JHN - [2020] NSWCATGD 92

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: JHN [2020] NSWCATGD 92
Hearing dates: 10 August 2020
Date of orders: 10 August 2020
Decision date: 10 August 2020
Jurisdiction: Guardianship Division
Before: A R Boxall, Senior Member (Legal)
Associate Professor C Willcox, Senior Member (Professional)
E A Pickering, General Member (Community)
Decision:
The application for financial management is dismissed after hearing.
The application for guardianship is dismissed after hearing.
The application to review the enduring guardianship appointment dated 17 May 2004 is dismissed after hearing.

Catchwords:
GUARDIANSHIP – application for a guardianship order – ‘person in need of a guardian’ – subject person being treated by medication – reduction in alcohol consumption – medical evidence of capacity to make decisions – rational discussions and observations of subject person – application dismissed.
FINANCIAL MANAGEMENT – application for a financial management order – possible conflict of interest between financial interests of subject person and applicant – capability to manage one’s own affairs – sensible management of assets and liabilities – application dismissed.
ENDURING GUARDIANSHIP – review of enduring guardianship appointment – request to confirm appointment – capability to make and revoke enduring guardian appointment – confirmation would have no effect as subject person could then effectively revoke the appointment – application dismissed.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 14

Cases Cited:
P v NSW Trustee and Guardian [2015] NSWSC 579
PB v BB [2013] NSWSC 1223

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Financial Management Application

JHN (the person)
KBQ (applicant, attorney)
TYN (attorney)
SZN (attorney)
NSW Trustee and Guardian

002: Guardianship Application

JHN (the person)
KBQ (applicant, enduring guardian)
Public Guardian

003: Review of an Enduring Guardianship Appointment
JHN (the person)
KBQ (applicant, enduring guardian)
SZN (enduring guardian, other non-party)
TYN (enduring guardian, other non-party)
NSW Trustee and Guardian
Public Guardian
Representation: Nil.

File Number(s): NCAT 2020/00054185
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 FOR DECISION

GUARDIANSHIP APPLICATION

FINANCIAL MANAGEMENT APPLICATION

APPLICATION TO REVIEW AN ENDURING GUARDIANSHIP APPOINTMENT

Background

JHN is 77 years old. He lives in his own home in Inner West Sydney, NSW, where he receives support from various services. He previously lived in a large house in another Inner West Sydney suburb which eventually proved unsuitable for his needs.
JHN is a widower, his late-wife having died in 2004. He has three children: a son, SZN, who lives in Western Australia; a son, TYN, who also lives interstate; and a daughter, KBQ, who lives in Sydney and is the Applicant in these matters. For convenience, these reasons will refer to JHN as “[JHN]”, and to his children as respectively “[SZN]”, “[TYN]” and “[KBQ]” or “the Applicant”.
On 17 May 2004, JHN:

granted an Enduring Power of Attorney to SZN, TYN and KBQ jointly and severally (the

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 JHN

Details

AGLC: JHN [2020] NSWCATGD 92
Case: [2020] NSWCATGD 92
Decision Date: 10 August 2020

CaseChat Overview and Summary

In the matter of JHN, the court was presented with three distinct applications concerning the subject person's welfare and financial management. The first application sought a guardianship order on the basis that the subject person was in need of a guardian. The second application was for a financial management order, and the third sought to review an existing enduring guardianship appointment. The court was tasked with determining whether the subject person required a guardian, whether they could manage their own financial affairs, and whether the enduring guardianship appointment should be confirmed.

The primary legal issues before the court were whether the subject person required a guardian, whether they had the capacity to manage their own financial affairs, and whether the enduring guardianship appointment should be confirmed. The court needed to assess the subject person's ability to make rational decisions, manage their own affairs, and whether there was a conflict of interest in the financial management application. Additionally, the court had to consider the implications of confirming the enduring guardianship appointment on the subject person's ability to revoke it.

In dismissing the applications, the court found that the subject person, who was being treated with medication and had reduced their alcohol consumption, demonstrated capacity to make decisions through medical evidence, rational discussions, and observations. The court also found that the subject person could manage their own affairs sensibly and there was no conflict of interest in the financial management application. Furthermore, confirming the enduring guardianship appointment would not be effective as it would allow the subject person to revoke it, rendering the appointment redundant.

The court dismissed the application for financial management, the application for guardianship, and the application to review the enduring guardianship appointment. The dismissals were based on the subject person's demonstrated capacity to make decisions, manage their own affairs, and the potential redundancy of the enduring guardianship appointment.

Orders

Orders of the court

The application for financial management is dismissed after hearing.

The application for guardianship is dismissed after hearing.

The application to review the enduring guardianship appointment dated 17 May 2004 is dismissed after hearing.

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:	JHN [2020] NSWCATGD 92
Hearing dates:	10 August 2020
Date of orders:	10 August 2020
Decision date:	10 August 2020
Jurisdiction:	Guardianship Division
Before:	A R Boxall, Senior Member (Legal) Associate Professor C Willcox, Senior Member (Professional) E A Pickering, General Member (Community)
Decision:	The application for financial management is dismissed after hearing. The application for guardianship is dismissed after hearing. The application to review the enduring guardianship appointment dated 17 May 2004 is dismissed after hearing.
Catchwords:	GUARDIANSHIP – application for a guardianship order – ‘person in need of a guardian’ – subject person being treated by medication – reduction in alcohol consumption – medical evidence of capacity to make decisions – rational discussions and observations of subject person – application dismissed. FINANCIAL MANAGEMENT – application for a financial management order – possible conflict of interest between financial interests of subject person and applicant – capability to manage one’s own affairs – sensible management of assets and liabilities – application dismissed. ENDURING GUARDIANSHIP – review of enduring guardianship appointment – request to confirm appointment – capability to make and revoke enduring guardian appointment – confirmation would have no effect as subject person could then effectively revoke the appointment – application dismissed.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 14
Cases Cited:	P v NSW Trustee and Guardian [2015] NSWSC 579 PB v BB [2013] NSWSC 1223
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Financial Management Application JHN (the person) KBQ (applicant, attorney) TYN (attorney) SZN (attorney) NSW Trustee and Guardian 002: Guardianship Application JHN (the person) KBQ (applicant, enduring guardian) Public Guardian 003: Review of an Enduring Guardianship Appointment JHN (the person) KBQ (applicant, enduring guardian) SZN (enduring guardian, other non-party) TYN (enduring guardian, other non-party) NSW Trustee and Guardian Public Guardian
Representation:	Nil.
File Number(s):	NCAT 2020/00054185
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.