OZD - [2022] NSWCATGD 3

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: OZD [2022] NSWCATGD 3
Hearing dates: 22 March 2022
Date of orders: 22 March 2022
Decision date: 22 March 2022
Jurisdiction: Guardianship Division
Before: A Britton, Deputy President
Decision:
The guardianship order for OZD made on 24 March 2020 has been reviewed. The order now is as follows:
1. The Public Guardian is appointed as the guardian.
2. This is a continuing guardianship order for a period of two years from 23 March 2022.
3. This is a limited guardianship order giving the guardian(s) custody of OZD to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
a) Access
To decide what access OZD has to others and the conditions of access.
b) Accommodation
To decide where OZD may reside.
c) Health care
To decide what health care OZD may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where OZD is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to OZD.
CONDITION:
5. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring OZD to an understanding of the issues and to obtain and consider their views before making significant decisions.

Catchwords:
GUARDIANSHIP – end-of-term review of a guardianship order – whether subject person continues to have disabilities which prevent them from making important life decisions – subject person is of advanced age – subject person has significant cognitive impairment – significant conflict within subject person's close family – whether proposed guardian suitable to be appointed guardian – proposed guardian's accommodation interests conflict with the subject person's financial need – proposed guardian not suitable to be appointed guardian – Public guardian appointed – continued need for decisions to be made in relation to access, accommodation, healthcare, and consent to medical and dental treatment – need for services function – order renewed and varied.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(f), 14, 14(2), 17(1), 17(1)(c), 25C(c)

Cases Cited:
IR v AR [2015] NSWSC 1187
W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220
ZKF v ZKG [2019] NSWCATAP 64

Texts Cited:
None cited.

Category: Principal judgment
Parties:
005: Review of Guardianship Order
OZD (the person)
Public Guardian (appointed guardian)
SAD (carer)
NYD (joined party)
HBD (joined party)
Representation: M Dudhee, separate representative for OZD

File Number(s): NCAT 2018/00344710
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

Ninety-five-year-old OZD lives in her own home in West Sydney, with one of her three sons, SAD. SAD is estranged from his brothers, NYD and HBD.
Following an end-of-term review, I decided to renew the 2020 Order…

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 OZD

Details

AGLC: OZD [2022] NSWCATGD 3
Case: [2022] NSWCATGD 3
Decision Date: 22 March 2022

CaseChat Overview and Summary

In the matter of OZD, the subject person, the court conducted an end-of-term review of a guardianship order, considering whether the subject person continues to have disabilities that prevent them from making important life decisions. OZD is of advanced age and has significant cognitive impairment. The court was required to decide whether the proposed guardian was suitable, given the conflict of interest between the proposed guardian’s accommodation interests and the subject person's financial needs. The court concluded that the proposed guardian was not suitable for the role due to these conflicts.

The court found that there was significant conflict within OZD's close family, which further complicated the suitability of the proposed guardian. The court also noted the need for decisions to be made in relation to OZD's access, accommodation, healthcare, and consent to medical and dental treatment. The court determined that the continued need for decisions regarding these matters warranted the appointment of a new guardian. Given the circumstances, the court appointed the Public Guardian, recognising the need for an independent and unbiased party to manage OZD's affairs.

The guardianship order was renewed and varied, with the Public Guardian appointed as OZD's guardian for a period of two years from 23 March 2022. The order is a limited guardianship order, giving the guardian custody of OZD to the extent necessary to carry out specific functions, including decisions about access, accommodation, health care, medical and dental consent, and services. The guardian must take reasonable steps to ensure OZD understands the issues and considers their views before making significant decisions.

Orders

Orders of the court

The guardianship order for OZD made on 24 March 2020 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of two years from 23 March 2022.

3. This is a limited guardianship order giving the guardian(s) custody of OZD to the extent necessary to carry out the functions below.

FUNCTIONS:

4. The guardian has the following functions:

a) Access

To decide what access OZD has to others and the conditions of access.

b) Accommodation

To decide where OZD may reside.

c) Health care

To decide what health care OZD may receive.

d) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where OZD is not capable of giving a valid consent.

e) Services

To make decisions about services to be provided to OZD.

CONDITION:

5. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring OZD to an understanding of the issues and to obtain and consider their views before making significant decisions.

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:	OZD [2022] NSWCATGD 3
Hearing dates:	22 March 2022
Date of orders:	22 March 2022
Decision date:	22 March 2022
Jurisdiction:	Guardianship Division
Before:	A Britton, Deputy President
Decision:	The guardianship order for OZD made on 24 March 2020 has been reviewed. The order now is as follows: 1. The Public Guardian is appointed as the guardian. 2. This is a continuing guardianship order for a period of two years from 23 March 2022. 3. This is a limited guardianship order giving the guardian(s) custody of OZD to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Access To decide what access OZD has to others and the conditions of access. b) Accommodation To decide where OZD may reside. c) Health care To decide what health care OZD may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where OZD is not capable of giving a valid consent. e) Services To make decisions about services to be provided to OZD. CONDITION: 5. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring OZD to an understanding of the issues and to obtain and consider their views before making significant decisions.
Catchwords:	GUARDIANSHIP – end-of-term review of a guardianship order – whether subject person continues to have disabilities which prevent them from making important life decisions – subject person is of advanced age – subject person has significant cognitive impairment – significant conflict within subject person's close family – whether proposed guardian suitable to be appointed guardian – proposed guardian's accommodation interests conflict with the subject person's financial need – proposed guardian not suitable to be appointed guardian – Public guardian appointed – continued need for decisions to be made in relation to access, accommodation, healthcare, and consent to medical and dental treatment – need for services function – order renewed and varied.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(f), 14, 14(2), 17(1), 17(1)(c), 25C(c)
Cases Cited:	IR v AR [2015] NSWSC 1187 W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 ZKF v ZKG [2019] NSWCATAP 64
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	005: Review of Guardianship Order OZD (the person) Public Guardian (appointed guardian) SAD (carer) NYD (joined party) HBD (joined party)
Representation:	M Dudhee, separate representative for OZD
File Number(s):	NCAT 2018/00344710
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.