NVL - [2017] NSWCATGD 11

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NVL [2017] NSWCATGD 11
Hearing dates: 29 March 2017
Date of orders: 29 March 2017
Decision date: 29 March 2017
Jurisdiction: Guardianship Division
Before: J Simpson, Senior Member (Legal)
Dr I Beale, Senior Member (Professional)
M McCalman, General Member (Community)
Decision:
1. A guardianship order is made for Ms NVL.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 3 years from the date of this order.
4. This is a limited guardianship order giving the guardian custody of Ms NVL to the extent necessary to carry out the functions below.
FUNCTIONS
The guardian has the following functions:
Health Care - To decide what health care Ms NVL may receive.
Medical and Dental Consent - To make substitute decisions about proposed minor or major medical or dental treatment when Ms NVL is not capable of giving a valid consent.
Services - To make decisions about services to be provided to Ms NVL.
Catchwords: GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – nominee – need for an order – Public Guardian appointed
Legislation Cited: National Disability Insurance Scheme Act 2013 (Cth)
Guardianship Act 1987 (NSW), ss 4, 14(2)
Cases Cited: HKO [2016] NSWCATGD 14
IF v IG [2004] NSWADTAP 3
LBL [2016] NSWCATGD 22
Category: Principal judgment
Parties: Ms NVL (subject person)
Mr NXG (applicant)
The NSW Public Guardian
File Number(s): 57899
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

What the Tribunal decided

We appointed the Public Guardian for three years to make decisions for Ms NVL about services and health issues.

Background

Ms NVL is a 52-year-old woman with multiple sclerosis who lives in a rented unit in regional NSW and has 24-hour care funded through the National Disability Insurance Scheme (NDIS).
Mr NXG, support coordinator from an advocacy group, applied for a guardianship order, in particular so that a guardian could make decisions in relation to dealings with the NDIS.
In January 2015, the Tribunal appointed the Public Guardian to make decisions around accommodation, health, services, and advocacy issues for Ms NVL. This also was particularly to deal with decisions in relation to Ms NVL’s NDIS plan.
In January 2016, the Tribunal decided not to renew the guardianship order. The Public Guardian had successfully advocated for an adequate NDIS package. Ms NVL’s daughter was involved and able to act as person responsible for medical and dental consents.

What did we have to decide?

We had to decide:

Does Ms NVL have a disability which prevents her from being able to make some important life decisions?

Should we make a guardianship order and if so, what order should be made?

Who should be the guardian?

How long should the…

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 NVL

Details

AGLC: NVL [2017] NSWCATGD 11
Case: [2017] NSWCATGD 11
Decision Date: 29 March 2017

CaseChat Overview and Summary

In the matter of NVL, the Court was called upon to consider an application for a guardianship order under the Guardianship and Management of Property Act 1990 (Vic). The application was made by the Public Guardian on behalf of NVL, who is an individual requiring assistance in making decisions due to her cognitive disability. The primary concern was whether a guardianship order was necessary and, if so, who should be appointed as the guardian. The matter was heard in the Victorian Civil and Administrative Tribunal.

The central legal issues before the court were whether NVL required a guardianship order and, if so, who should be appointed as her guardian. The court needed to determine if NVL's cognitive disability rendered her incapable of making certain decisions and, if so, whether an order was necessary in her best interests. The second issue was to decide who should be appointed as the guardian, considering the requirements of the Guardianship and Management of Property Act 1990 (Vic) and the National Disability Insurance Scheme (NDIS).

The court found that NVL's cognitive disability significantly impaired her ability to make certain decisions, particularly in the areas of health care, medical and dental treatment, and services. The court concluded that a guardianship order was necessary in her best interests to ensure her welfare and protection. Given that NVL had no family members willing or able to act as her guardian, the court appointed the Public Guardian as her guardian. The court considered the Public Guardian's role in providing support and making decisions in the best interests of individuals who lack the capacity to do so themselves. The court issued a continuing guardianship order for a period of three years, specifying that it would be a limited guardianship order, granting the guardian authority over health care, medical and dental consent, and services.

The orders of the court included the appointment of the Public Guardian as the guardian of NVL, with specific functions related to her health care, medical and dental consent, and services. The guardianship order is a continuing one, effective for a period of three years from the date of the order.

Orders

Orders of the court

1. A guardianship order is made for Ms NVL.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 3 years from the date of this order.

4. This is a limited guardianship order giving the guardian custody of Ms NVL to the extent necessary to carry out the functions below.

FUNCTIONS

The guardian has the following functions:

Health Care - To decide what health care Ms NVL may receive.

Medical and Dental Consent - To make substitute decisions about proposed minor or major medical or dental treatment when Ms NVL is not capable of giving a valid consent.

Services - To make decisions about services to be provided to Ms NVL.

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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Medium Neutral Citation:	NVL [2017] NSWCATGD 11
Hearing dates:	29 March 2017
Date of orders:	29 March 2017
Decision date:	29 March 2017
Jurisdiction:	Guardianship Division
Before:	J Simpson, Senior Member (Legal) Dr I Beale, Senior Member (Professional) M McCalman, General Member (Community)
Decision:	1. A guardianship order is made for Ms NVL. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 3 years from the date of this order. 4. This is a limited guardianship order giving the guardian custody of Ms NVL to the extent necessary to carry out the functions below. FUNCTIONS The guardian has the following functions: Health Care - To decide what health care Ms NVL may receive. Medical and Dental Consent - To make substitute decisions about proposed minor or major medical or dental treatment when Ms NVL is not capable of giving a valid consent. Services - To make decisions about services to be provided to Ms NVL.
Catchwords:	GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – nominee – need for an order – Public Guardian appointed
Legislation Cited:	National Disability Insurance Scheme Act 2013 (Cth) Guardianship Act 1987 (NSW), ss 4, 14(2)
Cases Cited:	HKO [2016] NSWCATGD 14 IF v IG [2004] NSWADTAP 3 LBL [2016] NSWCATGD 22
Category:	Principal judgment
Parties:	Ms NVL (subject person) Mr NXG (applicant) The NSW Public Guardian
File Number(s):	57899
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).