Part 57 Matters arising under the NSW Trustee and Guardian Act 2009 or Guardianship Act 1987
(1) Words and expressions used in this Part have the same meanings as they have in the NSW Trustee and Guardian Act 2009 or the Guardianship Act 1987, as the case requires.(2) In this Part, a reference to an originating process includes a reference to a notice of motion referred to in rule 57.2 (1).
57.2 Commencement of proceedings
(cf SCR Part 76, rule 5)
(1) Once proceedings (the original proceedings) have been commenced under the NSW Trustee and Guardian Act 2009 or the Guardianship Act 1987 in relation to any person, any further proceedings under that Act in relation to the same person (whether or not they form part of, or relate to, the original proceedings), are to be commenced by notice of motion filed in the original proceedings.Note. Pursuant to rule 6.4, the original proceedings must be commenced by way of summons.(2) If it is necessary for the NSW Trustee and Guardian to apply to the Supreme Court, he or she may apply on report and proposal.
Division 2 Applications under the NSW Trustee and Guardian Act 2009
57.3 Parties to application under section 41 or 54
(cf SCR Part 76, rule 9)
(1) If an application is made under section 41 of the NSW Trustee and Guardian Act 2009, the person in respect of whom the application is made must be made a defendant.(2) If an application is made under section 54 of the NSW Trustee and Guardian Act 2009, the person in respect of whom the application is made must be made a defendant but need not be served.
57.4 Business concerning application under section 41 in the absence of parties
(cf SCR Part 76, rule 10)
If:(a) the plaintiff claims a declaration and order under section 41 of the NSW Trustee and Guardian Act 2009, and(b) no appearance is entered within the time limited for appearance, and(c) there is no attendance, at the time appointed by the originating process for the hearing, by any person opposing the claim,the Supreme Court may determine or deal with the application in the absence of the parties and without any attendance by or on behalf of any person.
57.5 Evidence in support of application under section 41 or 54
(cf SCR Part 76, rule 11)
(1) The evidence in support of an application under section 41 or 54 of the NSW Trustee and Guardian Act 2009 must include the following:(a) an affidavit or affidavits setting out:(i) the conduct and conversation or conversations claimed to establish that the defendant is incapable of managing his or her affairs, and(ii) the nature and amount of the property of the defendant, and(iii) the names of the defendant’s nearest relatives, so far as they are known, and the attitude of each of them to the application, and(iv) the name of, and reason for selecting, the proposed manager,(b) the affidavits of at least 2 medical practitioners or other persons qualified to give an expert opinion on the defendant’s condition, each of whom must set out:(i) his or her formal qualifications, the extent of his or her experience in practice and his or her special qualifications in regard to questions relating to the defendant’s condition, and(ii) his or her diagnosis of the defendant’s condition, explained in his or her own words and set out in his or her own handwriting, and(iii) that, in his or her opinion, the defendant is incapable of managing his or her affairs, and(iv) the reasons for that opinion or the tests on which that opinion is based, set out in his or her own words and handwriting,(c) except where the proposed manager is:(i) the NSW Trustee and Guardian, or(ii) (Repealed)(iii) a trustee company,the affidavits of at least 2 persons as to the fitness of the proposed manager,(d) except where the proposed manager is:(i) the NSW Trustee and Guardian, or(ii) the plaintiff,a consent executed by the proposed manager and an affidavit verifying the execution of the consent.(2) Subrule (1) (a) and (b) do not apply to an application under section 54 of the NSW Trustee and Guardian Act 2009.
57.6 Appointment of managers under section 52
(cf SCR Part 76, rule 12)
If it appears expedient:(a) that several persons should be appointed managers pursuant to a special order referred to in section 52 of the NSW Trustee and Guardian Act 2009, and(b) that one or more of them should continue to act after the death or discharge of the others, or any of them,the order appointing the manager may direct that, after any such death or discharge, the surviving or continuing manager or managers are to continue to act.
57.7 “Usual orders” under sections 41 and 54
(cf SCR Part 76, rules 13 and 13A)
(1) If:(a) under section 41 of the NSW Trustee and Guardian Act 2009, the Supreme Court makes a declaration that the defendant is incapable of managing his or her affairs, or(b) under section 54 of the NSW Trustee and Guardian Act 2009, the Supreme Court makes a declaration that the defendant is a missing person,it may, with or without further order, also make the usual orders.(2) The usual orders referred to in subrule (1) are as follows:(a) an order that the defendant’s estate be subject to management under the NSW Trustee and Guardian Act 2009,(b) an order that:(i) the person proposed in the originating process be appointed manager of the defendant’s estate, to act in relation thereto under the order and direction of the NSW Trustee and Guardian, or(ii) if the NSW Trustee and Guardian is the person proposed, that the management of the defendant’s estate be committed to the NSW Trustee and Guardian,(c) if the person appointed manager of the defendant’s estate is not the NSW Trustee and Guardian, an order that the person may not do anything in reliance on the appointment until the NSW Trustee and Guardian has authorised the person to assume management of the defendant’s estate,(d) if 2 or more persons are appointed to be managers, an order that, on the death or discharge of any of them, custody of the defendant’s estate continues to the remainder of them,(e) an order that the plaintiff’s costs (and, if the defendant appears, the defendant’s costs) on an indemnity basis be paid out of the defendant’s estate,(f) an order that all parties be at liberty to apply as they may be advised.
57.8 Evidence in support of application under section 86
(cf SCR Part 76, rules 19 and 20)
The evidence in support of an application under section 86 of the NSW Trustee and Guardian Act 2009 must include the following:(a) the affidavits of at least 2 medical practitioners or other persons qualified to give an expert opinion on the defendant’s condition, each of whom must state:(i) his or her formal qualifications, the extent of his or her experience in practice and his or her special qualifications in regard to questions relating to the condition of the protected person, and(ii) that, in his or her opinion, the protected person is capable of managing his or her affairs, and(iii) the reasons for that opinion or the tests on which that opinion is based, set out in his or her own handwriting,(b) the affidavits of members of the defendant’s family or other persons, each of whom must state:(i) what opportunity he or she has had of assessing whether or not the protected person is capable of managing his or her affairs, and(ii) his or her assessment and the facts, grounds and circumstances on which he or she made his or her assessment, and(iii) any other facts that may be relevant.
57.9 Mode of making application under section 87
(cf SCR Part 76, rules 23A and 23B)
(1) An application under section 87 of the NSW Trustee and Guardian Act 2009 is to be made by motion in the proceedings in which the declaration and order under section 54 of that Act were made.(2) Notice of the motion is to be served on the manager or on the person on whose application the declaration and order were made.
57.11 Setting aside or varying order
(cf SCR Part 76, rule 16)
The Supreme Court may set aside or vary any order for the appointment of a manager or guardian or for the allowance of maintenance.
57.12 Review under section 6L of the Guardianship Act 1987
(cf SCR Part 76, rule 52)
(1) An application for review under section 6L of the Guardianship Act 1987 must join the enduring guardian as a defendant.(2) The applicant must file and serve with the originating process an affidavit showing the applicant’s relationship to the appointor and the applicant’s interest in the matter.