DKK - [2023] NSWCATGD 19

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DKK [2023] NSWCATGD 19
Hearing dates: 25 July 2023
Date of orders: 25 July 2023
Decision date: 25 July 2023
Jurisdiction: Guardianship Division
Before: C P Fougere, Principal Member
A M Matheson, Senior Member (Professional)
R Royer, General Member (Community)
Decision:
The application for guardianship (001, 003, 005 and 006) is dismissed after hearing.
1. The estate of DKK is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. Ms Z, of [Address removed for publication.], and HYL, of [Address removed for publication.], are appointed jointly as the financial managers of the estate.
NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – subject person is of advanced age – cognitive impairment – subject person lives in a commune – subject person has strong ties with family members in Germany – subject person’s neighbours and friends are able to provide support – subject person not found to be a person in need of a guardian – application dismissed
FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their affairs – subject person not capable of managing her day-to-day finances – need for another person to manage subject person’s affairs – subject person supports the appointment of her long-standing friends – private managers suitable to be appointed – private managers jointly appointed – order made

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1), 4

Cases Cited:
P V NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Guardianship Application

DKK (the person)
TNQ (applicant)
Public Guardian

002: Financial Management Application

DKK (the person)
TNQ (applicant)
NSW Trustee and Guardian

003: Guardianship Application

DKK (the person)
OMM (applicant, proposed guardian)
Public Guardian

004: Financial Management Application

DKK (the person)
OMM (applicant, attorney, proposed financial manager)
NSW Trustee and Guardian

005: Guardianship Application

DKK (the person)
UZM (applicant, proposed guardian)
Public Guardian

006: Guardianship Application

DKK (the person)
DBN (applicant, proposed guardian)
Public Guardian

007: Financial Management Application
DKK (the person)
HYL (applicant)
NSW Trustee and Guardian
Representation: Nil.

File Number(s): NCAT 2023/00205563
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

DKK is an 84-year-old woman who has been a patient at a public hospital in regional NSW for approximately seven weeks. DKK was brought to hospital by a friend. Tests revealed that she had a urinary tract infection and COVID-19 and was experiencing a delirium. She has now recovered from these conditions. DKK normally lives in…

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 DKK

Details

AGLC: DKK [2023] NSWCATGD 19
Case: [2023] NSWCATGD 19
Decision Date: 25 July 2023

CaseChat Overview and Summary

This case involved an application for a guardianship order and a financial management order concerning DKK, a person of advanced age with cognitive impairment, residing in a commune. The applicant sought to establish a guardianship and financial management arrangement to assist DKK with her day-to-day affairs. However, DKK had strong familial ties with relatives in Germany and had a network of supportive neighbours and friends who were able to provide assistance. The court needed to determine whether DKK was a person in need of a guardian and whether she was incapable of managing her financial affairs.

The primary legal issue the court addressed was whether DKK was a person in need of a guardian under the relevant guardianship legislation. Given DKK's existing support network, the court found that she did not meet the criteria for a guardianship order. Additionally, the court examined whether DKK was incapable of managing her financial affairs, considering her inability to manage day-to-day finances. Despite this, the court acknowledged the availability of suitable private managers who had the support of DKK and were willing to take on the responsibility. Consequently, the court made an order appointing private managers to manage DKK's financial affairs.

In dismissing the application for a guardianship order, the court concluded that DKK did not require a guardian due to the presence of her supportive network. However, recognising her incapacity to manage her financial affairs, the court appointed Ms Z and HYL as joint financial managers of DKK's estate. The final orders included dismissing the guardianship application and appointing the named individuals as financial managers, subject to obtaining necessary authorities from the NSW Trustee and Guardian.

Orders

Orders of the court

The application for guardianship (001, 003, 005 and 006) is dismissed after hearing.

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

2. Ms Z, of [Address removed for publication.], and HYL, of [Address removed for publication.], are appointed jointly as the financial managers of the estate.

NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have 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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	DKK [2023] NSWCATGD 19
Hearing dates:	25 July 2023
Date of orders:	25 July 2023
Decision date:	25 July 2023
Jurisdiction:	Guardianship Division
Before:	C P Fougere, Principal Member A M Matheson, Senior Member (Professional) R Royer, General Member (Community)
Decision:	The application for guardianship (001, 003, 005 and 006) is dismissed after hearing. 1. The estate of DKK is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. Ms Z, of [Address removed for publication.], and HYL, of [Address removed for publication.], are appointed jointly as the financial managers of the estate. NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – subject person is of advanced age – cognitive impairment – subject person lives in a commune – subject person has strong ties with family members in Germany – subject person’s neighbours and friends are able to provide support – subject person not found to be a person in need of a guardian – application dismissed FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their affairs – subject person not capable of managing her day-to-day finances – need for another person to manage subject person’s affairs – subject person supports the appointment of her long-standing friends – private managers suitable to be appointed – private managers jointly appointed – order made
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 4
Cases Cited:	P V NSW Trustee and Guardian [2015] NSWSC 579
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Guardianship Application DKK (the person) TNQ (applicant) Public Guardian 002: Financial Management Application DKK (the person) TNQ (applicant) NSW Trustee and Guardian 003: Guardianship Application DKK (the person) OMM (applicant, proposed guardian) Public Guardian 004: Financial Management Application DKK (the person) OMM (applicant, attorney, proposed financial manager) NSW Trustee and Guardian 005: Guardianship Application DKK (the person) UZM (applicant, proposed guardian) Public Guardian 006: Guardianship Application DKK (the person) DBN (applicant, proposed guardian) Public Guardian 007: Financial Management Application DKK (the person) HYL (applicant) NSW Trustee and Guardian
Representation:	Nil.
File Number(s):	NCAT 2023/00205563
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.