BGU

[2020] NSWCATGD 88

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BGU [2020] NSWCATGD 88

Hearing dates:

4 November 2020

Date of orders:

4 November 2020

Decision date:

04 November 2020

Jurisdiction:

Guardianship Division

Before:

J Claridge, Senior Member (Legal)
S Flanagan, Senior Member (Professional)
Dr M Spencer, General Member (Community)

Decision:

1. A guardianship order is made for BGU.

2. TNU of [Address removed for publication.] is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 4 November 2020.

4. This is a limited guardianship order giving the guardian(s) custody of BGU to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Health care

To decide what health care BGU may receive.

b) Services

To make decisions about services to be provided to BGU.

CONDITION:

6. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring BGU to an understanding of the issues and to obtain and consider her views before making significant decisions.

Financial Management

1. The estate of BGU is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. CSK of [Address removed for publication.] is appointed as the financial manager of the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until she has obtained all necessary authorities from the NSW Trustee and Guardian.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – subject person with speech and hearing impairment – limited language – reliance on family members in navigating community – guardianship order made – appointment of private guardian.

FINANCIAL MANAGEMENT – application for a financial management order – whether subject person incapable of managing their own affairs – victim of financial exploitation – risk of further financial exploitation – private person suitable to be appointed as financial manager – private financial manager appointed – order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(1)-(2), 15(3), 17(1) 18(1), 25M

Cases Cited:

CJ v AKJ [2015] NSWSC 498

McD v McD (1983) 3 NSWLR 81

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Guardianship Application

BGU (the person)
CSK (applicant, proposed guardian)
TNU (carer, proposed guardian)
Public Guardian

002: Financial Management Application

BGU (the person)
CSK (applicant, proposed financial manager)
TNU (carer, proposed financial manager)
NSW Trustee and Guardian

Representation:

B Simeonides, separate representative for BGU

File Number(s):

NCAT 2020/00182498

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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

Background

1. BGU, 28 years old, lives with her brother TNU.

2. It is reported that BGU has an intellectual disability, profound hearing impairment and speech impairment.

3. On 19 June 2020 the Tribunal received applications for guardianship and financial management for BGU from CSK, her mother.

4. On 7 August 2020 the Tribunal ordered that BGU be separately represented.

5. On 25 August 2020 the hearing was adjourned so that further evidence of cognitive capacity could be obtained.

6. On 24 September 2020 the hearing was adjourned part heard to attempt to find a better way to communicate with BGU. Today is the continuation of this hearing.

Written evidence

7. Accompanying the applications are: psychological assessment report dated 13 September 2020 by Ms Z, psychologist; report dated 24 March 2020 by Dr Y; report dated 9 March 2020 by Dr X; employment services assessment report dated 27 June 2016 by the Department of Human Services; psychological assessment report dated 10 October 2011 by Dr W; letter dated 30 April 2020 by the National Disability Insurance Agency and report dated 18 September 2020 by Ms V, psychologist and Ms U, senior clinical and child psychologist.

GUARDIANSHIP

8. In determining an application for guardianship, we must consider:

• if we can make an order because the person, the subject of the application, has a disability that prevents that person from being able to make important decisions about their life; and

• if, in the circumstances there is a need for a guardian to be appointed.

Is BGU someone for whom the Tribunal could make an order?

9. By s 14(1) of the Guardianship Act 1987 (NSW) (“the Act”) we have power to make a guardianship order for a person if we are satisfied that the person is “a person in need of a guardian”.

10. 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”: the Act, s 3(1). The disability must restrict a person in one or more major life activity to such an extent that he or she requires supervision or social habilitation: the Act, s (3)(2).

11. The expression ‘social habilitation’, in the context of disability, refers to a need for services to help a person to be, or to become able to, function normally in the community with others, (P v NSW Trustee and Guardian [2015] NSWSC 579 at [303]).

12. Today’s hearing continues from the hearing part heard on 24 September 2020. For ease of reference these reasons for decision include the evidence and findings of hearings conducted on 24 September 2020 and 4 November 2020.

13. Ms Z, psychologist, states in her report that BGU has a moderate intellectual disability. BGU also has profound hearing and speech impairment and limited alternative communication. On testing for both intellectual and adaptive functioning, BGU scored in the extremely low range. Testing was adapted to accommodate BGU’s hearing and speech impairments.

14. Ms Z concludes that BGU’s:

“understanding of and ability to function in the world around her is significantly less than that of the vast majority of the general population. Whilst BGU’s diagnosis of profound hearing and speech impairment … likely compounds this presentation, making it harder for her to understand and be understood, her extremely low cognitive and adaptive functioning is distinct from this presentation and indicative of the presence of intellectual disability.”

15. Dr Y, general practitioner, states in his report that BGU has an intellectual disability which impairs her day to day living, learning and communication. This is also confirmed in the report of Dr X, general practitioner.

16. Also, in evidence is the report of Ms V and Ms U, psychologists, dated 18 September 2020. Ms V and Ms U state that BGU does not meet the diagnostic threshold for symptoms consistent with autism spectrum disorder or an intellectual disability. They state that:

“specifically, her functioning did not fall in the clinical range across any of the domains of reciprocal, social interaction communication (non-verbal), and restricted and stereotypical patterns of behaviour. Additionally, her functioning across all three indices on the WAIS-IV indicated that she fell in the broadly average range across perceptual reasoning, working memory and processing speed. As such, it is hypothesised that [BGU]’s difficulties may be better explained by her impairments in hearing and broader speech and language difficulties.”

17. We note that the report of Dr W, psychologist, concludes that BGU’s “cognitive development is appropriate (as of an 18-year-old) but lacking in some respects (verbal expression and writing are below normal). [BGU]’s procedural IQ is at an adequate level.”

18. The Centrelink Assessment Report does not refer to an intellectual disability.

19. CSK states in her application that her daughter did not continue at school beyond Year 7 due to an intellectual disability. She states that both she and BGU’s brother provide her with care and support to meet her needs, including to help with finding employment, accompanying her on appointments and providing explanations on many matters. Elsewhere in the reports, it states that BGU left school at the age of 15 years after her father died.

20. At the 24 September 2020 hearing, Ms Brigitte Simeonides, separate representative for BGU, stated that she was shocked by the report of Ms Z stating that it did not describe the person that Ms Simeonides met with for a period of approximately two hours. Ms Simeonides stated that communication is a problem for BGU who likes to communicate in writing. Ms Simeonides stated that she was able to communicate well with BGU using this method.

21. CSK stated that she had commissioned a second report because of the time being taken by Ms V to provide her report. We note that the report states that the first test was done in July 2020 and the second in September 2020. CSK stated that she preferred the report of Ms Z as she thought that she was more professional in her approach and spent more time with her daughter.

22. Ms Z attended for part of the 24 September 2020 hearing. Ms Z described the subtests that she used when assessing BGU. She stated that when she was not confident that BGU understood the block design subtest, she changed to another subtest within the range for the index being tested. Ms Z stated that she would provide the subtest results to the Tribunal, stating that BGU obtained a score of about four for each subtest.

23. Ms Z stated that BGU’s brother assisted by asking his sister if she understood. Ms Z also tried using written instructions, but this was not successful. It is Ms Z’s view that BGU was concentrating hard on the day and produced her best effort.

24. Ms Z stated that she has limited experience testing people with a hearing impairment but has experience with people with other disabilities. She did not think that BGU’s cultural background affected the test results stating the time that BGU has lived in Australia and that her first and only language is English.

25. Ms Z provided the subtest results to the Tribunal for the 4 November 2020 hearing. We note that when we put the subtest results side by side, they each give a very different picture of disability.

26. We were unable to speak with either Ms V or Ms U. Ms Simeonides stated that she had spoken with Ms V and reported that Ms V had spent three hours with BGU and has no specific experience with deaf people. She reported that socially BGU needs assistance. She stated that the main issue for BGU is that she has very little language; no speech, no sign language and a very limited ability to lip read. She does not like to use speech to text technology. Ms V is reported as saying that a person uses language to think and that because BGU has very limited language that this may affect her memory.

27. Ms Simeonides stated that BGU’s view is that she has hearing and speech impairments and no other disability. She conveyed to Ms Simeonides that she could understand school, uses a computer but doesn’t understand email. She stated that BGU works five days a week as a hairdresser.

28. Ms Simeonides stated that BGU needs a lot of assistance, which is provided to her by her family. Despite requiring a lot of assistance, it is Ms Simeonides’ view that BGU does not meet the criteria for being a person in need of a guardian.

29. We note that the professional evidence provided to the Tribunal provides completely different profiles of BGU’s intellectual functioning. The Tribunal does not make a finding on the level of any intellectual disability that BGU may or may not have. We do, however, make the finding that BGU is a person in need of a guardian.

30. It is not in dispute that BGU has a severe hearing impairment and very limited speech. This makes it difficult for her to communicate effectively. This in itself does not mean that BGU meets the threshold test. However BGU has very limited language which affects her thinking processes, including problem solving, and making complex decisions. This was evidenced by some of BGU’s responses to questions. Some of her responses indicated that she did not understand the question being asked.

31. Also, BGU has very limited experience navigating the community herself. She is supported by family members when she goes into the community, except to work. She travels to work by car and the driver is always the same person and selected for this purpose. BGU has limited experience with novel situations and recent attempts to seek some independence went very badly for her, reducing her confidence.

32. BGU is from Sri Lanka and there may be cultural factors also at play. BGU has a very protective family and to date has not had the opportunity to learn language, even in the approximately 10 years she has lived in Australia.

33. We find that the combination of these factors restricts BGU in one or more major life activity to such an extent that she requires supervision or social habilitation and is therefore a person in need of a guardian.

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

34. Before making a guardianship order, we must have regard to the matters set out in s 14(2) of the Act. This requires us to consider the views of BGU and significant people in her life and have regard to family relationships and matters of cultural significance. We must also consider the practicability of services being provided to BGU without the need for the making of an order.

35. We must also observe the general principles listed in s 4 of the Act. Among other things, this requires that in deciding whether to make a guardianship order, we must endeavour to restrict BGU’s freedom of decision making and freedom of action as little as possible. As far as possible we should enable BGU to be self-reliant in matters relating to BGU’s personal, domestic and financial affairs. At the same time, we must also aim to protect BGU from neglect, abuse and exploitation. The paramount consideration is BGU’s welfare and interests.

36. BGU stated to the Tribunal using text messaging and also through Ms Simeonides that she wants a guardian and she nominated both her brother and mother for this role. She conveyed that she does not know if people take advantage of her, she needs help from her family when she goes to the doctor, she does not go out by herself, she loves her job and likes to be treated as an adult.

37. BGU does not have a spouse as defined by the Act. She is cared for by her brother and her mother.

38. CSK stated that a guardian is needed to protect her daughter from exploitation and harm. She stated that her daughter had recently been in an abusive relationship, which involved domestic violence and exploitation.

39. BGU lives with her brother. Initially CSK stated that there was no intention that she move to alternative accommodation. However on questioning, CSK stated that the plan is for accommodation to be found for BGU through the National Disability Insurance Scheme (NDIS) and that TNU will move with her as her carer.

40. BGU has a plan of supports under the NDIS. CSK is plan nominee under the plan. There is no support co-ordinator and CSK receives assistance from local area co-ordinator, Ms T. CSK stated that the plan includes speech therapy, occupational therapy and psychotherapy. We did not have a copy of the plan. CSK is attempting to find social groups for BGU as she currently does not have anyone outside the family in her life. CSK stated that recent bad experiences with friends led to police intervention and an abusive relationship.

41. Both CSK and TNU are persons responsible for BGU and involved in her healthcare, taking her to appointments and discussing medications and treatments with treating practitioners. TNU stated that at times it is difficult to be recognised as having authority on medical matters. He stated that the role he and his mother play is that of intermediary with doctors as his sister is able to report on her medical condition. He expressed concern that his sister has been offered and rejected a cochlear implant. She has a fear of hospitals because of earlier surgery when she was younger which left her badly scarred. He wanted to be in a clear position to support her in this decision.

42. Both TNU and CSK stated that their goal for BGU is to become more independent. They would both like for her to live in the community with supports around her.

43. BGU receives significant support from her mother and her brother. She relies on them to help her in many aspects of her life. BGU does not initiate matters for herself, often forgets what is required of her, has limited experience in dealing with novel situations and relies on family to make decisions. It is the combination of BGU’s sensory disability coupled with her lack of language and the consequent impact on her thinking and then also her limited experience in the world that creates challenges for her.

44. While a guardianship order will inevitably restrict BGU’s freedom of decision making and action, we have decided that the balance of considerations weighs in favour of making a guardianship order, especially given the ongoing difficulties BGU is likely to confront in the future if she does not acquire the skills to become more independent.

45. We have decided to give the guardian authority to make decisions about the services and healthcare that BGU needs.

46. As persons responsible TNU and CSK can provide medical or dental consent in circumstances where BGU is unable to provide consent.

Who should be appointed as the guardian?

47. We must be satisfied that any person appointed as a private guardian meets the following requirements under s 17(1) of the Act. The person must:

1. have a personality generally compatible with the personality of the person under guardianship;

2. have no undue conflict of interest (particularly financial) with those of the person; and

3. be able and willing to exercise the functions of the order.

48. We are not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed: the Act, s 15(3).

49. The applicant proposed that both she and TNU be appointed as BGU’s guardians. At the hearing TNU was proposed as guardian for BGU.

50. BGU currently lives with her brother and he provides her with support on a daily basis. His evidence at the hearing is that he wishes for his sister to become more independent and sees his role as supporting her. BGU conveyed through text messaging that she loves her brother.

51. TNU stated that he is both willing and able to act as guardian in the interests and welfare of BGU.

52. No undue conflict of interest was identified.

53. Ms Simeonides expressed concern in appointing TNU. She stated that he had not been co-operative with her by not returning her calls. She stated that although family say they want the right things for BGU, their actions call this into question. She also mentioned that the report of Ms V had only been provided after directions from the Tribunal to do so. Ms Simeonides prefers the appointment of the Public Guardian.

54. TNU stated that he had been at work and had asked his mother to respond to Ms Simeonides. Although not a fulsome response we are satisfied that TNU wants the best for his sister.

55. We are satisfied that TNU meets the requirements to be appointed BGU’s guardian and appoint him to this role.

How long should the order last?

56. An initial continuing guardianship order can generally be made for a period not exceeding 12 months: the Act, s 18(1).

57. It may be that if appropriate support and assistance can be secured for BGU, a guardianship order beyond 12 months will not be required. BGU may be able to acquire the necessary skills to make her own decisions if she has the opportunity to acquire language and to learn how to navigate within the community. This issue will be decided on review of these orders in 12 months having regard to the material that is then available.

FINANCIAL MANAGEMENT

58. Before we can make a financial management order for BGU, we must be satisfied, to the relevant civil law standard, that:

1. BGU is not capable of managing her financial affairs;

2. there is a need for a person to manage those affairs on behalf of BGU; and

3. it is in BGU’s best interests that the order be made.

Is BGU incapable of managing her affairs?

59. The test for determining a person’s capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]–[308]):

“Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests?

…

[A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.”

60. In considering whether the person is “able” in this sense, consideration may be given to:

• past and present experience as a predictor of the future course of events;

• support systems available to the person; and

• the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498, at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, at [309].

61. 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).

62. BGU has profound hearing and speech impairments, making it difficult for her to easily communicate.

63. CSK reports that BGU relies on her and her brother to pay all of her bills, operate her bank account and manage her expenses.

64. At the hearing it became evident that BGU has not been given the opportunity to learn to manage her own finances. She has relied on family all of her life.

65. Ms Simeonides stated that BGU did not know very much about her income and what it is being used for. BGU informed Ms Simeonides that people don’t understand her and so she does not attempt to make purchases. BGU has a card but was not clear what it is for and does not use it at the ATM. Ms Simeonides stated that BGU is happy for her mother to manage her money. She could not opine on whether or not she thought BGU was capable of managing her money as BGU has not had this opportunity.

66. BGU receives a part disability support pension. BGU also works part time in a hairdressing salon and receives income from work and her pension in the amount of approximately $1000 a fortnight. BGU is currently receiving the JobKeeper payment as a COVID-19 pandemic initiative of the Federal Government. BGU does not own any significant assets. BGU has a bank account with a commercial bank and has approximately $5000 in the account. BGU has expenses for everyday living.

67. Because BGU has difficulties communicating with others and more particularly has relied on her family all of her life to manage her finances, we accept that BGU is not able to manage her finances in a reasonably competent manner without the intervention of a financial manager. We are satisfied that BGU is not capable of managing her affairs.

Is there a need for a person to manage BGU’s financial affairs and is it in BGU’s best interests that a financial management order be made?

68. CSK stated that her daughter is vulnerable to exploitation by others. Direct evidence of this is a debt to a pay day loan provider and another debt to a mobile phone company for services and products that BGU did not have access to. These loans were taken out by BGU’s former partner in her name. CSK stated that BGU’s former partner took advantage of her daughter, would take her pension and her wages and then leave her with no money for the balance of the payment period.

69. CSK stated that she has organised for the loans to be repaid. CSK remains very concerned that her daughter remains vulnerable to exploitation. BGU has learnt from the experience and has become wary of others. It is unclear how she will react to potential exploitation in the future.

70. However, BGU has made it very clear that she wants her mother to manage her finances. It is also clear that presently she does not know how to manage her own money.

71. We are satisfied that there is a need to appoint someone to manage BGU’s affairs.

Who should be appointed as financial manager?

72. In appointing a financial manager, we must give paramount consideration to the interests of the person concerned and act in accordance with the other principles set out in s 4 of the Act.

73. Section 25M of the Act provides that, if we make a financial management order, we 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.

74. The applicant proposed that she and TNU be appointed as financial managers for BGU’s estate. At the hearing family members proposed that CSK be financial manager as she currently does this on an informal basis to the extent that she is legally able to do so.

75. CSK described her relationship with BGU as close. This was evident at the hearing.

76. CSK stated that she is both willing and able to take on the responsibilities of a financial manager to the NSW Trustee and Guardian.

77. CSK stated that she manages her own money and has been able to manage her daughter’s money informally, has arranged for her debts to be repaid and also to save $5000 of her daughter’s money.

78. CSK advised that she has never been declared bankrupt, convicted of fraud or any other offence involving dishonesty with money. None of her assets or money is co-mingled with any of BGU’s.

79. We are satisfied that CSK is a suitable person to be appointed as financial manager for the estate of BGU. We therefore appoint CSK to manage BGU’s estate, subject to the NSW Trustee and Guardian.

80. If BGU is given the opportunity to acquire the necessary skills to manage her money and becomes more confident in her interactions with people outside of her family, this order may be open to review at a later date.

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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: 03 May 2022