Man fails in order application against NSW Trustee & Guardian

Published 06 Sep 2018

A NSW man, guardian to his mother’s estate, has failed in his application through the Equal Opportunity Division tribunal to restrain the actions of NSW Trustee & Guardian. The applicant took legal action after his two siblings requested for him to be replaced as legal guardian by a representative from the Office of the Public Guardian. Although the siblings’ application was retracted, the NSW man still wanted to take the legal matter to the tribunal.

The applicant’s orders against the Trustee & Guardian

The applicant was pursuing the following five orders:

  1. The NSW man’s first decision sought assurances that a Trustee & Guardian authorised visitor would not be engaged. The authorised visitor helps report on the state of mind and health of the person under the Trustee & Guardian’s protection.
  2. The second order was to hold Trustee & Guardian in contempt of the tribunal.
  3. The applicant’s third order wanted the tribunal to use protective powers to prevent him from being removed as his mother’s guardian.
  4. Order number four sought the tribunal to enforce Trustee & Guardian to hand over documents he claims were provided late.
  5. The applicant’s final appeal to restrain Trustee & Guardian from providing sensitive and personal information to his siblings based on the claims that this is in breach of the organisation’s own policies and state privacy legislation.

The decision

The applicant’s five interim orders to restrain the activity of Trustee & Guardian were ultimately rejected by the tribunal. This came after Trustee & Guardian’s legal counsel submitted that the tribunal has no jurisdiction to make any of the proposed orders.

The reasons for rejecting the five orders included:

  1. The appeal to restrain Trustee & Guardian from circumventing the authorised visitor assurance was rejected because the man’s siblings withdrew their application to replace him as the guardian of their mother’s estate. As such, the order is voided.
  2. The second order, holding Trustee & Guardian in contempt of the tribunal on the basis of alleged false assurances, was rejected due to a lack of evidence proving Trustee & Guardian’s legal counsel acted in such a way.
  3. The application’s third order regarding the tribunal’s protective powers was rejected. Because the man’s siblings withdrew their application to replace him as the guardian of their mother’s estate, there was no order for protection to enforce.
  4. The proposed fourth order was rejected because the tribunal determined there is still time to supply these legal documents prior to any final court decisions.
  5. The applicant’s final appeal to to prevent the Trustee & Guardian from providing ‘sensitive and personal information’ to the man’s siblings was rejected too. This is because Trustee and Guardian are obligated by NSW Trustee And Guardian Act 2009 to relay all activity through to an individual’s family members.

If you have an legal issue surrounding your or your family’s estate, contact the solicitors at Gerard Malouf & PartnersCompensation, Medical Negligence & Will Dispute Lawyers today.

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