PND - [2020] NSWCATGD 23

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: PND [2020] NSWCATGD 23
Hearing dates: 7 February 2020
Date of orders: 7 February 2020
Decision date: 07 February 2020
Jurisdiction: Guardianship Division
Before: V Massey, Senior Member (Legal)
Professor C Willcox, Senior Member (Professional)
M L Williams, General Member (Community)
Decision:
Guardianship Application
1. A guardianship order is made for PND.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of one year from 7 February 2020.
4. This is a limited guardianship order giving the guardian(s) custody of PND to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where PND may reside.
b) Health care
To decide what health care PND may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where PND is not capable of giving a valid consent.
d) Services
To make decisions about services to be provided to PND.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring PND to an understanding of the issues and to obtain and consider their views before making significant decisions.
Financial Management Application
1. The estate of PND is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of PND is committed to the NSW Trustee and Guardian.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – subject person is of advanced age – subject person has significant cognitive impairment – significant conflict within subject person’s close family - need for accommodation and health decisions – whether proposed guardian suitable to be appointed guardian – where a conflict of interest exists – proposed guardian’s accommodation interests conflicts with subject person’s financial needs – proposed guardian not suitable to be appointed guardian – Public Guardian appointed – order made.
FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their own affairs – subject person unable to recall bank balance – subject person lacks reasonably sound understanding of her assets and liabilities – subject person unable to identify circumstances where people may take advantage of her – best interests of the subject person that an order be made – significant conflict within subject person’s family – importance of preserving subject person’s family relationships - no private person suitable to be appointed – NSW Trustee and Guardian appointed – order made.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 3E(1), 4, 14, 14(2), 15(3), 17(1), 18(1)(a), 25M, 33A(4), 33A(4)(d)

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep
IF v IG [2004] NSWADTAP 3
P v D1 & Ors [2011]…

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 PND

Details

AGLC: PND [2020] NSWCATGD 23
Case: [2020] NSWCATGD 23
Decision Date: 07 February 2020

CaseChat Overview and Summary

In the matter of PND, the Supreme Court of New South Wales was presented with applications for both guardianship and financial management orders. The dispute arose due to concerns about PND's ability to manage her personal and financial affairs, given her advanced age and significant cognitive impairment. The application for a guardianship order was made due to the need for decisions regarding her accommodation and healthcare, amidst significant family conflict. The application for a financial management order sought to address PND's inability to manage her own financial affairs.

The court was required to determine whether PND was a person in need of a guardian, given her cognitive impairment and the family conflict. Additionally, the court needed to assess whether the proposed guardian was suitable for the role, considering potential conflicts of interest, and if no private person was suitable, who should be appointed. For the financial management order, the court had to decide if PND was incapable of managing her own affairs and if a suitable private person or the Public Trustee could be appointed to manage her estate.

The court found that PND was indeed a person in need of a guardian due to her age and cognitive impairment, necessitating decisions on her accommodation and healthcare. However, the proposed guardian was deemed unsuitable due to conflicts of interest and the court appointed the Public Guardian instead. The Public Guardian was granted limited guardianship functions, including decisions about PND's residence, healthcare, and services, with a condition to involve PND in decision-making where possible. For the financial management order, the court concluded that PND was incapable of managing her own affairs and appointed the NSW Trustee and Guardian to manage her estate.

The court made a guardianship order appointing the Public Guardian as PND's guardian for one year, with specific functions related to accommodation and healthcare. The order also mandated the Public Guardian to consider PND's views in significant decisions. For the financial management order, the court committed PND's estate to the management of the NSW Trustee and Guardian.

Orders

Orders of the court

Guardianship Application

1. A guardianship order is made for PND.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of one year from 7 February 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where PND may reside.

b) Health care

To decide what health care PND may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to PND.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management Application

1. The estate of PND is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. The management of the estate of PND is committed to the NSW Trustee and Guardian.

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:	PND [2020] NSWCATGD 23
Hearing dates:	7 February 2020
Date of orders:	7 February 2020
Decision date:	07 February 2020
Jurisdiction:	Guardianship Division
Before:	V Massey, Senior Member (Legal) Professor C Willcox, Senior Member (Professional) M L Williams, General Member (Community)
Decision:	Guardianship Application 1. A guardianship order is made for PND. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of one year from 7 February 2020. 4. This is a limited guardianship order giving the guardian(s) custody of PND to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where PND may reside. b) Health care To decide what health care PND may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where PND is not capable of giving a valid consent. d) Services To make decisions about services to be provided to PND. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring PND to an understanding of the issues and to obtain and consider their views before making significant decisions. Financial Management Application 1. The estate of PND is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of PND is committed to the NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – subject person is of advanced age – subject person has significant cognitive impairment – significant conflict within subject person’s close family - need for accommodation and health decisions – whether proposed guardian suitable to be appointed guardian – where a conflict of interest exists – proposed guardian’s accommodation interests conflicts with subject person’s financial needs – proposed guardian not suitable to be appointed guardian – Public Guardian appointed – order made. FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their own affairs – subject person unable to recall bank balance – subject person lacks reasonably sound understanding of her assets and liabilities – subject person unable to identify circumstances where people may take advantage of her – best interests of the subject person that an order be made – significant conflict within subject person’s family – importance of preserving subject person’s family relationships - no private person suitable to be appointed – NSW Trustee and Guardian appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 3E(1), 4, 14, 14(2), 15(3), 17(1), 18(1)(a), 25M, 33A(4), 33A(4)(d)
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep IF v IG [2004] NSWADTAP 3 P v D1 & Ors [2011]…