Guardianship Disputes at NCAT: Resolving Family Conflicts

Introduction

The Guardianship Division of NCAT resolves disputes over appointing guardians or financial managers. These disputes involve individuals with impaired decision-making. Family members often disagree when a loved one has cognitive impairment, disability, or illness affecting their capacity. Such situations can lead to complex, emotionally charged, and legally intricate family conflicts.

This article explores the common causes of these disputes. It examines NCAT’s methodology for resolving them. It also outlines key considerations in the decision-making process.

Causes of Guardianship Disputes at NCAT

Disputes within the NCAT Guardianship Division often stem from several complex and interrelated factors, presenting challenges for families and the Tribunal in reaching resolutions:

1. Disagreements on Suitable Appointees: Family members may clash over appointing a guardian or financial manager. For instance, one sibling may advocate for their own appointment due to proximity and familiarity, while another emphasises their financial expertise.
2. Concerns About Mismanagement: Allegations of financial mismanagement or exploitation can lead to disputes. A family member might oppose a proposed financial manager if there are past instances of financial irresponsibility, fearing inadequate protection of the individual’s assets.
3. Conflicts of Interest: Potential conflicts arise if a proposed guardian or financial manager stands to benefit personally from their decisions. For example, a guardian who is also an heir might face opposition due to concerns about decisions influenced by personal gain.
4. Historical Family Conflicts: Pre-existing family tensions often resurface during guardianship proceedings. Long-standing rivalries or past grievances can lead to opposition based on personal animosities rather than the individual’s best interests.
5. Lack of Communication: Poor communication among family members can exacerbate disputes. Misunderstandings may occur if family members are not kept informed about the individual’s condition or the decision-making process, leading to conflicts based on incomplete or incorrect information.

NCAT’s Approach to Resolving Family Disputes

Navigating guardianship disputes at NCAT can be challenging for families, especially when emotions run high. NCAT implements a structured and evidence-based framework to address these disputes and ensures decisions prioritise the individual’s best interests.

1. Application and Preliminary Assessment: The process begins with an application to NCAT’s Guardianship Division for guardianship, financial management, or a review of an existing Enduring Power of Attorney (EPOA) or Enduring Guardianship (AEG). Applicants must provide detailed information about the individual’s incapacity, supported by documentation such as medical reports and financial statements.
2. Mediation and Encouraging Family Agreement: NCAT promotes mediation as a cost-effective alternative to formal hearings. Mediation sessions, facilitated by NCAT staff or independent mediators, aim to help families reach an agreement by discussing concerns and exploring solutions that prioritise the individual’s best interests. This approach helps preserve family relationships by fostering open communication.
3. Formal Hearing Process: If mediation fails, a formal hearing is conducted. Parties present their cases with supporting evidence, including expert reports that provide a comprehensive analysis of the individual’s condition. NCAT seeks to include the views and preferences of the individual concerned, ensuring their voice is part of the decision-making process.
4. Determination and Appointment: NCAT prioritises the individual’s best interests in its decision-making. Outcomes may include appointing a suitable family member as a guardian or financial manager. In cases of severe disputes or concerns about mismanagement, NCAT may appoint the NSW Trustee & Guardian to manage affairs impartially. NCAT may also consider appointing multiple family members to act jointly or assigning specific decision-making powers to different parties to reduce conflict.

Key Considerations in NCAT’s Decision-Making

NCAT is crucial in protecting individuals unable to make decisions due to disabilities, as per the Guardianship Act 1987 (NSW). The Act prioritises their welfare and interests while minimising restrictions on their freedom (Section 4).

In guardianship cases, NCAT evaluates the necessity of a guardianship order, considering if informal support suffices. Guardians are chosen based on compatibility and absence of conflicts of interest (Section 17), respecting family ties and cultural backgrounds. NCAT also considers the views of the individual, their spouse, and unpaid carers (Section 14) for a comprehensive decision.

For financial management, NCAT evaluates whether an individual can manage their finances, guided by Section 25G and relevant case law. These cases emphasize assessing whether the person can handle their property and finances without intervention, as highlighted in P v R NSWSC 819. NCAT prefers appointing a family member as a financial manager unless a conflict of interest exists. In more complex cases, it appoints a professional and approves a financial plan through the NSW Trustee & Guardian to ensure sound management

Case Studies

C CKS NSWCATGD 35

In this case, 80-year-old CKS appointed her niece as her enduring guardian in August 2020. Allegations of neglect and abuse led CKS’s sister to seek a review in November 2021. CKS, residing in an aged care facility, expressed fear and dissatisfaction with her niece’s care, suspecting her of alcoholism. The Tribunal found the care inadequate and revoked the niece’s appointment, determining the relationship unworkable. No new guardianship or financial management order was made, as CKS retained decision-making capacity despite her dementia.

ZKN NSWCATGD 34

ZKN, aged 94, appointed her grandson as enduring guardian and attorney in 2021 while hospitalised. Concerns about her capacity prompted a review. The Tribunal criticised the solicitor for not properly assessing ZKN’s capacity or consulting her medical team. It found ZKN lacked the understanding to make such appointments, revoked the grandson’s roles, and appointed the Public Guardian. The estate was placed under the NSW Trustee and Guardian’s management.

NKT NSWCATGD 31

In 2018, 86-year-old NKT appointed her son and daughter-in-law as joint enduring guardians and attorneys. After her husband’s death, her son transferred her assets to himself, raising financial abuse concerns. The Tribunal found NKT had capacity in 2018 but no longer could manage her finances. NCAT issued a financial management order, transferred estate management to the NSW Trustee and Guardian, and recommended recovering misappropriated assets from her son

Conclusion

Guardianship and financial management disputes are complex, requiring careful consideration of an individual’s best interests, especially with cognitive impairment or illness. NCAT protects vulnerable individuals while maintaining family harmony through thorough, evidence-based evaluations of capacity, suitability of guardians, and family dynamics.

NCAT demonstrates its commitment by revoking unsuitable guardians, addressing financial mismanagement, and appointing independent bodies like the NSW Trustee and Guardian when necessary. These actions balance family relationships, individual autonomy, and protection of vulnerable adults, reflecting NCAT’s mandate to act in the individual’s best interests while minimising restrictions on their freedom.

Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.