KCO - [2021] NSWCATGD 29

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KCO [2021] NSWCATGD 29
Hearing dates: 26 July 2021
Date of orders: 26 July 2021
Decision date: 26 July 2021
Jurisdiction: Guardianship Division
Before: B L Adamovich, Senior Member (Legal)
W E Blaxland, Senior Member (Professional)
J V Le Breton, General Member (Community)
Decision:
Guardianship:
1. A guardianship order is made for KCO.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 26 July 2021.
4. This is a limited guardianship order giving the guardian(s) custody of KCO to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where KCO may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take KCO to a place approved by the guardian.
ii) keep her at that place.
iii) return her to that place should she leave it.
c) Health care
To decide what health care KCO may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where KCO is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to KCO.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role, the guardian shall take all reasonable steps to bring KCO to an understanding of the issues and to obtain and consider her views before making significant decisions.
Financial Management:
1. The estate of KCO is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of KCO is committed to the NSW Trustee and Guardian.
3. This order be reviewed by the Tribunal within 12 months.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – existing enduring guardianship appointment – subject person is of advanced age – cognitive impairment associated with moderate dementia and depression – concerns that subject person is living in unhygienic conditions with basic care needs not met – high falls risk and limited mobility – carer preventing subject person from accessing services – subject person unwilling to move to aged care – need for decisions to be made about health care, medical and dental consent, and services – accommodation function with power to authorise others – conflict between family members – no private person suitable to be appointed – Public Guardian appointed – order made.
FINANCIAL MANAGEMENT– application for a financial management order – existing enduring power of attorney is not operating in the subject person’s best interests – need to protect the subject person from financial abuse and exploitation – no private person suitable to be appointed – NSW Trustee and Guardian appointed – order made.
INTERLOCUTORY – joinder of party – investigations of elder abuse by the NSW Ageing and Disability…

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 KCO

Details

AGLC: KCO [2021] NSWCATGD 29
Case: [2021] NSWCATGD 29
Decision Date: 26 July 2021

CaseChat Overview and Summary

The case involved an application for a guardianship order in relation to KCO, who was of advanced age and suffered from cognitive impairment associated with moderate dementia and depression. The application was made due to concerns about KCO's living conditions and her unwillingness to move to aged care despite her high falls risk and limited mobility. The court was also asked to consider an application for a financial management order as the existing enduring power of attorney was not operating in KCO's best interests. The need to protect KCO from financial abuse and exploitation was highlighted. The court considered whether a guardianship order should be made, given the existing enduring guardianship appointment, and whether a financial management order should be made in light of the unsuitable enduring power of attorney. The court also had to decide on the joinder of a party, taking into account investigations of elder abuse by the NSW Ageing and Disability Commission.

The court found that given KCO's condition, it was necessary to appoint a guardian to make decisions about her health care, medical and dental consent, and services. The court determined that no private person was suitable for the role, and thus appointed the Public Guardian. The court also found that the existing enduring power of attorney was not operating in KCO's best interests, and appointed the NSW Trustee and Guardian to manage KCO's estate. The court ruled that the party who had raised concerns about KCO's welfare and had been investigated by the NSW Ageing and Disability Commission should be joined as a party to the proceedings.

The court made a guardianship order for KCO, appointing the Public Guardian as her guardian. The order included specific functions such as deciding where KCO may reside, deciding what health care KCO may receive, and making substitute decisions about proposed medical or dental treatment. The court also made an order that the estate of KCO was subject to management under the NSW Trustee and Guardian Act 2009 (NSW), with the management of the estate committed to the NSW Trustee and Guardian. The court ordered that the management of KCO's estate be reviewed by the Tribunal within 12 months.

The final orders included the appointment of the Public Guardian as KCO's guardian, with specific functions outlined in the order. The court also appointed the NSW Trustee and Guardian to manage KCO's estate, with a review of the management order within 12 months. The court also joined the party who had raised concerns about KCO's welfare as a party to the proceedings. The court's decision recognised the need for KCO's care and financial management to be overseen by appropriate authorities, given her cognitive impairment and the unsuitable enduring power of attorney.

Orders

Orders of the court

Guardianship:

1. A guardianship order is made for KCO.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 26 July 2021.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where KCO may reside.

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

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

ii) keep her at that place.

iii) return her to that place should she leave it.

c) Health care

To decide what health care KCO may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to KCO.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management:

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

2. The management of the estate of KCO is committed to the NSW Trustee and Guardian.

3. This order be reviewed by the Tribunal within 12 months.

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:	KCO [2021] NSWCATGD 29
Hearing dates:	26 July 2021
Date of orders:	26 July 2021
Decision date:	26 July 2021
Jurisdiction:	Guardianship Division
Before:	B L Adamovich, Senior Member (Legal) W E Blaxland, Senior Member (Professional) J V Le Breton, General Member (Community)
Decision:	Guardianship: 1. A guardianship order is made for KCO. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 26 July 2021. 4. This is a limited guardianship order giving the guardian(s) custody of KCO to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where KCO may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take KCO to a place approved by the guardian. ii) keep her at that place. iii) return her to that place should she leave it. c) Health care To decide what health care KCO may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where KCO is not capable of giving a valid consent. e) Services To make decisions about services to be provided to KCO. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role, the guardian shall take all reasonable steps to bring KCO to an understanding of the issues and to obtain and consider her views before making significant decisions. Financial Management: 1. The estate of KCO is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of KCO is committed to the NSW Trustee and Guardian. 3. This order be reviewed by the Tribunal within 12 months.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – existing enduring guardianship appointment – subject person is of advanced age – cognitive impairment associated with moderate dementia and depression – concerns that subject person is living in unhygienic conditions with basic care needs not met – high falls risk and limited mobility – carer preventing subject person from accessing services – subject person unwilling to move to aged care – need for decisions to be made about health care, medical and dental consent, and services – accommodation function with power to authorise others – conflict between family members – no private person suitable to be appointed – Public Guardian appointed – order made. FINANCIAL MANAGEMENT– application for a financial management order – existing enduring power of attorney is not operating in the subject person’s best interests – need to protect the subject person from financial abuse and exploitation – no private person suitable to be appointed – NSW Trustee and Guardian appointed – order made. INTERLOCUTORY – joinder of party – investigations of elder abuse by the NSW Ageing and Disability…