KZD - [2020] NSWCATGD 18

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KZD [2020] NSWCATGD 18
Hearing dates: 14 February 2020
Date of orders: 14 February 2020
Decision date: 14 February 2020
Jurisdiction: Guardianship Division
Before: S Roushan, Senior Member (Legal)
Dr B Chenoweth, Senior Member (Professional)
T Grassi, General Member (Community)
Decision:
Guardianship
The guardianship order for KZD made on 20 December 2019 has been reviewed. The order now is as follows:
1. XEC of [Address removed for publication.] is appointed as the guardian.
2. This is a continuing guardianship order for a period of six months from 14 February 2020.
3. This is a limited guardianship order giving the guardian(s) custody of KZD to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
a) Accommodation
To decide where KZD may reside.
b) Health care
To decide what health care KZD may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where KZD is not capable of giving a valid consent.
CONDITION:
5. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring KZD to an understanding of the issues and to obtain and consider their views before making significant decisions.
Financial Management
1. The estate of KZD is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. XEC of [Address removed for publication.] is appointed as the financial manager of the estate.
NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.
3. This order be reviewed by the Tribunal within six months.

Catchwords:
GUARDIANSHIP – review of guardianship order – end-of-term review of guardianship order – whether a guardianship order needs to be made – subject person requires high level care – subject person exhibits exit seeking behaviour and wandering – need for accommodation decisions – subject person weaned from risperidone – need for medical and dental consent decisions – services function no longer needed – suitability of proposed guardian – proposed guardian demonstrates ability to prioritise subject person’s best interests – private guardian appointed – order made.
FINANCIAL MANAGEMENT – application for financial management order – withdrawal of application – whether tribunal should consent to withdrawal of application – enduring power of attorney ineffective – consent to withdrawal refused – need for decisions to be made to meet subject person’s accommodation costs – suitability of proposed financial manager – whether NSW Trustee and Guardian should be appointed – evidence of previous informal arrangements – private financial manager preferable to appointment of NSW Trustee and Guardian – private financial manager appointed – order made.

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), cl 10, Sch 6
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14
s 14(2), 15(3), 25M

Cases Cited:
C S and M…

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 KZD

Details

AGLC: KZD [2020] NSWCATGD 18
Case: [2020] NSWCATGD 18
Decision Date: 14 February 2020

CaseChat Overview and Summary

In the matter of KZD, the subject of a guardianship and financial management review, the New South Wales Civil and Administrative Tribunal (NCAT) has made a number of significant orders. The primary focus of the review was whether ongoing guardianship and financial management orders were necessary for KZD, who requires high-level care, exhibits exit-seeking behaviour, and has been weaned from certain medications. The Tribunal also considered the suitability of the proposed guardians and financial managers.

The legal issues before the Tribunal included whether KZD still required a guardianship order due to her need for high-level care, exit-seeking behaviour, and wandering, and the necessity for decisions regarding her accommodation and health care, including medical and dental consent. Additionally, the Tribunal examined whether the application for a financial management order should be withdrawn, and if so, who should be appointed as the financial manager.

The Tribunal concluded that KZD still required a guardianship order, primarily for the functions related to accommodation and health care. The Tribunal found that the proposed guardian, XEC, was suitable to act in this capacity, as they demonstrated an ability to prioritise KZD's best interests. The Tribunal refused the withdrawal of the financial management application, considering it necessary to appoint a financial manager to meet KZD's accommodation costs. The Tribunal preferred the appointment of a private financial manager over the NSW Trustee and Guardian, based on previous informal arrangements and the specific circumstances of the case.

The final orders made by the Tribunal included appointing XEC as the guardian for a period of six months, with specific functions related to accommodation and health care. The Tribunal also appointed XEC as the financial manager, subject to certain conditions and the need to obtain necessary authorities from the NSW Trustee and Guardian. The Tribunal directed that the guardianship order be reviewed within six months.

Orders

Orders of the court

Guardianship

The guardianship order for KZD made on 20 December 2019 has been reviewed. The order now is as follows:

1. XEC of [Address removed for publication.] is appointed as the guardian.

2. This is a continuing guardianship order for a period of six months from 14 February 2020.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where KZD may reside.

b) Health care

To decide what health care KZD may receive.

c) Medical/Dental consent

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

CONDITION:

5. The condition of this order is:

a) Standard Condition

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

Financial Management

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

2. XEC of [Address removed for publication.] is appointed as the financial manager of the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.

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

Background

Background to the litigation

Full text does not contain this section.

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:	KZD [2020] NSWCATGD 18
Hearing dates:	14 February 2020
Date of orders:	14 February 2020
Decision date:	14 February 2020
Jurisdiction:	Guardianship Division
Before:	S Roushan, Senior Member (Legal) Dr B Chenoweth, Senior Member (Professional) T Grassi, General Member (Community)
Decision:	Guardianship The guardianship order for KZD made on 20 December 2019 has been reviewed. The order now is as follows: 1. XEC of [Address removed for publication.] is appointed as the guardian. 2. This is a continuing guardianship order for a period of six months from 14 February 2020. 3. This is a limited guardianship order giving the guardian(s) custody of KZD to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Accommodation To decide where KZD may reside. b) Health care To decide what health care KZD may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where KZD is not capable of giving a valid consent. CONDITION: 5. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring KZD to an understanding of the issues and to obtain and consider their views before making significant decisions. Financial Management 1. The estate of KZD is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. XEC of [Address removed for publication.] is appointed as the financial manager of the estate. NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian. 3. This order be reviewed by the Tribunal within six months.
Catchwords:	GUARDIANSHIP – review of guardianship order – end-of-term review of guardianship order – whether a guardianship order needs to be made – subject person requires high level care – subject person exhibits exit seeking behaviour and wandering – need for accommodation decisions – subject person weaned from risperidone – need for medical and dental consent decisions – services function no longer needed – suitability of proposed guardian – proposed guardian demonstrates ability to prioritise subject person’s best interests – private guardian appointed – order made. FINANCIAL MANAGEMENT – application for financial management order – withdrawal of application – whether tribunal should consent to withdrawal of application – enduring power of attorney ineffective – consent to withdrawal refused – need for decisions to be made to meet subject person’s accommodation costs – suitability of proposed financial manager – whether NSW Trustee and Guardian should be appointed – evidence of previous informal arrangements – private financial manager preferable to appointment of NSW Trustee and Guardian – private financial manager appointed – order made.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), cl 10, Sch 6 Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14 s 14(2), 15(3), 25M
Cases Cited:	C S and M…