DZT - [2022] NSWCATGD 7

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DZT [2022] NSWCATGD 7
Hearing dates: 3 June 2022
Date of orders: 3 June 2022
Decision date: 03 June 2022
Jurisdiction: Guardianship Division
Before: R H Booby, Senior Member (Legal)
Dr P Landau, Senior Member (Professional)
J L Newman, General Member (Community)
Decision:
Review of Guardianship Order
The guardianship order for DZT made on 27 March 2022 has been reviewed. The order now is as follows:
1.   SBT, of [Address removed for publication.], is appointed as the guardian.
2.   This is a continuing guardianship order for a period of 12 months from 3 June 2022.
3.   This is a limited guardianship order giving the guardian(s) custody of DZT to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where DZT may reside.
b)   Health care
To decide what health care DZT may receive.
c)   Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where DZT is not capable of giving a valid consent.
d)   Services
To make decisions about services to be provided to DZT.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring DZT to an understanding of the issues and to obtain and consider her views before making significant decisions.
Financial Management Application
Today’s hearing is adjourned to a day to be confirmed by the registry.

Catchwords:
GUARDIANSHIP – end-of-term review of guardianship order – whether a further guardianship order should be made – subject person suffered a stroke – cognitive impairment and physical conditions – subject person lacks insight into her condition – need for decisions to be made about accommodation, health care, medical and dental consent, and services – Aboriginal woman with a strong family network – in the subject person’s best interests to appoint a family member as her guardian – discord amongst family members – subject person supports the appointment of a private guardian – suitability of one of the proposed guardians – private guardian appointed – order made.

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 51
Guardianship Act 1987 (NSW), ss 3(1)-(2), 3D, 3F(3)(d), 4, 14, 14(2), 15(3), 17(1), 33A(4)

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

Texts Cited:
None cited.

Category: Principal judgment
Parties:
002: Review of Guardianship Order

DZT (the person)
Public Guardian (appointed guardian)
SBT (carer)

003: Financial Management Application
DZT (the person)
Illawarra Shoalhaven Local Health District (applicant)
SBT (carer)

NSW Trustee and Guardian
005: Financial Management Application
DZT (the person)
VYT (applicant)
SBT (carer)
NSW Trustee and Guardian
Representation: L Carriage, separate representative for…

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 DZT

Details

AGLC: DZT [2022] NSWCATGD 7
Case: [2022] NSWCATGD 7
Decision Date: 03 June 2022

CaseChat Overview and Summary

The end-of-term review of a guardianship order concerning DZT was conducted before a court. The subject of the order, DZT, had experienced a stroke, leading to cognitive impairment and other physical conditions. DZT lacked insight into her condition and required decisions to be made regarding her accommodation, health care, medical and dental consent, and services. DZT is an Aboriginal woman with a strong family network, but there was discord among family members about who should be appointed as her guardian. DZT supported the appointment of a private guardian, and the court considered the suitability of one of the proposed guardians.

The legal issues before the court were whether a further guardianship order should be made, and if so, who should be appointed as DZT’s guardian. The court needed to balance the need for DZT to have a guardian who could make decisions in her best interests with the discord among family members and DZT’s preference for a private guardian. The court found that it was in DZT’s best interests to appoint a family member as her guardian but also considered the suitability of the proposed private guardian.

After considering the evidence and arguments presented, the court found that the proposed private guardian was suitable and in the best interests of DZT. The court took into account DZT’s preference for a private guardian, her cognitive impairment, and the need for decisions to be made in her best interests. The court also considered the discord among family members and the need for a guardian who could make decisions without conflict. The court appointed the private guardian as DZT’s guardian and made a continuing guardianship order for a period of 12 months.

The court made an order appointing SBT as DZT’s guardian and granted the guardian limited guardianship functions, including decisions about accommodation, health care, medical and dental consent, and services. The court also imposed a condition on the order that the guardian must take reasonable steps to bring DZT to an understanding of the issues and to obtain and consider her views before making significant decisions. The financial management application was adjourned to a later date.

Orders

Orders of the court

Review of Guardianship Order

The guardianship order for DZT made on 27 March 2022 has been reviewed. The order now is as follows:

1. SBT, of [Address removed for publication.], is appointed as the guardian.

2. This is a continuing guardianship order for a period of 12 months from 3 June 2022.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where DZT may reside.

b) Health care

To decide what health care DZT may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to DZT.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management Application

Today’s hearing is adjourned to a day to be confirmed by the registry.

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:	DZT [2022] NSWCATGD 7
Hearing dates:	3 June 2022
Date of orders:	3 June 2022
Decision date:	03 June 2022
Jurisdiction:	Guardianship Division
Before:	R H Booby, Senior Member (Legal) Dr P Landau, Senior Member (Professional) J L Newman, General Member (Community)
Decision:	Review of Guardianship Order The guardianship order for DZT made on 27 March 2022 has been reviewed. The order now is as follows: 1. SBT, of [Address removed for publication.], is appointed as the guardian. 2. This is a continuing guardianship order for a period of 12 months from 3 June 2022. 3. This is a limited guardianship order giving the guardian(s) custody of DZT to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where DZT may reside. b) Health care To decide what health care DZT may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where DZT is not capable of giving a valid consent. d) Services To make decisions about services to be provided to DZT. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring DZT to an understanding of the issues and to obtain and consider her views before making significant decisions. Financial Management Application Today’s hearing is adjourned to a day to be confirmed by the registry.
Catchwords:	GUARDIANSHIP – end-of-term review of guardianship order – whether a further guardianship order should be made – subject person suffered a stroke – cognitive impairment and physical conditions – subject person lacks insight into her condition – need for decisions to be made about accommodation, health care, medical and dental consent, and services – Aboriginal woman with a strong family network – in the subject person’s best interests to appoint a family member as her guardian – discord amongst family members – subject person supports the appointment of a private guardian – suitability of one of the proposed guardians – private guardian appointed – order made.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 51 Guardianship Act 1987 (NSW), ss 3(1)-(2), 3D, 3F(3)(d), 4, 14, 14(2), 15(3), 17(1), 33A(4)
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep and Re B [2011] NSWSC 1075 IF v IG [2004] NSWADTAP 3 P v D1 & Ors [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	002: Review of Guardianship Order DZT (the person) Public Guardian (appointed guardian) SBT (carer) 003: Financial Management Application DZT (the person) Illawarra Shoalhaven Local Health District (applicant) SBT (carer) NSW Trustee and Guardian 005: Financial Management Application DZT (the person) VYT (applicant) SBT (carer) NSW Trustee and Guardian
Representation:	L Carriage, separate representative for…