawyer is one thing but getting the best and trustworthy one is another thing. While there's no single "must-have" list, here are some key qualities to prioritise when searching for a guardianship lawyer:
- Guardianship law experience. This is non-negotiable. Look for a lawyer who has demonstrably handled guardianship cases before. Experience translates to a smoother process and a lawyer well-versed in the specific legal nuances of guardianship.
- Knowledge of NSW laws. Guardianship laws vary by state/province. Make sure that the lawyer has a thorough understanding of the guardianship laws in NSW that are applicable to your situation.
- Strong communication skills. Clear and regular communication is essential. Look for a lawyer who explains complex legal matters in an understandable way, actively listens to your concerns, and keeps you updated on the case's progress.
- Attention to detail. Guardianship involves meticulous handling of paperwork and court filings. A lawyer with a keen eye for detail ensures everything is accurate and avoids potential delays due to errors.
Questions to Ask a Lawyers for Guardianship
You must come prepare for your consultation session with a guardianship lawyer. So, here are some questions that can guide you throughout your meeting:
- What are the different types of enduring powers of guardianship, and which one might be appropriate in my situation?
- What is the typical timeline for establishing guardianship in NSW?
- What steps will you take to prepare the case for court?
- What are your fees associated with guardianship appointments?
- Do you offer a flat fee or hourly billing?
- Are there any additional costs I should be aware of (e.g., court filing fees, expert witness fees, guardianship order fees)?
- How will you keep me informed about the progress of the case?
- How readily available will you be to answer my questions and address my concerns?
- What is your typical communication style with clients regarding guardianship matters and other matters (e.g., email, phone calls)?
- Based on your experience, what are the potential challenges we might face in establishing guardianship?
- Do I need to file for an enduring power of attorney?
- How will you ensure the best interests of the ward are prioritised throughout the process?
- If there are objections to the guardianship, how will you represent my position in court?
Consider bringing relevant documents to the consultation, such as any medical records or existing legal documents related to the potential ward. This can help the lawyer understand your situation more comprehensively and provide more specific advice.
Remember, the consultation is an opportunity for you to assess the lawyer's fit for your guardianship and administration matters. Don't hesitate to ask additional questions that arise during the conversation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.