NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: KDG [2018] NSWCATGD 13 Hearing dates: 27 June 2018 Date of orders: 27 June 2018 Decision date: 27 June 2018 Jurisdiction: Guardianship Division Before: V Massey, Senior Member (Legal)
W Longley, Senior Member (Professional)
I Ferreira, General Member CommunityDecision: 1. The application for a guardianship order with respect to KDG is dismissed because KBI has withdrawn the application and the Tribunal consents.
2. The estate of KDG is subject to the management under the NSW Trustee and Guardian Act 2009.
3. BMM and KBI are appointed jointly and severally as the financial managers of the estate.
NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian.Catchwords: GUARDIANSHIP – application for guardianship order – need for an order – FACS tenancy policy – execution of a residential tenancy agreement a matter relating to management of an estate – no authority to authorise a guardian to execute a residential tenancy agreement – withdrawn and dismissed
FINANCIAL MANAGEMENT – application for financial management order – need for orders to execute residential tenancy agreement– authority of a manger to execute documents – financial manager appointedLegislation Cited: Guardianship Act 1987 (NSW), ss 3(1)-(2), 3, 3E(1), 4, 14, 14(2), 25E, 25F(2)-(3), 25M, 33A(4), 40; pts 3, 3A
NSW Trustee and Guardian Act 2009 (NSW), ss 25E, 21(2A), 38, 66, 67
Residential Tenancies Act 2010 (NSW)Cases Cited: Application by AMAM; Re SAM [2011] NSWSC 503
HH v HI and Protective Commissioner [2009] NSWADTAP 41
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
M v M [2013] NSWSC 1495
MN v AN (1989) 16 NSWLR 525
MQH [2018] NSWCATGD 11
NVQ [2016] NSWCATGD 38Texts Cited: Family and Community Services, “Starting a Tenancy Policy” (22 February 2016) Category: Principal judgment Parties: 001: Guardianship Application
KDG (the person)
002: Financial Management Application
KBI (carer and applicant)
BMM (carer)
NSW Public Guardian
KDG (the person)
KBI (carer and applicant)
BMM (carer)
NSW Trustee and GuardianRepresentation: Nil
File Number(s): NCAT 2018/00099549 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
GUARDIANSHIP APPLICATION
What the Tribunal decided
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The Tribunal dismissed the application appointment of a guardian for KDG made by KBI because the applicant withdrew the application and the Tribunal consents.
Background
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KDG is a 25-year-old man who lives in a house in southwest Sydney rented from Family and Community Services (FACS) Housing. KDG lives with his twin brother, LNG.
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KDG’s parents are his mother, KBI, and his father, TUI. KDG has two brothers, LNG, and SMK, and a sister, MSI.
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On 29 March 2018, the Tribunal received an application for the appointment of a guardian for KDG. The applicant…
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- AGLC
- KDG [2018] NSWCATGD 13
- Case
- [2018] NSWCATGD 13
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether there was a need for an order to be made in respect of KDG's guardianship and financial management. Specifically, the court needed to consider if the execution of a residential tenancy agreement was a matter relating to the management of KDG's estate. Additionally, the court needed to assess the authority of the proposed guardians to execute such an agreement. The court examined the relevant statutory provisions and case law to determine if the execution of the tenancy agreement was indeed a matter relating to the management of KDG's estate.
The court found that the execution of a residential tenancy agreement was not a matter relating to the management of KDG's estate. It was concluded that the guardianship order was not necessary for this purpose. Furthermore, the court held that FACS did not have the authority to appoint a guardian to execute a residential tenancy agreement. Consequently, the application for a guardianship order was withdrawn, and the court dismissed it. However, the application for a financial management order was successful. BMM and KBI were appointed jointly and severally as financial managers of KDG's estate, but they could not deal with the estate until they obtained all necessary authorities from the NSW Trustee and Guardian.
The court made orders dismissing the application for a guardianship order and appointing BMM and KBI as financial managers of KDG's estate. The court emphasised that the financial managers could not deal with the estate until they obtained all necessary authorities from the NSW Trustee and Guardian. The estate of KDG was subject to management under the NSW Trustee and Guardian Act 2009.
Orders
Orders of the court
1. The application for a guardianship order with respect to KDG is dismissed because KBI has withdrawn the application and the Tribunal consents.
2. The estate of KDG is subject to the management under the NSW Trustee and Guardian Act 2009.
3. BMM and KBI are appointed jointly and severally as the financial managers of the estate.
NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian.
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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