Disability and the Law
CLCNSW 2010 State Conference
Disability and the law – Guardianship and Financial
Management
Ben Fogarty
Acting Director of Pro Bono
5 May2010
Purpose
• To let CLC solicitors know:
– a bit about guardianship and financial management
– what resources are available
– that Guardianship Tribunal work is not rocket
science, is rewarding and needs more CLC
solicitors!
Liability limited by a scheme approved under Professional Standards legislation
NSW CLCs State conference talk 5 May 2010.pptx | Title | March 2010
page | 3
A bit about guardianship and financial
management law
• My experience
• Some people need some support for some decisions
sometimes
• Legal capacity as a sliding scale
• Holistic assessment, not just ‘medical’
• Formal orders –vs- informal arrangements
• Other mechanisms – PofAs, advance directives,
enduring guardianship, etc
NSW CLCs State conference talk 5 May 2010.pptx | Title | March 2010
page | 4
A bit about guardianship and financial
management law (cont’d)
• Guardianship order:
– impaired decision making
– totally/partially incapable of managing affairs
– in need of a guardian
• Functions: accommodation, services, work, health
care, restrictive practices, etc
NSW CLCs State conference talk 5 May 2010.pptx | Title | March 2010
page | 5
A bit about guardianship and financial
management law (cont’d)
• Financial management order:
– not capable of managing (financial) affairs
– in need of a financial manager
– in the person’s best interests
• Functions: income, bills, investments, budget, etc
NSW CLCs State conference talk 5 May 2010.pptx | Title | March 2010
page | 6
A bit about guardianship and financial
management law (cont’d)
• The Guardianship Tribunal process:
– application
– investigation
– hearing
– review of order (not always automatic)
• Legal representative –vs- separate representative
NSW CLCs State conference talk 5 May 2010.pptx | Title | March 2010
page | 7
What resources are available
• Guardianship and administration laws across
Australia, 2010 (IDRS website: www.idrs.org.au)
• Capacity Toolkit, 2008 (NSW A-Gs)
• Papers – e.g. Andrew Taylor’s LSJ article,
Representing clients with diminished capacity, Feb
2010
• NSW Guardianship Tribunal’s Information Officer and
Practice Note
• Me!
NSW CLCs State conference talk 5 May 2010.pptx | Title | March 2010
page | 8
Guardianship Tribunal work NEEDS you!
• Growing area – ageing population – dementia 50%
• Vulnerable people who need legal representation
• Non-adversarial and informal
• Can largely be done on the papers
• Slow burning
• A well-structured and supportive jurisdiction
NSW CLCs State conference talk 5 May 2010.pptx | Title | March 2010
page | 9