Whilst there is no definitive definition regarding mental capacity in New South Wales the British criteria is very useful. You have mental capacity when you:

  1. Understand information given to you about a particular decision;
  2. Retain that information long enough for you to be able to make the decision;
  3. Weigh up the information available to make the decision;
  4. Communicate your decision.

The most common reasons why people lose mental capacity are through strokes, dementia and brain injury. Once you have lost mental capacity you lose the capacity to control your life and make decisions. In the absence of an Enduring Power of Attorney, Enduring Guardian and an Advanced Health Directive (AHD), an application must be made to the New South Wales Civil and Administrative Tribunal (NCAT) for the appointment of a guardian under the Guardianship Act 1987 to make personal and lifestyle decisions on your behalf. If financial decisions need to be made the Tribunal can appoint someone as a financial manager. All too often in matters of trauma, where urgent medical treatment is required a hospital or your loved one may have to make an urgent application to provide medical treatment, as all medical treatment must take place only by authority.

To make a guardianship order, NCAT must be satisfied by the evidence before it that:

  1. the person the application is about has a decision-making disability
  2. the disability results in the person being partially or wholly incapable of managing themselves; and
  3. there is a need for the person to have a guardian appointed.
  4. If the person already has informal decision making or an enduring guardianship appointment in place that are working in their best interests, NCAT may not make an order.

To safeguard you and your family it is prudent to have an Enduring Power of Attorney and an Enduring Guardian with an AHD. If you care about your family and wish to have peace of mind, please contact me.


0419 233 670


Published On: November 15th, 2021 / Categories: Family Law /

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