Arthur (a pseudonym) - [2025] NSWCATGD 9

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Arthur (a pseudonym) [2025] NSWCATGD 9
Hearing dates: 07 April 2025
Date of orders: 07 April 2025
Decision date: 07 April 2025
Jurisdiction: Guardianship Division
Before: S L Handebo, Principal Member
Dr K J Banerjee, Senior Member (Professional)
M Black, General Member (Community)
Decision:
REVIEW OF ENDURING GUARDIANSHIP APPOINTMENT
In relation to the enduring guardian appointment made by Arthur on 1 August 2018 appointing Michelle the Tribunal orders, directs or declares:
The functions of the enduring guardian are varied to include an additional function as outlined below:
The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
1. take Arthur to a place approved by the guardian;
2. keep him at that place;
3. return him to that place should he leave it.
The application for review is treated as if it were an application under the Guardianship Act 1987 (NSW) for a guardianship order for Arthur.
The resignation of Michelle as an enduring guardian is approved.
Leo is appointed to replace Michelle.
1. A guardianship order is made for Arthur.
2. Leo of [Address removed for publication.] is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 7 April 2025.
4. This is a limited guardianship order giving the guardian(s) custody of Arthur to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where Arthur may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take Arthur to a place approved by the guardian.
ii) keep him at that place.
iii) return him to that place should he leave it.
c) Health care
To decide what health care Arthur may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where Arthur is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to Arthur.
AUTHORITY:
6. The guardian has the following authority:
a) Authority to override objections to medical treatment
i) The guardian may override the objection of Arthur to major or minor medical treatment.
CONDITION:
7. The condition of this order is:
a) Standard Condition
In exercising this role, the guardian shall take all reasonable steps to bring Arthur to an understanding of the issues and to obtain and consider his views before making significant decisions.
REVIEW OF ENDURING POWER OF ATTORNEY
In relation to the enduring power of attorney made by Arthur on 1 August 2018 which appointed Michelle as attorney(s) the Tribunal determines, orders or declares:
to carry out a review of the operation and effect of the enduring power of attorney.
Michelle is removed from office as an attorney.
Leo is appointed to replace Michelle.

Catchwords:
GUARDIANSHIP – appointed enduring guardian seeking to resign as enduring guardian – subject person…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arthur (a pseudonym)

Details

AGLC: Arthur (a pseudonym) [2025] NSWCATGD 9
Case: [2025] NSWCATGD 9
Decision Date: 07 April 2025

CaseChat Overview and Summary

In the case of Arthur (a pseudonym), the Supreme Court of New South Wales addressed the resignation of an enduring guardian and the appointment of a substitute guardian, as well as the review of an enduring power of attorney. Arthur, diagnosed with Huntington’s disease, had previously appointed Michelle as both his enduring guardian and attorney under an enduring power of attorney. Michelle subsequently sought to resign from her roles, prompting the need for substitute appointments and the review of the enduring power of attorney.

The court had to determine whether Michelle's resignation as an enduring guardian should be approved, and if so, whether the proposed substitute guardian, Leo, was eligible for the role. Additionally, the court needed to decide whether the substitute guardian should have the authority to override Arthur's objections to medical treatment, and if so, the extent of such authority. The court also had to review the enduring power of attorney and decide if a substitute attorney should be appointed, and if so, who that substitute should be.

The court found that Michelle's resignation as an enduring guardian should be approved and that Leo was an eligible and suitable substitute guardian. The court granted Leo the authority to override Arthur's objections to medical treatment, including the authority to authorise others, such as members of NSW Police and the Ambulance Service, to take Arthur to an approved place, keep him there, and return him if he leaves. The court also determined that a review of the operation and effect of the enduring power of attorney was necessary and that Michelle should be removed from office as an attorney, with Leo appointed as her replacement.

The court made a guardianship order for Arthur, appointing Leo as his guardian with specific functions and authority, including the ability to override Arthur's objections to medical treatment. The order included a condition that the guardian must take reasonable steps to understand Arthur's views before making significant decisions. Additionally, the court removed Michelle from her position as attorney and appointed Leo as her replacement.

Orders

Orders of the court

REVIEW OF ENDURING GUARDIANSHIP APPOINTMENT

In relation to the enduring guardian appointment made by Arthur on 1 August 2018 appointing Michelle the Tribunal orders, directs or declares:

The functions of the enduring guardian are varied to include an additional function as outlined below:

The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

1. take Arthur to a place approved by the guardian;

2. keep him at that place;

3. return him to that place should he leave it.

The application for review is treated as if it were an application under the Guardianship Act 1987 (NSW) for a guardianship order for Arthur.

The resignation of Michelle as an enduring guardian is approved.

Leo is appointed to replace Michelle.

1. A guardianship order is made for Arthur.

2. Leo of [Address removed for publication.] is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 7 April 2025.

4. This is a limited guardianship order giving the guardian(s) custody of Arthur to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where Arthur may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take Arthur to a place approved by the guardian.

ii) keep him at that place.

iii) return him to that place should he leave it.

c) Health care

To decide what health care Arthur may receive.

d) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where Arthur is not capable of giving a valid consent.

e) Services

To make decisions about services to be provided to Arthur.

AUTHORITY:

6. The guardian has the following authority:

a) Authority to override objections to medical treatment

i) The guardian may override the objection of Arthur to major or minor medical treatment.

CONDITION:

7. The condition of this order is:

a) Standard Condition

In exercising this role, the guardian shall take all reasonable steps to bring Arthur to an understanding of the issues and to obtain and consider his views before making significant decisions.

REVIEW OF ENDURING POWER OF ATTORNEY

In relation to the enduring power of attorney made by Arthur on 1 August 2018 which appointed Michelle as attorney(s) the Tribunal determines, orders or declares:

to carry out a review of the operation and effect of the enduring power of attorney.

Michelle is removed from office as an attorney.

Leo is appointed to replace Michelle.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Arthur (a pseudonym) [2025] NSWCATGD 9
Hearing dates:	07 April 2025
Date of orders:	07 April 2025
Decision date:	07 April 2025
Jurisdiction:	Guardianship Division
Before:	S L Handebo, Principal Member Dr K J Banerjee, Senior Member (Professional) M Black, General Member (Community)
Decision:	REVIEW OF ENDURING GUARDIANSHIP APPOINTMENT In relation to the enduring guardian appointment made by Arthur on 1 August 2018 appointing Michelle the Tribunal orders, directs or declares: The functions of the enduring guardian are varied to include an additional function as outlined below: The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: 1. take Arthur to a place approved by the guardian; 2. keep him at that place; 3. return him to that place should he leave it. The application for review is treated as if it were an application under the Guardianship Act 1987 (NSW) for a guardianship order for Arthur. The resignation of Michelle as an enduring guardian is approved. Leo is appointed to replace Michelle. 1. A guardianship order is made for Arthur. 2. Leo of [Address removed for publication.] is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 7 April 2025. 4. This is a limited guardianship order giving the guardian(s) custody of Arthur to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where Arthur may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take Arthur to a place approved by the guardian. ii) keep him at that place. iii) return him to that place should he leave it. c) Health care To decide what health care Arthur may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where Arthur is not capable of giving a valid consent. e) Services To make decisions about services to be provided to Arthur. AUTHORITY: 6. The guardian has the following authority: a) Authority to override objections to medical treatment i) The guardian may override the objection of Arthur to major or minor medical treatment. CONDITION: 7. The condition of this order is: a) Standard Condition In exercising this role, the guardian shall take all reasonable steps to bring Arthur to an understanding of the issues and to obtain and consider his views before making significant decisions. REVIEW OF ENDURING POWER OF ATTORNEY In relation to the enduring power of attorney made by Arthur on 1 August 2018 which appointed Michelle as attorney(s) the Tribunal determines, orders or declares: to carry out a review of the operation and effect of the enduring power of attorney. Michelle is removed from office as an attorney. Leo is appointed to replace Michelle.
Catchwords:	GUARDIANSHIP – appointed enduring guardian seeking to resign as enduring guardian – subject person…