MKT - [2016] NSWCATGD 37

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MKT [2016] NSWCATGD 37
Hearing dates: 10 November 2016
Date of orders: 10 November 2016
Decision date: 10 November 2016
Jurisdiction: Guardianship Division
Before: J Simpson, Senior Member (Legal)
H Creasey, Senior Member (Professional)
P Foreman, General Member (Community)
Decision:
Enduring guardian appointment revoked.

Enduring power of attorney appointment revoked.

Application for guardianship order dismissed.
Limited financial management order made for a period of 12 months; NSW Trustee and Guardian appointed.
Catchwords:
REVIEW OF ENDURING GUARDIANSHIP – application to review enduring guardianship appointment – enduring guardian sought revocation – best interests of the person served by revocation – appointment revoked

REVIEW OF ENDURING POWER OF ATTORNEY – application to review enduring power of attorney appointment – appointment revoked

GUARDIANSHIP – consideration of need for an order where person has HIV – consideration that orders can be made under the Public Health Act 2010 (NSW) where the person is a risk to public health – consideration of where person has support to make decisions – application for guardianship order dismissed
FINANCIAL MANAGEMENT – enduring power of attorney revoked – need for financial management order – incapability to manage affairs due to cognitive impairment – best interests as accommodation and financial decisions required – NSW Trustee and Guardian appointed and given directions – order to be reviewed in 12 months
Legislation Cited: Guardianship Act 1987 (NSW), ss 4, 14(2)
Public Health Act 2010 (NSW), Pt 4 Div 4, ss 62 – 64, and 70; 79
Cases Cited: IF v IG [2004] NSWADTAP 3
P v NSW Trustee and Guardian [2015] NSWSC 579
Re X [2016] NSWSC 275
Category: Principal judgment
Parties: Mr MKT (subject person)
Mrs TBE (applicant)
Mr GUD (enduring guardian and attorney)
The NSW Public Guardian
The NSW Trustee and Guardian
Representation: NIL

File Number(s): 63197
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

What the Tribunal decided

The Tribunal revoked the appointment of enduring guardian and the enduring power of attorney made by Mr MKT appointing Mr GUD.
The Tribunal dismissed the application for a guardianship order.
The Tribunal appointed the NSW Trustee and Guardian as financial manager for Mr MKT with the order to be reviewed in one year. The Tribunal notes to the NSW Trustee and Guardian its recommendation at the end of these reasons.

Background

Mr MKT is a 65-year-old man who currently lives at an aged care facility in Regional NSW. In 2008, Mr MKT appointed his friend Mr GUD as enduring guardian and attorney. Mr MKT subsequently was diagnosed HIV-positive with a major decline in his physical and cognitive status. In 2014, he went to live at the aged care facility. With treatment, his condition has improved considerably but there was now contention about a range of issues in…

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 MKT

Details

AGLC: MKT [2016] NSWCATGD 37
Case: [2016] NSWCATGD 37
Decision Date: 10 November 2016

CaseChat Overview and Summary

In the matter of MKT, the Court addressed several applications concerning the enduring guardianship and enduring power of attorney of an individual with cognitive impairment and HIV. The primary issue was whether the enduring guardian and enduring power of attorney should be revoked, and whether a guardianship order was necessary given the individual's support system and the risk to public health. Additionally, the court considered whether a financial management order was appropriate due to the individual's incapability to manage their affairs.

The court had to determine whether revoking the enduring guardianship and enduring power of attorney appointments was in the best interests of the individual. This involved weighing the benefits of revocation against the potential risks and the individual's existing support structure. The court also had to assess whether a guardianship order was necessary, considering the individual's support network and the applicability of the Public Health Act 2010 (NSW). Furthermore, the court needed to decide if a financial management order was warranted due to the individual's cognitive impairment and the necessity to make accommodation and financial decisions in their best interests.

Upon reviewing the evidence, the court found that revoking the enduring guardianship and enduring power of attorney appointments was in the individual's best interests. The court also determined that a guardianship order was unnecessary because the individual had adequate support to make decisions and because the Public Health Act provided sufficient measures to address any risk to public health. However, the court found that the individual's cognitive impairment rendered them incapable of managing their financial affairs. Therefore, a limited financial management order was made for a period of 12 months, with the NSW Trustee and Guardian appointed to manage the individual's finances.

The court's final orders were that the enduring guardian appointment be revoked, the enduring power of attorney appointment be revoked, the application for a guardianship order be dismissed, and a limited financial management order be made for a period of 12 months with the NSW Trustee and Guardian appointed. The order is to be reviewed in 12 months.

Orders

Orders of the court

Enduring guardian appointment revoked.

Enduring power of attorney appointment revoked.

Application for guardianship order dismissed.

Limited financial management order made for a period of 12 months; NSW Trustee and Guardian appointed.

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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Medium Neutral Citation:	MKT [2016] NSWCATGD 37
Hearing dates:	10 November 2016
Date of orders:	10 November 2016
Decision date:	10 November 2016
Jurisdiction:	Guardianship Division
Before:	J Simpson, Senior Member (Legal) H Creasey, Senior Member (Professional) P Foreman, General Member (Community)
Decision:	Enduring guardian appointment revoked. Enduring power of attorney appointment revoked. Application for guardianship order dismissed. Limited financial management order made for a period of 12 months; NSW Trustee and Guardian appointed.
Catchwords:	REVIEW OF ENDURING GUARDIANSHIP – application to review enduring guardianship appointment – enduring guardian sought revocation – best interests of the person served by revocation – appointment revoked REVIEW OF ENDURING POWER OF ATTORNEY – application to review enduring power of attorney appointment – appointment revoked GUARDIANSHIP – consideration of need for an order where person has HIV – consideration that orders can be made under the Public Health Act 2010 (NSW) where the person is a risk to public health – consideration of where person has support to make decisions – application for guardianship order dismissed FINANCIAL MANAGEMENT – enduring power of attorney revoked – need for financial management order – incapability to manage affairs due to cognitive impairment – best interests as accommodation and financial decisions required – NSW Trustee and Guardian appointed and given directions – order to be reviewed in 12 months
Legislation Cited:	Guardianship Act 1987 (NSW), ss 4, 14(2) Public Health Act 2010 (NSW), Pt 4 Div 4, ss 62 – 64, and 70; 79
Cases Cited:	IF v IG [2004] NSWADTAP 3 P v NSW Trustee and Guardian [2015] NSWSC 579 Re X [2016] NSWSC 275
Category:	Principal judgment
Parties:	Mr MKT (subject person) Mrs TBE (applicant) Mr GUD (enduring guardian and attorney) The NSW Public Guardian The NSW Trustee and Guardian
Representation:	NIL
File Number(s):	63197
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).