NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: UAM [2020] NSWCATGD 85 Hearing dates: 4 August 2020 Date of orders: 4 August 2020 Decision date: 04 August 2020 Jurisdiction: Guardianship Division Before: C P Fougere, Principal Member Decision: The guardianship order for UAM made on 1 August 2019 has been reviewed. The order now is as follows:
1. The Public Guardian is appointed as the guardian.
2. This is a continuing guardianship order for a period of two years from 4 August 2020.
3. This is a limited guardianship order giving the guardian(s) custody of UAM to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
a) Access
To decide what access UAM has to others and the conditions of access.
b) Accommodation
To decide where UAM may reside.
c) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take UAM to a place approved by the guardian.
ii) keep them at that place.
iii) return them to that place should they leave it.
d) Health care
To decide what health care UAM may receive.
e) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where UAM is not capable of giving a valid consent.
CONDITION:
5. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring UAM to an understanding of the issues and to obtain and consider their views before making significant decisions.
Catchwords: GUARDIANSHIP – review of guardianship order – permanent resident of aged care facility – unsupported allegations of neglect and abuse by Public Guardian – concerns over separation of subject person and spouse – service needs met by aged care facility – suitability of proposed guardian – supporting material not received – no evidence on ability to meet statutory criteria – family conflict – separate representative and family member oppose proposed guardian – Public Guardian reappointed
PROCEDURE – rejection of adjournment request – guiding principle in Tribunal proceedings – non-compliance with evidence timetable – hearing proceeded in absence of certain evidence – reasonable opportunity to be heard – limits on presentation time of parties – unsupported allegations of actual bias of Tribunal Member – no evidence to support recusal
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 36(1), 38, 38(5)(c), 38(6)(a)-(c)
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a), 4(c), 4(e), 4(g), 14, 14(1)-(2), 15(3), 16(3), 17(1), 17(1)(a)-(c), 25(2)(a)-(c), 25C; Pt 5
Cases Cited: Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95
Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427
P v NSW Trustee and Guardian [2015] NSWSC 579
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
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- AGLC
- UAM [2020] NSWCATGD 85
- Case
- [2020] NSWCATGD 85
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Public Guardian should be reappointed, considering the allegations of neglect and abuse, the suitability of the guardian, and the family's opposition. Additionally, the court had to address procedural issues such as the rejection of an adjournment request and the handling of evidence. The court also needed to consider unsupported allegations of actual bias against a Tribunal member and whether there was sufficient evidence to warrant recusal.
The court found that the Public Guardian should be reappointed as UAM's guardian. The court noted that the allegations of neglect and abuse were unsupported and that UAM's service needs were adequately met by the aged care facility. The court also determined that the absence of supporting material did not provide sufficient evidence to disqualify the proposed guardian. Despite family conflict and opposition, the court found the proposed guardian suitable. Procedurally, the court upheld the rejection of the adjournment request and found no evidence to support the allegations of bias against the Tribunal member.
The court issued a new guardianship order, appointing the Public Guardian as UAM's guardian for a period of two years. The order is a limited guardianship order, granting the guardian specific functions, including access decisions, accommodation decisions, and health care decisions. The guardian is also authorised to authorise others to transport and detain UAM if necessary. The order includes a condition requiring the guardian to take reasonable steps to understand UAM's views before making significant decisions.
Orders
Orders of the court
The guardianship order for UAM made on 1 August 2019 has been reviewed. The order now is as follows:
1. The Public Guardian is appointed as the guardian.
2. This is a continuing guardianship order for a period of two years from 4 August 2020.
3. This is a limited guardianship order giving the guardian(s) custody of UAM to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
a) Access
To decide what access UAM has to others and the conditions of access.
b) Accommodation
To decide where UAM may reside.
c) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take UAM to a place approved by the guardian.
ii) keep them at that place.
iii) return them to that place should they leave it.
d) Health care
To decide what health care UAM may receive.
e) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where UAM is not capable of giving a valid consent.
CONDITION:
5. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring UAM to an understanding of the issues and to obtain and consider their views before making significant decisions.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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