NAD - [2018] NSWCATGD 1

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NAD [2018] NSWCATGD 1
Hearing dates: 20 October 2017
Date of orders: 02 January 2018
Decision date: 02 January 2018
Jurisdiction: Guardianship Division
Before: C P Fougere, Principal Member
Dr M J Wroth, Senior Member (Professional)
Dr M Spencer, General Member (Community)
Decision:
A guardianship order is made for Mrs NAD appointing the Public Guardian for 12 months with the functions of access and services.
A financial management order is made for Mrs NAD committing the management of her estate to the NSW Trustee and Guardian.
Catchwords:
GUARDIANSHIP – application for guardianship order –significant cognitive impairment – contact between person and family members prevented by son/carer – application of section 4 principles – preserving family relationships – protection from abuse – Australian Law Reform Commission, Elder Abuse: A National Legal Response – psychological or social abuse – Public Guardian appointed
FINANCIAL MANAGEMENT – application for financial management order – financial exploitation – conflict of interest between financial interests of person and son/carer – NSW Trustee and Guardian appointed
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(2), 4, 4(a)-(c), 4(e)-(g),14, 14(2), 15(3), 16(3), 17(1), 17(1)(c), 25M
Cases Cited: AMAM; Re SAM [2011] NSWSC 503
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
IF v IG [2004] NSWADTAP 3
M v M [2013] NSWSC 1495
P v D1 & Ors [2011] NSWSC 257
P v NSW Trustee and Guardian [2015] NSWSC 579
P9/2000 [2011] NSWSC 49
Re B [2011] NSWSC 1075
Texts Cited: Australian Government, Australian Law Reform Commission, Elder Abuse – A National Legal Response (ALRC Report 131), (14 June 2017) at [2.4.9]
Category: Principal judgment
Parties: Mrs NAD (subject of the application)
Mr NZP (carer)
Mrs MAV (applicant)
The NSW Trustee and Guardian
The Public Guardian
Representation: Mr M Adam (separate representative for Mrs NAD)

File Number(s): NCAT 2017/00196666
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

On 20 October 2017, we reserved our decision in respect of applications made by Mrs MAV for the appointment of a guardian and financial manager for her mother, Mrs NAD.
On 2 January 2018, we made a guardianship order for Mrs NAD appointing the Public Guardian for 12 months as Mrs NAD’s guardian with the functions of access and services. This order will be reviewed in 12 months.
On 2 January 2018, we also made a financial management order for Mrs NAD committing the management of her estate to the NSW Trustee and Guardian.
These are our reasons for the orders made.

Background

Mrs NAD is an 84-year-old woman of Turkish heritage who has lived with her son and carer, Mr NZP, in a…

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 NAD

Details

AGLC: NAD [2018] NSWCATGD 1
Case: [2018] NSWCATGD 1
Decision Date: 02 January 2018

CaseChat Overview and Summary

The case involves Mrs NAD, an elderly woman with significant cognitive impairment, and her son, who is also her carer. The primary dispute concerns the son's alleged abuse and exploitation of Mrs NAD. The matter was heard in the Supreme Court of New South Wales. Mrs NAD's family brought an application for a guardianship order to protect her from her son's abuse and to preserve her family relationships. They also sought a financial management order due to concerns about financial exploitation.

The court had to determine whether a guardianship order should be granted under the Guardianship Act 1987 (NSW), focusing on the principles outlined in section 4, particularly preserving family relationships and protecting Mrs NAD from abuse. Additionally, the court considered whether a financial management order was warranted to safeguard Mrs NAD's estate from financial exploitation by her son, who had a conflict of interest due to his role as her carer.

The court found that Mrs NAD's son had indeed prevented contact between her and her family members, constituting psychological abuse. Furthermore, there was evidence of financial exploitation by the son. Applying the principles of section 4 of the Guardianship Act, the court concluded that appointing a guardian was necessary to protect Mrs NAD from her son's abuse and to preserve her family relationships. The court appointed the Public Guardian for a period of 12 months with specific functions related to access and services. For financial management, the court appointed the NSW Trustee and Guardian to handle Mrs NAD's estate to prevent further exploitation.

The final orders included a guardianship order appointing the Public Guardian for Mrs NAD for a period of 12 months, with functions limited to access and services. Additionally, a financial management order was made, committing the management of Mrs NAD's estate to the NSW Trustee and Guardian.

Orders

Orders of the court

A guardianship order is made for Mrs NAD appointing the Public Guardian for 12 months with the functions of access and services.

A financial management order is made for Mrs NAD committing the management of her estate to the NSW Trustee and Guardian.

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:	NAD [2018] NSWCATGD 1
Hearing dates:	20 October 2017
Date of orders:	02 January 2018
Decision date:	02 January 2018
Jurisdiction:	Guardianship Division
Before:	C P Fougere, Principal Member Dr M J Wroth, Senior Member (Professional) Dr M Spencer, General Member (Community)
Decision:	A guardianship order is made for Mrs NAD appointing the Public Guardian for 12 months with the functions of access and services. A financial management order is made for Mrs NAD committing the management of her estate to the NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – application for guardianship order –significant cognitive impairment – contact between person and family members prevented by son/carer – application of section 4 principles – preserving family relationships – protection from abuse – Australian Law Reform Commission, Elder Abuse: A National Legal Response – psychological or social abuse – Public Guardian appointed FINANCIAL MANAGEMENT – application for financial management order – financial exploitation – conflict of interest between financial interests of person and son/carer – NSW Trustee and Guardian appointed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(2), 4, 4(a)-(c), 4(e)-(g),14, 14(2), 15(3), 16(3), 17(1), 17(1)(c), 25M
Cases Cited:	AMAM; Re SAM [2011] NSWSC 503 C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 IF v IG [2004] NSWADTAP 3 M v M [2013] NSWSC 1495 P v D1 & Ors [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 P9/2000 [2011] NSWSC 49 Re B [2011] NSWSC 1075
Texts Cited:	Australian Government, Australian Law Reform Commission, Elder Abuse – A National Legal Response (ALRC Report 131), (14 June 2017) at [2.4.9]
Category:	Principal judgment
Parties:	Mrs NAD (subject of the application) Mr NZP (carer) Mrs MAV (applicant) The NSW Trustee and Guardian The Public Guardian
Representation:	Mr M Adam (separate representative for Mrs NAD)
File Number(s):	NCAT 2017/00196666
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)).