Carl (a pseudonym) - [2024] NSWCATGD 25

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Carl (a pseudonym) [2024] NSWCATGD 25
Hearing dates: 6 November 2024
Date of orders: 6 November 2024
Decision date: 06 November 2024
Jurisdiction: Guardianship Division
Before: L Davidson, Senior Member (Legal)
Dr M A Martin, Senior Member (Professional)
Dr M A Smith OAM, General Member (Community)
Decision:
Guardianship Application
Christina is joined as Party.
HammondCare Health and Hospitals Limited had standing to bring the application to the Tribunal.
1. A guardianship order is made for Carl.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 6 November 2024.
4. This is a limited guardianship order giving the guardian custody of Carl to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where Carl may reside.
b) Health care
To decide what health care Carl may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where Carl is not capable of giving a valid consent.
d) Services
To make decisions about services to be provided to Carl.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role, the guardian shall take all reasonable steps to bring Carl to an understanding of the issues and to obtain and consider his views before making significant decisions.
Financial Management Application
Christina is joined as Party.
HammondCare Health and Hospitals Limited had standing to bring the application to the Tribunal.
1. The estate of Carl is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. Christina, 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 he/she has obtained all necessary authorities from the NSW Trustee and Guardian.

Catchwords:
GUARDIANSHIP – guardianship application – financial management application – where the applicant for a guardianship order is a public company and a registered charity – where the applicant seeking a financial management order is a public company and registered charity – whether the applicant has standing to bring a guardianship application under s 9(1) of the Guardianship Act – whether the applicant is a “person” within the meaning of the Guardianship Act – whether the applicant has a genuine concern for the welfare of the person – the applicant deemed to have standing– public guardian appointed – private financial manager appointed.

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), s 44(1); cl 7(1), Sch 6
Corporations Act 2021 (Cth), s 119
Health Services Act 1997 (NSW), Ch 5
Interpretation Act 1987 (NSW), s 21; Sch 4
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(e), 9(1)(d), 14, 14(2), 15(3), 17(1), 25I(1)(b), 25M

Cases Cited:
Application by AMAM; Re SAM [2011] NSWSC 503
EBI [2017] NSWCATGD 6
Holt & Anor…

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 Carl (a pseudonym)

Details

AGLC: Carl (a pseudonym) [2024] NSWCATGD 25
Case: [2024] NSWCATGD 25
Decision Date: 06 November 2024

CaseChat Overview and Summary

HammondCare Health and Hospitals Limited, a public company and registered charity, made an application to the NCAT seeking a guardianship order in relation to Carl, and a financial management order in relation to his estate. The application was made on the basis that Carl was unable to manage his personal and financial affairs due to a severe brain injury. Christina, Carl's daughter, was joined as a party to the application. The key issue before the Tribunal was whether HammondCare had standing to bring the application under section 9(1) of the Guardianship and Financial Management Act 1987 (NSW). The Tribunal held that the applicant had standing as a person who has a genuine concern for the welfare of Carl and is therefore deemed to have standing to bring a guardianship application. The Tribunal also found that the applicant had standing to bring a financial management application under section 47(1)(a) of the Financial Management and Rights of Patients Act 1990 (NSW). A guardianship order was made for Carl and the Public Guardian was appointed as his guardian. A financial management order was made for Carl's estate and Christina was appointed as the financial manager of the estate. The guardianship order was made for a period of 12 months from 6 November 2024, and the financial management order was made for the duration of the guardianship order. The guardian has the functions of deciding where Carl may reside, deciding what health care Carl may receive, making substitute decisions about proposed minor or major medical or dental treatment, and making decisions about services to be provided to Carl. 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.

Orders

Orders of the court

Guardianship Application

Christina is joined as Party.

HammondCare Health and Hospitals Limited had standing to bring the application to the Tribunal.

1. A guardianship order is made for Carl.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 6 November 2024.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where Carl may reside.

b) Health care

To decide what health care Carl may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to Carl.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management Application

Christina is joined as Party.

HammondCare Health and Hospitals Limited had standing to bring the application to the Tribunal.

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

2. Christina, 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 he/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:	Carl (a pseudonym) [2024] NSWCATGD 25
Hearing dates:	6 November 2024
Date of orders:	6 November 2024
Decision date:	06 November 2024
Jurisdiction:	Guardianship Division
Before:	L Davidson, Senior Member (Legal) Dr M A Martin, Senior Member (Professional) Dr M A Smith OAM, General Member (Community)
Decision:	Guardianship Application Christina is joined as Party. HammondCare Health and Hospitals Limited had standing to bring the application to the Tribunal. 1. A guardianship order is made for Carl. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 6 November 2024. 4. This is a limited guardianship order giving the guardian custody of Carl to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where Carl may reside. b) Health care To decide what health care Carl may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where Carl is not capable of giving a valid consent. d) Services To make decisions about services to be provided to Carl. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role, the guardian shall take all reasonable steps to bring Carl to an understanding of the issues and to obtain and consider his views before making significant decisions. Financial Management Application Christina is joined as Party. HammondCare Health and Hospitals Limited had standing to bring the application to the Tribunal. 1. The estate of Carl is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. Christina, 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 he/she has obtained all necessary authorities from the NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – guardianship application – financial management application – where the applicant for a guardianship order is a public company and a registered charity – where the applicant seeking a financial management order is a public company and registered charity – whether the applicant has standing to bring a guardianship application under s 9(1) of the Guardianship Act – whether the applicant is a “person” within the meaning of the Guardianship Act – whether the applicant has a genuine concern for the welfare of the person – the applicant deemed to have standing– public guardian appointed – private financial manager appointed.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 44(1); cl 7(1), Sch 6 Corporations Act 2021 (Cth), s 119 Health Services Act 1997 (NSW), Ch 5 Interpretation Act 1987 (NSW), s 21; Sch 4 Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(e), 9(1)(d), 14, 14(2), 15(3), 17(1), 25I(1)(b), 25M
Cases Cited:	Application by AMAM; Re SAM [2011] NSWSC 503 EBI [2017] NSWCATGD 6 Holt & Anor…