BN (Review Enduring Guardian and Guardianship)

In the case of BN, the court reviewed an existing enduring guardianship arrangement and the eligibility of the potential guardian. BN was the represented person, whose enduring guardianship was under review due to concerns about the capacity of the appointor and the suitability of the proposed guardian. The court was tasked with determining whether the appointor had the mental capacity to execute an enduring guardianship and whether the proposed guardian was suitable for the role. The Public Advocate intervened on behalf of BN, arguing that the appointor lacked the requisite capacity and that the proposed guardian was unsuitable.

The primary legal issue before the court was whether the appointor, who had a three-year history of consistent and significant cognitive deficits due to dementia, had the mental capacity to execute an enduring guardianship. The court needed to distinguish between the appointor's capacity and her ability to express her wishes. Additionally, the court had to determine if the proposed guardian, who was in conflict with family members and care staff, was suitable for appointment, particularly given the potential to exacerbate existing family conflicts.

The court found that the appointor lacked the capacity to execute an enduring guardianship due to her dementia. It noted that capacity is not simply about the ability to express wishes, but rather involves understanding the nature and effect of the decision being made. Regarding the proposed guardian, the court determined that the individual was unsuitable due to her conflict with family members and care staff. The court concluded that appointing someone who would be perceived to favour one side of the family conflict over the other could perpetuate and exacerbate the conflict, which was detrimental to BN’s interests. Consequently, the court appointed the Public Guardian as BN’s guardian, with limited powers concerning residence and leave from the place of residence.

The court's final orders were that the Public Guardian be appointed as BN's guardian, with specific limitations on the guardian's powers and duties. These limitations included decisions about where BN was to live and authorising leave from the place of residence. The order was set to remain in effect until 19 March 2015, providing a temporary solution to the guardianship issues raised in the case.