OKC - [2016] NSWCATGD 2

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: OKC [2016] NSWCATGD 2
Hearing dates: 1 February 2016
Date of orders: 01 February 2016
Decision date: 01 February 2016
Jurisdiction: Guardianship Division
Before: J Kearney, Senior Member (Legal)
T Ovadia, Senior Member (Professional)
E Pickering, General Member (Community)
Decision:
Financial management order made; private manager appointed.
Guardianship order made; private guardian appointed for 12 months to make decisions about accommodation and services.
Catchwords:
FINANCIAL MANAGEMENT – question as to person’s capability to manage their own affairs – need for a financial management order – who should be appointed as manager – separate representative’s views considered – consideration of the person’s vulnerability to exploitation – financial management order made – family member appointed as manager – order to be reviewed in 12 months

GUARDIANSHIP – question as to person’s capacity – consideration of factors in section 14 of the Guardianship Act 1987 (NSW) – where medical evidence inconclusive – evidence about person’s capacity to make decisions received from family and friends – separate representative’s views considered – where enduring guardianship instrument revoked – guardianship order made – consideration of who to appoint as guardian – family member appointed as guardian

REVIEW OF ENDURING POWER OF ATTORNEY – application withdrawn due to the making of a financial management order

REVIEW OF ENDURING GUARDIANSHIP – application withdrawn due to the making of a guardianship order

REVIEW OF REVOCATION OF ENDURING POWER OF ATTORNEY – application withdrawn due to the making of a financial management order

REVIEW OF REVOCATION OF ENDURING GUARDIANSHIP – application withdrawn due to the making of a guardianship order
PRACTICE AND PROCEDURE – incorrect applications forms used – applicants seeking to review revocation of enduring guardianship and power of attorney instruments – consent of other parties obtained – exercise of guiding principle in section 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) – oral amendment to application type accepted by the Tribunal
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 36(1)
Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 15(3), 17(1), and 25M
Cases Cited: Application by AMAM; Re SAM [2011] NSWSC 503
C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court, Windeyer J, 29 November 1999
CJ v AKJ [2015] NSWSC 498
Holt v Protective Commissioner (1993) 31 NSWLR 227
IF v IG [2004] NSWADTAP 3
M v M [2013] NSWSC 1495
McD v McD (1983) 3 NSWLR 81
P v D1 [2011] NSWSC 257
P v NSW Trustee and Guardian [2015] NSWSC 579
Re B [2011] NSWSC 1075
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Category: Principal judgment
Parties: Mrs OKC (subject person)
Mrs SAT (daughter and applicant)
Mr NCM and Mrs LBD (enduring guardians, attorneys, and applicants)
The NSW Public Guardian
The NSW Trustee and Guardian
Representation: N Danis, Separate Representative

File Number(s): 61471
Publication restriction: Decisions of the Guardianship Division of the Civil and…

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 OKC

Details

AGLC: OKC [2016] NSWCATGD 2
Case: [2016] NSWCATGD 2
Decision Date: 01 February 2016

CaseChat Overview and Summary

In this matter, the court was tasked with determining the need for a financial management order and a guardianship order for a person referred to as OKC. The court was also required to consider the revocation of an enduring power of attorney and an enduring guardianship instrument, as well as the appointment of appropriate managers and guardians. The dispute centred around OKC's capacity to manage their own affairs and make decisions, with family and friends providing evidence to support their views. The court needed to weigh the evidence and decide whether OKC required a financial manager and a guardian, and if so, who should be appointed to these roles.

The legal issues before the court included whether OKC lacked the capacity to manage their own financial affairs and make decisions about their accommodation and services. The court had to consider the factors outlined in section 14 of the Guardianship Act 1987 (NSW) and the inconclusive medical evidence provided. Furthermore, the court had to consider the revocation of the enduring power of attorney and enduring guardianship instrument, as well as the appropriate appointment of a financial manager and a guardian. The court also had to address the procedural issue of the incorrect application forms used by the applicants.

The court found that OKC lacked the capacity to manage their own affairs and make decisions, and thus a financial management order and a guardianship order were necessary. The court considered the separate representative's views and the evidence provided by family and friends. In appointing a private manager and a guardian, the court took into account OKC's vulnerability to exploitation and the family member's willingness to take on these responsibilities. The court also addressed the procedural issue by accepting the oral amendment to the application type, pursuant to section 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW), with the consent of all parties involved.

The court made a financial management order, appointing a private manager to oversee OKC's financial affairs. A guardianship order was also made, appointing a private guardian for 12 months to make decisions about OKC's accommodation and services. The court's orders also included the review of the financial management and guardianship orders in 12 months' time. The applications to review the revocation of the enduring power of attorney and enduring guardianship instruments were withdrawn due to the making of the financial management and guardianship orders, respectively.

Orders

Orders of the court

Financial management order made; private manager appointed.

Guardianship order made; private guardian appointed for 12 months to make decisions about accommodation and services.

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:	OKC [2016] NSWCATGD 2
Hearing dates:	1 February 2016
Date of orders:	01 February 2016
Decision date:	01 February 2016
Jurisdiction:	Guardianship Division
Before:	J Kearney, Senior Member (Legal) T Ovadia, Senior Member (Professional) E Pickering, General Member (Community)
Decision:	Financial management order made; private manager appointed. Guardianship order made; private guardian appointed for 12 months to make decisions about accommodation and services.
Catchwords:	FINANCIAL MANAGEMENT – question as to person’s capability to manage their own affairs – need for a financial management order – who should be appointed as manager – separate representative’s views considered – consideration of the person’s vulnerability to exploitation – financial management order made – family member appointed as manager – order to be reviewed in 12 months GUARDIANSHIP – question as to person’s capacity – consideration of factors in section 14 of the Guardianship Act 1987 (NSW) – where medical evidence inconclusive – evidence about person’s capacity to make decisions received from family and friends – separate representative’s views considered – where enduring guardianship instrument revoked – guardianship order made – consideration of who to appoint as guardian – family member appointed as guardian REVIEW OF ENDURING POWER OF ATTORNEY – application withdrawn due to the making of a financial management order REVIEW OF ENDURING GUARDIANSHIP – application withdrawn due to the making of a guardianship order REVIEW OF REVOCATION OF ENDURING POWER OF ATTORNEY – application withdrawn due to the making of a financial management order REVIEW OF REVOCATION OF ENDURING GUARDIANSHIP – application withdrawn due to the making of a guardianship order PRACTICE AND PROCEDURE – incorrect applications forms used – applicants seeking to review revocation of enduring guardianship and power of attorney instruments – consent of other parties obtained – exercise of guiding principle in section 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) – oral amendment to application type accepted by the Tribunal
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 36(1) Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 15(3), 17(1), and 25M
Cases Cited:	Application by AMAM; Re SAM [2011] NSWSC 503 C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court, Windeyer J, 29 November 1999 CJ v AKJ [2015] NSWSC 498 Holt v Protective Commissioner (1993) 31 NSWLR 227 IF v IG [2004] NSWADTAP 3 M v M [2013] NSWSC 1495 McD v McD (1983) 3 NSWLR 81 P v D1 [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 Re B [2011] NSWSC 1075 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Category:	Principal judgment
Parties:	Mrs OKC (subject person) Mrs SAT (daughter and applicant) Mr NCM and Mrs LBD (enduring guardians, attorneys, and applicants) The NSW Public Guardian The NSW Trustee and Guardian
Representation:	N Danis, Separate Representative
File Number(s):	61471
Publication restriction:	Decisions of the Guardianship Division of the Civil and…