Guardianship Division Case Digest Issue 2 of 2025 | 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, Supreme Court of New South Wales, and NSW Court of Appeal. | | NCAT Guardianship Division | Arthur (a pseudonym) [2025] NSWCATGD 9 S L Handebo, Principal Member (Legal), Dr K J Banjeree, Senior Member (Professional), M Black, General Member (Community) – 7 April 2025
In Sum: On review of an enduring guardianship appointment, the Tribunal has power to vary the functions under that appointment to include an “authorise others” function, but not to override the person’s objections to medical or dental treatment under s 46A of the Guardianship Act.
Facts: Arthur is a 68-year-old man with several conditions, including Huntington’s Disease, major neurocognitive disorder with significant executive impairment, long-standing dysphagia, bilateral osteoarthritis and Human Immunodeficiency Virus (HIV). In 2018, Arthur appointed his ex-wife as his Enduring Attorney and Enduring Guardian (2018 EGA and 2018 EPoA). She sought to resign from these appointments in late 2024. Arthur’s son, Leo, brought applications to the Tribunal to be appointed as a substitute attorney and guardian for his father. Leo also proposed a variation of the functions of the guardian to include a function to override Arthur’s objections to medical or dental treatment under s 46A of the Guardianship Act, and an “authorise others” function. “Authorise others” is a short-hand term used to describe a function which gives the guardian authority to authorise other people, including NSW Police and NSW Ambulance, to take, keep and return the person to a place as directed by the guardian.
Issues and outcome:
(i) The Tribunal firstly considered whether it had power to review an enduring guardian appointment to include an authority to override a patient’s objections to medical or dental treatment, and/or an “authorise others” function. The Tribunal said that, in considering whether or not to vary the functions under an EGA, it was required to be satisfied that the proposed function “is a function that the appointor could have validly given their enduring guardian when making such appointment” [18]. The Tribunal held that the Guardianship Act does not permit the Tribunal to vary an EGA to authorise an enduring guardian to override a patient’s objection to medical or dental treatment [31]. However, an “authorise others” function could validly be conferred under that Act, and therefore an appointor could give an enduring guardian that function.
(ii) On review of the 2018 EGA, the Tribunal confirmed that Arthur was a person in need of a guardian due to his complex health conditions. As his ex-wife was no longer willing and able to exercise the functions under the EGA the Tribunal decided to approve her resignation as enduring guardian and to appoint Leo to the role. The Tribunal also considered that the EGA should be varied to include an “authorise others” function. However, given its conclusion that an override objections authority could not be conferred by an appointor under an EGA and its finding that it is necessary and appropriate that a substitute decision-maker be given that power, the Tribunal decided to treat the application as if it were an application for a guardianship order. The Tribunal made a guardianship order for Arthur appointing Leo as his guardian for a period of 12 months with the functions conferred under the EGA together with an “authorise others” function and authority to override Arthur’s objections to medical or dental treatment under s 46A of the Guardianship Act.
(iii) The Tribunal also decided to exercise its discretion to review the EPoA [93]. After approving the resignation of the ex-wife from the position, the Tribunal decided to appoint Leo as substitute enduring attorney [97]. | Sandra (a pseudonym) [2025] NSWCATGD 13 A Britton, Deputy President, Dr K Eggleton, Senior Member (Professional), S Bullock, General Member (Community) – 24 July 2025
In Sum: The Tribunal decided to treat an application for review of an Enduring Power of Attorney as an application for a financial management order, and to make a financial management order for a person after finding that their appointed attorneys had misapprehended their fiduciary obligations.
Facts: The subject person, Sandra, is 66 years old and has been diagnosed with early onset Alzheimer’s dementia. Sandra appointed her Son and Daughter as her enduring attorneys and enduring guardians in 2023 following her diagnosis (2023 EPoA and EGA).
In 2025, the Son sought review of the 2023 EPoA and the EGA, claiming that the Daughter had been making decisions about their Mother’s personal and financial affairs without consulting him, that she had used over $100,000 of their Mother’s money to pay for renovations to her own home, and, that she missed monthly instalment payments on a mortgage on their parents’ home. The Daughter disputed these allegations and claimed that the siblings had an agreement to use the Mother’s funds for renovations in return for the Mother being able to live in the Daughter’s home. The precise terms of that agreement were in dispute.
In his application for review of the EPoA, the Son sought the revocation of the EPoA, and, in the alternative the variation of its terms so that any decision relating to the sale of the Mother’s home must be made jointly by the siblings.
Issues and outcome:
(i) The Tribunal decided to exercise its discretion under s 36(1) of the Powers of Attorney Act to review the operation and effect of the EPoA, however, it declined to make any orders under s 36(4) of the Act, finding that this would not be in Sandra’s best interests. The Tribunal noted that removing either sibling as an attorney and leaving the other as sole attorney would be unsuitable as “each sibling misapprehend[ed] the role of the attorney” in agreeing to use some of the Mother’s funds to pay for renovations to the Daughter’s home in breach of their fiduciary obligations [24]. The other orders sought by the Son were also unworkable, such as ordering the siblings to make any decisions “jointly”, as each sibling essentially believed the other was not acting in the Mother’s best interests.
(ii) The Tribunal decided to treat the application as an application for a financial management order and made a financial management order for Sandra. It was uncontroversial that Sandra was incapable of managing her affairs and that there was a need for a financial manager to assist in selling her home and making aged care facility arrangements [41]. As to who should be financial manager, the Tribunal was not satisfied that the Daughter was a suitable person as she “lacks an appreciation that the relationship between an attorney and the principal is in the nature of a fiduciary relationship with consequent duties owed under that relationship” [46]. As no other person nominated themselves for the position, the Tribunal committed Sandra’s estate to the Trustee and Guardian.
(iii) The Tribunal also reviewed and confirmed the EGA. It found the Son’s complaints about the Daughter and the breakdown of communication between the siblings to be an insufficient reason to vary the appointment. The Tribunal noted that the Son appeared to be more willing to participate in making decisions about the Mother’s personal affairs. | Jonathan (a pseudonym) [2025] NSWCATGD 11 R H Booby, Principal Member, Dr M J Wroth, Senior Member (Professional), Emeritus Professor P J Foreman AM, General Member (Community) – 9 May 2025
In Sum: The Tribunal dismissed an application for a financial management order, finding that the 94-year-old subject person was able to manage his own financial affairs.
Facts: Jonathan is a 94-year-old man who owns a share in a property in Northwest Sydney and a property in East Sydney, which he planned to sell. On 3 April 2025, the Tribunal received a financial management application from Oliver, Jonathan’s son, seeking to be appointed as Jonathan’s financial manager in the context of the proposed sale of the East Sydney property. He submitted that Jonathan had not consulted family members about the sale, that Jonathan’s solicitor and real estate agent were manipulating him, that Jonathan was planning to donate the entire proceeds of the sale to charity, and, that Jonathan has a history of irresponsible financial dealings.
In April 2025, the Tribunal made an interim financial management order for a period of six weeks and committed Jonathan’s affairs to the management of the NSW Trustee and Guardian and adjourned the application for a financial management order. This decision concerns that application.
Issues and outcome:
(i) After dealing with procedural matters, the Tribunal considered the criteria in s 25G of the Guardianship Act to determine whether to make a financial management order for Jonathan. The threshold issue in dispute was whether Jonathan was incapable of managing his affairs per s 25G(a) of the Act and the test in P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]. The Tribunal did not give weight to evidence which it found to be either outdated or irrelevant to Jonathan’s current ability to manage his affairs, including documents relating to legal action taken by Jonathan in 2019 and evidence of a property settlement in Greece between Jonathan and his former wife in 1999 [32]-[36]. The Tribunal did consider more recent evidence in relation to the sale of the East Sydney property, which it found to be relevant, but which it ultimately considered did not point to an incapability to manage his financial affairs [41].
(ii) The Tribunal also considered Oliver’s concerns about Jonathan being manipulated by his solicitor and real estate agent and was not satisfied that those concerns indicated that Jonathan was unable to manage his affairs or was susceptible to financial exploitation [42].
(iii) After hearing evidence from and questioning Jonathan, the Tribunal found that he was able to manage his financial affairs. The Tribunal considered significant that despite his age, Jonathan was able to describe his decision-making process regarding the sale of the East Sydney property, his intentions in relation to the sale proceeds, including the planned donation to charity, and the tax implications on the sale of the property. Jonathan also flagged to the Tribunal his poor relationship with Oliver, and the reasons why he would not seek his assistance or “consult” with him as to the sale of the property.
(iv) Ultimately, the Tribunal was not satisfied that the issues raised by Oliver, either individually or cumulatively, demonstrated that Jonathan was unable to manage his affairs. The application was dismissed. | Laura (a pseudonym) [2025] NSWCATGD 12 S L Handebo, Principal Member, Dr K J Banjeree, Senior Member (Professional), M Black, General Member (Community) – 7 April 2025
In Sum: The Tribunal found that a woman with mild Alzheimer’s dementia retained decision-making capacity to manage her financial affairs and declined to make a financial management order for her or to find that she lacked capacity to revoke an Enduring Power of Attorney in 2023.
Facts: Laura, a 76-year-old widow with Alzheimer’s dementia, executed an Enduring Power of Attorney and an Enduring Guardianship appointing her sister and her brother-in-law, in November 2024. Her son, Steve, applied to the Tribunal for a financial management order and for a review of Laura’s revocation of a previous Enduring Power of Attorney which she made in 2021 (the 2021 EPoA), and in which he had been named as one of her attorneys. He alleged that Laura lacked capacity to revoke the 2021 EPoA due to a medical report diagnosing her with Alzheimer’s dementia, and that she required a financial manager for the same reason.
Issues and outcome:
(i) The Tribunal considered whether it ought to exercise its discretion to undertake a review of the revocation of the 2021 EPoA under s 36(1) of the Powers of Attorney Act and noted that, in doing so, it is permissible to undertake a general survey of the evidence to decide whether or not to conduct a full review [94]. As the crux of Steve’s application related to Laura’s capacity in 2023, the Tribunal reviewed the available medical evidence which was as follows:
a. report from a consultant neurologist, dated 8 April 2021 (“the Dr Y Report”); b. report from a clinical neuropsychologist, dated 7 September 2023 (“the 2023 Dr Z Report”); and c. a further report from Dr Z, dated 13 June 2024 (“the 2024 Dr Z Report”).
(ii) The Tribunal found that the medical evidence did not support a finding that, at the time of the revocation, Laura lacked capacity to revoke the enduring instrument. Contrary to Steve’s assertion, the Tribunal found that the 2021 Dr Y report did not formally diagnose Laura with Alzheimer’s dementia nor comment on her capacity to manage her financial affairs. Whilst Dr Z had diagnosed Laura with early-stage Alzheimer’s disease in 2023, Dr Z had also undertaken a capacity assessment and found Laura retained decision-making capacity in regard to her financial affairs. In a subsequent assessment in 2024, Dr Z reached the same conclusion. The Tribunal found that Laura had capacity to revoke the 2021 EPoA in 2023. The Tribunal rejected Steve’s assertion that the reports of Dr Y and Dr Z were “contradictory” and found them to be “complimentary with different focuses attributable to their different disciplines”. The Tribunal declined to review the revocation of the EPoA. (iii) The Tribunal was not satisfied that Laura was incapable of managing her affairs. The Tribunal noted that Laura’s diagnosis of Alzheimer’s disease and associated cognitive impairment did not in itself make her incapable of managing her affairs. The Tribunal was “required to consider the impact of Laura’s diagnosis on her functional capacity to reasonably manage her affairs” [105]. It found that Laura largely retained executive function, that at the hearing, she demonstrated a sound understanding of her financial affairs, and that she was able to demonstrate impact into her cognitive impairment. Consistent with the available medical evidence, the Tribunal was satisfied that Laura retained capacity to make financial decisions. The application was dismissed. | Linda (a pseudonym) [2025] NSWCATGD 16 A R Boxall, Senior Member (Legal), S J Lee, Senior Member (Professional), P Davidson, General Member (Community) – 11 March 2025
In Sum: The Tribunal decided to make a financial management order committing the subject person’s estate to the NSW Trustee and Guardian following concerns that the subject person was likely to sell their home.
Facts: Linda is a 57-year-old woman who, at the time of hearing, was an inpatient in a Mental Health Unit in the Northern Rivers region of NSW (the Hospital) pursuant to an order made by the Mental Health Review Tribunal on 14 February 2025. On 27 February 2025, the Tribunal received an application for a financial management order for Linda from a social worker at the Hospital, who was concerned that Linda wished to sell her home.
Issues and Outcome:
(i) As a preliminary issue, the Tribunal considered whether the applicant social worker had standing to bring the application. The Tribunal found that the social worker had standing because, “as a social worker at [the Hospital] involved in [Linda’s] care, she can reasonably be considered to have the necessary concern” [7].
(ii) The Tribunal next considered whether a financial management order could be made, applying the criteria in s 25G of the Guardianship Act. In considering whether Linda was incapable of managing her financial affairs, the Tribunal considered a report prepared by a psychiatric registrar at the Hospital. In that report, the registrar said that Linda “demonstrates paranoid and persecutory delusions, grandiose delusions, auditory hallucinations and serious disorder of thought forms, together with an inability to plan solutions to problems” [13]. Of particular concern was her plan to sell her home without concrete plans as to where to live “against a background of impulsive and excessive spending” [13]. This was consistent with evidence given by the applicant who said Linda lacked planning skills and seemed to be unable to appreciate her real risk of homelessness and potential vulnerability to exploitation [15]. While Linda was able to explain at length her financial situation and the proposed sale of her home, the Tribunal was concerned that her explanation was “essentially calculational and mechanical” and she was “fundamentally vulnerable to loss and at risk of dissipating her assets” [17]. Accordingly, the Tribunal was satisfied that Linda was, at least in part, unable to manage her affairs.
(iii) In considering whether there was a need for a financial management order, the Tribunal noted that while an in-patient the risk of Linda proceeding with the sale of her home was low, however, were she to be discharged (which appeared to be likely under a community treatment order) she would be subject to greater risk and financial vulnerability at least until her condition stabilised. Because of these concerns the Tribunal found there was a need for someone to manage Linda’s affairs and that it was in her best interests that a financial management order be made.
(iv) No individual had nominated to be appointed as manager; therefore, the Tribunal committed the management of Linda’s estate to the NSW Trustee and Guardian. The Tribunal also decided that the order should be reviewed within 12 months so as to ensure Linda’s financial situation was protected until such time as her mental health stabilised. | Maria (a pseudonym) [2024] NSWCATGD 27 S L Handebo, Principal Member – 20 December 2024
In Sum: The Tribunal decided to revoke a financial management order appointing a private financial manager following the financial manager having acted contrary to directions given by the NSW Trustee and Guardian.
Facts: Maria is an 87-year-old woman who ordinarily lives with her niece and carer, Lana, in her own home in NSW. At the time of hearing Maria and Lana resided in Taiwan.
In 2018, the Tribunal appointed Lana as Maria’s financial manager and also appointed Lana as her guardian.
In late 2024, the NSW Trustee and Guardian made an urgent application to the Tribunal to review the financial management order made in 2018. The application was made following Lana having failed to comply with a decision made by the Trustee and Guardian on 1 February 2024 not to use Maria’s funds to travel with Maria to Taiwan for the purposes of obtaining medical treatment for Maria.
Issues and Outcome:
(i) The Tribunal noted that on reviewing the appointment of Maria’s financial manager, it could either revoke or confirm the appointment. The appointment could only be revoked if Lana sought the revocation (which she did not), or the Tribunal was satisfied it was in Maria’s best interests that the appointment be revoked [10]. The Tribunal noted that the dominant consideration in appointing a financial manager is the welfare of the person [14].
(ii) The Tribunal heard evidence from the NSW Trustee and Guardian that on 1 February 2024, it had rejected a request for Lana to spend $25,000 of Maria’s money to travel to Taiwan and to obtain medical treatment, finding it was not in Maria’s best interests. That decision was affirmed following an Internal Review by the Trustee and Guardian, and a further decision was made ordering Lana to engage a geriatrician for Maria in Sydney. It was subsequently discovered that Lana had failed to comply with this direction and had transferred in excess of $40,000 from Maria’s bank account to a Travel Money Card and had departed with Maria for Taiwan on 31 March 2024.
(iii) At hearing, Lana confirmed that she was aware of the Trustee and Guardian’s decision but considered herself not to be acting contrary to that decision, as the expenses incurred on Maria’s behalf whilst in Taiwan were for the payment of Maria’s day to day expenses, in accordance with the Private Manager’s Handbook. The Tribunal did not accept this argument, noting that a significant amount had been transferred, the records indicated that Maria’s usual annual personal living expenses, and medical expenses, were far below that amount, and the evidence indicated Maria continued to pay for accommodation expenses, property expenses and utilities in Australia whilst in Taiwan. Further, any such general authority was displaced by the decision made by the Trustee and Guardian on 1 February 2024 and Lana had acted in complete disregard of the explicit direction of the Trustee and Guardian not to incur expenses on Maria’s behalf in relation to travel to Taiwan, accommodation in Taiwan, and the provision of medical care in Taiwan. Concerns were also raised about the use of the Travel Money Card which was in Lana’s name and a potential conflict of interest.
(iv)The Tribunal was satisfied that it was in Maria’s best interests for Lana’s appointment as financial manager to be revoked. On account of wilful non-compliance with a decision made by the Trustee and Guardian and general disregard for the role of the Trustee and Guardian in overseeing Maria’s affairs, the Tribunal noted, “[Lana’s] conduct to date demonstrates a fundamental inability to fulfil the practical and legal requirements of her appointment as financial manager”. Lana’s appointment was revoked, and the Tribunal decided to make a financial management order committing Maria’s estate to the Trustee and Guardian. | Maria (a pseudonym) (No 2) [2025] NSWCATGD 3 S L Handebo, Principal Member – 29 April 2025
In Sum: The Tribunal reviewed the guardianship order made for Maria in 2023 and appointed the Public Guardian for a period of 6 months after finding that the appointed guardian was not making decisions in Maria’s best interests following having taken Maria to Taiwan.
Facts: See Maria (a pseudonym) [2024] NSWCATGD 27, outlined above.
The NSW Trustee and Guardian made an application to NCAT requesting a review of the May 2023 guardianship order in which the Tribunal appointed Lana, Maria’s niece and former financial manager, as Maria’s guardian. The Trustee and Guardian sought to have Lana’s appointment revoked and the Public Guardian appointed as Maria’s guardian.
At the time of hearing, Maria and Lana were living in Taiwan. Neither Lana nor Maria attended the hearing.
Issues and Outcome:
(i) The Tribunal firstly considered some preliminary issues, including whether the hearing should be adjourned due to Maria and Lana’s non-attendance. However, the Tribunal was satisfied that Lana had been afforded a reasonable opportunity to be heard (and had declined to attend), and that the hearing should proceed notwithstanding Maria’s non-attendance as her ability to participate without Lana’s assistance was significantly compromised.
(ii) The Tribunal determined whether it should make a further guardianship order for Maria. It was uncontroversial that Maria remained in need of a guardian in the absence of any new evidence challenging this finding. The Tribunal questioned the utility of making a further order in circumstances where Maria was overseas and there were no apparent plans for her to return to NSW. However, the Tribunal found that there was utility in a further order, firstly because it would enable the Public Guardian to access and consider relevant health information through international health sharing protocols and through consular/diplomatic avenues, and secondly as the Trustee contended a formal order would enable them to take steps to leverage Lana’s agreement to return Maria to Australia. If Maria returned to Australia, the Public Guardian considered it was likely that further decisions would need to be made on her behalf. The Tribunal was satisfied that a further order was necessary.
(iii) As to who should be guardian, the Tribunal found that Lana should not be re-appointed as Maria’s guardian as she was not “able and willing” to exercise the functions under the guardianship order (s 17(1)(c) of the Guardianship Act). The Tribunal emphasised Lana’s failure to obtain necessary and appropriate health care for Maria whilst she was in Australia and acting contrary to “clear and unambiguous recommendations from an independent assessor that removing Maria from the country would be contrary to her interests”. Further, failing to cooperate in any meaningful way with attempts made by the NSW Trustee to obtain appropriate evidence about the nature of Maria’s current treatment. In the absence of a suitable private person, the Tribunal decided to appoint the Public Guardian.
(iv) The Tribunal made a guardianship order for a period of 6 months, to enable the Public Guardian to explore options to repatriate Maria to Australia and to assess what further decisions needed to be made. | Victoria (a pseudonym) [2025] NSWCATGD 14 J Moir, Senior Member (Legal), M J Staples, Senior Member (Professional), R K Richter, General Member (Community) – 9 September 2025
In Sum: The Tribunal decided to confirm a financial management order after finding that the person had not regained capability to manage her financial affairs, and there were no other arrangements in place to manage her affairs. The Tribunal also made a guardianship order for the subject person, finding that informal decision-making arrangements had become impracticable.
Facts: Victoria is an 87-year-old woman with dementia causing cognitive impairment who resides in an aged care facility. Victoria has 5 children, including Ross, Angelica and Edward. In 2023, Victoria appointed Ross as her enduring guardian and enduring power of attorney (2023 EPoA and 2023 EGA). In early 2024, Victoria revoked Ross’ appointments and appointed Angelica and Edward as her enduring guardians and enduring power of attorneys (2024 EPoA and 2024 EGA).
In mid-2024, the Tribunal made a financial management order for Victoria and appointed Ross as her financial manager for a period of 12 months to make decisions about Victoria entering residential aged care. The Tribunal was seemingly not made aware of the revocation of Ross as her enduring power of attorney.
In mid-2025, Angelica made an application to the Tribunal seeking review of the financial management order made in June 2024. She also made an application for a guardianship order for her mother. The Tribunal heard these two applications at the same time as the statutory review of the financial management order.
Issues and Outcome:
(i) The Tribunal firstly reviewed the financial management order made in June 2024. The key issues in dispute were whether that order should be revoked because Victoria was now capable of managing her own financial affairs (as contended by Victoria and, to some extent, by Angelica), and whether Ross’ appointment as financial manager should be revoked (as submitted by Angelica, who proposed herself as financial manager).
(ii) In considering whether Victoria was capable of managing her own affairs, the Tribunal considered whether Victoria was “reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests”. The Tribunal surveyed the available medical evidence, which (predominantly) indicated that Victoria had been diagnosed with moderate Alzheimer’s dementia, required 24/7 care and was not capable of managing her own affairs. The Tribunal noted that there was some evidence that the cause of Victoria’s symptoms was unclear, but as its assessment of capability was largely “functional”, it was not required to be satisfied as to the cause of Victoria’s incapability to make a finding. The Tribunal also heard from Victoria and noted she had very little insight into her financial affairs, which were “not straightforward”. Ultimately, the Tribunal was not satisfied that Victoria now had capability to manage her affairs, such that the order should be revoked. The Tribunal was not otherwise satisfied that it would be in Victoria’s best interests to revoke the order.
(iii) The Tribunal further considered whether to revoke the appointment of Ross and was not satisfied that Ross was unsuitable for the role. Whilst some evidence suggested Ross had acted improperly in certain instances (for example, selling Victoria’s car without the Trustee and Guardian’s permission), the Trustee and Guardian said it had no concerns about him continuing to act as financial manager and the Tribunal decided to confirm the financial management order, and not to order that it be reviewed.
(iv) In considering whether a guardianship order should be made for Victoria, the Tribunal surveyed a large amount of material which similarly cast some doubt as to the cause of Victoria’s incapability. Ultimately, the Tribunal preferred the evidence of hospital staff and Victoria’s care provider from when Victoria was in hospital for several months in 2024, noting “[t]hey each had the opportunity to review [Victoria] over several months in hospital [in 2024] and since she has been at [the aged care facility]”. The Tribunal also noted Victoria’s own evidence in this regard was inconsistent. It was satisfied that Victoria was a person in need of a guardian.
(v) The Tribunal decided to make a guardianship order, reasoning that the evidence suggested that informal decision-making arrangements between Angelica and Ross, particularly about Victoria’s medical care, had broken down and were not practicable. As to who should be the guardian, the Tribunal did not consider Angelica suitable for the role, mainly because Angelica had had issues with communicating and working with Victoria’s treating team, appeared unable to work with views opposing to her own and had “acted against [Victoria’s] interests and welfare by causing confusion in her care team and division in her family relationships” [103]. The Tribunal found that Ross satisfied the criteria in s 17(1) of the Guardianship Act and appointed him as Victoria’s guardian. | Perry (a pseudonym) [2025] NSWCATGD 15 A Britton, Deputy President, Dr P Landau, Senior Member (Professional), D R Sword, General Member (Community) – 13 August 2025
In Sum: The Tribunal lacked power to consent to proposed “special treatment” as the subject person had capacity to consent to that treatment.
Facts: Perry is a 20-year-old male with several diagnosed conditions, including an acquired brain injury and autism spectrum disorder. Perry has been convicted of several sex-related offences relating to children. He is currently living in the community serving a community correction order and receiving treatment from a treatment and rehabilitation clinic (the Clinic).
Dr Frank, a forensic psychiatrist who works with the Clinic, made an application to the Tribunal to administer cyproterone (registered name Androcur®) to Perry for the purpose of reducing Perry’s hypersexuality.
Issues and Outcome:
(i) The key issue in dispute was whether Perry was capable of providing consent to the administration of Androcur.
(ii) Any treatment that involves the use of androgen-reducing medication for the purpose of behavioural control is “special treatment”: Guardianship Act 1987, par (c) of definition of special treatment in s 33(1); Guardianship Act, s 45(3)(b); Guardianship Regulation 2016 (NSW), cl 14(b). If Perry was not capable of consenting to that treatment, to give that treatment requires the consent of the Tribunal: ss 35(a), 36(1)(b) Guardianship Act.
(iii) The weight of evidence was that Perry was capable of providing consent. Dr Ferdinando, another psychiatrist with the Clinic, gave evidence that he had undertaken a capacity assessment of Perry and in his opinion Perry demonstrated a good understanding of the purpose of the treatment, could identify the intended effect, could correctly identify side effects and showed insight into his hypersexuality and motivation for taking the medication. Dr Frank, the applicant, concurred with Dr Ferdinando’s assessment. The only opposing view was from a psychologist who had worked with Perry since 2022 and who suggested “that [Perry] may lack the full understanding and consequences of taking anti-libidinal medication and, if so, may not be able to provide his consent”.
(iv) The Tribunal’s starting point was the common law presumption of capacity [34]. It also noted the complexity and seriousness of the subject decision [38]. Nonetheless, the Tribunal was not satisfied that Perry was incapable of consenting to the proposed treatment. It noted in support of its finding that Dr Ferdinando had conducted a detailed and comprehensive capacity assessment and that the only conflicting opinion was that of the psychologist which, at its highest, was an expression of doubt as to Perry’s capacity. The Tribunal found that this was insufficient to rebut the presumption that Perry was capable of giving consent. Further, the issue to be addressed is not whether Perry “fully understands the proposed treatment and its effects” but rather whether he is “incapable of understanding [its] general nature and effect”. The Tribunal found that the evidence given by Perry in the proceedings was clear and consistent, and demonstrated that he was able to weigh information and provide a reasoned explanation for providing consent to the treatment. As it was not satisfied that Perry was incapable of providing consent, the Tribunal lacked power to give substitute consent to the proposed treatment.
(v) In obiter the Tribunal said that the Guardianship Act does not require a person who proposes to carry out treatment on a person, including “special treatment”, to obtain a “ruling” from the Tribunal that the subject person is a patient to whom Pt 5 of the Guardianship Act applies (i.e. a person who is “incapable of giving consent to the carrying out of … treatment” [43]. The Tribunal also said in obiter that a treatment is for the “purpose of behavioural control” if the primary purpose of the treatment is for behavioural control, even if the treatment might relieve the symptoms of other disorders [49]. Similarly, the treatment would be classified as a “chemical restraint” restrictive practice [52]. | Brianna (a pseudonym) [2025] NSWCATGD 17 D Jay, Senior Member (Legal), B Ali, Senior Member (Professional), D R Sword, General Member (Community) – 11 November 2025
In Sum: The Tribunal made a financial management order for a woman and committed her estate to the NSW Trustee and Guardian after she gave her life savings to a person online who she believed to be “Andre Rieu”.
Facts: Brianna is an 80-year-old woman who resides in an over-55’s retirement village. An application for a financial management order was brought by her daughter, Jennifer, following Brianna having given away her life savings to a person she met online. She believed the person to be the musician, Andre Rieu.
Issues and Outcome:
(i) The Tribunal found that Brianna was incapable of managing her financial affairs applying the principles stated in P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]. Whilst she had scored 27/30 on a MoCA (Montreal Cognitive Assessment) test in September 2025, which the Tribunal noted fell into the “normal range of competence”, of concern was the fact that she had expended her entire life savings, had sold her jewellery to obtain further funds to give away and had also considered selling her share in her unit in the retirement village. Brianna also said it is likely she would continue to give further money away to “Andre Rieu” if she had access to it. Brianna was considered unable to make sound decisions regarding her financial affairs, and a financial management order was necessary to prevent her from depleting the last of her funds and to manage her finances ongoingly.
(ii) Brianna’s estate was committed to the Trustee and Guardian as no private person was available to be appointed. | | YKL v South Western Sydney Local Health District [2025] NSWCATAP 234 A Britton, Deputy President, C A Mulvey, Senior Member (Legal), Dr B McPhee, Senior Member (Professional) – 23 September 2025
In Sum: An Appeal Panel dismissed an appeal from a decision of the Guardianship Division where the appellant argued that NCAT lacked jurisdiction because the subject-person (the mother) was purportedly a resident of South Australia and subject of a reviewable guardianship order made by the South Australian Civil and Administrative Tribunal (SACAT). The Appeal Panel found that NCAT’s guardianship powers are protective and administrative, not judicial, and so the constitutional restriction outlined in Burns v Corbett (2017) 265 CLR 304 does not apply. Even if the mother was a South Australian resident, NCAT retained jurisdiction to make guardianship orders. The Appeal Panel also found that a reviewable guardianship order made under corresponding South Australian guardianship laws appointing the South Australian Public Advocate did not deprive NCAT of jurisdiction and that there was evidence of a sufficient territorial connection with NSW when NCAT made its orders, including in the initial application where the appellant informed NCAT that his mother was living with him in Sydney.
Facts: In January 2024, NCAT made an initial guardianship order in respect of the mother of the appellant (the mother), and the appellant (her son) as guardian (the January 2024 order). In making the initial application for guardianship, the appellant informed NCAT that his mother was living with him in Sydney, which was also recorded in hospital admission records in 2022 and 2023. In July 2024, NCAT reviewed the January 2024 order at the request of the South Western Sydney Local Health District (the Local Health District) and appointed the NSW Public Guardian as the mother’s guardian (the July 2024 order).
In October 2024, the mother was discharged from Bankstown Hospital to an aged care facility. After 4 days at that facility, the appellant removed his mother and drove her to Adelaide without the consent of the NSW Public Guardian. The NSW Public Guardian made an application to SACAT and on 19 December 2024, SACAT appointed the SA Public Advocate (the SA equivalent of the NSW Public Guardian) as guardian under a reviewable guardianship order. The appellant apparently drove the mother back to Sydney about 3 weeks before the SACAT hearing.
On 24 December 2024, at the request of the NSW Public Guardian, NSW Police attended the appellant’s NSW home in Sydney to check on the mother’s welfare and, at the request of the NSW Police, the mother was transported by ambulance to Lidcombe Hospital. Following a hearing in February 2025 and a further application from the Local Health District seeking a financial management order, NCAT made a financial management order committing the management of her estate to the NSW Trustee and Guardian and reviewed and varied the July 2024 order (the 2025 orders). On the day of the February 2025 hearing, the mother remained in Lidcombe Hospital. The 2025 orders are the subject of the appeal.
The appellant raised two grounds of appeal, firstly, the jurisdictional issue of the mother’s purported residence in South Australia and secondly, whether NCAT appeared to be biased in refusing to permit a neighbour to give evidence but allowing a different son of the mother who allegedly had “an extensive criminal history” to give evidence.
Held (dismissing the appeal, finding that NCAT does have jurisdiction and Guardianship Division proceedings are not between parties):
(i) The first question of law raised in relation to Ground 1 concerned whether NCAT had jurisdiction where the mother was purportedly a resident of South Australia. The High Court has previously found in Burns v Corbett (2017) 265 CLR 304; [2018] HCA 15 at [43], [55], [64] and [119], that a State Parliament lacks legislative capacity to confer on a state tribunal, that is not a court, judicial power with respect to any matter in ss 75 or 76 of the Constitution, including any matter “between residents of different States”: s 75(iv). The Appeal Panel analysed and adopted the analysis of Quinlan CJ in the Western Australian Supreme Court case of GS v MS [2019] WASC 255 which considered an appeal from the State’s equivalent Guardianship Division, and which found that the Tribunal’s power to make guardianship orders “falls clearly on the ‘administrative’ side of the ‘borderland’ of judicial and administrative functions” at [77]. In that case, the Chief Justice held that Burns v Corbett does not apply to guardianship functions, being protective in nature, as such an application has no sides, is not between parties, nor a “matter” exercising judicial power within the meaning of s 75(iv) of the Constitution. The Appeal Panel held that, even if the mother was a South Australian resident when the relevant guardianship orders were made, NCAT would not lack power to determine the applications simply because two of the parties to those proceedings were from different states.
(ii) The second question of law in Ground 1 concerned whether NCAT was deprived of jurisdiction to review and vary the July 2024 orders because of the reviewable guardianship order made by SACAT to appoint the SA Public Advocate in December 2024. That order also dismissed an application by the appellant seeking to be appointed as guardian. The SA and NSW Guardianship Acts are corresponding laws that permit the recognition of the appointment of guardians in other jurisdictions. Recognition of the appointment of the SA Public Advocate was not sought by the appellant. The Appeal Panel noted that there must be a connection between a person with a disability and NSW for NCAT to have power to determine a guardianship application and that the establishment of that connection will turn on the facts of the specific case. In this case, the Appeal Panel found that there was sufficient territorial connection between NSW and the mother when NCAT made the guardianship orders and decisions. Ground 1 was not established.
(iii) Ground 2 of the appellant’s case alleged that NCAT appeared to be biased because of two decisions. The first was that NCAT refused to allow a neighbour, Mr N, to give evidence. The Appeal Panel noted that NCAT’s reasons do not make reference to Mr N, other than that he had attended the hearing. Despite orders requiring a transcript and sound recording of the hearing, none were provided, and it was not possible to determine the issue.
(iv) The second part of Ground 2 alleged that, despite refusing to permit Mr N to give evidence, NCAT accepted the evidence given by one of the mother’s sons, Mr M, who allegedly has an extensive criminal history. This claim was also not made out. There was no evidence that the other son had a criminal history, or that NCAT was made aware of it. The Appeal Panel applied the so-called “double-might test”, that was stated by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6], whether “a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide”. It was observed, among other things, that it is common practice for family members to give evidence in guardianship proceedings, an issue in the proceedings was whether the appellant was suitable as guardian and that “it is not the role of the Tribunal to act as gatekeeper to prevent a witness whom it suspects has or might give untruthful evidence from giving evidence”. | YJC v NSW Trustee and Guardian [2025] NSWCATAP 224 A Britton, Deputy President, C A Mulvey, Senior Member (Legal), Dr B McPhee, Senior Member (Professional) – 11 September 2025
In Sum: The Appeal Panel allowed, in part, an appeal from a decision of the Tribunal after finding that the Tribunal had failed to respond to a “substantial, clearly articulated argument relying upon established facts”. The Appeal Panel ultimately affirmed the decision under appeal.
Facts: The person the subject of this appeal, YJF (the Mother), is in her early nineties and has been diagnosed with dementia. She has a large family with complex family dynamics and has previously been the subject of an appeal before the Tribunal: see YJC v Public Guardian [2024] NSWCATAP 160.
In November 2021, the Mother made an enduring power of attorney (the 2021 EPoA) appointing three of her six children as her attorneys. The Mother also made an enduring guardianship appointment appointing the same three children as her enduring guardians (2021 EGA). By letter dated 12 June 2023, the Mother purported to revoke the appointments of two of her children (the Son and Daughter) under the 2021 EGA and EPoA. On 26 June 2023, the Tribunal received an application from the Son and Daughter seeking review of the 2021 EPoA. The Tribunal also received an application to review the revocation of the 2021 EPoA and an application to review the 2021 EGA.
On 19 October 2023, a differently constituted Tribunal heard the three applications by the Son and Daughter and made a financial management order committing the Mother’s estate to the management of the NSW Trustee and Guardian. The application for review of the revocation of the 2021 EPoA and application for review of the 2021 EGA were summarily dismissed.
The Son and the Daughter appealed against each of the orders made on 19 October 2023. On 16 August 2024, the Appeal Panel (the first Appeal Panel) determined the appeal: YJC v Public Guardian [2024] NSWCATAP 160. The decision to make a financial management order and to commit the Mother’s estate to the management of the NSWTAG was affirmed. The first Appeal Panel set aside the Tribunal’s decision to summarily dismiss the application for review of the revocation of the 2021 EPoA and the application to review the 2021 EGA. Both applications were remitted to the Tribunal for determination.
On 10 December 2024, a differently constituted Tribunal heard the remitted applications and found that the Mother did not have capacity to revoke the 2021 EPoA nor the 2021 EGA. It treated the review of the 2021 EGA as an application for a guardianship order and made a guardianship order for the Mother, appointing her Granddaughter as guardian for a term of 3 years.
The Son appealed against the Tribunal’s decisions of 10 December 2024, to declare that the Mother did not have capacity to revoke the 2021 EPoA and to make a guardianship order for her for 3 years with the Granddaughter as guardian.
Held (allowing the appeal in part):
(i) The appellant identified six decisions of the Tribunal from which he appealed [see 15] and submitted that together they raised 40 questions of law. In many of those stated questions, the Appeal Panel said it was not possible to discern a question of law, less still a question decided contrary to law [21].
(ii) As a preliminary matter, the Appeal Panel considered whether what the appellant termed a “cull direction” made by Principal Member Handebo on 2 October 2024 failed to comply with orders made by the first Appeal Panel and failed to take into account “relevant considerations”. On 2 October 2024, PM Handebo made several procedural directions, including a direction that the applicants (by 16 October 2024) and the respondents by (30 October 2024) provide to the Tribunal, with respect to the written material that was before the Tribunal on 19 October 2023, only documents “that are directly relevant to the legal and factual issues requiring determination by the Tribunal” (the cull direction) [28]. The appellant contended that that direction was contrary to the first Appeal Panel’s direction that the Tribunal reconsider the applications on the basis of all the material that was before the Tribunal at the hearing on 19 October 2023. The Appeal Panel noted that over 2,000 pages of documents were before the Tribunal on 10 December 2024, much of which was irrelevant to the remitted applications [34]. The evident purpose of the cull direction was to assist the Tribunal and other parties to identify what material the parties considered relevant to the remitted applications and to provide that material to each other. It did not prevent the Tribunal from considering material one party thought relevant and the other did not. The cull direction was an “unremarkable case management tool” and did not contravene the orders of the First Appeal Panel.
(iii) With respect to “Decision 1” (the decision to appoint the Granddaughter as the Mother’s guardian), the Appeal Panel found that the Tribunal had failed to respond to a “substantial, clearly articulated argument relying upon established facts” (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 (Dranichnikov)). That argument was that the Granddaughter (who had been appointed as guardian) had an undue conflict between her financial interests and those of the Mother [58] because of the conditions she foreshadowed she would impose if the Mother were to come to live with her, which included that the Mother pay for any necessary repairs to her property necessary to enable the Mother to live with her safely (the disputed conditions). The Appeal Panel noted that the Tribunal was faced “with the difficult task of identifying from the voluminous material filed by the parties, that which was relevant to the issues it was required to decide” [63]. Nonetheless, the argument had been clearly articulated in submissions made by the Son and Daughter and the Tribunal was obliged to consider it [69]. This ground of appeal was established.
(iv) With respect to “Decision 2” (the decision to make a guardianship order for a term of three years), the Appeal Panel considered whether, as the Son contended, ZCP v ZCQ [2016] NSWCATAP 213 (ZCP) was authority for the proposition that in deciding the period of a guardianship order, the Tribunal must “follow the ‘normal course’ of a one-year review” [105]. The Appeal Panel found that, contrary to the appellant’s assertion, ZCP did not say that a Tribunal cannot make a renewed (or initial) guardianship order for a period not exceeding the period specified in s 18(1) of the Guardianship Act, and that to do so involves a “discretionary judgement”. This ground was rejected.
(v) The Appeal Panel also rejected each of the grounds raised by the appellant in relation to “Decision 3” (to decline to declare the 2021 EPoA remains valid under s 36(3A)(b)(ii) of the Powers of Attorney Act).
(vi) Further, the Appeal Panel considered the appellant’s argument that various conduct and decisions made by, the Tribunal, gave rise to a reasonable apprehension of bias [131]. The alleged instances of bias were wide-ranging and included the decision to appoint the Granddaughter as guardian, the failure to criticise the conduct of two Separate Representatives appointed for the Mother and permitting the Grandson to tell “fabricated and antagonistic lies”. The Appeal Panel was not satisfied that any of the claims of apprehended bias, whether individually or together, gave rise to a reasonable apprehension of bias. It found that the appellant had misconstrued the “double-might” test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [see 141-142]. (vii) Decisions 4, 5 and 6 identified by the appellant (the decision to decline to adjourn the hearing listed on 10 December 2024; the decision to decline to "interview … Mum alone"; and the purported decision to decline to consider each of the allegations made by the applicants about the conduct of the Solicitor) required the leave of the Appeal Panel to be heard. Leave to appeal for all three decisions was refused as the Appeal Panel found that each decision had no prospects of success [196]. Particularly with respect to the decision to decline to “interview…Mum alone”, the Appeal Panel found that the “reasoning path which led the Tribunal to decline to speak to the mother” alone was apparent, namely, as the Mother had declined to do so and it would be inappropriate for the Tribunal to compel her in the circumstances [186].
(viii) Having found Ground 1 to be established, the Appeal Panel reconsidered the Tribunal’s decision to appoint the Granddaughter as the Mother’s guardian [199], specifically, whether it was satisfied that there was no undue conflict between the interests of the Mother and those of the Granddaughter (s 17(1)(b) Guardianship Act) [225]. The Appeal Panel noted that the Mother was now living with the Granddaughter and found that there was no evidence which might suggest that the Granddaughter had requested the Mother to contribute to repairs to her property. The Mother’s estate was being managed by the NSW Trustee and Guardian and therefore any decisions would be subject to its oversight and an assessment of whether any contribution by the Mother (if requested) towards the costs of repairing the property, was in her best interests [227]. The Appeal Panel was satisfied that there was no undue financial conflict of interest and affirmed the decision of the Tribunal made on 10 December 2024 to appoint the Granddaughter as guardian. | YMV v YNI [2025] NSWCATAP 261 A Britton, Deputy President, I Coleman SC ADCJ, Principal Member, L Porter, General Member (Community) – 17 October 2025
In Sum: In an appeal from the Guardianship Division of NCAT where an application for a financial management order was dismissed, an Appeal Panel refused leave to appeal on the basis that the application had no reasonable prospects of success. The appellant (the Son) applied three times for a financial management order under the Guardianship Act 1987 (NSW), asserting that his mother (the Mother) lacked capacity to manage her finances. The Son challenged a neuropsychologist’s comprehensive assessments in 2023 and 2024 that confirmed the Mother’s capacity; arguing that the reports were inconsistent with an earlier 2021 neurologist’s report. NCAT at first instance had found that the reports were “complementary” and the Mother retained capacity to manage her financial affairs. The Appeal Panel held that NCAT’s conclusion was reasonably open on the evidence and rejected this ground of appeal because it relied on the flawed premise that the neurologist’s report assessed the Mother’s capacity, which he had conceded, it did not.
Facts: The Mother is in her mid-seventies, and the Son is her only child. In 2019, the Mother moved to Sydney to live with her sister (the Sister) and in 2023 moved into a low-level residential aged care facility, where she still resides. The Mother had previously appointed her Son and Sister together under an enduring power of attorney, however she later revoked the appointment and in November 2024 appointed the Sister and her brother-in-law as her attorneys to act jointly. Following two earlier applications to the Guardianship Division in January and May 2024 seeking a financial management order, the Son made a further application in November 2024 requesting a financial management order be made under the Guardianship Act in respect of his Mother. The applications centred on the Son’s assertion that the Mother lacked capacity to manage her financial affairs and to revoke his appointment as her attorney.
At first instance (see Laura (a pseudonym) [2025] NSWCATGD 12), NCAT considered in detail three reports: a report of Dr Halpern, a neurologist dated April 2021, which noted imaging “suggestive of mild Alzheimer’s” but did not assess capacity; and two reports of Dr Breen, a neuropsychologist, dated September 2023 and June 2024. Dr Breen found that the Mother had decision-making capacity for financial decisions, requiring only minor support for daily tasks, and confirmed that there was no cognitive impairment that would require the enactment of an enduring power of attorney. The Guardianship Division dismissed the Son’s application and concluded, based on expert evidence and the Mother’s engagement with questions during the hearing, that the Mother retained capacity to manage her financial affairs. Importantly, NCAT concluded that the opinions of Drs Halpern and Breen were “complementary with different focuses attributable to their different disciplines”.
The Son appealed the decision. On appeal, the Mother submitted that the Son’s assertion that she lacks capacity to manage her financial affairs is inconsistent with the expert’s opinion and the Son’s actions in requesting and accepting substantial gifts of money from her over the past 18 months. She also submitted that the appeal is unmeritorious.
Held (refusing leave to appeal on the basis that the appeal is unmeritorious and has no reasonable prospects of success and dismissing the appeal):
(i) The Son’s first ground of appeal challenged NCAT’s finding that the expert opinions were “complementary.” The Appeal Panel held this argument rested on the flawed premise that Dr Halpern had assessed the mother’s decision-making capacity. In fact, Dr Halpern neither assessed nor expressed an opinion on the mother’s current capacity, whereas Dr Breen’s view that the Mother did have capacity was based on a comprehensive cognitive assessment. The Appeal Panel noted that the Son appeared to concede before the Tribunal that the Mother did not go to Dr Halpern for a capacity test (see [50]). The Appeal Panel held that is was reasonably open for NCAT to reach the conclusion it did on the evidence. This ground was dismissed.
(ii) In the second ground of appeal, the Son claimed Dr Breen ignored “critical” facts, including an alleged “debilitating stroke”, and Dr Halpern’s report. The Appeal Panel found that there was no medical evidence consistent with a stroke and noted that, while Dr Breen mentioned investigations by Dr Halpern, her list of materials relied on did not include Dr Halpern’s report. The Appeal Panel concluded that this ground failed as it relied on the flawed assumption that Dr Halpern assessed the Mother’s capacity.
(iii) The Son also argued that Dr Breen relied on “material falsehoods,” namely that AVOs had been taken out against him by the Mother’s former solicitor and accountant. The Appeal Panel noted this reference appeared in Dr Breen’s summary of the Mother’s interview and in her concluding remarks about concerns of coercion. While the Mother conceded the statement concerning AVOs was inaccurate, the Appeal Panel found that there was ample evidence from both parties that the Son had threatened the Mother’s former solicitor and accountant. The Appeal Panel agreed with the Mother’s submission that Dr Breen’s statement in relation to AVOs was not relevant to the assessment of the Mother’s decision-making capacity.
(iv) The Son also sought to rely on “fresh evidence” on appeal which he contended warranted the exercise of the discretion under s 80(2)(b) of the NCAT Act. The fresh evidence was said to establish deceitful conduct of the Sister and the Mother’s solicitors in attempts to frustrate the son’s relationship with the Mother. The Appeal Panel refused leave to rely on the “fresh evidence” noting that the material was available to the Son at first instance and he failed to provide a reason for why he did not provide the material at the first instance hearing. It was also observed that the material had no apparent relevance, and it was not highly probable that the evidence would have produced a different result at first instance.
(v) In refusing leave to appeal, the Appeal Panel held that “[a]t best, the grounds advanced by the appellant represent an expression of disagreement, based on his subjective belief, with the conclusion reached by the Tribunal that it was not satisfied that the Mother lacked capacity to manage her financial affairs. The proposed appeal is entirely unmeritorious and has no reasonable prospects of success”. | | SY v Public Guardian [2024] NSWSC 1669 Lindsay J – 24 December 2024
In Sum: A challenge to a guardianship order made by the Guardianship Division by the father of the subject person was dismissed by the Supreme Court and the decision to appoint the Public Guardian was affirmed in exercise of the Court’s inherent protective jurisdiction.
Facts: In 2023, the second defendant (the Son) was hospitalised in Belgrade, Serbia, in a psychotic state. The plaintiff (Father) commenced proceedings in the Guardianship Division of the NCAT with a view of facilitating the Son’s return to Australia (with the Father as his carer). On 14 December 2023, NCAT made limited guardianship orders appointing the Public Guardian for four months with the necessary functions to carry out advocacy and health care. On 12 April 2024, NCAT confirmed the Public Guardian as guardian for the Son for a period of 18 months.
The Father commenced proceedings in the Supreme Court on 21 December 2023 by way of a summons, which was subsequently amended on 9 February 2024. On 19 February 2024, the Court made interlocutory orders that the Public Guardian be appointed as a “committee of the person” of the Son with functions limited to those described in the Guardianship order on 14 December 2023, to assist in repatriating the Son back to Australia. The Father filed a further amended summons on 20 May 2024, challenging the Tribunal’s decision of 12 April 2024 (upon a review of by the Tribunal of its decision of 14 December 2023).
Held (dismissing the summons and affirming the decision of the Tribunal made 12 April 2024):
(i) It was unclear whether the Father’s challenge to the Tribunal’s decision of 12 April 2024 was an appeal under cl 14, Sch 6 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) or an application to the Court for an exercise of its inherent protective jurisdiction, called the parens patriae jurisdiction. Were the matter to be treated as an appeal against the Tribunal’s decision, the appeal would be dismissed as the Father had not identified any question of law which would entitle him to appeal as of right, nor had he sought the leave of the Court to appeal on any other ground [39]. Lindsay J decided to review the decision in exercise of the Court’s protective jurisdiction, noting factors in favour included the matter’s “origins in unusual circumstances” (the Son being overseas at the time of the Tribunal hearing on 14 December 2023), and the fact that the Court had previously considered it necessary to intervene by exercising its protective jurisdiction to appoint the Public Guardian whilst the Son was overseas.
(ii) The challenge to the Tribunal’s decision of 12 April 2024 was dismissed. The Father’s primary concern throughout the proceedings “[was] to be acknowledged as the person best able to advocate for the second defendant in his son’s engagement with the NSW health system” [31]. Nonetheless, the decision of the Tribunal was correct as evidence indicated that the Son was in need of a guardian, the Son’s strong preference was that the Father was not appointed as his guardian and the Father was not a suitable person to be appointed as guardian, including as he had formed negative relationships with many health professionals treating the Son. Given his primary concerns related to his son’s medical treatment, the Father was also free to provide information about the son’s circumstances to public health authorities and to make representations to them concerning the Son’s treatment if he wished.
(iii) The Father’s amended summons was dismissed with the effect that the Tribunal’s orders made on 12 April 2024 continued to operate. | | SY v Public Guardian [2025] NSWCA 148 Leeming JA, Adamson AJA – 8 July 2025
In Sum: The Court of Appeal refused leave to appeal orders made by Lindsay J in the Supreme Court on 24 December 2024 dismissing the applicant’s (SY or the Father) amended summons seeking review of orders made by NCAT in its Guardianship Division on 12 April 2024 to appoint the Public Guardian over the father. The father’s challenge to the orders of NCAT were dismissed by Lindsay J, finding that the NCAT decision was correct: see SY v Public Guardian [2024] NSWSC 1669 above. The Court of Appeal held that the father’s submissions largely replicated his submissions that were rejected below, he did not identify any issue of principle or question of public importance and the orders which were ultimately sought to be challenged, would be reviewed by NCAT in approximately 3 months from the date of the decision when the applicant could reagitate his application to be appointed as guardian.
Facts: SY submitted that both NCAT and the primary judge had erred in refusing his application to be appointed as guardian for the Son (VY) as he was eminently suitable for the role on account of his medical expertise, his close relationship with VY and, to the extent that VY indicated he did not wish for his Father to be appointed as his guardian, this was an “inversion of feelings” by VY.
Held (refusing leave to appeal and making no order as to costs):
(i) The Father failed to identify an issue of principle or a question of general public importance. It was clear that the Father considered there to be a “reasonably clear injustice” arising from having been passed over as a guardian, however the Court of Appeal held that there was no reasonably clear injustice going beyond what is merely arguable.
(ii) Their Honours considered that the orders of NCAT, which the Father ultimately sought to be challenged, would be reviewed by NCAT approximately 3 months after the date of the decision. Section 25(4) of the Guardianship Act 1987 (NSW) requires notice of the review to be served on each party to the proceedings and therefore the Father will receive notice of a review, and will be entitled to be heard at that review: GR v Secretary, Department of Communities and Justice [2023] NSWCA 239 [109]-[111] (Adamson JA), [178] (Basten AJA) and [209] (Griffiths AJA). Their Honours noted that if the Father wished to re-agitate his application to be appointed as the Son’s guardian, he could do so before NCAT, which is empowered to make a decision on the merits. |
|
|
