NDH - [2017] NSWCATGD 12

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NDH [2017] NSWCATGD 12
Hearing dates: 23 February 2017
Date of orders: 23 February 2017
Decision date: 23 February 2017
Jurisdiction: Guardianship Division
Before: R Booby, Senior Member (Legal)
M Staples, Senior Member (Professional)
Belinda Epstein-Frisch, General Member (Community)
Decision:
Guardianship
1. The application by Mr QAH for a guardianship order to be made for Mr NDH is dismissed.

Financial management
1. The estate of Mr NDH is subject to management under the NSW Trustee and Guardian Act 2009.
2. Mr QAH is appointed as the financial manager of the estate.
Catchwords:
GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – nominee provisions – NDIS plan approved – nominee appointment should be pursued if needed – no need for an order – application dismissed
FINANCIAL MANAGEMENT – application for financial management order – National Disability Insurance Scheme – need for an order – private financial manager appointed
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 25M
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 5, 6, 17A(1), 17A(2), 17A(3), 18, 31, 32, 33, 33(2), 42(2), 78(1), 78(5), 80, 81, 82, 87, 86(1), 86(6), 88(1), 88(2), 88(4)
NDIS (Becoming a Participant) Rules 2016 (Cth), r 2.1
National Disability Insurance Scheme (Nominees) Rules 2013 (Cth), rr 3.4,3.9, 3.14, 5.8, 5.9, 5.10, 5.12
Cases Cited: Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
IF v IG [2004] NSWADTAP 3
KCG [2014] NSWCATGD 7
P v NSW Trustee and Guardian [2015] NSWSC 579
Category: Principal judgment
Parties: Mr NDH (subject person)
Mr QAH (brother and applicant)
The NSW Trustee and Guardian
The NSW Public Guardian
File Number(s): 64781
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 dismissed the application for guardianship in relation to Mr NDH made by Mr QAH.
The Tribunal appointed Mr QAH as Mr NDH's financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian.

Background

Mr NDH is 64 years old and resides at an aged care facility in regional NSW.
On 25 January 2017, the Tribunal received an application from Mr NDH’s brother, Mr QAH, seeking the appointment of a guardian and a financial manager for Mr NDH.

The hearing

At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]
Mr NDH did not participate in the hearing. Ms Z, the manager at the aged care facility, said that Mr NDH has a profound disability and is deaf and would become distressed if required to attempt to participate in the hearing, which he would not understand.
The Tribunal must ensure that it conducts its hearings…

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 NDH

Details

AGLC: NDH [2017] NSWCATGD 12
Case: [2017] NSWCATGD 12
Decision Date: 23 February 2017

CaseChat Overview and Summary

In the case concerning Mr NDH, Mr QAH applied for a guardianship order to manage Mr NDH's personal affairs and a financial management order to oversee his financial matters. Mr QAH cited the need for such orders due to Mr NDH's disability, which affects his capacity to manage his affairs. The court, recognising the context of the National Disability Insurance Scheme (NDIS) and its implications, had to determine whether such orders were necessary for Mr NDH's welfare and financial stability.

The legal issues at hand involved discerning whether Mr NDH required a guardianship order, considering the approved NDIS plan which suggested pursuing a nominee appointment if necessary. Additionally, the court needed to assess if a financial management order was essential given the existing arrangements under the NDIS and the appointment of a private financial manager. The court evaluated the necessity and appropriateness of the proposed orders in light of the existing support structures and Mr NDH's current circumstances.

Upon examining the evidence, the court concluded that a guardianship order was not required as the nominee provisions under the NDIS plan were sufficient. Mr QAH's role in managing Mr NDH's financial matters, as a private financial manager, indicated that additional legal oversight was unnecessary. Consequently, the application for a guardianship order was dismissed, while the financial management order was granted, appointing Mr QAH as the financial manager of Mr NDH's estate under the NSW Trustee and Guardian Act 2009.

The final orders reflect the court's decision to dismiss the guardianship application while affirming Mr QAH's appointment as the financial manager. This decision acknowledges the existing support mechanisms while ensuring that Mr NDH's financial affairs are managed under the appropriate legal framework.

Orders

Orders of the court

Guardianship

1. The application by Mr QAH for a guardianship order to be made for Mr NDH is dismissed.

Financial management

1. The estate of Mr NDH is subject to management under the NSW Trustee and Guardian Act 2009.

2. Mr QAH is appointed as the financial manager of the estate.

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:	NDH [2017] NSWCATGD 12
Hearing dates:	23 February 2017
Date of orders:	23 February 2017
Decision date:	23 February 2017
Jurisdiction:	Guardianship Division
Before:	R Booby, Senior Member (Legal) M Staples, Senior Member (Professional) Belinda Epstein-Frisch, General Member (Community)
Decision:	Guardianship 1. The application by Mr QAH for a guardianship order to be made for Mr NDH is dismissed. Financial management 1. The estate of Mr NDH is subject to management under the NSW Trustee and Guardian Act 2009. 2. Mr QAH is appointed as the financial manager of the estate.
Catchwords:	GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – nominee provisions – NDIS plan approved – nominee appointment should be pursued if needed – no need for an order – application dismissed FINANCIAL MANAGEMENT – application for financial management order – National Disability Insurance Scheme – need for an order – private financial manager appointed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 25M National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 5, 6, 17A(1), 17A(2), 17A(3), 18, 31, 32, 33, 33(2), 42(2), 78(1), 78(5), 80, 81, 82, 87, 86(1), 86(6), 88(1), 88(2), 88(4) NDIS (Becoming a Participant) Rules 2016 (Cth), r 2.1 National Disability Insurance Scheme (Nominees) Rules 2013 (Cth), rr 3.4,3.9, 3.14, 5.8, 5.9, 5.10, 5.12
Cases Cited:	Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 IF v IG [2004] NSWADTAP 3 KCG [2014] NSWCATGD 7 P v NSW Trustee and Guardian [2015] NSWSC 579
Category:	Principal judgment
Parties:	Mr NDH (subject person) Mr QAH (brother and applicant) The NSW Trustee and Guardian The NSW Public Guardian
File Number(s):	64781
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)).