CZC - [2020] NSWCATGD 7

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CZC [2020] NSWCATGD 7
Hearing dates: 6 March 2020
Date of orders: 11 March 2020
Decision date: 05 May 2020
Jurisdiction: Guardianship Division
Before: M D Schyvens, Deputy President
Decision:
Set Aside Applications

The application to set aside the guardianship order is dismissed after hearing.

The application to set aside the financial management order is dismissed after hearing.

Review or Revoke Financial Management Order

The application is dismissed because OBM has withdrawn the application and the Tribunal consents.

Guardianship Order

The guardianship order for CZC made on 23 October 2018 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of two years from 11 March 2020.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where CZC may reside.

b) Health care

To decide what health care CZC may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to CZC.

e) Travel

To make decisions about whether or not CZC can travel to any place outside Australia.

f) Passport

To make a decision about whether or not the passport of CZC should be surrendered to the guardian or some other authority the guardian nominates pending a decision by the guardian concerning travel.

CONDITION:

5. The condition of this order is:

a) Standard Condition

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

Financial Management Order

The Financial Management order for CZC made on 26 February 2018 has been reviewed. The order now is as follows:

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

2. The management of the estate of CZC is committed to the NSW Trustee and Guardian.
3. This order be reviewed by the Tribunal within two years.
Catchwords:
GUARDIANSHIP – review of guardianship order – end-of-term review of guardianship order – whether a guardianship order needs to be made – subject person finding stability in current accommodation – need for ongoing health care and treatment decisions –– consideration of cultural and linguistic background– suitability to be appointed guardian – proposed person unsuitable to be appointed guardian – Public Guardian appointed – order made.

FINANCIAL MANAGEMENT – review of reviewable financial management order – subject person not capable of managing their own affairs – subject person unable to prioritise necessities – subject person prone to impulsivity – no private person available to appoint – NSW Trustee and Guardian appointed – order made.

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 CZC

Details

AGLC: CZC [2020] NSWCATGD 7
Case: [2020] NSWCATGD 7
Decision Date: 05 May 2020

CaseChat Overview and Summary

The matter involved a review of a guardianship order and financial management order concerning CZC, with applications to set aside these orders also being considered. The decision was made in the context of an end-of-term review of these orders. The court had to determine whether ongoing guardianship and financial management orders were necessary, considering the subject person’s current stability, health care needs, and cultural background. Additionally, the court had to assess the suitability of the Public Guardian and NSW Trustee and Guardian as guardians.

The legal issues before the court included whether the guardianship and financial management orders should be set aside or maintained, and whether the Public Guardian and NSW Trustee and Guardian were suitable appointees. The court considered the subject person's capacity to manage their affairs, their propensity for impulsivity, and their need for continued decision-making assistance in areas such as health care, accommodation, and financial management. The court also weighed the subject person’s cultural and linguistic background in its decision-making process.

The court found that it was not in the subject person’s welfare and interests to set aside the guardianship or financial management orders. The Public Guardian was deemed suitable to act as the guardian due to the unsuitability of the proposed private guardian. The NSW Trustee and Guardian was confirmed as the appropriate entity for managing the subject person's financial affairs, as no private person was available for this role. The court acknowledged the subject person's stability and ongoing need for health care and treatment decisions. Consequently, the guardianship order was modified to appoint the Public Guardian, and the financial management order was adjusted to place the estate under the NSW Trustee and Guardian’s management. The court ordered a review of these arrangements within two years.

The final orders of the court included dismissing the applications to set aside both the guardianship and financial management orders. The guardianship order was revised to appoint the Public Guardian and establish a limited guardianship order for a period of two years. The financial management order was modified to commit the estate management to the NSW Trustee and Guardian, with a requirement for a review within two years.

Orders

Orders of the court

Set Aside Applications

The application to set aside the guardianship order is dismissed after hearing.

The application to set aside the financial management order is dismissed after hearing.

Review or Revoke Financial Management Order

The application is dismissed because OBM has withdrawn the application and the Tribunal consents.

Guardianship Order

The guardianship order for CZC made on 23 October 2018 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of two years from 11 March 2020.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where CZC may reside.

b) Health care

To decide what health care CZC may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to CZC.

e) Travel

To make decisions about whether or not CZC can travel to any place outside Australia.

f) Passport

To make a decision about whether or not the passport of CZC should be surrendered to the guardian or some other authority the guardian nominates pending a decision by the guardian concerning travel.

CONDITION:

5. The condition of this order is:

a) Standard Condition

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

Financial Management Order

The Financial Management order for CZC made on 26 February 2018 has been reviewed. The order now is as follows:

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

2. The management of the estate of CZC is committed to the NSW Trustee and Guardian.

3. This order be reviewed by the Tribunal within two years.

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:	CZC [2020] NSWCATGD 7
Hearing dates:	6 March 2020
Date of orders:	11 March 2020
Decision date:	05 May 2020
Jurisdiction:	Guardianship Division
Before:	M D Schyvens, Deputy President
Decision:	Set Aside Applications The application to set aside the guardianship order is dismissed after hearing. The application to set aside the financial management order is dismissed after hearing. Review or Revoke Financial Management Order The application is dismissed because OBM has withdrawn the application and the Tribunal consents. Guardianship Order The guardianship order for CZC made on 23 October 2018 has been reviewed. The order now is as follows: 1. The Public Guardian is appointed as the guardian. 2. This is a continuing guardianship order for a period of two years from 11 March 2020. 3. This is a limited guardianship order giving the guardian(s) custody of CZC to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Accommodation To decide where CZC may reside. b) Health care To decide what health care CZC may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where CZC is not capable of giving a valid consent. d) Services To make decisions about services to be provided to CZC. e) Travel To make decisions about whether or not CZC can travel to any place outside Australia. f) Passport To make a decision about whether or not the passport of CZC should be surrendered to the guardian or some other authority the guardian nominates pending a decision by the guardian concerning travel. CONDITION: 5. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring CZC to an understanding of the issues and to obtain and consider their views before making significant decisions. Financial Management Order The Financial Management order for CZC made on 26 February 2018 has been reviewed. The order now is as follows: 1. The estate of CZC is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of CZC is committed to the NSW Trustee and Guardian. 3. This order be reviewed by the Tribunal within two years.
Catchwords:	GUARDIANSHIP – review of guardianship order – end-of-term review of guardianship order – whether a guardianship order needs to be made – subject person finding stability in current accommodation – need for ongoing health care and treatment decisions –– consideration of cultural and linguistic background– suitability to be appointed guardian – proposed person unsuitable to be appointed guardian – Public Guardian appointed – order made. FINANCIAL MANAGEMENT – review of reviewable financial management order – subject person not capable of managing their own affairs – subject person unable to prioritise necessities – subject person prone to impulsivity – no private person available to appoint – NSW Trustee and Guardian appointed – order made.