HXZ - [2020] NSWCATGD 65

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: HXZ [2020] NSWCATGD 65
Hearing dates: 17 July 2020
Date of orders: 17 July 2020
Decision date: 17 July 2020
Jurisdiction: Guardianship Division
Before: J Toohey, Senior Member (Legal)
E Love, Senior Member (Professional)
F E Hilson, General Member (Community)
Decision:
Guardianship
1. A guardianship order is made for HXZ.
2. KZO of [Address removed for publication.] and LTC of [Address removed for publication.] are appointed jointly as the guardians.
3. This is a continuing guardianship order for a period of 12 months from 17 July 2020.
4. This order will not be reviewed at the end of the above period.
5. This is a limited guardianship order giving the guardian(s) custody of HXZ to the extent necessary to carry out the functions below.
FUNCTIONS: KZO and LTC
6. KZO and LTC have the following functions:
a) Accommodation
To decide where HXZ may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take HXZ to a place approved by the guardian.
ii) keep them at that place.
iii) return them to that place should they leave it.
CONDITIONS:
7. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring HXZ to an understanding of the issues and to obtain and consider their views before making significant decisions.
Financial management
1. The estate of HXZ is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. BKC of [Address removed for publication.] and LTC of [Address removed for publication.] are appointed jointly and severally as the financial managers of the estate.
NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian.

Catchwords:
GUARDIANSHIP – application for a guardianship order – residential aged care – subject person with dementia – concerns subject person will return home and leave permanent care – no need for review at end of term – subject person preference of guardian considered – private guardians jointly appointed
FINANCIAL MANAGEMENT – application for a financial management order – subject person not opposed to financial management order – need for sale of home and management of bank accounts – need to pay accommodation and care fees – suitability of proposed private managers – private managers jointly and severally appointed

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(1), 17, 18(1), 25G, 25M(1)

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)
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
M v M [2013] NSWSC 1495
P v NSW Trustee and Guardian [2015] NSWSC 579
Re B [2011] NSWSC 1075

Texts Cited:
Nil

Category: Principal judgment
Parties:

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 HXZ

Details

AGLC: HXZ [2020] NSWCATGD 65
Case: [2020] NSWCATGD 65
Decision Date: 17 July 2020

CaseChat Overview and Summary

The case involved an application for both a guardianship and a financial management order for a subject person identified as HXZ. HXZ, who has dementia, was residing in residential aged care, and the concern was that they might return home, potentially leaving the permanent care arrangement. The court was asked to consider who should be appointed as the guardians and financial managers for HXZ.

The court had to decide several issues: whether a guardianship order was necessary and, if so, who should be appointed as guardians; whether a financial management order was required and, if so, who should be appointed as financial managers; and if a review of the orders should be conducted at the end of the initial term. Additionally, the court needed to consider the subject person's preference for their guardians and the necessity of the proposed managers given the circumstances.

The court found that a guardianship order was necessary to prevent HXZ from leaving the residential aged care facility. The court took into account the subject person's preference for their proposed guardians, KZO and LTC. The court concluded that the guardians should be jointly appointed and that the order should be continuing without a review at the end of the term, given HXZ's condition and the necessity to manage their care effectively. For financial management, the court found that BKC and LTC were suitable candidates to manage HXZ's estate, given their willingness and the necessity to handle the sale of the home and manage bank accounts to cover care fees. The court appointed the financial managers jointly and severally.

The court made a guardianship order for HXZ, appointing KZO and LTC as joint guardians for a period of 12 months from 17 July 2020, with no review at the end of the term. The court also made a financial management order appointing BKC and LTC as joint and several financial managers of HXZ's estate, subject to obtaining necessary authorities from the NSW Trustee and Guardian.

Orders

Orders of the court

Guardianship

1. A guardianship order is made for HXZ.

2. KZO of [Address removed for publication.] and LTC of [Address removed for publication.] are appointed jointly as the guardians.

3. This is a continuing guardianship order for a period of 12 months from 17 July 2020.

4. This order will not be reviewed at the end of the above period.

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

FUNCTIONS: KZO and LTC

6. KZO and LTC have the following functions:

a) Accommodation

To decide where HXZ may reside.

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

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

ii) keep them at that place.

iii) return them to that place should they leave it.

CONDITIONS:

7. The condition of this order is:

a) Standard Condition

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

Financial management

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

2. BKC of [Address removed for publication.] and LTC of [Address removed for publication.] are appointed jointly and severally as the financial managers of the estate.

NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from 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:	HXZ [2020] NSWCATGD 65
Hearing dates:	17 July 2020
Date of orders:	17 July 2020
Decision date:	17 July 2020
Jurisdiction:	Guardianship Division
Before:	J Toohey, Senior Member (Legal) E Love, Senior Member (Professional) F E Hilson, General Member (Community)
Decision:	Guardianship 1. A guardianship order is made for HXZ. 2. KZO of [Address removed for publication.] and LTC of [Address removed for publication.] are appointed jointly as the guardians. 3. This is a continuing guardianship order for a period of 12 months from 17 July 2020. 4. This order will not be reviewed at the end of the above period. 5. This is a limited guardianship order giving the guardian(s) custody of HXZ to the extent necessary to carry out the functions below. FUNCTIONS: KZO and LTC 6. KZO and LTC have the following functions: a) Accommodation To decide where HXZ may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take HXZ to a place approved by the guardian. ii) keep them at that place. iii) return them to that place should they leave it. CONDITIONS: 7. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring HXZ to an understanding of the issues and to obtain and consider their views before making significant decisions. Financial management 1. The estate of HXZ is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. BKC of [Address removed for publication.] and LTC of [Address removed for publication.] are appointed jointly and severally as the financial managers of the estate. NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – application for a guardianship order – residential aged care – subject person with dementia – concerns subject person will return home and leave permanent care – no need for review at end of term – subject person preference of guardian considered – private guardians jointly appointed FINANCIAL MANAGEMENT – application for a financial management order – subject person not opposed to financial management order – need for sale of home and management of bank accounts – need to pay accommodation and care fees – suitability of proposed private managers – private managers jointly and severally appointed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(1), 17, 18(1), 25G, 25M(1)
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) Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 M v M [2013] NSWSC 1495 P v NSW Trustee and Guardian [2015] NSWSC 579 Re B [2011] NSWSC 1075
Texts Cited:	Nil
Category:	Principal judgment
Parties: