In protective jurisdiction proceedings under the NSW Trustee and Guardian Act 2009, a court considering capacity must permit a party to call their treating psychiatrist to give oral evidence where that evidence is critical and the witness is available within a short timeframe, even if not available on the appointed hearing date. The considered opinions of a long-term treating psychiatrist should usually assume considerable importance in capacity determinations. Estate management orders under s 41 cannot be made where the initiating process does not invoke that jurisdiction. A court may dispense with the requirement for a tutor under r 7.14 UCPR to permit a protected person to bring an appeal challenging the very orders that created the incapacity.
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