NSM - [2019] NSWCATGD 33

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
IR v AR [2015] NSWSC 1187
M v M [2013] NSWSC 1495
W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220
ZKF v ZKG [2019]…

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 NSM

Details

AGLC: NSM [2019] NSWCATGD 33
Case: [2019] NSWCATGD 33
Decision Date: 01 August 2019

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of NSM involved an application for both a guardianship order and a financial management order. NSM is an inpatient with advanced dementia, making it impracticable for services to be provided without such orders. The dispute arose due to family conflict, the unsuitability of the proposed guardian, and the lack of supportive material presented. Additionally, there were concerns about the proposed guardian's criminal history, non-disclosure of possible conflicts of interest and financial issues, and opposition from a separate representative. The court had to decide whether a guardianship order should be granted, who should be appointed as the guardian, and the extent and nature of the guardianship. Similarly, for the financial management order, the court needed to determine if NSM was unable to manage their affairs and if there was an urgent need to manage their estate due to debts and a mortgage in arrears. The court also had to consider the suitability of the proposed financial manager and address the lack of understanding of their duties and personal qualities.

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

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:	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 IR v AR [2015] NSWSC 1187 M v M [2013] NSWSC 1495 W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 ZKF v ZKG [2019]…