Re B (No. 2) [2011] NSWSC 1264

Re B (No. 2) [2011] NSWSC 1264

The plaintiff was a proper person to be appointed as Mrs B's guardian and appointment was in her best interests because the evidence did not establish unfitness, financial exploitation, or risk to Mrs B's welfare; his medical views were not irrational or so entrenched that he would act contrary to current medical opinion; future nursing home residence reduced concerns about diet or extended unsupervised care; any tensions with Garrawarra were likely to be handled professionally without compromising care; and the appointment would not significantly adversely affect Mrs B's family relationships.

Jurisdiction
Australia
Judgment Date
11 October 2011
Procedural Posture
Guardianship Proceedings in the Protective Jurisdiction / Further Hearing of the Plaintiff's Claim That He Be Appointed Mrs B's Guardian After Prior Guardianship Tribunal Orders Had Been Set Aside
Outcome
The plaintiff was appointed Mrs B's guardian; no order as to costs; recommendation made for remission of court fees.
Legal Topics
['appointment of Guardian' 'fit and Proper Person' 'best Interests of Person in Need of Guardianship' 'family Member as Guardian' 'medical Treatment Decision Making' 'accommodation and Care Decisions' 'costs and Court Fees']
['guardianship' 'protective Jurisdiction'] ['appointment of Guardian' 'fit and Proper Person' 'best Interests of Person in Need of Guardianship' 'family Member as Guardian' 'medical Treatment Decision Making' 'accommodation and Care Decisions' 'costs and Court Fees']

Case Brief

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Procedural Posture

Guardianship Proceedings in the Protective Jurisdiction / Further Hearing of the Plaintiff's Claim That He Be Appointed Mrs B's Guardian After Prior Guardianship Tribunal Orders Had Been Set Aside

Legal Issues

  1. 1 ["Whether the plaintiff's character made him a fit and proper person to be appointed as Mrs B's guardian." "Whether the plaintiff held fixed or firm medical views that would put Mrs B's welfare at risk if he were appointed guardian." 'Whether Mrs B would be at risk if the plaintiff could decide when and for how long she might leave the nursing home.' "Whether it would be contrary to Mrs B's welfare for her to change nursing homes." "Whether relations between the plaintiff and Garrawarra Aged Care Centre could adversely affect Mrs B's welfare if the plaintiff were appointed guardian and she remained there." "Whether appointment of the plaintiff would be conducive to preserving Mrs B's existing family relationships."]

Ratio Decidendi

The plaintiff was a proper person to be appointed as Mrs B's guardian and appointment was in her best interests because the evidence did not establish unfitness, financial exploitation, or risk to Mrs B's welfare; his medical views were not irrational or so entrenched that he would act contrary to current medical opinion; future nursing home residence reduced concerns about diet or extended unsupervised care; any tensions with Garrawarra were likely to be handled professionally without compromising care; and the appointment would not significantly adversely affect Mrs B's family relationships.

Court Disposition

The plaintiff was appointed Mrs B's guardian; no order as to costs; recommendation made for remission of court fees.

Orders

  • ['Order that order 4 made on 15 September 2011 be discharged.' "Order that the plaintiff be the fourth defendant's guardian." 'Order that the plaintiff have the function of Accommodation, to determine where the fourth defendant may reside.' "Order that the plaintiff have the function of Activities/Outings, to make...