BDF - [2020] NSWCATGD 26

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BDF [2020] NSWCATGD 26
Hearing dates: 11 February 2020
Date of orders: 11 February 2020
Decision date: 11 February 2020
Jurisdiction: Guardianship Division
Before: D Jay, Senior Member (Legal)
Dr E Safro, Senior Member (Professional)
S Bullock, General Member (Community)
Decision:
1. The estate of BDF is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of BDF is committed to the NSW Trustee and Guardian.
1. A guardianship order is made for BDF.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 11 February 2020.
4. This is a limited guardianship order giving the guardian(s) custody of BDF to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where BDF may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take BDF to a place approved by the guardian.
ii) keep him at that place.
iii) return him to that place should he leave it.
c) Health care
To decide what health care BDF may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where BDF is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to BDF.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring BDF to an understanding of the issues and to obtain and consider his views before making significant decisions.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian - subject person an inpatient in hospital – Wernicke’s encephalopathy and alcohol related brain damage – need for decision in relation to accommodation upon discharge – subject person likely to refuse to comply with accommodation decisions – need for medical and dental consent decisions – need for healthcare and services decisions – subject person and proposed guardian do not have a compatible relationship – proposed guardian not suitable to be appointed – Public Guardian appointed – order made.
FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their own affairs - subject person has history of heavy drinking and propensity to return to heavy drinking – diagnoses of Wernicke’s encephalopathy and alcohol related brain damage – financial management needed to facilitate admission to a residential aged care facility – appointment of private manager not supported by subject person – NSW Trustee and Guardian appointed – order made.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 25M

Cases Cited:
Application by AMAM; Re SAM [2011] NSWSC 503
C S and M Y v 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.

Continue reading BDF

Details

AGLC: BDF [2020] NSWCATGD 26
Case: [2020] NSWCATGD 26
Decision Date: 11 February 2020

CaseChat Overview and Summary

In the case of BDF, the Supreme Court of New South Wales was asked to make a guardianship and financial management order. BDF, a person with Wernicke’s encephalopathy and alcohol related brain damage, required decisions about their future accommodation, health care, and financial management. The court was tasked with determining whether BDF was a person in need of a guardian and whether they were incapable of managing their own financial affairs. The primary concern was BDF's likelihood to refuse to comply with decisions regarding their accommodation and the need for substitute decisions about their health care and medical consent.

The court examined the evidence regarding BDF's medical condition, history of heavy drinking, and the proposed guardianship and financial management arrangements. It was noted that BDF was unlikely to comply with decisions regarding their future accommodation and required decisions about their health care and medical consent. The court considered the relationship between BDF and the proposed guardian, concluding that it was not compatible and that the proposed guardian was unsuitable. The court also assessed the need for financial management to facilitate admission to a residential aged care facility. The court concluded that BDF was in need of a guardian and incapable of managing their own financial affairs.

The court appointed the Public Guardian as the guardian for BDF, making a continuing guardianship order for 12 months. The order granted the Public Guardian functions including deciding BDF's accommodation, authorizing others to take BDF to an approved place, making decisions about BDF's health care and medical or dental treatment, and deciding services to be provided to BDF. The court also appointed the NSW Trustee and Guardian as the financial manager of BDF's estate. The order included a condition requiring the guardian to take reasonable steps to understand BDF's views before making significant decisions.

Orders

Orders of the court

1. The estate of BDF is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. The management of the estate of BDF is committed to the NSW Trustee and Guardian.

1. A guardianship order is made for BDF.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 11 February 2020.

4. This is a limited guardianship order giving the guardian(s) custody of BDF to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where BDF may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take BDF to a place approved by the guardian.

ii) keep him at that place.

iii) return him to that place should he leave it.

c) Health care

To decide what health care BDF may receive.

d) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where BDF is not capable of giving a valid consent.

e) Services

To make decisions about services to be provided to BDF.

CONDITION:

6. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring BDF to an understanding of the issues and to obtain and consider his views before making significant decisions.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	BDF [2020] NSWCATGD 26
Hearing dates:	11 February 2020
Date of orders:	11 February 2020
Decision date:	11 February 2020
Jurisdiction:	Guardianship Division
Before:	D Jay, Senior Member (Legal) Dr E Safro, Senior Member (Professional) S Bullock, General Member (Community)
Decision:	1. The estate of BDF is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of BDF is committed to the NSW Trustee and Guardian. 1. A guardianship order is made for BDF. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 11 February 2020. 4. This is a limited guardianship order giving the guardian(s) custody of BDF to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where BDF may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take BDF to a place approved by the guardian. ii) keep him at that place. iii) return him to that place should he leave it. c) Health care To decide what health care BDF may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where BDF is not capable of giving a valid consent. e) Services To make decisions about services to be provided to BDF. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring BDF to an understanding of the issues and to obtain and consider his views before making significant decisions.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian - subject person an inpatient in hospital – Wernicke’s encephalopathy and alcohol related brain damage – need for decision in relation to accommodation upon discharge – subject person likely to refuse to comply with accommodation decisions – need for medical and dental consent decisions – need for healthcare and services decisions – subject person and proposed guardian do not have a compatible relationship – proposed guardian not suitable to be appointed – Public Guardian appointed – order made. FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their own affairs - subject person has history of heavy drinking and propensity to return to heavy drinking – diagnoses of Wernicke’s encephalopathy and alcohol related brain damage – financial management needed to facilitate admission to a residential aged care facility – appointment of private manager not supported by subject person – NSW Trustee and Guardian appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 25M
Cases Cited:	Application by AMAM; Re SAM [2011] NSWSC 503 C S and M Y v the…