BZT

[2021] NSWCATGD 3

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BZT [2021] NSWCATGD 3

Hearing dates:

25 February 2021

Date of orders:

25 February 2021

Decision date:

25 February 2021

Jurisdiction:

Guardianship Division

Before:

C Cody, Senior Member (Legal)
Dr A Baird, Senior Member (Professional)
F N Given, General Member (Community)

Decision:

Guardianship Application

1. A guardianship order is made for BZT.

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

3. This is a continuing guardianship order for a period of 12 months from 25 February 2021.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where BZT may reside.

b) Health care

To decide what health care BZT may receive.

c) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where BZT is not capable of giving a valid consent.

d) Services

To make decisions about services to be provided to BZT.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management Application

The application is dismissed because Sydney Local Health District has withdrawn the application and the Tribunal consents.

Catchwords:

GUARDIANSHIP – application for a guardianship order – subject person an in-patient in a public hospital – subject person with acquired brain injury from stroke – subject person with history of polysubstance abuse – decision-making disability to remain for the foreseeable future – need for decisions to be made in relation to accommodation, services, and consent to medical and dental treatment – suitability of proposed guardian – former de facto partner proposed as guardian – private guardian appointed – order made.

FINANCIAL MANAGEMENT – application for a financial management order – decision to consent to withdrawal of the application – former dispute between the parties now resolved – consent given to withdraw application – application dismissed.

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), cl 10, Sch 6, s 55(1)(a)

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

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep

IF v IG [2004] NSWADTAP 3

P v D1 & Ors [2011] NSWSC 257

P v NSW Trustee and Guardian [2015] NSWSC579

Re B [2011] NSWSC 1075

Texts Cited:

Nil

Category:

Principal judgment

Parties:

001: Guardianship Application

BZT (the person)
Sydney Local Health District (applicant)
UBX (carer)
Public Guardian

002: Financial Management Application

BZT (the person)
Sydney Local Health District (applicant)
TAH (attorney)
QYH (attorney)
NSW Trustee and Guardian

Representation:

Nil

File Number(s):

NCAT 2021/00033126

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

What the Tribunal decided

1. The Tribunal appointed UBX as the guardian for BZT for a period of 12 months to make decisions about his accommodation, medical/dental consents, health care, and the services to which he is entitled.

2. The Tribunal decided to consent to the applicant’s request to withdraw the application for the appointment of a financial manager for BZT.

Background to the applications

3. BZT is 43-year-old male who was admitted to hospital on 30 November 2020 due to reported neurological impairment following a major stroke. He is currently an inpatient at a public hospital. He is supported by his sister QYH and his niece TAH, and UBX who is his friend, former de facto partner, and current carer. For ease of reference, BZT, his family and friends are referred to by their first names.

4. BZT executed an Enduring Power of Attorney (EPOA) appointing QYH and TAH as his attorneys on a joint and several basis on 3 August 2020.

5. On 5 February 2021, applications for guardianship and financial management were made to the NSW Civil and Administrative Tribunal (the Tribunal) by Sydney Local Health District. It was stated in the applications that as a result of BZT’s stroke, he has very limited ability to communicate and has been assessed as lacking capacity to make decisions. There was conflict between family members and UBX as to who should be making decisions about his accommodation, medical treatment and services, and who should be considered as his Person Responsible. It was noted that although QYH and TAH are the attorneys, it is necessary that the persons making decisions about finances are able to work together with whoever is appointed as guardian.

6. By the time of the hearing, it transpired that the family members and UBX had been able to work through their differences and communicate with the best interests of BZT in mind.

The documents

7. The Tribunal was provided with reports from Dr Z on behalf of Professor Y, of the public hospital (28 January 2021), Dr X, Clinical Neuropsychologist (relating to an assessment undertaken on 29 January 2021), and the social worker Mr W (4 February 2021), as well as an undated progress note (received 5 February 2021), correspondence from QYH and TAH and UBX, and UBX’s landlord, Ms V, and a copy of the EPOA.

The hearing

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

9. The hearing was conducted by videoconference with BZT, UBX, Mr W, social worker for Sydney Local Health District representing the applicant, and Ms U, speech therapist. QYH and TAH, and a representative of the Public Guardian, participated by telephone.

Principles applicable to both applications

10. In deciding whether to make guardianship and financial management orders, the Tribunal is under a duty to observe under the principles provided in s 4 (“the s 4 principles”) of the Guardianship Act 1987 (NSW) (“the Act”):

4 General principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a)    the welfare and interests of such persons should be given paramount consideration,

(b)    the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c)    such persons should be encouraged, as far as possible, to live a normal life in the community,

(d)    the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e)    the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f)    such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g)    such persons should be protected from neglect, abuse and exploitation,

(h)    the community should be encouraged to apply and promote these principles.

Guardianship – what did the Tribunal have to decide?

11. The questions which had to be decided by the Tribunal were:

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

12. The Tribunal may only make a guardianship order if is satisfied that the person is a “person in need of a guardian”: the Act, s 14(1). 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). 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 of major life activities to such an extent that he or she requires supervision or social habilitation: the Act, s 3(2).

13. The term “social habilitation” is not defined by the Act. In P v NSW Trustee and Guardian [2015] NSWSC579, Lindsay J considered its meaning in the context of s 3(2) of the Act, at [303]:

“The expression ‘social habilitation’ (in the context of references to ‘disability’, ‘restrictive’, ‘major life activities’ and the word ‘requires’) may be taken to refer to a need for services to help the person to be, or become, able to function normally in community with others.”

14. The Tribunal has considered the medical and cognitive evidence, as well as the evidence at hearing. Relevant background, according the reports, is that BZT had consumed illicit drugs on the night of the stroke and was found on the floor moaning. An ambulance had been called in the afternoon. BZT had suffered a severe acquired brain injury and has a diagnosis of left middle cerebral artery territory ischaemic stroke. He has a history of polysubstance abuse and heavy cigarette smoking, and his medical conditions include polycythaemia possibly secondary to cigarette smoking, aortic arch thrombosis, spasticity associated with stroke, and possible emphysema. He has severe expressive aphasia and apraxia.

15. Dr Z’s report confirmed that BZT has a severe brain injury which affects his ability to make decisions. Dr X’s progress note and report from her assessment on 29 January 2021 recorded that while the neuropsychological assessment was limited due to the severity of BZT’s neurological deficits, multiple measures were implemented to improve the validity of the assessment. During the assessment, BZT demonstrated severe receptive and expressive language impairment, possible visuo-perceptual deficits, and some executive dysfunction. His ability to understand his level of functioning, comprehend information, weigh up different options, make considered decisions and communicate his decisions are significantly compromised. Examples provided include: BZT struggled to follow even single-step commands. While he was able to close his eyes, point to the ceiling and to the floor, and point to a pencil, when asked to raise his head he said “yes yes yes”, when asked to wave goodbye he pretended to sleep, when asked to whistle he started dancing, when asked to point to a chair, he pointed to the wall, when asked to give her a pencil, he picked up pencil and pointed, when asked to point with a pencil to paper, he picked up the paper. He was unable to respond to cues indicating the relationship with his sister, and he believed he was at home, not in hospital. He frequently said “yes” even when it was unrelated to the question, or when he was shaking his head. It is her impression that he currently does not have the capacity to make lifestyle, or medical decisions.

16. The Tribunal noted that Dr Z’s report stated that BZT’s condition is improving. At the hearing the Tribunal asked about his current and foreseeable cognition. The social worker stated that BZT had had a life-altering stroke, he still has significant communication impairments, and difficulties in weighing up the positives and negatives of decisions, as well as in voicing his opinion. It is hoped that in 6 to 12 months his reasoning capacity will return, but he still has a decision-making disability that will remain for the foreseeable future. Ms U said that BZT has made significant improvements since the stroke; previously he could not understand a single word, and now he can understand a sentence. He is using an app on his iPad to communicate and he is skilled at doing this; it helps to prompt his verbal output. She opined that his level of understanding is still basic, and she agrees that he needs a substitute decision-maker for the foreseeable future.

17. BZT told the Tribunal that he agrees that he currently has a decision-making disability. No participants at the hearing disagreed.

18. The Tribunal accepts that BZT has a diagnosis of left middle cerebral artery territory ischaemic stroke, the effects of which mean that he has a disability that prevents him from 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?

19. In considering whether or not to make a guardianship order, the Tribunal must take into account the matters listed in s 14(2) of the Act, relevantly the views of the person and the person’s spouse or carer (if available), the importance of preserving his existing family relationships, his particular cultural and linguistic environments, and the practicability of services being provided to the person without the need for the making of such an order. These matters have no hierarchy or weighting, and each is a mandatory consideration. The Tribunal must undertake a balancing exercise of these matters, all the while applying the s 4 principles (see IF v IG [2004] NSWADTAP 3).

20. Cultural and linguistic environments: There were no cultural issues raised in the written materials or at hearing, although there are clearly linguistic needs to be taken into account in deciding whether to make an order, as discussed further below.

21. The views of his carers and family: As noted above, at the time of the application, there seemed to be some conflict as to who should be making decisions on behalf of BZT. The written and oral evidence noted that this may well have occurred due to the shock of the stroke and its effects on BZT, the tyranny of distance as QYH and TAH are based in Queensland and UBX is based in Sydney, and a lack of effective communication at that time. The Tribunal accepts that the three have resolved their initial tensions and that they have BZT’s best interests at heart; and they have proposed a solution for BZT.

22. Accommodation and services: UBX informed the Tribunal of the proposed plan: when BZT is discharged from the public hospital, he will move into UBX’s apartment for the next 6 to 12 months. UBX’s landlord has approved this plan. UBX will be his carer, however, he will need assistance from services. A National Disability Insurance Scheme (NDIS) Plan is in place and meetings have been set up to organise services to support BZT in the home. QYH agreed with this plan, noting that it is best for BZT to be discharged to a place that he knows, with UBX, and once his baseline is established in the future, his accommodation needs can be reassessed. It was noted that BZT’s house is not suitable for him to reside in at this time.

23. The Tribunal noted that the functions of accommodation and services appeared to be resolved informally to BZT’s benefit; which raised the issue as to whether there was a need for a guardianship order with such functions. Evidence was given that if a person has expressive and receptive language difficulties, it can be difficult for NDIS staff to accept informal arrangements and representations made on that person’s behalf. As BZT will need access to NDIS services for rehabilitation, and, depending on the continuing suitability of UBX’s apartment he may also require accommodation organised through NDIS, the Tribunal accepts that the evidence supports a guardian being granted the functions of accommodation and services.

24. Medical/dental consents and health care: Concerning medical/dental consents and health care, it was noted that QYH has been receiving calls from professionals as BZT’s sister. Consensus between QYH, TAH and UBX was that it is in BZT’s interests for decisions to be made “on the spot” for BZT, by the person who is caring for him and who will likely be present with him, when he attends a GP, dentist, or other appointments that may be recommended. The proposal, discussed below, is that UBX be appointed as guardian. As his relationship to BZT is that of friend and former de facto, and noting also BZT’s communication difficulties, it is envisaged that some professionals may not recognise UBX as a Person Responsible or otherwise permitted to organise health care appointments on BZT’s behalf. In the circumstances, the Tribunal accepts that the functions of medical/dental consents and health care are appropriate for a guardian.

25. The views of BZT and whether existing relationships will be adversely affected: All the participants at hearing, including BZT, agreed with a guardian being appointed with the proposed functions. There was no evidence that an order would adversely affect existing family relationships.

26. The Tribunal accepts that there is a need to appoint a guardian with decision-making authority as to accommodation, services, medical/dental consents and health care, and that this is in BZT’s best interests. It is not practicable for such services to be provided informally.

Who should be the guardian and how long should the order last for?

27. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. A guardian 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.

28. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, [66]).

29. In P v D1 & Ors [2011] NSWSC 257 the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

30. The Tribunal is 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).

31. The Supreme Court has held that:

“the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).”

32. It was proposed that UBX to be appointed as guardian and no one objected to this. Both QYH and TAH seek to be kept informed of BZT’s circumstances, and UBX is willing to keep them updated.

33. Having regard to the relevant factors, the Tribunal accepts that it is appropriate for UBX to be appointed as the guardian. The evidence suggests that this is a period of transition, and the Tribunal makes an order for 12 months, at which time it will be reviewable before the Tribunal.

Consent to the withdrawal of the financial management application

34. Applications cannot be withdrawn in the Guardianship Division without the consent of the Tribunal: Civil and Administrative Tribunal Act 2013 (NSW) (“the CAT Act”), cl 10, Sch 6. The Tribunal has regard to the s 4 principles when determining whether to consent to the withdrawal of an application. The paramount consideration is the welfare and interests of the person who is the subject of the application (s 4(a) of the Act). If the Tribunal consents to the withdrawal of the application, it will be dismissed pursuant to s 55(1)(a) of the CAT Act.

34. As noted above, the financial management application was lodged at a time when there was initial conflict. This has subsequently been resolved, and the family and UBX are working together. QYH and TAH are the attorneys and they have already commenced using the EPOA to organise BZT’s bank accounts, superannuation, his income protection insurance payments, payment of his mortgage and expenses such as telecommunications and electricity. QYH attends to the majority of these matters, and TAH said this is working well. BZT said that he is happy with how QYH (predominantly) and TAH have been dealing with his finances on his behalf. UBX said that he is aware that they have worked out a plan and there is no need for any changes. The social worker agreed that as an agreement has been reached, there is no need for a financial manager to be appointed.

35. The Tribunal accepted that there was no need for a financial manager to be appointed at this time. There was no evidence before the Tribunal to suggest BZT would be disadvantaged or otherwise be at risk if the application was withdrawn. The Tribunal therefore consented to the withdrawal of the application for financial management and dismissed the application.

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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: 31 March 2021