EOK - [2017] NSWCATGD 27

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EOK [2017] NSWCATGD 27
Hearing dates: 30 June 2017
Date of orders: 30 June 2017
Decision date: 30 June 2017
Jurisdiction: Guardianship Division
Before: S Roushan, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
J V Le Breton, General Member (Community)
Decision:
001: Guardianship Application

1. A guardianship order is made for Mrs EOK.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 30 June 2017.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where Mrs EOK may reside.

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

i) take Mrs EOK to a place approved by the guardian.

c) Health care

To decide what health care Mrs EOK may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to Mrs EOK.

CONDITIONS:

6. The condition of this order is:

a) Standard Condition

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

002: Financial Management Application

1. A financial management order is made for Mrs EOK.

2. The estate of Mrs EOK is subject to management under the NSW Trustee and Guardian Act 2009.

3. The management of the estate of Mrs EOK is committed to the NSW Trustee and Guardian.
4. This order be reviewed by the Tribunal within 9 months.
Catchwords:
GUARDIANSHIP – application for guardianship order – need for order – different views about level of care required – enduring guardian appointment not operating in best interests – coercive function – Public Guardian appointed

FINANCIAL MANAGEMENT – application for financial management order – need for an order – effectiveness of the enduring power of attorney – NSW Trustee and Guardian appointed – reviewable order made
INTERLOCUTORY – does Illawarra Shoalhaven Local Health District have standing to bring application – consideration of s 9(1)(d) of the Guardianship Act 1987 (NSW) – “genuine concern for the welfare of the person” – consideration of s 21 of the Interpretation Act 1987 (NSW) – whether a Local Health District is a “person”
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 6I, 9(1)(d), 14, 14(2), 15(3), 17(1), 25M
Interpretation Act 1987 (NSW), s 21
NSW Trustee and Guardian Act 2009 (NSW), s 39
Cases Cited: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
CJ v AKJ [2015] NSWSC 498
IF v…

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 EOK

Details

AGLC: EOK [2017] NSWCATGD 27
Case: [2017] NSWCATGD 27
Decision Date: 30 June 2017

CaseChat Overview and Summary

In the case, the court was tasked with making decisions about guardianship and financial management orders for Mrs EOK. The Illawarra Shoalhaven Local Health District brought an application concerning Mrs EOK's welfare and financial management. The court had to determine whether the Local Health District had standing to bring the application and if the Public Guardian should be appointed as the guardian of Mrs EOK. Additionally, the court had to decide if the NSW Trustee and Guardian should manage Mrs EOK's estate.

The court examined the relevant legislation, including section 9(1)(d) of the Guardianship Act 1987 (NSW) and section 21 of the Interpretation Act 1987 (NSW), to determine the Local Health District's standing. The court also considered the differing views on the level of care required for Mrs EOK and whether the enduring guardian appointment was operating in her best interests. Furthermore, the court assessed the effectiveness of the enduring power of attorney and the need for a financial management order.

The court concluded that the Illawarra Shoalhaven Local Health District had standing to bring the application under section 9(1)(d) of the Guardianship Act 1987 (NSW) as it had a genuine concern for Mrs EOK's welfare. The court found that the enduring guardian appointment was not operating in Mrs EOK's best interests and that the Public Guardian should be appointed as her guardian. The court also determined that the NSW Trustee and Guardian should manage Mrs EOK's estate, given the ineffectiveness of the enduring power of attorney.

The court made a guardianship order for Mrs EOK, appointing the Public Guardian as her guardian for a period of 12 months from 30 June 2017. The order granted the guardian limited functions, including decisions about accommodation, health care, medical and dental consent, and services. Additionally, the court made a financial management order, subjecting Mrs EOK's estate to management under the NSW Trustee and Guardian Act 2009, with a review by the Tribunal within nine months.

Orders

Orders of the court

001: Guardianship Application

1. A guardianship order is made for Mrs EOK.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 30 June 2017.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where Mrs EOK may reside.

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

i) take Mrs EOK to a place approved by the guardian.

c) Health care

To decide what health care Mrs EOK may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to Mrs EOK.

CONDITIONS:

6. The condition of this order is:

a) Standard Condition

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

002: Financial Management Application

1. A financial management order is made for Mrs EOK.

2. The estate of Mrs EOK is subject to management under the NSW Trustee and Guardian Act 2009.

3. The management of the estate of Mrs EOK is committed to the NSW Trustee and Guardian.

4. This order be reviewed by the Tribunal within 9 months.

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:	EOK [2017] NSWCATGD 27
Hearing dates:	30 June 2017
Date of orders:	30 June 2017
Decision date:	30 June 2017
Jurisdiction:	Guardianship Division
Before:	S Roushan, Senior Member (Legal) Dr B McPhee, Senior Member (Professional) J V Le Breton, General Member (Community)
Decision:	001: Guardianship Application 1. A guardianship order is made for Mrs EOK. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 30 June 2017. 4. This is a limited guardianship order giving the guardian(s) custody of Mrs EOK to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where Mrs EOK may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take Mrs EOK to a place approved by the guardian. c) Health care To decide what health care Mrs EOK may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where Mrs EOK is not capable of giving a valid consent. e) Services To make decisions about services to be provided to Mrs EOK. CONDITIONS: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring Mrs EOK to an understanding of the issues and to obtain and consider her views before making significant decisions. 002: Financial Management Application 1. A financial management order is made for Mrs EOK. 2. The estate of Mrs EOK is subject to management under the NSW Trustee and Guardian Act 2009. 3. The management of the estate of Mrs EOK is committed to the NSW Trustee and Guardian. 4. This order be reviewed by the Tribunal within 9 months.
Catchwords:	GUARDIANSHIP – application for guardianship order – need for order – different views about level of care required – enduring guardian appointment not operating in best interests – coercive function – Public Guardian appointed FINANCIAL MANAGEMENT – application for financial management order – need for an order – effectiveness of the enduring power of attorney – NSW Trustee and Guardian appointed – reviewable order made INTERLOCUTORY – does Illawarra Shoalhaven Local Health District have standing to bring application – consideration of s 9(1)(d) of the Guardianship Act 1987 (NSW) – “genuine concern for the welfare of the person” – consideration of s 21 of the Interpretation Act 1987 (NSW) – whether a Local Health District is a “person”
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 6I, 9(1)(d), 14, 14(2), 15(3), 17(1), 25M Interpretation Act 1987 (NSW), s 21 NSW Trustee and Guardian Act 2009 (NSW), s 39
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) CJ v AKJ [2015] NSWSC 498 IF v…