BCA - [2014] NSWCATGD 47

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BCA [2014] NSWCATGD 47
Hearing dates: 16 December 2014
Date of orders: 16 December 2014
Decision date: 16 December 2014
Jurisdiction: Guardianship Division
Before: Hughes B, Senior Member (Legal)
Jamieson G, Senior Member (Professional)
Newman J, General Member (Community)
Decision:
Temporary guardianship order made for 30 days appointing the Public Guardian with authority to make decisions on access.
Estate committed to the NSW Trustee and Guardian for management.
Catchwords:
GUARDIANSHIP – application for guardianship order - appointment of enduring guardian – exploitation and manipulation alleged – urgent oral application – temporary order made.
FINANCIAL MANAGEMENT – application for financial management order - large estate – will executed shortly before hearing – subject person befriended by strangers – best interests.
Legislation Cited: Guardianship Act 1987 (NSW)
Mental Health Act 2007 (NSW)
Cases Cited: H v H (Supreme Court (NSW), Young J, 20 March 2000, unrep)
McD v McD (1983) 3 NSWLR 81 at 86
PY v RJS [1982] 2 NSWLR 700
Re GHI (a protected person) [2005] NSWSC 581
Category: Principal judgment
Parties: Mr BCA (subject person)
Mrs TGT (applicant)
The NSW Trustee and Guardian
The Public Guardian
File Number(s): 57658
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal (NSW)).

REASONS FOR DECISION

What the Tribunal decided

The Tribunal made a temporary guardianship order appointing the Public Guardian as Mr BCA's guardian for a period of thirty days to make decisions on his behalf about who should have access to him and under what conditions. This order will be reviewed within thirty days.

AND

The Tribunal committed the estate of Mr BCA to the NSW Trustee and Guardian.

Background

Mr BCA is 81 years old and is a permanent resident at an aged care facility in Inner West Sydney. Before moving to the aged care facility in September 2014 Mr BCA lived for many years in a boarding house in Inner West Sydney. Mr BCA has limited social contacts and has only recently reconnected with his sister, Ms FHQ, following his admission to the aged care facility. Ms FHQ lives at Regional NSW.
An application for the appointment of a financial manager was received at the Tribunal on 21 October 2014. The applicant is the manager of the aged care facility, Mrs TGT.
On 12 December 2014 Mr BCA purported to make a will appointing Ms UBU as his executor, trustee and as the beneficiary of his estate. On the same date an appointment of enduring guardian was executed appointing Ms UBU as enduring guardian. There was no application for a review of the making of the appointment of enduring guardian before the Tribunal as the instruments only came to light shortly before the hearing.

The Hearing

At the end of these Reasons for Decision are lists of the parties to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BCA [2014] NSWCATGD 47
Case: [2014] NSWCATGD 47
Decision Date: 16 December 2014

CaseChat Overview and Summary

The matter before the court involved an application for a guardianship order and a financial management order, which was brought by the Public Guardian. The subject person, referred to as "Ms BCA," was alleged to be vulnerable to exploitation and manipulation. This urgent oral application was heard by the court, which granted a temporary guardianship order for thirty days, appointing the Public Guardian to make decisions regarding access. Additionally, the estate was committed to the NSW Trustee and Guardian for management.

The legal issues before the court included determining whether Ms BCA required a guardian and, if so, who should be appointed. The court also had to decide on the management of Ms BCA's estate, which was significant in size and had been the subject of a will executed shortly before the hearing. The court had to consider whether the subject person was being exploited or manipulated by individuals who had recently befriended her.

The court determined that Ms BCA was in need of a guardian and that the Public Guardian should be appointed due to the allegations of exploitation and manipulation by strangers. The court found that Ms BCA was vulnerable and required protection. The court also concluded that the best course of action for the estate was to commit it to the NSW Trustee and Guardian for management. The court noted that the will executed shortly before the hearing should be considered in the management of the estate. The court made a temporary guardianship order for thirty days, appointing the Public Guardian with authority to make decisions on access. The estate was also committed to the NSW Trustee and Guardian for management.

Orders

Orders of the court

Temporary guardianship order made for 30 days appointing the Public Guardian with authority to make decisions on access.

Estate committed to the NSW Trustee and Guardian for management.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	BCA [2014] NSWCATGD 47
Hearing dates:	16 December 2014
Date of orders:	16 December 2014
Decision date:	16 December 2014
Jurisdiction:	Guardianship Division
Before:	Hughes B, Senior Member (Legal) Jamieson G, Senior Member (Professional) Newman J, General Member (Community)
Decision:	Temporary guardianship order made for 30 days appointing the Public Guardian with authority to make decisions on access. Estate committed to the NSW Trustee and Guardian for management.
Catchwords:	GUARDIANSHIP – application for guardianship order - appointment of enduring guardian – exploitation and manipulation alleged – urgent oral application – temporary order made. FINANCIAL MANAGEMENT – application for financial management order - large estate – will executed shortly before hearing – subject person befriended by strangers – best interests.
Legislation Cited:	Guardianship Act 1987 (NSW) Mental Health Act 2007 (NSW)
Cases Cited:	H v H (Supreme Court (NSW), Young J, 20 March 2000, unrep) McD v McD (1983) 3 NSWLR 81 at 86 PY v RJS [1982] 2 NSWLR 700 Re GHI (a protected person) [2005] NSWSC 581
Category:	Principal judgment
Parties:	Mr BCA (subject person) Mrs TGT (applicant) The NSW Trustee and Guardian The Public Guardian
File Number(s):	57658
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal (NSW)).