WPC - [2020] NSWCATGD 83

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: WPC [2020] NSWCATGD 83
Hearing dates: 20 October 2020
25 November 2020
Date of orders: 01 December 2020
Decision date: 01 December 2020
Jurisdiction: Guardianship Division
Before: J S Currie, Senior Member (Legal)
Decision:
REQUESTED REVIEW OF GUARDIANSHIP ORDER - 017
The guardianship order for WPC made on 19 September 2019 has been reviewed. The order is now is as follows:
1. QZP of [Address removed for publication.] is appointed as the guardian.
2. HAV of [Address removed for publication.] is appointed as the alternative guardian.
3. This is a continuing guardianship order for a period of 12 months from 1 December 2020.
4. This is a limited guardianship order giving the guardian custody of WPC to the extent necessary to carry out the functions below.
FUNCTIONS
5. QZP has the following functions:
a) Accommodation
To decide where WPC may reside.
b) Services
To make decisions about services to be provided to WPC.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring WPC to an understanding of the issues and to obtain and consider their views before making significant decisions.
APPLICATION TO REVIEW OR REVOKE FINANCIAL MANAGEMENT ORDER - 016
The financial management order made for WPC on 28 February 2017 is revoked from 1 December 2020. The person appointed as manager of the estate is to pay over or hand over the estate to WPC.
RECOMMENDATION
The Tribunal recommends to WPC that she obtains early legal advice concerning the need to preserve her welfare and interests by executing, at an early date, an enduring power of attorney.

Catchwords:
GUARDIANSHIP – requested review of guardianship order – whether a further guardianship order should be made – suitability of proposed guardian – NSW Trustee and Guardian previously adopted “communication protocol” with proposed guardian in response to comments directed at staff – proposed guardian apologised for behaviour – proposed guardian demonstrates insight into the needs of the subject person – genuine ongoing concern for the subject person’s welfare and interests – objection to reappointment of Public Guardian – private guardian and alternative guardian appointed
FINANCIAL MANAGEMENT – requested review of financial management order – whether financial management order should be revoked – whether subject person has regained capability to manage their affairs – evidence, informal support and direct discussion with subject person shows they have regained capability – best interests to revoke order – financial management order revoked – recommendation made to seek legal advice to execute enduring power of attorney

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), 36(1)
Guardianship Act 1987 (NSW), ss 3(1), 3D, 4, 4(a), 14(2), 15(3), 17, 17(1), 17(1)(c), 33A, 25P(1)-(2)
NSW Trustee and Guardian Act 2009 (NSW) , s 39(a)
Powers of Attorney Act 2003 (NSW), s 35(1)

Cases Cited:
CJ v AKJ [2015] NSWSC 498
FGE (2) [2012] NSWGT 3
GW v Protective Commissioner & Ors [2003] NSW…

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: WPC [2020] NSWCATGD 83
Case: [2020] NSWCATGD 83
Decision Date: 01 December 2020

CaseChat Overview and Summary

The case before the court involved a review of a guardianship order and a financial management order concerning WPC. The court was asked to consider whether a further guardianship order should be made and if the financial management order should be revoked. The suitability of a proposed guardian and WPC's capability to manage her affairs were the central legal issues.

The court addressed the guardianship order first, considering the proposed guardian's suitability. It noted that the proposed guardian, QZP, had previously adopted a communication protocol in response to comments directed at staff and had apologised for their behaviour. The court also recognised QZP's insight into WPC's needs and their genuine ongoing concern for WPC's welfare and interests. Given these factors, the court found QZP to be a suitable guardian. The court also considered objections to the reappointment of the Public Guardian and the appointment of alternative and private guardians.

Regarding the financial management order, the court examined whether WPC had regained the capability to manage her affairs. The evidence, informal support, and direct discussions with WPC indicated that she had indeed regained this capability. The court determined that it was in WPC's best interests to revoke the financial management order. As a result, the financial management order was revoked, and WPC was advised to seek legal advice to execute an enduring power of attorney.

The court's final orders included a continuing guardianship order appointing QZP as the guardian and HAV as the alternative guardian for a period of 12 months. The guardianship order was limited, granting the guardian custody of WPC to the extent necessary to make decisions about her accommodation and services. The financial management order was revoked, with the person appointed as manager of the estate required to pay over or hand over the estate to WPC.

Orders

Orders of the court

REQUESTED REVIEW OF GUARDIANSHIP ORDER - 017

The guardianship order for WPC made on 19 September 2019 has been reviewed. The order is now is as follows:

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

2. HAV of [Address removed for publication.] is appointed as the alternative guardian.

3. This is a continuing guardianship order for a period of 12 months from 1 December 2020.

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

FUNCTIONS

5. QZP has the following functions:

a) Accommodation

To decide where WPC may reside.

b) Services

To make decisions about services to be provided to WPC.

CONDITION:

6. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring WPC to an understanding of the issues and to obtain and consider their views before making significant decisions.

APPLICATION TO REVIEW OR REVOKE FINANCIAL MANAGEMENT ORDER - 016

The financial management order made for WPC on 28 February 2017 is revoked from 1 December 2020. The person appointed as manager of the estate is to pay over or hand over the estate to WPC.

RECOMMENDATION

The Tribunal recommends to WPC that she obtains early legal advice concerning the need to preserve her welfare and interests by executing, at an early date, an enduring power of attorney.

Background

Background to the litigation

Full text does not contain this section.

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:	WPC [2020] NSWCATGD 83
Hearing dates:	20 October 2020 25 November 2020
Date of orders:	01 December 2020
Decision date:	01 December 2020
Jurisdiction:	Guardianship Division
Before:	J S Currie, Senior Member (Legal)
Decision:	REQUESTED REVIEW OF GUARDIANSHIP ORDER - 017 The guardianship order for WPC made on 19 September 2019 has been reviewed. The order is now is as follows: 1. QZP of [Address removed for publication.] is appointed as the guardian. 2. HAV of [Address removed for publication.] is appointed as the alternative guardian. 3. This is a continuing guardianship order for a period of 12 months from 1 December 2020. 4. This is a limited guardianship order giving the guardian custody of WPC to the extent necessary to carry out the functions below. FUNCTIONS 5. QZP has the following functions: a) Accommodation To decide where WPC may reside. b) Services To make decisions about services to be provided to WPC. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring WPC to an understanding of the issues and to obtain and consider their views before making significant decisions. APPLICATION TO REVIEW OR REVOKE FINANCIAL MANAGEMENT ORDER - 016 The financial management order made for WPC on 28 February 2017 is revoked from 1 December 2020. The person appointed as manager of the estate is to pay over or hand over the estate to WPC. RECOMMENDATION The Tribunal recommends to WPC that she obtains early legal advice concerning the need to preserve her welfare and interests by executing, at an early date, an enduring power of attorney.
Catchwords:	GUARDIANSHIP – requested review of guardianship order – whether a further guardianship order should be made – suitability of proposed guardian – NSW Trustee and Guardian previously adopted “communication protocol” with proposed guardian in response to comments directed at staff – proposed guardian apologised for behaviour – proposed guardian demonstrates insight into the needs of the subject person – genuine ongoing concern for the subject person’s welfare and interests – objection to reappointment of Public Guardian – private guardian and alternative guardian appointed FINANCIAL MANAGEMENT – requested review of financial management order – whether financial management order should be revoked – whether subject person has regained capability to manage their affairs – evidence, informal support and direct discussion with subject person shows they have regained capability – best interests to revoke order – financial management order revoked – recommendation made to seek legal advice to execute enduring power of attorney
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), 36(1) Guardianship Act 1987 (NSW), ss 3(1), 3D, 4, 4(a), 14(2), 15(3), 17, 17(1), 17(1)(c), 33A, 25P(1)-(2) NSW Trustee and Guardian Act 2009 (NSW) , s 39(a) Powers of Attorney Act 2003 (NSW), s 35(1)
Cases Cited:	CJ v AKJ [2015] NSWSC 498 FGE (2) [2012] NSWGT 3 GW v Protective Commissioner & Ors [2003] NSW…