PZD - [2019] NSWCATGD 31

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: PZD [2019] NSWCATGD 31
Hearing dates: 4 December 2019
Date of orders: 04 December 2019
Decision date: 04 December 2019
Jurisdiction: Guardianship Division
Before: K A McMahon, Senior Member (Legal)
L Houlahan, Senior Member (Professional)
M A Oxenham, General Member (Community)
Decision:
The application to appoint a guardian for PZD is dismissed after hearing.

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

2. BKN of [Address removed for publication.] and QLM of [Address removed for publication.] are appointed jointly and severally as the financial managers of the estate.
NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian.
Catchwords:
GUARDIANSHIP – application for a guardianship order – need for a guardianship order – subject person diagnosed with schizophrenia – subject person experiences delusions about wealth – practicability of services being provided without an order being made – informal arrangements in place effective in resolving concerns about decision-making – no need for a guardianship order – application dismissed.
FINANCIAL MANAGEMENT – application for a financial management order – subject person incapable of managing their own affairs – subject person experiences delusions about wealth – subject person unable to make sound judgments – subject person vulnerable to financial exploitation – suitability of proposed private manager – private managers jointly and severally appointed– order made.
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14, 14(2), 14(2)(b)–(d), 25M
Cases Cited: Application by AMAM; Re SAM [2011] NSWSC 503
CJ v AKJ [2015] NSWSC 498
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
Holt & Anor 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 NSW Trustee and Guardian [2015] NSWSC 579
P v R [2003] NSWSC 819
PB v BB [2013] NSWSC 1223
Re D [2012] NSWSC 1006
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Texts Cited: Nil
Category: Principal judgment
Parties:
001: Financial Management Application
PZD (the person)
QLM (applicant)
NSW Trustee and Guardian
002: Guardianship Application
PZD (the person)
QLM (applicant)
NSW Public Guardian
Representation: Nil

File Number(s): NCAT 2019/00291543
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

What the Tribunal Decided

We dismissed the application for a guardianship order for PZD.
We made a financial management order in relation to PZD and appointed QLM and BKN jointly and severally as her financial managers subject to the authorities and directions of the NSW Trustee and Guardian.

Background

PZD is aged 86 years. She lives in her own house…

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 PZD

Details

AGLC: PZD [2019] NSWCATGD 31
Case: [2019] NSWCATGD 31
Decision Date: 04 December 2019

CaseChat Overview and Summary

The case of PZD involved an application for a guardianship order concerning a person diagnosed with schizophrenia. The applicant sought the order due to concerns about the subject person's capacity to make sound decisions, particularly in relation to financial matters, owing to their delusional beliefs about wealth and their vulnerability to financial exploitation. The court also considered an application for a financial management order due to the subject person's incapacity to manage their own affairs. The key legal issues before the court were whether a guardianship order was necessary and whether a financial management order was appropriate given the circumstances. The court had to assess whether the existing informal arrangements were sufficient to address the concerns or if formal intervention was required.

In dismissing the application for a guardianship order, the court found that the informal arrangements already in place were effective in resolving the concerns about the subject person's decision-making. The court noted that the subject person's delusions did not necessitate a guardianship order since these arrangements were sufficient to manage their affairs. However, regarding the financial management order, the court concluded that the subject person was incapable of managing their own financial affairs due to their delusions and inability to make sound judgments. The court found the proposed private managers to be suitable and made an order appointing them jointly and severally to manage the subject person's estate. The financial managers, however, are not authorised to deal with the estate until they obtain all necessary authorities from the NSW Trustee and Guardian.

The court's decision resulted in the dismissal of the guardianship application and the appointment of two private managers to handle the subject person's financial affairs. The court emphasised that the financial managers are not permitted to deal with the estate until they have secured the necessary authorities from the NSW Trustee and Guardian. This decision highlights the court's consideration of the specific circumstances and the effectiveness of existing informal arrangements in determining the necessity of formal legal intervention.

Orders

Orders of the court

The application to appoint a guardian for PZD is dismissed after hearing.

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

2. BKN of [Address removed for publication.] and QLM of [Address removed for publication.] are appointed jointly and severally as the financial managers of the estate.

NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from 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:	PZD [2019] NSWCATGD 31
Hearing dates:	4 December 2019
Date of orders:	04 December 2019
Decision date:	04 December 2019
Jurisdiction:	Guardianship Division
Before:	K A McMahon, Senior Member (Legal) L Houlahan, Senior Member (Professional) M A Oxenham, General Member (Community)
Decision:	The application to appoint a guardian for PZD is dismissed after hearing. 1. The estate of PZD is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. BKN of [Address removed for publication.] and QLM of [Address removed for publication.] are appointed jointly and severally as the financial managers of the estate. NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – application for a guardianship order – need for a guardianship order – subject person diagnosed with schizophrenia – subject person experiences delusions about wealth – practicability of services being provided without an order being made – informal arrangements in place effective in resolving concerns about decision-making – no need for a guardianship order – application dismissed. FINANCIAL MANAGEMENT – application for a financial management order – subject person incapable of managing their own affairs – subject person experiences delusions about wealth – subject person unable to make sound judgments – subject person vulnerable to financial exploitation – suitability of proposed private manager – private managers jointly and severally appointed– order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14, 14(2), 14(2)(b)–(d), 25M
Cases Cited:	Application by AMAM; Re SAM [2011] NSWSC 503 CJ v AKJ [2015] NSWSC 498 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 Holt & Anor 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 NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re D [2012] NSWSC 1006 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Texts Cited:	Nil
Category:	Principal judgment
Parties:	001: Financial Management Application PZD (the person) QLM (applicant) NSW Trustee and Guardian 002: Guardianship Application PZD (the person) QLM (applicant) NSW Public Guardian
Representation:	Nil
File Number(s):	NCAT 2019/00291543
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).