KZT

Case [2018] NSWCATGD 12 5 March 2018

No judgment structure available for this case.

Type to search within this case.

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KZT [2018] NSWCATGD 12
Hearing dates: 5 March 2018
Date of orders: 05 March 2018
Decision date: 05 March 2018
Jurisdiction: Guardianship Division
Before: A Britton, Principal Member
Dr C Pratten, Senior Member
Dr M A Smith OAM, General Member
Decision:
006: Guardianship Application

1. A guardianship order is made for Mr KZT.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of nine months from 6 March 2018.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where Mr KZT may reside.

b) Health care

To decide what health care Mr KZT may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to Mr KZT.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

001: Financial Management Application
The application for financial management orders is dismissed after hearing.
Catchwords:
GUARDIANSHIP – application for guardianship order – need for an order – limited contact between subject person and family members – obligations and suitability of person appointed as enduring guardian – Public Guardian appointed
FINANCIAL MANAGEMENT – application for financial management order – remitted from NCAT Internal Appeal – conflict between aged care facility and attorney appointed under enduring power of attorney – claims of financial exploitation and elder abuse regarding property transfer – Supreme Court of NSW consent orders – application dismissed
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 36(1), cl 5(1), Sch 6
Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14(1)-(2),15(3), 17, 25G, 25G(a)
Powers of Attorney Act 2003 (NSW), s 50(3)
Cases Cited: Holt v Protective Commissioner (1993) 31 NSWLR 227
M v M [2013] NSWSC 1495
P v NSW Trustee and Guardian [2015] NSWSC 579
ZGA v ZFZ [2017] NSWCATAP 231
Reasons for Decision, NCAT, R Bailey, S McSwiggan, and M Watson, 28 July 2017, unrep
Texts Cited: Justice Geoff Lindsay, Roles in Protective Management of Person and Property – Training Seminar, NSW Civil and Administrative Tribunal, 8 December 2017
Category: Principal judgment
Parties:
001: Financial Management Application

Mr KZT (the person)
Ms MAH (applicant)
Mr XYT (attorney)
Mrs LBT (attorney)
NSW Trustee and Guardian

006: Guardianship Application
Mr KZT (the person)
Ms MAH (applicant)
Mr XYT (enduring guardian)
Public Guardian
Representation: L Fisher, Guardian ad litem for Mr KZT
F Price (Ms MAH)
Mr XYT (in person)

File Number(s): 2017/00197008
Publication restriction: Decisions of the Guardianship Division of the Civil…

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 KZT

Details

AGLC: KZT [2018] NSWCATGD 12
Case: [2018] NSWCATGD 12
Decision Date: 05 March 2018

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the matter of KZT involved an application for both a guardianship and a financial management order. The dispute arose from the need to appoint a guardian for Mr KZT, who appeared to have limited contact with family members and required assistance in making decisions regarding his health and accommodation. Simultaneously, there was a conflict regarding the management of Mr KZT's finances, with allegations of financial exploitation and elder abuse involving his attorney and the aged care facility where he resided. The case was remitted from the NCAT Internal Appeal process, where consent orders had already been made in the Supreme Court of New South Wales.

The legal issues before the court included determining whether a guardianship order was necessary for Mr KZT and identifying a suitable person to act as his enduring guardian. Additionally, the court had to resolve the conflict regarding the financial management of Mr KZT's affairs, particularly in light of the allegations of financial exploitation and elder abuse. The court's task was to weigh the evidence and arguments presented by the parties and decide on the appropriate course of action regarding both guardianship and financial management.

The court concluded that a guardianship order was necessary for Mr KZT due to his limited contact with family members and the need for assistance in making health and accommodation decisions. The Public Guardian was appointed as the guardian, with specific functions outlined in the order, including decisions about Mr KZT's residence, health care, medical and dental treatment, and services. The court also determined that the application for a financial management order should be dismissed, finding that the existing arrangements and orders in the Supreme Court of New South Wales were sufficient to manage Mr KZT's financial affairs. The court emphasised the importance of ensuring that the guardian takes reasonable steps to involve Mr KZT in decision-making processes to the extent possible.

Orders

Orders of the court

006: Guardianship Application

1. A guardianship order is made for Mr KZT.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of nine months from 6 March 2018.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where Mr KZT may reside.

b) Health care

To decide what health care Mr KZT may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to Mr KZT.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

001: Financial Management Application

The application for financial management orders 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.

Actions

Citations

KZT [2018] NSWCATGD 12

Cases Citing This Decision

No citing cases yet.

Cases Cited

P v NSW Trustee and Guardian [2015] NSWSC 579
Citation 1 (Para 18)

…In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J commented at [308]–[309] on the meaning of the phrase “capable of managing those [the subject person’s] affairs” in s 25G(a) of the Act:…
CJ v AKJ [2015] NSWSC 498
Citation 2 (Para 38)

…e extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: CJ v AKJ [2015] NSWSC 498 at [38].…
M v M [2013] NSWSC 1495
Citation 3 (Para 25)

…In M v M [2013] NSWSC 1495 at [50], Lindsay J, after reviewing the authorities and the legislative developments that have taken place over the past two decades in relation to the management of protected estates, listed a series of non-exhaustive “guidelines” relevant to the appointment of a manager of a protected es…
JMK v RDC and PTO v WDO [2013] NSWSC 1362
Citation 4 (Para 60)

…seeks it, consents to it or acquiesces in it: JJK v APK (1986) Australian Torts Reports 80-042 at 67, 881 (first guideline); JMK v RDC and PTO v WDO [2013] NSWSC 1362 at [60]-[62]. The Court is bound to exercise an independent judgment because of the public interest element in the decision to be made and the possib…
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42
Citation 5

…e: Gell v Gell [2005] NSWSC 566; (2005) 63 NSWLR 547 at 553-554 [21]- [23]; Macedonian Orthodox Community Church St Petka Incorporated v Bishop Petar [2008] HCA 42; (2008) 237 CLR 66 at 93 [69]. (j) Tenthly, in deciding whether, when and on what terms a manager of a protected estate is to be allowed remuneration…
Gell v Gell [2005] NSWSC 566
Citation 6

…erally be regarded as a gratuitous one unless, by an order of the Court or by legislation, a special arrangement to the contrary is made: Gell v Gell [2005] NSWSC 566; (2005) 63 NSWLR 547 at 553-554 [21]- [23]; Macedonian Orthodox Community Church St Petka Incorporated v Bishop Petar [2008] HCA 42; (2008) 237 CLR 6…
Re McL [2001] NSWSC 280
Citation 7 (Para 11)

…Commission) to the development, and operation, of a plan for management of the protected person's estate: Re L [2000] NSWSC 721 at [11]-[12]; Re McL [2001] NSWSC 280 at [3]-[5]. (n) Fourteenthly, although disputes about the management of a protected estate may at times need to be determined in an adversarial setti…
Re L [2000] NSWSC 721
Citation 8 (Para 10)

…rt of the protected person's particular circumstances: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238C-239B, 240D, 241B-F and 243E-F; Re L [2000] NSWSC 721 at [10]. (e) Fifthly, in the choice of a manager consultation of the welfare and interests of a protected person may favour appointment of a member o…
Countess of Bective v Federal Commissioner of Taxation [1932] HCA 22
Citation 9

…st to the extent necessary to accommodate the protective purpose of the manager's appointment: Countess of Bective v Federal Commissioner of Taxation [1932] HCA 22; (1932) 47 CLR 417 at 420-423.…
ZGA v ZFZ [2017] NSWCATAP 231
Citation 10 (Para 3)

…ginal decision, set aside that decision and remitted the financial management application for determination with further relevant evidence: ZGA v ZFZ [2017] NSWCATAP 231.…
31 ER 1127 31 ER 1127
Citation 11

…o that effect must be driven by the perspective of the protected person, not the perspective of the manager: Fletcher, Ex parte (1801) 6 Ves Jun 427; 31 ER 1127; Re Walker (1848) 2 Phil 630; 41 ER 1087; Re Westbrooke (1848) 2 Phil 631; 41 ER 1087; G v B (Powell J, 27 May 1992) BC 9201855 at 13. (k) Eleventhly…
41 ER 1087 41 ER 1087
Citation 12

…ective of the protected person, not the perspective of the manager: Fletcher, Ex parte (1801) 6 Ves Jun 427; 31 ER 1127; Re Walker (1848) 2 Phil 630; 41 ER 1087; Re Westbrooke (1848) 2 Phil 631; 41 ER 1087; G v B (Powell J, 27 May 1992) BC 9201855 at 13. (k) Eleventhly, the primacy given to the protective pur…
Holt v Protective Commissioner 38 ER 774
Citation 13 (Para 26)

…likely to discharge the role of attorney in a manner which is in the interests of, and for the benefit of, his father: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238 and 241G. That transfer did not proceed because of the caveat placed by Service Provider XX on the RN property. According to Mr XYT, the trans…

Legislation Cited

Guardianship Act 1987 (NSW) 14(1), 3(1), 3(2), 4
5 mentions (from Para 1)
Civil and Administrative Tribunal Act 2013 (NSW) 36(1)
2 mentions (from Para 5)
Powers of Attorney Act 2003 (NSW) 50(3)
2 mentions (from Para 1)

Medium Neutral Citation:	KZT [2018] NSWCATGD 12
Hearing dates:	5 March 2018
Date of orders:	05 March 2018
Decision date:	05 March 2018
Jurisdiction:	Guardianship Division
Before:	A Britton, Principal Member Dr C Pratten, Senior Member Dr M A Smith OAM, General Member
Decision:	006: Guardianship Application 1. A guardianship order is made for Mr KZT. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of nine months from 6 March 2018. 4. This is a limited guardianship order giving the guardian(s) custody of Mr KZT to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where Mr KZT may reside. b) Health care To decide what health care Mr KZT may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where Mr KZT is not capable of giving a valid consent. d) Services To make decisions about services to be provided to Mr KZT. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring Mr KZT to an understanding of the issues and to obtain and consider his views before making significant decisions. 001: Financial Management Application The application for financial management orders is dismissed after hearing.
Catchwords:	GUARDIANSHIP – application for guardianship order – need for an order – limited contact between subject person and family members – obligations and suitability of person appointed as enduring guardian – Public Guardian appointed FINANCIAL MANAGEMENT – application for financial management order – remitted from NCAT Internal Appeal – conflict between aged care facility and attorney appointed under enduring power of attorney – claims of financial exploitation and elder abuse regarding property transfer – Supreme Court of NSW consent orders – application dismissed
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 36(1), cl 5(1), Sch 6 Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14(1)-(2),15(3), 17, 25G, 25G(a) Powers of Attorney Act 2003 (NSW), s 50(3)
Cases Cited:	Holt v Protective Commissioner (1993) 31 NSWLR 227 M v M [2013] NSWSC 1495 P v NSW Trustee and Guardian [2015] NSWSC 579 ZGA v ZFZ [2017] NSWCATAP 231 Reasons for Decision, NCAT, R Bailey, S McSwiggan, and M Watson, 28 July 2017, unrep
Texts Cited:	Justice Geoff Lindsay, Roles in Protective Management of Person and Property – Training Seminar, NSW Civil and Administrative Tribunal, 8 December 2017
Category:	Principal judgment
Parties:	001: Financial Management Application Mr KZT (the person) Ms MAH (applicant) Mr XYT (attorney) Mrs LBT (attorney) NSW Trustee and Guardian 006: Guardianship Application Mr KZT (the person) Ms MAH (applicant) Mr XYT (enduring guardian) Public Guardian
Representation:	L Fisher, Guardian ad litem for Mr KZT F Price (Ms MAH) Mr XYT (in person)
File Number(s):	2017/00197008
Publication restriction:	Decisions of the Guardianship Division of the Civil…