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S32 Step By Step Guide

Does your client have an appointed guardian?

A guardian is a legally appointed substitute decision maker. Under the Guardianship Act 1987 (NSW), the Guardianship Tribunal of NSW can appoint a guardian for a person who has a disability and is over the age of 16. The kinds of decisions the Tribunal can authorise a guardian to make include decisions about accommodation, what support services a person should receive, what medical and dental treatment and health care a person should receive, and whether restrictive practices are justified and necessary in the interests of the person.

The Tribunal may appoint a private person or the Public Guardian. The Tribunal also has jurisdiction to appoint a private person or the NSW Trustee and Guardian as a financial manager for a person who is incapable of managing their financial affairs.

Most adults with intellectual disability will not have an appointed guardian. A significant proportion of clients who are repeatedly charged with criminal offences have had a guardian appointed at some stage. It is important to establish whether or not your client does have a legal guardian. If your client is uncertain about this, you can contact the Guardianship Tribunal.

Depending on what decision-making authority the guardian has, it may be important to consult the guardian when preparing a section 32 application. The fact that your client has an appointed guardian may be considered relevant by the magistrate when considering the application.

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