NNX - [2020] NSWCATGD 34

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NNX [2020] NSWCATGD 34
Hearing dates: 25 June 2020
Date of orders: 25 June 2020
Decision date: 25 June 2020
Jurisdiction: Guardianship Division
Before: A D Suthers, Principal Member
Dr B Chenoweth, Senior Member (Professional)
S Bullock, General Member (Community)
Decision:
The application for the appointment of a guardian is dismissed after hearing.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – presumption of capacity not rebutted – subject person at least partially incapable of managing their person because of disability – whether a guardianship order should be made - allegations of undue influence – family conflict – increased services being received – informal supports being accepted – no benefit of guardianship to family relations – guardianship unnecessary to protect subject person from abuse, neglect or exploitation – subject person’s welfare and interests not promoted by the appointment of a guardian – application dismissed.

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

Cases Cited:
Nil

Texts Cited:
Nil

Category: Principal judgment
Parties:
001: Guardianship Application
NNX (the person)
QZX (applicant)
CAQ (carer)
PNX (enduring guardian)
BHX (enduring guardian)
NSW Public Guardian
Representation: Nil

File Number(s): NCAT 2020/00120057
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

What the Tribunal decided

The Tribunal dismissed the application for the appointment of a guardian for NNX.

Background

NNX is 87 years old and at the time of the hearing was transitioning back to residing in her own property after recent disruptions to her life caused by difficulties with her health.
NNX has recently been hospitalised at a private hospital, following admission to a public hospital, and then had a subsequent period residing at an aged care facility.
NNX has seven children: QZX, CAQ, DYX, HFM, BHX, PNX and EGX.
On 1 June 2012, NNX executed two separate enduring guardianship appointments. By one of those appointments, she appointed PNX as her enduring guardian. By the second document, she appointed BHX as her enduring guardian to act if PNX was unable to do so. With those documents, NNX provided her solicitors with instructions that they were only to be released to her appointed enduring guardians conditionally, and, in the case of PNX, on condition that a “duly qualified medical practitioner certifies that I am partially or totally incapable by reason of disability of managing my person”. The provision of the appointment of BHX for him to operate upon was made conditional upon similar terms and the added condition that PNX be first unable to act.
On 22 April 2020, QZX applied for the appointment of a guardian and financial manager for NNX. At a hearing on 7 May 2020, a differently constituted Tribunal dismissed the application…

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

Case: [2020] NSWCATGD 34
Decision Date: 25 June 2020

CaseChat Overview and Summary

The case involved an application for a guardianship order concerning an individual, referred to as the subject person, before a relevant court. The primary issue was whether the subject person was a person in need of a guardian, given that they were at least partially incapable of managing their person due to disability. The application arose amidst allegations of undue influence and significant family conflict. Despite the subject person's disability, the court had to determine if there were sufficient grounds to appoint a guardian, considering the subject person's acceptance of increased services and informal supports, which mitigated the necessity for formal guardianship.

The court assessed the presumption of the subject person's capacity, which had not been rebutted, alongside the allegations of undue influence and family discord. The key legal issues revolved around the balance between the subject person's autonomy and the need for protection, the potential benefits and detriments of appointing a guardian, and the impact of guardianship on family relations. The court examined whether guardianship was necessary to protect the subject person from abuse, neglect, or exploitation and whether it would promote their welfare and interests.

Upon deliberation, the court concluded that the presumption of the subject person's capacity remained unrebutted. The subject person was receiving increased services and accepting informal supports, which sufficiently addressed their needs without necessitating formal guardianship. The court also determined that the appointment of a guardian would not benefit family relations and that there was no clear advantage to the subject person's welfare and interests. Consequently, the application for the appointment of a guardian was dismissed. The court's decision was grounded in the subject person's demonstrated ability to manage their affairs with the support available, and the lack of necessity for formal guardianship under the circumstances.

Orders

Orders of the court

The application for the appointment of a guardian is dismissed after hearing.

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:	NNX [2020] NSWCATGD 34
Hearing dates:	25 June 2020
Date of orders:	25 June 2020
Decision date:	25 June 2020
Jurisdiction:	Guardianship Division
Before:	A D Suthers, Principal Member Dr B Chenoweth, Senior Member (Professional) S Bullock, General Member (Community)
Decision:	The application for the appointment of a guardian is dismissed after hearing.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – presumption of capacity not rebutted – subject person at least partially incapable of managing their person because of disability – whether a guardianship order should be made - allegations of undue influence – family conflict – increased services being received – informal supports being accepted – no benefit of guardianship to family relations – guardianship unnecessary to protect subject person from abuse, neglect or exploitation – subject person’s welfare and interests not promoted by the appointment of a guardian – application dismissed.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(1)-(2)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	001: Guardianship Application NNX (the person) QZX (applicant) CAQ (carer) PNX (enduring guardian) BHX (enduring guardian) NSW Public Guardian
Representation:	Nil
File Number(s):	NCAT 2020/00120057
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.