XA v NSW Trustee and Guardian (External)

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

XA v NSW Trustee and Guardian (External) [2011] NSWADTAP 20

Hearing dates:

4 March 2011

Decision date:

29 April 2011

Before:

Magistrate N Hennessy, Deputy President
Ms S Leal, Judicial Member
Dr B Field, Non-judicial Member

Decision:

1. XA's application for leave for the appeal to proceed on grounds other than a question of law is refused.

2. The Guardianship Tribunal's decision to allow the guardianship order in relation to XB to lapse is affirmed.

3. The Guardianship Tribunal's decision to confirm the appointment of the NSW Trustee and Guardian as XB's financial manager is affirmed.

Catchwords:

APPEAL - lapsing or revocation of guardianship order - test to be applied - no question of law

Legislation Cited:

Guardianship Act 1987
Administrative Decisions Tribunal Act 1997

Cases Cited:

Holt and Anor v Protective Commissioner (1993) 31 NSWLR 227
IF v IG & Ors [2004] NSWADTAP 3
Ormwave Pty Ltd v Smith [2007] NSWCA 210; 5 DDCR 180
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Category:

Principal judgment

Parties:

XA (Appellant)
XB (First Respondent)
NSW Trustee and Guardian (Second Respondent)
Guardianship Tribunal (Decision Maker)

Representation:

XA (Appellant - in person)
Dr Frank Ainsworth (Guardian ad litem for First Respondent)
NSW Trustee and Guardian (No Appearance)
Guardianship Tribunal (Decision Maker - Ms E Cho)

File Number(s):

108011

 Decision under appeal 

Date of Decision:

2010-09-24 00:00:00

Before:

Ms C Fourgere
Ms S Taylor
Ms Le Manns

File Number(s):

File No. C/33625
Matter No 2010/3742

reasons

Introduction

1. XB, who has an intellectual disability and schizophrenia, lives in supported accommodation in the Newcastle area. The accommodation is operated by New Horizons Enterprises Ltd. XB's brother, XA, has appealed against two decisions of the Guardianship Tribunal. The first decision was to allow a previous guardianship order appointing the Public Guardian (now the NSW Trustee and Guardian) as XB's guardian, to lapse. XA wanted the guardianship order to continue and for him to be appointed as his brother's guardian to make substitute decisions in relation to health care and medical treatment. The second decision was to confirm a previous financial management order appointing the NSW Trustee and Guardian as XB's financial manager. XA had applied for a review of that order requesting that he replace the NSW Trustee and Guardian as his brother's financial manager.

1. At the hearing the Guardianship Tribunal dealt with four applications; three relating to the guardianship order and one relating to the financial management order. Those applications were:

(1)   an application by XA to review the guardianship order;

(2)   an application by the Public Guardian to review the guardianship order;

(3)   the statutory review of the guardianship order due in September 2011, which was brought forward;

(4)   an application from XA to review the financial management order made for XB on 10 May 2006 and to replace the NSW Trustee with XA as the manager of XB's estate.

1. XA appealed against the Guardianship Tribunal's decisions on questions of law. In addition,…