AC v OC

Judgment 1The plaintiff is the mother of the defendant, a minor. 2The defendant was born on 4 February 2008, and is now aged six years. 3As a "child under the age of 18 years", the defendant is a person under "legal incapacity" within the meaning of the Civil Procedure Act 2005 NSW s 3(1). 4His mother, the plaintiff in the current proceedings, acted as his tutor in proceedings (numbered 2011/0093141) in the Common Law Division of the Court when he sued the Sydney South West Area Health Service (now known as the South Western Sydney Local Health District) for damages for personal injuries suffered at birth. 5On 30 May 2013 the Court (pursuant to CPA s 76, in Part 6 Division 4 of the Civil Procedure Act) approved a settlement of the Common Law proceedings on terms that provided for the boy to be given judgment in the sum of $1.75 million (inclusive of any Medicare or Centrelink payment) plus costs. 6Part 6 Division 4 of the Civil Procedure Act is entitled "Persons under legal incapacity" and comprises ss 74-80 inclusive. 7In conformity with CPA s 77(2), the defendant's common law judgment moneys were paid into Court on 20 June 2013. 8With interest accrued to 31 December 2013, the funds presently in Court are approximately $1.763 million. 9By a summons filed on 22 November 2013 in these, Equity (Protective List) proceedings, the plaintiff invited the Court to make orders (under s 16 of the Infants' Custody and Settlement Act 1899 NSW or s 50 of the Minors (Property and Contracts) Act 1970 NSW) for the money in court to be paid out to her on trust for the defendant. 10The orders, and draft trust deed, proposed by the plaintiff envisaged that, in the year leading up to the defendant's attainment of his majority at the age of 18 years, the trustee for the time being (whether the plaintiff or some other trustee) would be obliged to apply to the Court for directions as to whether a "financial management order" (of the type currently provided for in s 41, in Part 4.2, of the NSW Trustee and Guardian Act 2009 NSW) ought to be made in respect of the defendant's estate. 11The avowed object of the plaintiff's summons, as filed, was to avoid the involvement (and consequent fees) of the NSW Trustee and Guardian ("the NSW Trustee") in management, or supervision of management, of the defendant's judgment moneys. 12The plaintiff envisaged that fees chargeable to the defendant's estate could be minimised by her acting as a trustee (with or without a friend and a relative appointed as co-trustees) without remuneration. 13She envisaged that fees charged by a professional financial advisor would be laid to the defendant's account as beneficiary of the trust, but not remuneration for herself or any other trustee responsible for administration of the proposed trust. 14In support of her summons the plaintiff cited the judgments of White J in JP v CP [2013] NSWSC 273 (28 March 2013) and of Davies J in Liang by her tutor Yuen [2012] NSWSC 365 (29 March 2012), and relied upon a submission that it is not possible to say whether or not the defendant, who as a minor is currently incapable of managing his affairs, will suffer from an inability to manage his affairs when he attains his majority. 15The plaintiff's primary contention was that, in these circumstances, it is both in the interests of the defendant and expedient for the Court to grant relief in the nature of that sought in the summons. 16An alternative submission, to which she readily came, was that, if the Court is not disposed to make orders authorising the establishment of a private trust as sought in the summons, it would nevertheless be in the interests of the defendant, and expedient, for her to be appointed as a private manager of the defendant's estate under the NSW Trustee and Guardian Act, s 41. 17Such an appointment would involve subjection of administration of the defendant's estate (or, depending on the scope of the Court's orders, part of his estate) to the supervisory powers of the NSW Trustee. 18The evidence adduced in support of the plaintiff's summons did not include the following evidence which might, ordinarily, be expected to be adduced so as to allow the Court to make an informed decision about the necessity, or otherwise, for a grant of relief and the comparative merits of competing courses of action: (a)evidence of such, if any, consultations as may have taken place between the plaintiff and the NSW Trustee about the plaintiff's proposals for management of the defendant's judgment moneys; (b)evidence of service on the NSW Trustee of notice of the current proceedings; (c)evidence deposing to the medical condition, and prognosis, of the defendant; or (d)evidence of referees deposing to the plaintiff's fitness to act as a trustee of the defendant's property or as manager of his estate. 19I mention the absence of such evidence, not by way of criticism of the plaintiff, but to highlight the need for a person in the position of the plaintiff: (a) to ensure that the Court is fully informed; and (b) to engage with officers of the NSW Trustee at an early stage of any process directed towards management of substantial property to which a family member in their care, and unable to manage his or her own affairs, may be entitled. 20The plaintiff is the principal carer of the defendant and, I readily accept, motivated only by a desire to do right by her son and to advance his interests. 21She is presently aged about 44 years. She and the defendant's father (her former de facto husband) have lived separately, but apparently under the same roof, since February 2013. They are in the process of going through an amicable financial settlement. 22The plaintiff has business experience. 23I am satisfied that, as his mother and principal carer, she is well placed to be actively involved in management of the defendant's settlement moneys, subject to legal and administrative safeguards dictated by ordinary prudence. 24An assessment of the plaintiff's application to the Court requires an examination of the legislative context governing it. 25CPA s 77(4) provides as follows: "77(4) Money paid into court under [CPA s 77(2)] is to be paid to such person as the court may direct, including: (a) if the person is a minor, to the NSW Trustee and Guardian, or (b) if the person is a protected person, to the manager of the protected person's estate." 26The expression "protected person" has the same meaning as it has under the NSW Trustee and Guardian Act: CPA s 74(1). That is to say, a "protected person" is a "person in respect of whom an order is in force under Part 4.2 or 4.3 [of the NSW Trustee and Guardian Act] or the Guardianship Act 1987 [NSW] that the whole or any part of the person's estate be subject to management under [the NSW Trustee and Guardian Act]: NSW Trustee and Guardian Act, ss 3(1) and 38. In substance, a "protected person" is a person who, having been determined to be incapable of managing his or her affairs, has had a manager of his or her estate appointed by the Court, the Civil and Administrative Tribunal of NSW ("NCAT") (Guardianship Division) or the Mental Health Review Tribunal. 27The reference to a "manager" in CPA s 77(4) is a reference to "the person having the management of [a protected person's] estate under the NSW Trustee and Guardian Act": CPA s 74(1). 28CPA ss 78-79 (which, together with CPA s 77, fall within Part 6 Division 4 of the Civil Procedure Act) provide as follows: "78 Application of money by NSW Trustee and Guardian (1) Subject to any order of the court, money paid under this Division [which includes CPA s 77(4)] to the NSW Trustee and Guardian on behalf of a minor is to be held and applied by the NSW Trustee and Guardian for the maintenance and education of, or otherwise for the benefit of, the minor. (2) On the application of the NSW Trustee and Guardian, the Supreme Court may give directions to the NSW Trustee and Guardian as to the administration of any such money. (3) If given effect to by the NSW Trustee and Guardian, any such direction exonerates the NSW Trustee and Guardian from any claim or demand by any other person. 79 Application of money by manager of protected person's estate Subject to any order of the court, money paid under this Division to the manager of a protected person's estate is to be held and applied by the manager as part of that estate." 29CPA s 74(3) provides that Part 6 Division 4 of the Civil Procedure Act does not limit the operation of the Minors (Property and Contracts) Act or s 16 of the Infants' Custody and Settlements Act. 30Section 16 of the Infants' Custody and Settlements Act is in the following terms: "16 Court may appoint trustees for settlements for the benefit of minors in certain cases (1) Whenever a verdict is recovered or a judgment entered for any amount as damages in any action or other proceedings for tort brought by or on behalf of a minor, the Court may order that a settlement of the same shall be made for the benefit of the minor, and may appoint a trustee or trustees for such settlement. (2) The terms of such settlement shall be fixed by the Court, or subject to its approval by some officer of the Court appointed so to do. (3) This power shall extend to the District Court as well as the Supreme Court." 31The provisions of s 16(1) were enlivened by the entry of judgment in favour of the defendant in his Common Law proceedings on 30 May 2013. 32So far as is presently material, the Minors (Property and Contracts) Act provides, by s 50, as follows: 50 Property of minor (1) Where a minor is beneficially entitled at law or in equity to property, the Supreme Court may, on such terms as the Court thinks fit, make orders authorising a person, either generally or in any particular instance: (a) to make any disposition of the property, (b) to receive the proceeds of disposition of the property, (c) to call for a disposition of the property to the person so authorised or as the person directs, (d) to receive the income of the property, (e) to sue for and recover any chose in action comprised in the property, (f) to invest the property, or (g) to apply the capital or income of the property for the benefit of the minor. (2) The Court shall not make an order under this section unless it appears to the Court that the order is for the benefit of the minor. " 33There is room for debate whether, upon the proper construction of the introductory words of s 50(1), the power for which the section provides can properly be said to have been engaged. Strictly, a person entitled to funds in court may have an entitlement to due administration of funds in court rather than an entitlement to property: JKB Holdings Pty Limited v Dee La Vega [2013] NSWSC 501 at [99]-[112]. 34Nevertheless, reading s 50(1) beneficially, the expression "beneficially entitled at law or in equity to property" can, and in my judgment should, be read as extending to a party's entitlement to the due administration of funds in court, coupled with an entitlement to apply for funds to be paid out of court to or for the benefit of the party. The object of s 50 is to provide a legislative foundation for the court to make orders for the benefit of a minor, a person in a class of persons generally regarded as in need of the Court's protection. 35Each of the legislative provisions to which reference has been made must be read in the context of this Court's "inherent" parens patriae jurisdiction. 36That jurisdiction, protective of those who are not able to take care of themselves, embraces (via different historical routes) minors, the mentally ill and those who, though not mentally ill, are unable to manage their own affairs: Re Eve [1986] 2 SCR 388 at 407-417; (1986) 31 DLR (4th) 1 at 14-21, approved by the High Court of Australia in Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at258; PB v BB [2013] NSWSC 1223 at [7]-[8], [40]-[42], [57]-[58] and [64]-[65]. 37A key concept in the exercise of that jurisdiction is that it must be exercised, both in what is done and what is left undone, for the benefit, and in the best interests, of the person (such as a minor) in need of protection. 38That concept is similar to the requirement in trust law that, subject to the terms of the trust, a trust is to be administered for the benefit of its beneficiaries: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 241G-242A, citing Letterstedt v Broers (1884) 9 App Cas 371 and Miller v Cameron (1936) 54 CLR 572. 39Experience in the exercise of the Court's protective jurisdiction counsels caution against allowing large amounts of property to be held by a trustee or manager of any description, for the benefit of a person in need of protection, without practical arrangements for supervision of due performance by the trustee or manager of fiduciary obligations owed to the person in need of protection. 40There is a particular need for caution in cases in which, as here, the person in need of protection is likely to need protection over a lengthy period during the course of which his or her needs may change markedly, as may the personal circumstances of his or her family and carer. 41I intend no criticism at all of the plaintiff (plainly a caring mother) when I notice the following observations of Davies J in Liang by her tutor Yuen [2012] NSWSC 365 at [26]: " The starting point [on an application for an order under s 16 of the Infants' Custody and Settlements Act] must be that the Court in its parens patriae jurisdiction should act in the best interests of the child to protect and preserve the settlement moneys the child has been awarded: AMS v AIF [1999] HCA 26; (1999) 199 CLR 160 at [86]. It should also not necessarily be assumed that parents of children receiving awards of damages will always act in the best interests of the child if access is granted to the money. There have been, sadly, a sufficient number of cases where there has been dissipation of assets by parents other than in the best interests of the child, whether such dissipation has been effected by fraudulent or careless means, or as a result of incompetence." 42One can appreciate the difficulties of a family with a member in need of protection because of a disability, engaged, at close quarters, with demands of everyday life. 43Recognition of such real-life difficulties can be found in a shift in focus, from public to private management of protected estates, noticed in M v M [2013] NSWSC 1495 at [24]-[30] and [47] arising, in part, from the judgment of the Court of Appeal in Holt v The Protective Commissioner (1993) 31 NSWLR 227. 44It remains important, nevertheless, for all concerned in management of the estate of a person in need of an exercise of protective jurisdiction, of one type or another, to engage with public authorities (such as, under current administrative arrangements, the NSW Trustee) charged with overseeing the due administration of protected estates: M v M [2013] NSWSC 1495 at . 45The parens patriae jurisdiction of the Court, which continues to operate in its own right and to inform the Court's statutory jurisdiction, has lost that connection with property which, in relation to children, historically characterised the "wardship" jurisdiction of the Crown: Re Eve [1986] 2 SCR 388 at 408 and 410-411; 31 DLR (4th) 1 at 14 and 16-17. The jurisdiction is now purely protective in nature. 46The parens patriae jurisdiction is not dependent for its existence, or exercise, upon the presence of property; but a child's entitlement to property may provide an occasion upon which, to protect the interests of the child, the jurisdiction is called into service. 47Thankfully, not every minor is in need of an exercise of protective jurisdiction by a court or another public authority. Ordinarily, the estates of minors can be left to the care of parents or guardians. What may take a case out of the ordinary, and place it in a special category of need for protection, is attachment, or prospective attachment, to a minor of material wealth, especially if coupled with a medical disability or some other form of health issue. 48This case falls within that special category. The defendant has a substantial entitlement to an award of compensation. Apart from a disability arising from age, he has a medical condition that carries, at least, the prospect of a disability enduring beyond his majority. 49In the ordinary course, CPA ss 77(4)(a) and 78 provide the protection of payment of the defendant's judgment moneys to the NSW Trustee for the benefit of the child. 50Under that regime the Court can give directions for the administration of trust property, not limited to an application under CPA s 78(2). The Court's jurisdiction over trusts is extensive. 51However, that regime does not, in terms, allow for full participation of a parent in management of property to which a child has a beneficial entitlement. 52I am satisfied that, bearing that in mind, the Court should make orders designed to allow greater autonomy to this family. 53That said, I am not satisfied that, on the facts of the case, it is in the best interests of the defendant to make orders designed to put his settlement moneys beyond the practical oversight of the NSW Trustee for a period likely, prima facie, to extend beyond a decade. 54On the contrary, I am satisfied that it would be in the best interests of the defendant to make orders under Part 4.2 of the NSW Trustee and Guardian Act designed to have his estate administered under the Act by the plaintiff, as a private manager. 55I propose, accordingly, to act upon the alternative case advanced by the plaintiff. 56In doing so I adopt as appropriate to the present case the following observations made by White J in JP v CP [2013] NSWSC 273 at [2]: "The orders are sought pursuant to s 41 of the NSW Trustee and Guardian Act. I accept that the defendant [a minor] is a person incapable of managing his affairs. However, I am unable to say whether he will become capable of managing his affairs once he is 18 years of age, or whether he may be capable of managing his affairs, subject only to the legal disabilities of infancy, prior to attaining that age. The legal disabilities of infancy are not absolute. A minor may be capable of managing his or her affairs within the meaning of s 41 of the NSW Trustee and Guardian Act." 57Confirmation of his Honour's observation that the legal disabilities of infancy are not absolute can be found in the observations of the High Court in Marion's Case (1992) 175 CLR 1 218 at 237-239. Each person is entitled to full participation in decision-making about his or her welfare to the extent of his or her capacity to do so. 58Under the general law, a hallmark of standards applied by the Court in dealing with the property and affairs of a person in need of protection is recognition of a need for flexibility in service of the purpose for which protective jurisdiction exists, adapted to the personal circumstances of each individual concerned. 59An illustration of that is found in the judgment of Dixon J in Countess of Bective v Federal Commissioner of Taxation (1932) 41 CLR 417 at 420-423: "... an obligation to apply moneys in the maintenance of children or others does not involve the liability which arises from an ordinary trust. It is a general rule that guardians of infants, committees of the person of lunatics and others who are entrusted with funds to be expended in the maintenance and support of persons under their care are not liable to account as trustees. They need not vouch the items of their expenditure, and, if they fulfil the obligation of maintenance in a manner commensurate with the income available to them for the purpose, an account will not be taken. Often the person to be maintained is a member of a family enjoying the advantages of a common establishment; always the end in view is to supply the daily wants of an individual, to provide for his comfort, edification and amusement, and to promote his happiness. It would defeat the very purpose for which the fund is provided, if its administration were hampered by the necessity of identifying, distinguishing, apportioning and recording every item of expenditure and vindicating its propriety. Although these considerations furnish an independent foundation for the general rule yet, after all, it is a doctrine regulating the application of moneys payable under an instrument, whether a will, a settlement or an order of a Court of equity, and the operation of the doctrine must depend upon the provisions contained in the instrument, both express and implied. But the effect of the instrument will often be governed by the circumstances to which it was intended to apply, and, in particular, by a consideration of the nature of the actual abode, the condition of the household and the state of the family of the infant or other person to be maintained. Courts of equity have not disguised the fact that the general rule gives to a parent or guardian dispensing the fund an opportunity of gaining incidental benefits, but the nature and extent of the advantages permitted must depend peculiarly upon the intention ascribed to the instrument. ... A guardian is not permitted to receive moneys for maintenance without liability to account except upon the condition that he discharges his duty adequately to maintain and not otherwise. Upon his default the Court will administer the fund or intercept the payments and has jurisdiction to order an account or an inquiry... . Where, however, the condition is performed the Court does not inquire whether the moneys has been completely expended or whether the recipient has spent small sums for his personal benefit but, nevertheless, it remains an allowance to a person in a fiduciary capacity and for a definite purpose." 60The Court's insistence that there is a fiduciary obligation in these circumstances, and that that obligation may be strictly enforced if a need arises, is coupled with an appreciation that the operative law is governed by the purpose it serves: protection of a person in need of protection, and service in the interests of, and for the benefit, of that person. 61Holt v Protective Commissioner (1993) 31 NSWLR 227 was decided in the context of the Protected Estates Act 1983 NSW (repealed and replaced by the NSW Trustee and Guardian Act), but it continues to provide guidance about the true nature, scope and operation of the principles governing the administration of protected estates. Many of the provisions of the Protected Estates Act can be found, with little or no substantive change, in the NSW Trustee and Guardian Act. 62Although the mantle of the Protective Commissioner now rests on the shoulders of the NSW Trustee (shorn of judicial functions), the Court and the community continue to depend upon the availability of a public administrative structure necessary to facilitate the due administration of protected estates generally. 63Updated to reflect current administrative arrangements, the observations of the Court of Appeal in Holt v Protective Commissioner at 31 NSWLR 243E-F remain apt: "... it is undesirable that, by rules or guidelines, the broad discretion of appointment (and revocation) and the equally broad discretion to give directions to a manager, once appointed, should be controlled. The circumstances of protected persons, the needs and management of their estates and the anxieties of their family vary enormously. The ... Court must respond, as [the current legislation] envisages, with a proper mixture of compassion, vigilance and efficiency." 64With adaptation to allow for a different time and place, and for different terminology, the classic English practice book, The Law Relating to Lunacy (1924) by Theobald, remains a source of practical wisdom. 65From it, we may be reminded that: (a)the protective jurisdiction is parental and protective. Cf, M v M [2013] NSWSC 1495 at [50]. (b)it exists for the benefit of the protected person, but it takes a large and liberal view of what that benefit is, and it will do on behalf of a protected person not only what may directly benefit him or her, but what, if he or she were able to manage his or her own affairs, he or she would as a right minded and honourable person desire to do: p 380. Cf, PB v BB [2013] NSWSC 1223 at [29], [38], [58] and [65]. (c)an exercise of protective jurisdiction is generally directed to administration of a protected estate without strife in the simplest and least expensive way: p 382. Cf, RAP v AEP [1982] 2 NSWLR 508 at 512C-D. 66Were I to accede to the plaintiff's application for the establishment of a private trust, with her as trustee, I would, as a practical matter, marginalise if not eliminate protective measures available for the defendant; unnecessarily expose the plaintiff to conflicts of duty and interest as she juggles her roles of mother, carer and trustee; and deprive both mother and son of the guidance and services available to them through the offices of the NSW Trustee and Guardian, and the ready access that can be had to the Court upon an exercise of protective jurisdiction. 67The onerous obligations of a private trustee can be tempered by an application to the Court for directions: eg, Trustee Act 1925 NSW, s 63; Macedonian Orthodox Community Church St Petka Incorporated v Bishop Petar 2008 237 CLR 66. The Court can grant a trustee relief against liability for a breach of trust (eg, Trustee Act, s 85), and authorise a trustee to enter into advantageous dealings (eg, s 81). However, despite every endeavour by equity judges to constrain the costs and formalities associated with an exercise of that type of jurisdiction, the costs associated with administration of a trust can be significant. 68By comparison, an exercise of the protective jurisdiction of the Court, or associated administrative powers of the NSW Trustee, can accommodate greater flexibility. By s 65(1) of the NSW Trustee and Guardian Act, for example, in the context of management of a protected estate by a private manager, the Court or the NSW Trustee "may make such orders as appear to it necessary for rendering the property and income of a managed person available for ... the payment of the debts and engagements of, and otherwise for the benefit of, the person; the maintenance and benefit of the family of the person; [or] otherwise as it thinks necessary or desirable for the care and management of the estate of the person." 69Section 64 of the Act, to take another example, empowers the Court or the NSW Trustee to "make such orders as it thinks fit in relation to the administration and management of the estates of managed persons" and to "make such orders as it thinks fit in connection with authorising, directing and enforcing the exercise of the functions of managers" under the Act. 70Consistently with Countess of Bective v Federal Commissioner of Taxation (1932) 41 CLR 417 at 420-423, the powers of the Court (by virtue of legislation and its inherent jurisdiction) and the NSW Trustee (by virtue of legislation) extend, in the interests of a protected person, beyond those ordinarily allowed to a trustee of a private trust. 71The ready availability of such powers, and the protections available to a protected person, and all persons who are in a fiduciary or familial relationship with a protected person, are not to be discounted in weighing the costs and benefits of different regimes for the management of the property of a person in the position of the defendant. 72In all the circumstances, and (I trust) for the ultimate benefit of the plaintiff as well as the defendant, I make the following orders in disposition of these proceedings: (1)ORDER that the requirements of the Uniform Civil Procedure Rules 2005 NSW, r 57.5 be dispensed with so far as may be necessary for the making of these orders. (2)DECLARE, pursuant to s 41(1)(a) of the New South Wales Trustee and Guardian Act, that the defendant is incapable of managing his affairs. (3)ORDER, pursuant to s 41(1)(a) of the New South Wales Trustee and Guardian Act, that the estate of the defendant be subject to management under the Act. (4)ORDER, pursuant to s 41(1)(b) of the New South Wales Trustee and Guardian Act, that the plaintiff be appointed manager of the estate of the defendant subject to the orders and direction of the NSW Trustee. (5)ORDER, in accordance with UCPR r 57.7(2)(c), that the plaintiff may not do anything in reliance on her appointment as manager of the estate of the defendant until the NSW Trustee has authorised her to assume management of the defendant's estate. (6)ORDER, pursuant to s 68 of the NSW Trustee and Guardian Act, that the plaintiff give such, if any, security in respect of her management of the defendant's estate as the NSW Trustee may determine to be appropriate. (7)ORDER, pursuant to s 77(4) of the Civil Procedure Act 2005 NSW, that, subject to any further order of the Court or any order or direction of the NSW Trustee, moneys presently held in court, in proceedings numbered 2011/93141 in the Common Law Division of the Court, be paid out to the plaintiff in her capacity as the manager of the estate of the defendant, upon her production to the Court of a written authority from the NSW Trustee and Guardian authorising her to receive such moneys. (8)ORDER that the plaintiff advise the defendant in writing, after he has reached the age of 17 years, but before he attains the age of 18 years, of his right to apply to the Court to seek a revocation of the declaration and orders subjecting his estate to administration as a protected estate. (9)ORDER that, after the defendant attains the age of 17 years and prior to his 18th birthday, the plaintiff, as manager of the defendant's estate, provide a report to the Court (including a medical assessment as to the defendant's then capacity) in relation to whether or not the defendant has sufficient capacity to manage his own affairs and whether or not these management orders should or should not be revoked or varied. (10)ORDER that the costs of the plaintiff and the defendant be paid out of the estate of the defendant on an indemnity basis. (11)ORDER that the plaintiff provide a copy of these orders to the NSW Trustee and Guardian. (12)ORDER that all parties be at liberty to apply as they may be advised. 73Orders 8 and 9 reflect the regime proposed by White J in JP v CP [2013] NSWSC 273 at [4] for a timely review of the ongoing need for, and utility of, administration of the defendant's estate as a protected person. They are not intended to preclude an earlier application for a revocation or variation of these orders. 74The power of the Court, presently found in s 86 of the NSW Trustee and Guardian Act, for the revocation of management orders contemplates an application being made to the Court by a protected person for that purpose. Such an application could be made, either personally or through a tutor, notwithstanding that a protected person is an infant. The Court's powers are sufficiently broad to enable such an application to be dealt with appropriately as the nature of the care may require.