Why have a will – Article 3 – Protect and provide for your family member with a disability

To the parents and carers of a family member with a disability, the single most concerning issue in respect of their own mortality is the welfare of that person when they’re no longer capable of looking after them on a day-to-day basis (“Who will look after [him/her] when I’m not around any more?”). Perhaps another family member will be prepared to step into the breach and take on this responsibility and, that being the case, that’s great, but formal arrangements will still need to be made so that the person stepping into the role of carer/guardian has the appropriate legal and financial authority effectively to fulfil the role. On the other hand, what if no-one else is available (or prepared) to take on the role of carer/guardian of the person with the disability – what happens then? If no-one else is available and/or willing to take on this role (or if the only person available is for some reason inappropriate or unsuitable, then the Guardianship Tribunal – a legal tribunal established under the NSW Guardianship Act (1987) – can hear and determine applications for the appointment of guardians and financial managers for adults with decision-making disabilities. The Tribunal can also:

• Review the guardianship and financial management orders it makes;
• Review enduring powers of attorney and enduring guardianship appointments;
• Provide consent to medical or dental treatment; and/or
• Approve a clinical trial so that people with decision-making disabilities can take part.

The Public Guardian (often referred to as the “OPG” – Office of the Public Guardian) promotes the rights and interests of people with disabilities through guardianship, advocacy and education. The Guardianship Tribunal appoints the NSW Public Guardian as guardian of last resort and the Public Guardian then acts as a substitute decision-maker for people under his or her guardianship. Some people may be happy at the prospect of the affairs of their family member with a disability being put in the hands of a State Government instrumentality – many, having devoted much of their lives to the care and guardianship of this person, may not. However, unless you have a current Will in place that is both valid and appropriate, and you have made provision in it for the care, maintenance and support of your disabled family member, it may well be that this person will be cared for – for good or ill – by just such an instrumentality, and you and your family will have no say in the matter at all.