WZL - [2022] NSWCATGD 4

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: WZL [2022] NSWCATGD 4
Hearing dates: 13 April 2022
Date of orders: 13 April 2022
Decision date: 13 April 2022
Jurisdiction: Guardianship Division
Before: A Britton, Deputy President
Dr F Duffy, Senior Member (Professional)
I Ferreira, General Member (Community)
Decision:
Guardianship
1. A guardianship order is made for WZL.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 13 April 2022.
4. This is a limited guardianship order giving the guardian(s) custody of WZL to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Access
To decide what access WZL has to others and the conditions of access.
b) Accommodation
To decide where WZL may reside.
c) Services
To make decisions about services to be provided to WZL.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring WZL to an understanding of the issues and to obtain and consider her views before making significant decisions.
Financial Management
1. The estate of WZL is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of WZL is committed to the NSW Trustee and Guardian.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made, and what order should be made – subject person is of advanced age – subject person has dementia and cognitive impairment – subject person made and then revoked successive enduring guardian and enduring power of attorney appointments – significant conflict within subject person’s close family – need for independent decision-maker in relation to access decisions – proposed guardians not suitable to be appointed – Public Guardian appointed – order made.
FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their own affairs – best interests of the subject person that an order be made – no private person suitable to be appointed – NSW Trustee and Guardian appointed – order made.

Legislation Cited:
Guardianship Act 1987 (NSW), ss
3(1)-(2), 4, 4(f), 14(1)-(2), 15(3), 17(1), 17(1)(c), 25G, 25M

Cases Cited:
Application by AMAM; Re SAM [2011] NSWSC 503
IR v AR [2015] NSWSC 1187
M v M [2013] NSWSC 1495
W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220
ZKF v ZKG [2019] NSWCATAP 64

Texts Cited:
None cited.

Category: Principal judgment
Parties:
002: Guardianship Application

WZL (the person)
TQW (applicant)
EBL (enduring guardian)
Public Guardian

003: Financial Management Application
WZL (the person)
TQW (applicant)
EBL (attorney)
NSW Trustee and Guardian
Representation:
I Reed, separate representative (WZL)
A Stewart, legal representative (TQW)

File Number(s): NCAT 2020/00283171
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…

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 WZL

Details

AGLC: WZL [2022] NSWCATGD 4
Case: [2022] NSWCATGD 4
Decision Date: 13 April 2022

CaseChat Overview and Summary

The matter before the court involved an application for a guardianship and financial management order concerning WZL, an individual of advanced age suffering from dementia and cognitive impairment. The application was made by a family member due to the revocation of successive enduring guardian and enduring power of attorney appointments and significant family conflict. The court was tasked with determining whether a guardianship order should be made and, if so, what form it should take, as well as whether a financial management order should be issued and who should be appointed to manage WZL’s affairs.

The primary legal issue for the court was to determine the appropriate level of guardianship and financial management needed for WZL. The court had to consider the subject person's cognitive condition, the necessity for an independent decision-maker, and the suitability of potential guardians. It was established that WZL had revoked her enduring guardian and enduring power of attorney appointments due to family conflicts, leaving no private individual suitable for the role. Given the circumstances, the court needed to decide whether the Public Guardian should be appointed and what functions the order should include.

The court found that WZL’s condition and the family dynamics necessitated a guardianship order to ensure her welfare. The Public Guardian was deemed suitable due to the unsuitability of any private individual, and a limited guardianship order was appropriate to address specific areas such as access, accommodation, and services. The court also concluded that a financial management order was necessary as WZL was incapable of managing her own affairs, and the NSW Trustee and Guardian was the appropriate entity for this role. The court issued a continuing guardianship order for twelve months and appointed the Public Guardian with specified functions, while committing WZL's estate management to the NSW Trustee and Guardian.

Orders

Orders of the court

Guardianship

1. A guardianship order is made for WZL.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 13 April 2022.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Access

To decide what access WZL has to others and the conditions of access.

b) Accommodation

To decide where WZL may reside.

c) Services

To make decisions about services to be provided to WZL.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management

1. The estate of WZL is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. The management of the estate of WZL is committed to the NSW Trustee and Guardian.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	WZL [2022] NSWCATGD 4
Hearing dates:	13 April 2022
Date of orders:	13 April 2022
Decision date:	13 April 2022
Jurisdiction:	Guardianship Division
Before:	A Britton, Deputy President Dr F Duffy, Senior Member (Professional) I Ferreira, General Member (Community)
Decision:	Guardianship 1. A guardianship order is made for WZL. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 13 April 2022. 4. This is a limited guardianship order giving the guardian(s) custody of WZL to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Access To decide what access WZL has to others and the conditions of access. b) Accommodation To decide where WZL may reside. c) Services To make decisions about services to be provided to WZL. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring WZL to an understanding of the issues and to obtain and consider her views before making significant decisions. Financial Management 1. The estate of WZL is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of WZL is committed to the NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made, and what order should be made – subject person is of advanced age – subject person has dementia and cognitive impairment – subject person made and then revoked successive enduring guardian and enduring power of attorney appointments – significant conflict within subject person’s close family – need for independent decision-maker in relation to access decisions – proposed guardians not suitable to be appointed – Public Guardian appointed – order made. FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their own affairs – best interests of the subject person that an order be made – no private person suitable to be appointed – NSW Trustee and Guardian appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(f), 14(1)-(2), 15(3), 17(1), 17(1)(c), 25G, 25M
Cases Cited:	Application by AMAM; Re SAM [2011] NSWSC 503 IR v AR [2015] NSWSC 1187 M v M [2013] NSWSC 1495 W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 ZKF v ZKG [2019] NSWCATAP 64
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	002: Guardianship Application WZL (the person) TQW (applicant) EBL (enduring guardian) Public Guardian 003: Financial Management Application WZL (the person) TQW (applicant) EBL (attorney) NSW Trustee and Guardian
Representation:	I Reed, separate representative (WZL) A Stewart, legal representative (TQW)
File Number(s):	NCAT 2020/00283171
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…