MZU - [2020] NSWCATGD 14

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MZU [2020] NSWCATGD 14
Hearing dates: 24 January 2020
Date of orders: 24 January 2020
Decision date: 24 January 2020
Jurisdiction: Guardianship Division
Before: B L Adamovich, Senior Member (Legal)
S E Taylor, Senior Member (Professional)
J L Newman, General Member (Community)
Decision:
Financial Management:

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

2. The management of the estate of MZU is committed to the NSW Trustee and Guardian.

Guardianship:

1. A guardianship order is made for MZU.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 24 January 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where MZU may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take MZU to a place approved by the guardian.

ii) keep him at that place.

iii) return him to that place should he leave it.

c) Health care

To decide what health care MZU may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to MZU.

CONDITION:

6. The condition of this order is:

a) Standard Condition
In exercising this role, the guardian shall take all reasonable steps to bring MZU to an understanding of the issues and to obtain and consider his views before making significant decisions.
Catchwords:
GUARDIANSHIP – application for a guardianship order – subject person an inpatient in hospital – subject person has cognitive impairment – whether a guardianship order should be made – need for decision in relation to accommodation upon discharge – subject person has a high absconding risk – subject person has a history of declining services – services cannot practicably be provided without an order – no private person available to be appointed – Public Guardian appointed – order made.
FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their own affairs – subject person has cognitive impairment – subject person unable to liaise with Centrelink – subject person gives money away without explicable reason – subject person would be unable to complete assets assessment form – need for permanent accommodation – subject person vulnerable to exploitation – best interests for an order to be made – no private financial manager proposed – NSW Trustee and Guardian appointed – order made.
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 9, 14, 14(2), 15(3), 25I, 25M
Health Services Act 1997 (NSW)
Cases Cited: CJ v AKJ [2015] NSWSC 498
IF v IG [2004]…

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 MZU

Details

AGLC: MZU [2020] NSWCATGD 14
Case: [2020] NSWCATGD 14
Decision Date: 24 January 2020

CaseChat Overview and Summary

The parties involved in this case were MZU, a person with cognitive impairment, and the Public Guardian, who was appointed to oversee MZU's care and financial management. The dispute centred around the necessity of a guardianship order for MZU due to their cognitive impairment, which impacted their ability to make decisions regarding their accommodation and financial affairs. The matter was heard in the New South Wales Supreme Court.

The legal issues that the court had to decide were whether MZU was incapable of managing their own affairs and if a guardianship order was necessary to ensure their safety and well-being. The court considered MZU's cognitive impairment, their history of declining services, and their high absconding risk, which made it difficult for services to be provided without an order. Furthermore, the court assessed whether there were any private individuals available to be appointed as the guardian or financial manager, but none were proposed.

The court found that MZU's cognitive impairment significantly affected their ability to make decisions about their accommodation and financial affairs. It was evident that services could not be provided without a guardianship order, and there was no private person available to be appointed. Consequently, the court appointed the Public Guardian as MZU's guardian and the NSW Trustee and Guardian as their financial manager. The guardianship order included specific functions, such as deciding on accommodation, providing health care, and making substitute decisions about medical or dental treatment. The order was made for a period of 12 months, with a condition that the guardian must take all reasonable steps to involve MZU in the decision-making process.

The court made the following orders: the estate of MZU was subject to management under the NSW Trustee and Guardian Act 2009, and the management of the estate was committed to the NSW Trustee and Guardian. A guardianship order was made for MZU, appointing the Public Guardian as their guardian for a period of 12 months. The guardian was given specific functions, including deciding on accommodation, providing health care, and making substitute decisions about medical or dental treatment. The guardian was also authorised to take all reasonable steps to involve MZU in the decision-making process.

Orders

Orders of the court

Financial Management:

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

2. The management of the estate of MZU is committed to the NSW Trustee and Guardian.

Guardianship:

1. A guardianship order is made for MZU.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 24 January 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where MZU may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take MZU to a place approved by the guardian.

ii) keep him at that place.

iii) return him to that place should he leave it.

c) Health care

To decide what health care MZU may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to MZU.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

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:	MZU [2020] NSWCATGD 14
Hearing dates:	24 January 2020
Date of orders:	24 January 2020
Decision date:	24 January 2020
Jurisdiction:	Guardianship Division
Before:	B L Adamovich, Senior Member (Legal) S E Taylor, Senior Member (Professional) J L Newman, General Member (Community)
Decision:	Financial Management: 1. The estate of MZU is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of MZU is committed to the NSW Trustee and Guardian. Guardianship: 1. A guardianship order is made for MZU. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 24 January 2020. 4. This is a limited guardianship order giving the guardian(s) custody of MZU to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where MZU may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take MZU to a place approved by the guardian. ii) keep him at that place. iii) return him to that place should he leave it. c) Health care To decide what health care MZU may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where MZU is not capable of giving a valid consent. e) Services To make decisions about services to be provided to MZU. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role, the guardian shall take all reasonable steps to bring MZU to an understanding of the issues and to obtain and consider his views before making significant decisions.
Catchwords:	GUARDIANSHIP – application for a guardianship order – subject person an inpatient in hospital – subject person has cognitive impairment – whether a guardianship order should be made – need for decision in relation to accommodation upon discharge – subject person has a high absconding risk – subject person has a history of declining services – services cannot practicably be provided without an order – no private person available to be appointed – Public Guardian appointed – order made. FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their own affairs – subject person has cognitive impairment – subject person unable to liaise with Centrelink – subject person gives money away without explicable reason – subject person would be unable to complete assets assessment form – need for permanent accommodation – subject person vulnerable to exploitation – best interests for an order to be made – no private financial manager proposed – NSW Trustee and Guardian appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 9, 14, 14(2), 15(3), 25I, 25M Health Services Act 1997 (NSW)
Cases Cited:	CJ v AKJ [2015] NSWSC 498 IF v IG [2004]…