Guardian can be removed by Courts

In a very interesting case before the Supreme Court of NSW on 13 September 2013, His Honour Justice White considered an application to “suspend” the decision-making powers of a Guardian appointed under a Deed of Enduring Guardianship.

The case concerned an application for an injunction made initially without the presence of the other party by the estranged husband of the subject person. Both the husband (plaintiff) and the wife were quite elderly. The husband sought to prevent (injunct) the guardian (a friend of the wife) from moving her from an aged care facility back to her home. The Court heard evidence that substantial modifications had been made to the home including the installation of a ground floor shower, installation of ramps to accommodate wheelchair access and the installation of a hospital bed and lifting device.

Although not provided in the reasons, the applicant’s solicitors failed to disclose the following relevant facts:

1.  Reasons why associates of the husband had unsuccessfully proposed an alternative Guardian in an application before the Guardianship Tribunal in February 2013;
   
2. Family Court proceedings had been commenced between the husband and the wife.
   

The Guardian gave oral evidence and having considered the material filed in the Family Court, it was decided that the Guardian was best qualified to make the decision as to whether it was in the wife’s best interests to move home.

The Guardian knew the person the best and considered the home to be a preferred location as it had been her home for a long time, had a garden outlook and she would be able to have her pets with her. The wife was to be provided with full-time 24-hour carers and accordingly, there was no less standard of supervision or care than what would have been available in a nursing home. The Guardian considered the move back to her home to afford a superior quality of life than the nursing home environment.

The Court heard that the home modifications had been inspected by the plaintiff some 10 days before and he had not raised any objection or opposition to a proposed move. The plaintiff no longer lived in the home. The Court noted that one of the main reasons the nursing home had been more suitable previously was because of a dementia condition which caused the wife to “wander”.  In light of recent impediments to her mobility, this reason was now no longer valid.

His Honour stated that it was not the Court’s position to “second guess” the decision-making role of the Guardian. It was the wife’s expressed desire that the Guardian be appointed to make exactly these types of decisions when she executed a Deed of Enduring Guardian instrument appointing her Guardian. On the evidence before His Honour, it was not obvious that this decision would not be in her best interests and accordingly made the orders to allow the Guardian to retain her title and arrange for the Wife to be moved back into her home.

COMMENT

The application was brought and heard in an incredibly short time frame – less than 48 hours. This case illustrates the efficiency of the Supreme Court in dealing with matters of extreme urgency in an effective and decisive way.

DISCLOSURE

Streeterlaw Principal Mark Streeter acted for the first defendant in the Supreme Court proceedings and sought the orders made by His Honour Justice White.

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Written by Mark Streeter

The Director of Streeterlaw, Mark has been practicing Law since 1994. He has attained his Masters of Law in 1999 and in 2006 was awarded his Specialist Accreditation in Commercial Litigation. Mark is a member of ARITA, a graduate of the AICD and a member of AICM. A member of STEP, Mark enjoys working in the area of Wills and Estates. In 2020 Mark is the Chair of STEP NSW.

Call us on 02 8197 0105 to book an appointment with Mark Streeter!