BZT - [2021] NSWCATGD 3

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BZT [2021] NSWCATGD 3
Hearing dates: 25 February 2021
Date of orders: 25 February 2021
Decision date: 25 February 2021
Jurisdiction: Guardianship Division
Before: C Cody, Senior Member (Legal)
Dr A Baird, Senior Member (Professional)
F N Given, General Member (Community)
Decision:
Guardianship Application
1. A guardianship order is made for BZT.
2. UBX of [Address removed for publication.] is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 25 February 2021.
4. This is a limited guardianship order giving the guardian(s) custody of BZT to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where BZT may reside.
b) Health care
To decide what health care BZT may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where BZT is not capable of giving a valid consent.
d) Services
To make decisions about services to be provided to BZT.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring BZT to an understanding of the issues and to obtain and consider his views before making significant decisions.
Financial Management Application
The application is dismissed because Sydney Local Health District has withdrawn the application and the Tribunal consents.

Catchwords:
GUARDIANSHIP – application for a guardianship order – subject person an in-patient in a public hospital – subject person with acquired brain injury from stroke – subject person with history of polysubstance abuse – decision-making disability to remain for the foreseeable future – need for decisions to be made in relation to accommodation, services, and consent to medical and dental treatment – suitability of proposed guardian – former de facto partner proposed as guardian – private guardian appointed – order made.
FINANCIAL MANAGEMENT – application for a financial management order – decision to consent to withdrawal of the application – former dispute between the parties now resolved – consent given to withdraw application – application dismissed.

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), cl 10, Sch 6, s 55(1)(a)
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a), 14(1), 15(3), 17(1)

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep
IF v IG [2004] NSWADTAP 3
P v D1 & Ors [2011] NSWSC 257
P v NSW Trustee and Guardian [2015] NSWSC579
Re B [2011] NSWSC 1075

Texts Cited:
Nil

Category: Principal judgment
Parties:
001: Guardianship Application

BZT (the person)
Sydney Local Health District (applicant)
UBX (carer)
Public Guardian

002: Financial Management Application
BZT (the person)
Sydney Local Health District (applicant)
TAH (attorney)
QYH (attorney)
NSW Trustee and Guardian
Representation: Nil

File Number(s): NCAT 2021/00033126
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised…

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 BZT

Details

AGLC: BZT [2021] NSWCATGD 3
Case: [2021] NSWCATGD 3
Decision Date: 25 February 2021

CaseChat Overview and Summary

In the matter of BZT, the Queensland Civil and Administrative Tribunal (QCAT) heard an application for a guardianship order and a financial management order. BZT, the subject person, is an inpatient in a public hospital with an acquired brain injury resulting from a stroke. They also have a history of polysubstance abuse. The application for a guardianship order sought to address BZT's decision-making disability, which was expected to persist for the foreseeable future. The primary concern was the need for decisions regarding accommodation, services, and consent to medical and dental treatment. The proposed guardian was UBX, BZT's former de facto partner, who was deemed suitable for the role. The application for a financial management order was subsequently withdrawn by the Sydney Local Health District, and the Tribunal consented to the withdrawal.

The legal issues the court needed to determine involved whether a guardianship order was necessary for BZT, and if so, who should be appointed as the guardian. Additionally, the court had to consider whether a financial management order was required and who should be appointed as the financial manager. The court also needed to examine the terms and conditions of the proposed guardianship order to ensure it was in the best interests of BZT.

The court found that BZT had a decision-making disability that would persist for the foreseeable future, necessitating the appointment of a guardian. UBX was deemed suitable for the role, given their familiarity with BZT's history and circumstances. The court accepted the proposed guardianship order's terms and conditions, which included taking reasonable steps to involve BZT in decision-making processes and considering their views before making significant decisions. The financial management order was dismissed due to the withdrawal of the application by the Sydney Local Health District and the Tribunal's consent.

The court made a guardianship order for BZT, appointing UBX as the guardian. This is a continuing guardianship order for a period of 12 months from 25 February 2021, with specific functions related to accommodation, health care, medical and dental consent, and services. The order also includes a condition requiring the guardian to take reasonable steps to involve BZT in decision-making processes and consider their views before making significant decisions. The financial management application was dismissed as per the parties' consent.

Orders

Orders of the court

Guardianship Application

1. A guardianship order is made for BZT.

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

3. This is a continuing guardianship order for a period of 12 months from 25 February 2021.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where BZT may reside.

b) Health care

To decide what health care BZT may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to BZT.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management Application

The application is dismissed because Sydney Local Health District has withdrawn the application and the Tribunal consents.

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:	BZT [2021] NSWCATGD 3
Hearing dates:	25 February 2021
Date of orders:	25 February 2021
Decision date:	25 February 2021
Jurisdiction:	Guardianship Division
Before:	C Cody, Senior Member (Legal) Dr A Baird, Senior Member (Professional) F N Given, General Member (Community)
Decision:	Guardianship Application 1. A guardianship order is made for BZT. 2. UBX of [Address removed for publication.] is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 25 February 2021. 4. This is a limited guardianship order giving the guardian(s) custody of BZT to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where BZT may reside. b) Health care To decide what health care BZT may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where BZT is not capable of giving a valid consent. d) Services To make decisions about services to be provided to BZT. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring BZT to an understanding of the issues and to obtain and consider his views before making significant decisions. Financial Management Application The application is dismissed because Sydney Local Health District has withdrawn the application and the Tribunal consents.
Catchwords:	GUARDIANSHIP – application for a guardianship order – subject person an in-patient in a public hospital – subject person with acquired brain injury from stroke – subject person with history of polysubstance abuse – decision-making disability to remain for the foreseeable future – need for decisions to be made in relation to accommodation, services, and consent to medical and dental treatment – suitability of proposed guardian – former de facto partner proposed as guardian – private guardian appointed – order made. FINANCIAL MANAGEMENT – application for a financial management order – decision to consent to withdrawal of the application – former dispute between the parties now resolved – consent given to withdraw application – application dismissed.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), cl 10, Sch 6, s 55(1)(a) Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a), 14(1), 15(3), 17(1)
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep IF v IG [2004] NSWADTAP 3 P v D1 & Ors [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC579 Re B [2011] NSWSC 1075
Texts Cited:	Nil
Category:	Principal judgment
Parties:	001: Guardianship Application BZT (the person) Sydney Local Health District (applicant) UBX (carer) Public Guardian 002: Financial Management Application BZT (the person) Sydney Local Health District (applicant) TAH (attorney) QYH (attorney) NSW Trustee and Guardian
Representation:	Nil
File Number(s):	NCAT 2021/00033126
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised…