BCA

[2014] NSWCATGD 47

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BCA [2014] NSWCATGD 47
Hearing dates:	16 December 2014
Date of orders:	16 December 2014
Decision date:	16 December 2014
Jurisdiction:	Guardianship Division
Before:	Hughes B, Senior Member (Legal) Jamieson G, Senior Member (Professional) Newman J, General Member (Community)
Decision:	Temporary guardianship order made for 30 days appointing the Public Guardian with authority to make decisions on access. Estate committed to the NSW Trustee and Guardian for management.
Catchwords:	GUARDIANSHIP – application for guardianship order - appointment of enduring guardian – exploitation and manipulation alleged – urgent oral application – temporary order made. FINANCIAL MANAGEMENT – application for financial management order - large estate – will executed shortly before hearing – subject person befriended by strangers – best interests.
Legislation Cited:	Guardianship Act 1987 (NSW) Mental Health Act 2007 (NSW)
Cases Cited:	H v H (Supreme Court (NSW), Young J, 20 March 2000, unrep) McD v McD (1983) 3 NSWLR 81 at 86 PY v RJS [1982] 2 NSWLR 700 Re GHI (a protected person) [2005] NSWSC 581
Category:	Principal judgment
Parties:	Mr BCA (subject person) Mrs TGT (applicant) The NSW Trustee and Guardian The Public Guardian
File Number(s):	57658
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 (NSW)).

REASONS FOR DECISION

What the Tribunal decided

1. The Tribunal made a temporary guardianship order appointing the Public Guardian as Mr BCA's guardian for a period of thirty days to make decisions on his behalf about who should have access to him and under what conditions. This order will be reviewed within thirty days.

AND

2. The Tribunal committed the estate of Mr BCA to the NSW Trustee and Guardian.

Background

3. Mr BCA is 81 years old and is a permanent resident at an aged care facility in Inner West Sydney. Before moving to the aged care facility in September 2014 Mr BCA lived for many years in a boarding house in Inner West Sydney. Mr BCA has limited social contacts and has only recently reconnected with his sister, Ms FHQ, following his admission to the aged care facility. Ms FHQ lives at Regional NSW.

4. An application for the appointment of a financial manager was received at the Tribunal on 21 October 2014. The applicant is the manager of the aged care facility, Mrs TGT.

5. On 12 December 2014 Mr BCA purported to make a will appointing Ms UBU as his executor, trustee and as the beneficiary of his estate. On the same date an appointment of enduring guardian was executed appointing Ms UBU as enduring guardian. There was no application for a review of the making of the appointment of enduring guardian before the Tribunal as the instruments only came to light shortly before the hearing.

The Hearing

6. At the end of these Reasons for Decision are lists of the parties to the applications and witnesses who attended the hearing [Appendix removed for publication]. During the course of the financial management hearing it became evident that there was an urgent need for a guardianship application to be made in respect of Mr BCA. The Tribunal heard an oral application from Mrs TGT for the appointment of a guardian for Mr BCA and involved the Public Guardian in the guardianship hearing.

What did the Tribunal have to decide?

FINANCIAL MANAGEMENT

7. The questions which had to be decided by the Tribunal in relation to financial management were:

• Is Mr BCA incapable of managing his affairs?

• Is there a need for another person to manage Mr BCA’s affairs and is it in his best interests for a financial management order to be made?

• If so, who should be appointed financial manager?

Is Mr BCA incapable of managing his affairs?

8. A person’s capability to manage his or her affairs was considered by Campbell J in the NSW Supreme Court in Re GHI (a protected person) [2005] NSWSC 581. Campbell J affirmed the approach enunciated in PY v RJS [1982] 2 NSWLR 700 by Powell J, at paragraph 7:

“It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears:

(a) that he or she is incapable of dealing, in a reasonably competent fashion with the ordinary routine affairs of man; and

(b) that by reason of that lack of competence there is shown to be a real risk that either

(i) he or she may be disadvantaged in the conduct of such affairs; or

(ii) that such moneys or property that he or she may possess may be dissipated or lost ... it is not sufficient in my view merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner...”

9. Young J in H v H (unreported) NSW Supreme Court 20 March 2000, in dealing with the capacity test as it has been enunciated in NSW, said that dealing with the “ordinary affairs of man” does not simply mean being able to go to the bank and draw out housekeeping money. Most people’s affairs, his Honour said,

“are more complicated than that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one’s family and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills.”

10. It should be noted that the relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86).

11. The Tribunal received a report from Dr Z dated 23 October 2014. Dr Z reported that Mr BCA has mild dementia and is unable to manage his financial affairs or business affairs. An Aged Care Client Record of 19 May 2014 reported that an MMSE (Mini Mental State Examination) of the previous year had resulted in a score of 19/30 indicating cognitive impairment.

12. Mr BCA told the Tribunal that he was not sure if he had financial problems. He told the Tribunal that some ladies had been trying to steal money from him using his chequebook. He said that he is a self-funded retiree and is unable to recall his annual income. He is not sure of the value of his shares. Mr BCA told the Tribunal that he has no ongoing costs other than his accommodation fees. He could not tell the Tribunal how much money he had in his bank accounts, but believed he received about $50,000 from an allocated pension into his cheque account.

13. Mr QIT, an Outreach Worker of the aged care facility service provider, has been involved with Mr BCA for a long time. He told the Tribunal that Mr BCA had lived very frugally in the same boarding house for the past thirty years until he moved into the aged care facility. Mr BCA had told Mr QIT that he had lent large sums of money to a lady, Ms NJO, that he had met at an RSL Club in Inner West Sydney and that this money had not been repaid. These complaints had been repeated for about eight or nine months before Mr BCA moved to the aged care facility, however Mr BCA was at that stage unwilling to take any legal action against Ms NJO. Mr QIT was aware that Mr BCA had paid a deposit and rent in advance totalling about $1200 to a boarding house in West Sydney on behalf of a friend, believed to be Ms NJO. Mr QIT was concerned that the people who were financially exploiting Mr BCA were attempting to remove him physically so that he would be under their control. When Mr BCA entered the aged care facility it was discovered that he has significant financial assets, with an estate valued at about $3 million in shares and savings. Cheques have disappeared from Mr BCA’s chequebook, and his Credit Union contacted Mrs TGT regarding abnormalities with Mr BCA’s Credit Union account. Ms NJO is reported to have entered a guilty plea to charges in respect of these cheques. Her bail conditions are that she is not to go near, or contact, Mr BCA. Ms NJO is due to be sentenced early in 2015. Mrs TGT reported that despite her bail conditions Ms NJO has attended at the aged care facility. Mr QIT’s evidence demonstrated that Mr BCA is vulnerable to exploitation and there is a serious risk that his finances may be dissipated or lost as a result of this vulnerability.

14. Mrs TGT told the Tribunal that Mr BCA writes cheques to pay for his accommodation fees well in advance. She told the Tribunal that Mr BCA is a very independent person, but he has proven to be vulnerable to exploitation by Ms NJO and her colleague Ms UBU. Mrs TGT reported that the frequency of cheques being drawn and made out to Ms NJO had escalated upon Mr BCA’s arrival at the aged care facility. Mrs TGT showed the Tribunal photocopies of fraudulent cheques made out to Ms NJO to support the application for the appointment of a financial manager. Mrs TGT also provided the Tribunal with bank slips indicating that $500,000 had disappeared from Mr BCA’s account between 30 September 2014 and 7 October 2014. Mr BCA is unable to account for this.

15. The Tribunal was satisfied that Mr BCA is incapable of managing his financial affairs.

Is there a need for another person to manage Mr BCA’s affairs and is it in his best interests for a financial management order to be made?

16. It is clear from the evidence above that Mr BCA is extremely vulnerable to financial exploitation. He has a significant estate and has lived frugally for many years until his recent exploitation by people he has met socially, including Ms NJO. Mr BCA is not sure of the value of his estate and is not clear about his income. He writes cheques for his accommodation well in advance of their due date, and it would be preferable for a financial manager to be appointed to ensure that a regular payment system is established to ensure that Mr BCA’s fees are not only paid, but that the remainder of his assets are working in his best interests. Mr BCA supported the appointment of a financial manager to protect his assets and to ensure that he is not subject to further financial exploitation.

17. Mrs TGT told the Tribunal that just before the hearing she had found two documents in Mr BCA’s room at the aged care facility. One was a will dated 12 December 2014 appointing Ms UBU as executor, trustee and beneficiary of the estate of Mr BCA. The other instrument was an appointment of enduring guardian appointing Ms UBU as enduring guardian for Mr BCA. This instrument was also dated 12 December 2014, so four days before this hearing. Mrs TGT told the Tribunal that she had serious concerns as the appointment of enduring guardian instrument stated that Mr BCA did not wish to accept medical intervention if he were so seriously ill that there was no likelihood of recovery. This contradicted the wishes stated by Mr BCA to the staff at the aged care facility in respect of advance health care directives. Ms UBU has since attempted to take Mr BCA to her own general practitioner for assessment and treatment, stating that she did not wish him to see Dr Z who treats all the residents at the aged care facility. Mrs TGT and Mr BCA reported that Ms UBU is a colleague of Ms NJO and had also met Mr BCA at an RSL Club.

18. Ms FHQ strongly supported the appointment of a financial manager to protect her brother and his assets. She told the Tribunal that she has grave concerns about Mr BCA’s vulnerability to financial exploitation and she is conscious that the events of the past few months have been extremely distressing to her brother, particularly given his independent and frugal nature.

19. The Tribunal was satisfied that there is a need to appoint someone to manage Mr BCA’s affairs and it is in his best interests that an order be made.

Who should be appointed financial manager?

20. In appointing a financial manager, as in making all other orders under the Guardianship Act 1987 (NSW) (‘the Guardianship Act’), the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in section 4 of the Guardianship Act.

21. Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person’s estate or may commit the management of the estate to the NSW Trustee and Guardian. There was no private person who was willing or suitable to manage Mr BCA’s estate at this point in time. Ms FHQ lives some distance away and has only recently reconnected with her brother. She did not propose herself at this time.

22. The Tribunal was satisfied that the estate of for Mr BCA should be committed to the NSW Trustee and Guardian.

GUARDIANSHIP

23. The questions which had to be decided by the Tribunal in relation to guardianship were:

• Is Mr BCA someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

• Should the Tribunal make a guardianship order and if so, what order should be made?

• Who should be the guardian?

• How long should the order last?

Is Mr BCA someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

24. Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she is “a person in need of a guardian.” A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person” (section 3(1), Guardianship Act). A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation (section 3(2), Guardianship Act).

25. The Tribunal had limited information of it in respect of the question of disability due to the urgent nature of the application. The hearing was listed for a financial management application, and it was only due to the nature of the evidence in that matter that the Tribunal heard an oral application for the appointment of a guardian. Mr BCA has a diagnosis of osteoarthritis, atrial fibrillation, hypertension, hyperchoesterolaema, gastro oesophageal reflux, cerebro vascular accident in 2005 and cognitive impairment according to an Aged Care Client Record of May 2014. Dr Z reported that Mr BCA has mild dementia in a report of 23 October 2014.

26. The Tribunal had before it copies of a purported enduring guardian appointment and a will dated four days before the hearing for the appointment of a financial manager. Mr BCA told the Tribunal that Ms UBU is a colleague of Ms NJO and that he has been lending money to the two ladies. He told the Tribunal that the ladies tried to steal money from his chequebook. The instrument of appointment of enduring guardian contains a clause about refusing life prolonging medical treatment which is at odds with Mr BCA’s stated desire about medical treatment.

27. There was no dispute by any one at the hearing that Mr BCA is a person for whom the Tribunal could make a guardianship order. The Tribunal is satisfied that Mr BCA has a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order and what order should be made?

28. Mr BCA was able to provide his views to the Tribunal. Mr BCA told the Tribunal that he believed that Ms UBU was attempting to manipulate him. He said that she had taken him to her own doctor to try to get treatment for his pain. Mr BCA had no recollection of Dr Z, his treating general practitioner at the aged care facility. Mr BCA felt that it would be helpful to have someone to protect him from people trying to manipulate him, particularly the ladies who were stealing from him. He is happy at the aged care facility and believes he is well treated there.

29. Ms FHQ supported the appointment of a guardian to make decisions about access and the conditions of access to Mr BCA. Having heard of the actions of Ms NJO and Ms UBU towards Mr BCA, Ms FHQ felt that her brother needed to be protected from such abuse.

30. Mrs TGT told the Tribunal that access decisions were required to protect Mr BCA from Ms NJO and Ms UBU. She told the Tribunal that the two women were colleagues from the RSL Club and had befriended Mr BCA at that location. Ms NJO has pleaded guilty to fraud offences against Mr BCA and despite bail conditions that she not approach Mr BCA has been seen on at least one occasion at the aged care facility. Given the nature of the instruments of 12 December 2014 and the connection between Ms NJO and Ms UBU, Mrs TGT said that access decisions needed to be made to protect Mr BCA from Ms UBU. Ms UBU is the sole beneficiary of Mr BCA’s estate and is able to make decisions as enduring guardian. Mrs TGT is concerned that the enduring guardian instrument contains clauses which are inconsistent with the stated desire of Mr BCA in respect of medical treatment. Mrs TGT raised concern that the instruments of 12 December 2014 were made only four days before the hearing of the application for the appointment of a financial manager.

31. Due to the urgent nature of the application the Tribunal was unable to notify Ms UBU of the hearing, or to seek her views.

The effect of an order on Mr BCA’s family relationships/cultural or linguistic environment.

32. The Tribunal considered that a temporary guardianship order would not negatively impact Mr BCA’s family relationships / cultural or linguistic environment but would rather ensure that he is protected from financial and emotional exploitation.

Are there decisions which need to be made by a guardian?

33. The Tribunal was satisfied that the only decisions which need to be made by a guardian under a temporary guardianship order are in respect of access. The making of a guardianship order has the effect of automatically suspending an appointment of enduring guardian and all its functions pursuant to section 6I of the Guardianship Act. A temporary guardianship order may be made for up to thirty days. Mr BCA has permanent accommodation in which he is content. He receives all the medical and health care treatment he needs at the aged care facility. Ms FHQ is now involved as a contact person for her brother, although at this stage she is unwilling to be appointed as a guardian. Ms FHQ may wish to be regarded as a person responsible in the future.

34. A guardian will have to make decisions about who should have access to Mr BCA and under what conditions. The people in respect of whom concerns have been raised are Ms NJO and Ms UBU. Mrs TGT told the Tribunal that the aged care facility will be able to implement any access decisions that are made by a guardian.

35. Accordingly, the Tribunal decided that access is the only function to be attached to the current order.

Who should be the guardian?

36. The Public Guardian is to be appointed as a person’s guardian under a temporary guardianship order pursuant to section 17(4) of the Guardianship Act.

How long should the order last?

37. Due to the lack of notice for the guardianship hearing and the fact that the Tribunal was unable to obtain the views of Ms UBU, the enduring guardian, prior to or during the hearing, the Tribunal considered that only a temporary guardianship order should be made. Temporary guardianship orders may be made for a period not exceeding 30 days. The Tribunal determined to make a temporary guardianship order for a period of thirty days. The order is to be reviewed at the end of that period. The parties should consider whether they wish to request a review of the making of the enduring guardianship appointment to be heard with the review of the guardianship 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: 26 February 2015