TBM - [2020] NSWCATGD 43

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: TBM [2020] NSWCATGD 43
Hearing dates: 13 February 2020
Date of orders: 13 February 2020
Decision date: 13 February 2020
Jurisdiction: Guardianship Division
Before: J Conley, Senior Member (Legal)
F Duffy, Senior Member (Professional)
B R Epstein-Frisch AM, General Member (Community)
Decision:
Guardianship Application
1. A guardianship order is made for TBM.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of one year from 13 February 2020.
4. This order will not be reviewed at the end of the above period.
5. This is a limited guardianship order giving the guardian(s) custody of TBM to the extent necessary to carry out the functions below.
FUNCTIONS:
6. The guardian has the following functions:
a) Accommodation
To decide where TBM may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take TBM to a place approved by the guardian.
ii) keep her at that place.
iii) return her to that place should she leave it.
c) Services
To make decisions about services to be provided to TBM.
CONDITION:
7. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring TBM to an understanding of the issues and to obtain and consider her views before making significant decisions.
Financial Management Application
1. The estate of TBM is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of TBM is committed to the NSW Trustee and Guardian.

Catchwords:
GUARDIANSHIP – application for a guardianship order – subject person an inpatient in hospital following episode of aggression – subject person has cognitive impairment – subject person requires high level care – whether a guardianship order should be made – subject person absconding from hospital – need for accommodation decisions with authority to authorise others – no private person willing to be appointed – Public Guardian appointed – order made.
FINANCIAL MANAGEMENT – application for a financial management order – whether there is a need for a financial management order – need for accommodation fees and deposit to be paid – no private person available to be appointed – NSW Trustee and Guardian appointed – order made.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 25M

Cases Cited:
CJ v AKJ [2015] NSWSC 498
IF v IG [2004] NSWADTAP 3
McD v McD (1983) 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579
P v R [2003] NSWSC 819
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: Guardianship Application

TBM (the person)
Nepean Blue Mountains Local Health District (applicant)
BZG (carer)
Public Guardian

002: Financial Management Application
TBM (the person)
Nepean Blue Mountains Local Health District (applicant)
BZG…

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 TBM

Details

AGLC: TBM [2020] NSWCATGD 43
Case: [2020] NSWCATGD 43
Decision Date: 13 February 2020

CaseChat Overview and Summary

In the matter of TBM, the Court was called upon to make decisions regarding guardianship and financial management for the subject person who had been hospitalised following an incident of aggression. The subject person, who has cognitive impairment, requires high-level care and had absconded from the hospital, necessitating decisions regarding her accommodation and the payment of associated fees. The court had to determine whether a guardianship order should be made and, if so, who should be appointed as the guardian. Additionally, the court needed to decide if a financial management order was necessary to cover the subject person's accommodation costs and if a suitable private person was available to be appointed for the role.

The court considered the necessity of a guardianship order given the subject person's cognitive impairment and the circumstances surrounding her hospitalisation. It was noted that no private person was willing to take on the role of guardian, leading to the appointment of the Public Guardian. The court found that a guardianship order was warranted to ensure the subject person's safety and care, particularly in the context of her need for high-level care and the absence of a willing private guardian. The court also determined that a financial management order was necessary to manage the subject person's estate, specifically to cover accommodation fees and deposits, and appointed the NSW Trustee and Guardian to this role.

Following the court's reasoning, a guardianship order was made for TBM, with the Public Guardian appointed as her guardian for a period of one year. The order includes limited guardianship functions, primarily focusing on accommodation decisions and authorising others to take the subject person to an approved place. The order stipulates that the guardian must take reasonable steps to involve TBM in decision-making processes. Additionally, a financial management order was made, committing the management of TBM's estate to the NSW Trustee and Guardian. The court's decisions reflect a careful consideration of the subject person's needs and the unavailability of private individuals to assume these responsibilities.

Orders

Orders of the court

Guardianship Application

1. A guardianship order is made for TBM.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of one year from 13 February 2020.

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

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

FUNCTIONS:

6. The guardian has the following functions:

a) Accommodation

To decide where TBM may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take TBM to a place approved by the guardian.

ii) keep her at that place.

iii) return her to that place should she leave it.

c) Services

To make decisions about services to be provided to TBM.

CONDITION:

7. The condition of this order is:

a) Standard Condition

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

Financial Management Application

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

2. The management of the estate of TBM is committed to 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:	TBM [2020] NSWCATGD 43
Hearing dates:	13 February 2020
Date of orders:	13 February 2020
Decision date:	13 February 2020
Jurisdiction:	Guardianship Division
Before:	J Conley, Senior Member (Legal) F Duffy, Senior Member (Professional) B R Epstein-Frisch AM, General Member (Community)
Decision:	Guardianship Application 1. A guardianship order is made for TBM. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of one year from 13 February 2020. 4. This order will not be reviewed at the end of the above period. 5. This is a limited guardianship order giving the guardian(s) custody of TBM to the extent necessary to carry out the functions below. FUNCTIONS: 6. The guardian has the following functions: a) Accommodation To decide where TBM may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take TBM to a place approved by the guardian. ii) keep her at that place. iii) return her to that place should she leave it. c) Services To make decisions about services to be provided to TBM. CONDITION: 7. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring TBM to an understanding of the issues and to obtain and consider her views before making significant decisions. Financial Management Application 1. The estate of TBM is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of TBM is committed to the NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – application for a guardianship order – subject person an inpatient in hospital following episode of aggression – subject person has cognitive impairment – subject person requires high level care – whether a guardianship order should be made – subject person absconding from hospital – need for accommodation decisions with authority to authorise others – no private person willing to be appointed – Public Guardian appointed – order made. FINANCIAL MANAGEMENT – application for a financial management order – whether there is a need for a financial management order – need for accommodation fees and deposit to be paid – no private person available to be appointed – NSW Trustee and Guardian appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 25M
Cases Cited:	CJ v AKJ [2015] NSWSC 498 IF v IG [2004] NSWADTAP 3 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 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: Guardianship Application TBM (the person) Nepean Blue Mountains Local Health District (applicant) BZG (carer) Public Guardian 002: Financial Management Application TBM (the person) Nepean Blue Mountains Local Health District (applicant) BZG…