CD v EF & Anor [2018] NSWSC 848

CD v EF & Anor [2018] NSWSC 848

AB was incapable of managing her person and affairs, but neither CD nor GH was presently suitable to replace the Public Guardian as committee of the person. CD's hostility with EF and likely inability to act on objective medical advice inconsistent with AB's wish to be cared for at home made appointment contrary to AB's best interests. GH was competent and sincere, but heavy commitments, perceived lack of neutrality arising from involvement in financial allegations against EF, and emotional difficulty dealing with EF made the appointment unworkable. The Public Guardian had acted with sufficient flexibility, objectivity and judgment, including by supporting a home trial. For financial...

Jurisdiction
Australia
Judgment Date
15 June 2018
Procedural Posture
Protective Proceedings in the Equity Jurisdiction Concerning Committee of the Person and Management of the Estate of a Person Incapable of Managing Her Affairs / Final Determination of Amended Summons, With Costs Reserved and Directions Made for Remaining Financial Disputes
Outcome
Orders made confirming the appointment of the Public Guardian as the second defendant's committee of the person and confirming the continued management of the second defendant's estate by the New South Wales Trustee and Guardian. Costs reserved except for the tutor's and legal representatives' costs, and directions...
Legal Topics
['appointment of Committee of the Person' 'management of Estate of Incapable Person' 'public Guardian' 'nsw Trustee and Guardian' 'accommodation Decisions for Protected Person' 'family Dispute Concerning Protected Person' 'power of Attorney Accounting']
['equity' 'protective Jurisdiction' 'guardianship' 'protected Estates'] ['appointment of Committee of the Person' 'management of Estate of Incapable Person' 'public Guardian' 'nsw Trustee and Guardian' 'accommodation Decisions for Protected Person' 'family Dispute Concerning Protected Person' 'power of Attorney Accounting']

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Procedural Posture

Protective Proceedings in the Equity Jurisdiction Concerning Committee of the Person and Management of the Estate of a Person Incapable of Managing Her Affairs / Final Determination of Amended Summons, With Costs Reserved and Directions Made for Remaining Financial Disputes

Legal Issues

  1. 1 ["Whether CD or alternatively GH should be appointed as AB's committee of the person in place of the Public Guardian." "Whether the Public Guardian should continue as AB's committee of the person." "What accommodation arrangements were in AB's best interests, including whether her wish not to be alone at night supported a home trial." "Whether CD or alternatively GH should be appointed manager of AB's estate in place of the NSW Trustee and Guardian." "Whether the NSW Trustee and Guardian should continue managing AB's estate pending investigation of EF's past management under the Power of Attorney." "How and when the disputed financial issues concerning EF's past management of AB's financial affairs should be addressed."]

Ratio Decidendi

AB was incapable of managing her person and affairs, but neither CD nor GH was presently suitable to replace the Public Guardian as committee of the person. CD's hostility with EF and likely inability to act on objective medical advice inconsistent with AB's wish to be cared for at home made appointment contrary to AB's best interests. GH was competent and sincere, but heavy commitments, perceived lack of neutrality arising from involvement in financial allegations against EF, and emotional difficulty dealing with EF made the appointment unworkable. The Public Guardian had acted with sufficient flexibility, objectivity and judgment, including by supporting a home trial. For financial...

Court Disposition

Orders made confirming the appointment of the Public Guardian as the second defendant's committee of the person and confirming the continued management of the second defendant's estate by the New South Wales Trustee and Guardian. Costs reserved except for the tutor's and legal representatives' costs, and directions...

Orders

  • ['Order that the orders made by Lindsay J on 15 December 2017 appointing the Public Guardian as the committee of the person for the second defendant be continued.' "Order that the orders made by Lindsay J on 30 November 2017 appointing the NSW TAG as the manager of the second defendant's estate be continued." 'Order...