HME - [2015] NSWCATGD 36

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: HME [2015] NSWCATGD 36
Hearing dates: 19 June 2015
Date of orders: 19 June 2015
Decision date: 19 June 2015
Jurisdiction: Guardianship Division
Before: S McCarthy, Senior Member (Legal)
R Curran, Senior Member (Professional)
S Johnston, General Member (Community)
Decision:
The Tribunal consented to the request that the application for a guardianship order be withdrawn.
The Tribunal appointed two private financial managers for Mrs HME, jointly and severally.
Catchwords:
GUARDIANSHIP – no need for order to be continued – substitute medical consent can be provided informally – Tribunal consented to request to withdraw application for guardianship order
FINANCIAL MANAGEMENT – where protected person unable to participate owing to disability – whether in the best interests of the protected person to proceed with the hearing in her absence – capability to manage affairs – need for a financial management order – who should be appointed – private managers appointed jointly and severally
Legislation Cited: Guardianship Act 1987 (NSW)
Cases Cited: H v H (unreported) NSW Supreme Court 20 March 2000
Holt v Protective Commissioner (1993) 31 NSWLR 227
McD v McD (1983) 3 NSWLR 81 at 86
PY v RJS [1982] 2 NSWLR 700
Re GHI (a protected person) [2005] NSWSC 581
Category: Principal judgment
Parties: Mrs HME (the subject person)
Mrs QAB (the applicant)
The NSW Trustee and Guardian
The Public Guardian
Representation: Nil

File Number(s): 59260
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

What the Tribunal decided

The Tribunal consented to the request by Mrs QAB that the application for a guardianship order concerning Mrs HME be withdrawn. The application for guardianship is dismissed.
The Tribunal appointed Mrs QAB and Mrs SCQ as Mrs HME's financial managers, jointly and severally, subject to the authorities and directions ordered by the NSW Trustee and Guardian.

Background

Mrs HME is aged 68 years who resides at an aged care facility in Regional NSW. Mrs HME's husband, Mr EJE, died on 12 May 2015. Mrs HME's family includes her son, Mr EPL, and sister, Mrs QAB. Mrs QAB made an application for guardianship and financial management concerning Mrs HME.

The Hearing

At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing. [appendix removed for publication]

What did the Tribunal have to decide?

GUARDIANSHIP

The questions which had to be decided by the Tribunal in relation to guardianship were:

Is Mrs HME someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

Should the Tribunal make a guardianship order and, if so, what order should be made?

Who should be the guardian?

How long should the order last?

WITHDRAWAL OF APPLICATION…

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 HME

Details

AGLC: HME [2015] NSWCATGD 36
Case: [2015] NSWCATGD 36
Decision Date: 19 June 2015

CaseChat Overview and Summary

The matter before the Tribunal involved Mrs HME, a protected person who required assistance due to her disability. The dispute centred on the need for a guardianship order and the appointment of financial managers to manage her affairs. The court was tasked with determining whether a guardianship order was necessary, given that substitute medical consent could be provided informally. Additionally, the court had to decide whether it was in Mrs HME's best interests to proceed with the hearing in her absence, assess her capability to manage her affairs, and determine who should be appointed as her financial managers.

The legal issues before the court involved the necessity of continuing an order for guardianship, the provision of substitute medical consent, and the appropriateness of proceeding with the hearing without the protected person's participation. Furthermore, the court had to consider Mrs HME's ability to manage her financial affairs and the suitability of appointing private financial managers. The court was required to balance these considerations with the overarching principle of acting in the best interests of the protected person.

In its reasoning, the Tribunal concluded that there was no need for the order to be continued as substitute medical consent could be provided informally. The Tribunal also determined that it was in Mrs HME's best interests to proceed with the hearing in her absence, given her inability to participate due to her disability. The Tribunal found that Mrs HME was unable to manage her affairs and that appointing financial managers was in her best interests. Consequently, the Tribunal appointed two private financial managers for Mrs HME, jointly and severally.

The final orders of the Tribunal were that the application for a guardianship order be withdrawn, and two private financial managers be appointed for Mrs HME, jointly and severally. This decision aimed to ensure that Mrs HME received the necessary support and assistance in managing her affairs while respecting her autonomy and best interests.

Orders

Orders of the court

The Tribunal consented to the request that the application for a guardianship order be withdrawn.

The Tribunal appointed two private financial managers for Mrs HME, jointly and severally.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	HME [2015] NSWCATGD 36
Hearing dates:	19 June 2015
Date of orders:	19 June 2015
Decision date:	19 June 2015
Jurisdiction:	Guardianship Division
Before:	S McCarthy, Senior Member (Legal) R Curran, Senior Member (Professional) S Johnston, General Member (Community)
Decision:	The Tribunal consented to the request that the application for a guardianship order be withdrawn. The Tribunal appointed two private financial managers for Mrs HME, jointly and severally.
Catchwords:	GUARDIANSHIP – no need for order to be continued – substitute medical consent can be provided informally – Tribunal consented to request to withdraw application for guardianship order FINANCIAL MANAGEMENT – where protected person unable to participate owing to disability – whether in the best interests of the protected person to proceed with the hearing in her absence – capability to manage affairs – need for a financial management order – who should be appointed – private managers appointed jointly and severally
Legislation Cited:	Guardianship Act 1987 (NSW)
Cases Cited:	H v H (unreported) NSW Supreme Court 20 March 2000 Holt v Protective Commissioner (1993) 31 NSWLR 227 McD v McD (1983) 3 NSWLR 81 at 86 PY v RJS [1982] 2 NSWLR 700 Re GHI (a protected person) [2005] NSWSC 581
Category:	Principal judgment
Parties:	Mrs HME (the subject person) Mrs QAB (the applicant) The NSW Trustee and Guardian The Public Guardian
Representation:	Nil
File Number(s):	59260
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)).