TBU - [2021] NSWCATGD 30

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: TBU [2021] NSWCATGD 30
Hearing dates: 13 September 2021
Date of orders: 13 September 2021
Decision date: 13 September 2021
Jurisdiction: Guardianship Division
Before: B L Adamovich, Senior Member (Legal)
Dr M Clayton, Senior Member (Professional)
J V Le Breton, General Member (Community)
Decision:
Guardianship:
1. A guardianship order is made for TBU.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 13 September 2021.
4. This is a limited guardianship order giving the guardian(s) custody of TBU to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Access
To decide what access TBU has to others and the conditions of access.
b) Accommodation
To decide where TBU may reside.
c) Services
To make decisions about services to be provided to TBU.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role, the guardian shall take all reasonable steps to bring TBU to an understanding of the issues and to obtain and consider his views before making significant decisions.
Financial Management:
1. The estate of TBU is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of TBU is committed to the NSW Trustee and Guardian.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person is of advanced age – subject person resides in an aged care facility – hypoxic brain injury and spasticity – cognitive impairment – subject person made an appointment of enduring guardianship – allegations of elder abuse – undue influence by the subject person’s enduring guardian and carer – need to protect the subject person from abuse, neglect and exploitation – need for an independent decision maker – need for decisions to be made about access, accommodation and services – no private person suitable to be appointed – Public Guardian appointed – order made.
FINANCIAL MANAGEMENT – application for a financial management order – subject person made an appointment of enduring power of attorney – existing enduring power of attorney is not operating in the subject person’s best interests – subject person is incapable of managing their own financial affairs – vulnerable to financial exploitation – no private person suitable to be appointed – NSW Trustee and Guardian appointed – order made.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 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
PB v BB [2013] NSWSC 1223
Re D [2012] NSWSC 1006

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Guardianship Application

TBU (the person)
EZM (applicant)
HAU (enduring guardian)
Public Guardian

002: Financial Management Application
TBU…

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 TBU

Details

AGLC: TBU [2021] NSWCATGD 30
Case: [2021] NSWCATGD 30
Decision Date: 13 September 2021

CaseChat Overview and Summary

The case involved an application for a guardianship and financial management order for TBU, a person of advanced age residing in an aged care facility. The subject person had suffered a hypoxic brain injury and spasticity, resulting in cognitive impairment. The dispute centred on allegations of elder abuse and undue influence by the enduring guardian and carer, necessitating the need for an independent decision maker to protect TBU from abuse, neglect and exploitation. Additionally, there was a requirement for decisions regarding access, accommodation, and services to be made, and it was determined that no suitable private person could be appointed to these roles.

The legal issues the court had to decide included whether a guardianship order should be made to protect TBU from the alleged abuse and undue influence. Furthermore, it had to determine whether a financial management order should be made, given that the existing enduring power of attorney was not operating in TBU's best interests and TBU was incapable of managing their own financial affairs. The court also needed to consider whether any private person was suitable to be appointed as guardian or financial manager.

In reaching its decision, the court found that TBU's cognitive impairment made them vulnerable to abuse, neglect and exploitation, and the allegations of undue influence by the enduring guardian and carer were credible. The court concluded that an independent decision maker was necessary to safeguard TBU's interests. Additionally, it was determined that the existing enduring power of attorney was not acting in TBU's best interests and that no private person was suitable to be appointed as the financial manager. Consequently, the court made a guardianship order appointing the Public Guardian as the guardian for a period of 12 months, with specific functions related to access, accommodation, and services. The court also made a financial management order, committing TBU's estate to the management of the NSW Trustee and Guardian.

The orders made by the court included a guardianship order for TBU, appointing the Public Guardian as the guardian for a period of 12 months. The guardian was given specific functions related to access, accommodation, and services, with a condition to take reasonable steps to understand TBU's views before making significant decisions. Additionally, the court ordered that TBU's estate be managed by the NSW Trustee and Guardian under the NSW Trustee and Guardian Act 2009 (NSW).

Orders

Orders of the court

Guardianship:

1. A guardianship order is made for TBU.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 13 September 2021.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Access

To decide what access TBU has to others and the conditions of access.

b) Accommodation

To decide where TBU may reside.

c) Services

To make decisions about services to be provided to TBU.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management:

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

2. The management of the estate of TBU 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:	TBU [2021] NSWCATGD 30
Hearing dates:	13 September 2021
Date of orders:	13 September 2021
Decision date:	13 September 2021
Jurisdiction:	Guardianship Division
Before:	B L Adamovich, Senior Member (Legal) Dr M Clayton, Senior Member (Professional) J V Le Breton, General Member (Community)
Decision:	Guardianship: 1. A guardianship order is made for TBU. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 13 September 2021. 4. This is a limited guardianship order giving the guardian(s) custody of TBU to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Access To decide what access TBU has to others and the conditions of access. b) Accommodation To decide where TBU may reside. c) Services To make decisions about services to be provided to TBU. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role, the guardian shall take all reasonable steps to bring TBU to an understanding of the issues and to obtain and consider his views before making significant decisions. Financial Management: 1. The estate of TBU is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of TBU is committed to the NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person is of advanced age – subject person resides in an aged care facility – hypoxic brain injury and spasticity – cognitive impairment – subject person made an appointment of enduring guardianship – allegations of elder abuse – undue influence by the subject person’s enduring guardian and carer – need to protect the subject person from abuse, neglect and exploitation – need for an independent decision maker – need for decisions to be made about access, accommodation and services – no private person suitable to be appointed – Public Guardian appointed – order made. FINANCIAL MANAGEMENT – application for a financial management order – subject person made an appointment of enduring power of attorney – existing enduring power of attorney is not operating in the subject person’s best interests – subject person is incapable of managing their own financial affairs – vulnerable to financial exploitation – no private person suitable to be appointed – NSW Trustee and Guardian appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 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 PB v BB [2013] NSWSC 1223 Re D [2012] NSWSC 1006
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Guardianship Application TBU (the person) EZM (applicant) HAU (enduring guardian) Public Guardian 002: Financial Management Application TBU…