OT v OU - [2010] NSWADTAP 9

Appeal Panel - External

CITATION: OT v OU [2010] NSWADTAP 9

PARTIES:
APPELLANT
OT in 098006
OY in 098008
RESPONDENT
OU, The Public Guardian, OY
OU, The Public Guardian, OT

FILE NUMBER: 098006, 098008

HEARING DATES: 12 February 2010

SUBMISSIONS CLOSED: 12 February 2010

DATE OF DECISION:
24 February 2010

BEFORE: Hennessy N - Magistrate (Deputy President); Higgins S - Judicial Member; Field B - Non-Judicial Member

CATCHWORDS: Guardianship and financial management orders – review – leave to review merits – Guardianship Act 1987, ss 4, 14

DECISION UNDER APPEAL: C/41350

FILE NUMBER UNDER APPEAL: 2009/948, 2009/949

LEGISLATION CITED: Guardianship Act 1987 (NSW)

CASES CITED: IF v IG & Ors [2004] NSWADTAP 3
KA v Public Guardian [2004] NSWADTAP 25
KV v Protective Commissioner & Ors; KW & Ors v KV & Ors (No 2) [2004] NSWADTAP 48
K v K [2000] NSWSC 1052
S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886 (17 August 2000)

REPRESENTATION:
APPELLANT
D Roberts, barrister
RESPONDENT
S Sirtes, barrister

ORDERS: 1. Leave is refused for the appeal to extend to the merits of either of the Guardianship Tribunal’s decisions in relation to OY
2. The decision of the Guardianship Tribunal that OY be placed under guardianship and that her guardian be the Public Guardian is affirmed
3. The decision of the Guardianship Tribunal that the estate of OY be subject to management under the Protected Estates Act 1983 (as it then was) and that management of the estate be committed to the Protective Commissioner (now the NSW Trustee) is affirmed.

Introduction

1 OY is an 85 year old woman who lives alone. She has been diagnosed as having moderate dementia. A former neighbour and close friend, OT, has been helping her with her everyday affairs. On 22 December 2008, OY appointed OT as her enduring guardian and attorney. Those documents were prepared and witnessed by a solicitor, Mr Pickering. At about the same time, OY’s niece, OU became concerned that OT may be financially exploiting her aunt and applied to the Guardianship Tribunal for a guardianship order and a financial management order. Shortly after that application was made OY changed her will to make OT the principle beneficiary.

2 OY strongly expressed her view to the Guardianship Tribunal that OT should be her guardian and manage her financial affairs. She had already appointed OT to perform those roles and he was prepared to continue to carry them out. While finding that there was no evidence that OT had used OY’s resources in any significant way for his own interests, the Guardianship Tribunal made a guardianship order appointing the Public Guardian for 12 months and a financial management order appointing the Protective Commissioner (now the NSW Trustee) as OY’s financial manager. Those orders have the effect of suspending the appointment of OT as the enduring guardian: Guardianship Act 1987, s 6I.

3 Both OY and OT have appealed against the Guardianship Tribunal’s decision. OY has appealed against both the guardianship order 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 OT v OU

Details

AGLC: OT v OU [2010] NSWADTAP 9
Case: [2010] NSWADTAP 9
Decision Date: 24 February 2010

CaseChat Overview and Summary

In the case of OT v OU, OT appealed against the decisions of the Guardianship Tribunal regarding the guardianship and management of OY's estate. The Tribunal had determined that OY should be placed under guardianship, with her guardian being the Public Guardian, and that her estate should be managed under the Protected Estates Act 1983, with management committed to the Protective Commissioner (now the NSW Trustee). OT sought leave to review the merits of these decisions, arguing that the Tribunal had not properly considered the evidence and had failed to adequately consider her own suitability as a potential guardian.

The central legal issue before the court was whether the Guardianship Tribunal had acted with jurisdictional error in making the decisions regarding OY's guardianship and the management of her estate. The court needed to determine whether there was any basis to review the merits of the Tribunal's decisions, and whether the Tribunal had adequately considered the relevant evidence and statutory criteria in reaching its decisions.

The court found that the Guardianship Tribunal had not erred in its decisions. It held that the Tribunal had properly exercised its discretion under the Guardianship Act 1987, and that it had given appropriate consideration to the evidence and statutory criteria in making its determinations. The court also found that there was no basis for reviewing the merits of the Tribunal's decisions, as the Tribunal had not acted beyond its jurisdictional authority. Consequently, the court affirmed the decisions of the Guardianship Tribunal and refused leave for the appeal to extend to the merits.

In summary, the court affirmed the decisions of the Guardianship Tribunal that OY be placed under guardianship and that her guardian be the Public Guardian, and that her estate be subject to management under the Protected Estates Act 1983, with management committed to the Protective Commissioner (now the NSW Trustee). The court also refused leave for the appeal to extend to the merits of these decisions.

Orders

Orders of the court

1. Leave is refused for the appeal to extend to the merits of either of the Guardianship Tribunal’s decisions in relation to OY

2. The decision of the Guardianship Tribunal that OY be placed under guardianship and that her guardian be the Public Guardian is affirmed

3. The decision of the Guardianship Tribunal that the estate of OY be subject to management under the Protected Estates Act 1983 (as it then was) and that management of the estate be committed to the Protective Commissioner (now the NSW Trustee) is affirmed.

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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CITATION:	OT v OU [2010] NSWADTAP 9
PARTIES:	APPELLANT OT in 098006 OY in 098008 RESPONDENT OU, The Public Guardian, OY OU, The Public Guardian, OT
FILE NUMBER:	098006, 098008
HEARING DATES:	12 February 2010
SUBMISSIONS CLOSED:	12 February 2010
DATE OF DECISION:	24 February 2010
BEFORE:	Hennessy N - Magistrate (Deputy President); Higgins S - Judicial Member; Field B - Non-Judicial Member
CATCHWORDS:	Guardianship and financial management orders – review – leave to review merits – Guardianship Act 1987, ss 4, 14
DECISION UNDER APPEAL:	C/41350
FILE NUMBER UNDER APPEAL:	2009/948, 2009/949
LEGISLATION CITED:	Guardianship Act 1987 (NSW)
CASES CITED:	IF v IG & Ors [2004] NSWADTAP 3 KA v Public Guardian [2004] NSWADTAP 25 KV v Protective Commissioner & Ors; KW & Ors v KV & Ors (No 2) [2004] NSWADTAP 48 K v K [2000] NSWSC 1052 S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886 (17 August 2000)
REPRESENTATION:	APPELLANT D Roberts, barrister RESPONDENT S Sirtes, barrister
ORDERS:	1. Leave is refused for the appeal to extend to the merits of either of the Guardianship Tribunal’s decisions in relation to OY 2. The decision of the Guardianship Tribunal that OY be placed under guardianship and that her guardian be the Public Guardian is affirmed 3. The decision of the Guardianship Tribunal that the estate of OY be subject to management under the Protected Estates Act 1983 (as it then was) and that management of the estate be committed to the Protective Commissioner (now the NSW Trustee) is affirmed.