ZSJ v ZSK [2021] NSWCATAP 144

ZSJ v ZSK [2021] NSWCATAP 144

Given evidence of material change in circumstances and demonstrated willingness/ability to work with medical practitioners, the Appeal Panel found the Appellant is now willing and able to exercise health care and medical/dental consent functions, and satisfies s 17(1)(c) Guardianship Act 1987 (NSW); Public Guardian cannot be appointed under s 15(3), and Appellant is to be substituted as guardian. Despite Appellant's conduct, costs are not awarded due to lack of legal knowledge and finely balanced considerations.

Jurisdiction
Australia
Judgment Date
19 May 2021
Procedural Posture
Appeal / Appeal Decision (appeal Panel)
Outcome
Appeal allowed in part, prior Tribunal order varied.
Legal Topics
['guardianship Appointment' 'medical Consent' 'costs' 'appeal Procedure']
['guardianship' 'health Law' 'civil Procedure'] ['guardianship Appointment' 'medical Consent' 'costs' 'appeal Procedure']

Case Brief

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Procedural Posture

Appeal / Appeal Decision (appeal Panel)

Legal Issues

  1. 1 ['Whether the Appellant is able to exercise health care and medical/dental consent functions under s 17(1)(c) Guardianship Act 1987 (NSW)' 'Whether Public Guardian should be appointed as guardian' 'Whether discretion to deal with internal appeal by way of new hearing should be exercised under s 80(3) Civil and Administrative Tribunal Act 2013 (NSW)' "Whether costs should be awarded due to 'special circumstances'"]

Ratio Decidendi

Given evidence of material change in circumstances and demonstrated willingness/ability to work with medical practitioners, the Appeal Panel found the Appellant is now willing and able to exercise health care and medical/dental consent functions, and satisfies s 17(1)(c) Guardianship Act 1987 (NSW); Public Guardian cannot be appointed under s 15(3), and Appellant is to be substituted as guardian. Despite Appellant's conduct, costs are not awarded due to lack of legal knowledge and finely balanced considerations.

Court Disposition

Appeal allowed in part, prior Tribunal order varied.

Orders

  • ['The appeal is to be dealt with by way of a new hearing (s 80(3) Civil and Administrative Tribunal Act 2013 (NSW)).' 'The decision to appoint NSW Public Guardian as guardian for ZSK with health care and medical/dental consent functions is varied by substituting ZSJ as guardian for ZSK with those functions (s 81(1)...