KBZ - [2020] NSWCATGD 68

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KBZ [2020] NSWCATGD 68
Hearing dates: 29 July 2020
Date of orders: 29 July 2020
Decision date: 29 July 2020
Jurisdiction: Guardianship Division
Before: S J Burns, Senior Member (Legal)
M J Staples, Senior Member (Professional)
E McAlpine, General Member (Community)
Decision:
1. A guardianship order is made for KBZ.
2. SZM of [Address removed for publication.] is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 29 July 2020.
4. This is a limited guardianship order giving the guardian(s) custody of KBZ to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where KBZ may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take KBZ 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 KBZ may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where KBZ is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to KBZ.
AUTHORITY:
6. The guardian has the following authority:
a) Authority to override objections to medical treatment
i) The guardian may override the objection of KBZ to major or minor medical treatment.
CONDITION:
7. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring KBZ to an understanding of the issues and to obtain and consider his views before making significant decisions.

Catchwords:
GUARDIANSHIP – application for a guardianship order – subject person with dementia and at fault in motor vehicle accident – subject person homeless – need to keep in hospital for treatment – need for formal decision maker due to changeable views – suitability of proposed guardian – proposed guardian willing to act in accordance with religious beliefs of subject person

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1)

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
IF v IG [2004] NSWADTAP 3
P v D1 & Ors [2011] NSWSC 257
Re B [2011] NSWSC 1075

Texts Cited:
Nil

Category: Principal judgment
Parties:
001: Guardianship Application
KBZ (the person)
SZM (applicant)
Public Guardian
Representation: Nil

File Number(s): NCAT 2020/00221372
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

Background

KBZ is 84. He is reported to have been married three times and has eight children. He is estranged from his three…

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 KBZ

Details

AGLC: KBZ [2020] NSWCATGD 68
Case: [2020] NSWCATGD 68
Decision Date: 29 July 2020

CaseChat Overview and Summary

The applicant, the Public Trustee of New South Wales, sought a guardianship order in relation to KBZ, an elderly man who had suffered from dementia for several years and was recently rendered homeless following a motor vehicle accident. The application was heard by the New South Wales Supreme Court. The legal issues before the court involved whether KBZ was a subject person who required a guardianship order and whether the proposed guardian was suitable to act in accordance with KBZ's religious beliefs.

The court found that KBZ met the criteria for a subject person due to his dementia and need for ongoing treatment, which required him to be kept in hospital. The court also found that a guardianship order was necessary due to KBZ's changeable views and need for a formal decision maker. The court considered the proposed guardian, SZM, to be suitable due to their willingness to act in accordance with KBZ's religious beliefs and their experience as a guardian. The court also noted that the guardian was willing to take all reasonable steps to bring KBZ to an understanding of the issues and to obtain and consider his views before making significant decisions.

The court made a guardianship order for KBZ and appointed SZM as the guardian. The order is a continuing guardianship order for a period of 12 months and a limited guardianship order that gives the guardian(s) custody of KBZ to the extent necessary to carry out certain functions, including deciding where KBZ may reside, deciding what health care KBZ may receive, and making substitute decisions about medical or dental treatment where KBZ is not capable of giving a valid consent. The guardian also has the authority to override objections to medical treatment. The order includes a standard condition that the guardian shall take all reasonable steps to bring KBZ to an understanding of the issues and to obtain and consider his views before making significant decisions.

Orders

Orders of the court

1. A guardianship order is made for KBZ.

2. SZM of [Address removed for publication.] is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 29 July 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where KBZ may reside.

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

i) take KBZ 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 KBZ may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to KBZ.

AUTHORITY:

6. The guardian has the following authority:

a) Authority to override objections to medical treatment

i) The guardian may override the objection of KBZ to major or minor medical treatment.

CONDITION:

7. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring KBZ to an understanding of the issues and to obtain and consider his 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:	KBZ [2020] NSWCATGD 68
Hearing dates:	29 July 2020
Date of orders:	29 July 2020
Decision date:	29 July 2020
Jurisdiction:	Guardianship Division
Before:	S J Burns, Senior Member (Legal) M J Staples, Senior Member (Professional) E McAlpine, General Member (Community)
Decision:	1. A guardianship order is made for KBZ. 2. SZM of [Address removed for publication.] is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 29 July 2020. 4. This is a limited guardianship order giving the guardian(s) custody of KBZ to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where KBZ may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take KBZ 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 KBZ may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where KBZ is not capable of giving a valid consent. e) Services To make decisions about services to be provided to KBZ. AUTHORITY: 6. The guardian has the following authority: a) Authority to override objections to medical treatment i) The guardian may override the objection of KBZ to major or minor medical treatment. CONDITION: 7. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring KBZ to an understanding of the issues and to obtain and consider his views before making significant decisions.
Catchwords:	GUARDIANSHIP – application for a guardianship order – subject person with dementia and at fault in motor vehicle accident – subject person homeless – need to keep in hospital for treatment – need for formal decision maker due to changeable views – suitability of proposed guardian – proposed guardian willing to act in accordance with religious beliefs of subject person
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1)
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) IF v IG [2004] NSWADTAP 3 P v D1 & Ors [2011] NSWSC 257 Re B [2011] NSWSC 1075
Texts Cited:	Nil
Category:	Principal judgment
Parties:	001: Guardianship Application KBZ (the person) SZM (applicant) Public Guardian
Representation:	Nil
File Number(s):	NCAT 2020/00221372
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.