NXO - [2015] NSWCATGD 53

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NXO [2015] NSWCATGD 53
Hearing dates: 26 February 2015
Date of orders: 26 February 2015
Decision date: 26 February 2015
Jurisdiction: Guardianship Division
Before: S McCarthy, Senior Member (Legal)
W Longley, Senior Member (Professional)
J Fraser, General Member (Community)
Decision:
1. Application for guardianship order dismissed.
2. Application for financial management order dismissed.
Catchwords:
GUARDIANSHIP – person with a disability unable to give their view – disagreement among family members about what is in the person’s best interests – practicability of service provision without the need for a guardianship order – no need for an order – guardianship application dismissed
FINANCIAL MANAGEMENT – where enduring power of attorney instrument revoked and new enduring power of attorney instrument made appointing different attorney – Tribunal not satisfied the person lacked mental capacity to make the new instrument – enduring power of attorney instrument is in keeping with the person’s best interests and wishes – no need to appoint a financial manager – application for financial management dismissed
Legislation Cited: Guardianship Act 1987 (NSW)
Mental Health Act 2007 (NSW)
Powers of Attorney Act 2003 (NSW)
Cases Cited: H v H (unreported) NSW Supreme Court 20 March 2000
McD v McD (1983) 3 NSWLR 81 at 86
PY v RJS [1982] 2 NSWLR 700
Re GHI (a protected person) [2005] NSWSC 581
Category: Principal judgment
Parties: Mr NXO (subject person)
Mr UAT (applicant)
Mrs HDO (spouse of Mr NXO)
The Public Guardian
The NSW Trustee and Guardian
Representation: Separate Representative

File Number(s): 58136
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

The Tribunal dismissed the application for guardianship made by Mr UAT concerning Mr NXO.
The Tribunal dismissed the application for financial management made by Mr UAT concerning Mr NXO.

Background

Mr NXO is aged 76 years who resides at a care facility in Regional NSW. Prior to residing at the care facility, Mr NXO was living with his second wife and carer, Mrs HDO, in his home in Regional NSW. Mr NXO is of Macedonian cultural background. Mr NXO has two sons from his first marriage, Mr EJO and Mr CKO who has died. His daughter-in-law is Ms BGO.
Mr UAT, nephew, made an application for guardianship and financial management concerning Mr NXO.
On 27 November 2012 Mr NXO made an enduring power of attorney appointing Mrs HDO and Mr EJO as his attorneys both jointly and severally. This appointment was revoked by Mr NXO on 26 July 2013. Mr NXO made an enduring power of attorney on 26 July 2013 appointing Mrs HDO as his sole attorney.

The Hearing

At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing. [Appendix removed…

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 NXO

Details

AGLC: NXO [2015] NSWCATGD 53
Case: [2015] NSWCATGD 53
Decision Date: 26 February 2015

CaseChat Overview and Summary

In the matter of NXO, the parties involved were the applicant, the respondent, and the individual with a disability at the centre of the dispute. The primary issue in this case was whether a guardianship order should be made for the individual, given their disability and the conflicting views among family members regarding their best interests. Additionally, the case examined the necessity of a financial management order following the revocation of an enduring power of attorney and the appointment of a new attorney.

The court was tasked with determining whether a guardianship order was necessary when the individual's views could not be ascertained and family members disagreed on what would be in the person's best interests. The court also needed to decide if a financial management order was required following the revocation of an existing enduring power of attorney and the creation of a new one appointing a different attorney. The Tribunal's satisfaction with the person's mental capacity to make the new instrument was a pivotal factor in the decision.

The court found that there was no necessity for a guardianship order as the individual's views could not be determined, and the family's disagreements did not necessitate court intervention. Furthermore, the court dismissed the application for a financial management order because the Tribunal was not satisfied that the individual lacked the mental capacity to make the new enduring power of attorney. The court concluded that the new enduring power of attorney was consistent with the individual's best interests and wishes. Consequently, the court dismissed both the guardianship and financial management applications.

The final orders of the court were that the application for a guardianship order was dismissed and the application for a financial management order was also dismissed.

Orders

Orders of the court

1. Application for guardianship order dismissed.

2. Application for financial management order dismissed.

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:	NXO [2015] NSWCATGD 53
Hearing dates:	26 February 2015
Date of orders:	26 February 2015
Decision date:	26 February 2015
Jurisdiction:	Guardianship Division
Before:	S McCarthy, Senior Member (Legal) W Longley, Senior Member (Professional) J Fraser, General Member (Community)
Decision:	1. Application for guardianship order dismissed. 2. Application for financial management order dismissed.
Catchwords:	GUARDIANSHIP – person with a disability unable to give their view – disagreement among family members about what is in the person’s best interests – practicability of service provision without the need for a guardianship order – no need for an order – guardianship application dismissed FINANCIAL MANAGEMENT – where enduring power of attorney instrument revoked and new enduring power of attorney instrument made appointing different attorney – Tribunal not satisfied the person lacked mental capacity to make the new instrument – enduring power of attorney instrument is in keeping with the person’s best interests and wishes – no need to appoint a financial manager – application for financial management dismissed
Legislation Cited:	Guardianship Act 1987 (NSW) Mental Health Act 2007 (NSW) Powers of Attorney Act 2003 (NSW)
Cases Cited:	H v H (unreported) NSW Supreme Court 20 March 2000 McD v McD (1983) 3 NSWLR 81 at 86 PY v RJS [1982] 2 NSWLR 700 Re GHI (a protected person) [2005] NSWSC 581
Category:	Principal judgment
Parties:	Mr NXO (subject person) Mr UAT (applicant) Mrs HDO (spouse of Mr NXO) The Public Guardian The NSW Trustee and Guardian
Representation:	Separate Representative
File Number(s):	58136
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)).