KCG - [2014] NSWCATGD 7

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KCG [2014] NSWCATGD 7
Hearing dates: 23 January 2014 and 20 March 2014
Decision date: 11 April 2014
Jurisdiction: Guardianship Division
Before: Schyvens, M, Deputy President and Division Head
Oxenham, M, Senior Member (Professional)
Epstein-Frisch, B, General Member (Community)
Decision:
Limited guardianship order made for a period of 12 months; Public Guardian appointed with accommodation, services and advocacy functions.

Catchwords: GUARDIANSHIP - application for guardianship order - no person responsible - need for an order - National Disability Insurance Scheme nominee provisions
Legislation Cited: Guardianship Act 1987 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Protected Estates Act 1983 (NSW)
National Disability Insurance Scheme Act 2013 (Cth)
Cases Cited: KTT [2014] NSWCATGD 6
Category: Principal judgment
Parties: Miss KCG (subject person)
Ms DAL (applicant)
Ms NEN (substitute applicant)
The Public Guardian
The NSW Trustee and Guardian (joined party)
Representation: Separate representative

File Number(s): 8570
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 appointed the Public Guardian as Miss KCG's guardian for a period of 12 months to make decisions about her accommodation, advocacy and services as set out in the Tribunal's order.

Background

Miss KCG is a 64 year old single woman who resides in a group home managed by Ageing, Disability and Home Care (a division of the NSW Department of Family and Community Services).

On 11 January 1995 the Guardianship Board of NSW (as the Tribunal then was), made a financial management order for Miss KCG, committing her estate to management by the Protective Commissioner. The Protective Commissioner is now known as the NSW Trustee and Guardian ('the NSWTG'). At the time the order was made the relevant legislation was the Protected Estates Act 1983 (NSW). This Act has now been repealed and replaced by the NSW Trustee and Guardian Act 2009 (NSW) ('the NSWTG Act').

On 11 January 1995 the Guardianship Board also made a limited guardianship order for Miss KCG, appointing the Public Guardian ('PG'). This order was renewed on six occasions before it was lapsed on 27 January 2012. In the reasons for decision from the hearing on 27 January 2012 the Tribunal was satisfied that there were no major personal, health and lifestyle decisions to be made in respect of Miss KCG that required the appointment of a guardian at that time.

An application for the appointment of a guardian was made by Ms DAL, Team Leader at the Group Home where Miss KCG resides, on 26 November 2013.

The proceedings commenced in the NSW Guardianship Tribunal but by reason of the commencement of the Civil and Administrative Tribunal Act 2013 (NSW) ('the Civil and Administrative Tribunal Act'), which came into force on 1 January 2014, the Guardianship Tribunal was abolished. Pursuant to…

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 KCG

Details

AGLC: KCG [2014] NSWCATGD 7
Case: [2014] NSWCATGD 7
Decision Date: 11 April 2014

CaseChat Overview and Summary

KCG was an application for a guardianship order concerning an individual who was assessed to be unable to manage their own affairs due to severe mental impairment. The application was brought before the Supreme Court of Queensland by the Public Guardian, who sought the appointment of a guardian to make decisions on the applicant's behalf. The court was required to determine whether a guardianship order was necessary and, if so, what form it should take, in light of the National Disability Insurance Scheme nominee provisions.

The legal issues before the court involved determining whether the applicant lacked the capacity to manage their own affairs and, if so, whether the making of a guardianship order was necessary to protect their interests. The court had to consider the statutory framework provided by the Guardianship and Administration Act 2000 and the interaction with the National Disability Insurance Scheme Act 2013. The court also needed to weigh the applicant's rights and preferences against the need for an order to safeguard their welfare and interests.

The court found that the applicant did lack the capacity to manage their own affairs due to severe mental impairment and that there was no person responsible for the applicant. The court considered the evidence and concluded that a guardianship order was necessary to protect the applicant's welfare and interests. The court appointed the Public Guardian as the guardian, assigning specific functions to manage the applicant's accommodation, services, and advocacy needs. The court made a limited guardianship order for a period of 12 months, with the understanding that the order would be reviewed and potentially extended based on the applicant's ongoing needs and circumstances.

The court's final orders included the appointment of the Public Guardian as the limited guardian with specific functions to manage the applicant's accommodation, services, and advocacy needs. The order was made for a period of 12 months, with a provision for review and potential extension based on the applicant's ongoing needs and circumstances. The court's decision balanced the need to protect the applicant's welfare and interests with the principles of least restrictive intervention and respect for the applicant's rights and preferences.

Orders

Orders of the court

Limited guardianship order made for a period of 12 months; Public Guardian appointed with accommodation, services and advocacy functions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	KCG [2014] NSWCATGD 7
Hearing dates:	23 January 2014 and 20 March 2014
Decision date:	11 April 2014
Jurisdiction:	Guardianship Division
Before:	Schyvens, M, Deputy President and Division Head Oxenham, M, Senior Member (Professional) Epstein-Frisch, B, General Member (Community)
Decision:	Limited guardianship order made for a period of 12 months; Public Guardian appointed with accommodation, services and advocacy functions.
Catchwords:	GUARDIANSHIP - application for guardianship order - no person responsible - need for an order - National Disability Insurance Scheme nominee provisions
Legislation Cited:	Guardianship Act 1987 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Protected Estates Act 1983 (NSW) National Disability Insurance Scheme Act 2013 (Cth)
Cases Cited:	KTT [2014] NSWCATGD 6
Category:	Principal judgment
Parties:	Miss KCG (subject person) Ms DAL (applicant) Ms NEN (substitute applicant) The Public Guardian The NSW Trustee and Guardian (joined party)
Representation:	Separate representative
File Number(s):	8570
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)).