Guardianship disputes:

Guardianship is where a guardian is appointed to make decisions about the welfare of another. The power of a guardian extends to the making of decisions about where the person shall live, necessary services (eg attending nurses/ rehabilitation providers) and the medical and dental care required.

A guardian can be appointed in the following ways:

1. By an Order of the Family Court with respect to children under the age of 18 years;
2. Under an Enduring Guardianship where a person appoints their own guardian; or
3. By an order from the NSW Civil and Administrative Tribunal ("NCAT") in its Guardianship Division.

Minors

Under a Will, a parent may appoint a guardian to care for their children until they attain the age of 18 years, however, many parents fail to express this intention in their will. The appointment of a guardian over a minor is not binding until an order of the Family Court is obtained.

Disputes often arise between family members about who should be a child's guardian. An application made to the Family Court about orders for guardianship may bring to light such a dispute and other parties may seek to contest this application. During Family Court proceedings, there is usually an opportunity to engage in court ordered alternative dispute resolution processes such as mediation. Mediation is also available should the parties independently agree to participate.

Enduring Guardianship

Disputes can arise about who a person has appointed to be their guardian should they lose the capacity to look after themselves, or, in the alternative, where no guardian has been appointed and decisions need to be made.

Where there is a dispute, you may be able to make an application to NCAT.

Prior to, and during any NCAT proceedings, it is possible for the parties to participate in alternative dispute resolution such as conciliation. NCAT usually encourages the parties to attend conciliation at the first listing date to see if the dispute can be resolved independently and without the parties deferring to NCAT to make the decision.

If you wish to speak with one of our Guardianship Lawyers, please contact our firm by telephone on (02) 9233 4048 or send an email to info@navado.com.au to book an appointment. 

This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.