Evelyn (a pseudonym) - [2025] NSWCATGD 6

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Evelyn (a pseudonym) [2025] NSWCATGD 6
Hearing dates: 5 May 2025
Date of orders: 5 May 2025
Decision date: 05 May 2025
Jurisdiction: Guardianship Division
Before: S L Handebo, Principal Member
Dr C M West, Senior Member (Professional)
E A Pickering, General Member (Community)
Decision:
In relation to the enduring guardian appointment made by Evelyn on 5 November 2015 appointing Chris the Tribunal orders, directs or declares:
The resignation of Chris as an enduring guardian is approved.
The application for review is treated as if it were an application under the Guardianship Act 1987 (NSW) for a guardianship order for Evelyn.
1. A guardianship order is made for Evelyn.
2. The Public Guardian is appointed as the guardian.
3. This is a temporary guardianship order for a period of 30 days from 5 May 2025.
4. This is a limited guardianship order giving the guardian(s) custody of Evelyn to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where Evelyn may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take Evelyn to a place approved by the guardian.
ii) keep them at that place.
iii) return them to that place should they leave it.
c) Health care
To decide what health care Evelyn may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where Evelyn is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to Evelyn.
CONDITIONS:
6. The condition of this order is:
a) Standard Condition
In exercising this role, the guardian shall take all reasonable steps to bring Evelyn to an understanding of the issues and to obtain and consider their views before making significant decisions.

Catchwords:
GUARDIANSHIP – review of an enduring guardianship appointment – enduring guardian seeking resignation as guardian – whether the subject person continues to be in need of a guardian – conflicting views as to the subject person’s capacity – lack of functional capacity – ultimately considered to be in need of a guardian – resignation approved – application treated as an application for a guardianship order – temporary guardianship order only – need to make urgent decisions about health – Public Guardian appointed.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 6HB, 6HB(1)(a)-(b), 6K(3)(a), 6MA, 14(2), 17(4), 18(2), 33A(4)

Cases Cited:
IF v IG [2004] NSWADTAP 3

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Review of an Enduring Guardianship Appointment
Evelyn (the person)
St Vincents Hospital Sydney Ltd (applicant)
Chris (enduring guardian)
Elmer (joined party)
Public Guardian
NSW Trustee and Guardian
Tom (spouse)
Representation: None.

File Number(s): NCAT 2025/00068791
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…

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 Evelyn (a pseudonym)

Details

AGLC: Evelyn (a pseudonym) [2025] NSWCATGD 6
Case: [2025] NSWCATGD 6
Decision Date: 05 May 2025

CaseChat Overview and Summary

Evelyn, a pseudonymous individual, petitioned the court to review her enduring guardianship arrangement, which she had previously established, appointing Chris as her enduring guardian. Evelyn sought Chris's resignation as her guardian, citing differing opinions regarding her capacity and a perceived lack of functional capacity. The court had to determine if Evelyn remained in need of a guardian and, if so, whether Chris's resignation should be approved and how best to proceed with the guardianship arrangement. The court concluded that despite conflicting views on Evelyn's capacity, she did continue to require a guardian. Therefore, the resignation of Chris as an enduring guardian was approved, and the application for review was treated as an application for a guardianship order under the Guardianship Act 1987 (NSW).

The court ordered that a guardianship order be made for Evelyn, appointing the Public Guardian as her guardian. The order was temporary, lasting for 30 days from 5 May 2025, and was limited in scope, focusing primarily on accommodation and health care decisions. The guardian was authorised to decide Evelyn's residence, authorise others to take her to an approved location and keep her there, and make decisions about her health care, including consenting to minor or major medical or dental treatment when Evelyn was incapable of providing consent. Additionally, the guardian was tasked with making decisions about services to be provided to Evelyn. The court imposed a condition that the guardian must take all reasonable steps to involve Evelyn in understanding the issues and obtaining her views before making significant decisions.

In summary, the court approved Evelyn's request for Chris's resignation, treated the review application as a guardianship order application, appointed the Public Guardian, and established a temporary, limited guardianship order for Evelyn, focusing on accommodation and health care decisions. The Public Guardian was given specific functions and was required to involve Evelyn in decision-making processes to the extent possible.

Orders

Orders of the court

In relation to the enduring guardian appointment made by Evelyn on 5 November 2015 appointing Chris the Tribunal orders, directs or declares:

The resignation of Chris as an enduring guardian is approved.

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

1. A guardianship order is made for Evelyn.

2. The Public Guardian is appointed as the guardian.

3. This is a temporary guardianship order for a period of 30 days from 5 May 2025.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where Evelyn may reside.

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

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

ii) keep them at that place.

iii) return them to that place should they leave it.

c) Health care

To decide what health care Evelyn may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to Evelyn.

CONDITIONS:

6. The condition of this order is:

a) Standard Condition

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

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:	Evelyn (a pseudonym) [2025] NSWCATGD 6
Hearing dates:	5 May 2025
Date of orders:	5 May 2025
Decision date:	05 May 2025
Jurisdiction:	Guardianship Division
Before:	S L Handebo, Principal Member Dr C M West, Senior Member (Professional) E A Pickering, General Member (Community)
Decision:	In relation to the enduring guardian appointment made by Evelyn on 5 November 2015 appointing Chris the Tribunal orders, directs or declares: The resignation of Chris as an enduring guardian is approved. The application for review is treated as if it were an application under the Guardianship Act 1987 (NSW) for a guardianship order for Evelyn. 1. A guardianship order is made for Evelyn. 2. The Public Guardian is appointed as the guardian. 3. This is a temporary guardianship order for a period of 30 days from 5 May 2025. 4. This is a limited guardianship order giving the guardian(s) custody of Evelyn to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where Evelyn may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take Evelyn to a place approved by the guardian. ii) keep them at that place. iii) return them to that place should they leave it. c) Health care To decide what health care Evelyn may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where Evelyn is not capable of giving a valid consent. e) Services To make decisions about services to be provided to Evelyn. CONDITIONS: 6. The condition of this order is: a) Standard Condition In exercising this role, the guardian shall take all reasonable steps to bring Evelyn to an understanding of the issues and to obtain and consider their views before making significant decisions.
Catchwords:	GUARDIANSHIP – review of an enduring guardianship appointment – enduring guardian seeking resignation as guardian – whether the subject person continues to be in need of a guardian – conflicting views as to the subject person’s capacity – lack of functional capacity – ultimately considered to be in need of a guardian – resignation approved – application treated as an application for a guardianship order – temporary guardianship order only – need to make urgent decisions about health – Public Guardian appointed.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 6HB, 6HB(1)(a)-(b), 6K(3)(a), 6MA, 14(2), 17(4), 18(2), 33A(4)
Cases Cited:	IF v IG [2004] NSWADTAP 3
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Review of an Enduring Guardianship Appointment Evelyn (the person) St Vincents Hospital Sydney Ltd (applicant) Chris (enduring guardian) Elmer (joined party) Public Guardian NSW Trustee and Guardian Tom (spouse)
Representation:	None.
File Number(s):	NCAT 2025/00068791
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…