BFT

[2014] NSWCATGD 51

NSW Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	BFT [2014] NSWCATGD 51
Hearing dates:	28 November 2014
Date of orders:	28 November 2014
Decision date:	28 November 2014
Jurisdiction:	Guardianship Division
Before:	B Shipp, Senior Member (Legal)
Decision:	Request to review guardianship order refused. Request to review appointment of manager refused.
Catchwords:	REQUESTED REVIEW – guardianship – appointment of financial manager – abuse of process
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW)
Category:	Principal judgment
Parties:	Mr BFT (subject person) Mr OGT (applicant) Mrs JPM (current guardian and financial manager) NSW Trustee and Guardian
File Number(s):	48950
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

1. These Reasons for Decision are for the orders of the Tribunal made on 28 November 2014 concerning Mr BFT. The Annexure at the end of these Reasons contains details of the parties to the hearing and who participated in the hearing [Appendix removed for publication].

What the Tribunal decided

2. Pursuant to Section 25A of the Guardianship Act 1987 (NSW), the Tribunal refused the request to review the guardianship order.

3. Pursuant to Section 25T of the Guardianship Act, the Tribunal refused the request to review the appointment of Mrs JPM as manager of Mr BFT's financial affairs.

Background

4. Mr BFT is a 95-year old man with dementia. He has been a permanent resident of an aged care facility in Southwest Sydney for a number of years. Mr BFT has two children - Mrs JPM and Mr OGT. Mr OGT continues to reside in Mr BFT's home in Inner West Sydney.

5. In February 2012, the Tribunal appointed Mrs JPM as her father's guardian for a period of 12 months to make decisions about his accommodation and services. On the same day, the Tribunal appointed Mrs JPM as Mr BFT's private financial manager.

6. In February 2013, the Tribunal renewed the guardianship order for 6 months on a non-reviewable basis, reappointing Mrs JPM to make decisions about Mr BFT's accommodation.

7. In April 2014, Mr OGT requested to review the appointment of Mrs JPM as financial manager.

8. In June 2014, Mrs JPM applied for the appointment of a guardian.

9. These matters were heard together on 20 June 2014. On that day, the Tribunal:

1. appointed Mrs JPM as Mr BFT's guardian for a period of 3 years to make decisions about his accommodation

2. Confirmed the appointment of Mrs JPM as Mr BFT's financial manager.

10. On 11 July 2014, Mr OGT submitted further requests for review of:

1. the appointment of his sister Mrs JPM as financial manager

2. the appointment of Mrs JPM as guardian.

11. These matters were listed for hearing on 28 November 2014.

Conciliation

12. Before it makes a decision the Tribunal must try to bring the parties to a settlement if this is possible and appropriate.

13. There was considerable dispute in this matter. Throughout the course of the hearing, the Tribunal used its best endeavours to discuss the matters in which the parties were in conflict, in the context of the best interests of Mr BFT. These discussions did not result in an agreed outcome.

What did Tribunal have to decide?

Review of the Appointment of a Financial Manager

14. On reviewing the appointment of the manager of the estate of Mr BFT, the Tribunal may either confirm or revoke the appointment.

15. The Tribunal may revoke the appointment under review only if:

1. The appointed manager seeks the revocation, or

2. The Tribunal is satisfied that it is in the best interests of Mr BFT that the appointment be revoked.

16. If the appointment of the manager is revoked but the financial management order remains in place, the Tribunal must appoint a substitute manager.

Review of the Guardianship Order

17. On reviewing the current guardianship order, the Tribunal may confirm, vary, suspend or revoke the order.

18. The questions which had to be decided by the Tribunal are:

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

• Should the guardianship order continue?

• What functions should now be given to the guardian?

• Who should be the guardian?

History and Current Applications

19. In this matter, Mrs JPM was appointed as her father's guardian and financial manager in early 2012. She was reappointed as guardian for a 6 month non-reviewable order in February 2013. Her appointment as guardian therefore came to an end in about August 2013. She reapplied to be guardian in June 2014, and Mr OGT applied to become the joint financial manager with his sister.

20. In June 2014, the Tribunal appointed Mrs JPM again as her father's guardian. Mr OGT wanted to be appointed jointly with the Public Guardian (something which is legally impossible). The Tribunal commented at the time of the June 2014 hearing that Mrs JPM is "more appropriate for appointment. [She] has previously acted as guardian…and performed the role appropriately. [Mrs JPM] is currently engaged with the aged care facility and involved with care plans. Whilst Mr OGT has previously been carer for his father, he lacks insight into his father's care needs and has a financial and beneficial interest in Mr BFT's home which could potentially cloud his decision-making around accommodation for Mr BFT.”

21. The Tribunal also confirmed the appointment of Mrs JPM as Mr BFT's financial manager, expressing the following views:

"…although there is currently a complicated and sensitive issue to work through regarding the home, [Mrs JPM] has seemingly managed the estate of Mr BFT appropriately. [Mrs JPM] is seeking appropriate advice from lawyers and real estate agents as to possible options for the resolution of this issue and has discussed the situation with the NSW Trustee. [Mrs JPM] has met Mr BFT's care needs through the regular payment of his aged care facility fees and continues to do so whilst she is working through this current issue.

The Tribunal is not satisfied [Mr OGT] is suitable for appointment as he lacks insight into his father's care needs and his own interests are caught up in the outcome of the house."

22. There are some common themes in the evidence and findings from the three previous hearings conducted in relation to Mr BFT.:

1. Mr OGT has not agreed that his father should be in aged care and has always wanted his father to come home

2. Mr OGT wants his father to live with him in the home at Inner West Sydney, or to rent out the Inner West Sydney property and to live with him somewhere else

3. Mr OGT believes his father "is pretty sharp" but the consistent medical evidence is that Mr BFT has cognitive impairment as a result of vascular dementia which causes him to be unable to make informed decisions in the significant areas of his life, and to be incapable of managing his financial affairs.

23. The Tribunal made its most recent decision on 20 June 2014. Mr OGT signed his latest applications to review the guardianship order and to review the appointment of Mrs JPM as financial manager just 20 days later on 10 July 2014. In his applications and supporting email, Mr OGT makes the following submissions:

1. His father has always been able to make his own decisions, but he has no professional evidence to establish this

2. He is concerned that his father is living in the wrong place as he has recently fallen and broken his hip and damaged his head

3. He should be appointed as joint guardian with his sister, but he should take the "pre-eminent" role, and Mrs JPM should be a back up. He will "endeavour to give my father a safe, hygienic, happy life at home under my care with the help [of others]" [Mr BFT explains why his father would be better off at home].

4. He should be appointed as financial manager because he is "honest and trustworthy" and "best suited to look after his father's best interests." He has experience in being accountable for expenditure, and has managed his father's finances informally when he was under his care.

5. His aim would be to prevent the sale of the home which Mrs JPM is proposing for two reasons:

- The sale of the home would "sadden" Mr BFT when he finds out this was just for the purpose of paying the nursing home fees

- "My father's financial estate is my inheritance. I'm the one who's lived with my father all his life."

6. Mrs JPM has not considered making Mr BFT's home rentable to produce an income for him. The home is in fact rentable as a result of the renovations Mr OGT has himself undertaken, particularly to the kitchen.

Preliminary Issue: Should the Tribunal exercise its discretion under Section 25A of the Guardianship Act to refuse the request to review the guardianship order and under Section 25T to refuse the request the review of the appointment of a financial manager?

24. At the commencement of the hearing, Mr and Mrs JPM expressed some surprise that this hearing was taking place, as they had been advised that Mr OGT would not be entitled to lodge a further review request. They believe there [has] been no change in circumstances since the last review hearing in June 2014.

25. The Tribunal explained to the parties at the commencement of the hearing about provisions set out below relating to a person's standing to request a review and the legislative reasons why the Tribunal may nevertheless refuse to hear the review. Mrs JPM and her husband wanted the Tribunal to make orders under these sections refusing to allow the reviews to occur as the requests disclosed no new issues.

The Legal Position

26. The Tribunal undertakes a 2 step process when determining whether to review a guardianship order or appointment of a financial manager at the request of any individual.

A: Determine whether the applicant is entitled to request a review

27. Section 25(2)(a) of the Act requires the Tribunal to review a guardianship order at the request of "any person entitled to request a review". This phrase is defined in section 25B of the Act to include the guardian, the person under guardianship, the Public Guardian, or "any other person who in the opinion of the Tribunal has a genuine concern for the welfare of the person under guardianship". Section 25S is a similar provision in relation to a review of the appointment of a financial manager. These provisions relate to a person's "standing" to bring the applications.

28. Is Mr OGT a person with a genuine concern for the welfare of his father? (Sections 25B(d) and 25 S)

29. In a number of cases the Tribunal has considered what this standing provision requires. The Tribunal has decided that, in the context of the Guardianship Act, a genuine concern for the welfare of the subject person requires:

1. that the applicant is bringing to the attention of the Tribunal a fact situation in which the subject person's interests may call for intervention by the Tribunal;

2. that the applicant is sincere in seeing the situation as one that may call for the intervention of the Tribunal in the interests of the person; and

3. that the application is motivated by a desire to advance the welfare of the person. The interests of the person must be the primary motivation for the application.

30. The word welfare is used broadly in the Guardianship Act to include financial as well as personal welfare.

31. The Tribunal set out a non-exhaustive list of factors that it may find it useful to consider:

1. How the applicant explains the reasons for the application and the kind of orders sought, in the application and in other relevant documents and evidence.

2. Has the applicant taken any reasonable steps to clarify and resolve the situation before bringing it to the Tribunal?

3. The relationship of the applicant and the person subject of the application. Is it a family relationship, a friendship, a professional relationship or, for example, a neighbour? How longstanding and close is the relationship? Does the relationship involve any professional or other responsibility of the applicant for the person? Has the relationship been marked by positive and/or negative action by the applicant towards the person?

4. The views of the person in relation to the issue of genuine concern. Does the person now or has the person over time expressed views in relation to their perception of the applicant and their relationship with the applicant?

5. Does the applicant have a conflict of interest? Is this conflict more apparent than real?

6. What is the nature of any conflict of interest? Does the applicant acknowledge the conflict? How does the applicant reconcile or propose to manage the conflict?

32. As noted above, Mr OGT's submissions focussed on his wish to have his father removed from the nursing home, the manner in which this might occur and the unwillingness of the current financial manager and guardian - his sister Mrs JPM - to consider this alternative. In the hearing, Mr OGT acknowledged that his father's condition had further declined, and he is not now sure that he can make the necessary arrangements to have his father cared for at home. He stated he had not had time to look into whether this was now possible. He could not afford to pay full-time carers, so he would be offering them to live rent-free in exchange for their care for his father. Nevertheless, Mr OGT was keen to ensure that there were decision-making arrangements in place for his father which would enable all possible options to be considered.

33. Mr OGT is Mr BFT's son and they have clearly had a long-standing relationship. He previously acted as his father's carer and has lived with him for most of his life.

34. Mr OGT has some potential conflict of interest. This was commented upon in previous hearings. Again in this hearing, Mr OGT told the Tribunal that "I have a right [to prevent the sale of his father's home] because I am the inheritor of the property…the law allows me to hold onto the property…"

35. Mr OGT also noted that he had tried to suggest different solutions to his sister before bringing this application. She initially agreed to consider renting the property, but has now dismissed these suggestions.

36. The Tribunal considered this evidence in some detail in the context of the question of whether Mr OGT has a genuine concern for the welfare of his father. The Tribunal formed the view that Mr OGT has a sincere, albeit possibly a mistaken, belief that his father is not being well-cared for and is unhappy at the nursing home, and that there is, at least theoretically, a better alternative. While Mr OGT readily acknowledges his own financial interests in seeking that his father [maintains] ownership of the home, the Tribunal is not satisfied that this is his primary motivation. For the purposes of this decision, the Tribunal is satisfied that Mr BFT's primary motivation is what he sees as advancing his father's welfare.

37. For these reasons, the Tribunal finds that Mr BFT is a person with a genuine concern for the welfare of his father, and therefore has standing to request these reviews.

B: Determine whether to undertake the review at the request of this person

38. Section 25A provides an exception to the mandatory requirement of Section 25(2)(a). It provides:

"Despite Section 25(2)(a), the Tribunal may refuse a request to review a guardianship order if:

a. in the opinion of the Tribunal, the request does not disclose grounds that warrant a review, or

b. the Tribunal has previously reviewed the order"

39. Section 25T is an identical provision in relation to requested reviews of the appointment of a financial manager:

40. Clearly where there are multiple sequential applications for review of the same orders, the Tribunal must exercise caution to ensure there is no abuse of process. The Tribunal sees this as the principal reason for the existence of the these provisions - that is, to deter the making of frivolous or vexatious applications which effectively request the Tribunal to reconsider matters which were previously before the Tribunal, and which do not raise fresh issues.

41. In exercising any functions under the Guardianship Act, the Tribunal has a duty to apply the principles set out in Section 4 of the Act. The paramount consideration is the welfare and interests of the person who is the subject of the application.

42. Mr OGT's written applications and submissions and his oral evidence indicate that he clearly disagreed with the June 2014 decision of the Tribunal. The proper course to take in those circumstances is to appeal against the decision in accordance with Part 6 of the Civil and Administrative Tribunal Act 2013 (NSW). This generally allows appeals on a question of law, or on the merits with the leave of the appeal body.

43. In the November 2014 hearing, the Tribunal allowed Mr OGT some considerable time to expand on the reasons for his current review requests, to determine whether there were any new matters which might form the basis of a further review. The Tribunal could not discern any new matters that might warrant a further review. Indeed it was unlikely there could be any new matters of significance in the three weeks between the last hearing and Mr OGT lodging his new review requests. When he was specifically asked about this, Mr OGT stated that his father's house was "now rentable" as he had finished off some new renovations. He quickly added that in his view the home was previously rentable. The Tribunal notes from the Reasons for Decision following previous hearings that this is an issue that has been discussed at some length. In any case, Mrs JPM told the Tribunal that she remains of the view that the home is "not rentable" based on her observations two weeks prior to this hearing, and on the opinion of real estate agents. Mrs JPM notes that Centrelink has cancelled Mr BFT's pension as a result of his home being no longer regarded as an exempt asset and this is the motivation for the house to be sold. This was the position at the time of the last hearing, and remains the position. Information from the NSW Trustee and Guardian for this hearing indicates that the NSW Trustee and Guardian had approved the manager's proposal to sell the home. Mr OGT then sought a review of this decision, but the decision was affirmed in early November 2014.

44. The Tribunal also received evidence from a registered nurse Ms Z at the aged care facility where Mr BFT resides. She confirmed that Mr BFT now has very high care needs, and he is dependent on staff for all activities of daily living. He is chair and bedbound, is incontinent and requires 24 hour care. He has very limited communication.

45. As noted above, Mr OGT acknowledged his father's care needs had increased. He also acknowledged that he could not afford to pay for full-time care. The Tribunal was not satisfied there was anything new in the care issues raised by Mr BFT that would warrant further consideration of the guardianship arrangements so soon after the last hearing. Other than his sister's unwillingness to consider alternative care arrangements (which Mr OGT himself could not clearly explain), Mr OGT raised no issues of concern about her role as guardian or financial manager.

Consideration

46. The Tribunal takes the view that its discretion under Section 25A and Section 25T must be exercised carefully. To prevent a person with a genuine interest in the subject person's welfare from having their concerns heard by the Tribunal is a significant step.

47. Such a decision should not be taken lightly. This interpretation is consistent with the structure of the legislation in which Parliament has provided for mandatory requirements [Section 25(2)(a) and Section 25S], and then an exception (Section 25A and Section 25T).

48. The Tribunal has carefully considered the above matters and has determined that it should exercise its discretion to refuse Mr OGT's request to review the guardianship order and the order appointing Mrs JPM as financial manager. Mr OGT raises no new matters associated with his father's wellbeing which are relevant to the issues to be determined in these reviews. To conduct a review in these circumstances would be an abuse of process and should not be allowed.

46. Subject to any time limitations, Mr OGT retains the right to lodge appeals against the Tribunal's decision of June 2014.

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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

Amendments

14 August 2015 - Paragraph 20 combined as part of paragraph 19 bringing total paragraphs to 49 from 50.

Decision last updated: 14 August 2015