SDL - [2020] NSWCATGD 50

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: SDL [2020] NSWCATGD 50
Hearing dates: 1 July 2020
Date of orders: 1 July 2020
Decision date: 01 July 2020
Jurisdiction: Guardianship Division
Before: R H Booby, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
S Johnston, General Member (Community)
Decision:
1. A guardianship order is made for SDL.
2. LZE of [Address removed for publication.] and NAE of [Address removed for publication.] are appointed separately as the guardians.
3. This is a continuing guardianship order for a period of 12 months from 1 July 2020.
4. This is a limited guardianship order giving the guardian(s) custody of SDL to the extent necessary to carry out the functions below.
FUNCTIONS: LZE
5. LZE has the following functions:
a) Accommodation
To decide where SDL may reside.
b) Services
To make decisions about services to be provided to SDL.
FUNCTIONS: NAE
6. NAE has the following functions:
a) Health care
To decide what health care SDL may receive.
b) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where SDL is not capable of giving a valid consent.
CONDITION:
7. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring SDL to an understanding of the issues and to obtain and consider his views before making significant decisions.

Catchwords:
GUARDIANSHIP – application for a guardianship order – subject person with oppositional defiant disorder – subject person resident in a group home – whether a guardianship order should be made – need for accommodation and services decisions to be made – subject person unable to understand medical information – need for medical and dental treatment decisions – two guardians proposed with separate functions – private guardians appointed separately – order made.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1)

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] NSWSC 257
P v NSW Trustee and Guardian [2015] NSWSC 579
Re B [2011] NSWSC 1075

Texts Cited:
Nil

Category: Principal judgment
Parties:
003: Guardianship Application
SDL (the person)
QYS (applicant)
NAE (carer)
Public Guardian (statutory party)
Representation: Nil

File Number(s): NCAT 2018/00082725
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

GUARDIANSHIP APPLICATION

Background

SDL is 19 years old and lives in West Sydney in a group home that is managed by a service provider. He was previously living with his foster mother, NAE and just prior to moving to his current accommodation had been living with NAE’ sister, LZE. His birth mother is Ms Z.
On 4 June…

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 SDL

Details

AGLC: SDL [2020] NSWCATGD 50
Case: [2020] NSWCATGD 50
Decision Date: 01 July 2020

CaseChat Overview and Summary

In the Supreme Court of [Court Name], an application was made by [Applicant Name] for a guardianship order concerning SDL, a person with oppositional defiant disorder residing in a group home. The applicant sought the order to facilitate decisions about SDL's residence, services, and medical care, as SDL was unable to understand medical information or give valid consent for medical or dental treatment. Two separate private guardians were proposed, each with distinct functions.

The court needed to determine whether a guardianship order was necessary for SDL and, if so, which functions each proposed guardian should undertake. The court considered the subject person's capacity to make decisions, the necessity of the proposed guardianship, and the suitability of the proposed guardians. The court had to balance SDL's autonomy with the need for decisions to be made in their best interests.

The court found that a guardianship order was necessary for SDL, given their inability to make decisions about accommodation, services, and health care. The court appointed LZE and NAE as separate guardians, assigning specific functions to each. LZE was tasked with deciding SDL's residence and making service-related decisions, while NAE was responsible for health care decisions and giving medical and dental consent. The court imposed a condition that the guardians take reasonable steps to involve SDL in decision-making processes. The order is a limited guardianship for twelve months, commencing from 1 July 2020.

Orders

Orders of the court

1. A guardianship order is made for SDL.

2. LZE of [Address removed for publication.] and NAE of [Address removed for publication.] are appointed separately as the guardians.

3. This is a continuing guardianship order for a period of 12 months from 1 July 2020.

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

FUNCTIONS: LZE

5. LZE has the following functions:

a) Accommodation

To decide where SDL may reside.

b) Services

To make decisions about services to be provided to SDL.

FUNCTIONS: NAE

6. NAE has the following functions:

a) Health care

To decide what health care SDL may receive.

b) Medical/Dental consent

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

CONDITION:

7. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring SDL 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:	SDL [2020] NSWCATGD 50
Hearing dates:	1 July 2020
Date of orders:	1 July 2020
Decision date:	01 July 2020
Jurisdiction:	Guardianship Division
Before:	R H Booby, Senior Member (Legal) Dr B McPhee, Senior Member (Professional) S Johnston, General Member (Community)
Decision:	1. A guardianship order is made for SDL. 2. LZE of [Address removed for publication.] and NAE of [Address removed for publication.] are appointed separately as the guardians. 3. This is a continuing guardianship order for a period of 12 months from 1 July 2020. 4. This is a limited guardianship order giving the guardian(s) custody of SDL to the extent necessary to carry out the functions below. FUNCTIONS: LZE 5. LZE has the following functions: a) Accommodation To decide where SDL may reside. b) Services To make decisions about services to be provided to SDL. FUNCTIONS: NAE 6. NAE has the following functions: a) Health care To decide what health care SDL may receive. b) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where SDL is not capable of giving a valid consent. CONDITION: 7. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring SDL to an understanding of the issues and to obtain and consider his views before making significant decisions.
Catchwords:	GUARDIANSHIP – application for a guardianship order – subject person with oppositional defiant disorder – subject person resident in a group home – whether a guardianship order should be made – need for accommodation and services decisions to be made – subject person unable to understand medical information – need for medical and dental treatment decisions – two guardians proposed with separate functions – private guardians appointed separately – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1)
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] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 Re B [2011] NSWSC 1075
Texts Cited:	Nil
Category:	Principal judgment
Parties:	003: Guardianship Application SDL (the person) QYS (applicant) NAE (carer) Public Guardian (statutory party)
Representation:	Nil
File Number(s):	NCAT 2018/00082725
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.