QZE - [2019] NSWCATGD 20

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: QZE [2019] NSWCATGD 20
Hearing dates: 3 December 2019
Date of orders: 03 December 2019
Decision date: 03 December 2019
Jurisdiction: Guardianship Division
Before: C P Fougere, Principal Member
Dr C Pratten, Senior Member (Professional)
L Esdaile, General Member (Community)
Decision:
Guardianship
1. A guardianship order is made for QZE.

2. GBT, of [Address removed for publication.], is appointed as the guardian.

3. UKE, of [Address removed for publication.], is appointed as the alternative guardian.

4. This is a continuing guardianship order for a period of 12 months from 4 December 2019.

5. This order will not be reviewed at the end of the above period.

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

FUNCTIONS: GBT

7. GBT has the following functions:

a) Accommodation

To decide where QZE may reside.

b) Health care

To decide what health care QZE may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to QZE.

CONDITION:

8. The condition of this order is:

a) Standard Condition

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

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

2. GBT, of [Address removed for publication.] and UKE, 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 guardian – where subject person is no longer able to live independently – where subject person lacks insight in to her current needs – not practicable for decisions to be made without a guardianship order – family in agreement about need for guardian and who should be appointed – guardian appointed – alternative guardian appointed – order made.
GUARDIANSHIP – financial management – application for a financial management order – whether subject person incapable of managing her own affairs – subject person lacks insight into her own financial matters – bank accounts not accessed for over 12 months – subject person has funds available – family members providing financial support – in best interests of subject person for a financial manager to be appointed – appointment of private financial manager – financial management order made.
Legislation Cited: Guardianship Act 1987 (NSW), 3(1)-(2), 4, 14, 14(2), 17(1), 25
Cases Cited: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court…

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 QZE

Details

AGLC: QZE [2019] NSWCATGD 20
Case: [2019] NSWCATGD 20
Decision Date: 03 December 2019

CaseChat Overview and Summary

In the matter of QZE, the Court was presented with an application for a guardianship order concerning the subject person's ability to live independently. The application was supported by family members who were in agreement about the necessity for a guardian and the suitability of the proposed guardian. The Court was required to determine whether a guardianship order was necessary, and if so, who should be appointed as the guardian.

The legal issues before the Court involved whether the subject person, QZE, was unable to live independently due to a lack of insight into her current needs, and whether it was not practicable for decisions to be made without a guardianship order. Additionally, the Court had to consider the family's agreement on the need for a guardian and the proposed appointment of GBT as the primary guardian and UKE as the alternative guardian.

The Court found that QZE was no longer able to live independently and that it was not practicable for decisions to be made without a guardianship order. The family's consensus on the need for a guardian and the suitability of GBT as the primary guardian were key factors in the Court's decision. Consequently, a guardianship order was made appointing GBT as the primary guardian and UKE as the alternative guardian, with the order being a continuing limited guardianship order for a period of 12 months.

The Court also determined that a financial management order was necessary as QZE was incapable of managing her own financial affairs, lacking insight into her financial matters. The Court found it was in the best interests of QZE to appoint a financial manager, given that her bank accounts had not been accessed for over 12 months and she was receiving financial support from family members. The estate of QZE is subject to management under the NSW Trustee and Guardian Act 2009, with GBT and UKE jointly and severally appointed as the financial managers. The financial managers are not authorised to deal with the estate until they have obtained all necessary authorities from the NSW Trustee and Guardian.

Orders

Orders of the court

Guardianship

1. A guardianship order is made for QZE.

2. GBT, of [Address removed for publication.], is appointed as the guardian.

3. UKE, of [Address removed for publication.], is appointed as the alternative guardian.

4. This is a continuing guardianship order for a period of 12 months from 4 December 2019.

5. This order will not be reviewed at the end of the above period.

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

FUNCTIONS: GBT

7. GBT has the following functions:

a) Accommodation

To decide where QZE may reside.

b) Health care

To decide what health care QZE may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to QZE.

CONDITION:

8. The condition of this order is:

a) Standard Condition

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

Financial Management

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

2. GBT, of [Address removed for publication.] and UKE, 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:	QZE [2019] NSWCATGD 20
Hearing dates:	3 December 2019
Date of orders:	03 December 2019
Decision date:	03 December 2019
Jurisdiction:	Guardianship Division
Before:	C P Fougere, Principal Member Dr C Pratten, Senior Member (Professional) L Esdaile, General Member (Community)
Decision:	Guardianship 1. A guardianship order is made for QZE. 2. GBT, of [Address removed for publication.], is appointed as the guardian. 3. UKE, of [Address removed for publication.], is appointed as the alternative guardian. 4. This is a continuing guardianship order for a period of 12 months from 4 December 2019. 5. This order will not be reviewed at the end of the above period. 6. This is a limited guardianship order giving the guardian(s) custody of QZE to the extent necessary to carry out the functions below. FUNCTIONS: GBT 7. GBT has the following functions: a) Accommodation To decide where QZE may reside. b) Health care To decide what health care QZE may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where QZE is not capable of giving a valid consent. d) Services To make decisions about services to be provided to QZE. CONDITION: 8. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring QZE to an understanding of the issues and to obtain and consider her views before making significant decisions. Financial Management 1. The estate of QZE is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. GBT, of [Address removed for publication.] and UKE, 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 guardian – where subject person is no longer able to live independently – where subject person lacks insight in to her current needs – not practicable for decisions to be made without a guardianship order – family in agreement about need for guardian and who should be appointed – guardian appointed – alternative guardian appointed – order made. GUARDIANSHIP – financial management – application for a financial management order – whether subject person incapable of managing her own affairs – subject person lacks insight into her own financial matters – bank accounts not accessed for over 12 months – subject person has funds available – family members providing financial support – in best interests of subject person for a financial manager to be appointed – appointment of private financial manager – financial management order made.
Legislation Cited:	Guardianship Act 1987 (NSW), 3(1)-(2), 4, 14, 14(2), 17(1), 25
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court…