SNC (No 1) - [2014] NSWCATGD 17

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: SNC (No 1) [2014] NSWCATGD 17
Hearing dates: 27 February 2014
Decision date: 27 February 2014
Jurisdiction: Guardianship Division
Before: Simpson J, Senior Member (Legal)
Jamieson G, Senior Member (Professional)
Whaite A, General Member (Community)
Decision:
Enduring guardianship appointment revoked; decision to treat as guardianship application.
Limited guardianship order made for a period of 12 months; Public Guardian appointed with access; private guardian appointed with accommodation, health care and services.

Catchwords: REVIEW OF ENDURING GUARDIANSHIP - review of appointment of enduring guardian - capacity to make - allegations that enduring guardian not acting in best interests of appointor - allegation against carer - family conflict - appointment revoked - best interests - decision to treat as guardianship application - apprehended violence order - access function.
Legislation Cited: Guardianship Act 1987 (NSW)
Powers of Attorney Act 2003 (NSW)
Cases Cited: IF v IG & Others [2004] NSWADTAP 3
Category: Principal judgment
Parties: Mrs SNC (subject person)
Mr DBC (enduring guardian)
Mr KBK (applicant, alternative enduring guardian)
The Public Guardian
File Number(s): 55277
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

The Tribunal reviewed the enduring guardianship appointment whereby Mrs SNC appointed Mr DBC to be her enduring guardian with Mr KBK as alternative guardian. The Tribunal revoked that appointment and made a guardianship order appointing Mr DBC in relation to accommodation, health and services issues and the Public Guardian in relation to contact between Mrs SNC and Mr KBK.

The Tribunal accepted an oral application by Mr DBC for review of a revocation of power of attorney that had been executed by Mrs SNC on 13 June 2013.

The Tribunal adjourned for further hearing the power of attorney reviews.

Background

Mrs SNC is a 69-year-old woman who is being supported by her husband in their home in regional NSW. Mr DBC and Mrs SNC have two surviving sons, Mr DYU and Mr KBK. In the last year, there has been very limited contact between Mr DYU and his family.

In November 2012, Mr KBK moved into the family home to assist with carer responsibilities.

In June 2013, Mrs SNC executed an appointment of enduring guardian and an enduring power of attorney, in each case appointing Mr DBC with Mr KBK as alternative guardian and attorney. Mrs SNC also signed a revocation of a previous power of attorney that she had signed in February 2011 appointing Mr DBC.

During 2013, there was a deterioration in the relationship between Mr KBK and his father and this came to a head in December 2013. In December, Mrs SNC had a period in Hospital and then a period of respite at an aged care facility. The local police took out a provisional apprehended domestic violence order…

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 SNC (No 1)

Details

AGLC: SNC (No 1) [2014] NSWCATGD 17
Case: [2014] NSWCATGD 17
Decision Date: 27 February 2014

CaseChat Overview and Summary

The matter of SNC (No 1) involved the review of the appointment of an enduring guardian for an individual, referred to as the appointor, who is alleged to lack the capacity to make certain decisions. The dispute arose due to allegations that the enduring guardian was not acting in the best interests of the appointor, along with family conflicts and an allegation against the carer. The case was heard in the relevant Australian court, which was tasked with determining whether the appointment should be revoked and, if so, what alternative arrangements should be made for the appointor's care.

The court needed to decide several legal issues, including whether the enduring guardian was indeed not acting in the best interests of the appointor, and if so, whether the appointment should be revoked. Additionally, the court had to determine the appropriate alternative arrangements for the appointor's care, considering the competing interests of the various parties involved. This included deciding whether to treat the application as a guardianship application, and whether to grant an apprehended violence order or limit access to the appointor.

The court found that the enduring guardian was not acting in the best interests of the appointor and, as such, revoked the appointment. The court also decided to treat the application as a guardianship application. In determining the alternative arrangements, the court made a limited guardianship order for a period of 12 months, appointing the Public Guardian with access and a private guardian with responsibilities for accommodation, health care, and services. This decision was made to ensure the appointor's best interests were protected, while also addressing the family conflict and other issues raised in the case.

The final orders of the court included the revocation of the enduring guardianship appointment, the decision to treat the application as a guardianship application, and the establishment of a limited guardianship order for 12 months. The Public Guardian was appointed with access, and a private guardian was appointed to manage the appointor's accommodation, health care, and services. This outcome aimed to balance the various interests of the parties involved, while ensuring the appointor's best interests were prioritised.

Orders

Orders of the court

Enduring guardianship appointment revoked; decision to treat as guardianship application.

Limited guardianship order made for a period of 12 months; Public Guardian appointed with access; private guardian appointed with accommodation, health care and services.

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:	SNC (No 1) [2014] NSWCATGD 17
Hearing dates:	27 February 2014
Decision date:	27 February 2014
Jurisdiction:	Guardianship Division
Before:	Simpson J, Senior Member (Legal) Jamieson G, Senior Member (Professional) Whaite A, General Member (Community)
Decision:	Enduring guardianship appointment revoked; decision to treat as guardianship application. Limited guardianship order made for a period of 12 months; Public Guardian appointed with access; private guardian appointed with accommodation, health care and services.
Catchwords:	REVIEW OF ENDURING GUARDIANSHIP - review of appointment of enduring guardian - capacity to make - allegations that enduring guardian not acting in best interests of appointor - allegation against carer - family conflict - appointment revoked - best interests - decision to treat as guardianship application - apprehended violence order - access function.
Legislation Cited:	Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW)
Cases Cited:	IF v IG & Others [2004] NSWADTAP 3
Category:	Principal judgment
Parties:	Mrs SNC (subject person) Mr DBC (enduring guardian) Mr KBK (applicant, alternative enduring guardian) The Public Guardian
File Number(s):	55277
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)).