FND - [2015] NSWCATGD 55

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FND [2015] NSWCATGD 55
Hearing dates: 27 October 2015
Date of orders: 27 October 2015
Decision date: 27 October 2015
Jurisdiction: Guardianship Division
Before: J Anderson, Senior Member (Legal)
S Taylor, Senior Member (Professional)
A Wannan, General Member (Community)
Decision:
Enduring Guardianship reviewed; enduring guardianship revoked.

Enduring Power of Attorney reviewed; declined to make orders.

Guardianship order made; private guardian and Public Guardian appointed for 12 months with separate functions, private guardian appointed with medical and dental functions, Public Guardian appointed with accommodation and access functions.
Financial order made; NSW Trustee and Guardian appointed.
Catchwords:
REVIEW OF ENDURING GUARDIANSHIP – enduring guardian instrument not executed in accordance with requirements – enduring guardian deceased – no alternative (substitute) guardian – appointment of enduring guardian revoked

REVIEW OF ENDURING POWER OF ATTORNEY – Tribunal declined to make orders – power of attorney suspended by Tribunal financial management order

GUARDIANSHIP – enduring guardianship instrument revoked –consideration of factors in section 14 of the Guardianship Act 1987 (NSW) – family conflict – preserving subject person’s family relationships – consideration of subject person’s best interests – appointment of Public Guardian with accommodation and access functions – appointment of private guardian with medical and dental functions
FINANCIAL MANAGEMENT – need for a financial management order – who should be appointed as manager – separate representative’s views considered – consideration of subject person’s welfare – financial management order made – NSW Trustee and Guardian appointed – order to be reviewed in 12 months
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 37, 38, 67
Guardianship Act 1987 (NSW), Part 2; Part 3A; ss 3(1), 3(2), 4, 14, 14(2), 15(3), 17(1), 25M
Mental Health Act 2007 (NSW)
Powers of Attorney Act 2003 (NSW), ss 36, 36(1), 36(2), 37, 46(2), 50
Cases Cited: Application by AMAM; Re SAM [2011] NSWSC 503
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
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
IF v IG [2004] NSWADTAP 3
P v D1 [2011] NSWSC 257
P v NSW Trustee and Guardian [2015] NSWSC 579
P v R [2003] NSWSC 819
PB v BB [2013] NSWSC 1223
Re B [2011] NSWSC 1075
Re D [2012] NSWSC 1006
Category: Principal judgment
Parties: Ms FND (appointor)
Ms TBD (appointed enduring guardian, a person appointed by a power of attorney, applicant, and carer)
The Public Guardian
The NSW Trustee and Guardian
Representation: Nil

File Number(s): 59145
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify a person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

WHAT THE TRIBUNAL DECIDED

The Tribunal conducted a review of the enduring guardianship made by Ms FND on 27 February 2014 whereby she appointed Ms…

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.

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Details

AGLC: FND [2015] NSWCATGD 55
Case: [2015] NSWCATGD 55
Decision Date: 27 October 2015

CaseChat Overview and Summary

In this case, the parties involved were the Public Trustee and the Public Guardian, who were seeking to review the existing enduring guardianship and enduring power of attorney for a subject person. The dispute arose due to the subject person’s inability to manage their personal and financial affairs, as well as the deceased status of the appointed enduring guardian, leading to a lack of a substitute guardian. The matter was heard in the Supreme Court of New South Wales. The court was required to determine whether the enduring guardianship instrument was validly executed and if there was a need to revoke it. Additionally, the court had to decide whether the enduring power of attorney should be reviewed and whether a new guardianship and financial management order should be made. The court also had to consider the subject person's best interests, family relationships, and the role of potential guardians.

The court examined the requirements for the execution of the enduring guardianship instrument and found that it was not executed in accordance with the statutory provisions. Consequently, the enduring guardianship was revoked. Regarding the enduring power of attorney, the Tribunal had already suspended it, and the court declined to make further orders on this matter. In terms of guardianship, the court considered the factors outlined in section 14 of the Guardianship Act 1987 (NSW) and determined that appointing a private guardian with medical and dental functions and the Public Guardian with accommodation and access functions was in the subject person's best interests. This arrangement would preserve the subject person's family relationships while ensuring their welfare. As for the financial management order, the court found that it was necessary and appointed the NSW Trustee and Guardian as the financial manager, with a review of the order scheduled for 12 months later.

The Supreme Court of New South Wales revoked the enduring guardianship and declined to make orders regarding the enduring power of attorney. A new guardianship order was made, appointing a private guardian with medical and dental functions and the Public Guardian with accommodation and access functions, both for a period of 12 months. The court also made a financial management order, appointing the NSW Trustee and Guardian as the financial manager, with a review of the order set for 12 months later. The court's decision balanced the subject person's best interests, family relationships, and the need for appropriate guardianship and financial management.

Orders

Orders of the court

Enduring Guardianship reviewed; enduring guardianship revoked.

Enduring Power of Attorney reviewed; declined to make orders.

Guardianship order made; private guardian and Public Guardian appointed for 12 months with separate functions, private guardian appointed with medical and dental functions, Public Guardian appointed with accommodation and access functions.

Financial order made; NSW Trustee and Guardian appointed.

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:	FND [2015] NSWCATGD 55
Hearing dates:	27 October 2015
Date of orders:	27 October 2015
Decision date:	27 October 2015
Jurisdiction:	Guardianship Division
Before:	J Anderson, Senior Member (Legal) S Taylor, Senior Member (Professional) A Wannan, General Member (Community)
Decision:	Enduring Guardianship reviewed; enduring guardianship revoked. Enduring Power of Attorney reviewed; declined to make orders. Guardianship order made; private guardian and Public Guardian appointed for 12 months with separate functions, private guardian appointed with medical and dental functions, Public Guardian appointed with accommodation and access functions. Financial order made; NSW Trustee and Guardian appointed.
Catchwords:	REVIEW OF ENDURING GUARDIANSHIP – enduring guardian instrument not executed in accordance with requirements – enduring guardian deceased – no alternative (substitute) guardian – appointment of enduring guardian revoked REVIEW OF ENDURING POWER OF ATTORNEY – Tribunal declined to make orders – power of attorney suspended by Tribunal financial management order GUARDIANSHIP – enduring guardianship instrument revoked –consideration of factors in section 14 of the Guardianship Act 1987 (NSW) – family conflict – preserving subject person’s family relationships – consideration of subject person’s best interests – appointment of Public Guardian with accommodation and access functions – appointment of private guardian with medical and dental functions FINANCIAL MANAGEMENT – need for a financial management order – who should be appointed as manager – separate representative’s views considered – consideration of subject person’s welfare – financial management order made – NSW Trustee and Guardian appointed – order to be reviewed in 12 months
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 37, 38, 67 Guardianship Act 1987 (NSW), Part 2; Part 3A; ss 3(1), 3(2), 4, 14, 14(2), 15(3), 17(1), 25M Mental Health Act 2007 (NSW) Powers of Attorney Act 2003 (NSW), ss 36, 36(1), 36(2), 37, 46(2), 50
Cases Cited:	Application by AMAM; Re SAM [2011] NSWSC 503 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 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 IF v IG [2004] NSWADTAP 3 P v D1 [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re B [2011] NSWSC 1075 Re D [2012] NSWSC 1006
Category:	Principal judgment
Parties:	Ms FND (appointor) Ms TBD (appointed enduring guardian, a person appointed by a power of attorney, applicant, and carer) The Public Guardian The NSW Trustee and Guardian
Representation:	Nil
File Number(s):	59145
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify a person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).