Guardianship Division Case Digest Issue 1 of 2026 | The Guardianship Division Case Digest provides a summary of relevant and interesting case law of significance to the work of NCAT's Guardianship Division.
This issue features case summaries of decisions from the Guardianship Division, NCAT Appeal Panel, and NSW Court of Appeal. | | NCAT Guardianship Division | Vanessa (a pseudonym) [2026] NSWCATGD 8 R H Booby, Principal Member, Dr B McPhee, Senior Member (Professional), E Cornwell, General Member (Community) - 26 May 2025
In Sum: The Tribunal found that the administration of certain oral cannabinoids (cannabidiol (CBD) and delta-9-tetrahydrocannabidinol (THC)) did not constitute “special medical treatment”. However, the Tribunal found administration of a different type of oral cannabinoid (cannabigerol (CBG)) was an “experimental treatment” and therefore constituted special medical treatment. The Tribunal consented to the administration of cannabigerol to the person the subject of the application (CBG).
Facts: Vanessa is an 84-year-old woman who lives in a residential aged care facility in regional NSW. Vanessa has dementia, anxiety and sleep disturbance. Dr Stephen, Vanessa’s general practitioner, sought consent from the Tribunal to prescribe various oral cannabinoids to her. At the same time the Tribunal heard an unrelated application to review and vary an enduring guardianship instrument made by Vanessa in 2024 to enable the guardians to consent to the restrictive practice, chemical restraint.
Issues and outcome:
(i) The Tribunal considered whether each of the proposed oral cannabinoids constituted “special treatment” under s 33(1) of the Guardianship Act 1987 (NSW (the Act)). Dr Stephen proposed to trial three different types of cannabis products at varying dosages, being CBD, THC and/or CBG. To be “special treatment”, the proposed treatment had to fall into one of two categories of special treatment described in the legislation, either as:
a special treatment of the kind described in paragraph (b) of the meaning of special treatment given in s 33(1) of the Act (“new treatment”); or a kind of “experimental” special treatment of the kind considered in reg 14(a) of the Regulations, and therefore special treatment for the purposes of paragraph (c) of the definition in s 33(1) of the Act (“experimental treatment”).
(ii) The Tribunal has previously considered whether to consent to the use of cannabinoids. In EFC [2020] NSWCATGD 27 the Tribunal decided that the proposed THC treatment fell under the category of a “new treatment” and was therefore “special treatment”. In the more recent Grace (a pseudonym) [2023] NSWCATGD decision, the Tribunal also considered an application for the administration of THC. However, it decided that THC was not special medical treatment as the treatment was neither “experimental” nor “new”, as it now had the support of many practitioners in pain relief.
(iii) The Tribunal found that the CBD/THC treatment proposed by Dr Stephen was not “special treatment” as it was neither “new” nor “experimental”. Alongside guidelines published by the Therapeutic Goods Administration (TGA), NSW Health and Queensland Health, the Tribunal accepted Dr Stephen’s evidence that he had prescribed the medication for an extensive period of time and that it had an “established use” status in Australia and was accepted by a substantial number of general practitioners. The treatment was not considered “experimental” as his proposed treatment plan did not fall outside the usual mode of practice. Consent to provide the treatment was therefore not required.
(iv) With respect to the administration of CBG products, the Tribunal noted that the available evidence indicated that CBG was an emerging area of cannabis prescribing, and it was being used in conjunction with CBD and THC to increase their effectiveness. CBG had only recently been separately listed by the TGA in recent years and there were no prescribing guidelines currently in existence. Based on this information the Tribunal found that it was an “experimental” treatment.
(v) In deciding whether to consent to the administration of CBG products, the Tribunal considered the matters in s 42(2) of the Act including whether Vanessa was incapable of providing consent to the use of CBG, the purpose of the proposed treatment, and the risks and alternative options. The Tribunal decided to consent to the treatment.
(vi) The Tribunal also decided to vary the enduring guardianship appointment by adding a restrictive practice, chemical restraint function. The application requesting that variation was unrelated to the special medical consent application. | Tom (a pseudonym) [2025] NSWCATGD 18 J Toohey, Senior Member (Legal), M J Staples, Senior Member (Professional), D R Sword, General Member (Community) – 25 November 2025
In Sum: The Tribunal declined to exercise its discretion to review the making and operation and effect of an enduring power of attorney following the principal’s death.
Facts: In late 2007, Tom (the principal) appointed his stepson, Ray, as his sole attorney under an Enduring Power of Attorney (EPoA). Relevantly, the EPoA did not permit any gifts to be made to Ray. Ray claimed that he began acting under the EPoA in 2017, as Tom’s wife had managed his finances before that. Tom died in 2022.
In late 2024, three of Tom’s grandchildren (the applicants) made an application to NCAT requesting review of the EPoA. The applicants claimed that, between 2017 and 2022 when acting as an attorney, Ray made unauthorised withdrawals from Tom’s bank accounts of around $40,000, including payments to himself which he called “compensation” and “historical compensation”. Ray had failed to account for these transactions.
The applicants sought orders under s 36(4)(e) of the Powers of Attorney Act 2003 (NSW) (POA Act) that:
Ray furnish accounts and other information to a person nominated by the Tribunal or to the Tribunal, Ray lodge with a Tribunal a copy of all records and accounts kept by him of dealings made by him under the power, and the records or accounts be audited and a report of the auditor furnished to the Tribunal.
Issues and outcome:
(i) Section 36(1) of the POA Act provides that the Tribunal may, on the application of an interested person, review the making or operation and effect of a power of attorney. Citing Parker v Higgins [2012] NSWSC 1516 at [109], the Tribunal said s 36 of the POA Act requires the Tribunal to exercise two successive discretions: first, to decide whether or not to conduct a review of the EPoA, and, second, if the Tribunal decides to conduct a review, whether or not to make any form of order under s 36 of that Act. Despite Tom’s death (and the consequent termination of the EPoA), the Tribunal concluded it retained jurisdiction to review the operation and effect of EPoA and to make orders, “if to do so would better reflect the wishes of the deceased prior to his death”: at [20].
(ii) The applicants submitted that Ray had misappropriated around $40,000 from Tom’s accounts over a six-year period, and that he had failed to provide transparency around these transactions. Their concerns included a series of transactions which did not match the transaction descriptions on Tom’s bank account, missing bank statements and the “concerning” transactions labelled as “compensation” to Ray. The applicants said that Tom did not have capacity to agree to any of these transactions. They also said that Ray had denied them access to Tom’s bank statements and medical records.
(iii) Ray claimed that Tom had capacity to provide him with instructions up until his death and that he had authorised all transactions verbally. Ray had had a close relationship with Tom and his late wife and had helped them with domestic tasks since around 2000. Following Tom’s move to an aged care facility, Ray paid all of Tom’s bills to the care facility and his phone, and all expenses on outings. Tom had also authorised Ray to buy gifts, purchase clothes for himself, pay for food, medical expenses and outings. On occasion, Ray would use his own funds for the outings and reimburse himself at a later date, which he labelled “historical compensation”. Ray said that he was unaware that he was required to keep records or receipts of these transactions. Ray also denied refusing Arthur, one of the applicants, access to Tom’s bank or medical records.
(iv) After a general review of the evidence, the Tribunal decided not to exercise its discretion to conduct a review of the EPoA. There was no independent evidence that, as contended by the applicants, Tom had lacked capacity to provide the instructions that Ray said he did. The evidence submitted by the applicants, including a photograph of Tom and a transcript of a conversation purported to have occurred between Tom and Ray, was also given little weight: at [64]-[67]. Other claims made by the applicants, such as Ray refusing to provide access to medical records, were denied by Ray and there was no evidence to support this claim: at [64].
(v) In addition, the Tribunal decided not to exercise its discretion to make orders under s 36(4)(e) of the POA Act on the grounds that to do so would better reflect Tom’s wishes before he died. The Tribunal said it can be inferred from Tom’s willingness to allow Ray to manage his financial affairs including operating his bank accounts that he would not want the Tribunal intervening as the applicants request. It noted the close relationship of trust between Ray and Tom and the fact that Tom had appointed Ray as his attorney in 2007 and as executor and trustee of his Will in 2010 when he did have capacity to do so. Conducting a review would also be “largely futile” as there did not appear to be further or better records to be produced and ordering an audit was unlikely to “advance matters much further than what is already before the Tribunal”: at [79]. The Tribunal decided to dismiss the application for review. | Thomas (a pseudonym) [2025] NSWCATGD 22 K A McMahon, Senior Member (Legal), A M Matheson, Senior Member (Professional), Dr M Spencer, General Member (Community) – 16 December 2025
In Sum: The Tribunal decided that a solicitor acting for the owners of a strata plan had standing to bring an application for a financial management order. The Tribunal was satisfied that the subject person was incapable of managing his financial affairs on the basis that he had not paid strata fees for an extended period of time.
Facts: Thomas is in his late 70s and lives alone in a unit (the property) owned by the estate of his late mother. Thomas’s mother died in 2009. Thomas is her only child and the executor and sole beneficiary of her estate. Thomas also owns his own property in South Sydney. The applicant, a solicitor for the owners of the strata plan for the property, brought an application for financial management for Thomas, claiming that Thomas had not paid strata levies on the property and that he is not managing his affairs capably. The applicant sought orders that the management of Thomas’s estate be committed to the NSW Trustee and Guardian.
Issues and outcome:
(i) The Tribunal considered whether the applicant had standing to bring the application, that is, whether he was a person with “a genuine concern for the welfare of the person”: the Act, s 25I(1)(c). Applying Julie (a pseudonym) v John (a pseudonym) [2024] NSWSC 964, the Tribunal said that a “genuine concern for the welfare of the person” required:
“that the applicant is bringing to the attention of the Tribunal a fact situation in which the subject person’s interests may call for intervention by the Tribunal; that the applicant is sincere in seeing the situation as one that may call for the intervention of the Tribunal in the interests of the person; and that the application is motivated by a desire to advance the welfare of the person”.
(ii) The Tribunal considered evidence that Thomas had a history of poor financial dealings which included a failure to pay strata fees for his own property, as well as his mother’s property, and being the subject of bankruptcy proceedings to recover strata levies on both properties also. The applicant said he had known Thomas since 2023, when bankruptcy proceedings were commenced by the owners corporation against Thomas’s mother’s estate. Apparently, the appointed Trustees in Bankruptcy of the estate had difficulty contacting Thomas. As part of investigations undertaken by the Trustees in Bankruptcy, a consultant had visited Thomas at the property in 2023, and Thomas had informed the consultant that he had medical issues and was unable to progress his financial matters. There was no medical or other evidence about Thomas’s general living circumstances or health. Thomas did not appear at the hearing or submit any evidence.
(iii) The Tribunal was satisfied that the applicant had a genuine concern for Thomas’s welfare. Whilst noting that a key motivation was to recover unpaid strata fees, the Tribunal was also satisfied that he was bringing to the Tribunal’s attention a situation which was detrimental to Thomas, namely, the potential for accumulation of further debt and further bankruptcy proceedings. The Tribunal clarified that “there is not necessarily a requirement that an applicant be only focused on the interests of the person the subject of the application” and that “the test turns more on concern as opposed to motivation”: at [30]. It also noted that Thomas’s purported level of dysfunctionality raised concerns about his ability to manage other aspects of his affairs more broadly: at [31].
(iv) The Tribunal was satisfied that Thomas is not capable of managing his financial affairs. In addition to the factors outlined above, the Tribunal considered it relevant that Thomas had continued not to pay his strata fees once the debt was clear. The Tribunal also noted that Thomas did not have a telephone or use the internet (and was therefore extremely difficult to contact). In its totality, the evidence established that Thomas was “lacking the functional capacity to address the issues requiring management and this is operating adversely to his best interests”: at [46]. The Tribunal made a financial management order and committed Thomas’s estate to the management of the NSW Trustee and Guardian. | Craig (a pseudonym) [2025] NSWCATGD 23 N Jones, Senior Member (Legal), Dr M J Corr, Senior Member (Professional), M Black, General Member (Community) – 13 October 2025
In Sum: The Tribunal declined to make a guardianship or a financial management order for the subject person solely to enable the subject person’s decision-maker to instruct a legal representative on his behalf.
Facts: Craig is an 18-year-old Aboriginal man who has autism, intellectual disability, obsessive-compulsive disorder (OCD) and epilepsy. Craig lives with his mother, who acts as his informal decision-maker. Craig’s mother applied for guardianship and financial management orders for Craig, seeking to be appointed as his guardian and financial manager. She sought a legal services function to be able to commence personal injury proceedings on behalf of Craig, and to “agree to a settlement” on Craig’s behalf.
Issues and outcome:
(i) The Tribunal preliminarily considered whether it could make a guardianship and/or financial management order for Craig and was satisfied that Craig has a disability and is at least in part unable to make major lifestyle decisions for himself, or to manage his financial affairs. He is therefore a person for whom the Tribunal could make a guardianship and/or a financial management order.
(ii) The Tribunal considered the purpose for which the orders were sought and decided not to exercise the discretion to make either a guardianship order or a financial management order. The mother said that she did not have any difficulty making personal decisions or financial decisions for Craig; however, she was under the belief that she required an order from the Tribunal to commence civil proceedings on Craig’s behalf and to instruct lawyers. The Tribunal noted that a guardianship order with a legal services function does not give the guardian the power to instruct a legal representative: at [27]. Further, there was no utility in making a financial management order where proceedings had not yet been commenced and a settlement had not yet been reached. To do so would also subject the mother to unnecessary oversight by NSW Trustee and Guardian and require the payment of fees from Craig’s estate.
(iii) If the mother wished to commence proceedings on Craig’s behalf, she could apply to be his tutor under the Uniform Civil Procedure Rules 2005 (NSW). The Tribunal was not otherwise satisfied that “making either a guardianship or a financial management order at this time would be in the best interests of Craig, nor would such orders presently serve any real purpose”: at [34]. The applications were dismissed. | Fiona (a pseudonym) [2026] NSWCATGD 1 S L Handebo, Principal Member – 17 February 2026
In Sum: At a Directions hearing a company operating a residential aged care facility was found to be a “person” who could bring an application for financial management under the Guardianship Act. The company was also found to have a “genuine concern” for the welfare of the person.
Facts: HammondCare, a registered company and charity, made a financial management application for Fiona, an 82-year-old woman who lives in a residential aged care facility operated by HammondCare. HammondCare claimed Fiona had not paid her accommodation fees and other expenses for an extended period of time, and that attempts to resolve the issue had been unsuccessful.
In previous decisions the Tribunal found that HammondCare Health and Hospitals Limited have standing to make guardianship and financial management applications: Carl (a pseudonym) [2024] NSWCATGD 25. HammondCare Health and Hospitals Limited are separate entities to HammondCare.
Issues and outcome:
(i) The Tribunal firstly considered whether HammondCare is a "person" who could be considered to have standing to bring an application under the Guardianship Act. In accordance with previous decisions of the Tribunal, the Tribunal decided that a corporation may be a “person” who has standing to bring an application before the Tribunal under Sch 4 of the Interpretation Act 1987 (NSW) (and previously, under s 21 of that Act).
(ii) The Tribunal then considered whether HammondCare had standing to bring the financial management application for Fiona, that is, whether in the opinion of the Tribunal, it had a genuine concern for the welfare of Fiona: the Act, s 25I(1)(b). Whilst noting the motivation to recover its outstanding debt, the Tribunal was also satisfied that HammondCare had a genuine concern for Fiona, chiefly in relation to the use of Fiona’s funds. HammondCare said that there was a lack of transparency around how Fiona’s aged care pension was used as it did not appear to be used to pay her accommodation or other costs, nor to give Fiona any discretionary funds. Further, it said that the likelihood of HammondCare recovering its fees was low. The Tribunal was satisfied that HammondCare’s primary motivation in bringing the application was to promote Fiona’s welfare and interests and decided that it had standing to bring the application. | Sophie (a pseudonym) [2026] NSWCATGD 2 S L Handebo, Principal Member, Dr M J Corr, Senior Member (Professional), R K Richter, General Member (Community) – 2 January 2026
In Sum: Section 37 of the Act does not prevent the Tribunal from exercising its discretion to make an order consenting to medical or dental treatment under s 44 of that Act. The Tribunal consented to a surgery and an intraoperative blood transfusion for a 24-year-old woman in circumstances where her parents were followers of the Jehovah’s Witness faith and had objected to the use of blood products.
Facts: Sophie is a 24-year-old woman with moderate/severe Down syndrome. Sophie purported to appoint her parents, Daniela and Connor, as her enduring guardians in 2020 (2020 EGA). Sophie was raised in the Jehovah’s Witness faith, and her parents are also Jehovah’s Witnesses.
The proceedings before the Tribunal arose in the context of Sophie requiring laparoscopic assisted rectopexy with mesh to manage external rectal prolapse at the Royal Prince Alfred Hospital (RPA) in Sydney. Daniela and Connor had consented to the surgery; however, they had not consented to the administration of blood products during the surgery, should that be clinically necessary, on account of their religious beliefs. The issue of consent for the administration of blood products was the central issue in the proceedings.
The trigger for the application for a guardianship order made by Daniela in mid-2025, was the decision by RPA to deem 2020 EGA as being invalid. The Tribunal subsequently received an application for consent to medical or dental treatment from the Sydney Local Health District (SLHD), for the proposed surgery.
Issues and outcome:
(i) The Tribunal decided to exercise the discretion to review the appointments of Daniela and Connor under the 2020 EGA on its own motion notwithstanding an application for a review of the 2020 EGA was not made: the Act, s 6J. The Tribunal was satisfied that Sophie would have been incapable of understanding the effect of the 2020 EGA at the time that it was made due to her disability: at [30]. The Tribunal held that revocation of the instrument was consistent with Sophie’s best interests, as:
“it would not be in Sophie’s interests for future treatment to be delayed on account of concerns about the validity of the consent provided (or withheld), nor would it be in Sophie’s interests to enable a situation to continue where an enduring guardian may purport that they have authority to make decisions on Sophie’s behalf where such authority has never been validly granted”: at [32].
The 2020 EGA was revoked.
(ii) The Tribunal made some initial observations as to Sophie’s faith. It was unable to find that Sophie held the same religious beliefs as her parents, and specifically that she subscribed to the tenets of the Jehovah’s Witness faith that would preclude her from receiving blood or blood products. There was no evidence before the Tribunal sufficient to find that Sophie had expressed her own informed views about her religious beliefs, and the evidence supported a finding that Sophie was unable to form these views due to her disability.
(iii) The substantive dispute before the Tribunal was whether s 37 of the Act, which enables a medical practitioner to provide “urgent” medical treatment without consent, obviated the need for the Tribunal to provide consent to the surgery and the administration of blood products. There was a low risk that Sophie might experience a post-surgical “slow bleed”, in which event she would require the administration of blood products via a blood transfusion. Daniela submitted that s 37 of the Act could be relied upon by Sophie’s treating surgeon to provide her a blood transfusion if it became clinically necessary and that consent from the Tribunal was therefore unnecessary. Conversely, the SLHD submitted that s 37 of the Act did not preclude the Tribunal from making orders consenting to the proposed treatment, in accordance with the approach in H v RJ [2024] NSWSC 1404.
(iv) The Tribunal was not satisfied that s 37 of the Act could provide an appropriate safeguard to ensure that Sophie received necessary and appropriate medical treatment. The Tribunal interpreted “urgent” treatment under s 37 of the Act as requiring the treatment to be urgent at the time it is administered, rather than being pre-emptively or preventatively administered to avoid the subsequent need for treatment once it has become clinically urgent: at [55]. There was a significant risk that, in the event of a post-surgical slow bleed, s 37 of the Act would not enable the administration of a blood transfusion until such time as Sophie’s condition became clinically urgent, and her health would be allowed to significantly deteriorate in the meantime: at [61].
(v) In any case, the Tribunal’s power to provide consent under s 44 of the Act was not hampered by s 37 of that Act. The Tribunal explained that s 37 of the Act is a defence available to a medical practitioner against any offences arising under s 35 of that Act and determining whether the defence may be available is an entirely different consideration from whether the Tribunal should provide consent to treatment under s 44 of that Act: at [59]. That is:
“when considering whether it ‘is satisfied that it is appropriate for the treatment to be carried out’, the Tribunal’s consideration of whether or not a medical practitioner could rely on a defence under s 37 of the Act is secondary to whether or not consent to the proposed treatment would best promote the patient’s welfare and interests consistent with the general principles under s 4 of that Act and the objectives under s 32 of that Act”: at [62
(vi) The Tribunal therefore considered whether it should give consent to the proposed treatment, that is, whether it is “satisfied that it is appropriate for the treatment to be carried out” regarding the criteria in s 44(2) of the Act. The Tribunal was satisfied that it was in Sophie’s interests to receive the proposed treatment (at [94]) and provided consent for the proposed treatment, including the use of blood products if necessary. The Tribunal was not satisfied that it should give consent to the treatment without also giving consent to the use of blood products as the treating surgeon had indicated that she was unwilling to perform the procedure without such consent. Similarly, the Tribunal was not satisfied that it should dismiss the application and rely on s 37 of the Act due to the risks of treatment being delayed as outlined above: at [96]. Given the difficulties with eliciting Sophie’s views and the findings made in relation to her faith, the Tribunal did not consider that consenting to treatment would violate Sophie’s religious freedoms: at [98(4)].
(vii) The Tribunal consented to a laparoscopic assisted rectopexy with mesh and the administration of blood products intraoperatively for a period of 12 months. The Tribunal dismissed the application made by Daniela for a guardianship order to be made in respect of Sophie. | Richard (a pseudonym) [2026] NSWCATGD 5 S Pinto, Senior Member (Legal) – 7 April 2026
In Sum: The Tribunal decided to renew a guardianship order and a financial management order for a person who was moving from aged care back to their own home.
Facts: Richard is 77 years old and lives in an aged care facility. At the time of hearing, he was involved in a dispute about a property owned by his late mother, in which he inherited a life interest (the right to occupy the property for the duration of his life).
Richard has been under guardianship orders since 2024, and financial management orders since 2022. In early 2025, the latest guardianship order and financial management orders for Richard were renewed by the Tribunal, appointing the Public Guardian and the NSW Trustee and Guardian for a period of 12 months.
Later that year, Richard applied to review and revoke the financial management order, stating that he will be moving back to his own home and that he has the capacity to look after his own finances. The Tribunal heard together the statutory review of the guardianship order and the financial management order renewed on 10 April 2025, as well as the application made by Richard for a review of the financial management order.
Issues and outcome:
(i) The Tribunal firstly considered whether it should renew, renew and vary the guardianship order or determine that the order is to lapse. The Tribunal was satisfied that Richard remained a person for whom the guardianship order could be renewed, due to his vascular cognitive impairment and multiple health conditions.
(ii) With respect to whether a further guardianship order should be made, the Tribunal considered the factors in s 14(2) of the Act together with the principles set out in s 4 of that Act. The Public Guardian confirmed that it had consented for Richard to return home to live; however, it submitted that a guardianship order with accommodation, services and health care functions continued to be necessary to assist with implementing the accommodation decision and assisting Richard with services and health care. The Tribunal decided to renew the order with the functions proposed by the Public Guardian for 12 months.
(iii) The Tribunal also reviewed the financial management order. Whilst Richard was able to manage day-to-day aspects of his financial affairs, the Tribunal was not satisfied that he could manage the complexities regarding the property dispute over his late mother’s estate (which had been referred to the legal team at the NSW Trustee and Guardian). A financial manager was also considered necessary to pay his aged care fees prior to him returning to his own home and to pay for his home care package whilst transitioning from aged care to his home. The Tribunal was not satisfied that it was in Richard’s best interests for the order to be revoked, nor that he had regained sufficient capacity to independently manage his finances. The Tribunal made a reviewable financial management order for 12 months to provide the NSW Trustee and Guardian with sufficient time to consider the property issues and to assist Richard’s transition to return to live at home. | | YPH v YQC [2026] NSWCATAP 92 A Britton, Deputy President, A R Boxall, Senior Member, C M Kennedy, Senior Member
In Sum: The appellant appealed a decision from NCAT’s Guardianship Division which had confirmed the appointment of the appellant’s brother as enduring guardian of their Mother. Two of the appellant’s grounds of appeal were that NCAT’s approach to the hearing denied her procedural fairness, and that the High Court case of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592; [2006] HCA 63 (SZBEL), supported her proposition that NCAT was required to give her the opportunity in the hearing to make submissions on adverse evidence about her, specifically a letter from the Father. Both grounds were rejected by the Appeal Panel.
Facts: The background to this appeal is a dispute between the appellant, YPH, the Mother’s former husband and YPH’s sister and brother, concerning the decision made by YPH’s brother in 2024, in exercise of his authority as enduring guardian, to move the Mother (YNS) to live in residential aged care. The appellant believed that this decision was not in her mother’s best interests. However, other members of the Mother’s immediate family supported that decision and believed that by late 2024 the Mother would no longer be adequately cared for at home. In June 2018, the Mother executed instruments appointing her son, YQC (the Son) as her enduring guardian and attorney (the enduring appointments). In December 2024, the appellant applied to the Guardianship Division NCAT requesting review of the enduring appointments. The appellant contended that as enduring guardian and attorney, the Son was making decisions that were not in their Mother’s best interests.
NCAT did not review the operation of the instrument appointing the Son and confirmed his appointment, ultimately dismissing the appellant’s application for review. The appellant appealed the decision to confirm the Son’s appointment and the decision dismissing review. One ground of appeal considered whether NCAT failed to afford the appellant procedural fairness by failing to give her a reasonable opportunity to give evidence and make submissions at the review hearing. Specifically, the appellant argued that in the review hearing she was subject to unreasonable time limits, was interrupted and that the hearing was rushed. A second ground focused on the appellant’s claim that SZBEL required NCAT to invite her to comment on a letter from her Father which she alleged unfairly painted her as a source of conflict between siblings.
Held (refusing the appeal):
(i) NCAT’s broad power to determine its own procedure (NCAT Act, s 38(1)) permitted NCAT to determine the order each application would be addressed in and to require the parties to structure their submissions in the review hearing accordingly. The Panel held that this was entirely consistent with NCAT’s duty to resolve the real issues in proceedings justly, quickly, cheaply.
(ii) In the absence of some special vulnerability or disadvantage suffered by a party, the obligation to afford a reasonable opportunity to be heard does not require NCAT to accommodate a party’s preference about the order in which issues will be discussed during a hearing. Dealing with the applications sequentially and directing the parties to tailor their oral evidence and submissions accordingly was unremarkable and entirely orthodox.
(iii) NCAT’s statements reminding the appellant that the hearing was subject to time limits were “measured and appropriate”. The fact that NCAT did not impose time limits on the Son and the Father did not support the appellant’s contention that those imposed on her were unreasonable. Notably, neither the Son nor the Father made lengthy submissions.
(iv) The Panel rejected the first ground, recognising that exchanges from the hearing did not establish the appellant’s complaint of procedural unfairness.
(v) On the second ground, the Panel held that SZBEL does not stand for the general proposition that procedural fairness requires NCAT to invite a party to respond to any adverse comment made about them by another party. It was highlighted that neither the NCAT Act, the Guardianship Act nor the Powers of Attorney Act 2003 (NSW) contain an equivalent provision to s 425(1) of the Migration Act which confers an entitlement conferred on visa applicants to be invited by the Refugee Review Tribunal “to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
(vi) Additionally, even if it was accepted that NCAT implicitly found that the appellant was responsible for the ensuing family conflict, there was nothing in NCAT’s reasons suggesting that this purported finding was relevant in some way to its decision to confirm the Son’s appointment as the Mother’s enduring guardian or the findings on which that decision was based. | YQW v NSW Trustee and Guardian [2026] NSWCATAP 94 A Britton, Deputy President, A R Boxall, Senior Member, Dr B McPhee, Senior Member
In Sum: An Appeal Panel declined to approve the Mother’s (appellant’s) request to withdraw her internal NCAT appeal, to enable her to proceed with an appeal to the Supreme Court of NSW. The Panel considered that proceeding with the internal appeal gave effect to its duty under s 36(1) of the NCAT Act. The Appeal Panel also refused leave to appeal decisions made by the Guardianship Division.
Facts: In January 2025, the Guardianship Division of NCAT made a guardianship order in respect of YPU and appointed her aunt, YRH, as guardian. In April 2025, YPU’s mother, YQW, made an application to NCAT requesting review of that order and the removal of the Aunt as guardian, asserting that the “current arrangement significantly restricts my ability to participate in my daughter’s life and contribute to her care, especially in financial matters”. Two months later, YQW made a further application to NCAT requesting that a financial management order be made in respect of her daughter.
The Mother appealed against NCAT’s decisions to decline to appoint a “separate representative” for the Daughter (the representation decision) and to prohibit the disclosure of a document filed by the Mother (the non-disclosure decision). Having filed these appeals in both NCAT and the NSW Supreme Court, an issue arose as to whether the Mother should be given leave to withdraw the internal appeal to NCAT.
Sch 6, cl 12(1) of the NCAT Act enabled the Mother to appeal against each decision by an appeal to an NCAT Appeal Panel (an internal appeal), or an appeal to the NSW Supreme Court. However, an internal appeal precludes an appeal to the Supreme Court against the same decision unless the internal appeal is withdrawn with the approval of an Appeal Panel for the purpose of enabling an appeal to the Supreme Court against the decision, and vice versa (NCAT Act, Sch 6, cls 12(3), 12(4)). The Mother’s Notice of Appeal with NCAT was filed on 8 September 2026 and her Summons seeking leave to appeal in the Supreme Court was filed on 9 October 2025.
Held (refusing request to withdraw appeal, refusing leave to appeal):
(i) Neither the NCAT Act nor the Guardianship Act 1987 (NSW) provides express guidance about the factors to consider in the exercise of the discretion to approve a request made by an appellant to withdraw an internal appeal “for the purpose of enabling an appeal to the Supreme Court” conferred by cl 12(3) of Sch 6 to the NCAT Act, or the corresponding provision, which permits the Supreme Court to approve a request to withdraw an internal appeal, cl 12(4) of Sch 6 to the NCAT Act.
(ii) The Panel recognised that it must seek to give effect to the guiding principle of the NCAT Act, “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”: NCAT Act, s 36(1).
(iii) Hearing the internal appeal was consistent with this duty for the following reasons: the parties had filed submissions, the appellant did not notify the other parties of her intention to request withdrawal of the internal appeal, nor did she inform them of the Supreme Court proceedings until one week before the hearing of the internal appeal, the internal appeal was narrow in scope and neither complex nor novel, an appeal to the Supreme Court would delay proceedings and subject the other parties to further stress and inconvenience and given the internal appeal had been listed for hearing for over four months, the parties were ready to address the issues and time was allocated to the appeal. As such, it was the “best use” of NCAT’s and the Supreme Court’s resources to proceed with the internal appeal.
(iv) The Mother’s request to withdraw the internal appeal for the purpose of enabling an appeal to the Supreme Court was refused. Leave to appeal was refused | YQV v YRK [2026] NSWCATAP 101 A Britton, Deputy President, A R Boxall, Senior Member, C M Kennedy, Senior Member
In Sum: The appellant (YQV) and her Sister (YRK) had previously been appointed by their Mother (the Mother) as her enduring guardians. However, after a dispute arose between the appellant and the Sister, the Local Health District (LHD) applied to NCAT’s Guardianship Division to have the Public Guardian be appointed as enduring guardian instead. The appellant appealed NCAT’s decision on the basis that NCAT did not consider her request to continue to be enduring guardian. The appeal was allowed.
Facts: In January 2025, the Mother (then 85-years-old) appointed her two daughters, the appellant and the Sister, as her enduring guardians. In September 2025, NCAT made a guardianship order appointing the NSW Public Guardian to act as the Mother’s guardian, suspending the daughters’ appointment. The appellant subsequently appealed this decision, contending that to appoint the Public Guardian to act as the Mother’s guardian, NCAT was first required to consider the appellant’s request to be appointed as guardian, and that it failed to do so which amounted to a constructive failure to exercise jurisdiction.
The LHD’s initial application to NCAT was based on a dispute between the appellant and the Sister over whether the Mother should move to residential aged care and, if so, which facility. The LHD claimed that this dispute resulted in the Mother remaining in hospital for an extended period and suffering unnecessary distress, and as such, the daughters’ appointment was “ineffective” and appeared to “not be working”. While the Sister supported NCAT’s decision to appoint the Public Guardian, she conceded that the appellant had requested appointment as guardian and did not indicate otherwise at the hearing.
Held (allowing the appeal):
(i) Constructive failure to exercise jurisdiction arises where a decision-maker purports to have exercised the jurisdiction but in substance has not undertaken or completed the task of doing so because of failure to address some essential matter: Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 at [15]. Here the essential matter the appellant asserts NCAT failed to address was whether “another person [apart from the Public Guardian] can be appointed as the guardian”: Guardianship Act 1987, s 15(3).
(ii) It was clear that NCAT was aware that the appellant and the Sister each requested to be appointed as the Mother’s guardian, but at no point during the hearing did NCAT expressly ask the appellant whether she no longer wanted to be appointed. The closest that question came to being asked is during an exchange where NCAT asked, “Do you think at the moment there needs to be a third party?”, to which the appellant replied, “Definitely. Definitely I am happy with that”. Read in context, that answer was capable of several meanings.
(iii) Whether the appellant “would be prepared to accept the appointment of an independent guardian”, did not relieve NCAT from the obligation to consider whether “an order can be made appointing some other person [apart from the Public Guardian] as the guardian of [the Mother]”. A person may be willing to be appointed as guardian, and at the same time be prepared to accept the appointment of the Public Guardian, if the person’s request to be appointed was unsuccessful. The two are not mutually exclusive.
(iv) In circumstances where the appellant had requested appointment as guardian and did not withdraw that request, NCAT was obliged to consider whether an order could be made appointing the appellant as guardian. That, in turn, required NCAT to decide whether it was satisfied that the appellant met the criteria for appointment in s 17(1) of the Guardianship Act 1987.
(v) NCAT's failure to consider the appellant's request constituted a constructive failure to exercise its jurisdiction. That failure was material. As such, the appeal was allowed and was remitted to NCAT for consideration as to whether an order can be made appointing the appellant as guardian of the Mother. | YPX v YRJ [2026] NSWCATAP 169 A Britton, Deputy President, C A Mulvey, Senior Member, M E Bolt, General Member
In Sum: An appeal was brought against the Tribunal’s decision to make a guardianship and a financial management order for the person, who died shortly after the appeal hearing. The Appeal Panel decided that the right to appeal under s 80(2)(b) of the NCAT Act against an “internally appealable decision” did not abate on the person’s death. The Appeal Panel also found that the Tribunal had failed to consider the person’s “views” about the proposed guardianship order, but that the failure was not material to the ultimate decision.
Facts: In July 2025, the Guardianship Division made a guardianship order and a financial management order in relation to Bernard, a then-87-year-old man with severe vascular dementia. The applications had been made by a hospital social worker where Bernard resided. The Tribunal appointed the NSW Public Guardian as his guardian and committed the management of his estate to the NSW Trustee.
The appellants, Bernard’s wife Linda and carer and daughter, Ruth, appealed from each decision. They contended that the Tribunal had failed to have regard to Bernard’s views said to be expressed in 22 “Tik Tok videos” filmed by Ruth while in hospital, and the importance of preserving Bernard’s family relationships. In addition, in appointing the NSW Public Guardian, the Tribunal misapplied the provisions of the Guardianship Act, which were said to direct the Tribunal to appoint the Public Guardian only as a “last resort”. The appellants also sought leave to appeal from each decision and requested that the Appeal Panel exercise its discretion to deal with the appeal by way of a new hearing under the Civil and Administrative Act 2013 (NSW).
The appellants urged the Appeal Panel to determine the appeal notwithstanding Bernard died shortly before the determination of the appeal.
Held (dismissing the appeal, refusing leave to appeal and declining to exercise its discretion to deal with the appeal by way of a new hearing):
(i) The Appeal Panel considered as a preliminary issue whether the appellants’ right to appeal the decisions (which are both “internally appealable decisions” under the NCAT Act, s 32(4)) was extinguished following the death of Bernard. Whilst noting that some statutory instruments expressly provide that certain types of applications will abate when a party dies, the Appeal Panel said no such express provision could be found in the NCAT Act in respect of an internal appeal, nor did the text, context or purpose of s 80 of the NCAT Act granting the right to appeal against internally appealable decisions support that interpretation. However, in appeals from decisions of the Guardianship Division, the death of the person the subject of that decision may be relevant to the exercise of the discretion to grant leave to appeal, to determine the appeal by way of a new hearing, and the types of orders made in determining the appeal.
(ii) The Tribunal was obliged to have regard to each of the matters in s 14(2) of the Guardianship Act, including the “views (if any)” of the person. The Appeal Panel clarified that this required the Tribunal to have regard to the person’s views about whether a guardianship order should or should not be made in relation to them, not their views at large. The appellants contended that the Tribunal had erred in failing to consider the 22 "Tik Tok videos" of Bernard filmed by Ruth while in hospital (the Videos), where Bernard was recorded as saying he wants to return home and does not want to live in “an old person’s home”. The issue to be determined by the Tribunal was whether these statements constituted Bernard’s views about the making of a guardianship order for him.
(iii) The Appeal Panel found that in the Videos Bernard did not mention guardianship, or the prospect of another person being authorised to make decisions about his personal affairs. Therefore, the Tribunal had not erred in failing to consider Bernard’s views under s 14(2)(a)(i) of the Guardianship Act. The Tribunal had otherwise satisfactorily performed the “balancing exercise” required under s 14(2) of the Guardianship Act in considering the views of other parties to the applications, the importance of preserving Bernard’s family relationships, and the practicability of services being provided without a guardianship order. This ground was dismissed.
(iv) Under Ground 2, s 15(3) of the Guardianship Act instructs the Tribunal shall not appoint the Public Guardian where another person can be appointed as the guardian. To appoint a person as guardian, the Tribunal must satisfy itself that the person meets the criteria in s 17(1) of the Act. The appellants conceded that the Tribunal had appropriately stated and applied these statutory provisions; however, they challenged the Tribunal’s finding that neither appellant was “able” to exercise the functions of a guardian under s 17(1)(c). The Appeal Panel refused to grant leave to appeal against this finding, concluding that it was open to the Tribunal to find the appellants lacked the ability to make objective decisions in the best interests of Bernard: at [88].
(v) The Appeal Panel also rejected several procedural fairness claims raised by the appellants, one of which was to consider the Videos. The Appeal Panel decided that the failure to consider the Videos was not material to the Tribunal’s ultimate decision to commit the management of Bernard’s estate to the NSW Trustee. That decision was primarily made on the basis of Ruth’s lack of insight into her father’s care and apparent refusal to pay for his care. Other procedural fairness grounds were also rejected by the Appeal Panel.
(vi) The Appeal Panel also refused to deal with the appeal by way of a new hearing, given Bernard’s death and the lack of utility in re-deciding the matter. | YPN v NSW Trustee and Guardian [2026] NSWCATAP 31 I R Coleman SC ADCJ, Principal Member, J Moir, Senior Member, Dr M Wroth, Senior Member
In Sum: The Appeal Panel allowed an appeal and substituted the decision of the Tribunal to appoint the NSW Trustee as financial manager of the person with the person’s son (the appellant). The Appeal Panel decided that the Tribunal had erred in law by relying on errors of fact relating to family conflict which informed its decision to appoint the NSW Trustee.
Facts: YPN (the appellant) is the son of YRY (the Mother). YQO is YPN’s sister (the Sister). The appellant brought an appeal against the Tribunal’s decision dated 4 July 2025 to commit the management of YRY’s estate to the NSW Trustee. He contended the Tribunal had erred by relying upon several factual inaccuracies and misinterpretations, which led to the overstating of the presence of “family conflict” and potential financial abuse.
Held (allowing the appeal, and substituting the appellant as financial manager of the person’s estate):
(i) The Appeal Panel held the Tribunal’s decision was based on erroneous findings of material fact. The “family conflict” finding by the Tribunal was made in the context of a purported gift of $250,000 that the Sister had made to herself from the Mother’s estate. Apparently, the appellant had expressed a view that his sister’s actions in allowing herself to receive a gift of $250,000 from her mother’s $600,000 estate would jeopardise their mother’s ability to live in a suitable residential aged care facility. Simultaneously, the Sister had informed the Tribunal that she retained the $250,000 which could be returned to YRY. The critical finding of the Tribunal was (at [65]):
“We took into account the considerations under s 4 of the Guardianship Act. In particular, we considered the interests of YRY in not being subject to any financial abuse and the interests of making sure that her family and cultural and linguistic background and relationships were preserved. The conflict between (YRY’s) children caused her distress and we were satisfied that it was not in her interests for this to continue indefinitely. For these reasons, we considered that it was in (YRY’s) best interest for an independent financial decision maker to be appointed.”
(ii) The Appeal Panel was of the view that the Tribunal had “oversimplified” the purported “conflict” between the siblings at [65], and that there was no evidence to justify the reference to the possibility of financial abuse. The Appeal Panel noted that the appellant had managed YRY’s financial affairs satisfactorily for the past 35 years. The only “conflict” found by the Tribunal was the “gift” provided to the Sister, and previously relations between the siblings had been peaceful. In this context, the appellant’s views about the Sister receiving the money appeared to overshadow the fact that the Sister had agreed to return the money, therefore the “conflict” between the siblings found by the Tribunal was likely to be resolved by repayment of the monies if and when the appellant was appointed YRY’s financial manager. This ground of appeal was established.
(iii) Whilst not necessary to find, the Appeal Panel also found that the Tribunal had erred in failing to consider evidence with respect to YRY’s wishes in relation to her family and cultural and linguistic background, including her expressed wishes that the appellant be appointed as her financial manager.
(iv) The appeal was allowed and the Tribunal substituted the decision of the Tribunal for its decision to appoint the appellant as financial manager for YRY. | YRP v YSM [2026] NSWCATAP 212 A Britton, Deputy President, E M Connor, Senior Member, Dr B McPhee, Senior Member
In Sum: An appeal was brought against the Tribunal’s decision to re-appoint a guardian and financial manager for Ruth. The proposed guardian and financial manager had a significant criminal history. The Appeal Panel dismissed the appeal on the basis that the Tribunal had not failed to consider the proposed guardian and financial manager’s criminal history, nor had the Tribunal failed to consider whether the criminal history gave rise to a conflict of interest precluding their appointment.
Facts: In December 2025, the Tribunal reviewed guardianship and financial management orders for Ruth, and re-appointed her nephew, Carl, as guardian and financial manager. Carl had a criminal history, which included convictions for several serious offences including money laundering. Gyles, Ruth’s great nephew, appealed from those decisions, contending that Carl should not have been re-appointed as financial manager due to his criminal history. The grounds of appeal were:
(a) the Tribunal failed to consider, or properly consider, Carl’s criminal history, and by doing so failed to apply the principles stated by Lindsay J in M v M [2013] NSWSC 1495 at [50] about the considerations relevant to deciding whether a person is a “suitable person” to appoint, or to remain, as manager of the estate of a “protected person”; and
(b) the Tribunal misapplied s 17(1)(b) of the Guardianship Act, by failing to consider whether Carl’s criminal history gave rise to an undue conflict between his interests (particularly, financial interests) and those of Ruth.
Held (refusing leave to appeal and dismissing the appeal):
(i) Although not “mandatory considerations”, as “seriously considered obiter dicta” of a single Supreme Court judge, the Tribunal was required to afford “great weight” to the principles stated by Lindsay J in M v M [2013] NSWSC 1495 at [50]. The Appeal Panel disagreed that the Tribunal had failed to consider Carl’s criminal history in determining whether he was a “suitable person” to be re-appointed, and that it had failed to apply the principles in M v M. The Reasons revealed the Tribunal had considered the nature, duration and severity of Carl’s criminal history. The M v M principles were also explicitly referred to. Among other considerations, the Tribunal had considered the risk of Carl re-offending to be low and therefore found that there was minimal risk to Ruth’s estate. It was a finding of fact whether Carl was a suitable person to be re-appointed. This ground was dismissed.
(ii) The Appeal Panel also rejected the appellant’s second ground of appeal, noting that the proposition that a proposed guardian’s criminal history is relevant to identifying whether there is an “undue conflict” with the person, was unsupported by any authority. The Appeal Panel held that the Tribunal had considered each of the matters in s 17, including s 17(1)b), and had found no evidence to indicate any conflict of interest between Carl and Ruth. The ultimate finding was that, despite his criminal record, Carl remained a suitable person to be appointed as Ruth’s guardian.
(iii) The appeal was dismissed. | YHY v YJB [2026] NSWCATAP 178 A Balla, ADCJ Principal Member, A R Boxall, Senior Member, Dr M Spencer, General Member
In Sum: The appellant, the father of the person the subject of the appeal, brought an appeal against a decision of the Guardianship Division to appoint the mother as the guardian of the son. He raised several grounds of appeal, including denial of procedural fairness and inadequate Reasons for Decision. The Appeal Panel rejected all of the grounds of appeal.
Facts: YHY is the father of YHZ, the person the subject of the decision under appeal. YHZ has been the subject of previous hearings and orders made by the Guardianship Division, where his mother (the Mother) has been appointed as his guardian.
The Mother and YHY are divorced. They have had longstanding differences as to how to best meet their son’s care needs, including where their son should live. At the time of the appeal hearing, YHZ lived in supported living accommodation about 70km from the father’s residence.
YHY appealed from a decision of the Guardianship Division dated 10 October 2025 where the Tribunal re-appointed the Mother as the son’s guardian to make decisions for 3 years about accommodation, health care, medical/dental consents, services and restrictive functions. Both the Mother and the appellant had sought a variation of functions under the previous order.
In the appeal, YHY sought to be appointed as sole guardian and to be added as an NDIS plan nominee. He raised a number of purported grounds of appeal, including that he had not been denied an opportunity to be heard, that he had been “disadvantaged” by receiving the separate representative’s report on the day of the hearing, that appointing the Mother as guardian would not preserve existing family relationships, and that evidence provided by other parties was false and misleading.
Held (refusing leave to appeal and dismissing the appeal):
(i) In relation to the procedural fairness ground, the Appeal Panel rejected the father’s claim that he had been denied a reasonable opportunity to be heard. The Appeal Panel found the Tribunal gave detailed and extensive consideration to the evidence before it, including making reference to oral submissions made by the father during the hearing as well as his written material. The Appeal Panel noted that “[t]he quantity of evidence provided by each party is not necessarily determinative of the outcome”. In addition, there was no evidence that the Tribunal had placed any unfair restrictions on him in relation to the making of submissions in reply. This ground of appeal was rejected.
(ii) The father also submitted that he had been “disadvantaged” in the proceedings as he had received the separate representative’s report late and the separate representative had not properly conveyed the son’s views to the Tribunal. There was no evidence to suggest the report was served late. The father also could not articulate why this had placed him at a “disadvantage” in the proceedings. The fact that the separate representative had not been able to get instructions from the son was known during the hearing regardless of whether it had also been stated in a report. The Appeal Panel rejected the father’s claim that the separate representative had acted improperly and that the Tribunal had noted she had been unable to engage with the son. This ground of appeal was rejected.
(iii) The appellant also submitted that the Reasons were deficient because evidence relevant only to one function in the order was considered for the other functions, for which that evidence was not relevant. The Panel disagreed. It was clear from reading the Reasons as a whole that the Tribunal carefully considered which functions should be exercised by the guardian. This ground was rejected.
(iv) The remaining grounds of appeal were also not established. The Appeal Panel considered the father’s submission that appointing the Mother as guardian would not preserve family relationships as the son would remain living about 70km away from the father. However, it noted, that the Tribunal’s role was not to decide where the son should live. Moreover, the Tribunal had considered evidence in relation to this issue when determining whether a further guardianship order was needed and had decided that the Mother was objectively the best suited to make such a decision.
(v) The appeal was dismissed. | |
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