Appeal Panel refuses to pause a guardianship decision or block a family home sale (NCAT, 2026)

What happened

On 20 July 2026 the Guardianship Division of NCAT dealt with three applications brought by one of two daughters. It dismissed her application for a financial management order over her mother's money and property, declined to make orders under section 36 of the Powers of Attorney Act 2003 (NSW) after reviewing an enduring power of attorney the mother signed on 20 June 2025 appointing the other daughter as her attorney (an enduring power of attorney is a document in which a person appoints someone to deal with their money and property), and declined to review how that power of attorney was operating.

The mother is 91. Her first language is Spanish and her English is limited. The daughter who brought the applications argued that medical records showed some cognitive impairment that cast doubt on her mother's capacity to sign the 2025 document, and that her sister had pressured the mother into signing it. The Guardianship Division found those allegations unsupported. It found appropriate steps were taken so the mother understood the document, including the use of a Spanish interpreter; that there was some evidence of cognitive impairment during a hospital admission in 2024 but no dementia diagnosis; and that an MRI in April 2025 was not enough to show dementia or a lack of capacity. It also found no evidence of any failure by the sister in her role as attorney.

The Guardianship Division recorded that the mother said repeatedly, at hearings on 11 May 2026 and 20 July 2026, that she was still able to manage her own financial affairs, that she was confident her other daughter could not access her bank accounts and would not act without her permission, and that she had wanted to sell the family home for a long time. Her husband had died in July 2023. In June 2025 she moved in with the sister and was still living there. Her only stated concern about her finances was that the daughter who brought the applications was living in the family home and preventing the sale.

By the time the stay application was heard, the daughter who appealed had been living in the family home since mid-2025. On 2 September 2026 NSW Police attended the home and issued her with a trespass notice, and solicitors acting for the mother directed her to leave and not return. She said she was given little time to collect her belongings. The mother and sister said she returned to the home after that date. The mother had appointed real estate agents to market and sell the home in 2025.

What each side wanted

The appealing daughter asked the Appeal Panel to stay the operation of the decisions she was appealing and, on top of that, to make "interim preservation orders" stopping the mother, the sister or their agents from taking vacant possession of the family home, selling it or taking steps to sell it, disposing of any substantial asset, or transferring or gifting the mother's funds beyond living and reasonably necessary expenses. She argued the appeal had reasonable prospects, raising denial of procedural fairness, a failure to stop the sister prompting the mother during the hearing, an incomplete and one-sided record, the sister's non-compliance with directions made on 3 October 2025, a refusal to admit audio-visual evidence, and findings against the weight of evidence. She said that without the preservation orders the appeal would be futile because the home might be sold and its contents disposed of, causing irreversible loss and possibly creating rights in third parties, and she suggested the proceeds might be used to buy an investment property for her sister's son. The sister said the appeal had no real prospects, that a sale before the appeal was unlikely because the home needed significant repairs, and that the mother was the one being disadvantaged, having paid rates, utilities and other costs since mid-2025 on a home she no longer lived in and no longer wished to keep.

What the tribunal decided

The Appeal Panel refused both requests. The order recorded is: "The application to stay the decision under appeal and the application for 'urgent interim preservation orders' is refused."

The orders were made on 16 September 2026. The written reasons were published on 14 October 2026 after the appealing daughter asked for them under section 62 of the Civil and Administrative Tribunal Act 2013 (NSW). No money was ordered to be paid either way, and the appeal itself was not decided at this stage.

Why the tribunal decided it that way

Section 43(2) of the Civil and Administrative Tribunal Act 2013 (NSW) says a pending appeal does not affect the operation of the decision being appealed, and does not stop steps being taken to put that decision into effect, unless the Tribunal makes a stay order. Section 43(3) lets the Tribunal make orders staying or otherwise affecting the operation of that decision as it considers appropriate to secure the effectiveness of the appeal. The Act does not list the factors to weigh, so the Appeal Panel applied the summary of principles in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37: a successful party is generally entitled to the benefit of the decision it won; the onus is on the person asking for the stay; simply lodging an appeal is not enough; a stay is generally appropriate where it is reasonably necessary so the appeal is not rendered pointless; the strength of the appeal can be taken into account; conditions can be attached; the balance of convenience and the competing rights of the parties are weighed; and the overriding question is what the interests of justice require.

The Appeal Panel noted that a stay on its own would achieve nothing here. The decisions appealed were refusals to make orders, so pausing them would not change the position the daughter objected to: her mother would still not be under a financial management order, and the sister would still be the attorney. That is why she sought the preservation orders instead.

On the strength of the appeal, the Appeal Panel said many of the proposed grounds appeared to be thinly veiled challenges to findings of fact, which require leave to appeal, and the argument for leave was not compelling on the material available. Some of the procedural fairness complaints rested on what was said to have happened at the hearing, which was hard to assess at an early stage without a transcript. The prospects did not appear strong, but could not be called hopeless.

On prejudice, the Appeal Panel found the orders sought would cut across the mother's autonomy and freedom of decision-making. Nothing suggested her longstanding wish to sell the home was anything other than genuine, and preventing her from carrying out that wish would prejudice her. The harm said to threaten the mother if the orders were not made was described as, at best, speculative, particularly given the findings that she had capacity to sign the 2025 document and that there was no evidence the sister was mismanaging her finances. Weighing that prejudice against the assessment of the appeal's prospects, the Appeal Panel decided not to exercise the discretion in section 43(3).

What this means if you are in a similar position

If you are in a similar position and you have lodged an appeal at NCAT, this decision shows that the appeal by itself does not put the original decision on hold. Under the Tribunal's own Act, the decision keeps operating and steps can be taken to act on it unless you ask for a stay and the Tribunal agrees. The person asking carries the burden of showing why a pause is appropriate.

It also shows two practical points about how that discretion is applied. First, a stay only helps if it changes something: where the decision under appeal was a refusal to make orders, pausing it leaves the position exactly as it was, so what is really being sought is a fresh interim order. Second, the Tribunal weighs how strong the appeal looks against the real-world effect on the other side. Here, findings of fact that need leave to challenge, concerns that could not yet be tested without a transcript, and a claimed future harm described as speculative were set against the direct effect on an elderly person's ability to sell a property she said she had long wanted to sell. The decision also shows that a tribunal will look closely at whether an older person's own stated wishes are genuine, and will give weight to what that person says at the hearing.

In disputes about how someone is handling a family member's money or property, the step most people take first is to put their concerns in writing to the person holding the role, setting out what they want done and by when, and only then lodge an application or an appeal with the tribunal if that gets nowhere.

How to apply: our step-by-step guide to a NCAT application. More decisions: NCAT cases and other civil disputes.

Source: YTB v YBJ [2026] NSWCATAP 318 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.