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Enduring Guardian appointments

GS v ZS [2022] NSWSC 1068

It is important to make appointments of Enduring Guardian and Power of Attorneys as part of your estate planning.

GS v ZS [2022] NSWSC 1068 was a case heard in the Supreme Court of NSW earlier this month wherein two sons disagreed on what was best for their mother.

Their mother (the protected person) was 83 years old and had been residing in a care facility since she suffered a serious car accident in 2014. She was a dementia patient, fainted frequently and required round-the-clock care, which she received in a facility, operated by iCare.

In 2012, the National Civil and Administrative Tribunal (NCAT) ordered that the mother’s estate be managed by the NSW Trustee. The mother had funds of approximately $120,142.54 that the NSW Trustee managed. The NCAT had not granted any guardianship order under the Guardianship Act 1987 (NSW) and there was no evidence that the mother had ever executed an Enduring Guardianship Appointment at all.

One of the sons (the plaintiff) argued that the mother should be moved to China, where she would receive a higher quality of care and could spend time with her extended family.

The other son (the defendant) argued that she would be better off remaining in her Australian care facility. This brother provided evidence from the mother’s general practitioner, Dr Terresa SM Chan, establishing that it would pose a severe risk to the mother’s health if she were to travel to China.

Judgement

Lindsay J of the Supreme Court of NSW accepted this evidence, providing that moving the mother to China in her current state was neither reasonable nor necessary. Lindsay J decided this on the grounds that the mother received a high standard of care at her current facility, had many family members in Australia who visited her regularly (namely, the two brothers involved in this case) and that was no evidence that suggested any concrete arrangements had been made for the mother’s care in China.

Lindsay J also declined to make in relation to making a guardianship order as he was,

                “…reasonably confident (and certainly hopeful) that a degree of cooperation will attend the brothers’ engagement with their mother in her nursing home.         Should any problems arise, however, help may be at hand in deciding disputes about her accommodation.” [27].

Regarding future disagreements about what was best for the mother, Lindsay J provided,

                “…an appropriate application might be made to the Court or to the Guardianship Division of NCAT for what, in NCAT, are described as guardianship orders and what might here best be described as orders for the appointment of a committee of the person.” [26].


Order

The Court ordered that the mother not be removed from her residence at the care facility without the consent of the two sons as well as the NSW Trustee or the prior leave of the Court.

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