HCN - [2020] NSWCATGD 87

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: HCN [2020] NSWCATGD 87
Hearing dates: 3 November 2020
Date of orders: 3 November 2020
Decision date: 03 November 2020
Jurisdiction: Guardianship Division
Before: J Kearney, Senior Member (Legal)
J M Wortley, Senior Member (Professional)
D R Sword, General Member (Community)
Decision:
Guardianship
1. A guardianship order is made for HCN.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 3 November 2020.
4. This is a limited guardianship order giving the guardian(s) custody of HCN to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where HCN may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take HCN to a place approved by the guardian.
ii) keep him at that place.
iii) return him to that place should he leave it.
c) Health care
To decide what health care HCN may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where HCN is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to HCN.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring HCN to an understanding of the issues and to obtain and consider his views before making significant decisions.
Financial Management
1. The estate of HCN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of HCN is committed to the NSW Trustee and Guardian.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – subject person an inpatient in hospital – need for decision in relation to accommodation upon discharge – need for medical and dental consent decisions – need for healthcare and services decisions – proposed guardian not suitable to be appointed – potential conflict of interest – Public Guardian appointed – order made.
FINANCIAL MANAGEMENT – application for a financial management order – capacity to manage one’s own affairs – proposed financial manager not suitable to be appointed – potential conflict of interest – financial management order made – appointment of NSW Trustee and Guardian as financial manager – order made.

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

Cases Cited:
CJ v AKJ [2015] NSWSC 498
IF v G [2004] NSWADTAP 3
McD v McD (1983) 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Guardianship Application

HCN (the person)
DNE (applicant)
Public Guardian

002: Financial Management Application
HCN (the person)

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 HCN

Details

AGLC: HCN [2020] NSWCATGD 87
Case: [2020] NSWCATGD 87
Decision Date: 03 November 2020

CaseChat Overview and Summary

HCN brought an application for a guardianship order as well as a financial management order. HCN is a patient at a hospital and needs decisions made on his behalf relating to accommodation, health care, medical and dental treatment, and services. The application also sought a financial management order to manage his estate. The court was required to decide if HCN is a person in need of a guardian, and if so, who should be appointed to that role. The court also had to determine whether HCN has the capacity to manage his own financial affairs and, if not, who should be appointed to manage his estate. The court found that HCN is a person in need of a guardian and that the proposed guardian was not suitable to be appointed due to a potential conflict of interest. The Public Guardian was appointed as the guardian. The court found that HCN does not have the capacity to manage his own financial affairs and that the proposed financial manager was also not suitable to be appointed due to a potential conflict of interest. The NSW Trustee and Guardian was appointed as the financial manager.

The court made a guardianship order for HCN, appointing the Public Guardian as his guardian. The order is a limited guardianship order for a period of 12 months. The guardian has functions relating to accommodation, health care, medical and dental treatment, and services. The order also requires the guardian to take reasonable steps to involve HCN in decision-making. The court made a financial management order, committing the management of HCN's estate to the NSW Trustee and Guardian.

Orders

Orders of the court

Guardianship

1. A guardianship order is made for HCN.

2. The Public Guardian is appointed as the guardian.

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

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where HCN may reside.

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

i) take HCN to a place approved by the guardian.

ii) keep him at that place.

iii) return him to that place should he leave it.

c) Health care

To decide what health care HCN may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to HCN.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management

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

2. The management of the estate of HCN is committed to the NSW Trustee and Guardian.

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:	HCN [2020] NSWCATGD 87
Hearing dates:	3 November 2020
Date of orders:	3 November 2020
Decision date:	03 November 2020
Jurisdiction:	Guardianship Division
Before:	J Kearney, Senior Member (Legal) J M Wortley, Senior Member (Professional) D R Sword, General Member (Community)
Decision:	Guardianship 1. A guardianship order is made for HCN. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 3 November 2020. 4. This is a limited guardianship order giving the guardian(s) custody of HCN to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where HCN may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take HCN to a place approved by the guardian. ii) keep him at that place. iii) return him to that place should he leave it. c) Health care To decide what health care HCN may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where HCN is not capable of giving a valid consent. e) Services To make decisions about services to be provided to HCN. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring HCN to an understanding of the issues and to obtain and consider his views before making significant decisions. Financial Management 1. The estate of HCN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of HCN is committed to the NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – subject person an inpatient in hospital – need for decision in relation to accommodation upon discharge – need for medical and dental consent decisions – need for healthcare and services decisions – proposed guardian not suitable to be appointed – potential conflict of interest – Public Guardian appointed – order made. FINANCIAL MANAGEMENT – application for a financial management order – capacity to manage one’s own affairs – proposed financial manager not suitable to be appointed – potential conflict of interest – financial management order made – appointment of NSW Trustee and Guardian as financial manager – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 25E, 25G, 25M
Cases Cited:	CJ v AKJ [2015] NSWSC 498 IF v G [2004] NSWADTAP 3 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Guardianship Application HCN (the person) DNE (applicant) Public Guardian 002: Financial Management Application HCN (the person)