CZS - [2020] NSWCATGD 36

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CZS [2020] NSWCATGD 36
Hearing dates: 11 March 2020
Date of orders: 11 March 2020
Decision date: 11 March 2020
Jurisdiction: Guardianship Division
Before: S J Burns, Senior Member (Legal)
S Flanagan, Senior Member (Professional)
F N Given, General Member (Community)
Decision:
Guardianship Application
1. A guardianship order is made for CZS.
2. The Public Guardian is appointed guardian separately to the private guardians BYS of [Address removed for publication.] and CXM of [Address removed for publication.] who are appointed jointly.
3. This is a continuing guardianship order for a period of 12 months from 11 March 2020.
4. This is a limited guardianship order giving the guardian(s) custody of CZS to the extent necessary to carry out the functions below.
FUNCTIONS: The Public Guardian
5. The Public Guardian has the following functions:
a) Accommodation
To decide where CZS may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take CZS to a place approved by the guardian.
ii) keep him at that place.
iii) return him to that place should he leave it.
c) Services
To make decisions about services to be provided to CZS.
FUNCTIONS: BYS and CXM
6. BYS and CXM have the following functions:
a) Health care
To decide what health care CZS may receive.
b) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where CZS is not capable of giving a valid consent.
CONDITION:
7. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring CZS to an understanding of the issues and to obtain and consider his views before making significant decisions.
Financial Management Application
1. The estate of CZS is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of CZS is committed to the NSW Trustee and Guardian.

Catchwords:
GUARDIANSHIP – application for a guardianship order – subject person with cognitive disability due to chronic alcohol abuse – subject person constantly intoxicated and never in a condition to make any rational decisions – need for decisions to be made to enable detoxification – need for accommodation decisions for admission to an aged care facility – need for others to bring accommodation decisions into effect – health care and medical and dental consent functions – joint appointment – Public Guardian appointed – private guardian appointed – order made.
FINANCIAL MANAGEMENT – subject person incapable of managing his day to day expenses and meet his own needs – informal support unable to ensure subject person does not spend income on alcohol – no private person available – NSW Trustee and Guardian appointed – order made.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 25M

Cases Cited:
CJ v AKJ [2015] NSWSC 498
IF v IG [2004] NSWADTAP 3
McD…

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 CZS

Details

AGLC: CZS [2020] NSWCATGD 36
Case: [2020] NSWCATGD 36
Decision Date: 11 March 2020

CaseChat Overview and Summary

The matter involved an application for a guardianship order for a person identified as CZS, who suffered from cognitive disability due to chronic alcohol abuse. The application was heard by the NSW Supreme Court, which was required to determine whether CZS was in need of a guardian and, if so, who should be appointed to the role. The court also had to decide on the scope of functions and responsibilities for the appointed guardian(s) and whether there should be a separate financial management order.

The primary legal issue before the court was whether CZS required a guardian given his inability to make rational decisions due to his constant state of intoxication. The court considered whether a public guardian or private guardians, or a combination of both, should be appointed to manage CZS's personal and health care needs. Additionally, the court had to determine if there was a need for a separate financial management order to oversee CZS's estate, given his inability to manage his day-to-day expenses and meet his own needs.

The court concluded that a guardianship order was necessary for CZS and appointed the Public Guardian alongside two private guardians, BYS and CXM, to jointly manage his affairs. The Public Guardian was assigned specific functions including decisions about CZS's residence and the authority to authorise others to transport and detain CZS if necessary. The private guardians were given responsibility for health care decisions and medical/dental consent. The court also made a financial management order, appointing the NSW Trustee and Guardian to oversee CZS's estate due to his incapacity to manage his finances.

In summary, the court made a continuing guardianship order for CZS for a period of 12 months, appointing the Public Guardian and two private guardians with specific functions. Additionally, the court appointed the NSW Trustee and Guardian to manage CZS's estate.

Orders

Orders of the court

Guardianship Application

1. A guardianship order is made for CZS.

2. The Public Guardian is appointed guardian separately to the private guardians BYS of [Address removed for publication.] and CXM of [Address removed for publication.] who are appointed jointly.

3. This is a continuing guardianship order for a period of 12 months from 11 March 2020.

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

FUNCTIONS: The Public Guardian

5. The Public Guardian has the following functions:

a) Accommodation

To decide where CZS may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take CZS to a place approved by the guardian.

ii) keep him at that place.

iii) return him to that place should he leave it.

c) Services

To make decisions about services to be provided to CZS.

FUNCTIONS: BYS and CXM

6. BYS and CXM have the following functions:

a) Health care

To decide what health care CZS may receive.

b) Medical/Dental consent

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

CONDITION:

7. The condition of this order is:

a) Standard Condition

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

Financial Management Application

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

2. The management of the estate of CZS is committed to 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:	CZS [2020] NSWCATGD 36
Hearing dates:	11 March 2020
Date of orders:	11 March 2020
Decision date:	11 March 2020
Jurisdiction:	Guardianship Division
Before:	S J Burns, Senior Member (Legal) S Flanagan, Senior Member (Professional) F N Given, General Member (Community)
Decision:	Guardianship Application 1. A guardianship order is made for CZS. 2. The Public Guardian is appointed guardian separately to the private guardians BYS of [Address removed for publication.] and CXM of [Address removed for publication.] who are appointed jointly. 3. This is a continuing guardianship order for a period of 12 months from 11 March 2020. 4. This is a limited guardianship order giving the guardian(s) custody of CZS to the extent necessary to carry out the functions below. FUNCTIONS: The Public Guardian 5. The Public Guardian has the following functions: a) Accommodation To decide where CZS may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take CZS to a place approved by the guardian. ii) keep him at that place. iii) return him to that place should he leave it. c) Services To make decisions about services to be provided to CZS. FUNCTIONS: BYS and CXM 6. BYS and CXM have the following functions: a) Health care To decide what health care CZS may receive. b) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where CZS is not capable of giving a valid consent. CONDITION: 7. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring CZS to an understanding of the issues and to obtain and consider his views before making significant decisions. Financial Management Application 1. The estate of CZS is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of CZS is committed to the NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – application for a guardianship order – subject person with cognitive disability due to chronic alcohol abuse – subject person constantly intoxicated and never in a condition to make any rational decisions – need for decisions to be made to enable detoxification – need for accommodation decisions for admission to an aged care facility – need for others to bring accommodation decisions into effect – health care and medical and dental consent functions – joint appointment – Public Guardian appointed – private guardian appointed – order made. FINANCIAL MANAGEMENT – subject person incapable of managing his day to day expenses and meet his own needs – informal support unable to ensure subject person does not spend income on alcohol – no private person available – NSW Trustee and Guardian appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 25M
Cases Cited:	CJ v AKJ [2015] NSWSC 498 IF v IG [2004] NSWADTAP 3 McD…