DZG - [2020] NSWCATGD 12

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DZG [2020] NSWCATGD 12
Hearing dates: 20 May 2020
Date of orders: 20 May 2020
Decision date: 20 May 2020
Jurisdiction: Guardianship Division
Before: J D’Arcy, Senior Member (Legal)
F Duffy, Senior Member (Professional)
Decision:
The applications are dismissed because BYG has withdrawn the applications and the Tribunal consents.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – applicant required by aged care facility to apply for a guardianship order – no evidence of disability affecting subject person’s decision making capacity – person not a person for whom a guardianship order could be made – application withdrawn and dismissed.
FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their own affairs – applicant required by aged care facility to apply for a financial management order – subject person able to explain her current financial situation – no evidence of subject person being unable to manage their own finances – informal supports sufficient in any event – application withdrawn and dismissed.
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)-(2), 14
Cases Cited: CJ v AKJ [2015] NSWSC 498
P v NSW Trustee and Guardian [2015] NSWSC 579
Texts Cited: Nil
Category: Principal judgment
Parties:
001: Guardianship Application

DZG (the person)
BYG (applicant)
NSW Public Guardian

002: Financial Management Application
DZG (the person)
BYG (applicant)
NSW Trustee and Guardian
Representation: Nil

File Number(s): NCAT 2020/00118835
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

Background

BYG has applied to be appointed as the guardian and financial manager for his mother, DZG, having given an “irrevocable undertaking” to his mother’s accommodation provider that he would make the applications as a precondition to signing the Resident Agreement.
DZG is 92 years old. She was living in an independent living unit in an aged care facility in southwest Sydney for 10 years and nine months when she fell and made her own decision to move into the residential care section of the facility.
On 6 April 2020 at the request of the aged care facility, BYG signed a document entitled “Irrevocable undertaking – Application for appointment as Guardian/Financial Manager for Prospective Resident” in which he agreed to sign the Resident Agreement “upon being appointed as the Prospective Resident’s Guardian/Financial Manager”. Part 2 of the document states:

Irrevocable undertaking:
I, [BYG] irrevocably undertake to:
a) apply to the NSW Civil and Administrative Tribunal (NCAT) to be appointed as Guardian/Financial manager for the Prospective Resident as soon as reasonably practicable.
b) keep [the aged care facility] updated on the progress of my application to be appointed as the Prospective Resident’s Guardian/Financial Manager and to notify [the aged care facility] as soon as reasonably…

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 DZG

Details

AGLC: DZG [2020] NSWCATGD 12
Case: [2020] NSWCATGD 12
Decision Date: 20 May 2020

CaseChat Overview and Summary

In the case of DZG, the parties involved were the applicant, who was required by an aged care facility to apply for both a guardianship order and a financial management order, and the subject person, who was the potential subject of these orders. The dispute arose as a result of the aged care facility's insistence that the subject person required a guardian and financial manager, despite the lack of evidence indicating any disability affecting the subject person's decision-making capacity or their ability to manage their own affairs.

The legal issues the court had to decide involved whether the subject person was a person in need of a guardian and whether they were incapable of managing their own affairs. In considering these issues, the court needed to assess the evidence presented regarding the subject person's capacity to make decisions and manage their finances. The applicant argued that the aged care facility's requirement for these orders was sufficient grounds for their application, but the court needed to determine if there was actual evidence to support these claims.

The court found that there was no evidence to support the claim that the subject person was a person in need of a guardian or that they were incapable of managing their own affairs. The subject person was able to explain their current financial situation and there were no indications of any inability to manage their finances. Furthermore, the court noted that informal supports were sufficient to assist the subject person in any event. Consequently, the court dismissed the applications as they had been withdrawn by the applicant and the Tribunal consented to the dismissal.

Orders

Orders of the court

The applications are dismissed because BYG has withdrawn the applications and the Tribunal consents.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	DZG [2020] NSWCATGD 12
Hearing dates:	20 May 2020
Date of orders:	20 May 2020
Decision date:	20 May 2020
Jurisdiction:	Guardianship Division
Before:	J D’Arcy, Senior Member (Legal) F Duffy, Senior Member (Professional)
Decision:	The applications are dismissed because BYG has withdrawn the applications and the Tribunal consents.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – applicant required by aged care facility to apply for a guardianship order – no evidence of disability affecting subject person’s decision making capacity – person not a person for whom a guardianship order could be made – application withdrawn and dismissed. FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their own affairs – applicant required by aged care facility to apply for a financial management order – subject person able to explain her current financial situation – no evidence of subject person being unable to manage their own finances – informal supports sufficient in any event – application withdrawn and dismissed.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 14
Cases Cited:	CJ v AKJ [2015] NSWSC 498 P v NSW Trustee and Guardian [2015] NSWSC 579
Texts Cited:	Nil
Category:	Principal judgment
Parties:	001: Guardianship Application DZG (the person) BYG (applicant) NSW Public Guardian 002: Financial Management Application DZG (the person) BYG (applicant) NSW Trustee and Guardian
Representation:	Nil
File Number(s):	NCAT 2020/00118835
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.