NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: NSM [2019] NSWCATGD 33 Hearing dates: 01 August 2019 Date of orders: 01 August 2019 Decision date: 01 August 2019 Jurisdiction: Guardianship Division Before: A Britton, Principal Member
Dr M J Wroth, Senior Member (Professional)
R M Fela, General Member (Community)Decision: Guardianship Application:
1. A guardianship order is made for NSM.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 2 August 2019.
4. This is a limited guardianship order giving the guardian(s) custody of NSM to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Access
To decide what access NSM has to others and the conditions of access.
b) Accommodation
To decide where NSM may reside.
c) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take NSM to a place approved by the guardian.
ii) keep them at that place.
iii) return them to that place should they leave it.
d) Health care
To decide what health care NSM may receive.
e) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where NSM is not capable of giving a valid consent.
f) Services
To make decisions about services to be provided to NSM.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role, the guardian shall take all reasonable steps to bring NSM to an understanding of the issues and to obtain and consider their views before making significant decisions.
Financial Management Application:
1. The estate of NSM is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of NSM is committed to the NSW Trustee and Guardian.
Catchwords: GUARDIANSHIP – application for a guardianship order – inpatient with advanced dementia – impracticable for services to be provided without an order – family conflict – suitability of proposed guardian – no supportive material provided – proposed guardian with criminal history – non-disclosure of possible conflicts of interests and financial issues – separate representative opposes proposed guardian – Public Guardian appointed
FINANCIAL MANAGEMENT – application for a financial management order – unable to manage affairs – urgent need to manage estate – mortgage in arrears and other debts – suitability of proposed manager – lack of understanding of duties – no evidence provided – issues with personal qualities – NSW Trustee and Guardian appointed
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 49
Guardianship Act 1987 (NSW), ss 3(1)-(2), 3D, 4, 14(1), 15(3), 17(1), 17(1)(a)-(c), 18, 25, 25G, 25M
Powers of Attorney Act 2003 (NSW)
Cases Cited: Application by AMAM; Re SAM [2011] NSWSC 503
M v M [2013] NSWSC 1495
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- AGLC
- NSM [2019] NSWCATGD 33
- Case
- [2019] NSWCATGD 33
- Decision Date
CaseChat Overview and Summary
The court ruled that a guardianship order was necessary for NSM and appointed the Public Guardian as the guardian, with the order being a continuing guardianship for 12 months. The guardianship was limited, allowing the guardian to make decisions about NSM's access to others, accommodation, health care, medical and dental consent, and services. The condition imposed was that the guardian must take reasonable steps to understand NSM's views before making significant decisions. Regarding the financial management order, the court determined that NSM's estate was subject to management under the NSW Trustee and Guardian Act 2009, and it was committed to the NSW Trustee and Guardian for management.
The final orders included the appointment of the Public Guardian as NSM's guardian for a period of 12 months, with specific functions and conditions outlined. For financial management, NSM's estate was committed to the NSW Trustee and Guardian for management, ensuring that urgent financial matters were addressed.
Orders
Orders of the court
Guardianship Application:
1. A guardianship order is made for NSM.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 2 August 2019.
4. This is a limited guardianship order giving the guardian(s) custody of NSM to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Access
To decide what access NSM has to others and the conditions of access.
b) Accommodation
To decide where NSM may reside.
c) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take NSM to a place approved by the guardian.
ii) keep them at that place.
iii) return them to that place should they leave it.
d) Health care
To decide what health care NSM may receive.
e) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where NSM is not capable of giving a valid consent.
f) Services
To make decisions about services to be provided to NSM.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role, the guardian shall take all reasonable steps to bring NSM to an understanding of the issues and to obtain and consider their views before making significant decisions.
Financial Management Application:
1. The estate of NSM is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of NSM is committed to the NSW Trustee and Guardian.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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