MENTAL HEALTH - Guardians and financial managers - appointment of Public Guardian by Guardianship Tribunal because conflicting views on accommodation - family member available - whether appointment appropriate having regard to s4, s14 and s15(3) of the Guardianship Act 1987 - STATUTES - Interpretation - Guardianship Act 1987 - s15(3) - proper interpretation
W (Plaintiff) G (First Defendant) Public Guardian (Second Defendant) Protective Commissioner (Third Defendant) Guardianship Tribunal (Fourth Defendant)
FILE NUMBER(S):
SC 51 of 2003
COUNSEL:
Mr M Gorrick (Plaintiff) Ms N L Sharp (amicus curiae)
SOLICITORS:
Wilkinson Throsby & Edwards (Plaintiff) I V Knight ( amicus curiae) T Tunbridge (Third Defendant) Ms E Cho (Fourth Defendant)
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IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROTECTIVE LIST
WINDEYER J
THURSDAY 11 DECEMBER 2003.
51 OF 2003
JUDGMENT
1 This is an application for leave to appeal and if leave is granted an appeal from decisions of the Guardianship Tribunal (the Tribunal) dated 19 August 2002 and 20 August 2003, pursuant to which the Public Guardian was appointed guardian of Mrs G and the Protective Commissioner appointed manager of her estate. The names of the persons involved are not made public in Protective matters and I will therefore refer to the person under guardianship as Mrs G. The plaintiff, who is the niece of Mrs G, I will refer to as Mrs W.
2 On 15 May 2002, Mrs W applied to the Tribunal for a guardianship and financial management order in respect of Mrs G. She sought appointment as guardian and financial manager. It is clear that the facts and circumstances were such that a financial management order should be made and that a guardianship order could be made.
3 At the time the application was brought, Mrs G was resident in a nursing home at Kogarah, but at the time of the hearing she had been moved pursuant to arrangements made by Mrs W to a nursing home at Bundanoon. Mrs W, the plaintiff, lives at Burradoo and her father Mr B, who is a brother of Mrs G, lives at Moss Vale. The Tribunal hearing took place on 19 August 2002 at Bowral. It is accepted that Mrs G was suffering from dementia to some extent induced by alcohol.
4 Section 3F of the Guardianship Act 1987 (the Act) sets out who are parties to the proceedings. Mrs G is a widow. The parties were Mrs W, Mrs G and pursuant to s3F(2)(e) the Public Guardian, who is presumably made a party in all proceedings to make it possible for his appointment…
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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AGLC
W v G [2003] NSWSC 1170
Case
[2003] NSWSC 1170
Decision Date
CaseChat Overview and Summary
The matter of W v G involved an application by a family member, W, seeking the appointment of a Public Guardian to manage the affairs of a person, G, who had been deemed incapable of managing their own affairs. The dispute arose due to differing views on G's appropriate accommodation, with the family member advocating for a specific option, contrary to the opinion of other interested parties. The Guardianship Tribunal had previously appointed a Public Guardian to manage G's financial affairs and the family member contested this decision, arguing that it was inappropriate given that a family member was available to take on the role. The case was heard by the Supreme Court, which was required to determine the appropriate interpretation and application of sections 4, 14 and 15(3) of the Guardianship Act 1987.
The central legal issues before the court were the proper interpretation of the relevant statutory provisions and the circumstances in which the appointment of a Public Guardian was appropriate, even when a family member was available to act as a guardian or financial manager. The court had to consider the legislative intent behind the Guardianship Act 1987, specifically sections 4, 14 and 15(3), in the context of the facts of the case. The court needed to determine whether the appointment of a Public Guardian was justified, despite the availability of a family member to assume the role.
The court held that the Guardianship Tribunal's decision to appoint a Public Guardian was appropriate, even though a family member was available to act as a guardian. The court found that the legislative intent of the Guardianship Act 1987 was to provide for the welfare of individuals who were unable to manage their own affairs, and in this case, the conflicting views on accommodation and the family member's unavailability made the appointment of a Public Guardian the most suitable option. The court also determined that the proper interpretation of section 15(3) of the Act did not mandate the appointment of a family member as a guardian or financial manager, but rather allowed for the appointment of a Public Guardian when it was in the best interests of the individual.
The Supreme Court confirmed the appointment of the Public Guardian, finding that the Guardianship Tribunal's decision was in accordance with the legislative intent and the circumstances of the case. The court found that the conflicting views on accommodation and the family member's unavailability justified the appointment of a Public Guardian, even though a family member was available to take on the role. The court emphasised that the primary consideration in appointing a guardian or financial manager should be the best interests of the individual who is unable to manage their own affairs.