AWR

[2014] NSWCATGD 42

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	AWR [2014] NSWCATGD 42
Hearing dates:	27 November 2014
Decision date:	27 November 2014
Jurisdiction:	Guardianship Division
Before:	Tearle B, Senior Member (Legal) McPhee B, Senior Member (Professional) Stewart L, General Member (Community)
Decision:	Applications dismissed.
Catchwords:	GUARDIANSHIP - application for guardianship order - enduring guardianship appointment made - no need for an order. FINANCIAL MANAGEMENT - application for financial management order - enduring power of attorney made - no need for an order.
Legislation Cited:	Guardianship Act 1987 (NSW)
Category:	Principal judgment
Parties:	Mr AWR (subject person) Ms QBT (applicant) Ms HCT (carer and attorney) The Public Guardian NSW Trustee and Guardian
File Number(s):	57927
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

reasons for decision

What the Tribunal decided

1. The Tribunal dismissed the application for both guardianship and financial management orders for Mr AWR.

Background

1. Mr AWR, who is 73 years old, has until recently been living with his long-term friend and carer, Ms HCT, in Ms HCT's home in regional NSW. Mr AWR recently spent a period of time in respite care while Ms HCT was overseas. On 14 November 2014, Mr AWR was moved to a care facility, within a public hospital. Mr AWR is reported to have cognitive, social and behavioural impairment.

1. Mr AWR has two sons: Mr DEX and MR GFX.

1. On 29 November 2013, Mr AWR appointed Ms HCT to be his enduring guardian, and he also appointed Ms HCT's daughter, Ms UGD, to be his alternative enduring guardian. On the same day, Mr AWR appointed Ms HCT as his attorney under an enduring power of attorney. He also appointed Ms UGD as his substitute attorney. In each of those instruments of appointment, Ms UGD is described as Ms UGD.

1. On 21 November 2014, the Tribunal received from Ms QBT, senior social worker in the care facility of the public hospital, an application seeking the appointment of both a guardian and a financial manager for Mr AWR.

Conduct of the hearing

1. Mr AWR and his son, Mr DEX, participated in the hearing by telephone.

1. MR GFX, one of Mr AWR's two sons, had advised an officer of the Tribunal Registry by telephone on 26 November 2014 that he was unable to have any responsibility for his father. MR GFX supported the appointment of his brother, Mr DEX, to be their father's guardian and financial manager. The Tribunal spoke briefly with MR GFX at the commencement of the hearing on 27 November 2014, but the telephone call was almost immediately disconnected. The Tribunal was unsuccessful in its attempts to make further contact with MR GFX by telephone. He did not return the Tribunal's message left on his answering service.

1. A list of the parties to the proceedings and witnesses at the hearing is contained in an appendix to these Reasons for Decision [Appendix removed for publication].

THE EVIDENCE AND THE TRIBUNAL'S REASONING

GUARDIANSHIP

Reasons for this application

1. Ms QBT applied to the Tribunal for the appointment of a guardian because she was concerned that Ms HCT was no longer able to provide care for Mr AWR. Further, Mr AWR was, at the time, adamant that he would leave the hospital to return to live at home.

What did the Tribunal have to decide?

1. Before the Tribunal may make a guardianship order, it must be satisfied that:

• Mr AWR is a person with a disability within the meaning of the GuardianshipAct1987 (NSW);
• because of that disability/those disabilities, Mr AWR is totally or partially incapable of managing his person; and
• there is a need for a guardianship order to be made in relation to Mr AWR.

Is Mr AWR a person with a disability?

1. The Tribunal must first consider whether Mr AWR is a person with a disability, within the meaning of the Guardianship Act.

1. Dr Z, Visiting Psychiatrist at the public hospital, advised in a report prepared on 14 November 2014 that Mr AWR has cognitive, social and behavioural impairment, but this is not a classic picture of Alzheimer's disease. Mr AWR has widespread subcortical (deep in the brain) vascular pathology. There may be some contribution to this impairment from a traumatic brain injury sustained many years ago in a motor vehicle accident. Mr AWR also experienced a stroke nine years ago. Dr Z reported that a neuropsychological assessment in July 2014 found executive dysfunction.

1. Ms QBT, the applicant, stated in a report prepared on 20 November 2014 that Mr AWR has a diagnosis of vascular dementia. Members of his treating team at the public hospital consider that he lacks capacity, and he lacks insight into his condition. During the hearing, Ms QBT confirmed that members of Mr AWR's treating team agree that he has vascular dementia.

1. Mr DEX acknowledged that his father has dementia, and Ms HCT agreed with this view.

1. Mr AWR himself acknowledged that he has "a little bit of Alzheimer's."

1. The Tribunal did not make a formal finding as to whether or not Mr AWR is a person with a disability within the meaning of the Guardianship Act. The decision at the hearing turned on whether or not there was a present need for a guardianship order.

Is a guardianship order needed?

1. It was clear to the Tribunal that the applicant, Ms QBT, sought the appointment of a guardian because of her very genuine concerns for Mr AWR's welfare. There was, however, very little evidence on which the Tribunal might properly make a finding that there is a present need for a guardianship order for Mr AWR.

1. Mr AWR has until recently been living with his long-term friend and carer, Ms HCT, in Ms HCT's home in Regional NSW. Mr AWR recently spent a period of time in respite care while Ms HCT was overseas. On 14 November 2014, Mr AWR was moved to the care facility in the public hospital.

1. Ms Y, clinical nurse consultant with a Community Health Centre, advised in a report prepared on 20 November 2014 that Mr AWR has been approved for low level residential and respite care.

1. Ms QBT repeated her concerns that Ms HCT has indicated that she is unable to care for Mr AWR in her own home any longer. Further, Mr AWR had not been consenting to move into permanent care, even though, in Ms QBT's view, he now needs a permanent accommodation placement. Ms QBT also expressed concern that Mr AWR could become homeless. However, as the hearing progressed, Ms QBT reported that Mr AWR does now consent to being placed in an aged care facility. Further, Mr AWR agrees that Ms HCT should make the decision about his future accommodation.

1. Mr AWR stated quite clearly that he wishes to return to live in regional NSW. He specifically confirmed that he is willing to move into supported accommodation at Regional NSW, and to live in a facility chosen for him by Ms HCT. Ms HCT then confirmed that she would like to place Mr AWR at an aged care facility in regional NSW. Mr DEX also told the Tribunal that he would be happy for his father to move to that facility.

1. Ms X, from the aged care facility in regional NSW, wrote to the Tribunal on 26 November 2014, confirming that:

• Ms HCT had arranged for Mr AWR's admission to that facility; and
• a place was ready for Mr AWR as soon as the facility received approval for transfer from the relevant treating medical officer.

1. Ms W, Nursing Unit Manager at the care facility of the public hospital, gave evidence that Mr AWR receives minor medications only.

1. Ms HCT said that she attends all of Mr AWR's general practitioner appointments with him. Ms HCT also confirmed that she is willing to continue to provide consents for Mr AWR's medical treatments.

1. Mr AWR said that he would trust Ms HCT to make decisions concerning his health care and medical and dental treatments. Mr DEX agreed that Ms HCT should be the person who provide these consents.

1. Ms HCT confirmed that all of the services that Mr AWR needs will be provided to him when he enters residential care. Ms HCT also indicated that she will continue to make decisions concerning services for Mr AWR.

1. On 29 November 2013, Mr AWR appointed Ms HCT to be his enduring guardian, and he also appointed Ms HCT's daughter, Ms UGD, to be his alternative enduring guardian. During the hearing, Ms HCT confirmed that she has been making decisions for Mr AWR as his enduring guardian. For instance, she organised respite care for him, and she has been making decisions concerning his medical issues. Ms HCT indicated her willingness to continue to act as Mr AWR's enduring guardian. Ms UGD confirmed that she is willing to act as his alternative enduring guardian.

1. After hearing the above evidence, Ms QBT acknowledged that there is no need to appoint a guardian for Mr AWR.

1. The Tribunal was not satisfied that there was a need to appoint a guardian as a substitute decision-maker for Mr AWR. He is about to enter supported accommodation willingly, and he will receive all of the services he needs. His long-term friend and carer, Ms HCT, is willing to continue to act as his enduring guardian, under the authority Mr AWR has already given to her. Accordingly, the Tribunal dismissed the application for a guardianship order.

FINANCIAL MANAGEMENT

Reasons for this application

1. Ms QBT applied for a financial management order because she considered that Mr AWR is not capable of managing his own finances. Ms QBT acknowledged in her application that Mr AWR's financial situation was "very unclear."

What did the Tribunal have to decide?

1. The questions which the Tribunal had to decide in relation to financial management were:

• Is Mr AWR capable of managing his affairs?
• Is there a need for another person to manage Mr AWR's affairs, and is it in his best interests for a financial management order to be made?
• If so, who should be appointed as the financial manager?

Is Mr AWR capable of managing his financial affairs?

1. The Tribunal did not make any formal findings on the question as to whether Mr AWR is capable of managing his financial affairs. Instead, the Tribunal decided this application after a consideration as to whether it is in Mr AWR's best interests that a financial management order be made.

Does Mr AWR need someone else to manage his financial affairs for him?

1. The Tribunal did not make any formal findings on the question as to whether Mr AWR needs someone else manage his financial affairs for him. Instead, the Tribunal decided this application after a consideration as to whether it is in Mr AWR's best interests that a financial management order be made.

Is it in Mr AWR's best interests that a financial management order be made?

1. Before it may properly make a financial management order, the Tribunal must be satisfied that it is in the best interests of Mr AWR that it makes such an order.

1. On 29 November 2013, Mr AWR appointed Ms HCT as his attorney under an enduring power of attorney. He also appointed Ms UGD as his substitute attorney. During the hearing, Mr AWR confirmed that he remembers having appointed Ms HCT to be his attorney, and he added that he would trust Ms HCT to manage his money for him. Ms HCT confirmed that she is willing to continue to act as Mr AWR's appointed attorney, and Ms UGD confirmed that she is willing to act as his substitute attorney.

1. Mr DEX said that his father might have contributed some $18,500 towards the purchase of a caravan with Ms HCT. No other participant commented on this, if correct, as being of any possible concern.

1. Ms HCT gave evidence that Mr AWR currently has approximately $1,650 in an account with a local bank, and he also owns a motor vehicle. Ms HCT stated that Mr AWR has no debts. He had previously owed approximately $20,000 on a credit card, but he has since repaid all of that debt. Mr AWR no longer conducts a credit card account.

1. Ms HCT also gave evidence that, when Mr AWR enters his accommodation placement, all of his fees, including his pharmacy bills, will be paid by way of direct debit. Ms HCT also stated that the aged care facility in Regional NSW will maintain a comforts fund for Mr AWR.

1. After hearing the above evidence, Ms QBT acknowledged that there is no need to appoint a financial manager for Mr AWR.

1. After considering all of the evidence, the Tribunal determined that it would not be in Mr AWR's best interests for the Tribunal to make a financial management order. His long-term friend and carer, Ms HCT, is willing to continue to act as his appointed attorney, under the authority Mr AWR has already given to her. The informal arrangements which Ms HCT has put in place appear to be working adequately. There was no evidence before the Tribunal of any current financial difficulties, or of any other issues whatsoever with these informal arrangements. Accordingly, the Tribunal dismissed the application for a financial management order.

FORMAL FINDINGS

1. The Tribunal dismissed the application for a guardianship order in relation to Mr AWR, because the Tribunal was not satisfied that there is a present need for such an order.

1. The Tribunal, having determined that it would not be in Mr AWR's best interests for the Tribunal to make a financial management order, dismissed the application for a financial management order.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 17 December 2014