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P v NSW Trustee and Guardian

P v NSW Trustee and Guardian

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Case Copied 18 May 2015 50 min read

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Supreme Court

New South Wales

Case Name:	P v NSW Trustee and Guardian
Medium Neutral Citation:	[2015] NSWSC 579
Hearing Date(s):	26 March 2015
Date of Orders:	18 May 2015
Decision Date:	18 May 2015
Jurisdiction:	Equity Division - Protective List
Before:	Lindsay J
Decision:	(1) ORDER that any requirement, under the Uniform Civil Procedure Rules 2005 NSW or otherwise, for the plaintiff to have conducted these proceedings by a tutor be dispensed with. (2) ORDER that the orders made by the Guardianship Division of the NSW Civil and Administrative Tribunal on 17 June 2014 (committing management of the estate of the plaintiff to the NSW Trustee as her financial manager) be confirmed. (3) DECLARE that the plaintiff is not capable of managing her own affairs. (4) ORDER that subjection of the estate of the plaintiff to management under the NSW Trustee and Guardian Act 2009 NSW be confirmed. (5) ORDER that committal of management of the estate of the plaintiff to the NSW Trustee be confirmed. (6) DECLARE that the instrument dated 20 December 2013, entitled “Enduring Power of Attorney”, executed by the plaintiff in favour of [KM], is of no force or effect.
Catchwords:	GUARDIANSHIP – Guardians, committees, administrators, managers and receivers – Appointment – Capacity for self-management – Meaning – Governed by nature and purpose of protective jurisdiction APPEALS – Appeal to Court from Guardianship Division of NSW Civil and Administrative Tribunal – Construction and operation of Civil and Administrative Tribunal Act 2013 NSW, Schedule 6, clause 14 PRACTICE – NSW Trustee and Guardian Act – Capacity for self-management – Person incapable of managing affairs – Meaning – Utility and limitations of practice “tests” for assessing incapacity – Test of capacity to manage one’s affairs involves consideration of subjective circumstances of individual in question – Concept governed by nature and purpose of protective jurisdiction
Legislation Cited:	Australian Courts Act, 1828 Civil and Administrative Tribunal Act 2013 NSW Guardianship Act 1987 NSW Interpretation Act 1987 NSW Mental Health (Forensic Provisions) Act 1990 NSW Mental Health Act 2007 New South Wales Act of 1823 NSW Trustee and Guardian Act 2009 NSW Powers of Attorney Act 2003 NSW Protected Estates Act 1983 NSW Supreme Court Act 1970 NSW The Third Charter of Justice 1823 Uniform Civil Procedure Rules 2005
Cases Cited:	A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 4) [2014] NSWSC 31 Ability One Financial Management Pty Ltd and Anor v JB by his Tutor AB [2014] NSWSC 245 Allen & Ors v TriCare (Hastings) Pty Ltd & Anor [2015] NSWSC 416 Allesch v Maunz (2000) 203 CLR 172 BPY v BZQ [2015] NSWCATAP 33 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 CCR v PS (No 2) (1986) 6 NSWLR 622 CDJ v VAJ (1998) 197 CLR 172 CJ v AKJ [2015] NSWSC 498 Collins v Urban [2014] NSWCATAP 17 Crago v McIntyre [1976] 1 NSWLR 729

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.

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Details

Case: [2015] NSWSC 579
Decision Date: 18 May 2015

CaseChat Overview and Summary

In the recent case of P v NSW Trustee and Guardian, the dispute involved the interpretation and application of the NSW Trustee and Guardian Act. The case concerned the assessment of an individual's capacity for self-management, which was pivotal in determining their eligibility for the appointment of a guardian. The matter was heard in the Court of Appeal, which was tasked with reviewing the decision of the Guardianship Division of the NSW Civil and Administrative Tribunal.

The legal issues before the court centred on the meaning of "capacity for self-management" as it pertains to the appointment of a guardian under the NSW Trustee and Guardian Act. The court was required to determine whether the practice of using "tests" to assess incapacity was appropriate and whether the subjective circumstances of the individual should be considered. Additionally, the court had to interpret the phrase "incapable of managing affairs" within the context of the Act, taking into account the nature and purpose of the protective jurisdiction.

The court found that the test for capacity to manage one's affairs involves a consideration of the subjective circumstances of the individual. It emphasised that the concept of capacity is governed by the nature and purpose of the protective jurisdiction. The court held that the practice of using tests to assess incapacity has its utility but also has limitations. The court further clarified that the term "incapable of managing affairs" should be interpreted in light of the overall protective framework provided by the Act. This interpretation ensures that the rights and dignity of the individual are preserved while providing necessary support.

The final orders of the court included a clarification of the interpretation of "capacity for self-management" and the limitations of using tests to assess incapacity. The court's decision provided guidance for future assessments under the NSW Trustee and Guardian Act, ensuring that the subjective circumstances of the individual are adequately considered.

Orders