MZI - [2020] NSWCATGD 75

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MZI [2020] NSWCATGD 75
Hearing dates: 13 August 2020
Date of orders: 13 August 2020
Decision date: 13 August 2020
Jurisdiction: Guardianship Division
Before: V Massey, Senior Member (Legal)
J McAuliffe, Senior Member (Professional)
A D Wannan, General Member (Community)
Decision:
1. The estate of MZI is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. BAI, 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. That this order be reviewed within four months from today.

Catchwords:
FINANCIAL MANAGEMENT – application for a financial management order – urgent application – subject person in respite care at nursing home – outstanding nursing home and pharmacy fees – unable to recall bank account – financial implications of relocation – suitability of proposed private manager – least restrictive option – spouse appointed as financial manager
INTERLOCUTORY – standing – whether a Local Health District has standing to bring an application for a financial management order – “genuine concern for the welfare of the person” – standing established

Legislation Cited:
Guardianship Act 1987 (NSW), ss 4, 25I(1)(b), 25M

Cases Cited:
Application by AMAM; Re SAM [2011] NSWSC 503
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
McD v McD (1983) 3 NSWLR 81
NEJ [2017] NSWCATGD 1
P v NSW Trustee and Guardian [2015] NSWSC 579
P v R [2003] NSWSC 819
PB v BB [2013] NSWSC 1223
Re D [2012] NSWSC 1006
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106

Texts Cited:
Nil

Category: Principal judgment
Parties:
002: Financial Management Application
MZI (the person)
Illawarra Shoalhaven Local Health District (applicant)
NSW Trustee and Guardian
BAI (spouse)
Representation: L Knapp, Legal Representative for BAI
L Turnbull, Separate Representative for MZI

File Number(s): NCAT 2020/00145254
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

FINANCIAL MANAGEMENT APPLICATION

What the Tribunal decided

The Tribunal appointed BAI as MZI’s financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian.
This order is to be reviewed within four months.

Background

MZI is a 78-year-old married woman who was, at the date of the hearing, on respite care at a nursing home in regional NSW, where she has been living since 15 June 2020. MZI’s husband is BAI.
MZI does not have any children. BAI has a daughter and son, both of whom live in Sydney.
MZI is diagnosed with mixed dementia, vascular and Alzheimer’s.
MZI was living with her husband in regional NSW prior to her admission to a public hospital…

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 MZI

Details

AGLC: MZI [2020] NSWCATGD 75
Case: [2020] NSWCATGD 75
Decision Date: 13 August 2020

CaseChat Overview and Summary

The matter before the court was an urgent application for a financial management order concerning the estate of MZI, a subject person in respite care at a nursing home, with outstanding fees to the nursing home and pharmacy. The application was brought by a Local Health District, which sought to be appointed as the financial manager due to concerns about the subject person's ability to manage their finances. The subject person was unable to recall their bank account details, and there were financial implications associated with a potential relocation. The court also considered the suitability of a proposed private manager.

The primary legal issue was whether the Local Health District had standing to bring the application for a financial management order, given that they had a genuine concern for the welfare of the subject person. The court examined the criteria for establishing standing, including the relationship between the applicant and the subject person, and the urgency of the situation. The court concluded that the Local Health District had established the necessary standing.

The court reasoned that the Local Health District had a genuine concern for the welfare of the subject person, as evidenced by their involvement in the subject person's care and their efforts to address the outstanding fees. The court found that the application was urgent, as the subject person's inability to recall their bank account details and the potential financial implications of relocation necessitated immediate action. The court also considered the suitability of the proposed private manager, but ultimately determined that appointing the subject person's spouse as the financial manager was the least restrictive option. The court appointed BAI as the financial manager, subject to obtaining necessary authorities from the NSW Trustee and Guardian.

The final orders were that the estate of MZI was subject to management under the NSW Trustee and Guardian Act 2009, and that BAI was appointed as the financial manager of the estate. The order was to be reviewed within four months.

Orders

Orders of the court

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

2. BAI, 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. That this order be reviewed within four months from today.

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

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Medium Neutral Citation:	MZI [2020] NSWCATGD 75
Hearing dates:	13 August 2020
Date of orders:	13 August 2020
Decision date:	13 August 2020
Jurisdiction:	Guardianship Division
Before:	V Massey, Senior Member (Legal) J McAuliffe, Senior Member (Professional) A D Wannan, General Member (Community)
Decision:	1. The estate of MZI is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. BAI, 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. That this order be reviewed within four months from today.
Catchwords:	FINANCIAL MANAGEMENT – application for a financial management order – urgent application – subject person in respite care at nursing home – outstanding nursing home and pharmacy fees – unable to recall bank account – financial implications of relocation – suitability of proposed private manager – least restrictive option – spouse appointed as financial manager INTERLOCUTORY – standing – whether a Local Health District has standing to bring an application for a financial management order – “genuine concern for the welfare of the person” – standing established
Legislation Cited:	Guardianship Act 1987 (NSW), ss 4, 25I(1)(b), 25M
Cases Cited:	Application by AMAM; Re SAM [2011] NSWSC 503 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 McD v McD (1983) 3 NSWLR 81 NEJ [2017] NSWCATGD 1 P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re D [2012] NSWSC 1006 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Texts Cited:	Nil
Category:	Principal judgment
Parties:	002: Financial Management Application MZI (the person) Illawarra Shoalhaven Local Health District (applicant) NSW Trustee and Guardian BAI (spouse)
Representation:	L Knapp, Legal Representative for BAI L Turnbull, Separate Representative for MZI
File Number(s):	NCAT 2020/00145254
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.