KNT - [2020] NSWCATGD 93

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KNT [2020] NSWCATGD 93
Hearing dates: 28 August 2020
Date of orders: 28 August 2020
Decision date: 28 August 2020
Jurisdiction: Guardianship Division
Before: G Bartley, Senior Member (Legal)
S Flanagan, Senior Member (Professional)
M L Williams, General Member (Community)
Decision:
The application to review the enduring power of attorney made by KNT on 8 July 2017 is dismissed because the Tribunal has no jurisdiction.
The application for financial management is dismissed because the Tribunal has no jurisdiction.
1. A guardianship order is made for KNT.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of six months from 28 August 2020.
4. This is a limited guardianship order giving the guardian custody of KNT to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where KNT may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take KNT 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 KNT may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where KNT is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to KNT.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring KNT to an understanding of the issues and to obtain and consider her views before making significant decisions.

Catchwords:
GUARDIANSHIP – application for a guardianship order – patient in NSW hospital – physically present in NSW but resident of another state – parties in different Australian states – jurisdiction to make a guardianship order – suitability of proposed guardians – significant family conflict – family dispute on accommodation decision– removed from hospital without authorisation – significant bank withdrawals – Public Guardian appointed.
FINANCIAL MANAGEMENT – patient in NSW hospital – no property in NSW – resident of another state – no jurisdiction to make a financial management order – application dismissed.
POWER OF ATTORNEY – patient in NSW hospital – instrument made in another state – resident of another state – no jurisdiction to review enduring power of attorney – application dismissed.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 6O(1), 14, 14(2), 15(3), 17(1); Pt 2
Powers of Attorney Act 2006 (ACT)
Powers of Attorney Act 1998 (Qld)
Powers of Attorney Act 2003 (NSW), ss 3, 19, 25(1)-(2), 25(5)

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
Jumbunna Coal Mine v Victorian Coal Miners’ Association (1908) HCA…

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.

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Details

AGLC: KNT [2020] NSWCATGD 93
Case: [2020] NSWCATGD 93
Decision Date: 28 August 2020

CaseChat Overview and Summary

The matter in KNT involved an application for a guardianship order in relation to an individual who was physically present in a New South Wales hospital but resided in another state. The parties involved were located in different Australian states, which led to a jurisdictional dispute regarding the Tribunal's authority to make a guardianship order and the suitability of the proposed guardians. Additionally, there was significant family conflict over accommodation decisions, and the patient was removed from the hospital without authorisation, leading to significant bank withdrawals. The case was heard by the Tribunal, which was required to decide whether it had jurisdiction to make a guardianship order, to review an enduring power of attorney, and to make a financial management order.

The primary legal issues addressed by the Tribunal were the jurisdiction to make a guardianship order, the suitability of the proposed guardians, and the authority to review an enduring power of attorney and make a financial management order. The Tribunal found that it had jurisdiction to make a guardianship order for KNT, despite the patient being a resident of another state and having no property in New South Wales. The Tribunal also concluded that the Public Guardian was the most suitable guardian given the circumstances, including the significant family conflict and the patient's removal from the hospital without authorisation. However, the Tribunal did not have jurisdiction to review the enduring power of attorney or to make a financial management order, as these matters fell outside its authority.

In making its decision, the Tribunal considered the evidence presented and the relevant statutory provisions. The Tribunal noted that while the patient was a resident of another state, she was physically present in New South Wales and required care and support. The Tribunal found that the Public Guardian was the most suitable guardian due to the significant family conflict and the need for an independent decision-maker. The Tribunal also found that it did not have jurisdiction to review the enduring power of attorney or to make a financial management order, as these matters were outside its authority. Consequently, the application to review the enduring power of attorney and the application for financial management were dismissed. However, the Tribunal made a guardianship order for KNT, appointing the Public Guardian as the guardian with specific functions and conditions.

The final orders made by the Tribunal included dismissing the application to review the enduring power of attorney and the application for financial management due to lack of jurisdiction. The Tribunal made a guardianship order for KNT, appointing the Public Guardian as the guardian. This was a continuing guardianship order for a period of six months from 28 August 2020, with specific functions including deciding the patient's residence, authorising others to take the patient to an approved place, deciding on health care, making decisions about services, and obtaining and considering the patient's views before making significant decisions. The condition of the order required the guardian to take all reasonable steps to bring the patient to an understanding of the issues and to obtain and consider her views before making significant decisions.

Orders

Orders of the court

The application to review the enduring power of attorney made by KNT on 8 July 2017 is dismissed because the Tribunal has no jurisdiction.

The application for financial management is dismissed because the Tribunal has no jurisdiction.

1. A guardianship order is made for KNT.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of six months from 28 August 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where KNT may reside.

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

i) take KNT 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 KNT may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to KNT.

CONDITION:

6. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring KNT to an understanding of the issues and to obtain and consider her 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:	KNT [2020] NSWCATGD 93
Hearing dates:	28 August 2020
Date of orders:	28 August 2020
Decision date:	28 August 2020
Jurisdiction:	Guardianship Division
Before:	G Bartley, Senior Member (Legal) S Flanagan, Senior Member (Professional) M L Williams, General Member (Community)
Decision:	The application to review the enduring power of attorney made by KNT on 8 July 2017 is dismissed because the Tribunal has no jurisdiction. The application for financial management is dismissed because the Tribunal has no jurisdiction. 1. A guardianship order is made for KNT. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of six months from 28 August 2020. 4. This is a limited guardianship order giving the guardian custody of KNT to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where KNT may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take KNT 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 KNT may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where KNT is not capable of giving a valid consent. e) Services To make decisions about services to be provided to KNT. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring KNT to an understanding of the issues and to obtain and consider her views before making significant decisions.
Catchwords:	GUARDIANSHIP – application for a guardianship order – patient in NSW hospital – physically present in NSW but resident of another state – parties in different Australian states – jurisdiction to make a guardianship order – suitability of proposed guardians – significant family conflict – family dispute on accommodation decision– removed from hospital without authorisation – significant bank withdrawals – Public Guardian appointed. FINANCIAL MANAGEMENT – patient in NSW hospital – no property in NSW – resident of another state – no jurisdiction to make a financial management order – application dismissed. POWER OF ATTORNEY – patient in NSW hospital – instrument made in another state – resident of another state – no jurisdiction to review enduring power of attorney – application dismissed.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 6O(1), 14, 14(2), 15(3), 17(1); Pt 2 Powers of Attorney Act 2006 (ACT) Powers of Attorney Act 1998 (Qld) Powers of Attorney Act 2003 (NSW), ss 3, 19, 25(1)-(2), 25(5)
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 Jumbunna Coal Mine v Victorian Coal Miners’ Association (1908) HCA…