BYQ

[2019] NSWCATGD 26

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BYQ [2019] NSWCATGD 26

Hearing dates:

13 December 2019

Date of orders:

13 December 2019

Decision date:

13 December 2019

Jurisdiction:

Guardianship Division

Before:

S M Roberts, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
Dr M Spencer, General Member (Community)

Decision:

002: Guardianship Application
The application for guardianship made by TZQ is dismissed after hearing.

 

003: Financial Management Application
1. The estate of BYQ is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

 

2. OBQ of [Address removed for publication.] and TZQ of [Address removed for publication.] are appointed jointly and severally as the financial managers of the estate.

 NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – need for a guardian – medical treatment decisions needed – subject person with informal supports – person responsible – no need for a guardianship order to be made – application dismissed.

  FINANCIAL MANAGEMENT – application for a financial management order – subject person incapable of managing their own affairs – need for another person to manage subject person’s affairs – relatives unable to access subject person’s bank accounts – relatives paying out of pocket for subject person’s needs – private financial manager appointed – order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 4, 33A(4), 36

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

002: Guardianship Application
BYQ (the person)
TZQ (applicant, proposed guardian)
NSW Public Guardian (statutory party)

  003: Financial Management Application
BYQ (the person)
TZQ (applicant, carer,
proposed financial manager)
OBQ (joined party)
NSW Trustee and Guardian (statutory party)

Representation:

Nil

File Number(s):

NCAT 2018/00340409

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

Introduction

1. BYQ is a 90-year-old who resides at aged care facility at Inner West Sydney. Sadly, BYQ’s wife is deceased. BYQ became a resident at the aged care facility (a secure facility) as a condition of a court order after he was charged with indecency while urinating in a park where children were present. BYQ is fortunate to have a very engaged daughter, TZQ, who lives in the family home in Inner West Sydney and a son, OBQ, who lives in Southwest Sydney. TYL is BYQ’s step-daughter (being the daughter of BYQ’s late-wife). He has little contact with her.

2. In January 2019, the Tribunal dismissed an application by TZQ for a guardianship order for her father for want of prosecution.

3. On 22 February 2019, the Tribunal received a new guardianship application for BYQ from TZQ. On 28 February 2019, TZQ also lodged an application for a financial management order for her father.

4. After a number of adjournments and orders with respect to these applications, we visited the aged care facility on 13 December 2019 to conduct a hearing into the applications. BYQ, TZQ and OBQ attended the hearing in person and BYQ was assisted by a Greek interpreter.

5. At the end of these Reasons for Decision are lists of the parties to the application and witnesses. [Appendix removed for publication.]

GUARDIANSHIP ORDER APPLICATION

What did the Tribunal have to decide?

6. The issues we need to consider in deciding if BYQ needs a guardianship order are:

1. does BYQ have a disability that prevents him from being able to make important life decisions? If he does then;

2. are there important life decisions that need to be made for BYQ? If there are then;

3. who should be appointed as BYQ’s guardian to make those decisions; and

4. how long should the guardian be appointed?

7. In deciding the issues in this matter, we need to balance a number of considerations including BYQ’s views and the practicability of decisions being made for BYQ if a guardian was not appointed.

8. In making our decision, we are guided by the principles in s 4 of the Guardianship Act 1987 (NSW) including that:

1. BYQ’s welfare and interests should be given paramount consideration;

2. BYQ’s freedom of decision and freedom of action should be restricted as little as possible;

3. BYQ should be encouraged, as far as possible, to live a normal life in the community;

4. BYQ should be encouraged, as far as possible, to be self-reliant in matters relating to his personal, domestic and financial affairs; and

5. BYQ should be protected from neglect, abuse and exploitation.

9. We will now consider each of the issues set out in [6] above by applying the considerations and principles of the Guardianship Act.

Does BYQ have a disability that prevents him from being able to make important life decisions?

10. We had before us a letter dated 16 March 2016 from Dr Z, Geriatrics Advanced Trainee, of a public hospital. Dr Z states BYQ scored a RUDAS at that time of 18/30 but refused to complete some aspects of the test. Dr Z opined BYQ has a diagnosis of probable dementia with baseline low level education.

11. BYQ’s presentation and demeanour are consistent with a diagnosis of dementia. He is a very friendly gentleman but was unable to understand the nature of the hearing. After a period of time, he became agitated and it was decided it was in his best interests to be excused from the rest of the hearing.

12. It is not in dispute at the hearing that BYQ is prevented from making his own important life decisions due to his cognitive impairment.

13. On the basis of all the evidence before us we are satisfied BYQ is not able to make his important life decisions because of his cognitive impairment. He is a person for whom a guardian could be appointed.

Are there important life decisions needing to be made for BYQ?

14. TZQ told us she lodged the guardianship application because she was concerned that if BYQ required prostate surgery, he would not be able to provide the consent himself and may be denied treatment.

15. TZQ told us the aged care facility consults with her about all of BYQ’s healthcare matters and she provides informal consent for his medications. TZQ also said her father is compliant with his medications. She confirmed that there are no restrictive practices being applied to BYQ. She said that to her knowledge, other than consent to medical or dental treatment, there are no other areas of decision making that are relevant to BYQ’s circumstances.

16. Consent to BYQ’s medications and medical treatment may be provided by TZQ as his “person responsible” as defined under the Guardianship Act or by a guardian appointed by us (given BYQ has not executed an instrument of enduring guardianship).

17. Section 33A(4) of the Guardianship Act sets out the hierarchy of people who can be a ‘person responsible’ in order of priority as follows:

1. guardian – a person appointed as guardian by the Tribunal or under an instrument of enduring guardianship; or if there is no guardian;

2. spouse or partner – (including de facto spouse or partner) where there is a close continuing relationship; or if there is no spouse or partner;

3. carer – an unpaid carer who provides or arranges for domestic support on a regular basis; or if there is no carer;

4. relative or friend – who has a close personal relationship; frequent personal contact and a personal interest in the person’s welfare on an unpaid basis.

18. The person next in the hierarchy may become ‘person responsible’ if a ‘person responsible’ declines in writing to exercise the function or a medical practitioner or other qualified person certifies in writing that the ‘person responsible’ is not capable of carrying out their functions.

19. A ‘person responsible’ has a right and responsibility to know and understand what the treatment proposed to be administered to the person is; what the risks are; what alternative treatments there may be and they can say ‘yes’ or ‘no’ to treatment and, if they so wish, seek a second opinion.

20. Section 36 of the Guardianship Act provides that a patient's ‘person responsible’ may give consent to minor or major medical or dental treatment on behalf of a patient where the patient lacks capacity to give their own consent.

21. We are satisfied TZQ falls within the definition in section 33A(4) of the Guardianship Act of being BYQ’s “relative”. She also told us that the aged care facility accepts and recognises her as BYQ’s informal substitute decision-maker. TZQ said there has been one occasion when BYQ’s step daughter, TYL, attended the facility to enquire about BYQ. Staff declined to engage with her. TZQ told us the staff notified her of this encounter and TYL has not to her knowledge had further contact with the facility or BYQ.

22. On the basis of the evidence before us and our finding that TZQ is BYQ’s “person responsible”, we are not satisfied there are important life decisions that can only be made for BYQ by a guardian. It is therefore not necessary for us to determine the other issues set out in [6] above.

23. We therefore dismiss the application by TZQ for a guardian to be appointed for BYQ.

FINANCIAL MANAGEMENT APPLICATION

24. TZQ also applied for a financial management order for BYQ.

25. The issues we need to consider in deciding if BYQ needs a financial management order are:

1. is BYQ not capable of managing his affairs?

2. is there a need for another person to manage BYQ’s affairs?

3. is it in BYQ’s best interests for a financial management order to be made? If so,

4. who should be appointed financial manager?

26. In deciding the issues in this matter, we also need to be guided by the principles in s 4 of the Guardianship Act as set out in paragraph 8 above.

27. We now have to consider each of the issues set out in [25] above by applying the considerations and principles of the Guardianship Act.

Is BYQ not capable of managing his affairs?

28. On the basis of the evidence before us, it is not in dispute BYQ is not capable of managing his finances due to the extent of his cognitive impairment.

Is there a need for another person to manage BYQ’s affairs?

29. TZQ provided us with the following evidence as to the status of BYQ’s affairs:

1. the property at Inner West Sydney is held in BYQ’s name and is valued at approximately $1.25 million;

2. BYQ has the following two bank accounts that are in his name (having previously been in joint names with his late wife):

1. a term deposit of approximately $40,000; and

2. a savings account of approximately $20,000.

3. BYQ receives an aged care pension per fortnight which pays for his aged care fees of approximately $1800 per fortnight;

4. BYQ is exempt from paying a RAD due to being a low income resident;

5. TZQ pays for all the utilities and rates on the property at Inner West Sydney; and

6. BYQ’s wife left TYL $30,000 in her estate on the condition that she can only inherit it once BYQ is deceased.

30. TZQ told us she is unable to access either of her father’s bank accounts. She therefore pays for any of his out of pocket expenses such as dentures and pharmacy bills from her own funds.

31. We are satisfied there is a need for someone to be authorised to manage BYQ’s finances given he lacks the capability to do so himself because of his cognitive impairment.

Is it in BYQ’s best interests for a financial management order to be made?

32. Currently, no one has authority to access or manage BYQ’s two bank accounts or utilise those funds for his benefit.

33. We are satisfied in all the circumstances, it is in BYQ’s best interests for a financial management order to be made for him for the reasons outlined above.

Who should be appointed financial manager?

34. TZQ and OBQ propose themselves as joint and several financial managers for BYQ. They impressed us as having a genuine care and concern for their father as evidenced by TZQ paying for some of her father’s necessities out of her own funds since she has not been authorised to access his accounts. They both answered the standard probity questions to our satisfaction.

35. We therefore appoint TZQ and OBQ as joint and several financial managers for BYQ on an indefinite basis.

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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: 25 May 2020