ANV v NSW Trustee and Guardian

[2013] NSWADTAP 24

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	ANV v NSW Trustee and Guardian [2013] NSWADTAP 24
Hearing dates:	22 April 2013
Decision date:	31 May 2013
Before:	Magistrate N Hennessy, Deputy President P Molony, Judicial Member B Field, Non-judicial Member
Decision:	The Guardianship Tribunal's decision to dismiss the application for a financial management order in relation to ANX is affirmed.
Catchwords:	APPEAL - Guardianship Tribunal decision not to make a financial management order - evidence of capacity to manage financial affairs - procedural fairness - failure to attempt settlement
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
Cases Cited:	Borthwick v Carruthers (1787) 99 ER 1300 Ford v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42 Italiano v Carbone and Ors [2005] NSWCA 177 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Moore v Guardianship and Administration Board [1990] VicRp 80; [1990] VR 902 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; (2002) 115 FCR 561 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490 PY v RJS [1982] 2 NSWLR 700 Re Cumming (1852) 42 ER 660 Tasker v Fullwood [1978] 1 NSWLR 20 XYZ v State Trustees Ltd [2006] VSC 444
Texts Cited:	Aronson, Dyer and Groves, Judicial Review of Administrative Action, Lawbook Co 2009 4th ed.
Category:	Principal judgment
Parties:	ANV (Appellant) NSW Trustee and Guardian (First Respondent) ANX (Second Respondent) ANY (Third Respondent) Guardianship Tribunal (Decision-maker)
Representation:	ANW (agent for ANV) B Foat, Foat Associates Lawyers (ANX) In person (ANY) A Sprouster (Guardianship Tribunal)
File Number(s):	128019
Decision under appeal	Citation: Matter No. 2012/3631 Date of Decision: 2012-10-12 00:00:00 Before: Guardianship Tribunal File Number(s): C/50352

reasons for decision

Introduction

1. ANX is a 91 year old man who lives in a hostel. His son, ANV, has appealed against a decision of the Guardianship Tribunal dismissing his application for a financial management order to be made in relation to his father. If an order had been made, ANV wanted the NSW Trustee to manage his father's affairs instead of the current arrangement where his sister, ANY, has a power of attorney. The Guardianship Tribunal dismissed the application because it found that ANX was capable of managing his own financial affairs. Having made that finding, the Guardianship Tribunal did not have to consider whether there was a need for a financial management order or whether it was in ANX's best interests for such an order to be made.

1. The Tribunal did not make an error of law in reaching the conclusion that ANX is capable of managing his financial affairs and we have dismissed the appeal.

1. Both ANX and ANV were represented by lawyers at the Guardianship Tribunal hearing. ANX was represented by the same lawyer before the Appeal Panel but ANV was represented by his partner, Christine, as his agent. ANY appeared in person and Ms Sprouster represented the Guardianship Tribunal.

1. The Appeal Panel has jurisdiction to hear an appeal against the Guardianship Tribunal's decision not to make a financial management order under s 25E of the Guardianship Act 1987 (Guardianship Act), s 67A(e).

Grounds of appeal

1. An appeal may be made on a "question of law" and will be upheld if the Guardianship Tribunal has made a legal error that affects the decision: Administrative Decisions Tribunal Act 1997 (ADT Act), s 118B(1). We have re-organised and re-stated the questions of law which ANV raised, as follows:

(1)   whether the Guardianship Tribunal made the following findings of fact without evidence or without probative evidence:

(a)   that ANX is capable of managing his own affairs; and

(b)   that ANV was "particularly aggrieved that he no longer has use of the Tempe property."

(2)   whether the Guardianship Tribunal breached the rules of procedural fairness by:

(a)   failing to give him a reasonable opportunity to respond to adverse material;

(b)   failing to provide relevant material, namely a medical report that accompanied Mr Lavan's ACAT assessment; and

(c)   questioning him personally about various issues when he was represented by a lawyer.

(3) whether the Guardianship Tribunal failed to comply with s 66 of the Guardianship Act 1987 which requires that a decision not be made until the Tribunal "has brought, or used its best endeavours to bring, the parties to a settlement".

1. ANV did not seek permission to bring an appeal on grounds other than a question of law: ADT Act, s 118B(1)(b).

Making findings of fact without probative evidence

Legal principles

1. It is an error of law to make a finding of fact when there is no evidence to support that finding. In Moore v Guardianship and Administration Board [1990] VicRp 80; [1990] VR 902 the Supreme Court of Victoria held at 918 that even if a Tribunal is not bound by the rules of evidence it is not entitled to act on material of little or no probative weight, especially where it has significant prejudicial effect. There is no error of law in making a finding of fact for which there was some evidence, even though the finding may be "perverse" or contrary to the overwhelming weight of evidence: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 at 155-156.

Finding that ANX has capacity to manage his affairs

1. Before making a financial management order, the Guardianship Tribunal must be satisfied that;

(a) the person is not capable of managing (his or her financial) . . . affairs, and

(b) there is a need for another person to manage those affairs on the person's behalf, and

(c) it is in the person's best interests that the order be made: Guardianship Act 1987, s 25G.

1. The Guardianship Tribunal found that ANX was capable of managing his own financial affairs. Having made that finding, there was no need for the Guardianship Tribunal to consider the other two requirements for making a financial management order. ANV disagrees with the finding that his father is capable of managing his affairs. He says his father has been suffering from dementia for a number of years and that ANY has effectively been managing his affairs for him. He says there is support for his view in the medical reports from Professor Nair and psychologist Ms Golvers as well as in ANX's oral evidence.

1. There is a legal presumption that adults have the capacity to make their own financial decisions, unless there is evidence to the contrary: Borthwick v Carruthers (1787) 99 ER 1300 and Re Cumming (1852) 42 ER 660 at 668. This presumption has not been given express statutory force in the Guardianship Act but the Tribunal must "be satisfied" that the person is "not capable" of managing his or her financial affairs. The standard of proof is the "balance of probabilities": XYZ v State Trustees Ltd [2006] VSC 444 (22 November 2006). Whether a person is not capable of managing his or her affairs is a question of fact, which the Guardianship Tribunal must determine on the basis of all the evidence. The Tribunal must make its own finding as to capacity and cannot simply defer to medical opinion. Evidence of how the person is actually managing their affairs is relevant.

Tribunal's findings and reasoning on capacity

1. The Guardianship Tribunal summarised the meaning of the phrase "capable of managing" a person's financial affairs. It re-stated the test in PY v RJS [1982] 2 NSWLR 700 where Powell J held that a person is incapable of managing his or her own affairs if that person appears incapable of dealing in a reasonably competent fashion with ordinary routine affairs and that any lack of such competence may disadvantage him or her in the conduct of such affairs or his or her money or property may be dissipated or lost. The test is an objective one. There was no disagreement with those statements of principle.

1. The relevant capacity standard was recently described by the New South Wales Court of Appeal in the following terms:

The principle is that the signer must know what he or she is signing. The cases reveal ... the difficulty of expression in identifying the line marking the boundary of non est factum. It is sufficient to state for present purposes that a signer who has no understanding at all about what he or she is signing, because of incapacity, does not know what he or she is signing such that the mind does not go with the pen: Ford v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42 at 62.

1. The Guardianship Tribunal then referred to the fact that the panel had met privately with ANX and summarised his evidence as follows:

The Tribunal met privately with ANX, he was able to outline in a clear and informed manner what he thought the hearing was about stating that it "was because ANV wants to take over my finances but ANY has Power of Attorney." ANX gave a history of how he and his wife had managed their finances and stated both had decided before her death that their daughter ANY should be appointed to manage their affairs, however no appointment was made at that time.

[ANX] outlined how he manages his affairs whereby his daughter attends with various accounts and he will sign cheques. He also reported that his granddaughter was living in his home . . . which he was happy with as he could visit at any time and see old friends if he chooses.

[ANX] also stated his granddaughter and partner were subject to a lease, he knew the term of the lease and reported that they had contributed in kind work prior to the lease and had fixed the roof and plumbing and had painted the property, he stated they paid for a lot of the repairs.

1. The Tribunal then referred to certain matters unrelated to the question of ANX's capacity. The first was that ANX could not continue to live at home while urgent repairs were being undertaken and was finding it difficult to cope following the loss of his wife. The second was that ANV had raised a number of issues in relation to the actions of ANY both before and after her appointment as ANX's attorney. Finally the Tribunal found that ANY had acted appropriately and that ANV was aggrieved because he no longer had the use of his father's house.

1. Having outlined ANX's evidence, the only reasoning the Tribunal gave in relation to the finding of capacity was as follows:

The Tribunal came to the view that [ANX] was capable of managing his affairs. The report of Dr Nair dated 31 July 2102 noted the improvement in [ANX's] condition and reports he has reasonable insight into his problems.

Was the Tribunal's finding based on probative evidence?

Summary of the evidence

1. The evidence in relation to ANX's capacity to manage his financial affairs came from:

(1)   oral evidence from ANX;

(2)   oral evidence from ANV;

(3)   a report from Professor Nair;

(4)   a report from Ms Golvers; and

(5)   an ACAT assessment.

ANX's oral evidence

1. The Guardianship Tribunal questioned ANX privately about his financial affairs and reported his evidence to the parties. He was asked why he was at the Guardianship Tribunal and he said:

Well, as I said apparently ANV's - he wants to take control of my finances and run the business side of things which - but ANY had the, she had a Power of Attorney and she's - I'm quite happy with the fact that she's handling things very well.

1. ANV denies that he wants to take control of his father's finances. He applied for the NSW Trustee to be appointed as ANX's guardian. But even if ANX did misunderstand the motivation for the application that does not mean that he lacks capacity to manage his affairs. ANV also submitted that it is significant that when the Tribunal asked ANX whether ANY talks to him about his finances, he said "Oh yes, yes . . . Well, she brings all the cheques over to me and I sign the cheques and she pays all the bills . . . and things like that." Again, the fact that ANY brings cheques for ANX to sign does not mean that he lacks capacity. Although the Tribunal did not say so expressly in the reasons, the panel was apparently satisfied that ANX knew what he was signing.

ANV's oral evidence

1. The Guardianship Tribunal questioned ANV about his father's capacity. ANV's evidence was expressed in general terms. Apart from comments his mother had previously made, he did not give any specific examples of his father's behaviour which would suggest that he lacked capacity. Again, although the Tribunal did not say so expressly in the reasons, the panel was apparently not satisfied on the basis of anything that ANV said, that ANX lacks capacity to manage his financial affairs.

Professor Nair's report

1. Professor Nair, a consultant physician in geriatrics, wrote a report at the request of ANV after reviewing ANX on 31 July 2012. He had referred ANX to a clinical psychologist, Ms Golvers, who had reported the result of a mini mental as 25/30 and ADAS-Cog as 17/70. Professor Nair concluded that:

I saw him in May 2012 when he was referred for recent decline in function and motivation following the death of his wife. He was very depressed and anti-depressants had made some improvement. I believe the time-frame to recover from the bereavement also has helped him.

ANX has reasonable insight into his problems and could reasonably articulate this in spite of the cognitive assessment tests.

I believe it is reasonable to have a public guardian for his major financial dealings, after discussing this with him and his son, who accompanies him to the medical appointments.

1. During the hearing the Guardianship Tribunal questioned ANV about the fact that Professor Nair had not mentioned ANY's role in giving practical assistance and advice to ANX in relation to the management of his affairs or the fact that she has a power of attorney. (Transcript p 30, l 21-37). ANV's explanation was that he did not realise there was a power of attorney until the first hearing in August 2012. The power of attorney was signed on 14 May 2012.

1. We agree with ANV that the Guardianship Tribunal did not accept Professor Nair's opinion that it was reasonable for ANX to have a substitute decision maker for his major financial dealings. It is apparent from the transcript that at least one of the reasons that the doctor's opinion was not accepted was because the Guardianship Tribunal decided that ANV had not told Professor Nair anything about ANY's involvement in her father's affairs. ANV attempted to adduce fresh evidence at the hearing about the reason Professor Nair did not mention ANY or her role when expressing the view the NSW Trustee should be appointed. We have not taken into account that fresh evidence when considering the appeal on questions of law.

1. As we have said, the Tribunal must make its own finding as to capacity and cannot simply defer to medical opinion. Although not expressly referred to in the reasons, the Tribunal had reasons for not accepting Professor Nair's opinion. Those reasons were firstly that Professor Nair did not have a complete picture of how ANX was managing his affairs and secondly that the Tribunal had spoken directly to ANX and were satisfied on the basis of that conversation that he understood and approved of the decisions that had been made in relation to his finances.

1. ANV also submitted that the "improvement in ANX's condition" which the Tribunal referred to, related to an improvement in his symptoms of depression following the prescription of anti-depressant medication. The improvement did not relate to his cognition. We agree with that interpretation of Professor Nair's report. The Guardianship Tribunal should have explained why they were relying on an improvement in ANX's depressive symptoms as a basis for their finding as to capacity. But that omission does not mean that the finding was based on no probative evidence.

Ms Golvers' Report

1. Professor Nair's report referred to Ms Golvers' assessment but the Guardianship Tribunal did not mention that assessment in its reasons for decision. That assessment concludes that:

Based on this present assessment ANX appears to have a deficit with learning, immediate and delayed memory, attention and visuo-spatial processing, although language appears reasonably intact. Executive function also appears to have declined. His performance with attention and visuo-spatial processing suggests a decline in function and his driving ability will require monitoring.

His scores on both the MMSE and the ADAS-Cog indicate that he is eligible for an anticholinesterase medication.

1. ANV attempted to provide fresh evidence about the purpose of anticholinesterase medication but we did not accept that evidence.

1. Ms Golvers' report is relevant to the issue of capacity. The Guardianship Tribunal did not refer to it, or its significance, in the reasons for decision. While it could be said that the Guardianship Tribunal has not adequately explained its reasoning in relation to its finding of capacity, the question is whether there was evidence in support of its finding.

ACAT assessment

1. The ACAT assessment reported that ANX had "short term memory loss". The purpose of this assessment was not to express a view in relation to ANX's capacity to manage his financial affairs. The Guardianship Tribunal did not need to refer to it when making a finding as to capacity.

Conclusion

1. The Guardianship Tribunal did not articulate and consider the evidence of ANX's cognitive deficits and the impact, if any, that those deficits may have on his capacity to manage his financial affairs. The Guardianship Tribunal also relied on an 'improvement' in ANX's condition as a basis for concluding that he had capacity when that improvement did not necessarily relate to his capacity. But these oversights or inaccuracies do not constitute an error of law because there was probative evidence as to ANX's capacity. Most significantly, ANX gave evidence as to his understanding of his financial affairs and Professor Nair expressed the view that he had reasonable insight into his problems despite his cognitive deficits.

Finding that ANV is aggrieved because he no longer has use of ANX's property

1. ANV also challenged the Tribunal's finding that he was "particularly aggrieved that he no longer has use of the Tempe property." That is not a finding that relates to ANX's capacity. Because it is not a material finding of fact, there is no need to consider whether or not it was made without probative evidence to support it.

Procedural fairness

Legal principles

1. The rules of procedural fairness require that a person be given a fair and unbiased hearing before decisions are taken which affect their interests: Aronson, Dyer and Groves, Judicial Review of Administrative Action, Lawbook Co 2009 4th ed, at 403. The Guardianship Tribunal is obliged to give parties a reasonable opportunity to present their case and to respond to the substance of any material that is "credible, relevant and significant to the decision to be made": Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Brennan J at 629.

1. The transcript of the proceedings supports ANV's assertion that certain documents filed by ANX's lawyer were not provided to him and his lawyer until the day of the hearing. That material includes information about ANX's financial affairs and two unsigned statements from ANX's granddaughters. Those statements contain prejudicial material in relation to ANV including allegations of alcoholism, drug dependence and irrational behaviour.

1. At the hearing the Presiding Member suggested to ANV's lawyer that she "might need to read those with (her) . . . client". (Transcript p 8, line 1). The Presiding Member went on to say that the panel would speak privately to ANX and that that would give ANV's lawyer an opportunity to go through the new documents with her client (Transcript p 8, lines 1-6).

1. Later in the hearing, when making submissions to the Tribunal, ANV's lawyer said:

Once again there have been statements presented to us today rather late when direction was given to [ANY] that that was to be done two weeks prior to actually deal (sic) with the accusations and the same contained within those statements as obviously a lot of hearsay and emotional depravity (sic) towards -towards [ANV]. The situation is one that the communications between all parties has been dissolved [sic] unfortunately.

1. Neither ANV nor his lawyer were invited or sought to respond to any of the late evidence. The Guardianship Tribunal did not mention it in the reasons for decision.

1. To attract the hearing rule of procedural fairness, the adverse information must be "credible, relevant and significant to the decision." (See also NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; (2002) 115 FCR 561 at 585-6 per Allsop J.) As to credibility, the statements of the two granddaughters were unsigned but ANV did not suggest that they were not the authors. The evidence was not inherently implausible. In those senses, it was credible.

1. It is less clear whether the evidence of the granddaughters was relevant to an issue in dispute. ANV submitted that the unsigned statements "appeared to have swayed the Board's (sic) opinion of me." Even if that could be proved, ANV's character was not in issue. The only issue the Guardianship Tribunal had to consider was whether ANX was capable of managing his financial affairs. For that reason, the letters from the two granddaughters were not relevant and the 'hearing rule' of procedural fairness does not apply.

1. Even if the letters were relevant and significant to the decision, we are satisfied that the Guardianship Tribunal gave ANV a reasonable opportunity to respond to the substance of the adverse material. Had ANV not been represented by a lawyer, it may well have been necessary for the Guardianship Tribunal to suggest an adjournment to give him an opportunity to read and respond to the late evidence: Italiano v Carbone and Ors [2005] NSWCA 177. But ANV did have a lawyer and although they were given a very short time to review the late evidence, no express objection was made to it being taken into account, no further time was sought to respond and no application was made for an adjournment. Apart from stating that the material was hearsay and 'emotional' and noting that communications between the parties had broken down, ANV's lawyer did not make any application in relation to that material.

Failing to provide medical report attached to ACAT assessment

1. When it became apparent that the house in which ANX was living required urgent renovation and ANX would have to move out, an Aged Care Client Record assessment was prepared. ANV complains that ANY did not provide to the Guardianship Tribunal or to him, a medical report that he believes should have been attached to that assessment. The assessment notes that a general practitioner participated in the assessment but there was no evidence that a medical report had been prepared.

1. Without some evidence of the medical report to which ANV is referring, we are not satisfied that there was any error of law on the part of the Guardianship Tribunal in failing to provide him with any such report.

Questioning ANV about dates, times and his father's mental state

1. According to ANV, it was established at a preliminary hearing before the Guardianship Tribunal on 15 August 2012 that he has a disability and requires a solicitor to speak for him. Despite that, the Guardianship Tribunal insisted that ANV attempt to answer questions involving dates, times, people and events as far back as February 2012. ANV says he was not prepared to answer those questions as he had given the information to his solicitor. He has problems with memory and stress. He was questioned by the Guardianship Tribunal in front of his father about how he personally perceived his father's mental health problems. Out of respect to his father ANV says he struggled to answer.

1. It is not the role of a legal representative to give evidence on behalf of his or her client. The Guardianship Tribunal was entitled to ask ANV questions, particularly about his father's capacity. ANV asserted that his father was able to manage his financial affairs. It was appropriate for the Guardianship Tribunal to question him about those views. The Tribunal did not breach the rules of procedural fairness or any other legal principle in doing so.

Failure to attempt settlement?

Legal principles

1. Unless it considers that it is not possible or appropriate, the Guardianship Tribunal is obliged to bring the parties to a settlement or, at least, use its "best endeavours" to do so. Section 66 states that:

(1) The Tribunal shall not make a decision in respect of an application made to it until it has brought, or used its best endeavours to bring, the parties to a settlement.

(1A) Subsection (1) does not apply in respect of an application if the Tribunal considers that it is not possible, or appropriate, to attempt to bring the parties to a settlement.

(2) Any meetings conducted or proceedings held in the course of attempting to bring or bringing the parties to a settlement shall not be conducted or held in public.

(3) Any statement or admission made during the course of a conciliation hearing is not, except with the consent of all the parties, admissible as evidence in proceedings before the Tribunal or in any court.

Did the Guardianship Tribunal comply with s 66?

1. ANV submitted that the Guardianship Tribunal did not comply with this provision because it did not attempt mediation. It appears that he was referring to mediation between himself and his father, rather than mediation among all the parties. He said that mediation would have been beneficial because, out of respect, he is not in the habit of discussing financial matters with his father.

1. Section 66 is directed to bringing all the parties to a settlement, not just some of the parties. The transcript discloses that the Guardianship Tribunal went 'off record' to attempt settlement with the parties:

MEMBER: Now, the Tribunal has an obligation to attempt conciliation. So what I'm going to just ask now, and I'm sorry you're the only person who's not a party

[ANY]: That's okay.

MEMBER: Would you mind sitting out?

[ANY]: That's fine

MEMBER: Because if we keep the principal people here. Let's just see if we can tease out what it is . .

INAUDIBLE ASIDES

MEMBER: So we won't go into evidence. So what happens here (not transcribable), we're going to go off the record, we turn the . . .

MEMBER: --so I can explain to ANV and ANY anything that you've said, don't act as though you haven't told me because we're now going into a hearing on the record. So if I ask you a question don't sort of think why has she asked me that when I've already told her. We're starting afresh okay?

1. ANX's lawyer, who was at the Guardianship Tribunal hearing, wrote in the Reply to this appeal that:

During the conduct of the proceedings before the Guardianship Tribunal, the Tribunal spoke to each of the parties individually before concluding that mediation was not appropriate in the matter. The Tribunal did use its best endeavours to bring the parties to settlement.

1. In its reasons for decision, the Guardianship Tribunal said, "The Tribunal was of the opinion that it was not possible to attempt to bring the parties to a settlement. "

1. All the evidence is consistent with the Guardianship Tribunal speaking to the parties individually and then deciding that it was not possible for the parties to reach an agreement. In those circumstances, we are satisfied that the Tribunal complied with s 66.

Is non-compliance with s 66 an error of law?

1. Even if the Guardianship Tribunal did not comply, s 66 is a procedural provision any breach of which does not invalidate the ultimate decision: Tasker v Fullwood [1978] 1 NSWLR 20; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490.

Conclusion

1. As the Guardianship Tribunal based its findings of fact on probative evidence, afforded procedural fairness to the parties and complied with s 66, it made none of the errors of law that ANV submitted it had made.

1. The Guardianship Tribunal's decision to dismiss the application for financial management in relation to ANX is affirmed.

Decision last updated: 31 May 2013