NQC - [2019] NSWCATGD 24

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NQC [2019] NSWCATGD 24
Hearing dates: 3 December 2019
Date of orders: 03 December 2019
Decision date: 03 December 2019
Jurisdiction: Guardianship Division
Before: C P Fougere, Principal Member
Dr C Pratten, Senior Member (Professional)
L Esdaile, General Member (Community)
Decision:
Guardianship

1. A guardianship order is made for NQC.

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

3. This is a continuing guardianship order for a period of 12 months from 3 December 2019.

4. This order will not be reviewed at the end of the above period.

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

FUNCTIONS:

6. The guardian has the following functions:

a) Accommodation

To decide where NQC may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take NQC to a place approved by the guardian.

ii) keep her at that place.

iii) return her to that place should she leave it.

c) Health care

To decide what health care NQC may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to NQC.

CONDITION:

7. The condition of this order is:

a) Standard Condition

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

Financial Management

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

2. LZC, 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 he/she has obtained all necessary authorities from the NSW Trustee and Guardian.
Catchwords:
GUARDIANSHIP – application for a guardianship order – need for a guardian – not practicable for decisions to be made without a guardianship order –request for coercive powers for accommodation decisions - protection of the subject person from self neglect – private guardian appointed – non-reviewable order made.
FINANCIAL MANAGEMENT – application for a financial management order – whether subject person incapable of managing her own affairs – subject person lacks insight into her own financial matters – subject person vulnerable to financial exploitation – who should be appointed as financial manager – proposed financial manager discharged from bankruptcy many years prior – suitability to be appointed financial manager – private financial manager appointed – order made.
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 4(a)–(b), 4(d), 4(f)–(g), 14, 14(2), 17(1), 25M
Cases Cited: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29…

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: NQC [2019] NSWCATGD 24
Case: [2019] NSWCATGD 24
Decision Date: 03 December 2019

CaseChat Overview and Summary

The application before the Court was for a guardianship order in respect of NQC and for a financial management order in respect of her estate. NQC is an elderly woman with a number of medical issues, including diabetes, and mental health issues including cognitive impairment. NQC’s daughter, LZC, had made the application on behalf of NQC. The application was heard in the Supreme Court of New South Wales.

The court was required to determine whether it was necessary to make a guardianship order for NQC, and if so, what its terms should be. The court was also required to determine whether a financial management order was necessary and, if so, who should be appointed as the financial manager.

The court found that it was necessary to make a guardianship order for NQC because it was not practicable for decisions to be made without such an order. NQC lacked insight into her own financial matters and was vulnerable to financial exploitation. The court found that it was in NQC’s best interests for the same person to be appointed as both her guardian and her financial manager. LZC was found to be suitable to be appointed as both guardian and financial manager. The court therefore made a guardianship order and a financial management order, both appointing LZC as the relevant officer. The guardianship order was a non-reviewable limited guardianship order.

The orders made by the court are set out in the orders section above.

Orders

Orders of the court

Guardianship

1. A guardianship order is made for NQC.

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

3. This is a continuing guardianship order for a period of 12 months from 3 December 2019.

4. This order will not be reviewed at the end of the above period.

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

FUNCTIONS:

6. The guardian has the following functions:

a) Accommodation

To decide where NQC may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take NQC to a place approved by the guardian.

ii) keep her at that place.

iii) return her to that place should she leave it.

c) Health care

To decide what health care NQC may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to NQC.

CONDITION:

7. The condition of this order is:

a) Standard Condition

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

Financial Management

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

2. LZC, 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 he/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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	NQC [2019] NSWCATGD 24
Hearing dates:	3 December 2019
Date of orders:	03 December 2019
Decision date:	03 December 2019
Jurisdiction:	Guardianship Division
Before:	C P Fougere, Principal Member Dr C Pratten, Senior Member (Professional) L Esdaile, General Member (Community)
Decision:	Guardianship 1. A guardianship order is made for NQC. 2. LZC, of [Address removed for publication.], is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 3 December 2019. 4. This order will not be reviewed at the end of the above period. 5. This is a limited guardianship order giving the guardian(s) custody of NQC to the extent necessary to carry out the functions below. FUNCTIONS: 6. The guardian has the following functions: a) Accommodation To decide where NQC may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take NQC to a place approved by the guardian. ii) keep her at that place. iii) return her to that place should she leave it. c) Health care To decide what health care NQC may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where NQC is not capable of giving a valid consent. e) Services To make decisions about services to be provided to NQC. CONDITION: 7. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring NQC to an understanding of the issues and to obtain and consider her views before making significant decisions. Financial Management 1. The estate of NQC is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. LZC, 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 he/she has obtained all necessary authorities from the NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – application for a guardianship order – need for a guardian – not practicable for decisions to be made without a guardianship order –request for coercive powers for accommodation decisions - protection of the subject person from self neglect – private guardian appointed – non-reviewable order made. FINANCIAL MANAGEMENT – application for a financial management order – whether subject person incapable of managing her own affairs – subject person lacks insight into her own financial matters – subject person vulnerable to financial exploitation – who should be appointed as financial manager – proposed financial manager discharged from bankruptcy many years prior – suitability to be appointed financial manager – private financial manager appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 4(a)–(b), 4(d), 4(f)–(g), 14, 14(2), 17(1), 25M
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29…