MGC - [2023] NSWCATGD 12

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MGC [2023] NSWCATGD 12
Hearing dates: 3 May 2023
Date of orders: 3 May 2023
Decision date: 03 May 2023
Jurisdiction: Guardianship Division
Before: S Barnes, Senior Member (Legal)
M Ellensohn, Senior Member (Professional)
F N Given, General Member (Community)
Decision:
Guardianship
1. A guardianship order is made for MGC.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of six months from 3 May 2023.
4. This is a limited guardianship order giving the guardian(s) custody of MGC to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where MGC may reside.
b) Health care
To decide what health care MGC may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where MGC is not capable of giving a valid consent.
d) Services
To make decisions about services to be provided to MGC.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring MGC to an understanding of the issues and to obtain and consider her views before making significant decisions.
Financial Management
Today’s hearing of NZT’s financial management application is adjourned to a day to be confirmed by the registry.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – 52-year-old subject person with intellectual and physical disabilities – subject person a long-term resident in an aged care facility – NDIS participant – limited contact with family members – concerns about high level of neglect – reported use of psychotropic medication by the aged care facility without informed consent – need for accommodation decisions – need for decisions to be made about NDIS funded services – need for decisions in relation to medical and dental consent – proposed private guardian not suitable to be appointed – Public Guardian appointed – order made
FINANCIAL MANAGEMENT – application for a financial management order – consideration of sections 36 and 38 of the Civil and Administrative Tribunal Act 2013 – consideration of s 4 of the Guardianship Act 1987 – hearing adjourned

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 38(5)-(6), 51
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(1)-(2), 15(3), 17, 17(1)(a)-(c)

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
P v D1 & Ors [2011] NSWSC 257
Re B [2011] NSWSC 1075

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Guardianship Application

MGC (the person)
NZT (applicant)
KAC (carer)
OYC (joined party)
Public Guardian

003: Financial Management Application

MGC (the person)
NZT (applicant)
KAC (carer)
OYC (joined party)
NSW Trustee and Guardian

004: Financial Management Application

MGC (the person)
OYC (applicant)
KAC (carer)
NSW Trustee and 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 MGC

Details

AGLC: MGC [2023] NSWCATGD 12
Case: [2023] NSWCATGD 12
Decision Date: 03 May 2023

CaseChat Overview and Summary

In the case, MGC, the court was presented with an application for a guardianship order concerning a 52-year-old individual with intellectual and physical disabilities. The subject person, a long-term resident in an aged care facility and an NDIS participant, had limited contact with family members. Concerns arose regarding a high level of neglect, including the reported use of psychotropic medication without informed consent. The need for decisions about accommodation, NDIS-funded services, and medical and dental consent necessitated the appointment of a guardian. The proposed private guardian was deemed unsuitable, leading to the appointment of the Public Guardian.

The legal issues before the court involved determining whether a guardianship order should be made for the subject person. The court had to consider the nature and extent of the guardianship required, including decisions about accommodation, health care, medical and dental consent, and services. Additionally, the court needed to assess the suitability of the proposed guardian. The court also had to consider an application for a financial management order, examining sections 36 and 38 of the Civil and Administrative Tribunal Act 2013 and section 4 of the Guardianship Act 1987. The hearing for the financial management application was adjourned.

The court found that a guardianship order was necessary to address the significant needs of the subject person. Given the concerns about neglect and the need for informed consent in medical and dental decisions, the court appointed the Public Guardian as the guardian. The order included specific functions such as deciding on accommodation, health care, and medical and dental consent. The court also imposed a condition requiring the guardian to take reasonable steps to involve the subject person in decision-making processes. Regarding the financial management application, the hearing was adjourned to a later date to be confirmed by the registry.

Orders

Orders of the court

Guardianship

1. A guardianship order is made for MGC.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of six months from 3 May 2023.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where MGC may reside.

b) Health care

To decide what health care MGC may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to MGC.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management

Today’s hearing of NZT’s financial management application is adjourned to a day to be confirmed by the registry.

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:	MGC [2023] NSWCATGD 12
Hearing dates:	3 May 2023
Date of orders:	3 May 2023
Decision date:	03 May 2023
Jurisdiction:	Guardianship Division
Before:	S Barnes, Senior Member (Legal) M Ellensohn, Senior Member (Professional) F N Given, General Member (Community)
Decision:	Guardianship 1. A guardianship order is made for MGC. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of six months from 3 May 2023. 4. This is a limited guardianship order giving the guardian(s) custody of MGC to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where MGC may reside. b) Health care To decide what health care MGC may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where MGC is not capable of giving a valid consent. d) Services To make decisions about services to be provided to MGC. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring MGC to an understanding of the issues and to obtain and consider her views before making significant decisions. Financial Management Today’s hearing of NZT’s financial management application is adjourned to a day to be confirmed by the registry.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – 52-year-old subject person with intellectual and physical disabilities – subject person a long-term resident in an aged care facility – NDIS participant – limited contact with family members – concerns about high level of neglect – reported use of psychotropic medication by the aged care facility without informed consent – need for accommodation decisions – need for decisions to be made about NDIS funded services – need for decisions in relation to medical and dental consent – proposed private guardian not suitable to be appointed – Public Guardian appointed – order made FINANCIAL MANAGEMENT – application for a financial management order – consideration of sections 36 and 38 of the Civil and Administrative Tribunal Act 2013 – consideration of s 4 of the Guardianship Act 1987 – hearing adjourned
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 38(5)-(6), 51 Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(1)-(2), 15(3), 17, 17(1)(a)-(c)
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) P v D1 & Ors [2011] NSWSC 257 Re B [2011] NSWSC 1075
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Guardianship Application MGC (the person) NZT (applicant) KAC (carer) OYC (joined party) Public Guardian 003: Financial Management Application MGC (the person) NZT (applicant) KAC (carer) OYC (joined party) NSW Trustee and Guardian 004: Financial Management Application MGC (the person) OYC (applicant) KAC (carer) NSW Trustee and Guardian