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 has Huntington’s disease – subject person continues to be in need of a guardian – Tribunal approval for resignation required – whether proposed substitute enduring guardian is eligible – where “authorise others” function sought – where function sought for authority to override subject person’s objections to medical and dental treatment – whether such a function can validly be granted – not an authority the Tribunal can confer – “authorise others” function granted – substitute enduring guardian appointed.

FINANCIAL MANAGEMENT – appointed enduring attorney seeking to resign as enduring attorney – review of enduring power of attorney – whether substitute attorney ought to be appointed – substitute attorney appointed.

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Guardianship Act 1987 (NSW), ss 3, 3(1)-2, 3(6)(a), 4, 6E, 6E(1)(e), 6HB, 6I(1), 6K, 6MA, 14, 14(2), 15(3), 17(1), 18(1)(a), 33(3), 33A, 34, 36, 46, 46A; Pts 3A, 5

Powers of Attorney Act 2003 (NSW), ss 36, 36(1)-(2)

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep

IF v IG [2004] NSWADTAP 3

NIQ [2014] NSWCATGD 28

P v D1 & Ors [2011] NSWSC 257

Re B [2011] NSWSC 1075

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

002: Review of an Enduring Guardianship Appointment

Arthur (the person)
Leo (applicant)
Michelle (enduring guardian)
NSW Trustee and Guardian
Public Guardian

003: Review of an Enduring Power of Attorney

Arthur (the person)
Leo (applicant)
Michelle (attorney)
NSW Trustee and Guardian

Representation:

Nil.

File Number(s):

NCAT 2024/00374571

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

1. Arthur is a 68-year-old man who resides in supported accommodation in South-West Sydney. Arthur is a participant of the National Disability Insurance Scheme (NDIS).

2. Arthur is supported by his ex-wife, Michelle, and his son, Leo. Arthur has another son who lives in Fiji and is reported to not be actively involved in Arthur’s care.

3. Despite having been divorced for many years, Arthur and Michelle are reported to maintain a close friendship.

4. In 2008, Arthur was diagnosed with Huntington’s Disease. As Arthur’s condition deteriorated, he identified the need to appoint a substitute decision-maker. On 1 August 2018, Arthur executed an Enduring Guardianship Appointment (“EGA”) and an Enduring Power of Attorney (“EPOA”). Michelle was appointed under these instruments as Arthur’s enduring guardian and attorney, noting that the instruments clearly identify that Michelle was Arthur’s former partner at the time the appointments were made.

5. The Tribunal has been provided copies of each of these instruments.

6. The Tribunal was informed that it had been the intention of Arthur and Michelle at the time that the appointments were made that once Arthur’s children (or either of them) were at an age where they could take on responsibility for management of Arthur’s personal and financial affairs that Michelle would relinquish her responsibilities in favour of one of Arthur’s children.

7. By letter addressed to the Tribunal and dated 14 November 2024, Michelle advised of her intention to resign as Arthur’s enduring guardian and attorney, subject to the Tribunal being satisfied that Leo is a suitable person to be appointed to these roles in her place.

8. On the same date, Michelle executed a “Notice of Resignation as Enduring Guardian”. A copy of this instrument has been provided to the Tribunal.

9. On 15 November 2024, the Tribunal received an application from Leo to review the EGA. On 13 February 2025, the Tribunal received an application from Leo to review the EPOA.

10. Both applications were listed for Hearing on 7 April 2025. The Hearing was conducted from the Tribunal’s Sydney Registry and was attended in person by Leo, Michelle and a friend and support person for Leo. The Hearing was attended remotely by Arthur, a Supported Independent Living (SIL) provider, and an NDIS Support Coordinator.

11. Although Arthur participated in the Hearing, the extent of his participation was significantly limited on account of the impacts of his various disabilities. Accordingly, the Tribunal was limited with respect to the ability to ascertain Arthur’s views regarding the applications.

12. The Tribunal decided:

1. In relation to the application to review the EPOA:

1. To undertake a review of the operation and effect of the EPOA;

2. To remove Michelle from office as attorney;

3. To appoint Leo as Arthur’s attorney to replace Michelle.

2. In relation to the review of the EGA:

1. To approve the resignation of Michelle as Arthur’s enduring guardian;

2. To appoint Leo as Arthur’s enduring guardian to replace Michelle;

3. To vary the functions under the EGA to include an “authorise others” function; and,

4. To treat the application as if it were an application for a guardianship order; and,

5. To appoint Leo as Arthur’s guardian for an initial period of twelve months with the functions of accommodation, authorise others, services, health care, and medical/dental consent, and with authority to override Arthur’s objections to medical and dental treatment.

REVIEW OF EGA

Legal Principles

13. Section 6HB of the Guardianship Act 1987 (NSW) (“the Act”) makes provision for an enduring guardian to resign from their appointment. If the appointer is not a person in need of a guardian, such resignation may be in writing (subject to compliance with various statutory requirements). If the appointer is a person in need of a guardian, such resignation may only occur with the approval of the Tribunal.

14. The Tribunal may, of its own motion or on application, appoint a person as a substitute enduring guardian if the appointee has died, resigned or become incapacitated: the Act, s 6MA. The Tribunal may only appoint a person under this section if:

1. The person is eligible to be appointed as an enduring guardian; and,

2. The Tribunal is satisfied that:

1. the appointor is in need of an enduring guardian;

2. the person has a close personal relationship with the appointor; and,

3. the person is capable of carrying out the functions of an enduring guardian.

15. On reviewing the appointment of an enduring guardian, in accordance with s 6K of the Act, the Tribunal may:

• confirm the appointment of an enduring guardian with or without varying the functions of the appointed enduring guardian

• proceed as if an application for guardianship or an application for financial management (or both) had been made or

• revoke the appointment, with or without then proceeding as if an application for guardianship or an application for financial management (or both) had been made.

16. The Tribunal may only proceed as if an application for guardianship or an application for financial management (or both) had been made if it considers it is in the best interests of the appointor to do so.

17. Section 6E of the Act identifies the functions that may be included in an EGA, which includes at s 6E(1)(e) “any other function relating to the appointor’s person that is specified in the instrument”. Apart from s 4 of the Act, the Act does not provide express guidance about the exercise of the Tribunal’s discretion to vary, or not vary, the functions given to an enduring guardian.

18. In our view, when considering whether or not to vary the functions given to an enduring guardian under an EGA, the Tribunal must be satisfied that the proposed function is a function that the appointer could have validly given their enduring guardian when making such appointment. This gives rise to the question of whether or not authority to override objections to medical and dental treatment, in accordance with s 46A of the Act, is a function that the Tribunal could validly give an enduring guardian on review of an EGA. This is discussed in more detail below, as is the issue of whether the function of “authorise others” may be added to an EGA on review by the Tribunal.

Can the Tribunal review an enduring guardian appointment to include authority to override a patient’s objections to medical and dental treatment?

Statutory Framework

19. Part 5 of the Act relates to medical and dental treatment, and associated issues of consent to treatment. Part 5 of the Act applies to a patient who is above the age of 16 years and who is incapable of giving consent to the carrying out of medical or dental treatment (save for any inconsistencies between the Act and provisions of a number of other Acts, none of which are applicable in this matter): the Act, s 34.

20. Section 33A of the Act makes provision for identification of “the person responsible”. Save for exceptions relating to children (as defined by the Children and Young Persons (Care and Protection) Act 1998 (NSW)) and persons under the care of the Secretary, s 33A of the Act provides that a person’s guardian is their person responsible “but only if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to the carrying out of medical or dental treatment on the person”. Section 36 of the Act provides that in the case of minor or major treatment, consent may be provided by the person responsible, and in any case, consent may be provided by the Tribunal.

21. Section 33(3) of the Act provides the following:

33 Definitions

…

(3)   For the purposes of this Part, a person shall be taken to object to the carrying out of medical or dental treatment--

(a)    if the person indicates (by whatever means) that he or she does not want the treatment to be carried out, or

(b)    if the person--

(i)    has previously indicated, in similar circumstances, that he or she did not then want the treatment to be carried out, and

(ii)    has not subsequently indicated to the contrary.

22. Section 46 of the Act relates to the effect of consent, and relevantly provides as follows:

46 Effect of consent

…

(2)    A consent given by a person responsible for, or the guardian of, the patient has no effect--

(a)    if the person carrying out or supervising the proposed treatment is aware, or ought reasonably to be aware, that the patient objects to the carrying out of the treatment, or

(b)    if the proposed treatment is to be carried out for any purpose other than that of promoting or maintaining the health and well-being of the patient.

(3) A consent given by the guardian of the patient has effect despite any objection made by a patient to the carrying out of the treatment if the guardian has consented to that treatment in accordance with the authority of the Tribunal under section 46A.

…

23. Section 46A of the Act empowers the Tribunal to authorise a guardian to override a patient’s objection to treatment as follows:

46A Power of guardian to override patient’s objection to treatment when authorised by the Tribunal

(1)    The Tribunal may confer on the guardian of a patient to whom this Part applies authority to override the patient's objection to the carrying out on the patient of major or minor treatment.

(2)    The Tribunal may confer such an authority only at the request or with the consent of the guardian and only if it is satisfied that any such objection will be made because of the patient's lack of understanding of the nature of, or reason for, the treatment.

(3)    The Tribunal may at any time--

(a)    impose conditions or give directions as to the exercise of such an authority, or

(b)    revoke such an authority.

(4)    The guardian may exercise such an authority only if satisfied that the proposed treatment is manifestly in the best interests of the patient.

Consideration

24. A person may appoint an enduring guardian with authority to provide consent to medical and dental treatment in the event that they become incapable of giving their own consent to such treatment. If such appointment is made, the enduring guardian is appropriately recognised as the person’s “person responsible”.

25. The statutory framework makes clear that there are limitations on the ability of a person responsible to provide substitute consent to medical and dental treatment. In particular, such authority is limited to providing consent to minor and major treatment (s 36 of the Act), and such consent has no effect if provided in circumstances where the patient objects to treatment, unless the guardian has been authorised by the Tribunal in accordance with s 46A of the Act (s 46 of the Act).

26. The express language of the legislation makes clear that only the Tribunal may authorise a guardian to provide consent to medical and dental treatment with authority to override a patient’s objection to treatment. Given this express limitation, the Tribunal finds that such authority could not be validly granted by an appointor under an EGA in accordance with s 6E(1)(e) of the Act.

27. This leaves open, however, the issue of whether the Tribunal, when reviewing the appointment of an EGA, may validly vary the functions under the EGA to include authority for an enduring guardian to override a patient’s objections to medical and dental treatment.

28. Factors in favour of this interpretation include:

1. There is no express provision contained within s 46A of the Act precluding such authority being provided by way of a variation of a function under an EGA;

2. Section 3 of the Act defines a “guardian” to include an “enduring guardian”; and,

3. Although the provisions of s 46A of the Act adopt the term “authority” rather than “function”, s 3(6)(a) of the Act provides that “a reference to a function includes a reference to a power, authority and duty”.

29. Factors weighing against this interpretation include the following:

1. Having regard to the intrusive and coercive nature of such authority, there is clear legislative intention for the Tribunal’s oversight of the use of such authority;

2. Such authority may only be granted at the request of, or with the consent of, the guardian; and,

3. An appointer may not validly grant such authority by way of an EGA under s 6E of the Act.

30. The Tribunal is satisfied that as the authority is not an authority that could validly be given by an appointer in accordance with s 6E of the Act, it is not an authority that the Tribunal may confer on an enduring guardian in the exercise of the Tribunal’s review powers. This interpretation is consistent with the Tribunal’s duty to follow the general principles under s 4 of the Act, ensuring that such authority is only granted on the basis of compelling evidence as to the need for same, consistent with the subject person’s best interests, and ensuring appropriate and ongoing oversight by the Tribunal when such authority is granted.

31. As a matter of statutory interpretation and having regard to the protective jurisdiction exercised by the Tribunal, the Tribunal finds that there is no power at law for an EGA to be varied by the Tribunal to authorise an enduring guardian to override a patient’s objection to medical or dental treatment.

Can the Tribunal review an enduring guardian appointment to include an “authorise others” function?

32. An “authorise others” function, also commonly referred to as a coercive function, is a function crafted by the Tribunal which authorises a guardian to enlist the assistance of others, including the NSW Police and the NSW Ambulance service, to:

1. take the person under guardianship to a place approved by the guardian;

2. keep them at that place; and,

3. return them to that place should they leave it.

33. The circumstances where such a function may be granted commonly include situations where assistance is required to implement an accommodation decision (such as discharge from hospital to an aged care facility in the context of opposition by the person subject to guardianship) or where such authority is required to ensure that the person is transported to and/or remains at a specified location (such as requiring attendance upon a hospital for the purpose of receiving medical treatment, or attempts by the person to discharge from hospital against advice).

34. The authorise others function, like the majority of functions imposed by the Tribunal, is not a creature of statute. That is, the Act (save for the issues discussed above with respect to authority to override objections to medical and dental treatment) does not define the functions that may be granted to a guardian, and the functions that may be imposed by the Tribunal have never been exhaustively defined.

35. In NIQ [2014] NSWCATGD 28, the Tribunal noted that such function should only be granted in limited circumstances, where a person’s decision-making incapacity would expose them to “neglect, abuse or exploitation”:

“[51]    Given their draconian nature, in the absence of requisite evidence, the Tribunal is loath to authorise the use of force by a guardian to enforce a substitute decision which is made by the guardian but not supported by the person themselves. Only in circumstances whereby a person's decision making incapacity is such that it results in them making decisions which expose them to neglect, abuse or exploitation (or they are incapable of making important decisions and others make decisions on their behalf which cause neglect, abuse or exploitation) does the Tribunal contemplate the application of coercive authority.”

36. In contrast to the issues discussed above regarding authority to override objections to medical and dental treatment, there are no statutory restrictions with respect to the imposition of an authorise others function. In the absence of such restrictions, the Tribunal is satisfied that an appointer may validly grant an enduring guardian with an authorise others function under s 6E of the Act, being “any other function relating to the appointor’s person”.

37. It follows from this finding that, being a function that may validly be granted by the appointor, it is also a function that may validly be included by the Tribunal when undertaking a review of an EGA.

38. The principles outlined in NIQ are relevant to the Tribunal’s decision when considering whether such function ought to be granted, irrespective of whether this is by way of variation of the functions under an EGA, or whether by way of guardianship order. That is, such a function would not be readily conferred by the Tribunal without compelling evidence as to the necessity for same.

39. If the Tribunal is satisfied that an authorise others function should be granted, the Tribunal retains a discretion as to whether this function should be conferred by way of a variation of the functions under the EGA, or by the making of a guardianship order, with such discretion to be exercised in accordance with the principles under s 4 of the Act. A relevant consideration in the exercise of this discretion includes whether the evidence supports an ongoing need for the use of such function, or otherwise whether the function should be conferred for a limited period of time by way of a guardianship order (thus enabling the Tribunal to consider whether the function ought to be lapsed on subsequent review by the Tribunal).

What did the Tribunal have to decide?

40. The issues requiring determination by the Tribunal, in relation to the review of the EGA, were:

• Is Arthur a person in need of a guardian?

• If so, should the Tribunal approve Michelle’s resignation as enduring guardian?

• If so, should the Tribunal appoint Leo to replace Michelle as Arthur’s enduring guardian?

• Should the Tribunal vary the functions under the EGA?

• Should the Tribunal treat the application as if it were an application for a guardianship order?

Is Arthur a person in need of a guardian?

41. A person in need of a guardian is “a person who, because of a disability, is totally or partially incapable of managing their person”: the Act, s 3(1).

42. The Tribunal was provided with a number of medical and allied health reports in support of the current application, including the following:

1. Health Professional Report Form prepared by Dr Z dated 6 March 2025;

2. Report from a Behaviour Support Practitioner (undated, submitted to the Tribunal on 13 February 2025);

3. Letter from an Occupational Therapist, dated 3 December 2024;

4. Discharge Referral from a public hospital (from an Attending Medical Officer) dated 31 March 2025.

43. The reports outline that Arthur lives with a number of complex diagnoses, including Huntington’s Disease, major neurocognitive disorder with significant executive impairment, long-standing dysphagia, bilateral osteoarthritis, depression, anxiety, primary biliary cirrhosis, and Human Immunodeficiency Virus (HIV).

44. Dr Z also reports a diagnosis of schizophrenia. This diagnosis is not referred to in other reports available to the Tribunal, however there are consistent reports of Arthur being diagnosed with a “psychotic disorder secondary to Huntington’s Disease”.

45. The impacts of Arthur’s disabilities are reported to include the following:

1. Arthur requires assistance with all Activities of Daily Living (ADLs) and Instrumental Activities of Daily Living (IADLs).

2. Arthur has reduced expressive and receptive language skills. He is able to follow simple 1-2 step verbal instructions, but has difficulty recalling and providing information about complex or abstract information. His speech is soft, slow and has reduced clarity.

3. Arthur’s ability to self-regulate is reduced by his psychotic symptoms. He is treated by quarterly depot injections, but as the dosage wears off, he experiences an increase in delusional thoughts and displays aggressive behaviours.

4. Arthur has been assessed as having severely impaired global cognition with a significant reduction in his executive functioning skills to retain new information, and process and understand information.

46. Aside from the discrepancy between reporting of a diagnosis of schizophrenia and a diagnosis of a psychotic disorder secondary to Huntington’s Disease, the professional evidence before the Tribunal was generally consistent.

47. The Tribunal is satisfied that Arthur has a primary disability of Huntington’s Disease and a number of secondary disabilities, the impacts of which result in significant functional and cognitive decline to the extent that Arthur is incapable of managing his person. Accordingly, the Tribunal is satisfied that Arthur is a person in need of a guardian.

Should the Tribunal approve Michelle’s resignation as enduring guardian?

48. Consequent to the Tribunal’s finding that Arthur is a person in need of a guardian, Michelle may only resign from her appointment as enduring guardian with the Tribunal’s approval.

49. Michelle expressed clearly her desire to resign from her appointment, and her apparent prior agreement with Arthur that she would act as his guardian until his children (or either of them) were in a position to assume responsibility as Arthur’s guardian (noting that Leo was still a child when Michelle was originally appointed as Arthur’s enduring guardian).

50. Reports from service providers identify that they have had difficulties engaging with Michelle in the exercise of her responsibilities as enduring guardian owing to her regular absences from Australia. This has apparently resulted in services being terminated for Arthur due to an inability to enter into new service agreements, and difficulties ensuring ongoing medication compliance.

51. In circumstances where Michelle is no longer willing and able to exercise the functions under the EGA the Tribunal is satisfied that her resignation should be approved by the Tribunal.

Should the Tribunal appoint Leo to replace Michelle as Arthur’s enduring guardian?

52. The application was made by Leo based on his proposal that he be appointed to replace Michelle as Arthur’s enduring guardian.

53. Despite his young age (Leo is in his early 20s), Leo presented to the Tribunal as being both willing and able to exercise the functions of guardianship. He had a sound understanding of his father’s current care needs and an appreciation of the nature of the decisions he may be tasked to make in his appointment as enduring guardian.

54. Reports provided to the Tribunal outline that Leo and Arthur have a strong and continuing relationship, with Leo being a regular visitor to Arthur’s home and being actively engaged in all aspects of his care.

55. Leo’s appointment was supported by Michelle.

56. Leo identified that he, Arthur and Michelle have had lengthy discussions about Leo replacing Michelle as Arthur’s guardian, and that this was a proposal supported by all three of them.

57. The Tribunal was satisfied that Arthur’s best interests would be promoted by the appointment of Leo as his enduring guardian in light of the Tribunal’s decision to approve Michelle’ resignation.

Should the Tribunal vary the functions under the EGA?

58. At Hearing the Tribunal considered the nature of the functions that should be allocated to Arthur’s guardian. The EGA makes provision for Arthur’s guardian to make decisions with respect to where he lives, the personal services he receives, the health care he receives, and for substitute consent to medical/dental treatment.

59. The Tribunal was informed that despite displaying a number of behaviours of concern, Arthur is not subject to any restrictive practices. He is prescribed major medications (psychotropic), including paliperidone (quarterly depot) and risperidone (on a PRN basis), though these medications are not considered a restrictive practice as they are prescribed for the management of Arthur’s diagnosed psychotic illness.

60. The Tribunal was informed that there are ongoing concerns about Arthur’s medication non-compliance and his willingness to accept health care generally. Arthur is consistently oppositional to attending hospital and medical appointments when the need arises, resulting in significant risks to his physical health. Due to Arthur’s executive dysfunction he is unable to recognise when there is a pressing need for medical treatment. It was asserted, and the Tribunal accepts, that there is a need for a guardian to be appointed with an authorise others function for the purpose of ensuring that Arthur can be transported to hospital as the need arises. Whilst intended to be used as a last resort, the inclusion of this function ensures that Arthur is able to receive timely and appropriate medical treatment notwithstanding his resistance to attending upon a medical practitioner to receive same. The need for Arthur to obtain timely treatment is exacerbated by his immune deficiency associated with his treatment for HIV.

61. The Tribunal was also informed that Arthur consistently demonstrates medication non-compliance. In the first instance behavioural interventions are implemented in an attempt to prompt Arthur’s compliance, however, he “doesn’t get persuaded often” and accordingly he regularly misses his medications. There has been an increasing need for Arthur’s medications to be hidden/dissolved in Arthur’s foods to conceal administration of the medication. Whilst the Tribunal notes that Arthur, as a consequence of his dysphagia, requires a pureed diet, the Tribunal was informed that the basis for the medications being concealed is to ensure his medication compliance against his objection to treatment, rather than a consequence of Arthur’s swallowing difficulties.

62. The Tribunal is satisfied that the functions under the EGA should be varied to include an authorise others function so as to ensure that Arthur can be transported to hospital (or for attendance on a medical or allied health practitioner) as the need arises to obtain necessary and appropriate medical care.

63. The Tribunal is also satisfied that there is a need for a guardian to be authorised to override Arthur’s objections to medical and dental treatment. In light of the Tribunal’s findings above, such authority cannot be conferred by way of review of the EGA.

Should the Tribunal treat the application as if it were an application for a guardianship order?

64. Having determined that there is a need for a guardian to be authorised to override Arthur’s objections to medical and dental treatment, and in circumstances where such authority cannot be conferred on an enduring guardian, the Tribunal decided to treat the application for review of the EGA as if it were an application for a guardianship order.

65. The Tribunal notes that in accordance with s 6I(1) of the Act, the making of a guardianship order suspends the operation of the EGA (in its entirety) for the duration of the order.

66. On review of the guardianship order, should Arthur no longer require a guardian with authority to override his objections to medical and dental treatment, the Tribunal’s orders make provision for Leo to assume decision-making responsibility under the EGA with the necessary functions should the guardianship order be lapsed/revoked.

APPLICATION FOR GUARDIANSHIP ORDER

What did the Tribunal have to decide?

67. The questions which had to be decided by the Tribunal were:

• Is Arthur someone for whom the Tribunal could make an order?

• Should the Tribunal make a guardianship order and if so, what order should be made?

• Who should be the guardian and how long should the order last?

Legal Principles

68. Section 14 of the Act provides that the Tribunal may make a guardianship order for a person if we are satisfied that the person is “a person in need of a guardian”.

69. A person in need of a guardian is "a person who, because of a disability, is totally or partially incapable of managing their person": the Act, s 3(1). The disability must restrict them in one or more major life activities to the extent that they require supervision or social habilitation: the Act, s 3(2).

70. If a person is a person in need of a guardian, the Tribunal has a discretion as to whether or not to make a guardianship order. Section 14(2) of the Act outlines a number of equally important factors for the Tribunal to consider and balance in the exercise of our discretion. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

71. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she must:

1. have a personality generally compatible with the personality of the person under guardianship;

2. have no undue conflict of interest (particularly financial) with those of the person; and

3. be able and willing to exercise the functions of the order.

72. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, [66]).

73. In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

74. The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed: the Act, s 15(3).

75. Subject to certain exceptions, none of which apply in the current circumstances, an initial guardianship order can be made for a period of up to one year from the date on which it was made: the Act, s 18(1)(a).

76. The nature of Arthur’s disabilities and the impacts on his ability to manage his person are referred to above in relation to the review of the EGA. On the basis of such evidence the Tribunal is satisfied that Arthur is a person for whom the Tribunal could make a guardianship order.

77. The need for a guardian to be appointed with an authorise others function and authority to override objections to medical and dental treatment is discussed above.

78. In circumstances where the making of a guardianship order will suspend the operation of the EGA the Tribunal decided that the functions provided for in the EGA, namely accommodation, services, health care and medical/dental consent, should continue under a guardianship order. The making of the EGA is prima facie evidence that Arthur’s wishes were for his guardian to make decisions about these issues.

79. The Tribunal was unable to obtain clear views from Arthur about the making of a guardianship order. The evidence provided to the Tribunal by Michelle and Leo was to the effect that it had always been Arthur’s intention that one of his children would assume decision-making responsibility for him when they were able to do so, and that in discussions with Arthur he remained supportive of this proposal. Prior to the Hearing the Tribunal’s Case Officer was able to discuss the applications with Arthur. It is reported that during these conversations Arthur was supportive of Leo’s appointment as a decision-maker for him, but preferred that the responsibility be shared between Leo and Michelle.

80. After explaining the basis of why a guardianship order would be required, namely the necessity for a guardian to be able to authorise medical and dental treatment contrary to Arthur’s objections, Michelle and Leo each supported the making of a guardianship order.

81. There is no evidence before the Tribunal to suggest that the making of a guardianship order would have an impact on Arthur’s existing family relationships. Leo informed the Tribunal that he was confident that there would be no adverse impacts on his relationship with his father even if he were required to make decisions contrary to Arthur’s stated wishes.

82. There was no evidence before the Tribunal with respect to any cultural or linguistic considerations relevant to the Tribunal’s determination.

83. The written material before the Tribunal outlines that there have been issues with service provision for Arthur on account of difficulties communicating with Michelle to enter into new service agreements and Arthur’s inability to enter into his own service agreements. Having regard to these previous difficulties, the Tribunal is satisfied that it would be impractical for services to be provided to Arthur in the absence of a guardian.

84. The Tribunal was, accordingly, satisfied that a guardianship order should be made for Arthur with the functions of accommodation, authorise others, services, health care, medical/dental consent, and authority to override Arthur’s objections to medical/dental treatment.

85. Leo’s suitability for appointment as Arthur’s guardian is addressed above with respect to his appointment as Arthur’s enduring guardian. The evidence referred to above supports a finding that Arthur and Leo have personalities that are generally compatible, and that Leo is able and willing to exercise the functions of guardianship. There is no evidence before the Tribunal with respect to any conflict of interest that would preclude Leo’s appointment as guardian.

86. The Tribunal is satisfied that Leo meets the requirements under the Act to be appointed as Arthur’s guardian. Accordingly, the Tribunal decided to appoint Leo as Arthur’s guardian.

87. The issue giving rise to the making of a guardianship order is the need for a guardian to override Arthur’s objections to medical and dental treatment. At this stage it is unclear whether or not this will be an ongoing concern. The Tribunal decided that an initial guardianship order should be made for a period of twelve months, at which time the order will be reviewed by the Tribunal. On review, the Tribunal would be assisted by further evidence as to the nature of any decisions that have been made under the override objections authority, and the frequency of any such decisions. This will assist the Tribunal in determining whether there continues to be a need for a guardianship order, or otherwise whether the order could be lapsed/revoked (in which case the operation of the EGA would be revived).

REVIEW OF ENDURING POWER OF ATTORNEY

88. The Tribunal may, on the application of an interested person, decide to review the making or the operation and effect of a reviewable power of attorney, or not to carry out such a review: Powers of Attorney Act 2003 (NSW), s 36(1). As a consequence of reviewing the making or operation and effect of a reviewable power of attorney, the Tribunal may decide whether or not to make an order under s 36 of the Powers of Attorney Act: s 36(2).

89. In Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516, Slattery J stated at [80]:

“On an application for s 36 review such as this the Court must first exercise a discretion under Powers of Attorney Act, s 36(1) to decide whether or not to conduct a s 36 review. In my view the Court does not have to conduct a full review of all documents associated with the operation of the subject power of attorney to do this. Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review. In the circumstances of this case the Court can glean sufficient information to exercise the s 36(1) discretion by undertaking a general survey of what... (a party)...has produced.”

90. The Tribunal may make a number of orders relating to the operation and effect of a power of attorney if it is satisfied:

• that it would be in the best interests of the principal to make the order

• that it would better reflect the wishes of the principal to make the order

91. These orders include, but are not limited to:

• an order removing a person from office as attorney

• an order appointing a substitute attorney to replace an attorney who has been removed from office or who otherwise vacates the office

• an order revoking all or part of the power of attorney

92. If on a review of the enduring power of attorney, the Tribunal decides not to make an order under s 36 of the Powers of Attorney Act, it may, if it considers it appropriate in all of the circumstances to do so, decide to treat the application for review as an application for a financial management order under Pt 3A of the Act.

93. The application was made to the Tribunal in circumstances where Michelle has indicated her intention to resign from her appointment and there is a proposal for Leo to be substituted in her place. At Hearing, Michelle confirmed her intention to resign from her appointment in favour of Leo assuming responsibility for Arthur’s financial affairs. It is her intention to retire to Fiji, making it impractical for her to continue to be responsible for the management of Arthur’s financial affairs.

94. In circumstances where Arthur’s appointed attorney is no longer willing to continue in her appointment, the Tribunal is satisfied that there is an appropriate basis to undertake a review of the EPOA.

95. For the same reasons, the Tribunal is satisfied that it would be in Arthur’s best interests to remove Michelle from office as Arthur’s attorney.

96. Leo told the Tribunal that Arthur does not own any real estate and has just over one million dollars in a savings account. Arthur has received long term assistance from a financial advisor, and it is Leo’s intention to continue to work with Arthur’s financial advisor in order to make appropriate decisions regarding the management of Arthur’s financial affairs.

97. Following discussion with Leo the Tribunal was satisfied that:

1. there would be no conflict of interest should Leo be appointed as Arthur’s attorney;

2. Leo has a sufficient understanding of his fiduciary duties as an attorney and has insight and objectivity as to the nature of any decisions that may need to be made on Arthur’s behalf; and,

3. there were no concerns identified with respect to Leo’s responses to the Tribunal’s usual probity questions.

98. In circumstances where the Tribunal has removed Michelle from office as Arthur’s attorney, and where the evidence clearly supports that Arthur lacks the functional and cognitive abilities to manage his own finances, the Tribunal decided that Leo should be appointed as Arthur’s attorney.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 29 August 2025