EQK - [2016] NSWCATGD 29

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EQK [2016] NSWCATGD 29
Hearing dates: 10 November 2016
Date of orders: 10 November 2016
Decision date: 10 November 2016
Jurisdiction: Guardianship Division
Before: J Currie, Senior Member (Legal)
J McAuliffe, Senior Member (Professional)
J Le Breton, General Member (Community)
Decision:
1 The Tribunal decided to make a non-reviewable continuing limited guardianship order for Mr EQK. Mrs KMQ was appointed as Mr EQK’s guardian for six months and was authorised to make decisions on his behalf about his accommodation and services. The order will not automatically be reviewed on its expiry.

Catchwords: GUARDIANSHIP – person in need of a guardian – need for accommodation and services function – limited non-reviewable order in best interests for freedom of decision and action – private guardian appointed
Legislation Cited: Guardianship Act 1987 (NSW), ss 3, 4, 4(a), 14(2), 15(3), 16 (2A), 17
Category: Principal judgment
Parties: Mr EQK (subject person)
Ms BXC (applicant)
The NSW Public Guardian
Representation: Nil

File Number(s): 60692
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

GUARDIANSHIP APPLICATION

What the Tribunal decided

The Tribunal decided to make a non-reviewable continuing limited guardianship order for Mr EQK. Mrs KMQ was appointed as Mr EQK’s guardian for six months and was authorised to make decisions on his behalf about his accommodation and services. The order will not automatically be reviewed on its expiry.

Background

Mr EQK is a 73-year-old man who has been diagnosed with mild dementia secondary to cerebrovascular disease and chronic schizophrenia. He currently lives in his own home in Inner Western Sydney, although it is reported that earlier in 2016 he had a period of respite care at a care facility near his home. The Tribunal understands that Mr EQK has never married and has no children and that he receives support from a friend and former neighbour Mrs KMQ, who, has recently changed her name from LNR.
On 2 December 2015, the Tribunal made a financial management order for Mr EQK under which it committed the management of his estate to the NSW Trustee and Guardian. That order was expressed to be reviewable within two months. On 3 February 2016, the Tribunal confirmed that financial management order and removed the requirement that it be reviewed. On that date the Tribunal also dismissed an application for the appointment of a guardian for Mr EQK which had been made by a social worker at public hospital A.
On 28 July 2016, the Guardianship Division Registry received from Ms BXC, Case Manager at an aged care service provider, a further application for the appointment of a guardian for Mr EQK. The hearing of that application was adjourned by a Tribunal Panel on 29 September 2016. The purpose of the Tribunal’s proceedings at Sydney on 10…

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 EQK

Details

AGLC: EQK [2016] NSWCATGD 29
Case: [2016] NSWCATGD 29
Decision Date: 10 November 2016

CaseChat Overview and Summary

The case before the Tribunal involved Mr EQK, who was assessed as needing a guardian due to his inability to manage his affairs, including his accommodation and services. The Tribunal was tasked with determining whether a guardianship order was necessary and, if so, what form it should take. Mrs KMQ, a private guardian, was appointed to oversee Mr EQK's affairs for a specified period. The Tribunal considered the necessity of a non-reviewable order to ensure Mr EQK's best interests were protected while allowing him a degree of autonomy.

The legal issues that the Tribunal had to address were whether Mr EQK met the criteria for needing a guardian, and if so, whether a non-reviewable order was appropriate. The court had to balance Mr EQK's right to make decisions about his life against the necessity of having someone to assist him in managing his affairs. The Tribunal examined the evidence provided and considered Mr EQK's capacity to make decisions and his need for support.

In reaching its decision, the Tribunal found that Mr EQK did require a guardian to assist with decisions about his accommodation and services. Given the nature of his needs and the evidence presented, the Tribunal concluded that a non-reviewable limited guardianship order was in Mr EQK's best interests. The order appointed Mrs KMQ as his guardian for a period of six months, during which she would be authorised to make decisions on his behalf regarding his accommodation and services. This order was deemed necessary to ensure Mr EQK received the support he needed while also safeguarding his freedom of decision and action as much as possible.

The Tribunal's final order was to appoint Mrs KMQ as Mr EQK's guardian for six months, with a non-reviewable limited guardianship order in place. This order authorised Mrs KMQ to make decisions on Mr EQK's behalf concerning his accommodation and services. The order would not automatically be reviewed upon expiry, reflecting the Tribunal's assessment of the ongoing need for guardianship.

Orders

Orders of the court

1 The Tribunal decided to make a non-reviewable continuing limited guardianship order for Mr EQK. Mrs KMQ was appointed as Mr EQK’s guardian for six months and was authorised to make decisions on his behalf about his accommodation and services. The order will not automatically be reviewed on its expiry.

Background

Background to the litigation

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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:	EQK [2016] NSWCATGD 29
Hearing dates:	10 November 2016
Date of orders:	10 November 2016
Decision date:	10 November 2016
Jurisdiction:	Guardianship Division
Before:	J Currie, Senior Member (Legal) J McAuliffe, Senior Member (Professional) J Le Breton, General Member (Community)
Decision:	1 The Tribunal decided to make a non-reviewable continuing limited guardianship order for Mr EQK. Mrs KMQ was appointed as Mr EQK’s guardian for six months and was authorised to make decisions on his behalf about his accommodation and services. The order will not automatically be reviewed on its expiry.
Catchwords:	GUARDIANSHIP – person in need of a guardian – need for accommodation and services function – limited non-reviewable order in best interests for freedom of decision and action – private guardian appointed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3, 4, 4(a), 14(2), 15(3), 16 (2A), 17
Category:	Principal judgment
Parties:	Mr EQK (subject person) Ms BXC (applicant) The NSW Public Guardian
Representation:	Nil
File Number(s):	60692
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).