CKN - [2019] NSWCATGD 27

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CKN [2019] NSWCATGD 27
Hearing dates: 13 December 2019
Date of orders: 13 December 2019
Decision date: 13 December 2019
Jurisdiction: Guardianship Division
Before: L Dive, Senior Member (Legal)
M E Burke, Senior Member (Professional)
M Watson, General Member (Community)
Decision:
Financial Management Application:

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

2. MZN 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.

Guardianship Application:

1. A guardianship order is made for CKN.

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

3. This is a continuing guardianship order for a period of one year from 13 December 2019.

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

FUNCTION:

5. The guardian has the following function:

a) Medical/Dental consent

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

AUTHORITY:

6. The guardian has the following authority:

a) Authority to override objections to medical treatment

i) The guardian may override the objection of CKN to major or minor medical treatment.

CONDITION:

7. The condition of this order is:

a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring CKN to an understanding of the issues and to obtain and consider his views before making significant decisions.
Catchwords:
GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – need for a guardian – medical and dental treatment decisions needed – subject person objects to treatment – subject person requires sedation to undergo treatment – person responsible – authority to override objections – private guardian appointed – order made.
FINANCIAL MANAGEMENT – application for a financial management order – subject person incapable of managing their own affairs – need for another person to manage subject person’s affairs – informal supports unable to change personal details for banking – informal support unable to provide superannuation information to subject person’s employer – private financial manager appointed – order made.
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14(1)–(2), 15(3), 17(1)(b), 25M, 25P(2)(b), 33A(4), 46A(1), 46A(3)–(4)
Cases Cited: Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
The Husband v The Public Guardian [2016] NSWSC 1720
Texts Cited: Nil
Category: Principal judgment
Parties:
001: Financial Management Application

CKN (the person)
MZN (applicant, carer)
NSW Trustee and Guardian

002: Guardianship Application
CKN (the person)
MZN (applicant, carer)
NSW Public Guardian
Representation: Nil

File Number(s): NCAT 2019/00333292
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any…

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

Case: [2019] NSWCATGD 27
Decision Date: 13 December 2019

CaseChat Overview and Summary

In the matter of the application for a guardianship and financial management order for CKN, the application was heard in the New South Wales Supreme Court. The subject person, CKN, required a guardian to make decisions on their behalf due to their incapacity to manage their own affairs. Additionally, a financial manager was needed to manage CKN's estate. The application was brought by MZN, a private guardian and financial manager, who was appointed by CKN's family. CKN objected to the application.

The legal issues before the court were whether a guardianship order and a financial management order should be made for CKN. The court needed to consider whether CKN required a guardian to make decisions on their behalf and whether a financial manager was necessary to manage CKN's estate. The court also needed to consider whether MZN was suitable to be appointed as the guardian and financial manager.

The court found that CKN required a guardian to make decisions on their behalf due to their incapacity to manage their own affairs. CKN required a guardian to make decisions about medical and dental treatment, as they objected to treatment and required sedation to undergo treatment. The court found that a financial management order was necessary for CKN, as they were incapable of managing their own affairs and informal supports were unable to change personal details for banking and provide superannuation information to CKN's employer. The court found that MZN was suitable to be appointed as the guardian and financial manager, as they had the necessary skills and experience to manage CKN's affairs.

The court made a guardianship order for CKN, appointing MZN as the guardian. The order gave the guardian the function of making substitute decisions about proposed minor or major medical or dental treatment where CKN was not capable of giving a valid consent. The guardian also had the authority to override CKN's objections to medical treatment. The court made a financial management order for CKN, appointing MZN as the financial manager of the estate. The orders were made for a period of one year from 13 December 2019. The guardian was required to take all reasonable steps to bring CKN to an understanding of the issues and to obtain and consider their views before making significant decisions.

Orders

Orders of the court

Financial Management Application:

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

2. MZN 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.

Guardianship Application:

1. A guardianship order is made for CKN.

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

3. This is a continuing guardianship order for a period of one year from 13 December 2019.

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

FUNCTION:

5. The guardian has the following function:

a) Medical/Dental consent

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

AUTHORITY:

6. The guardian has the following authority:

a) Authority to override objections to medical treatment

i) The guardian may override the objection of CKN to major or minor medical treatment.

CONDITION:

7. The condition of this order is:

a) Standard Condition

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

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:	CKN [2019] NSWCATGD 27
Hearing dates:	13 December 2019
Date of orders:	13 December 2019
Decision date:	13 December 2019
Jurisdiction:	Guardianship Division
Before:	L Dive, Senior Member (Legal) M E Burke, Senior Member (Professional) M Watson, General Member (Community)
Decision:	Financial Management Application: 1. The estate of CKN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. MZN 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. Guardianship Application: 1. A guardianship order is made for CKN. 2. MZN of [Address removed for publication.] is appointed as the guardian. 3. This is a continuing guardianship order for a period of one year from 13 December 2019. 4. This is a limited guardianship order giving the guardian(s) custody of CKN to the extent necessary to carry out the functions below. FUNCTION: 5. The guardian has the following function: a) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where CKN is not capable of giving a valid consent. AUTHORITY: 6. The guardian has the following authority: a) Authority to override objections to medical treatment i) The guardian may override the objection of CKN to major or minor medical treatment. CONDITION: 7. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring CKN to an understanding of the issues and to obtain and consider his views before making significant decisions.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – need for a guardian – medical and dental treatment decisions needed – subject person objects to treatment – subject person requires sedation to undergo treatment – person responsible – authority to override objections – private guardian appointed – order made. FINANCIAL MANAGEMENT – application for a financial management order – subject person incapable of managing their own affairs – need for another person to manage subject person’s affairs – informal supports unable to change personal details for banking – informal support unable to provide superannuation information to subject person’s employer – private financial manager appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14(1)–(2), 15(3), 17(1)(b), 25M, 25P(2)(b), 33A(4), 46A(1), 46A(3)–(4)
Cases Cited:	Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 The Husband v The Public Guardian [2016] NSWSC 1720
Texts Cited:	Nil
Category:	Principal judgment
Parties:	001: Financial Management Application CKN (the person) MZN (applicant, carer) NSW Trustee and Guardian 002: Guardianship Application CKN (the person) MZN (applicant, carer) NSW Public Guardian
Representation:	Nil
File Number(s):	NCAT 2019/00333292
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any…