Maria (a pseudonym) (No 2)

[2025] NSWCATGD 3

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Maria (a pseudonym) (No 2) [2025] NSWCATGD 3

Hearing dates:

29 April 2025

Date of orders:

29 April 2025

Decision date:

29 April 2025

Jurisdiction:

Guardianship Division

Before:

S L Handebo, Principal Member

Decision:

The guardianship order for Maria made on 25 May 2023 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of six months from 29 April 2025.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Access

To decide what access Maria has to others and the conditions of access.

b) Advocacy

To advocate generally for Maria.

c) Accommodation

To decide where Maria may reside.

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

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

ii) keep her at that place.

iii) return her to that place should she leave it.

e) Health care

To decide what health care Maria may receive.

f) Medical/Dental consent

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

g) Services

To make decisions about services to be provided to Maria.

h) Legal services

To make decisions for Maria in relation to access to legal services.

i) Travel

To make decisions about whether or not Maria can travel to any place outside Australia.

j) Passport

To make a decision about whether or not the passport of Maria should be surrendered to the guardian or some other authority the guardian nominates pending a decision by the guardian concerning travel.

k) Restrictive Practices

To give or withhold consent to restrictive practices used to influence Maria’s behaviour.

CONDITIONS:

5. The conditions of this order are:

a) Standard Condition

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

b) Aged Care Restrictive Practices Condition

The guardian(s) may only consent to the use of restrictive practices to influence Maria’s behaviour:

(i) as a last resort to prevent Maria harming herself or others; and

(ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to Maria or other persons;

(iii) after consideration of the likely impact of the use of the restrictive practice on Maria; and

(iv) in accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014 (Cth), after consultation with a health practitioner with expertise relevant to Maria’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in Maria’s circumstances.

Catchwords:

GUARDIANSHIP – review of guardianship order – whether the subject person continues to be a person in need of a guardian – whether the Tribunal should undertake any action on review and, if so, who should be the guardian, what functions should be given and how long should any further order last – the utility of making a further order where the subject person and the appointed guardian are overseas – guardian considered necessary should the subject person be repatriated to Australia – the Public Guardian appointed.

PROCEDURAL ISSUES – standing – whether the NSW Trustee has standing to bring the application – service of the review application – whether service was properly effected – personal service not necessary – participation of subject person and appointed guardian – in circumstances where neither the subject person nor the appointed guardian attended the hearing – no procedural fairness issues arise as notice of the hearing was provided – jurisdiction – whether the Tribunal has jurisdiction to hear the application where both the subject person and the appointed guardian are overseas – extra-territorial operation of the Tribunal’s jurisdiction is warranted.

Legislation Cited:

Aged Care Act 1997 (Cth), ss 54-1(f), 54-9(1)

Civil and Administrative Tribunal Act 2013 (NSW), ss 4(2)(a) of Sch 6, 38(5)

Domicile Act 1979 (NSW), s 7(2)

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 25(2)(a), 14, 14(2), 15(3), 17(1), 25(4)-(5), 25B

Interpretation Act 1987 (NSW), ss 12,15, Sch 4

NSW Trustee and Guardian Act 2009 (NSW), s 5

Quality of Care Principles 2014 (Cth), s 15FA

Cases Cited:

ACJ [2007] NSWGT 15

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

JAK [2007] NSWGT 23

Jumbunna Coal Mine v Victorian Coal Miners’ Association (1908) 6 CLR 309

Kertesz v Kertesz [1954] VicLawRp 28

Kumagai Gumi Co Ltd v FCT (1999) 161 ALR 699

MGV [2017] NSWCATGD 40

NCK [2004] WAGAB 6

NGM [2011] NSWGT 7

P v D1 & Ors [2011] NSWSC 257

QAG [2007] NSWGT 12

Re B [2011] NSWSC 1075

Re G [1966] NZLR 1028

Re S (Hospital Patient: Foreign curator) [1995] 4 All ER 30

Texts Cited:

NSW Trustee and Guardian, “The NSW Trustee and Guardian Annual Report 2023-24”

14 July 2025

Category:

Principal judgment

Parties:

008: Requested Review of Guardianship Order

Maria (the person)
NSW Trustee and Guardian (applicant)
Lana (appointed guardian)
Public Guardian

Representation:

None.

File Number(s):

NCAT 2018/00056320

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

INTRODUCTION

1. Maria is an 89-year-old woman who, at the time of the Hearing, was residing in rental accommodation in Taiwan with her niece and carer, Lana.

2. On 16 May 2018, the Tribunal appointed Lana as Maria’s financial manager, subject to the authorities and directions of the NSW Trustee and Guardian (herein referred to as “the NSW Trustee”). On the same date, the Tribunal appointed Lana as Maria’s guardian. This order has subsequently been reviewed. On 25 May 2023 the Tribunal reappointed Lana as Maria’s guardian for a period of three years with the functions of accommodation, services, health care and medical/dental consent.

3. On 11 December 2024, the Tribunal received an urgent request from the NSW Trustee seeking a review of the financial management order made on 16 May 2018. This application was considered by the Tribunal on 20 December 2024. On this date the Tribunal revoked the appointment of Lana as Maria’s financial manager and committed the management of Lana’s estate to the NSW Trustee.

4. On 7 April 2025, the Tribunal received an application from NSW Trustee requesting that the guardianship order made on 25 May 2023 be reviewed, namely, to revoke the appointment of Lana as Maria’s guardian, appoint the Public Guardian in her place, and vary the functions to be exercised by the guardian. The application was submitted by Brian Woods (“Brian”), Chief Executive Officer of NSW Trustee.

5. The application was listed for Hearing on 10 April 2025, at which time the application was adjourned to a date to be fixed. The Tribunal’s Reasons for Decision relating to the interlocutory orders made on 10 April 2025 identify that:

1. Neither Lana nor Maria were in attendance at the Hearing.

2. The Tribunal had received communication from Lana acknowledging that the application had been made to the Tribunal and listed for Hearing but disputed that service having been appropriately effected.

3. The Hearing was ultimately adjourned as a consequence of the unavailability of the applicant (the NSW Trustee) and the unavailability of a substitute applicant.

6. The application was subsequently listed for Hearing on 29 April 2025.

7. These Reasons for Decision relate to the application to review the guardianship order made on 25 May 2023, such application having been heard and determined by the Tribunal on 29 April 2025.

THE HEARING

8. The Hearing was listed at 2:00pm (AEST) on 29 April 2025. The Hearing was conducted remotely from the Tribunal’s Sydney Registry.

9. In accordance with s 4(2)(a) of Sch 6 of the Civil and Administrative Tribunal Act2013 (NSW), the Tribunal was constituted by a single member, being an Australian lawyer.

10. The Hearing was attended by the following people:

1. Brian Woods (“Brian”), Chief Executive Officer of the NSW Trustee and Guardian, in person;

2. Cathryn Turnbull (“Cathryn”), The Public Guardian, in person;

3. a Senior Client Service Officer of the NSW Trustee and Guardian (“NSW Trustee SCSO”), by video;

4. a Duty Guardian of the Public Guardian, by video.

11. Neither Maria nor Lana attended the Hearing. By correspondence dated 25 April 2025 and 29 April 2025 Lana advised the Tribunal that neither Maria nor Lana would attend the Hearing. Although the correspondence did not include an explicit request for the Hearing to be adjourned, the Tribunal was nonetheless required to consider whether or not the Hearing should be adjourned.

12. The Hearing was also attended by an interpreter to assist Lana’s participation in the Hearing, however the interpreter was excused when it became apparent that Lana would not be joining the Hearing.

13. For the reasons outlined below, the Tribunal formed the view that the Hearing ought to proceed in the absence of Maria and Lana.

14. The Tribunal has had regard to the following evidence and submissions with respect to the current application:

1. Oral evidence and submissions provided by Brian, Cathryn, the NSW Trustee SCSO, and the Duty Guardian at the Hearing.

2. “Application for Request to review a guardianship order” submitted to the Tribunal on 7 April 2025.

3. Bundle of documents submitted by the NSW Trustee on 7 April 2025 consisting of written submissions and annexures A to X.

4. Financial Management Report submitted by NSW Trustee on 9 April 2025, authored by the NSW Trustee SCSO.

5. DNA test results (submitted by Lana on 10 April 2025) confirming relationship between Maria and Lana, certified by Dr Z, dated 9 October 2024.

6. Written submissions prepared by Lana, submitted to the Tribunal on 9 April 2025.

7. Email from Brian Woods to Lana dated 3 April 2025 (submitted by Lana on 10 April 2025).

8. Written submissions prepared by Lana, submitted to the Tribunal on 25 April 2025.

9. Written submissions prepared by Lana, submitted to the Tribunal at 1:16pm on 29 April 2025.

15. The Tribunal has also had regard to previous Reasons for Decision issued by the Tribunal, including those in relation to orders made on 10 April 2025, 20 December 2024 and 5 May 2023.

16. At the conclusion of the Hearing the Tribunal decided to vary the existing guardianship order by appointing the Public Guardian as Maria’s guardian for a period of six months (at which time the order will again be reviewed by the Tribunal) with the following functions:

1. Access – To decide what access Maria has to others and the conditions of access.

2. Advocacy – To advocate generally for Maria.

3. Accommodation – To decide where Maria may reside.

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

1. take Maria to a place approved by the guardian.

2. keep her at that place.

3. return her to that place should she leave it.

5. Health care – To decide what health care Maria may receive.

6. Medical/Dental consent – To make substitute decisions about proposed minor or major medical or dental treatment, where Maria is not capable of giving a valid consent.

7. Services - To make decisions about services to be provided to Maria.

8. Legal services - To make decisions for Maria in relation to access to legal services.

9. Travel – To make decisions about whether or not Maria can travel to any place outside Australia.

10. Passport – To make a decision about whether or not the passport of Maria should be surrendered to the guardian or some other authority the guardian nominates pending a decision by the guardian concerning travel.

11. Restrictive Practices – To give or withhold consent to restrictive practices used to influence Maria’s behaviour.

17. The functions are to be exercised in accordance with the conditions outlined on the face of the Tribunal’s orders.

THE SUBSTANTIVE APPLICATION – WHAT DID THE TRIBUNAL HAVE TO CONSIDER?

18. The application before the Tribunal is an application to review the guardianship order made on 25 May 2023, submitted by the NSW Trustee pursuant to s 25(2)(a) of the Guardianship Act 1987 (NSW) (“the substantive application”).

19. To determine the substantive application the Tribunal the Tribunal is required to consider the following:

1. Is Maria someone for whom the Tribunal could make a further guardianship order? Namely, does Maria continue to be “a person in need of a guardian”?

2. Should the Tribunal undertake any action on review? Namely, should the Tribunal vary, suspend, revoke, confirm, renew, or renew and vary the order?

3. In the event that the Tribunal determines to vary the order (as requested by the NSW Trustee), who should be the guardian, what functions should be given to the guardian, and how long should any further order last?

PRELIMINARY ISSUES

20. The material before the Tribunal outlines a number of important preliminary issues which must be determined by the Tribunal prior to determination of the substantive application. These include the following:

1. Does the NSW Trustee have standing to bring the current application (“the standing issue”)?

2. Are there any issues regarding service of the application which would preclude the Tribunal from conducting the Hearing (“the service issue”)?

3. Should the Hearing proceed in Maria and/or Lana’s absence (“the participation issue”)?

4. Does the Tribunal have jurisdiction to determine the current application (“the jurisdictional issue”)?

The Standing Issue

21. Correspondence received from Lana on 9 April 2025 states the following: “In this case, is it appropriate to apply directly to NSWTG?... if I am unsuitable to be a guardian, the matter should be dealt with by the Private Guardian Support Unit… which oversees private guardians.” When read in context, it is possible that Lana may dispute the standing of the NSW Trustee to bring the current application, and accordingly it is appropriate to address the issue of standing.

22. In accordance with s 25B of the Guardianship Act, an application to review a guardianship order may be made by the appointed guardian, the person under guardianship, the Public Guardian or “any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person under guardianship”. As the application was made by the NSW Trustee, who does not have automatic standing to bring the application, the Tribunal must be satisfied that the NSW Trustee is a “person” with a “genuine concern” for Maria’s welfare.

23. A “person” for the purposes of the Guardianship Act need not be a “natural person”. Schedule 4 of the Interpretation Act 1987 (NSW) defines a “person” to include “an individual, a corporation and a body corporate or politic”. The NSW Trustee is a corporation with the corporate name of “the NSW Trustee and Guardian”: NSW Trustee and Guardian Act2009 (NSW), s 5. Accordingly, the Tribunal is satisfied that the NSW Trustee is a “person”.

24. The issue of standing therefore turns on whether or not the NSW Trustee has a genuine concern for Maria’s welfare.

25. In a general sense, the NSW Trustee is mandated to protect, promote and support the rights of vulnerable people. The NSW Trustee and Guardian Annual Report 2023-24 [1] outlines the following:

“NSW Trustee and Guardian is an agency within the Communities and Justice Portfolio. Our purpose is to protect, promote and support the rights, dignity and wishes of our customers… Our services help protect some of the most vulnerable people in the community as well as supporting people at critical moments in their life... We are constituted under the NSW Trustee and Guardian Act 2009. The statutory functions of the NSW Trustee and the Commissioner of Dormant Funds are carried out by the Chief Executive Officer, while the statutory functions of the Public Guardian are carried out by the NSW Public Guardian.”

1. Annual Report.pdf

26. In a specific sense, the current application arises from concerns identified by the NSW Trustee (in the course of its supervisory role, prior to 20 December 2024, and in the course of its role as Maria’s appointed financial manager, since 20 December 2024) about whether Maria’s appointed guardian has been making decisions that are consistent with Maria’s best interests. Steps to obtain better particulars from Lana as to Maria’s welfare and medical needs (inter alia, to ensure that the NSW Trustee are making appropriate arrangements for the payment of Maria’s medical and living expenses) have been met with resistance. In addition to the written evidence provided to the Tribunal, at Hearing Brian identified that the application had been motivated, in part, by concerns identified by the NSW Ombudsman (following a complaint made to the NSW Ombudsman by Lana) as to the need for steps to be taken to have Maria repatriated to Australia.

27. In ACJ [2007] NSWGT 15 and QAG [2007] NSWGT 12 the Tribunal held that a genuine concern for the welfare of the subject person required that:

1. the applicant is bringing to the attention of the Tribunal a fact situation in which the subject person’s interests may call for intervention by the Tribunal;

2. the applicant is sincere in seeing the situation as one that may call for the intervention of the Tribunal in the interests of the person; and

3. the application is motivated by a desire to advance the welfare of the person.

28. The Tribunal is satisfied that the applicant is bringing to the Tribunal a factual situation in which Maria’s interests may call for intervention by the Tribunal. The evidence supports a finding that the application by the NSW Trustee was motivated by a desire to advance Maria’s welfare, and that the NSW Trustee is genuine in seeing Maria’s situation as one requiring intervention by the Tribunal.

The Service Issue

29. In written submissions provided to the Tribunal, Lana also raises issues about not having been served with the application “as required by the NCAT hearing regulations”.

30. For completeness the Tribunal notes that as this application relates to a requested review of an existing order, there are no personal service provisions associated with the application.

31. Section 25(4) of the Guardianship Act requires that the Tribunal serve a notice on the parties advising them of the review, however, s 25(5) of that Act provides that the decision of the Tribunal is not vitiated by a failure to serve such notice.

32. A review of the file confirms that a notice was provided by the Tribunal to Lana in accordance with s 25(4) of the Guardianship Act. The file review also confirms that Lana, by way of return emails to the Tribunal, has repeatedly acknowledged both the application and the various listings of the application.

The Participation Issue

33. Neither Maria nor Lana were in attendance at the Hearing.

34. The Tribunal is required to take such steps as may be reasonably practicable to ensure that the parties understand the nature of proceedings and have a reasonable opportunity to be heard or otherwise have their submissions considered: Civil and Administrative Tribunal Act, s 38(5).

35. Various provisions of the Guardianship Act require the Tribunal to have regard to the views of the subject person, and in the case of a guardianship order, their carer (amongst other people).

36. The Tribunal was required to consider whether it was appropriate to proceed with the Hearing in the absence of Lana and/or Maria, or otherwise whether it was necessary for the Hearing to be adjourned.

33. Those in attendance at the Hearing opposed the Hearing being adjourned.

34. Written submissions made by Lana evidence that Maria was medically unfit to participate in the Hearing. The Tribunal notes that Maria attended the December 2024 Hearing and was unable to actively participate in the Hearing on account of the extent of her cognitive decline. There is no evidence to suggest any improvement in Maria’s cognitive functioning since this time (and to the contrary, Lana reports a decline in Maria’s cognitive and functional decline). The Tribunal was satisfied that the Hearing should proceed in Maria’s absence and that Maria’s ability to actively participate in the Hearing would likely have been compromised in any event to the extent that the Tribunal would have been unable to elicit her views had she attended the Hearing.

35. With respect to Lana’s participation in the Hearing, the Tribunal notes that in correspondence sent to the Tribunal (including correspondence received shortly prior to the commencement of the Hearing) Lana acknowledges the listing and confirms that she will not be participating in the Hearing. The Tribunal was satisfied that Lana has been afforded a reasonable opportunity to be heard, and has elected to exercise that right by the filing of written submissions rather than attendance at the Hearing. The Tribunal was satisfied that the Hearing should proceed in Lana’s absence.

The Jurisdictional Issue

40. The issue arises as to whether or not the Tribunal retains jurisdiction to make orders of the nature proposed by the NSW Trustee. This issue arises in circumstances where Maria is not currently present in New South Wales (or indeed, in the country), has not been in New South Wales for a period exceeding twelve months prior to the date of the Hearing, and where there is no evidence available to suggest an intention for Maria to be returned to New South Wales.

41. The issue of whether the Guardianship Act may have extraterritorial operation has been considered in detail by the Tribunal on many occasions (see, for example, JAK [2007] NSWGT 23; NGM [2011] NSWGT 7; MGV [2017] NSWCATGD 40).

42. There is a common law presumption against extraterritorial operation of State legislation. In Jumbunna Coal Mine v Victorian Coal Miners’ Association (1908) 6 CLR 309, O’Connor J (at [363]) states:

“In the interpretation of general words in a statute there is always a presumption that the legislature does not intend to exceed its jurisdiction… Most statutes if their general words were to be taken literally in their widest sense, would apply to the whole world, but they are always read as being prima facie restricted in their operation within territorial limits.”

43. This presumption is re-enforced by ss 12 and 15 of the Interpretation Act.

44. In Kumagai Gumi Co Ltd v FCT (1999) 161 ALR 699 at [707] it was held that if the application of the presumption against extra territoriality would defeat the purpose, object or policy of the legislation, then it can be assumed that it was the intention of the legislature to override the presumption.

45. As outlined in JAK (at [35]), “only a court can determine the meaning of legislation authoritatively. We are not deciding whether the Tribunal could ever make an order in relation to a person who is a resident outside NSW but whether we may now do so in relation to [the person subject of the application].”

46. To the Tribunal’s understanding there are no binding authorities which conclusively determine the issue of extra territorial operation of the Guardianship Act as a matter of law.

47. The principles applied in JAK appear to have been consistently applied by the Tribunal. The Tribunal is satisfied that those principles (and the line of authorities which have adopted those principles) remain an accurate summary of the appropriate legal principles, and accordingly it is prudent for the current Tribunal to apply the same principles to the current matter.

48. Essentially, to determine the issue of whether the Tribunal retains jurisdiction (in the context of a guardianship order rather than a financial management order) it is necessary for the Tribunal to apply a two-limb test. In relation to persons located outside the State of New South Wales, the Tribunal must be appropriately satisfied of each of the following matters before it may exercise its jurisdiction:

1. That the application of the presumption against extra territoriality would defeat the purpose, object or policy of the legislation; and,

2. That there is sufficient connection to New South Wales for the Tribunal’s jurisdiction to be exercised.

49. The Tribunal was assisted by written submissions prepared by the NSW Trustee. Those written submissions helpfully addressed the second limb of the test, but were limited so far as they relate to the presumption against extra-territoriality. At Hearing, the NSW Trustee was invited to provide further oral submissions on this issue.

50. In relation to the first limb, the NSW Trustee’s arguments can be summarised as follows:

1. The general principles of the Guardianship Act include, inter alia, that Maria’s welfare and interests should be given paramount consideration, and that she should be protected from neglect, abuse and exploitation.

2. The actions of Lana, as Maria’s guardian, conflict with these principles. Maria has acted contrary to professional advice in removing Maria from the country, which has potentially had a detrimental impact on Maria’s wellbeing.

3. Concerns were raised by the Official Visitor (which were contained in the NSW Trustee Tender Bundle) that:

1. Lana had been unable to obtain suitable medical treatment for Maria whilst in Australia; and,

2. Travel outside of the country (for the purpose of medical treatment or otherwise) was not in Maria’s best interests.

4. The NSW Trustee had been unable to obtain any reliable evidence from Lana as to Maria’s condition or the nature of any treatment being provided to Maria in Taiwan. The concerns raised about Maria’s welfare abroad were significant to the point where the NSW Trustee was required, with Consular assistance, to arrange for Taiwanese authorities to conduct a welfare check on Maria.

5. The Tribunal exercises a protective jurisdiction. Maria should not be precluded from such protection on account of Lana’s unilateral and unsanctioned removal of Maria from the county.

6. There remains an absence of reliable evidence for the Tribunal to be satisfied that Maria’s welfare and interests are being prioritised since her removal from the country.

51. Shortly prior to the commencement of the Hearing the Tribunal received further evidence/submissions from Lana in the form of a letter and photographs depicting Maria receiving medical treatment in a hospital setting. As this evidence had not been received by other parties the Presiding Member read the contents of the letter onto the record and provided the opportunity for those attending the Hearing in person to review the photographs.

52. In response to the late documents Brian indicated that the evidence does not change the position of the NSW Trustee. Brian reported that Lana has been obstructive and has failed to cooperate with requests for appropriate and pertinent information regarding Maria’s circumstances. Despite the assertions contained in the late submissions (including an assertion that the “Taiwan Kaohsiung Family Court has already appointed me as [Maria]’s legal guardian through an official guardianship declaration under Taiwanese law”), Brian contended that, on account of Lana’s actions to date, little weight could be attributed to her assertions in the absence of independent, objective evidence.

53. The Tribunal is satisfied that the purpose, object or policy of the Guardianship Act includes to protect those subject to the Act from abuse, neglect or exploitation, and that the Tribunal has an obligation to exercise its functions under the Act in a manner which promotes Maria’s welfare and interests.

54. Maria was afforded protection under the Guardianship Act on the basis that her guardian would make decisions (including but not limited to decisions about her accommodation and the health care and support services she receives) in a manner that promotes Maria’s welfare and interests.

55. Lana, as Maria’s appointed guardian, has failed to exercise her functions in a manner consistent with the Guardianship Act. Prior to removing Maria from the country she failed to obtain necessary and appropriate interventions to promote Maria’s health and wellbeing. When faced with objective professional evidence recommending against Maria’s removal from the country to Taiwan, Lana chose to ignore that evidence and exercised her functions contrary to what, objectively, was in Maria’s best interests.

56. Lana has failed to provide any evidence that would satisfy the Tribunal that she is currently making decisions which promote Maria’s welfare and interests. This is not to say that she is not, but her lack of transparency and engagement (both with the Tribunal and the attempts made by the NSW Trustee prior to these proceedings) is deeply concerning to the Tribunal.

57. The Tribunal accepts the submissions of the NSW Trustee so far as they relate to a cautious approach being taken to Lana’s evidence in the absence of independent corroborative evidence.

58. The ability for an interested party to apply to the Tribunal to review the appointment of a guardian is an important safeguard in circumstances where there is reliable evidence that a guardian may not be appropriately exercising their functions. In Maria’s case, this important recourse should not be lost as a consequence of Lana’s actions.

59. The Tribunal is satisfied that if the presumption against extra-territoriality were to apply it would defeat the purpose of the Guardianship Act, namely, to ensure that Maria’s interests and welfare are protected. Accordingly, the Tribunal is satisfied that the presumption is rebutted in this instance.

60. The Tribunal is, therefore, required to consider whether there is sufficient connection to the jurisdiction to enliven the Tribunal’s jurisdiction.

61. In written submissions the NSW Trustee identifies that Maria has been domiciled in New South Wales since her arrival to Australia in the late 1950s and became an Australian citizen in 1966. In oral submissions the NSW Trustee identified that aside from being physically present in Taiwan at the current time, there are no known connections between Maria and Taiwan (i.e. she did not live in Taiwan prior to her migration to Australia and is not known to have extended family living in Taiwan aside from Lana and her husband).

62. The position both at common law and by virtue of s 7(2) Domicile Act1979 (NSW) is that persons with an incapacity will be unable to acquire a new domicile of choice if they lack the mental capacity to form the requisite intention. A person’s domicile cannot be changed by his or her guardian: see Kertesz v Kertesz [1954] VicLawRp 28; Re G [1966] NZLR 1028.

63. To the extent that it may be suggested that Maria has acquired a new domicile by choice, the Tribunal finds that Maria lacks the requisite capacity to acquire a new domicile by choice (and has lacked such capacity since well-prior to her removal from Australia).

64. The Tribunal finds that Maria’s domicile of choice is New South Wales. This is evidenced by her prolonged residence in New South Wales (since the 1950s), her Australian Citizenship (since 1966) and her continued home ownership in New South Wales (including the majority of her personal belongings remaining in her home). The medical report prepared by Dr Y (referred to below) also lists Maria’s nationality as “Australian”.

65. The domicile of a person proposed to be protected by an order has been used as a sufficient connecting factor to validate the extra territorial exercise of a protective jurisdiction: see Re S (Hospital Patient: Foreign curator) [1995] 4 All ER 30; Re G [1966] NZLR 1028; NCK [2004] WAGAB 6.

66. In relation to the current application, the Tribunal expressly finds as follows:

1. The presumption against extraterritoriality is displaced.

2. Despite Maria’s current absence from the state of New South Wales, she remains domiciled in New South Wales and does not have the requisite capacity to acquire a new domicile by choice.

3. Having regard to the Tribunal’s protective jurisdiction and the facts surrounding Maria’s removal from New South Wales, the Tribunal is satisfied that Maria’s continued domicile in New South Wales is a sufficient connecting factor to validate the extra territorial exercise of the Tribunal’s jurisdiction.

4. The Tribunal is satisfied that it retains jurisdiction to review the guardianship order made for Maria on 25 May 2023 and to make a further guardianship order.

67. For the avoidance of doubt, the Tribunal does not contend that any further order made by the Tribunal will have effect in Taiwan absent a mechanism for such an order to be recognised and/or enforced in Taiwan. No such mechanisms are known to the Tribunal.

DETERMINATION OF THE SUBSTANTIVE APPLICATION

Is Maria someone for whom the Tribunal could make a further guardianship order?

68. Section 14 of the Guardianship Act provides that we 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”: Guardianship 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: Guardianship Act, 3(2). Commonly, we consider the person's ability to make important personal, health and lifestyle decisions, the ability to make such decisions being a major life activity that impacts on the person's ability to function normally in the community with others.

70. The Tribunal has previously accepted that Maria is a person in need of a guardian by virtue of the functional and cognitive impacts of her diagnosis of progressive dementia (of mixed aetiology).

71. Further medical evidence provided to the Tribunal includes the Authorised Visitor Report (prepared by a Clinical Psychologist, dated 20 January 2024). This report outlines that Maria’s responses to the Cognitive Impairment Scale of the Psychogeriatric Assessment Scales (conducted on 15 March 2023) indicates significant/severe cognitive impairment. He reports that in his own interactions with Maria “she appeared to be confused and unable to comprehend the simplest of questions”.

72. In a “Certificate of Diagnosis” authored by Dr Y from Kaohsiung Veterans General Hospital (“Dr Y”) and dated 17 March 2025 (contained as an annexure in the NSW Trustee Tender Bundle), Dr Y reports that Maria has been diagnosed with “dementia, severe stage” and comments that “…she was diagnosed with dementia and limited response to question. She also need total care by others….”

73. On the material available to the Tribunal there does not appear to be a dispute about Maria’s diagnosis or the impact on her ability to manage her person.

74. In the absence of any evidence to disturb the Tribunal’s previous findings the Tribunal is satisfied that Maria continues to be a person in need of a guardian. She is, accordingly, a person for whom the Tribunal could make a further guardianship order.

Should the Tribunal make a further guardianship order?

75. Section 14(2) of the Guardianship Act outlines a number of equally important factors for us 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 Guardianship Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

76. The Tribunal does not have the benefit of Maria’s views, however on account of her significant cognitive decline the Tribunal is satisfied that Maria is incapable of expressing her views.

77. It is inferred from Lana’s written communication to the Tribunal that she does not support a further guardianship order being made, or in the alternative, that she supports her continued appointment as guardian. In any event it is evident that Lana is opposed to any proposal for the Public Guardian to be appointed as her guardian.

78. The Tribunal has considered the importance of preserving Maria’s existing family relationships and the importance of preserving her existing cultural and linguistic environments. There is limited evidence available to the Tribunal regarding these matters, and accordingly the Tribunal has placed little weight on these matters.

79. For reasons outlined more fully below, the Tribunal is satisfied that it would be impracticable for services to be provided for Maria upon her return to Australia in the absence of a guardian being appointed.

80. Being satisfied that Maria is a person for whom a guardianship order could be made (and being satisfied that there is no jurisdictional impediment to the making of such an order), the Tribunal was required to consider, in the exercise of its discretion, whether or not a further order should be made, and if so, the terms of such an order.

81. A relevant consideration for the Tribunal in the exercise of its discretion was the utility of a further guardianship order being made.

82. Despite Lana’s assertion at the December 2024 Hearing that she had initially only intended for Maria to travel to Taiwan for a period of three months, this does not appear to have been her genuine intention. Material provided to the Tribunal notes that Lana entered into a 12-month lease in April 2024 upon her arrival in Taiwan, and Lana may not have the ability to return to Australia on account of her immigration status. Accordingly, there are no clearly identifiable plans for Maria to be returned to New South Wales.

83. At Hearing, the NSW Trustee and the Public Guardian confirmed that there are no reciprocal arrangements for any orders made by this Tribunal to be recognised and enforced in Taiwan. Accordingly, there is no ability for the Public Guardian, if appointed as Maria’s guardian, to make and enforce any decisions relating to Maria’s care and medical treatment in Taiwan.

84. Notwithstanding this, the NSW Trustee and the Public Guardian made compelling arguments in support of the making of a further guardianship order.

85. Firstly, it was contended that the appointment by this Tribunal would enliven potential avenues, through international health information sharing protocols and through consular/diplomatic avenues, for the Public Guardian to access and assess relevant health information pertaining to Maria to inform any decisions about whether further steps should be taken to repatriate Maria to Australia (noting that the Public Guardian would not intend to pursue such actions if contraindicated by reliable medical evidence).

86. Whilst acknowledging that the making of a guardianship order of itself would not result in any internationally recognised authority for the Public Guardian to force Maria’s repatriation to Australia, it was contended at Hearing that should such action be considered to be in Maria’s best interests, the NSW Trustee, in the exercise of its financial management responsibilities, may be able to take steps to leverage Lana’s agreement to return Maria to Australia.

87. In the event that Maria is returned to Australia, it is envisaged that there will be a number of decisions that will need to be promptly made by a guardian on Maria’s behalf (as discussed below).

88. In these circumstances the Tribunal is satisfied that there is practical utility in making a further guardianship order in order to enable steps to be taken in an effort to secure Maria’s return to Australia (if appropriate) and to ensure that appropriate decisions can be made to support Maria upon her return.

What functions should be given to the guardian?

89. Having determined that a further guardianship order should be made for Maria, it was necessary for the Tribunal to consider what functions ought to be allocated to a guardian. There was no dispute at Hearing as to the necessary functions to be included in a further order.

90. It was proposed at Hearing that the existing functions (i.e. accommodation, services, health care and medical/dental consent) be retained in a further order. The inclusion of an accommodation function will enable the guardian to decide where Maria should live upon her return to Australia. The inclusion of a services function will enable a guardian to have an ACAT assessment conducted, should it be determined that Maria should enter residential aged care, or otherwise to access and implement any support services Maria may require to live safely in the community. The inclusion of the health care function will enable a guardian to access and exchange relevant information about Maria’s health and organise any allied health services that Maria may require. It may also assist in enabling a guardian to access relevant health information in other jurisdictions. The medical/dental consent function will ensure that a guardian is able to consent to any necessary and appropriate treatment Maria may require should she be unable to provide her own consent to same.

91. It was proposed that an advocacy function be added to any further order. Although the function of advocacy is inherent in the role of the Public Guardian, it was identified at Hearing that other organisations may not readily accept this to be the case. The inclusion of an advocacy function may add gravitas to the Public Guardian’s role in advocating on Maria’s behalf, particularly at a diplomatic/consular level if required.

92. It was proposed that the inclusion of travel and passport functions would be necessary to ensure that any issues around Maria’s international travel are appropriately managed, and to mitigate against the risk of Maria again being removed from the country.

93. It was proposed at Hearing that an authorise others function (i.e. the ability to enlist the assistance of authorities such as the police or ambulance service) may be needed to assist in the implementation of any accommodation decisions made, as well as preventing unauthorised removal of Maria from any accommodation approved by the guardian.

94. It was also proposed that an access function may be required to regulate the access others may have to Maria. Following enquiries from the Tribunal, it was identified at Hearing that the inclusion of this function would assist to ensure appropriate arrangements are implemented to support Maria’s contact with relatives outside the country whilst also ensuring that any in person contact with relatives is meeting Maria’s needs and not undermining the decisions made by the guardian.

95. Noting the suggestion from the NSW Trustee and Public Guardian that Maria may require accommodation in a residential aged care setting, the Tribunal queried whether Maria may be subject to any restrictive practices. Although limited evidence is available regarding Maria’s current condition, it was identified that she may be subject to mechanical restraints (bed rails) and environmental restraints (placement in a Memory Support Unit). It is unclear whether Maria is receiving any medication that would constitute a chemical restraint.

96. The Aged Care Act 1997 (Cth) and the Quality of Care Principles 2014 (Cth) (“the Principles”) govern the use of restrictive practices in residential aged care. A restrictive practice is defined as any practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient: Aged Care Act, s 54-9(1). An aged care provider must ensure that a restrictive practice is only used in accordance with the circumstances set out in the Principles: Aged Care Act, s 54-1(f). Section 15FA of the Principles lists the requirements for the use of a restrictive practice.

97. In NSW a restrictive practice may only be used if informed consent is provided by the person subject to the proposed restrictive practice, or in circumstances where the person is unable to provide informed consent, by a guardian who is conferred a restrictive practices decision-making function, and in accordance with any conditions associated with the guardian’s appointment.

98. The Tribunal was satisfied that there is an appropriate basis for a guardian to be appointed with authority to consent (or withhold consent) to the use of restrictive practices.

99. Finally, it was proposed at Hearing that a legal services function may be necessary, particularly for the purpose of complementing other functions designed to ensure that Maria can be safely repatriated to Australia.

100. In all of the circumstances the Tribunal was satisfied that the proposed functions were appropriate and necessary to promote Maria’s best interests. Accordingly, the Tribunal appointed a guardian with the functions outlined above, as reflected on the face of the Tribunal’s orders.

Who should be the guardian?

101. 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 Guardianship 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.

102. 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]).

103. 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.

104. 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: Guardianship Act, s 15(3).

105. The Supreme Court has held that:

“the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).”

106. On the evidence available to the Tribunal, Lana failed to obtain necessary and appropriate health care for Maria whilst she was in Australia, rejected independent evidence recommending that she pursue treatment options in Australia, and acted contrary to clear and unambiguous recommendations from an independent assessor that removing Maria from the country would be contrary to her interests. Furthermore, Lana has failed 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. This supports a finding that Lana is unable to demonstrate insight and perform the functions of guardianship objectively, and accordingly, that she is not “able and willing” to undertake the functions of the order as required by s 17(1) of the Guardianship Act.

107. In her written submissions Lana denies any wrongdoing in her role as Maria’s guardian. Lana did not attend the Hearing for the purpose of the Tribunal assessing her ongoing suitability for appointment.

108. Having determined that Lana is not “able and willing,” it was unnecessary for the Tribunal to make any express findings as to whether Lana and Maria have “generally compatible” personalities or whether there may be a conflict of interest that precludes Lana’s ongoing appointment.

109. In Lana’s absence, the Tribunal could not be positively satisfied that she remains a person suitable to be appointed as Maria’s guardian.

110. In the absence of a suitable private person, the Tribunal decided to appoint the Public Guardian as Maria’s guardian.

How long should the order last?

111. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made.

112. At Hearing, the Public Guardian proposed that the order be reviewed by the Tribunal within six months. It was outlined that this should be a sufficient period of time for the Public Guardian to explore the viability of Maria being repatriated to Australia and further assess what further decisions may need to be made.

113. The Tribunal accepted this recommendation and ordered that the guardianship order again be reviewed within six months.

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Endnote

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: 23 July 2025