KGN - [2024] NSWCATGD 23

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KGN [2024] NSWCATGD 23
Hearing dates: 13 May 2024
Date of orders: 13 May 2024
Decision date: 13 May 2024
Jurisdiction: Guardianship Division
Before: S Barnes, Senior Member (Legal)
Dr K J Banerjee, Senior Member (Professional)
E A Pickering, General Member (Community)
Decision:
Guardianship
1. A guardianship order is made for KGN.
2. The Public Guardian and SZN, of [Address removed for publication.], are appointed separately as the guardians.
3. This is a continuing guardianship order for a period of 12 months from 13 May 2024.
4. This is a limited guardianship order giving the guardian(s) custody of KGN to the extent necessary to carry out the functions below.
FUNCTION: SZN
5. SZN has the following function:
(a) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where KGN is not capable of giving a valid consent.
FUNCTIONS: The Public Guardian
6. The Public Guardian has the following functions:
(a) Health care
To decide what health care KGN may receive.
(b) Services
To make decisions about services to be provided to KGN.
CONDITION:
7. The condition of this order is:
(a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring KGN to an understanding of the issues and to obtain and consider her views before making significant decisions.
Financial Management
The application for a financial management order is dismissed after hearing.

Catchwords:
GUARDIANSHIP – subject person is 84 years old – diagnosis of dementia – subject person is a person for whom the Tribunal could make a guardianship order – difficulty obtaining in-home support services – history of carer stress – need to appoint a substitute decision-maker with a services and health care function – Public Guardian and SZN appointed separately as guardians – order made.
FINANCIAL MANAGEMENT – concerns about actual or potential financial abuse – subject person assisted with her financial management – subject person’s finances are managed adequately with informal assistance – no evidence of unwise spending, exploitation or loss – financial management order not necessary – application dismissed.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(1)-(2), 9(1), 15(3), 17, 17(1)(c), 25I(1)
Health Services Act 1988 (Vic), ss 3(1), 9, 65P; Sch 5
Interpretation Act 1987 (NSW), s 3(3); Sch 4

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
CJH v Department of Family and Community Services [2016] NSWCATAD 162
CZX [2020] NSWCATGD 29
Disability Services v People With Disability Australia Inc (CSD) [2010] NSWADTAP 44
EBI [2017] NSWCATGD 6
NEJ [2017] NSWCATGD 1
P v D1 & Ors [2011] NSWSC 257
Re B [2011] NSWSC 1075
TC v Public Guardian & Ors [2006] NSWADTAP 15

Texts Cited:
Albury Wadonga Health, Annual Report 2022-2023 (Report, 14 September 2023)

Category: Principal judgment
Parties:
001: Guardianship Application

KGN (the person)
Albury Wodonga Health (applicant)
SZN (carer)
Public Guardian

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 KGN

Details

AGLC: KGN [2024] NSWCATGD 23
Case: [2024] NSWCATGD 23
Decision Date: 13 May 2024

CaseChat Overview and Summary

The matter before the court involved an 84-year-old woman, KGN, who had been diagnosed with dementia. The court was asked to consider the need for a guardianship order and a financial management order. The primary concern was the subject person's ability to manage her daily life and health care decisions due to her dementia. Additionally, there were concerns regarding potential financial abuse, given her difficulty in obtaining in-home support services and a history of carer stress.

The central legal issues before the court were whether KGN qualified as a person for whom a guardianship order could be made and if a financial management order was necessary to protect her interests. The court had to weigh the subject person's capacity to make decisions against the necessity of appointing a substitute decision-maker to manage her health care and services. In terms of financial management, the court needed to determine if there was sufficient evidence of mismanagement or exploitation of KGN's finances that warranted a financial management order.

In reaching its decision, the court found that KGN was indeed a person for whom a guardianship order could be made, given her diagnosis of dementia and the difficulties in obtaining in-home support services. The court also noted the history of carer stress, which further justified the need for a substitute decision-maker. Consequently, the court appointed the Public Guardian and SZN as separate guardians, each with specific functions to manage KGN's health care and services. The court dismissed the application for a financial management order, as there was no evidence of unwise spending, exploitation, or financial loss. The guardianship order was made for a period of 12 months, with a condition that the guardians must ensure KGN understands the issues and consider her views before making significant decisions.

The court's final orders included the appointment of the Public Guardian and SZN as separate guardians for KGN, with specific functions related to health care and services. The application for a financial management order was dismissed, as the court found that KGN's finances were being managed adequately without the need for a formal order. The guardianship order was set to last for 12 months, with provisions to review the situation and ensure KGN's understanding and views were considered in significant decisions.

Orders

Orders of the court

Guardianship

1. A guardianship order is made for KGN.

2. The Public Guardian and SZN, of [Address removed for publication.], are appointed separately as the guardians.

3. This is a continuing guardianship order for a period of 12 months from 13 May 2024.

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

FUNCTION: SZN

5. SZN has the following function:

(a) Medical/Dental consent

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

FUNCTIONS: The Public Guardian

6. The Public Guardian has the following functions:

(a) Health care

To decide what health care KGN may receive.

(b) Services

To make decisions about services to be provided to KGN.

CONDITION:

7. The condition of this order is:

(a) Standard Condition

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

Financial Management

The application for a financial management order is dismissed after hearing.

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:	KGN [2024] NSWCATGD 23
Hearing dates:	13 May 2024
Date of orders:	13 May 2024
Decision date:	13 May 2024
Jurisdiction:	Guardianship Division
Before:	S Barnes, Senior Member (Legal) Dr K J Banerjee, Senior Member (Professional) E A Pickering, General Member (Community)
Decision:	Guardianship 1. A guardianship order is made for KGN. 2. The Public Guardian and SZN, of [Address removed for publication.], are appointed separately as the guardians. 3. This is a continuing guardianship order for a period of 12 months from 13 May 2024. 4. This is a limited guardianship order giving the guardian(s) custody of KGN to the extent necessary to carry out the functions below. FUNCTION: SZN 5. SZN has the following function: (a) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where KGN is not capable of giving a valid consent. FUNCTIONS: The Public Guardian 6. The Public Guardian has the following functions: (a) Health care To decide what health care KGN may receive. (b) Services To make decisions about services to be provided to KGN. CONDITION: 7. The condition of this order is: (a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring KGN to an understanding of the issues and to obtain and consider her views before making significant decisions. Financial Management The application for a financial management order is dismissed after hearing.
Catchwords:	GUARDIANSHIP – subject person is 84 years old – diagnosis of dementia – subject person is a person for whom the Tribunal could make a guardianship order – difficulty obtaining in-home support services – history of carer stress – need to appoint a substitute decision-maker with a services and health care function – Public Guardian and SZN appointed separately as guardians – order made. FINANCIAL MANAGEMENT – concerns about actual or potential financial abuse – subject person assisted with her financial management – subject person’s finances are managed adequately with informal assistance – no evidence of unwise spending, exploitation or loss – financial management order not necessary – application dismissed.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(1)-(2), 9(1), 15(3), 17, 17(1)(c), 25I(1) Health Services Act 1988 (Vic), ss 3(1), 9, 65P; Sch 5 Interpretation Act 1987 (NSW), s 3(3); Sch 4
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) CJH v Department of Family and Community Services [2016] NSWCATAD 162 CZX [2020] NSWCATGD 29 Disability Services v People With Disability Australia Inc (CSD) [2010] NSWADTAP 44 EBI [2017] NSWCATGD 6 NEJ [2017] NSWCATGD 1 P v D1 & Ors [2011] NSWSC 257 Re B [2011] NSWSC 1075 TC v Public Guardian & Ors [2006] NSWADTAP 15
Texts Cited:	Albury Wadonga Health, Annual Report 2022-2023 (Report, 14 September 2023)
Category:	Principal judgment
Parties:	001: Guardianship Application KGN (the person) Albury Wodonga Health (applicant) SZN (carer) Public Guardian