HWS [2016] NSWCATGD 32

HWS [2016] NSWCATGD 32

The Tribunal proceeded on the basis that Mr HWS was domiciled in NSW and held that the presumption against extraterritorial operation of the Guardianship Act was rebutted because Mr HWS had a real connection with NSW, including his home, sons, assets and care arrangements, and because his welfare and possible exploitation required protection. Although Mr HWS was absent, procedural fairness was flexible in the urgent circumstances and the proceedings could continue. The medical and assessment evidence, together with the previous finding, established that Mr HWS had dementia and a disability affecting important life decisions. Given the unexplained overseas travel, health concerns and need...

Jurisdiction
Australia
Judgment Date
22 June 2016
Procedural Posture
Applications for Guardianship and Financial Management Orders / Urgent Hearing; Guardianship Order and Interim Financial Management Order Made
Outcome
Guardianship order made for one month with advocacy functions; interim financial management order made for one month appointing a private manager.
Legal Topics
['disability Affecting Decision Making' 'extraterritorial Jurisdiction' 'procedural Fairness Where Subject Person Absent' 'interim Financial Management' 'vulnerability to Exploitation' 'appointment of Private Guardian and Financial Manager']
['guardianship' 'financial Management' 'administrative Law'] ['disability Affecting Decision Making' 'extraterritorial Jurisdiction' 'procedural Fairness Where Subject Person Absent' 'interim Financial Management' 'vulnerability to Exploitation' 'appointment of Private Guardian and Financial Manager']

Case Brief

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Procedural Posture

Applications for Guardianship and Financial Management Orders / Urgent Hearing; Guardianship Order and Interim Financial Management Order Made

Legal Issues

  1. 1 ['Whether Mr HWS was domiciled in NSW despite reportedly being in the United Arab Emirates.' 'Whether the Tribunal had jurisdiction to hear the guardianship and financial management applications while Mr HWS was reportedly overseas.' "Whether the hearing should proceed in Mr HWS's absence." 'Whether Mr HWS was a person for whom a guardianship order could be made because a disability prevented him from making important life decisions.' 'Whether a guardianship order should be made, what functions should be conferred, who should be appointed, and for how long.' "Whether an interim financial management order should be made pending further consideration of Mr HWS's capability to manage his affairs." 'Who should be appointed as interim financial manager.']

Ratio Decidendi

The Tribunal proceeded on the basis that Mr HWS was domiciled in NSW and held that the presumption against extraterritorial operation of the Guardianship Act was rebutted because Mr HWS had a real connection with NSW, including his home, sons, assets and care arrangements, and because his welfare and possible exploitation required protection. Although Mr HWS was absent, procedural fairness was flexible in the urgent circumstances and the proceedings could continue. The medical and assessment evidence, together with the previous finding, established that Mr HWS had dementia and a disability affecting important life decisions. Given the unexplained overseas travel, health concerns and need...

Court Disposition

Guardianship order made for one month with advocacy functions; interim financial management order made for one month appointing a private manager.

Orders

  • ["Mr NBT appointed as Mr HWS's guardian for a period of one month to advocate on his behalf as set out in the Tribunal's order." "Mr NBT appointed as Mr HWS's financial manager on an interim basis for a period of one month." 'Mr NBT appointed interim financial manager subject to the authorities and directions of the...