QZH - [2023] NSWCATGD 21

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: QZH [2023] NSWCATGD 21
Hearing dates: 4 October 2023
Date of orders: 25 October 2023
Decision date: 25 October 2023
Jurisdiction: Guardianship Division
Before: A R Boxall, Senior Member (Legal)
Dr I L Beale, Senior Member (Professional)
F N Given, General Member (Community)
Decision:
001: Financial Management Application
1. The estate of QZH is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of QZH is committed to the NSW Trustee and Guardian.
002: Guardianship Application
1. A guardianship order is made for QZH.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 25 October 2023.
4. This is a limited guardianship order giving the guardian(s) custody of QZH to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where QZH may reside.
b) Health care
To decide what health care QZH may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where QZH is not capable of giving a valid consent.
d) Services
To make decisions about services to be provided to QZH.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring QZH to an understanding of the issues and to obtain and consider his views before making significant decisions.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person diagnosed with dementia – existing appointment of enduring guardianship not working in the subject person’s best interests – need for a guardian to make decisions about accommodation, services, health care, and consent to medical and dental treatment – proposed guardians not suitable to be appointed – Public Guardian appointed – order made
FINANCIAL MANAGEMENT – application for a financial management order – subject person incapable of managing their own affairs – existing appointment of enduring attorney – attorney obtained financial benefit with no authority – need for the appointment of an independent financial manager – NSW Trustee and Guardian appointed – order made

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), s 36
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 25M
Powers of Attorney Act 2003 (NSW), s 12
Powers of Attorney Regulations 2016 (NSW)

Cases Cited:
IF v IG [2004] NSWADTAP 3

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Financial Management Application

QZH (the person)
KAH (applicant)
OYH (carer)
NSW Trustee and Guardian
UBH (spouse)

002: Guardianship Application
QZH (the person)
KAH (applicant)
OYH (carer)
Public Guardian
UBH (spouse)
Representation: Nil.

File Number(s): NCAT 2023/00155910
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:

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 QZH

Details

AGLC: QZH [2023] NSWCATGD 21
Case: [2023] NSWCATGD 21
Decision Date: 25 October 2023

CaseChat Overview and Summary

The case involves an application for both guardianship and financial management orders concerning QZH, an individual diagnosed with dementia. The court was tasked with determining whether a guardianship order should be made due to the existing appointment of an enduring guardian not working in QZH's best interests, and whether a financial management order should be issued as QZH was incapable of managing their own affairs. The existing enduring attorney had misappropriated financial benefits without authority.

The court assessed the necessity of appointing a new guardian to make decisions about QZH's accommodation, health care, and consent to medical and dental treatment. It also evaluated the suitability of proposed guardians, ultimately finding them unsuitable. Consequently, the Public Guardian was appointed. For the financial management application, the court concluded that QZH could not manage their own affairs and appointed the NSW Trustee and Guardian as the financial manager.

The court's reasoning was that QZH's condition necessitated a guardianship order to protect their interests and ensure appropriate decisions were made regarding their living arrangements, health care, and consent to medical and dental treatment. Additionally, the court found the existing enduring attorney's actions unacceptable and ordered the NSW Trustee and Guardian to manage QZH's estate. The court made a guardianship order appointing the Public Guardian as QZH's guardian, and a financial management order committing QZH's estate to the NSW Trustee and Guardian.

The orders included a financial management order committing QZH's estate to the NSW Trustee and Guardian and a guardianship order appointing the Public Guardian as QZH's guardian for twelve months. The guardianship order was limited, allowing the guardian to make decisions about QZH's accommodation, health care, consent to medical and dental treatment, and services. The guardian was required to consider QZH's views before making significant decisions.

Orders

Orders of the court

001: Financial Management Application

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

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

002: Guardianship Application

1. A guardianship order is made for QZH.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 25 October 2023.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where QZH may reside.

b) Health care

To decide what health care QZH may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to QZH.

CONDITION:

6. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring QZH to an understanding of the issues and to obtain and consider his 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:	QZH [2023] NSWCATGD 21
Hearing dates:	4 October 2023
Date of orders:	25 October 2023
Decision date:	25 October 2023
Jurisdiction:	Guardianship Division
Before:	A R Boxall, Senior Member (Legal) Dr I L Beale, Senior Member (Professional) F N Given, General Member (Community)
Decision:	001: Financial Management Application 1. The estate of QZH is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of QZH is committed to the NSW Trustee and Guardian. 002: Guardianship Application 1. A guardianship order is made for QZH. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 25 October 2023. 4. This is a limited guardianship order giving the guardian(s) custody of QZH to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where QZH may reside. b) Health care To decide what health care QZH may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where QZH is not capable of giving a valid consent. d) Services To make decisions about services to be provided to QZH. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring QZH to an understanding of the issues and to obtain and consider his views before making significant decisions.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person diagnosed with dementia – existing appointment of enduring guardianship not working in the subject person’s best interests – need for a guardian to make decisions about accommodation, services, health care, and consent to medical and dental treatment – proposed guardians not suitable to be appointed – Public Guardian appointed – order made FINANCIAL MANAGEMENT – application for a financial management order – subject person incapable of managing their own affairs – existing appointment of enduring attorney – attorney obtained financial benefit with no authority – need for the appointment of an independent financial manager – NSW Trustee and Guardian appointed – order made
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 36 Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 25M Powers of Attorney Act 2003 (NSW), s 12 Powers of Attorney Regulations 2016 (NSW)
Cases Cited:	IF v IG [2004] NSWADTAP 3
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Financial Management Application QZH (the person) KAH (applicant) OYH (carer) NSW Trustee and Guardian UBH (spouse) 002: Guardianship Application QZH (the person) KAH (applicant) OYH (carer) Public Guardian UBH (spouse)
Representation:	Nil.
File Number(s):	NCAT 2023/00155910
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: