BLC

Case [2016] NSWCATGD 3 5 February 2016

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NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BLC [2016] NSWCATGD 3
Hearing dates: 5 February 2016
Date of orders: 05 February 2016
Decision date: 05 February 2016
Jurisdiction: Guardianship Division
Before: J Kearney, Senior Member (Legal)
B McPhee, Senior Member (Professional)
E Pickering, General Member (Community)
Decision:
Guardianship order made for 12 months; Private guardian and alternate private guardian appointed to make decisions about accommodation, including authority to authorise others, and services.
Financial management order made; private manager appointed.
Catchwords:
FINANCIAL MANAGEMENT – capability to manage own financial affairs – need for a financial management order – vulnerability to exploitation or self-mismanagement – financial management order made – consideration of section 25M of the Guardianship Act 1987 (NSW) private manager appointed
GUARDIANSHIP – consideration of factors in section 14 of the Guardianship Act 1987 (NSW) – person with a diagnosis of Wernicke Korsakoff’s syndrome and consideration of decision-making capacity – where subject person believes they have capacity to make their own decisions – fluctuating capacity – risk to the person’s safety due to absconding from hospital – coercive accommodation function given to guardian – guardianship order made
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 15(3), 17(1), and 25M
Cases Cited: Application by AMAM; Re SAM [2011] NSWSC 503
C S and M Y v the Guardianship Tribunal and the
Public Guardian (unreported) NSW Supreme Court, Windeyer J, 29 November 1999
CJ v AKJ [2015] NSWSC 498
Holt v Protective Commissioner (1993) 31 NSWLR 227
IF v IG [2004] NSWADTAP 3
M v M [2013] NSWSC 1495
McD v McD (1983) 3 NSWLR 81
P v D1 [2011] NSWSC 257
P v NSW Trustee and Guardian [2015] NSWSC 579
P v R [2003] NSWSC 819
PB v BB [2013] NSWSC 1223
Re B [2011] NSWSC 1075
Re D [2012] NSWSC 1006
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Category: Principal judgment
Parties: Mr BLC (subject person)
Ms BWR (applicant)
The NSW Public Guardian
The NSW Trustee and Guardian
File Number(s): 61665
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify a person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

GUARDIANSHIP APPLICATION

What the Tribunal decided

The Tribunal appointed Ms QZC as Mr BLC’s guardian for a period of 12 months to make decisions about his accommodation, including authorise others and services, which he should receive as set out in the Tribunal’s order.
The Tribunal appointed Ms KPC as Mr BLC’s alternate guardian to make decisions when Ms QZC is not available to do so.

FINANCIAL MANAGEMENT APPLICATION

What the Tribunal decided

The Tribunal appointed Ms QZC as Mr BLC's financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian.

Background

Mr BLC is a 62-year old divorced man who is currently an inpatient at a public hospital…

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: BLC [2016] NSWCATGD 3
Case: [2016] NSWCATGD 3
Decision Date: 05 February 2016

CaseChat Overview and Summary

The case before the court involved a person with a diagnosis of Wernicke Korsakoff's syndrome, who was deemed to have fluctuating capacity for decision-making. The individual believed they had the capacity to make their own decisions, despite medical assessments to the contrary, and posed a risk to their safety by absconding from hospital. The court was tasked with determining whether a guardianship order was necessary and, if so, what form it should take. Additionally, the court had to decide if a financial management order was warranted due to the person's vulnerability to exploitation or self-mismanagement.

The court considered various legal issues, including the factors outlined in section 14 of the Guardianship Act 1987 (NSW) to determine the need for a guardianship order, and the requirements under section 25M for a financial management order. The court had to balance the individual's belief in their decision-making capacity against the evidence of fluctuating capacity and risk of harm. The court also needed to assess the appropriate scope of the guardianship and financial management orders, including whether a private guardian or manager was suitable.

In its reasoning, the court found that the individual's fluctuating capacity and belief in their own decision-making ability did not negate the need for a guardianship order. The court concluded that the risk of harm due to absconding warranted the coercive accommodation function under the guardianship order. The court appointed a private guardian and an alternate private guardian to make decisions about the individual's accommodation and services. Regarding the financial management order, the court found that the individual's vulnerability to exploitation or self-mismanagement justified such an order, and appointed a private manager to manage the individual's finances.

The court made a guardianship order for a period of 12 months, appointing a private guardian and an alternate private guardian to make decisions about the individual's accommodation and services. Additionally, a financial management order was made, with a private manager appointed to manage the individual's finances. These orders were designed to protect the individual's safety and financial interests, while respecting their autonomy as much as possible.

Orders

Orders of the court

Guardianship order made for 12 months; Private guardian and alternate private guardian appointed to make decisions about accommodation, including authority to authorise others, and services.

Financial management order made; private manager appointed.

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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Citations

BLC [2016] NSWCATGD 3

Cases Citing This Decision

No citing cases yet.

Cases Cited

P v NSW Trustee and Guardian [2015] NSWSC 579
Citation 1 (Para 45)

…The test for determining a person's capability to manage his or her affairs has been described as follows ( P v NSW Trustee and Guardian [2015] NSWSC 579, at [307]-[308]):…
CJ v AKJ [2015] NSWSC 498
Citation 2

…v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court, Windeyer J, 29 November 1999 CJ v AKJ [2015] NSWSC 498 Holt v Protective Commissioner (1993) 31 NSWLR 227 IF v IG [2004] NSWADTAP 3 M v M [2013] NSWSC 1495 McD v McD (1983) 3 NSWLR 81 P v D1 [2011] NSWSC 257 P v NSW Trustee and Guar…
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Citation 3 (Para 47)

…reasonably foreseeable future ( McD v McD (1983) 3 NSWLR 81, at [86]). See Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106, at [20]:…
M v M [2013] NSWSC 1495
Citation 4 (Para 58)

…financial manager, as established in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, are discussed and expanded upon by Lindsay J in M v M [2013] NSWSC 1495, at [50].…
PB v BB [2013] NSWSC 1223
Citation 5 (Para 44)

…In PB v BB [2013] NSWSC 1223, Lindsay J confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at [7]:…
Re D [2012] NSWSC 1006
Citation 6 (Para 43)

…In Re D [2012] NSWSC 1006, White J assessed the history of case law in relation to financial management and noted that initially the issue of capability was approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Court now assesses the person’s own capacity to do what…
Re B [2011] NSWSC 1075
Citation 7 (Para 30)

…rdianship Act ( C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court, Windeyer J, 29 November 1999 and Re B [2011] NSWSC 1075, at [66]).…
Re Sam [2011] NSWSC 503
Citation 8 (Para 57)

…In Application by AMAM; Re SAM [2011] NSWSC 503, Hallen AsJ stated:…
P v D1 & Ors [2011] NSWSC 257
Citation 9 (Para 31)

…In P v D1 & Ors [2011] NSWSC 257 the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.…
IF v IG [2004] NSWADTAP 3
Citation 10 (Para 21)

…ters in s 14(2). When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).…
W v G [2003] NSWSC 1170
Citation 11

…able and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).…
P v R [2003] NSWSC 819
Citation 12 (Para 43)

…l appreciation” of assets test to determine a person’s capability to manage his or her affairs. He adopts the reasoning of Barrett J in P v R [2003] NSWSC 819 who said that the task of the Court in these circumstances:…
Holt v Protective Commissioner 38 ER 774
Citation 13

…p Tribunal and the Public Guardian (unreported) NSW Supreme Court, Windeyer J, 29 November 1999 CJ v AKJ [2015] NSWSC 498 Holt v Protective Commissioner (1993) 31 NSWLR 227 IF v IG [2004] NSWADTAP 3 M v M [2013] NSWSC 1495 McD v McD (1983) 3 NSWLR 81 P v D1 [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSW…

Legislation Cited

Guardianship Act 1987 (NSW) 14, 14(2), 15(3), 17(1), 25M, 3(1), 3(2)...
9 mentions (from Para 10)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention
Mental Health Act 2007 (NSW)
1 mention (from Para 3)

Medium Neutral Citation:	BLC [2016] NSWCATGD 3
Hearing dates:	5 February 2016
Date of orders:	05 February 2016
Decision date:	05 February 2016
Jurisdiction:	Guardianship Division
Before:	J Kearney, Senior Member (Legal) B McPhee, Senior Member (Professional) E Pickering, General Member (Community)
Decision:	Guardianship order made for 12 months; Private guardian and alternate private guardian appointed to make decisions about accommodation, including authority to authorise others, and services. Financial management order made; private manager appointed.
Catchwords:	FINANCIAL MANAGEMENT – capability to manage own financial affairs – need for a financial management order – vulnerability to exploitation or self-mismanagement – financial management order made – consideration of section 25M of the Guardianship Act 1987 (NSW) private manager appointed GUARDIANSHIP – consideration of factors in section 14 of the Guardianship Act 1987 (NSW) – person with a diagnosis of Wernicke Korsakoff’s syndrome and consideration of decision-making capacity – where subject person believes they have capacity to make their own decisions – fluctuating capacity – risk to the person’s safety due to absconding from hospital – coercive accommodation function given to guardian – guardianship order made
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 15(3), 17(1), and 25M
Cases Cited:	Application by AMAM; Re SAM [2011] NSWSC 503 C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court, Windeyer J, 29 November 1999 CJ v AKJ [2015] NSWSC 498 Holt v Protective Commissioner (1993) 31 NSWLR 227 IF v IG [2004] NSWADTAP 3 M v M [2013] NSWSC 1495 McD v McD (1983) 3 NSWLR 81 P v D1 [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re B [2011] NSWSC 1075 Re D [2012] NSWSC 1006 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Category:	Principal judgment
Parties:	Mr BLC (subject person) Ms BWR (applicant) The NSW Public Guardian The NSW Trustee and Guardian
File Number(s):	61665
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify a person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).