TDG - [2020] NSWCATGD 81

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: TDG [2020] NSWCATGD 81
Hearing dates: 28 September 2020
Date of orders: 28 September 2020
Decision date: 28 September 2020
Jurisdiction: Guardianship Division
Before: J S Currie, Senior Member (Legal)
Decision:
The guardianship order for TDG made on 30 April 2020 has been reviewed. The order now is as follows:
1. QAX of [Address removed for publication.] is appointed as the guardian.
2. This is a continuing guardianship order for a period of two years from 28 September 2020.
3. This is a limited guardianship order giving the guardian custody of TDG to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
a) Accommodation
To decide where TDG may reside.
b) Health care
To decide what health care TDG may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where TDG is not capable of giving a valid consent.
d) Services
To make decisions about services to be provided to TDG.
e) Legal services
To make decisions for TDG in relation to access to legal services.
CONDITION:
5. The condition of this order is the Standard Condition. In exercising this role the guardian shall take all reasonable steps to bring TDG to an understanding of the issues and to obtain and consider their views before making significant decisions.

Catchwords:
GUARDIANSHIP – requested review of guardianship order – whether the appointment of a guardian should be revoked – suitability of guardian – subject person and witnesses support continuation of guardian – guardian has nursing background and understanding of the responsibilities – evidence does not support revoking the appointment – need for decisions about legal services – private guardian reappointed – guardianship order varied

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), s 36
Guardianship Act 1987 (NSW), ss 3, 4, 14, 14(2), 15(3), 17, 17(1), 17(1)(c)

Cases Cited:
FGE (2) [2012] NSWGT 3
Holt v The Protective Commissioner (1993) 31 NSWLR 227
KW v The Protective Commissioner and Anor [2008] NSWADTAT 5
M v M [2013] NSWSC 1495
P v D1 & Ors [2011] NSWSC 257
W v G [2003] NSWSC 1170
ZGB v ZGC [2018] NSWCATAP 58

Texts Cited:
Nil

Category: Principal judgment
Parties:
007: Requested Review of Guardianship Order
TDG (person under guardianship)
CZT (applicant)
QAX (appointed guardian)
Public Guardian (statutory party)
Representation: Nil

File Number(s): NCAT 2019/00391245
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

REVIEW OF A GUARDIANSHIP ORDER

Background

TDG

TDG, aged 92 years, has been diagnosed with diminished short-term memory and a degree of cognitive impairment and occasional confusion. She has a history of physical comorbidities including urinary tract infection, osteoarthritis, osteoporosis, gastro-intestinal reflux disorder. She has experienced falls.
TDG currently lives at…

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 TDG

Details

AGLC: TDG [2020] NSWCATGD 81
Case: [2020] NSWCATGD 81
Decision Date: 28 September 2020

CaseChat Overview and Summary

In the matter of TDG, the court reviewed a guardianship order to determine the suitability of the current guardian and whether the appointment should be revoked. TDG is the subject person who requires a guardian due to an inability to manage their affairs. The guardian in question, QAX, holds a nursing background and has demonstrated an understanding of their responsibilities. The court had to consider the evidence presented regarding the guardian's suitability and the views of TDG and witnesses, who all supported the continuation of the guardianship arrangement. The evidence did not support the revocation of the guardian's appointment.

The court evaluated the role of the guardian, including the need for decisions about legal services. It considered the benefits of the guardian's nursing background and their ability to make informed decisions on TDG's behalf. The court concluded that the evidence did not justify revoking the appointment of the guardian, QAX. Consequently, the court decided to reappoint QAX as the guardian and vary the guardianship order to reflect the new terms, including the specific functions and conditions under which the guardian operates.

The court's decision resulted in a modified guardianship order for TDG, appointing QAX as the guardian for a period of two years. The order includes a list of functions the guardian is authorised to perform, such as decisions about accommodation, health care, medical and dental consent, services, and legal services. The guardian is required to take reasonable steps to involve TDG in understanding the issues and to consider their views before making significant decisions. This order reflects the court's findings regarding the suitability of the guardian and the need for continued support and decision-making on TDG's behalf.

Orders

Orders of the court

The guardianship order for TDG made on 30 April 2020 has been reviewed. The order now is as follows:

1. QAX of [Address removed for publication.] is appointed as the guardian.

2. This is a continuing guardianship order for a period of two years from 28 September 2020.

3. This is a limited guardianship order giving the guardian custody of TDG to the extent necessary to carry out the functions below.

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where TDG may reside.

b) Health care

To decide what health care TDG may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to TDG.

e) Legal services

To make decisions for TDG in relation to access to legal services.

CONDITION:

5. The condition of this order is the Standard Condition. In exercising this role the guardian shall take all reasonable steps to bring TDG to an understanding of the issues and to obtain and consider their 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:	TDG [2020] NSWCATGD 81
Hearing dates:	28 September 2020
Date of orders:	28 September 2020
Decision date:	28 September 2020
Jurisdiction:	Guardianship Division
Before:	J S Currie, Senior Member (Legal)
Decision:	The guardianship order for TDG made on 30 April 2020 has been reviewed. The order now is as follows: 1. QAX of [Address removed for publication.] is appointed as the guardian. 2. This is a continuing guardianship order for a period of two years from 28 September 2020. 3. This is a limited guardianship order giving the guardian custody of TDG to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Accommodation To decide where TDG may reside. b) Health care To decide what health care TDG may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where TDG is not capable of giving a valid consent. d) Services To make decisions about services to be provided to TDG. e) Legal services To make decisions for TDG in relation to access to legal services. CONDITION: 5. The condition of this order is the Standard Condition. In exercising this role the guardian shall take all reasonable steps to bring TDG to an understanding of the issues and to obtain and consider their views before making significant decisions.
Catchwords:	GUARDIANSHIP – requested review of guardianship order – whether the appointment of a guardian should be revoked – suitability of guardian – subject person and witnesses support continuation of guardian – guardian has nursing background and understanding of the responsibilities – evidence does not support revoking the appointment – need for decisions about legal services – private guardian reappointed – guardianship order varied
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 36 Guardianship Act 1987 (NSW), ss 3, 4, 14, 14(2), 15(3), 17, 17(1), 17(1)(c)
Cases Cited:	FGE (2) [2012] NSWGT 3 Holt v The Protective Commissioner (1993) 31 NSWLR 227 KW v The Protective Commissioner and Anor [2008] NSWADTAT 5 M v M [2013] NSWSC 1495 P v D1 & Ors [2011] NSWSC 257 W v G [2003] NSWSC 1170 ZGB v ZGC [2018] NSWCATAP 58
Texts Cited:	Nil
Category:	Principal judgment
Parties:	007: Requested Review of Guardianship Order TDG (person under guardianship) CZT (applicant) QAX (appointed guardian) Public Guardian (statutory party)
Representation:	Nil
File Number(s):	NCAT 2019/00391245
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.