EZX - [2020] NSWCATGD 72

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EZX [2020] NSWCATGD 72
Hearing dates: 26 June 2020
Date of orders: 26 June 2020
Decision date: 26 June 2020
Jurisdiction: Guardianship Division
Before: S Roushan, Senior Member (Legal)
A M Matheson, Senior Member (Professional)
R Royer, General Member (Community)
Decision:
Guardianship
1. A guardianship order is made for EZX.
2. MYG of [Address removed for publication.] is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 26 June 2020.
4. This is a limited guardianship order giving the guardian(s) custody of EZX to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where EZX may reside.
b) Health care
To decide what health care EZX may receive.
c) Services
To make decisions about services to be provided to EZX.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring EZX to an understanding of the issues and to obtain and consider his views before making significant decisions.
Financial Management
1. The estate of EZX is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. MYG of [Address removed for publication.] is appointed as the financial manager of the estate.
NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.
3. This order be reviewed by the Tribunal within 12 months.

Catchwords:
GUARDIANSHIP – application for a guardianship order – admitted to a multi-purpose health service – condition deteriorated – close family relationships – no undue conflict of interest – subject person and family support appointment – private guardian appointed
FINANCIAL MANAGEMENT – application for a financial management order – risk of homelessness – vulnerable to exploitation – payments managed by sibling – financial arrangements needed if accommodation changes – subject person supports appointment – private manager found suitable

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

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 IG [2004] NSWADTAP 3
P v NSW Trustee and Guardian [2015] NSWSC 579
Re B [2011] NSWSC 1075

Texts Cited:
None cited.

Category: Principal judgment
Parties:
Guardianship Application

EZX (the person)
DAQ (applicant)
MYG (joined party, proposed guardian)
Public Guardian

Financial Management Application
EZX (the person)
DAQ (applicant)
MYG (joined party, proposed financial manager)
NSW Trustee and Guardian
Representation: Nil.

File Number(s): NCAT 2020/00173290
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…

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 EZX

Details

AGLC: EZX [2020] NSWCATGD 72
Case: [2020] NSWCATGD 72
Decision Date: 26 June 2020

CaseChat Overview and Summary

EZX, a person who requires guardianship and financial management due to their inability to manage their affairs, was the subject of an application to the court. The application was brought about due to the individual's deteriorating condition and their admission to a multi-purpose health service. The applicant, supported by the individual's family, sought the appointment of a private guardian and financial manager to manage the individual's affairs. The family provided evidence of their close relationship with the individual and their ability to act without undue conflict of interest. The court was required to decide whether a guardianship and financial management order should be made and, if so, who should be appointed to the roles.

The court considered the evidence provided and found that a guardianship and financial management order should be made. The court found that the individual's condition had deteriorated to the point where they were unable to manage their affairs and that the appointment of a guardian and financial manager was necessary. The court also found that the applicant, supported by the individual's family, was suitable to act as the guardian and financial manager. The court was satisfied that there was no undue conflict of interest and that the applicant and the individual's family could act in the best interests of the individual.

The court made a continuing guardianship order for a period of 12 months, appointing the applicant as the guardian. The court also made a financial management order, appointing the applicant as the financial manager. The court found that the individual was vulnerable to exploitation and at risk of homelessness, and that the appointment of a financial manager was necessary to manage their financial affairs. The court found that the applicant was suitable for the role of financial manager and that they could manage the individual's financial affairs in a way that was in the individual's best interests.

The court made orders appointing the applicant as the guardian and financial manager of the individual's affairs. The court made a continuing guardianship order for a period of 12 months, with the applicant having limited functions in relation to accommodation, health care, and services. The court also made a financial management order, appointing the applicant as the financial manager of the individual's estate. The court ordered that the financial manager was not authorised to deal with the estate until they had obtained all necessary authorities from the NSW Trustee and Guardian. The court ordered that the orders be reviewed by the Tribunal within 12 months.

Orders

Orders of the court

Guardianship

1. A guardianship order is made for EZX.

2. MYG of [Address removed for publication.] is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 26 June 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where EZX may reside.

b) Health care

To decide what health care EZX may receive.

c) Services

To make decisions about services to be provided to EZX.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management

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

2. MYG of [Address removed for publication.] is appointed as the financial manager of the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.

3. This order be reviewed by the Tribunal within 12 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:	EZX [2020] NSWCATGD 72
Hearing dates:	26 June 2020
Date of orders:	26 June 2020
Decision date:	26 June 2020
Jurisdiction:	Guardianship Division
Before:	S Roushan, Senior Member (Legal) A M Matheson, Senior Member (Professional) R Royer, General Member (Community)
Decision:	Guardianship 1. A guardianship order is made for EZX. 2. MYG of [Address removed for publication.] is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 26 June 2020. 4. This is a limited guardianship order giving the guardian(s) custody of EZX to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where EZX may reside. b) Health care To decide what health care EZX may receive. c) Services To make decisions about services to be provided to EZX. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring EZX to an understanding of the issues and to obtain and consider his views before making significant decisions. Financial Management 1. The estate of EZX is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. MYG of [Address removed for publication.] is appointed as the financial manager of the estate. NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian. 3. This order be reviewed by the Tribunal within 12 months.
Catchwords:	GUARDIANSHIP – application for a guardianship order – admitted to a multi-purpose health service – condition deteriorated – close family relationships – no undue conflict of interest – subject person and family support appointment – private guardian appointed FINANCIAL MANAGEMENT – application for a financial management order – risk of homelessness – vulnerable to exploitation – payments managed by sibling – financial arrangements needed if accommodation changes – subject person supports appointment – private manager found suitable
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17, 25M
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 IG [2004] NSWADTAP 3 P v NSW Trustee and Guardian [2015] NSWSC 579 Re B [2011] NSWSC 1075
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	Guardianship Application EZX (the person) DAQ (applicant) MYG (joined party, proposed guardian) Public Guardian Financial Management Application EZX (the person) DAQ (applicant) MYG (joined party, proposed financial manager) NSW Trustee and Guardian
Representation:	Nil.
File Number(s):	NCAT 2020/00173290
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.