AHX v NSW Trustee and Guardian

[2012] NSWADT 35

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AHX v NSW Trustee and Guardian and anor [2012] NSWADT 35
Hearing dates:	27 February 2012
Decision date:	05 March 2012
Jurisdiction:	General Division
Before:	P. H. Molony
Decision:	The decision of the NSW Trustee and Guardian is affirmed.
Catchwords:	Guardianship Act - review of decision of the Public Guardian - accommodation - welfare and best interest
Legislation Cited:	Guardianship Act 1987 Administrative Decisions Tribunal Act 1997
Category:	Principal judgment
Parties:	Applicant - AHX Respondent - NSW Trustee and Guardian Second respondent - AIV
Representation:	Applicant AHX - in person Respondent - R Stormont Second respondent (AIV) - in person
File Number(s):	113353

REasons for decision

Introduction

1. AIW is a 77-year-old widowed woman, with two sons, AHX and AIV. AIW has been diagnosed with moderately severe frontal lobe dementia, which is a deteriorating condition. She is presently a permanent resident of an extra services nursing home, where she has lived since October 2010. She now requires the assistance of a wheel chair to mobilise.

1. On 15 June 2011 the Guardianship Tribunal made a series of orders with respect to AIW. Those orders:

Appointed the Public Guardian as her guardian for 12 months with an accommodation function. The reasons for decision of the Tribunal indicate that the Tribunal also intended to appoint the Public Guardian as a guardian for VY with a health care and services function, although this is not formally recorded in the order.

• Dismissed an oral application by AHX to review an enduring power of attorney made by AIW appointing the Perpetual Trustee Company Limited (Perpetual) as her attorney. The Tribunal instead elected to treat that application as one for financial management orders.
• Appointed Perpetual as AIW's financial manager.

1. On 21 October 2011 the Public Guardian made a decision to trial AIW living at her own home for two months conditioned upon:

• Modification to the home, as determined in an Occupational Therapist's report dated 6 September 2011, being completed prior to the trial.
• Attendant care being provided by an approved agency for a minimum of 40 hours per week.
• Attendant care from the same agency being provided for at least one week in four for respite for AIV.
• Assessment by physiotherapist and weekly input.
• Minimum weekly RN/GP visit.
• An assessment being undertaken towards the end of the two month period to see whether AIW should continue living at home or return to her nursing home.

1. The trial would involve AIW living in her own home with her son AIV, his wife and his young son. AIV would provide care and supervision for his mother in the many hours when professional attendant care services will not be provided. A funding proposal for the trial drawn up by Perpetual envisaged AIV and his family living rent free in AIW's home (as they have for some time) while caring for AIW, and AIV being paid a fee of $1,200 a week while caring for his mother.

1. On 14 December 2011 AHX filed an application with the Tribunal to review that decision. At a directions hearing held on 19 December 2011 the Tribunal extended time so that application for review was in time and made a series of procedural directions. At the directions hearing held on 10 February 2012 AIV was joined as a respondent to the proceedings.

1. The application for review came before me for hearing on 27 February 2012.

Jurisdiction

1. Section 80A of the Guardianship Act 1987 provides:

(1) An application may be made to the ADT for a review of a decision of the Public Guardian that:

(a) is made in connection with the exercise of the Public Guardian's functions under this Act as a guardian, and

(b) is of a class of decision prescribed by the regulations for the purposes of this section.

(2) An application under this section may be made by:

(a) the person to whom the decision relates, or

(b) the spouse of the person, or

(c) the person who has the care of the person to whom the decision relates, or

(d) any other person whose interests are, in the opinion of the ADT, adversely affected by the decision.

1. When read with s 38 of the Administrative Decisions Tribunal Act 1997 section 80A of the Guardianship Act 1987 confers jurisdiction to review an accommodation decision made by the Public Guardian. Section 63 of the Administrative Decision Tribunal Act 1997 (the ADTA) says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

1. Section 4 of the Guardianship Act 1987 sets out a series of principles to be observed by all person exercising function under that Act, including this Tribunal on review. It provides:

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation,

(h) the community should be encouraged to apply and promote these principles.

Material and evidence before the Tribunal

1. The following documentary material was considered by the Tribunal:

• AHX's application for review with attachments.
• The section 58 documents filed by the respondent.
• Affidavit of AHX sworn 9 February 2012 with attachments.
• Statement of AHX dated 14 February 2012.
• Statement of AHX's wife, dated 14 February 2012.
• Letter to AHX from Perpetual dated 17 January 2012.
• Letter from AIV to the Tribunal dated 20 February 2012.

1. In addition during the hearing, which had been proceeding on the basis of oral submissions alone, I decided that I should hear oral evidence from Ms Judy Hunt, Principal Guardian with the Office of the Public Guardian, who had made the decision under review.

1. Ms Hunt's evidence was that when the Public Guardian had been appointed as AIW's guardian, the first person she consulted when contemplating making decisions, as a substitute decision, maker for AIW, was AIW herself. That a decision about AIW's future accommodation would have to be made was apparent from the Guardianship Tribunal's reasons for decision. The option of AIW returning to live at home had been agitated before that Tribunal.

1. Ms Hunt visited AIW at the nursing home. She said that, initially, they had a general discussion relating to matters such as books, before she got around to asking AIW where she wanted to live. AIW had been firm in her desire to return home to live. Ms Hunt said she had been careful not to ask AIW any leading questions concerning this issue.

1. Ms Hunt said that the decision that the home trial be of two months duration had been made in order to preserve AIW's permanent place at the nursing home, should living at home prove not to be suitable for AIW's care.

1. Ms Hunt noted that in her discussions with AIV he had agreed to leave the home at agreed times, so that AHX could enjoy access to assess AIW without AIV being present.

1. In response to a question from AHX, Ms Hunt agreed that, when giving her reasons for decision, she had failed to explain that she had ascertained AIW's wishes.

1. Ms Hunt said that in reaching her decision, in addition to professional reports, she had consulted AIV and AHX, who held opposing views. She had also consulted with three long-term friends of AIW. She understood that each of those persons were regular visitors of AIW, both at the nursing home and when she went on her frequent trips home with AIV. They had each commented to Ms Hunt on how much more settled, lucid and less anxious AIW appeared when she was at home. It was also said that she got enormous pleasure from seeing her grandson at home.

AHX's view

1. AHX argued that the evidence he had adduced highlighted a number of factors all of which pointed to AIW's best interest being best served by her remaining at the nursing home.

1. AHX's evidence was that his own mother's plan for her care in latter life, made when she was well, was that when she needed care she would move into an appropriate aged care facility. She had told him that she did not wish to live with him, and had put her name down for an aged care facility to which she would move when she could no longer care for herself.

1. AHX argued that his mother's wishes, as expressed them to him when she was well, ought to be respected. He did not accept that any subsequent expressions of wishes truly represented her views, being voiced by a woman with dementia who had told him in the past that she could not say "No" to AIV or himself. He said that he said that in 2006 AIW told him, "I need you to protect me from him" (AIV).

1. He considered that his mother was influenced in her expressions of opinion by AIV and her friends. Those friends he considered were prejudiced against him, and in one case had a conflict of interest. He argued that their evidence should be given very little weight.

1. AHX argued that allowing his mother to live with AIV would expose her to future financial abuse and exploitation. He was particularly concerned that his brother would continue to live rent-free in the home, and be paid a substantial fee for providing her care.

1. AHX pointed out that, before his brother's return home from overseas in 2010, his mother had trusted him to the extent that she told him of her dementia diagnosis, and appointed him as her attorney under an enduring power of attorney in 2008. That enduring power of attorney was subsequently revoked when AIW appointed Perpetual as her attorney.

1. AHX did concede that his mother was not happy about him being a Jehovah's Witness. He said that in the years since his brother's return the trust his mother held in him had been undermined, and he had been isolated from her. He has not seen his mother since October 2010 when there was confrontation between him, his wife and AIV in a lift at the nursing home, which required security to attend.

1. AHX said he is scared of AIV. He said that AIV is skilled in the martial arts. He alleged that in the past AIV had boasted of criminal connections and having people "disappear."

1. AHX argued that placing his mother back in her home would effectively deprive him of the ability to rebuild his relationship with her.

1. AHX said that there was a risk to AIW, and to AIV and his family should AIW returned home. This arose from the possibility of her exhibiting sexually disinhibited or aggressive conduct at home, with resultant embarrassment and difficulty for all concerned. He pointed to a number of articles he had downloaded from the Internet as verifying this risk, and to an event that occurred, in 2008, his mother told him about. She had attached someone staying with her, after she had a drink following cataract surgery under anaesthesia.

1. AHX argued that the expenses of returning AIW home and maintaining her there would dissipate her assets. He pointed to an analysis by Perpetual. This projected that if AIW remained living at the nursing home - and her home was rented out - then her income would be $121,130.00, creating a deficit of expenses over income of $12,043.00 per annum. If she moved home, then her income would be $80, 857.00 and her projected expenses $157,814.00, creating a deficit of $76,957.00.

1. That same analysis reveals that AIW has the assets valued at $3,807,169.00 consisting of:

• Her home - $1,800,000.00
• Furniture etc - $143,030.00
• Nursing home bond - $284,934.00
• Investment property - $1,300,000.00
• Loan to Teece Holdings - $109,205.00
• Perpetual Portfolio Service Account -$109, 205.00.

1. AHX also advised that his mother held shares in a family company, which, if dissolved, could yield her, something in the region of $400,000.00.

1. He said that it was clear that if AIW moves home her investment property would have to be sold - he alleged in a fire sale - to finance her care. This he argued would prejudice her ability to fund her longer-term care.

AIV's views

1. AIV told me that AIW's condition is deteriorating. She has wanted to return home for two years now. He is willing to help facilitate that by providing her with care outside of hours.

1. AIV said that his mother comes home 3 to 4 times each week, and is obviously more happy and content there. He made the point that AHX is unable to comment about this, as he has not seen AIW since October 2010. Similarly, AHX has not seen the level of care she receives at the nursing home, or the isolation she experiences in that environment.

1. AIV agreed that the proposal was that he would be paid for the care he provides to his mother, but made the point that paying for full time care at home, after hours, would be much more expensive than the amount it is proposed he be paid.

1. AIV said that if AIW returns home he would be happy to leave the house at pre-arranged times so that AHX could visit.

1. AIV agreed that his mother had been very generous in the financial assistance she had provided to him over the years. He made the point that he considered that AHX had also benefited from her largess and help.

The Public Guardian's view

1. The Public Guardian submitted that AIW is one of its few clients who have sufficient funds to be able to afford to live at, and be cared for, at home. Perpetual considered she could afford such care. Given her frequently expressed desire to return home, AIW ought to be given the opportunity the trial offered.

1. While the Public Guardian was aware of AHX's claims that AIV had taken advantage of AIW (and did not express a view with respect to them), the Public Guardian was not concerned that AIW would be rendered vulnerable to exploitation should she live with AIV. The fact that Perpetual is AIW's appointed financial manager would prevent any exploitation.

1. The Public Guardian did not accept that there was a risk to AIW, AIV or his family from sexually disinhibited or aggressive behaviour as a result of her dementia. In any case professional carers could adequately monitor this during the trial, and appropriate action taken if it did occur.

1. The Public Guardian was satisfied that informal arrangements had been made to ensure AHX could have access to his mother, in AIV's absence. If these arrangements proved unsatisfactory the Public Guardian would approach to Guardianship Tribunal seeking an access function, to enable it to make decisions in relation to access.

1. In reaching the decision to trail AIW at home the Public Guardian had also taken account of the views of those who know AIW and of those who see her regularly: AIV, AHX and her long term friends. All, apart from AHX, supported a trial of AIW living at home. Their comments about how relaxed and happy AIW was when at home, as compared to her presentation at the nursing home, reinforced the view that she would be better living at home.

Consideration

1. Section 4 of the Guardianship Act 1987 sets out a series of principles that it is the duty of the Public Guardian, and of the Tribunal on review, to follow in making decisions as guardian for AIW. Central to any decision making process is that the Public Guardian ensure that AIW's welfare and interest are given paramount consideration: s 4(a).

1. In this case I accept that AIW, since she moved into the nursing home, has consistently expressed the view that she would prefer to be living in her own home. While AIW is cognitively impaired as a result of her dementia and has been found to be incapable of managing the complexities of decision making about where she lives and with respect to her finances, that does not mean that she is incapable of expressing a view or preference.

1. AHX argues that her plan, expressed to him when she was well, to live in residential facility when she got "frail aged," and that she did not wish to live with him, are not being respected as a result of the Public Guardian's decision. In my view, those expressions of intention do not outweigh the clear evidence with respect to AIW's current preference. Expressed intentions and preferences often fade in the light of real experience.

1. AHX points to the fact that Dr Tietze, Psychogeritrican, expressed a view in a report considered by the Guardianship Tribunal that AIW had been coached in completing a mini-mental (MMSE) test, as evidence that AIV was manipulating her. Dr Tietza noted that AIW made a comment to the effect that she could never get a diagram right. In my view there a number of possible explanations of this; that she was coached is one, that she had been frequently given the test is another. There is, however, no evidence that would justify a conclusion that she was coached by AIV.

1. AHX also argues that the views expressed by AIV and AIW's friend should be given little or no weight, because they are prejudiced (against him). I do not accept this submission. In my view the views of AIW's friend who have regularly visited her, both at the nursing home and in her own home when she is taken there, merit considerable weight. They have a long association with AIW and know her. They have been able to observe her in both environments, and have all expressed the view that she appears settled and more content at home, while more anxious and less communicative in the nursing home environment. Their views are therefore based on their observations of AIW. Those observations tend to verify AIW's stated wishes.

1. AHX and his wife, on the other hand, irrespective of the reasons, have not seen AIW since October 2010. They have no personal knowledge of the views she has expressed, and are not in a position to evaluate how she functions or presents at the nursing home and at home.

1. I therefore conclude that AHX wishes to return home to live. I will take that view into account in making my decision: see s 4(d).

1. I also take into account that a trial of AIW living at home will advance the opportunity for AIW to live as normal a life as her condition allows in the community, in an environments in which she is both comfortable and familiar: see s 4(c). It will also result in AIW's freedom of decision and of actions being restricted as little as possible, consistent with her disability and care needs: s4(b).

1. AHX argues that allowing his mother to return home in the care of AIV would expose her to financial abuse and exploitation, a matter which s 4(g) requires she be protected from. I do not accept this submission. AIW's financial affairs are now managed by Perpetual, who have control of her funds. I agree with the Public Guardian that this will prevent any exploitation. In making that finding I do not think it necessary to determine whether or not AHX's allegations of exploitation by AIW are made out. The reality is that the arrangements in place will prevent financial abuse and exploitation at home, no matter what its source.

1. AHX also suggested that the proposed arrangement for the trial whereby AIV lives rent free in the house, and is paid for providing care, are exploitative. I reject that submission. The proposed financial arrangements have been negotiated between AIV and Perpetual. While they do provide some benefits to AIV, the reality is that they require AIV to provide care and supervision for the 128 hours per week, when attendant care services will not be there. Paying for professional care for AIW for those hours would be enormously expensive, and much greater than the benefit which AIV will obtain.

1. AHX submitted that costs of the trial of his mother living at home (and of her subsequent residence there) would result in the dissipation of her assets. He was particularly critical of plans to sell her investment unit, which he described as being in a prime area.

1. Once again I do not accept that this is properly a matter for concern. The use of AIW's estate to fund her ongoing care in a manner consistent with her wishes, when she can afford that care, does not equate to dissipation. How her property is managed, and what assets are sold is a matter for her financial manager, subject to the directions and authorities of the NSW Trustee and Guardian.

1. Next AHX argued that, if she lived at home, AIW, AIV and his family would be at risk of sexually disinhibited or aggressive behaviour on her part. In support of this he relied on:

• events that had occurred before admission to the nursing home,
• a number of physical threats she had made, in obvious, frustration at that time.
• Information he had downloaded from the internet.

1. Once again, I do not accept this submission. There is no evidence that, in nearly 18 months at the nursing home, AIW has shown any sign of sexually disinhibited or aggressive behaviour. I also accept that professional carers can monitor this during the trial, and that appropriate action would be taken if it did occur.

1. AHX told me that he was most concerned to re-build his relationship with his mother. This could not occur if she was living at home with AIV. He pointed to the importance s 4(c) provides should be given to supporting family relationships. He argued that this was a factor militating against the trial. I asked AHX whether having his brother agree to leave the home, so that AHX could visit with AIW at home, in AIV's absence, would satisfy his concerns. He said it would not. He did not trust his bother's word.

1. The relationship between AHX and his mother is one that he acknowledged is damaged and requires rebuilding. AHX has not seen her since October 2010. The relationship with him, however, is not AIW's only close family relationship. She has an ongoing and active relationship with AIV and his family, including her grandson. AIV visits her almost daily, and regularly takes her home, where she sees the rest of his family. It is in that family environment that her friends report AIW, to be happy, more talkative, and considerably less anxious than at the nursing home.

1. In my view AIW's overall family relationships will be enhanced if the trial proceeds. She will be living in a home environment with members of her family with whom she has regular contact. It may well be in AIW's best interest for the Public Guardian to also seek an access function from the Guardianship Tribunal in an attempt to obviate AHX's concerns. In saying that, I do not wish to be taken as agreeing that AIV would not honour his word and vacate the home for access by his brother. Rather, I am simply acknowledging the apparent reality that AHX will not visit his mother in circumstances that are reliant on AIV's voluntary co-operation.

1. If follows from all of the above that the decision that AIW live at home on a trial basis for two months is in her best interest and will ensure her welfare. It is the correct and preferable decision. In my view, the conditions that the Public Guardian specified for the trail are measured and appropriate.

1. As a result the Tribunal affirms the decision under review.

Decision last updated: 05 March 2012