DXM - [2022] NSWCATGD 17

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DXM [2022] NSWCATGD 17
Hearing dates: 20 May 2022
Date of orders: 20 May 2022
Decision date: 20 May 2022
Jurisdiction: Guardianship Division
Before: R H Booby, Senior Member (Legal)
Dr M J Wroth, Senior Member (Professional)
L Stewart, General Member (Community)
Decision:
Review of Guardianship
The guardianship order for DXM made on 27 April 2022 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 12 months from 20 May 2022.
3. This is a limited guardianship order giving the guardian(s) custody of DXM to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
a) Accommodation
To decide where DXM may reside.
b) Health care
To decide what health care DXM may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where DXM is not capable of giving a valid consent.
d) Services
To make decisions about services to be provided to DXM.
CONDITION:
5. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring DXM to an understanding of the issues and to obtain and consider his views before making significant decisions.
Financial Management Application
1. The estate of DXM is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of DXM is committed to the NSW Trustee and Guardian.

Catchwords:
GUARDIANSHIP – end-of-term review of a guardianship order – subject person with cerebral palsy and visual impairment – subject person an in-patient at a public hospital – awaiting discharge into supported independent living placement – need for revision to NDIS plan – need for accommodation, healthcare and services decisions – need for medical and dental consent decisions – conflict within subject person's close family – no private person suitable to be appointed – Public Guardian appointed – order made.
FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their affairs – family conflict – no private person suitable to be appointed – need for an independent and objective financial manager – maintenance of family relationships – NSW Trustee and Guardian appointed – order made.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 3D, 4, 14, 14(2), 15(3), 17(1), 25M, 33A(4), 36

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
IF v IG [2004] NSWADTAP 3
In P v NSW Trustee and Guardian [2015] NSWSC 579
P v D1 & Ors [2011] NSWSC 257
P v NSW Trustee and Guardian [2015] NSWSC 579
Re B [2011] NSWSC 1075

Texts Cited:
None cited.

Category: Principal judgment
Parties:
003:…

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 DXM

Details

AGLC: DXM [2022] NSWCATGD 17
Case: [2022] NSWCATGD 17
Decision Date: 20 May 2022

CaseChat Overview and Summary

The case of DXM involved an end-of-term review of a guardianship order for an individual with cerebral palsy and visual impairment who was an inpatient at a public hospital and awaiting discharge into a supported independent living placement. The dispute also encompassed an application for a financial management order, given the subject person's inability to manage their affairs due to family conflict. The matter was heard in the relevant Australian court.

The court was required to determine whether the Public Guardian should be appointed as the guardian and whether the NSW Trustee and Guardian should manage the subject person's estate. Key issues included the need for an independent and objective decision-maker in light of family conflict, the necessity for accommodation, healthcare, and services decisions, as well as decisions concerning medical and dental consent. Furthermore, the court had to consider the suitability of appointing a private person as the guardian or financial manager, which was deemed inappropriate in this case.

In its reasoning, the court found that no private person was suitable to be appointed as the guardian or financial manager due to the family conflict. The court concluded that the Public Guardian was best placed to act as the guardian, given their ability to make decisions in the subject person's best interest while taking reasonable steps to involve them in the decision-making process. Similarly, the NSW Trustee and Guardian was appointed to manage the subject person's estate, ensuring an independent and objective approach. The court granted the orders as outlined in the case summary.

The final orders included a continuing guardianship order for a period of 12 months, appointing the Public Guardian with specified functions related to accommodation, healthcare, medical and dental consent, and services. Additionally, the court committed the management of the subject person's estate to the NSW Trustee and Guardian under the NSW Trustee and Guardian Act 2009.

Orders

Orders of the court

Review of Guardianship

The guardianship order for DXM made on 27 April 2022 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 12 months from 20 May 2022.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where DXM may reside.

b) Health care

To decide what health care DXM may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to DXM.

CONDITION:

5. The condition of this order is:

a) Standard Condition

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

Financial Management Application

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

2. The management of the estate of DXM 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:	DXM [2022] NSWCATGD 17
Hearing dates:	20 May 2022
Date of orders:	20 May 2022
Decision date:	20 May 2022
Jurisdiction:	Guardianship Division
Before:	R H Booby, Senior Member (Legal) Dr M J Wroth, Senior Member (Professional) L Stewart, General Member (Community)
Decision:	Review of Guardianship The guardianship order for DXM made on 27 April 2022 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 12 months from 20 May 2022. 3. This is a limited guardianship order giving the guardian(s) custody of DXM to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Accommodation To decide where DXM may reside. b) Health care To decide what health care DXM may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where DXM is not capable of giving a valid consent. d) Services To make decisions about services to be provided to DXM. CONDITION: 5. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring DXM to an understanding of the issues and to obtain and consider his views before making significant decisions. Financial Management Application 1. The estate of DXM is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of DXM is committed to the NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – end-of-term review of a guardianship order – subject person with cerebral palsy and visual impairment – subject person an in-patient at a public hospital – awaiting discharge into supported independent living placement – need for revision to NDIS plan – need for accommodation, healthcare and services decisions – need for medical and dental consent decisions – conflict within subject person's close family – no private person suitable to be appointed – Public Guardian appointed – order made. FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their affairs – family conflict – no private person suitable to be appointed – need for an independent and objective financial manager – maintenance of family relationships – NSW Trustee and Guardian appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 3D, 4, 14, 14(2), 15(3), 17(1), 25M, 33A(4), 36
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 IF v IG [2004] NSWADTAP 3 In P v NSW Trustee and Guardian [2015] NSWSC 579 P v D1 & Ors [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 Re B [2011] NSWSC 1075
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	003:…