BGU - [2020] NSWCATGD 88

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BGU [2020] NSWCATGD 88
Hearing dates: 4 November 2020
Date of orders: 4 November 2020
Decision date: 04 November 2020
Jurisdiction: Guardianship Division
Before: J Claridge, Senior Member (Legal)
S Flanagan, Senior Member (Professional)
Dr M Spencer, General Member (Community)
Decision:
1. A guardianship order is made for BGU.
2. TNU of [Address removed for publication.] is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 4 November 2020.
4. This is a limited guardianship order giving the guardian(s) custody of BGU to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Health care
To decide what health care BGU may receive.
b) Services
To make decisions about services to be provided to BGU.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring BGU to an understanding of the issues and to obtain and consider her views before making significant decisions.
Financial Management
1. The estate of BGU is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. CSK of [Address removed for publication.] is appointed as the financial manager of the estate.
NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until she has obtained all necessary authorities from the NSW Trustee and Guardian.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – subject person with speech and hearing impairment – limited language – reliance on family members in navigating community – guardianship order made – appointment of private guardian.
FINANCIAL MANAGEMENT – application for a financial management order – whether subject person incapable of managing their own affairs – victim of financial exploitation – risk of further financial exploitation – private person suitable to be appointed as financial manager – private financial manager appointed – order made.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(1)-(2), 15(3), 17(1) 18(1), 25M

Cases Cited:
CJ v AKJ [2015] NSWSC 498
McD v McD (1983) 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Guardianship Application

BGU (the person)
CSK (applicant, proposed guardian)
TNU (carer, proposed guardian)
Public Guardian

002: Financial Management Application
BGU (the person)
CSK (applicant, proposed financial manager)
TNU (carer, proposed financial manager)
NSW Trustee and Guardian
Representation: B Simeonides, separate representative for BGU

File Number(s): NCAT 2020/00182498
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

Background

BGU, 28 years old, lives with her brother TNU.
It is reported that BGU…

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 BGU

Details

AGLC: BGU [2020] NSWCATGD 88
Case: [2020] NSWCATGD 88
Decision Date: 04 November 2020

CaseChat Overview and Summary

In the matter of BGU, the Supreme Court of New South Wales was tasked with determining the appropriate guardianship and financial management arrangements for BGU, an individual with speech and hearing impairments and limited language capabilities. The court was asked to decide whether BGU was a person in need of a guardian, and if so, whether a private guardian was suitable to manage BGU’s affairs, including health care and services. The court was also required to determine whether a financial management order was necessary to protect BGU from further financial exploitation.

The court considered evidence regarding BGU’s communication abilities, reliance on family members for navigating the community, and vulnerability to financial exploitation. The court found that BGU was indeed a person in need of a guardian and that a private guardian was appropriate to provide the necessary support and oversight. The court also concluded that a financial management order was necessary to prevent further exploitation, and appointed a private financial manager to manage BGU’s estate.

The court emphasised the importance of involving BGU in decision-making processes to the extent possible, while also ensuring her protection and well-being. The court made a continuing guardianship order for a period of 12 months, with specific functions assigned to the guardian, including decisions about health care and services. The order included a condition requiring the guardian to involve BGU in significant decision-making. Additionally, the court appointed a private financial manager to manage BGU’s estate, subject to obtaining necessary authorities from the NSW Trustee and Guardian.

The final orders included the appointment of a private guardian for BGU, with specific functions and a condition to involve BGU in decision-making. The court also appointed a private financial manager to manage BGU’s estate, subject to obtaining necessary authorities. The orders aimed to balance BGU’s need for support and protection with her right to participate in decision-making to the extent possible.

Orders

Orders of the court

1. A guardianship order is made for BGU.

2. TNU of [Address removed for publication.] is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 4 November 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Health care

To decide what health care BGU may receive.

b) Services

To make decisions about services to be provided to BGU.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management

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

2. CSK of [Address removed for publication.] is appointed as the financial manager of the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until she has obtained all necessary authorities from the NSW Trustee and Guardian.

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:	BGU [2020] NSWCATGD 88
Hearing dates:	4 November 2020
Date of orders:	4 November 2020
Decision date:	04 November 2020
Jurisdiction:	Guardianship Division
Before:	J Claridge, Senior Member (Legal) S Flanagan, Senior Member (Professional) Dr M Spencer, General Member (Community)
Decision:	1. A guardianship order is made for BGU. 2. TNU of [Address removed for publication.] is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 4 November 2020. 4. This is a limited guardianship order giving the guardian(s) custody of BGU to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Health care To decide what health care BGU may receive. b) Services To make decisions about services to be provided to BGU. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring BGU to an understanding of the issues and to obtain and consider her views before making significant decisions. Financial Management 1. The estate of BGU is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. CSK of [Address removed for publication.] is appointed as the financial manager of the estate. NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until she has obtained all necessary authorities from the NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – subject person with speech and hearing impairment – limited language – reliance on family members in navigating community – guardianship order made – appointment of private guardian. FINANCIAL MANAGEMENT – application for a financial management order – whether subject person incapable of managing their own affairs – victim of financial exploitation – risk of further financial exploitation – private person suitable to be appointed as financial manager – private financial manager appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(1)-(2), 15(3), 17(1) 18(1), 25M
Cases Cited:	CJ v AKJ [2015] NSWSC 498 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Guardianship Application BGU (the person) CSK (applicant, proposed guardian) TNU (carer, proposed guardian) Public Guardian 002: Financial Management Application BGU (the person) CSK (applicant, proposed financial manager) TNU (carer, proposed financial manager) NSW Trustee and Guardian
Representation:	B Simeonides, separate representative for BGU
File Number(s):	NCAT 2020/00182498
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.