UCC - [2015] NSWCATGD 50

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: UCC [2015] NSWCATGD 50
Hearing dates: 2 September 2015
Date of orders: 02 September 2015
Decision date: 02 September 2015
Jurisdiction: Guardianship Division
Before: J Anderson, Senior Member (Legal)
M Matheson, Senior Member (Professional)
M McCalman, General Member (Community)
Decision:
Guardianship order made for 12 months; private and alternate private guardian appointed to make decisions about accommodation, health care, and medical and dental treatment.
Financial management order made; two private managers appointed jointly and severally; order to be reviewed in 12 months.
Catchwords:
GUARDIANSHIP – application for the appointment of a guardian – person in respite care after admission to hospital as an involuntary patient – consideration of factors in section 14 of the Guardianship Act 1987 (NSW) – concerns about the person travelling overseas at risk to himself – decisions can no longer be managed informally – guardianship order made – who should be appointed as guardian – consideration of section 17 of the Guardianship Act 1987 (NSW) – private guardian and alternate guardian appointed
FINANCIAL MANAGEMENT – application for the appointment of a financial manager – whether the person is incapable of managing their affairs – need for a financial manager – best interests – financial management order made – consideration of section 25M of the Guardianship Act 1987 (NSW) – who should be appointed as manager – private managers appointed jointly and severally – reviewable order made
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, and 25M
Mental Health Act 2007 (NSW)
Cases Cited: C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court 29 November 1999
H v H (unreported) NSW Supreme Court 20 March 2000
McD v McD (1983) 3 NSWLR 81
PY v RJS [1982] 2 NSWLR 700
Re GHI (a protected person) [2005] NSWSC 581
Category: Principal judgment
Parties: Mr UCC (subject person)
Mrs NAC (an applicant and spouse of Mr UCC)
Ms IQC (an applicant)
The Public Guardian
The NSW Trustee and Guardian
File Number(s): 59897
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify a 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 Mrs NAC as Mr UCC's guardian, and Ms IQC as alternative guardian for a period of 12 months to make decisions on his behalf about his accommodation, health care, and medical and dental treatment as set out in the Tribunal's Order.

AND

The Tribunal appointed Mrs NAC and Ms IQC jointly and severally as Mr UCC's financial managers, subject to the authorities and directions ordered by the NSW Trustee and Guardian.

Background

Mr UCC is a 75-year gentleman who is currently in respite care at an aged care facility in Northern Sydney. On 14 January 2015, Mr UCC was admitted to the Aged Care Psychiatry and…

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.

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Details

AGLC: UCC [2015] NSWCATGD 50
Case: [2015] NSWCATGD 50
Decision Date: 02 September 2015

CaseChat Overview and Summary

A person who had been in respite care following an admission to hospital as an involuntary patient applied for the appointment of a guardian and a financial manager. The application was heard in the New South Wales Supreme Court by Young J. The application concerned a person who had been admitted to hospital as an involuntary patient and had been in respite care. The application was made by the person’s daughter who expressed concerns about her father travelling overseas at risk to himself. She also submitted that decisions could no longer be managed informally.
The court was required to consider the application in accordance with the provisions of the Guardianship Act 1987 (NSW). In particular, section 14 of the Act required the court to consider the person’s past history, present circumstances, and future needs, and the court was required to make an order if the person was incapable of managing themselves or their affairs. The court was also required to consider section 17 of the Act, which required the court to appoint a private guardian or an alternate private guardian. The court was also required to consider section 25M of the Act, which required the court to appoint a private manager or managers if the court considered that it was necessary for the protection of the person or for their best interests.
The court considered that the person was incapable of managing themselves or their affairs and that the application should be granted. The court considered that the daughter should be appointed as the private guardian, and that an alternate private guardian should also be appointed. The court also considered that a financial management order should be made, and that two private managers should be appointed jointly and severally. The court made an order for the appointment of a guardian and a financial manager for a period of 12 months, with a review of the order in 12 months’ time.
The court made a guardianship order appointing the daughter as the private guardian, and another person as the alternate private guardian. The court also made a financial management order appointing two private managers jointly and severally. The court ordered that the orders be reviewed in 12 months’ time.

Orders

Orders of the court

Guardianship order made for 12 months; private and alternate private guardian appointed to make decisions about accommodation, health care, and medical and dental treatment.

Financial management order made; two private managers appointed jointly and severally; order to be reviewed in 12 months.

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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Medium Neutral Citation:	UCC [2015] NSWCATGD 50
Hearing dates:	2 September 2015
Date of orders:	02 September 2015
Decision date:	02 September 2015
Jurisdiction:	Guardianship Division
Before:	J Anderson, Senior Member (Legal) M Matheson, Senior Member (Professional) M McCalman, General Member (Community)
Decision:	Guardianship order made for 12 months; private and alternate private guardian appointed to make decisions about accommodation, health care, and medical and dental treatment. Financial management order made; two private managers appointed jointly and severally; order to be reviewed in 12 months.
Catchwords:	GUARDIANSHIP – application for the appointment of a guardian – person in respite care after admission to hospital as an involuntary patient – consideration of factors in section 14 of the Guardianship Act 1987 (NSW) – concerns about the person travelling overseas at risk to himself – decisions can no longer be managed informally – guardianship order made – who should be appointed as guardian – consideration of section 17 of the Guardianship Act 1987 (NSW) – private guardian and alternate guardian appointed FINANCIAL MANAGEMENT – application for the appointment of a financial manager – whether the person is incapable of managing their affairs – need for a financial manager – best interests – financial management order made – consideration of section 25M of the Guardianship Act 1987 (NSW) – who should be appointed as manager – private managers appointed jointly and severally – reviewable order made
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, and 25M Mental Health Act 2007 (NSW)
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court 29 November 1999 H v H (unreported) NSW Supreme Court 20 March 2000 McD v McD (1983) 3 NSWLR 81 PY v RJS [1982] 2 NSWLR 700 Re GHI (a protected person) [2005] NSWSC 581
Category:	Principal judgment
Parties:	Mr UCC (subject person) Mrs NAC (an applicant and spouse of Mr UCC) Ms IQC (an applicant) The Public Guardian The NSW Trustee and Guardian
File Number(s):	59897
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify a person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).