JYG - [2020] NSWCATGD 54

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: JYG [2020] NSWCATGD 54
Hearing dates: 1 September 2020
Date of orders: 1 September 2020
Decision date: 01 September 2020
Jurisdiction: Guardianship Division
Before: J S Currie, Senior Member (Legal)
Decision:
The guardianship order for JYG made on 4 September 2019 has been reviewed. The order now is as follows:
1. SZG of [Address removed for publication.] is appointed as the guardian.
2. This is a continuing guardianship order for a period of three years from 2 September 2020.
3. This is a limited guardianship order giving the guardian custody of JYG to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
a) Health care
To decide what health care JYG may receive.
b) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where JYG is not capable of giving a valid consent.
c) Services
To make decisions about services to be provided to JYG.
CONDITION:
5. The condition of this order is the Standard Condition:
In exercising this role the guardian shall take all reasonable steps to bring JYG to an understanding of the issues and to obtain and consider her views before making significant decisions.

Catchwords:
GUARDIANSHIP – end-of-term review of guardianship order – who should be appointed as guardian – whether guardianship order should be varied – suitability of proposed guardian – financial conflict of interest – proposed guardian with history of fraud in relation to subject person’s estate leading to the loss of the subject person’s property – appointment of proposed guardian would be inconsistent with the need to protect subject person from financial abuse or exploitation – pre-existing appointed guardian continues to be suitable for appointment – no continuing need for accommodation decisions or authority to override others – order varied.

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), s 36
Guardianship Act 1987 (NSW), ss 3, 4, 14, 4(2), 15(3), 17, 17(1), 17(1)(b)-(c)
Powers of Attorney Act 2003 (NSW), s 36(4)

Cases Cited:
CS and MY v The Guardianship Tribunal and The Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
FGE (2) [2012] NSWGT 3
P v D1 & Ors [2011] NSWSC 257
ZGB v ZGC [2018] NSWCATAP 58

Texts Cited:
Nil

Category: Principal judgment
Parties:
004: Review of Guardianship Order
JYG (subject person)
SZG (appointed guardian, carer)
Public Guardian (statutory party)
Representation: Nil

File Number(s): NCAT 2019/00266639
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

REVIEW OF A GUARDIANSHIP ORDER

Background

JYG, aged 92 years, has been diagnosed with substantial cognitive impediments due to Alzheimer’s disease and vascular dementia. JYG has been in respite care at an aged care facility within a private hospital in Eastern Sydney but is now…

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 JYG

Details

AGLC: JYG [2020] NSWCATGD 54
Case: [2020] NSWCATGD 54
Decision Date: 01 September 2020

CaseChat Overview and Summary

The case before the court involved an end-of-term review of a guardianship order for an individual identified as JYG. The dispute centred around who should be appointed as JYG's guardian and whether the existing guardianship order should be varied. The primary concern was the suitability of the proposed guardian, who had a history of fraud in relation to JYG's estate, leading to significant financial loss for JYG. The court was tasked with determining whether appointing this proposed guardian would be consistent with protecting JYG from financial abuse or exploitation.

The legal issues before the court included assessing the suitability of the proposed guardian in light of past financial misconduct and determining whether the pre-existing guardian, SZG, continued to be fit for the role. The court also needed to consider whether there was a continuing need for the guardian to make accommodation decisions or override others. The primary consideration was ensuring that JYG's best interests were protected, particularly in terms of financial security and care.

The court found that appointing the proposed guardian would be inconsistent with the need to protect JYG from financial abuse or exploitation. It was noted that SZG, the current guardian, continued to be suitable for the role. The court determined that there was no continuing need for the guardian to make accommodation decisions or override others. Consequently, the court varied the guardianship order, appointing SZG as the guardian with specific limited functions relating to health care, medical/dental consent, and services, while ensuring the guardian takes all reasonable steps to involve JYG in decision-making processes.

The court's final order appointed SZG as JYG's guardian for a period of three years, effective from 2 September 2020. The order specified that it was a limited guardianship order, granting the guardian functions related to health care, medical/dental consent, and services, subject to the condition that the guardian must involve JYG in understanding and providing input on significant decisions.

Orders

Orders of the court

The guardianship order for JYG made on 4 September 2019 has been reviewed. The order now is as follows:

1. SZG of [Address removed for publication.] is appointed as the guardian.

2. This is a continuing guardianship order for a period of three years from 2 September 2020.

3. This is a limited guardianship order giving the guardian custody of JYG to the extent necessary to carry out the functions below.

FUNCTIONS:

4. The guardian has the following functions:

a) Health care

To decide what health care JYG may receive.

b) Medical/Dental consent

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

c) Services

To make decisions about services to be provided to JYG.

CONDITION:

5. The condition of this order is the Standard Condition:

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

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:	JYG [2020] NSWCATGD 54
Hearing dates:	1 September 2020
Date of orders:	1 September 2020
Decision date:	01 September 2020
Jurisdiction:	Guardianship Division
Before:	J S Currie, Senior Member (Legal)
Decision:	The guardianship order for JYG made on 4 September 2019 has been reviewed. The order now is as follows: 1. SZG of [Address removed for publication.] is appointed as the guardian. 2. This is a continuing guardianship order for a period of three years from 2 September 2020. 3. This is a limited guardianship order giving the guardian custody of JYG to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Health care To decide what health care JYG may receive. b) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where JYG is not capable of giving a valid consent. c) Services To make decisions about services to be provided to JYG. CONDITION: 5. The condition of this order is the Standard Condition: In exercising this role the guardian shall take all reasonable steps to bring JYG to an understanding of the issues and to obtain and consider her views before making significant decisions.
Catchwords:	GUARDIANSHIP – end-of-term review of guardianship order – who should be appointed as guardian – whether guardianship order should be varied – suitability of proposed guardian – financial conflict of interest – proposed guardian with history of fraud in relation to subject person’s estate leading to the loss of the subject person’s property – appointment of proposed guardian would be inconsistent with the need to protect subject person from financial abuse or exploitation – pre-existing appointed guardian continues to be suitable for appointment – no continuing need for accommodation decisions or authority to override others – order varied.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 36 Guardianship Act 1987 (NSW), ss 3, 4, 14, 4(2), 15(3), 17, 17(1), 17(1)(b)-(c) Powers of Attorney Act 2003 (NSW), s 36(4)
Cases Cited:	CS and MY v The Guardianship Tribunal and The Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) FGE (2) [2012] NSWGT 3 P v D1 & Ors [2011] NSWSC 257 ZGB v ZGC [2018] NSWCATAP 58
Texts Cited:	Nil
Category:	Principal judgment
Parties:	004: Review of Guardianship Order JYG (subject person) SZG (appointed guardian, carer) Public Guardian (statutory party)
Representation:	Nil
File Number(s):	NCAT 2019/00266639
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.