NFK - [2020] NSWCATGD 20

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NFK [2020] NSWCATGD 20
Hearing dates: 4 February 2020 (Guardianship)
18 March 2020 (Financial Management)
Date of orders: 4 February 2020 (Guardianship)
18 March 2020 (Financial Management)
Decision date: 18 March 2020
Jurisdiction: Guardianship Division
Before: J Moir, Senior Member (Legal)
F Duffy, Senior Member (Professional)
M Watson, General Member (Community) (Guardianship)
I Ferreira (Community) (Financial Management)
Decision:
Guardianship applications (4 February 2020)
1. A guardianship order is made for NFK.
2. MZT of [Address removed for publication.] is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 5 February 2020.
4. This is a limited guardianship order giving the guardian custody of NFK to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where NFK may reside.
b) Health care
To decide what health care NFK may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where NFK is not capable of giving a valid consent.
d) Services
To make decisions about services to be provided to NFK.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring NFK to an understanding of the issues and to obtain and consider her views before making significant decisions.
Financial Management applications (18 March 2020)
1. The estate of NFK is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. MZT 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 she has obtained all necessary authorities from the NSW Trustee and Guardian.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – practicability of services bring provided without a guardianship order - persistent family conflict – concerns about adequacy of care previously provided to the subject person – subject person recently receiving all necessary care – need for accommodation decisions – need for health care and services decisions – need for medical and dental consent decisions – suitability of proposed guardian – multiple proposed guardians – family conflict a significant impediment – private guardian appointed – order made.
FINANCIAL MANAGEMENT – application for a financial management order – whether there is a need for a financial management order – whether it is in subject person’s best interests that a financial management order be made – informal management adequate in the short term – possible need for decisions about the sale of property to pay for accommodation – matters unable to be managed informally – suitability of proposed financial manager – persistent family conflict – efficiency of appointing a the same person as guardian and financial manager – private financial manager appointed – order…

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 NFK

Details

AGLC: NFK [2020] NSWCATGD 20
Case: [2020] NSWCATGD 20
Decision Date: 18 March 2020

CaseChat Overview and Summary

In the matter of NFK, the court was presented with applications for guardianship and financial management orders. The subject of the applications, NFK, is a person who requires assistance in making decisions about their residence, health care, medical and dental consent, and services, as well as the management of their estate. The court had to determine whether such orders were necessary and who should be appointed to the roles of guardian and financial manager.

The primary legal issues involved assessing the necessity of guardianship and financial management orders, considering the practicability of providing services without such orders, the adequacy of care previously provided to NFK, and the impact of family conflict on the decision-making process. The court also had to decide on the suitability of the proposed guardians and financial managers and whether it was in NFK's best interests to have the same person appointed as both guardian and financial manager.

The court found that given the persistent family conflict and concerns about the adequacy of care previously provided, a guardianship order was necessary. The court considered it practicable to provide services without such an order, but the need for accommodation, health care, medical and dental consent, and services decisions, coupled with the family conflict, necessitated formal intervention. A private guardian, MZT, was appointed due to the family conflict being a significant impediment. Similarly, a financial management order was deemed necessary due to the potential need to manage the estate, including the possible sale of property for accommodation, and the persistence of family conflict. MZT was also appointed as the financial manager, given the efficiency of having one person manage both roles.

The court made a guardianship order for a period of 12 months, with MZT appointed as the guardian, and a financial management order, with MZT also appointed as the financial manager. The court also joined a party to the proceedings, finding that the person had a sufficient interest and relationship with NFK to warrant their inclusion.

Orders

Orders of the court

Guardianship applications (4 February 2020)

1. A guardianship order is made for NFK.

2. MZT of [Address removed for publication.] is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 5 February 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where NFK may reside.

b) Health care

To decide what health care NFK may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to NFK.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management applications (18 March 2020)

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

2. MZT 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 she has obtained all necessary authorities from 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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	NFK [2020] NSWCATGD 20
Hearing dates:	4 February 2020 (Guardianship) 18 March 2020 (Financial Management)
Date of orders:	4 February 2020 (Guardianship) 18 March 2020 (Financial Management)
Decision date:	18 March 2020
Jurisdiction:	Guardianship Division
Before:	J Moir, Senior Member (Legal) F Duffy, Senior Member (Professional) M Watson, General Member (Community) (Guardianship) I Ferreira (Community) (Financial Management)
Decision:	Guardianship applications (4 February 2020) 1. A guardianship order is made for NFK. 2. MZT of [Address removed for publication.] is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 5 February 2020. 4. This is a limited guardianship order giving the guardian custody of NFK to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where NFK may reside. b) Health care To decide what health care NFK may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where NFK is not capable of giving a valid consent. d) Services To make decisions about services to be provided to NFK. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring NFK to an understanding of the issues and to obtain and consider her views before making significant decisions. Financial Management applications (18 March 2020) 1. The estate of NFK is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. MZT 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 she has obtained all necessary authorities from the NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – practicability of services bring provided without a guardianship order - persistent family conflict – concerns about adequacy of care previously provided to the subject person – subject person recently receiving all necessary care – need for accommodation decisions – need for health care and services decisions – need for medical and dental consent decisions – suitability of proposed guardian – multiple proposed guardians – family conflict a significant impediment – private guardian appointed – order made. FINANCIAL MANAGEMENT – application for a financial management order – whether there is a need for a financial management order – whether it is in subject person’s best interests that a financial management order be made – informal management adequate in the short term – possible need for decisions about the sale of property to pay for accommodation – matters unable to be managed informally – suitability of proposed financial manager – persistent family conflict – efficiency of appointing a the same person as guardian and financial manager – private financial manager appointed – order…