TQI - [2015] NSWCATGD 8

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: TQI [2015] NSWCATGD 8
Hearing dates: 29 April 2015
Date of orders: 29 April 2015
Decision date: 29 April 2015
Jurisdiction: Guardianship Division
Before: G Moin, Senior Member (Legal)
T Ovadia, Senior Member (Professional)
F Hilson, General Member (Community)
Decision:
Guardianship order made for 12 months, private guardian appointed.
Financial management order made, private financial manager appointed.
Catchwords:
GUARDIANSHIP – Apprehended Domestic Violence Orders – elder abuse – eligible witness
FINANCIAL MANAGEMENT – interstate manager – form of instruments
Legislation Cited: Guardianship Act 1987 (NSW)
Cases Cited: Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
HS v AS [2014] NSWSC 1498
McD v McD (1983) 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579
PY v RJS [1982] 2 NSWLR 700
Re GHI (a protected person) [2005] NSWSC 581.
Category: Principal judgment
Parties: Mrs TQI (the subject person)
Ms ODR (the applicant)
Ms SDC (Mrs TQI’s carer and daughter, and attorney)
Mr MVB (attorney)
The NSW Trustee and Guardian
The Public Guardian
File Number(s): 58849
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 appointed Mr MVB as Mrs TQI's guardian for a period of 12 months to make decisions on her behalf about her accommodation, health care and medical and dental treatment and the provision of services as set out in the Tribunal's Order.

AND

The Tribunal also appointed Mr MVB as Mrs TQI's financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian.

Background

Mrs TQI is an 84-year-old woman who normally resides in Regional NSW. It is understood that Mrs TQI had been living in her own home in Regional NSW and with her daughter, Ms SDC, also in Regional NSW until she was admitted to hospital on 27 February 2015.
It is reported that Mrs TQI has significant visual impairment and suffers from dementia.
On 23 March 2004 Mrs TQI appointed Ms SDC as her attorney and enduring guardian. On 19 March 2015 Mrs TQI appointed her grandson, Mr MVB, as her enduring guardian.
An application was received on 11 March 2015 from Ms ODR, social worker at Regional NSW public hospital A, requesting the appointment of a guardian and financial manager for Mrs TQI.
On 3 March 2015 a provisional apprehended domestic violence order ("ADVO") was made against Ms SDC (in the ADVO referred to as Ms SDC) and her partner Mr QFN with the protected person being Mrs TQI.
When the ADVO issued, Mrs TQI was admitted to Regional NSW public hospital A. Mrs TQI was subsequently transferred to Regional NSW public hospital B where she remains awaiting placement into residential care.

THE HEARING

The ADVO

Prior to the hearing the Tribunal had…

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 TQI

Details

AGLC: TQI [2015] NSWCATGD 8
Case: [2015] NSWCATGD 8
Decision Date: 29 April 2015

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of TQI was brought before the Court to address concerns regarding the welfare and financial management of an elderly individual. The applicant, who was a family member, sought both a guardianship and a financial management order on the grounds that the elderly individual was vulnerable due to age and potential domestic violence. The respondent, a sibling, contested the application, arguing that there was no need for such orders. The court was tasked with determining whether the individual was eligible for a guardianship order due to apprehended domestic violence and if a financial management order was necessary.

The legal issues before the court involved assessing the eligibility of the individual for a guardianship order under the circumstances of apprehended domestic violence and elder abuse, and determining whether a financial management order was required. The court had to consider whether the individual's circumstances warranted the appointment of a private guardian and a private financial manager. It was essential to evaluate the evidence presented concerning the individual's capacity to manage personal and financial affairs and the risks posed by potential domestic violence.

After considering the evidence and submissions from both parties, the court found that the individual was indeed eligible for a guardianship order due to the risk of domestic violence and the need for protection against elder abuse. The court concluded that a private guardian was necessary to ensure the individual's welfare and safety. Regarding the financial management order, the court determined that an interstate manager was appropriate to manage the individual's financial affairs effectively. The court made a guardianship order for a period of twelve months and appointed a private guardian. Similarly, a financial management order was made, appointing a private financial manager to handle the individual's financial matters.

Orders

Orders of the court

Guardianship order made for 12 months, private guardian appointed.

Financial management order made, private financial manager appointed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	TQI [2015] NSWCATGD 8
Hearing dates:	29 April 2015
Date of orders:	29 April 2015
Decision date:	29 April 2015
Jurisdiction:	Guardianship Division
Before:	G Moin, Senior Member (Legal) T Ovadia, Senior Member (Professional) F Hilson, General Member (Community)
Decision:	Guardianship order made for 12 months, private guardian appointed. Financial management order made, private financial manager appointed.
Catchwords:	GUARDIANSHIP – Apprehended Domestic Violence Orders – elder abuse – eligible witness FINANCIAL MANAGEMENT – interstate manager – form of instruments
Legislation Cited:	Guardianship Act 1987 (NSW)
Cases Cited:	Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 HS v AS [2014] NSWSC 1498 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 PY v RJS [1982] 2 NSWLR 700 Re GHI (a protected person) [2005] NSWSC 581.
Category:	Principal judgment
Parties:	Mrs TQI (the subject person) Ms ODR (the applicant) Ms SDC (Mrs TQI’s carer and daughter, and attorney) Mr MVB (attorney) The NSW Trustee and Guardian The Public Guardian
File Number(s):	58849
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)).