NGC - [2023] NSWCATGD 7

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NGC [2023] NSWCATGD 7
Hearing dates: 9 May 2023
Date of orders: 9 May 2023
Decision date: 09 May 2023
Jurisdiction: Guardianship Division
Before: M Ryan, Senior Member (Legal)
Dr K Eggleton, Senior Member (Professional)
Dr M A Smith OAM, General Member (Community)
Decision:
GUARDIANSHIP:
1. A guardianship order is made for NGC.
2. FZC, of [Address removed for publication.], is appointed as the guardian.
3. This is a continuing guardianship order for a period of two years from 9 May 2023.
4. This is a limited guardianship order giving the guardian(s) custody of NGC to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Advocacy
To advocate generally for NGC.
b) Accommodation
To decide where NGC may reside.
c) Health care
To decide what health care NGC may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where NGC is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to NGC.
f) Legal services
To make decisions for NGC in relation to access to legal services.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring NGC to an understanding of the issues and to obtain and consider his views before making significant decisions.
REVIEW OF FINANCIAL MANGEMENT APPOINTMENT:
The Financial management order for NGC made on 26 July 2016 has been reviewed and is confirmed.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – 37-year-old aboriginal man – subject person with a cognitive impairment and brain injury as a result of a motor vehicle accident– subject person requires 24-hour care – participant in the iCare-Lifetime Care and Support Scheme – accommodation arranged by the NSW Trustee and Guardian not suitable – need for decisions to be made about long-term accommodation – need for advocacy and legal services decisions – need for decisions to be made in relation to health care, services, and medical and dental consent – private guardian appointed – order made
FINANCIAL MANAGEMENT – requested review of financial management order – application made on the basis that the current financial management order is unworkable – lack of collaboration by the NSW Trustee and Guardian – cultural insensitivity – whether appointment of the NSW Trustee and Guardian should be revoked – finding that the appointment cannot be revoked as there is no private manager nominated – appointment of NSW Trustee and Guardian confirmed – order made

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 25M

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep
IF v IG [2004] NSWADTAP 3
P v D1 & Ors [2011] NSWSC 257
Re…

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.

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Details

AGLC: NGC [2023] NSWCATGD 7
Case: [2023] NSWCATGD 7
Decision Date: 09 May 2023

CaseChat Overview and Summary

NGC, a 37-year-old Aboriginal man with cognitive impairment and brain injury due to a motor vehicle accident, required 24-hour care. The subject person participated in the iCare-Lifetime Care and Support Scheme, with accommodation arranged by the NSW Trustee and Guardian, which was found unsuitable. The court heard an application for a guardianship order, considering whether it was appropriate to make such an order and who should be appointed as the guardian. The subject person needed decisions to be made about long-term accommodation, advocacy, legal services, and health care, services, and medical and dental consent. The court determined that a guardianship order should be made, appointing FZC as the guardian. The order was a continuing guardianship order for two years, providing the guardian with specific functions, including advocacy, accommodation, health care, medical and dental consent, services, and legal services.

The court also reviewed the financial management order for NGC, which had been made on 26 July 2016. The application for review was based on the unworkability of the current financial management order due to the lack of collaboration by the NSW Trustee and Guardian, as well as cultural insensitivity. The court considered whether the appointment of the NSW Trustee and Guardian should be revoked. The court found that the appointment could not be revoked, as there was no private manager nominated. Therefore, the court confirmed the appointment of the NSW Trustee and Guardian as the financial manager for NGC.

The final orders made by the court were as follows: a guardianship order was made for NGC, with FZC appointed as the guardian for a period of two years. The order included specific functions for the guardian, such as advocacy, accommodation, health care, medical and dental consent, services, and legal services. The guardian was required to take all reasonable steps to bring NGC to an understanding of the issues and to obtain and consider his views before making significant decisions. Additionally, the financial management order for NGC, made on 26 July 2016, was reviewed and confirmed.

Orders

Orders of the court

GUARDIANSHIP:

1. A guardianship order is made for NGC.

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

3. This is a continuing guardianship order for a period of two years from 9 May 2023.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Advocacy

To advocate generally for NGC.

b) Accommodation

To decide where NGC may reside.

c) Health care

To decide what health care NGC may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to NGC.

f) Legal services

To make decisions for NGC in relation to access to legal services.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

REVIEW OF FINANCIAL MANGEMENT APPOINTMENT:

The Financial management order for NGC made on 26 July 2016 has been reviewed and is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	NGC [2023] NSWCATGD 7
Hearing dates:	9 May 2023
Date of orders:	9 May 2023
Decision date:	09 May 2023
Jurisdiction:	Guardianship Division
Before:	M Ryan, Senior Member (Legal) Dr K Eggleton, Senior Member (Professional) Dr M A Smith OAM, General Member (Community)
Decision:	GUARDIANSHIP: 1. A guardianship order is made for NGC. 2. FZC, of [Address removed for publication.], is appointed as the guardian. 3. This is a continuing guardianship order for a period of two years from 9 May 2023. 4. This is a limited guardianship order giving the guardian(s) custody of NGC to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Advocacy To advocate generally for NGC. b) Accommodation To decide where NGC may reside. c) Health care To decide what health care NGC may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where NGC is not capable of giving a valid consent. e) Services To make decisions about services to be provided to NGC. f) Legal services To make decisions for NGC in relation to access to legal services. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring NGC to an understanding of the issues and to obtain and consider his views before making significant decisions. REVIEW OF FINANCIAL MANGEMENT APPOINTMENT: The Financial management order for NGC made on 26 July 2016 has been reviewed and is confirmed.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – 37-year-old aboriginal man – subject person with a cognitive impairment and brain injury as a result of a motor vehicle accident– subject person requires 24-hour care – participant in the iCare-Lifetime Care and Support Scheme – accommodation arranged by the NSW Trustee and Guardian not suitable – need for decisions to be made about long-term accommodation – need for advocacy and legal services decisions – need for decisions to be made in relation to health care, services, and medical and dental consent – private guardian appointed – order made FINANCIAL MANAGEMENT – requested review of financial management order – application made on the basis that the current financial management order is unworkable – lack of collaboration by the NSW Trustee and Guardian – cultural insensitivity – whether appointment of the NSW Trustee and Guardian should be revoked – finding that the appointment cannot be revoked as there is no private manager nominated – appointment of NSW Trustee and Guardian confirmed – order made
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 25M
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep IF v IG [2004] NSWADTAP 3 P v D1 & Ors [2011] NSWSC 257 Re…