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 MemberDecision: 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 dismissedLegislation 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, unrepTexts 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 Guardian006: Guardianship Application
Mr KZT (the person)
Ms MAH (applicant)
Mr XYT (enduring guardian)
Public GuardianRepresentation: 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…
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- AGLC
- KZT [2018] NSWCATGD 12
- Case
- [2018] NSWCATGD 12
- Decision Date
CaseChat Overview and Summary
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
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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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