NVT - [2015] NSWCATGD 37

NSW Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: NVT [2015] NSWCATGD 37
Hearing dates: 10 August 2015
Date of orders: 10 August 2015
Decision date: 10 August 2015
Jurisdiction: Guardianship Division
Before: S Burns, Senior Member (Legal)
W Longley, Senior Member (Professional)
P Davidson, General Member (Community)
Decision:
Application for guardianship dismissed.

Application for the appointment of a financial manager dismissed.
Application to review enduring guardianship appointment dismissed for lack of jurisdiction.
Catchwords:
GUARDIANSHIP – whether subject person lacks capacity to make decisions about her person – medical evidence of capacity to make such decisions – subject person’s views considered – relationship between subject person and applicant has broken down – application for guardianship order dismissed

FINANCIAL MANAGEMENT – whether subject person is capable of managing her affairs –medical evidence of capacity to manage affairs – where relationship between the applicant and the subject person has broken down – proceedings in Queensland and NSW to resolve financial and property settlement matters – enduring power of attorney instrument is in place – best interests – whether need for a financial management order – no need – application dismissed

REVIEW OF ENDURING GUARDIANSHIP – application to review Queensland enduring guardianship appointment – where no equivalent document exists in NSW – jurisdiction to conduct a review – application dismissed

INTERLOCUTORY – whether Tribunal has jurisdiction to review an interstate enduring guardianship document - application dismissed for lack of jurisdiction

INTERLOCUTORY – application for leave to be legally represented – application opposed by other parties – where subject person is legally represented –complex legal issues – whether Tribunal would be assisted –leave granted
INTERLOCUTORY – standing – where proceedings should be brought in other forums – need to demonstrate genuine concern for the protected person
Legislation Cited: Guardianship Act 1987 (NSW)
Mental Health Act 2007 (NSW)
Powers of Attorney Act 1998 (QLD)
Cases Cited: P v NSW Trustee and Guardian [2015] NSWSC 279
QBL [2014] NSWCATGD 8
Category: Principal judgment
Parties: Ms NVT (the subject person)
Mr KDT (the applicant)
Ms TBT (the carer of Ms NVT)
Mr TGT (a person appointed by a power of attorney)
The NSW Trustee and Guardian
The Public Guardian
Representation: Legal Representatives

File Number(s): 59771
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal are 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

The Tribunal dismissed the application for guardianship in relation to Ms NVT made by Mr KDT.

AND

The Tribunal dismissed the application for the appointment of a financial manager.

AND

The Tribunal dismissed the application to review the Enduring Guardianship appointment whereby Ms NVT appointed Mr TGT to be her Enduring Guardian for lack of jurisdiction.

Background

Ms NVT is 75. She resided in a de-facto relationship with Mr KDT in Queensland between 1987 and late 2014. She has three children: Ms TBT,…

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 NVT

Details

AGLC: NVT [2015] NSWCATGD 37
Case: [2015] NSWCATGD 37
Decision Date: 10 August 2015

CaseChat Overview and Summary

In the matter of NVT, the parties involved were the subject person and the applicant, who had previously been in a relationship. The dispute involved the subject person’s capacity to make decisions about her person, her ability to manage her financial affairs, and the review of an enduring guardianship appointment. The matter was heard in the New South Wales Civil and Administrative Tribunal (NCAT). The subject person’s capacity to make decisions about her person and manage her affairs was at the forefront of the legal issues. The court had to consider medical evidence and the subject person’s own views, alongside the breakdown of the relationship between her and the applicant. The court also had to determine whether a financial management order was necessary, given that an enduring power of attorney was already in place and proceedings for a financial and property settlement were ongoing in other jurisdictions.

The court examined the subject person’s capacity to make decisions about her person, taking into account the medical evidence that suggested she had the capacity. The court also weighed the applicant's views and the relationship between the two parties, which had irreparably broken down. As for financial management, the court found that the subject person was capable of managing her affairs, with the enduring power of attorney already providing for this. The court concluded that there was no need for a financial management order, as the subject person was already legally represented and there were ongoing proceedings in other jurisdictions addressing the financial and property settlement matters. The court dismissed the application for guardianship and the appointment of a financial manager. Furthermore, the court addressed the application to review the Queensland enduring guardianship appointment, determining that it lacked jurisdiction to conduct such a review in New South Wales, where no equivalent document existed. The application was dismissed for lack of jurisdiction.

In addition to the substantive applications, the court dealt with several interlocutory matters. It considered whether it had jurisdiction to review an interstate enduring guardianship document and found that it did not. Consequently, the application was dismissed for lack of jurisdiction. The court also addressed an application for leave to be legally represented, which was opposed by other parties, but granted the application due to the complexity of the legal issues involved. The court found that granting leave would assist in the fair and efficient resolution of the proceedings. The court concluded by dismissing the application for guardianship, the appointment of a financial manager, and the review of the enduring guardianship appointment for lack of jurisdiction.

Orders

Orders of the court

Application for guardianship dismissed.

Application for the appointment of a financial manager dismissed.

Application to review enduring guardianship appointment dismissed for lack of jurisdiction.

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:	NVT [2015] NSWCATGD 37
Hearing dates:	10 August 2015
Date of orders:	10 August 2015
Decision date:	10 August 2015
Jurisdiction:	Guardianship Division
Before:	S Burns, Senior Member (Legal) W Longley, Senior Member (Professional) P Davidson, General Member (Community)
Decision:	Application for guardianship dismissed. Application for the appointment of a financial manager dismissed. Application to review enduring guardianship appointment dismissed for lack of jurisdiction.
Catchwords:	GUARDIANSHIP – whether subject person lacks capacity to make decisions about her person – medical evidence of capacity to make such decisions – subject person’s views considered – relationship between subject person and applicant has broken down – application for guardianship order dismissed FINANCIAL MANAGEMENT – whether subject person is capable of managing her affairs –medical evidence of capacity to manage affairs – where relationship between the applicant and the subject person has broken down – proceedings in Queensland and NSW to resolve financial and property settlement matters – enduring power of attorney instrument is in place – best interests – whether need for a financial management order – no need – application dismissed REVIEW OF ENDURING GUARDIANSHIP – application to review Queensland enduring guardianship appointment – where no equivalent document exists in NSW – jurisdiction to conduct a review – application dismissed INTERLOCUTORY – whether Tribunal has jurisdiction to review an interstate enduring guardianship document - application dismissed for lack of jurisdiction INTERLOCUTORY – application for leave to be legally represented – application opposed by other parties – where subject person is legally represented –complex legal issues – whether Tribunal would be assisted –leave granted INTERLOCUTORY – standing – where proceedings should be brought in other forums – need to demonstrate genuine concern for the protected person
Legislation Cited:	Guardianship Act 1987 (NSW) Mental Health Act 2007 (NSW) Powers of Attorney Act 1998 (QLD)
Cases Cited:	P v NSW Trustee and Guardian [2015] NSWSC 279 QBL [2014] NSWCATGD 8
Category:	Principal judgment
Parties:	Ms NVT (the subject person) Mr KDT (the applicant) Ms TBT (the carer of Ms NVT) Mr TGT (a person appointed by a power of attorney) The NSW Trustee and Guardian The Public Guardian
Representation:	Legal Representatives
File Number(s):	59771
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal are 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)).