W v G

Supreme Court of NSW|2003-11-25|Before: Windeyer J

CITATION : W v G [2003] NSWSC 1170 HEARING DATE(S) : 25 November 2003 JUDGMENT DATE : 11 December 2003

JURISDICTION: Equity Division Protective List JUDGMENT OF : Windeyer J at 1 DECISION : Appeal from Guardianship Tribunal allowed.

CATCHWORDS : 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 LEGISLATION CITED : Guardianship Act 1987 s3F, s 4, s14, s15(3), s57A CASES CITED : C v C [2001] QSC 126 K v K [2000] NSWSC 1052 W (Plaintiff) G (First Defendant) PARTIES : Public Guardian (Second Defendant) Protective Commissioner (Third Defendant) Guardianship Tribunal (Fourth Defendant) FILE NUMBER(S) : SC 51 of 2003 Mr M Gorrick (Plaintiff) COUNSEL : Ms N L Sharp (amicus curiae)

Wilkinson Throsby & Edwards (Plaintiff) SOLICITORS : I V Knight ( amicus curiae) T Tunbridge (Third Defendant) Ms E Cho (Fourth Defendant)

16 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROTECTIVE LIST

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 as guardian to be made without notice to him. No person was joined as a party pursuant to s57A of the Act. 5 The reasons for decision set out a list of persons "who attended the hearing and gave evidence to the Tribunal". Mrs W, Mr B, Mrs C, who is the sister of Mrs G, are listed together with Ms M, a friend of Mrs C, together with three lawyers who apparently were there to assist the various people attending. Insofar as the record suggests the lawyers gave evidence that is I think incorrect. 6 Ms M is a longstanding friend of Mrs C and to some extent of Mrs G as well. The two sisters had lived together for many years at the home of Mrs G at Maianbar after Mrs G's husband died. Ms M held a power of attorney from Mrs C. Mrs C is over eighty and Mrs G is about eighty-seven or eighty-eight years of age. Mrs G moved into the nursing home at Kogarah in 1999 and Mrs C moved into hostel accommodation at the John Paul Village at Heathcote in 2001. 7 From the reasons it seems that the people who gave the significant evidence to the Tribunal were Mrs W, Mr B and Ms M. Ms M contended that Mrs G should be moved to the John Paul Nursing Home at Heathcote because Mrs C was in the hostel section and the sisters would be able to see each other, whereas at the present time they can have no contact, unless Mrs C is taken to Bundanoon. As against that Mrs W and Mr B at the present time have regular contact with Mrs G now she is at Bundanoon and they want her to stay there. It seems that Mr B goes there on most days and Mrs W at least once a week. 8 The Tribunal, in its reasons of 19 August 2002, after setting out the matters which gave rise to the authority to appoint a guardian pursuant to s14 of the Act and stating they had been made out, went on to consider the need for a guardian as follows:- Need for a guardian

It quickly became apparent at the hearing that the principal issue was Mrs G's place of accommodation. Mrs W was of the clear view that the move from Endeavour Nursing Home to Linkside Nursing home was in Mrs G's best interests - the main advantage being the proximity to Mrs W and to Mrs G's brother S. She indicated that Mr B visits every day and she visits 2 to 3 times per week. She has also arranged medical and dental appointments for Mrs G. There are two other possible facilities in the Southern Highlands, which might provide appropriate care for Mrs G. However, Mrs W would need to weigh up the advantages of these other facilities against the stress associated with any move. Mrs W indicated that she had made this weighing up decision before moving Mrs G to Bundanoon. Mrs W indicated that Mrs G was very comforted by the presence of her and her father, although she probably did not know exactly who they were.

Mr B told the Tribunal that he believes his sister has benefited from his daily visits. He can drive himself to see her, and he assists with feeding her. He was only able to see Mrs G once per month when she was at Endeavour Nursing Home due to the distance. The principal issue for Ms M on the other hand was the difficulties now associated with arranging contact between Mrs G and her sister Mrs C, and the manner in which Mrs G was removed from Endeavour Nursing Home. Ms M noted that the sisters had lived together for 20 years and had developed a very close bond. Mrs C had moved into Mrs G's home in the early 1980s after the death of Mrs Gs' husband, and they remained living together until 1999 when Mrs G went into Sutherland Hospital. Mrs C remained in the home until December 2001 (supported by Ms M) and then moved into the John Paul Nursing Home (hostel section) at Heathcote in January 2002. Ms M is now keen for Mrs G to move into the John Paul Nursing Home to be with her sister. Enquiries have been made, and it has been established that Mrs G could move in as a concessional resident. This means there would be no accommodation bond payable.

The advantage of this move would be that the sisters could have regular contact. This is not possible at present due to the distance between them and Mrs C's total reliance on others to get her to Bundanoon. Ms M noted that the John Paul Nursing Home offered wonderful care, and it would be the best place for Mrs G. Like Mrs W, Ms M would of course taken [sic] into account the effect on Mrs G of any further move before taking that step.

The Tribunal emphasised to those present at the hearing that it was not its role to determine the appropriate place of residence for Mrs G. The role of the Tribunal was to determine whether this was a "live" issue and whether there might be any way in which this matter could be resolved without the need to appoint a guardian. The Tribunal explored the extent to which the opposing parties might be able to discuss and resolve this issue between themselves. There was apparently one meeting between Ms M and Mrs W in January 2002, but little contact since that time. There would now appear to be a mutual lack of confidence in the decisions and motives of the other. This became most apparent in the written submissions of the parties and was confirmed by comments made at the hearing.

Having considered the evidence, the Tribunal was satisfied that there was little hope that the question of Mrs Gs' future accommodation options could be resolved in a consensual way. This was an issue which needed resolution, and there were clearly strong arguments each way. In the Tribunal's view, there was no option therefore but to appoint a guardian to make this decision. In view of the entrenched conflict between the parties, the Tribunal regarded it as inappropriate to appoint anyone other than the Public Guardian. It will be the Public Guardian's role to consider the matters raised by all interested parties, and then make a decision in Mrs G's best interests. The Public Guardian is also empowered to make decisions about Mrs G's health care and medical and dental consents. The Tribunal heard that Mrs G is currently being administered Serenace to help with her anxiety. This is a major medication for which consent is required. While this consent is currently being sought from Mrs W, it is in Mrs G's best interests that this function also be carried out by the Public Guardian particularly while the question of Mrs G's future accommodation is still being considered. The initial term of this order will be 12 months. 9 So far as a financial manager was concerned, Ms M had a power of attorney from Mrs C. Mrs C was apparently an authorized signatory on the bank account of Mrs G so that she signed withdrawal forms on that account and gave them to Ms M, to withdraw moneys from the account of Mrs G. While there was some suggestion that not all withdrawals were appropriately used, there was nothing to support that view. 10 It is not at all clear why it was considered that there was any particular contest about who should be the financial manager, but the following appears on page 8 of the reasons for decision: Speaking on behalf of Ms M, Mr Cook indicated she was opposed to the appointment of Mrs W as financial manager. He noted that Ms M had "no confidence" in Mrs W or her father Mr B in relation to the management of Mrs G's affairs. He proposed the appointment of Ms M, or if this was not acceptable, the Protective Commissioner.

The Tribunal was satisfied on the evidence that Mrs G had a need for a legally appointed financial manager to arrange for the sale of her home, and to manage the investment of the proceeds. The Tribunal will usually prefer the appointment as financial manager of a family member or other person with a personal interest in the subject person's affairs. This is because such a person is likely to have a solid understanding and close ongoing interest in the affairs of the person. The overriding principle however is that of the best interests of the person. Both Mrs W and Ms M have reasonable strength in their respective claims to be Mrs G's financial manager. Mrs W is a member of Mrs G's family and has some financial management skills. Ms M was informally managing Mrs G's' affairs for approximately 12 months. She provided comprehensive documentary verification of this management (payment of bills, bank statements etc.). Neither of these people would be disqualified from appointment as a result of any lack of management ability.

The Tribunal has determined however that it would not be in Mrs G's best interests to appoint either person in view of the significant conflict between them. Both have important roles to play in the decision-making concerning Mrs G's affairs. The result of appointing either of them would be to effectively exclude the participation in decision-making of those in the other's camp. The best interests of Mrs G are served by each of those concerned with her being provided with the opportunity of making an effective contribution. For this reason, the Tribunal determined to commit the management of Mrs G's property and affairs to the Protective Commissioner. 11 The summons in the proceedings was filed on 4 October 2002. An amended summons was filed on 23 May 2003 and a further amended summons on 22 September 2003. Further grounds of appeal were added by leave at the commencement of the hearing before me. The filing of the original summons operated a stay of the Tribunal orders, but as the order for appointment of a guardian was limited to a period of twelve months it was necessary for the Tribunal to review that order at the end of that period in any event and it did so. It has not been explained to me why the appeal took so long to come on. In ordinary circumstances a matter such as this in the Protective List can be dealt with on any Monday as soon as the parties are ready. Apparently the proceedings started in the wrong list, but in any event it does not seem that there has been any disadvantage to Mrs G by the delay, however unnecessary it might have been. The review took place on 20 August 2003 when an order was made continuing the guardianship of the Public Guardian for twelve months. The financial management order of course continued, as it was not for any limited period. So far as guardianship is concerned, it is that second order of the Guardianship Tribunal as to appointment of a guardian which is now really the subject of appeal and which brought about the need for the filing of the further amended summons on 22 September 2003. 12 In the reasons for decision on the review the Tribunal rehearsed its previous findings in the 2002 proceedings relevant to the guardianship question, stating: The Tribunal was satisfied Mrs G was a person who suffers from cognitive deficits as a result of her dementia. This impacted on her ability to make informed decisions in her own interests. She was therefore a person for whom a guardianship order could be made. The Tribunal investigated the extent to which the dispute about her accommodation might be resolved by discussion and agreement between the main parties. The Tribunal was satisfied from the comments at the hearing, and the written submissions of the parties, that there was a mutual lack of confidence in the decisions and motives of the other. There was little hope therefore that the question of Mrs G's future accommodation could be resolved in a consensual way. The Tribunal was satisfied there was a need to appoint a guardian to make this decision. In relation to the question of who should be appointed, the Tribunal made the following comments: In view of the entrenched conflict between the parties, the Tribunal regarded it as inappropriate to appoint anyone other than the Public Guardian. It will be the Public Guardian's role to consider the matters raised by all interested parties, and then make a decision in Mrs G's best interests... The Tribunal made a further order committing the management of Mrs G's property and affairs to the Protective Commissioner. 13 The Tribunal then considered the new evidence, particularly that relevant to the situation of Mrs G at Bundanoon, including the evidence of Dr Uren, who was complimentary of the assistance and care given by Mrs W and Mr B. The Public Guardian had of course been unable to make any decision as to accommodation in view of the stay, but a representative of the Office of the Public Guardian had seen Mrs G and considered that she was more settled at Bundanoon and said that the director of nursing at Bundanoon considered that a move of accommodation would not be in the best interests of Mrs G. 14 The Tribunal considered the view of Mrs W and Mr B, both of whom wished Mrs W to be guardian. It then considered the view of Ms M, who again pressed for a move for Mrs G to be moved to the John Paul Village and who opposed the appointment of Mrs W. Mrs C was contacted by telephone and apparently she stated that she was frustrated that she could not see her sister any more or provide any care for her. The Tribunal then said: The Tribunal's role on review is to determine whether there the person has a continuing need for a guardian and, if so, what form the order should take. Ms W and Ms M agreed that there was a continuing need for a decision about Mrs G's accommodation. This matter had not yet been resolved. The Tribunal discussed the possibility of reaching an agreement on this matter by direct negotiation and discussion. The parties were not enthusiastic about such a process taking place directly between them. It is clear that the passage of time since the first order was made has not resulted in any significant improvement in the relationship between the two parties. The Tribunal was satisfied therefore that there is a continuing need for a substitute decision-maker to make decisions in the areas of accommodation, health care and medical and dental consents. The options presented to the Tribunal were to appoint Ms W as her aunt's guardian, or to leave the Public Guardian in place. Ms W and her father were urging the first alternative, while Ms M was supporting the second option. The Tribunal adopts the reasoning from the original Reasons for Decision in finding that it is not appropriate to appoint other than the Public Guardian to make decisions on Mrs G's behalf. There is a continuing dispute between Ms W and Mr B, on one side, and Ms M on the other. They are unable to consider and investigate the views held by the other, due to their fierce adherence to their own position. The Tribunal remains of the view that it is in Mrs G's best interest to appoint the Public Guardian as Mrs G's guardian with the functions of accommodation, health care, and medical and dental consents. In making this decision, the Tribunal has referred to Section 15(3) of the Guardianship Act 1987 which provides that the Public Guardian should not be appointed as a person's guardian if an order can be made appointing some other person. This must be read in the light of the principles governing decision-making under the Act which are set out in Sections 4 and 14 of the Act. These principles require decision-makers to focus primarily on the person's welfare and interests. Having applied the principles, the Tribunal is satisfied that it is in Mrs G's best interests to continue the appointment of the Public Guardian. The term of this renewed order will be 12 months. 15 I have set all this out in some detail so that my decision will be more readily understood on its own. The only other matter of significance which I should mention is that under the will of Mrs G the whole estate will pass to Mrs C if she survives and in those circumstances she is appointed sole executrix. If she does not so survive then Mrs W is appointed as sole executrix. Grounds of appeal 16 The grounds of appeal relate to the original orders for guardianship and management and the orders on the guardianship review which has superseded the original order for appointment as guardian. I set out the grounds in the further amended summons: GROUNDS FOR BOTH APPEALS

a. The Guardianship Tribunal did not place sufficient weight on the evidence that the plaintiff is a proper financial manager and guardian;

b. The Guardianship Tribunal erred in holding it was inappropriate to appoint the plaintiff the guardian and financial manager of the first defendant because there was conflict between the plaintiff and another person who was at the hearing before the Guardianship Tribunal, a Miss M, who is not a member of the family of the first defendant or a close friend of the first defendant;

c. The Guardianship Tribunal erred by failing to give proper weight to the fact that the plaintiff is a member of the first defendant's family when deciding whether or not to appoint the plaintiff the financial manager and guardian of the first defendant.

d. The Guardianship Tribunal erred in holding that a mutual lack of confidence between the plaintiff and Miss M in the decisions and motives of the other precluded the plaintiff from being the guardian of the first defendant;

e. The Guardianship Tribunal erred in holding that the absence of consensus between the plaintiff and Miss M gave rise to the need to reappoint the Public Guardian, and no other;

f. The Guardianship Tribunal erred by failing to give proper weight to the evidence of the first defendant's treating doctor that the plaintiff and her father (the first defendant's brother) were to be commended for their attention to the first defendant's needs;

g. The Guardianship Tribunal erred by failing to give proper weight to the evidence of the third defendant, the Public Guardian, that it had no concerns about the first defendant's present accommodation, health care and medical and dental needs in circumstances where that accommodation and those needs were being met by or organised by or overseen by the plaintiff.

h. The Guardianship Tribunal erred by failing to give proper weight to the evidence of the Director of Nursing and Clinical Care at the home in which the first defendant resides that the plaintiff would be an appropriate person to be appointed guardian.

i. The Tribunal erred in failing to determine or properly determine pursuant to sections 3D and 3F of the Act whether Ms M should have been a party to the proceedings;

j. The Tribunal erred in failing to enquire whether Ms M had a conflict of interest in relation to the management of the affairs of and guardianship of the first defendant.

17 Apart from the first of the additional grounds, which might involve some question of law, the grounds are based solely upon questions of fact. It was argued that the decision to appoint the Public Guardian as manager was not one to which a responsible tribunal could have arrived and this gave rise to a question of law. This can be put aside at the present time and in any event it is without merit. Ground (j) can be dismissed. The suggestion was that Ms M would prefer the interests of Mrs C as beneficiary under the will of Mrs G and do her best to preserve the estate for the benefit of Mrs C. As Ms M was not appointed manager, this ground is of no significance. 18 The matter was before the court on 1 September 2003. On that day Mr Cook was present in court and stated that he appeared for Mrs C. I advised him that if Mrs C wished to be joined as a party to the appeal then she would have to make application to be joined as a defendant by motion, which could be dealt with at the hearing or on 22 September. No such application has been made. 19 In spite of having four attempts, the grounds of appeal did not clearly spell out the main ground argued by counsel for Mrs W. That argument was that the Tribunal recognized Ms M as a party to the proceedings, whereas she was not a party. The solicitor appearing for the Tribunal before me made it clear that neither Ms M nor Mrs C were parties. They were not parties because they were not persons falling within s3F(2) and (3) of the Act. Nevertheless counsel for the plaintiff said that the Tribunal made it clear on its findings that it considered Ms M to be a party and treated her as such and it is argued that in doing so it gave her a status to which she was not entitled and it gave undue weight to her evidence and probably to her wishes. The argument continued, although not articulated by the grounds, that the Tribunal, in making the order it did, failed to give effect to s15(3) of the Act and in fact made a decision contrary to the requirements of that section. Section 15(3) of the Act is as follows: 15 Restrictions on Tribunal's power to make guardianship orders

(3) A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person. 20 The Tribunal referred to this in its second decision. It is because the appeal raises questions of parties and the proper application of s15(3) that I would grant leave to appeal if that were necessary. These are matters of general importance as opposed to the simple questions of fact, where it is undesirable that the court reconsider decisions of fact reasonably open to the Tribunal: K v K [2000] NSWSC 1052; C v C [2001] QSC 126. In any event I consider the s15(3) issue raises questions of law on its proper interpretation in light of s4 of the Act. 21 The Attorney-General sought and obtained leave to appear as amicus in the proceedings. I acknowledge the assistance given to the court by counsel thus appearing. I should also say that although the s15(3) question was never raised directly in the grounds of appeal it was clearly raised before me and if necessary I would give leave to further amend the grounds to reflect the argument. Position of Ms M 22 I think that there is confusion in the reasons as to the position of Ms M. She was not a party. She was treated as a party in conflict or contest with Mrs W and referred to as such. For instance, Mr Cook presented her views. He was "speaking on behalf of Ms M" opposing Mrs W as a financial manager and proposing the appointment of Ms M or, in default, then the Protective Commissioner. He had no right of appearance at all under s58 of the Act. To that extent the hearing miscarried. I do not think there would have been any basis upon which the appointment of Ms M as financial manager could have been justified in face of the application by Mrs W. Section 4 and section 14 23 Section 14 gives power to make a guardianship order. It sets out the matters to be considered in determining whether or not an order is necessary, recognizing of course that many people with a disability making them incapable of managing their person, can be properly looked after without the need for an order. The need for a guardian arose, the Tribunal decided, because there was an irreconcilable dispute about the future accommodation of Mrs G. To that extent s14 may have a bearing upon the s15(3) issue. 24 Section 4 sets out the general principles under which persons, including the Tribunal, must follow in exercising their functions under the Act. Principles (a) and (e) are the only ones relevant here and they are as follows: 4 General Principles … (a) the welfare and interests of such persons should be given paramount consideration, … (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, … The s15(3) question 25 There is no doubt that an order can be made appointing Mrs W as guardian. In fact, leaving aside the accommodation question, there is no doubt and it is not disputed she would be a proper person to be so appointed. There would be a considerable number of cases where no person would be available to be appointed. An example might be a disabled, destitute person with no friend or relative. Such a case might lead inevitably to the appointment of the Public Guardian. Nevertheless appointment of the Public Guardian should not, I think, be restricted to such cases. I consider that the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect. In this case, Ms M is not a party. She is not put forward as a guardian. Mrs C cannot be a guardian. The fact that Mrs W would obviously keep the accommodation of Mrs G as it is does not necessarily mean either, that it would not be an appropriate decision, or that Mrs W cannot be guardian. 26 While s15(3) must be interpreted within the context of the Act and in accordance with its principles, it must be given effect within those bounds. In Lunacy and Mental Health proceedings it has always been the policy to appoint a member of the family as committee or guardian of the person if that were possible. The policy is continued under the Act which created the office of Public Guardian. Just because a decision is required about accommodation and there is some dispute about this does not mean that a close family member holding one view ought not to be appointed. On the other hand if the Tribunal considered the evidence established that such a decision was likely not to be in the interests of the person under guardianship then the person who would make such a decision would not be a person who could properly be appointed under s15(3). In other words what is described as a "contest" is not sufficient reason not to appoint a person otherwise appropriate as guardian. This may mean that the Tribunal has to consider the evidence in some little detail. In the present case for instance, accepting that Mrs W, if appointed guardian, would retain the existing arrangements for the accommodation for Mrs G at Bundanoon, the Tribunal would need to decide whether that fact meant that Mrs W could not properly be appointed so that the appointment of the Public Guardian was authorized pursuant to s15(3). 27 This is not a case of two persons entitled to be parties contending for different appointments. It is a case of Mrs W, as a family member and as a party because she commenced the proceedings, being brought into or considered as in contest with Ms M, who is not a party and is not applying for guardianship, but who has strong views in opposition to the appointment of Ms W. While I would not wish to be thought to be saying that the Tribunal proceedings should be made unnecessarily formal, I do think it is necessary that the standing of people whose opinions seem to be given considerable weight, is clearly set out. If that is not done, then it seems to me the Tribunal may be seen to be giving undue weight to the views of what in law might be termed "interfering bystanders", although I am not saying that to be the position here. If Mrs C had sought to be made a defendant in these proceedings before me I think it is likely I would have made such an order. Ms M was given the opportunity to seek that she be made a party to these appeal proceedings but stated that she did not wish to become a party. In any event, it is unlikely that I would have joined her because I would not have considered it would have been appropriate for her to be a party before the Tribunal. I should say, however, that I have no reason to think that Ms M, in taking the steps she had taken up to date, has not been acting in what she considers to be the best interests of Mrs G, although in truth she is probably putting more emphasis on the interests of Mrs C. I should add here that there are no other contestants for appointment. Mr B does not seek appointment; Mrs C does not seek appointment and in any event it would not be appropriate to appoint her; Ms M does not seek appointment and in any event would not be appointed in light of the claim by Mrs W. 28 In all the circumstances I have come to the conclusion that insofar as leave is required then leave should be given as undue weight appears to have been given to the views of Ms M, who was treated as a party, and the facts necessary to justify the appointment of the Public Guardian in light of s15(3) have not been found. For the same reasons the appeal should be allowed. In those circumstances, either the matter will have to be reconsidered by the Guardianship Tribunal or the court should come to its own decision. I consider it should be remitted for decision by the Tribunal in accordance with these reasons. The Tribunal may hear further evidence including evidence of facts and matters relevant to a decision arising since the review. That is because if the evidence is convincing that it would not be inappropriate in the interests of Mrs G to remain at Bundanoon that would indicate that an appointment can be made of Mrs W as guardian. Financial Management Order 29 I have come to the clear view that this order made should be set aside and that Mrs W should be appointed as manager. The Tribunal in coming to its decision treated Ms M as a party and gave undue weight to her views. The fact Mrs W may become a substitute executor of the will of Mrs G does not put her in a position of conflict. It is not suggested that she would not act in the best interests of Mrs G. She can take appropriate advice, and management of the fund will be relatively simple. She is at hand, at least at present, and can see for herself the needs of Mrs G that should be provided for. The opposition of Ms M does not justify the appointment of the Protective Commissioner in this case. It involves additional expense which need not be incurred. 30 Orders

Set aside the Limited Guardianship Order made on review on 20 August 2003.

Order that the guardianship proceedings be remitted to the Tribunal to be heard and decided again in accordance with this judgment and with any further evidence required in light of these reasons and to allow a decision to be made on current facts.

Set aside order 2 of the Financial Management Order of 19 August 2002.

In lieu thereof order that Julie Lois Wise be appointed manager of the estate of the first defendant, subject to the directions of the Protective Commissioner and subject to giving such security as the Protective Commissioner may determine.

Order that the costs of the plaintiff be paid out of the estate of the first defendant.

No order as to the costs of the second, third and fourth defendants. **********

Last Modified: 12/16/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

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Judgment (32 paragraphs)

Parties

Cases Cited (2)