YFP v Public Guardian

1. Ninety-year-old YFQ has severe dementia and for the past four years has lived in residential aged care. Her son, YFP appeals from a decision made by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) in September 2024, to renew a guardianship order made in respect of YFQ, and to reappoint the NSW Public Guardian as guardian for YFQ.
2. In these reasons we refer to YFQ as "the Mother" and YFP as "the appellant".
3. The appeal raises two main questions, whether:

(1) in appointing the Public Guardian, the Tribunal misapplied the provisions of the Guardianship Act 1987 (NSW) which govern the power to appoint a person as guardian, and

(2) whether the conclusion reached by the Tribunal that the appellant was not able to exercise the functions conferred under the guardianship order was against the weight of evidence.

1. We are not satisfied that the decision under appeal contains legal errors of the type identified by the appellant. We dismissed the appeal and declined to exercise the discretion to give the appellant leave to appeal.
2. The appellant was the only party to participate in the appeal.

1. The following is largely taken from the reasons given by the Tribunal for the decision under appeal (the Reasons) and the decision of another Appeal Panel to dismiss an appeal from a decision made in 2023 to appoint the Public Guardian as guardian for the Mother: YFP v Public Guardian [2023] NSWCATAP 339 (Appeal Decision 1 (AD 1)).
2. In 2018, the Mother was diagnosed with Alzheimer's disease. Before moving to residential aged care in August 2021, the Mother was living in a house she owns on the NSW south coast (the family home). In about 2018, the appellant moved to the family home where he continues to live.
3. In June 2021, the Mother's daughter (the Daughter) applied to NCAT seeking guardianship and financial management orders in respect of the Mother. The Daughter claimed that the Mother was no longer able to care for herself and was vulnerable to exploitation by the appellant. The Daughter alleged that, because of strained relationships between the appellant and other members of the family, the Mother had little contact with her family and was socially isolated.
4. In July 2021, the Tribunal made a 12-month guardianship order and appointed the Public Guardian as guardian for the Mother with authority to make decisions about the Mother's accommodation, health care, services and to consent to medical and dental treatment on behalf of the Mother (the initial guardianship order).
5. Two months later, the Tribunal made a financial management order and committed the management of the Mother's estate to the NSW Trustee and Guardian.
6. In April 2022, following an end-of term review, as required by s 25(2)(b) of the Guardianship Act, the Tribunal renewed the initial guardianship order for a period of 12 months, reappointed the Public Guardian and added to the functions conferred by that order, authority to consent to, and to withhold consent to, the use of restrictive practices (the 2022 guardianship order).
7. In the hearing where the 2022 guardianship order was made, the appellant urged the Tribunal to appoint him as the Mother's guardian. Instead, the Tribunal appointed the Public Guardian because it was not satisfied that the appellant would be able to undertake the role of guardian because he lacked of insight into the Mother's high support needs, had rejected the medical evidence that she now requires assistance with all activities of daily living, and held a "fixed view" that his mother should return to live with him: Reasons, 29 April 2022 at [64]. In addition, the Tribunal found that the appellant's desire to continue to live in the family home gave rise to a potential conflict between his financial interests and those of the Mother. The Tribunal found that the appellant did not satisfy the statutory criteria for appointment, specifically that there be "no undue conflict between the interests (particularly, the financial interests)" of the appellant and those of the Mother, and, that the appellant be able to exercise the functions conferred by the guardianship order: Guardianship Act, ss 17(1)(b) and 17(1)(c): Reasons, 29 April 2022 at [65], [66].
8. In April 2023, a differently constituted Tribunal conducted an end-of-term and a requested review of the 2022 guardianship order. The Tribunal rejected the appellant's contention that there was no need for a further guardianship order because he was able to care for and make decisions on behalf of his mother by "informal means". In addition, the Tribunal found that the appellant did not satisfy the statutory criteria for appointment as the Mother's guardian. The Tribunal renewed the 2022 guardianship order for a period of 24 months and reappointed the Public Guardian (the 2023 guardianship order).
9. The appellant unsuccessfully appealed from that decision: AD1.
10. In February 2024, the appellant made an application requesting NCAT to review the 2023 guardianship order. In that application, the applicant wrote:

I think Mum has never lost the capacity to make decisions and still has the capacity to make decisions about her accommodation. I have a video and audio files of Mum saying she wants to go home. As a NSW citizen Mum has a right and capacity to choose where she wants to live and her views must be given consideration.

I think I can be Mum's guardian and would dedicate myself to Mum's best interests.

1. Following review, the Tribunal renewed the 2023 guardianship order for a period of two years. In that order, the Tribunal reappointed the Public Guardian as guardian for the Mother with authority to make decisions about her accommodation, health care, services and to consent, or to withhold consent, to medical and dental treatment and the use of restrictive practices on behalf of the Mother. This is the decision under appeal.

1. As a party to the proceedings before the Tribunal, the appellant has a right to appeal the decision under appeal, an "internally appealable decision", on any question of law or, with the leave of the Appeal Panel, on any other ground: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b).
2. In the notice of appeal, the appellant did not identify a "question of law". However, adopting the "more generous or benevolent approach" endorsed by the Court of Appeal (Griffiths AJA, Meagher and Kirk JJA agreeing) in Kudrynski v Orange City Council [2024] NSWCA 33 at [50], [51], from the notice of appeal and the submissions in support of the appeal, the following purported questions of law can be discerned:

(1) Whether, in appointing the Public Guardian as the Mother's guardian, the Tribunal misapplied ss 15(3) and 17(1) of the Guardianship Act.

(2) Whether, in appointing the Public Guardian as the Mother's guardian, the Tribunal was required and failed to have regard to the views of the Mother: Guardianship Act, s 4(d).

1. In addition, the appellant seeks leave to appeal. He contends that the finding that he was not a suitable person to act as the Mother's guardian was against the weight of evidence.

Ground 1: Did the Tribunal misapply ss 15(3) and 17(1) of the Guardianship Act?

1. The appellant contends, as he did in the 2023 appeal (AD1), that by appointing the Public Guardian in circumstances where he was willing and able to be appointed as guardian and the Mother supported his appointment, the Tribunal misapplied s 15(3) of the Guardianship Act.

1. Where the Tribunal decides to make a guardianship order, it must appoint a person(s) who is aged 18 years or more as the guardian of the person under guardianship: Guardianship Act, s 16(1)(a).
2. Where, as in this case, the Tribunal decides to make a continuing, as opposed to a temporary, guardianship order, s 15(3) of the Guardianship Act instructs that the Tribunal must not appoint the Public Guardian where another person can be appointed as the guardian.
3. Before appointing a person to act as the guardian of the person under guardianship, the Tribunal must satisfy itself that the proposed guardian satisfies each of the three matters listed in s 17(1) of the Guardianship Act:

17 Guardians

(1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that:

(a) the personality of the proposed guardian is generally compatible with that of the person under guardianship,

(b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and

(c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.

1. Section 4 imposes a duty on anyone exercising functions under the Guardianship Act, including the Tribunal and any appointed guardian, to observe the principles in s 4 of that Act:

4 General principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation,

(h) the community should be encouraged to apply and promote these principles.

Reasons given by Tribunal for appointing the Public Guardian

1. At [13], the Tribunal recorded that the current Care Plan prepared by the aged care facility where the Mother has been residing since 2021 (the Facility) recorded that the Mother had been diagnosed with severe dementia with memory loss and that she required support with all aspects of her day-to-day care, including toileting, because of incontinence.
2. At [14], the Tribunal noted that the appellant conceded he had received but had not read the Care Plan. At [28]-[29], the Tribunal set out the submissions made by the appellant for opposing the inclusion of an accommodation function in any further renewed order:

28 [The appellant] said that if a guardianship order was to be made, then it should not include an accommodation function. This would mean that he could take his mother home to live with him. He said that Dr Potter the Geriatrician that his mother had seen at Wollongong hospital was very surprised that she had been moved to residential aged care [sic]. He did not think that his mother's health or capacity had changed since she had last seen Dr Potter over three years ago.

29 [The appellant] told the Tribunal that he would be able to care for his mother better than the aged care facility is able to. He has a senior first aid certificate, is meticulous with his hand washing, and lives just six minutes from the hospital in the event of emergency. He said he has become "quite a night owl" and would be able to check on his mother during the night to make sure that she was all right. [The appellant] said that he would keep [the Mother] locked in the house for her own safety and hide the keys.

1. At [38]-[51], under the heading "Who should be appointed as the guardian?", the Tribunal set out its reasons for re-appointing the Public Guardian. At [38], the Tribunal said that to appoint a private person as guardian the Tribunal must be satisfied that they meet the requirements in s 17(1) of the Guardianship Act. At [39], referring to paragraph (c) of s 17(1) the Tribunal said:

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 section 4 of the Guardianship Act, demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

1. The Tribunal went on to note at [42] that each of the previous tribunals which had made guardianship orders in respect of the Mother had found that the appellant was not a suitable person to be appointed as her guardian. At [43], the Tribunal said that there was "no new material ... which [now] indicated that [the appellant] was better placed to be appointed as guardian for his mother".
2. At [44]-[49] the Tribunal explained the reasons it was not satisfied that the appellant was able to undertake the role of guardian:

44 At the hearing, the Tribunal gave [the appellant] guidance and ample opportunity to explain how he would undertake the role of guardian were he appointed. He found it difficult, apparently, to understand what was being asked, despite a number of explanations. Ultimately, he said that he believed that his mother wanted to return home to live with him. This has been his motivation throughout. Although he acknowledged that this was not what [the Mother] said to him at the hearing today, he thought that she would probably say it to him at another time. When she did tell him this, he would then remove her from [the Facility] and return home with her.

45 [The appellant's] assertion that he would be able to attend to all of her care needs himself was not well founded. He acknowledged that he had not read the Care Plan and demonstrated that his understanding of his mother's care needs was not up to date. For example, he said that she is able to shower herself and would not need any assistance with this. The Care Plan indicates that [the Mother] requires assistance with all activities of daily living, including showering, toileting, and continence management.

46 The Tribunal asked [the appellant] whether there was other information that he would rely on in deciding about where his mother should live. This was very difficult for him to answer, and he repeatedly returned to relying on his mother's view about this. He ultimately said that maybe an ACAT assessment could be done and that maybe he could ask Dr Potter's view. Although he indicated that he would accept these views, even if they were contrary to his own opinion, the Tribunal was not confident that this was the case. [The appellant] demonstrated no capacity to understand or absorb the information provided by [the Facility's care managers] at the hearing, and did not demonstrate sufficient interest in his mother's care needs to read her Care Plan prior to the hearing. The Tribunal considered that this demonstrated he was not able to consider views which differed from his own regarding his mother's disability and care needs.

47 [The appellant] also demonstrated a lack of understanding of the role of a guardian. He said that it wasn't the job of a guardian to make decisions about a person's health or medical treatment, that his was the decision of their doctor, and the guardian could not know better than a person's doctor. The Tribunal explained to him, in simple terms, the need for consent to medical treatment, but [the appellant] was dismissive of this information, stating that this was not something that his mother needed anybody to make decisions about.

48 Other hearing participants expressed, in guarded terms, their view that [the appellant] was not a suitable person to be appointed as guardian. [The Daughter] said that her mother is happy and settled living at [the Facility], and that this situation should continue. It was implied that if her brother was appointed as guardian, this living arrangement would be disturbed. [The Facility's care manager] said that [the Mother] needs a guardian who acknowledges the impact that dementia has on her and understands her particular situation, and her needs. Again, what was implied but not explicitly stated, was that [the appellant] did not demonstrate any understanding of these matters. [The Public Guardian] agreed with this submission.

49 The Tribunal appreciates that [the appellant] passionately wants his mother to return home to live with him. The Tribunal did not ask any questions in relation to the status of the management of [the Mother's] financial affairs but noted that he continues to live in the house owned by his mother, and that previous Tribunals have expressed concerns regarding potential conflict between his interests and his mother's interests in relation to decisions about where she should live. The Tribunal considers this likely continues to be a realistic concern, which would impact on his suitability to be appointed as her guardian. However, even if this was not a relevant concern, the Tribunal could not be satisfied that [the appellant] has sufficient understanding of his mother's needs to be able to act as her guardian.

1. After correctly stating the relevant statutory provisions and legal principles, the Tribunal acknowledged that to exercise the power to appoint the appellant as guardian required that it be satisfied that he is able to exercise the functions conferred by the guardianship order.
2. The Tribunal concluded that it was not satisfied that the appellant would be able to exercise the accommodation function, finding that he lacked insight into the Mother's care needs and was unwilling or unable to accept the evidence that she had severe dementia and now required intensive 24/7 care and support. The Tribunal considered significant the appellant's failure to read the Care Plan and noted that his opinion about the Mother's current care needs was based on an opinion said to have been expressed by a geriatrician who last saw the Mother three years ago. The Tribunal was not persuaded by the appellant's claim that before implementing his stated plan to take the Mother home to live with him, he would consider expert opinion about the likely impact of that move on the Mother. In addition, the Tribunal found that the appellant lacked an understanding of the role of guardian, giving as an example his view that it was not the role of a guardian to make decisions about a person's health or medical treatment because that was the role of medical practitioners who "know better".
3. The Tribunal gave cogent reasons for concluding that it was not satisfied that the appellant was able to exercise the functions conferred under the guardianship order. Having reached that conclusion, it was not open to the Tribunal to exercise the power conferred by s 17 of the Guardianship Act to appoint the appellant as the Mother's guardian. Reaching a state of satisfaction that the appellant was able to exercise the functions conferred under the guardianship order was a precondition to the exercise of that power.
4. Section 15(3) of the Guardianship Act does not, as the appellant appears to contend, direct the Tribunal not to appoint the Public Guardian where an individual has nominated to act as guardian. Rather the direction contained in s 15(3) is qualified by the words "where another person can be appointed as the guardian". Here, the Tribunal was not satisfied that the appellant met the criteria for appointment in s 17 of the Guardianship Act, therefore he could not be appointed as guardian and the direction in s 15(3) did not apply.
5. The contention that by appointing the Public Guardian the Tribunal misapplied ss 15(3) and 17(1) of the Guardianship Act is rejected.

Ground 2: In appointing the Public Guardian as the Mother's guardian was the Tribunal required to have regard to the views of the Mother

1. The appellant contends that in the hearing before the Tribunal on 27 September 2024, the Mother said that she wished him to be appointed as her guardian. In support, he points to a video recording of a conversation between himself and the Mother. He contends that as a consequence, s 4(d) of the Guardianship Act required the Tribunal to appoint him as the Mother's guardian. Section 4 of the Guardianship Act states that "it is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe [several] principles". These include, that in the exercise of those functions, the views of persons who have disabilities be taken into consideration: Guardianship Act, s 4(d).
2. There are several difficulties with this argument.
3. First, the appellant appears to contend that if the person the subject of a guardianship order expresses a view that a particular person be appointed as their guardian, the Tribunal must appoint that person, irrespective of whether the Tribunal is satisfied that that person meets the criteria for appointment in s 17(1). Neither the text, context nor purpose of that provision, supports that interpretation.
4. Second, neither s 4(d) nor 17(1) state that the latter is subject to the former, nor do their context and purpose support those provisions being construed in that way.
5. Third, in any event, the obligation imposed by s 4(d) is to consider not to give effect to the views of the person with disability.
6. Fourth, there is no evidence that during the hearing the Mother said that she wished the appellant to be appointed as her guardian. In the appeal, the appellant did not file a transcript or sound recording of the hearing before the Tribunal. The only record of what the Mother said during the hearing is contained in the Reasons. At [17], [18], the Tribunal recorded that the Mother did not appear to understand the questions it asked. When questioned by the appellant, she did not agree that she wished to return home to live at home with him.
7. Finally, as he acknowledged in the appeal, the appellant did not give the Tribunal the video recording in which the Mother is claimed to have said she wished him to be appointed as her guardian. The appellant said that video was recorded about four years ago around the time the Mother entered aged care. In any event, even if it were accepted that the Mother made that statement, as explained above the Tribunal was not required to give effect to the Mother's views.
8. This ground of appeal must be rejected.

1. The appellant urges us to exercise the discretion to grant leave to appeal on the ground that the conclusion reached by the Tribunal that it was not satisfied that the appellant was able to exercise the functions conferred under the guardianship order (the impugned finding), was against the weight of evidence.
2. The only material before the Tribunal to support the appellant's claim that he was able to exercise the functions conferred under the guardianship order was his self-report that he was "up to the task".
3. The Tribunal noted at [48] that the other participants in the hearing, namely, the Daughter, the Facility's care managers and the Public Guardian expressed in "guarded terms" the opinion that the appellant "was not a suitable person to appoint as guardian and had not demonstrated an understanding of [the Mother's] care needs". There was a wealth of evidence before the Tribunal to support that opinion, much of which was given by the appellant himself. This included his admission that he had not reviewed the Care Plan, his reticence to acknowledge that the Mother's cognition had deteriorated to such an extent that she now required intensive care and support, and his demonstrated misunderstanding of the role of guardian.
4. The contention that the impugned finding was against the weight of evidence is rejected.
5. The premise on which the appellant requests leave to appeal is not established. Therefore, it is not necessary to decide whether a "sound basis" for granting leave has been established: Collins v Urban [2014] NSWCATAP 17 at [84]. In any event the proposed appeal raises no issue of general importance, matters of principle, or any of the other factors identified by the Appeal Panel in Collins v Urban which might warrant the exercise of the discretion to grant leave to appeal.
6. Leave to appeal is refused.

Should time to lodge Notice of Appeal be extended?

1. The appellant was required to lodge a Notice of Appeal within 28 days from the day on which he was notified of the decision to be appealed or given reasons for that decision, whichever was later: Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules), r 25(4)(c). He received the reasons for decision on 29 April 2025 and lodged the Notice of Appeal on 30 May 2025, three days out of time.
2. As the Notice of Appeal was not lodged until after the statutory deadline had passed, the appeal cannot proceed unless the power conferred by s 41 of the NCAT Act to extend the period to lodge an appeal is exercised. That power must be exercised judicially having regard to the "guiding principle" of the NCAT Act that the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [18].
3. In Jackson, the Appeal Panel identified, at [22], factors generally relevant to the exercise of the discretion to extend time to lodge a Notice of Appeal. They include: the length of and reason for the delay; whether the appellant has a fairly arguable case; and the extent of any prejudice that might be suffered by the respondents to the appeal if leave to extend time to lodge a Notice of Appeal is granted.
4. The following factors favour the exercise of the discretion to extend the time to appeal. The length of the delay is relatively short and there would be no prejudice to the other parties to the appeal if the discretion to extend time to appeal were to be exercised. In addition, the appellant provided an adequate explanation for his failure to lodge the Notice of Appeal within time. He explained that his only source of income is the disability support pension and at the time he was required to lodge the appeal he had insufficient funds to pay the fee to lodge the appeal.
5. However, those factors are outweighed by the consideration that the appellant does not have an arguable case. For that reason, we refuse to exercise the discretion to extend time to appeal.

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.

17 October 2025 - Orders at the end of the decision