Cachia v Public Guardian

[2005] NSWADTAP 16

Appeal Panel - External

CITATION:	Cachia v Public Guardian and ors [2005] NSWADTAP 16
PARTIES:	APPELLANT Laurence Cachia FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT Judy Sajn FOURTH RESPONDENT 'MO' FIFTH RESPONDENT AND DECISION MAKER Guadianship Tribunal
FILE NUMBER:	048011
HEARING DATES:	1/02/2005
SUBMISSIONS CLOSED:	02/01/2005
DATE OF DECISION:	04/22/2005
DECISION UNDER APPEAL:	Matter number 2004/2391
BEFORE:	Hennessy N - Magistrate (Deputy President); Britton A - Judicial Member; Wunsch A - Non Judical Member
CATCHWORDS:	Financial management order - making - Procedural fairness
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/28901
DATE OF DECISION UNDER APPEAL:	05/27/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Guardianship Act 1987
CASES CITED:	Ansell v Wells (1982) 43 ALR 41 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 Carew v Protective Commissioner and Ors [2005] NSWADTAP 13 Kioa v West (1985) 159 CLR 550 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Moore v Guardianship and Administration Board [1990] VR 90 Muin v Refugee Review Tribunal (2002) 190 ALR 601 Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 113 at 557 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490) R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Re Pochi and Minister for Immigration and Ethnic Affairs (1977) 2 ALD 33 Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 Tasker v Fullwood [1978] 1 NSWLR 20 The Grand Hotel v Development Assessment Commission [1998] SASC 7018
REPRESENTATION:	APPELLANT In Person FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance THIRD RESPONDENT No appearance FOURTH RESPONDENT B Hassett, Solicitor FIFTH RESPONDENT E Cho, Solicitor
ORDERS:	1. The financial management order of the Guardianship Tribunal made on 27 May 2004 in relation to MO is set aside; 2. The matter is remitted to the Guardianship Tribunal to be heard and decided again in accordance with these reasons including the hearing of further evidence, if any, from any party.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1 MO is a 68-year-old woman who is currently living in a nursing home. Prior to that she was living at home on her own. Concerned neighbours took her to hospital on 15 April 2004 and she was transferred to a psychiatric unit a week later. Dr Claire Jones diagnosed her with Alzheimer’s disease and concluded that she was not capable of managing her own finances or household affairs and would require full time care if she were to return home. Dr S Williams, a consultant geriatrician, reached a similar view. Ms Sajn, a social worker involved with MO’s care, applied to the Guardianship Tribunal (the Tribunal) for a guardianship order and a financial management order to be made in relation to MO. In a report to the Tribunal she stated that MO was a vulnerable person suffering from moderate to severe dementia with a history of self-neglect and putting herself at risk of harm.

2 Mr Cachia, a close friend of MO, attended the Tribunal hearing. Because MO had executed a power of attorney in his favour, Mr Cachia was a party to the financial management application: s 3F(6) and (7) of the Guardianship Act 1987 (the Act). He was not a party to the guardianship application. The Tribunal made a limited guardianship order for a period of 12 months and a financial management order appointing the Protective Commissioner to manage MO’s estate. Mr Cachia appealed to the Appeal Panel against the financial management order. He alleged that some of the procedures followed by the Tribunal constituted errors of law. In particular he was concerned about the reliability of evidence given by Ms Sajn in her application and accompanying report to the Tribunal. In addition he was critical of the Tribunal’s failure to give him the opportunity to challenge any of the evidence by means of cross- examining the witnesses or otherwise.

Jurisdiction

3 The Appeal Panel's jurisdiction to hear external appeals comes from s 67A of the Guardianship Act 1987 and s 118A of the Administrative Decisions TribunalAct 1997 (ADT Act). An external appeal may be made as of right on any question of law or by leave on any other ground. (Sections 118B(1) of the ADT Act.)

Parties and representation

4 Mr Cachia appeared without legal representation. MO did not come to the Appeal Panel hearing but was represented by Ms Hassett a solicitor from The Aged Care Rights Service. The Protective Commissioner is a party to the appeal, but chose not to play any role in the proceedings. The Tribunal elected to be a party. Ms Cho represented the Tribunal. In accordance with the principles in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35, the Tribunal’s role is limited to making submissions in relation to the powers and procedure of the Tribunal.

Financial management orders

5 When deciding whether or not to make a financial management order, the Tribunal must apply the provisions in s 25G of the Act. That provision requires that, before making a financial management order, the Tribunal must be satisfied that:

(a) the person is not capable of managing his or her affairs, and

(b) there is a need for another person to manage those affairs on the person’s behalf, and

(c) it is in the person’s best interests that the order be made.

6 The Tribunal was satisfied of each of these matters. If the Tribunal makes a financial management order, it may appoint either a “suitable person” to be the manager or commit the management of the estate to the Protective Commissioner: section 25M of the Act. In this case the Tribunal appointed the Protective Commissioner. Mr Cachia told the Tribunal that MO was rational and reasonable and therefore capable of managing her own financial affairs. However Mr Cachia told the Tribunal that if it decided that MO did need a financial manager he would accept that role, provided she agreed.

Issues

7 The issues raised by Mr Cachia in his Notice of Appeal and in his submissions relate to the evidence and procedures of the Tribunal. He did not allege that the Tribunal had applied the wrong legal test or that it had misapplied the correct test. Rather he submitted that the Tribunal made procedural and evidentiary errors which justify its decision being set aside. In summary, Mr Cachia alleged that the Tribunal erred in law by:

- failing to comply with its obligation to bring the parties to a settlement;

- failing to ensure that all relevant evidence was available;

- admitting unsworn evidence;

- making findings on the basis of insufficient, incorrect, untested or hearsay evidence;

-failing to take into account the costs of the services provided by the Protective Commissioner;

- failing to give him sufficient notice of the medical evidence and an adequate opportunity to respond to that evidence; and

- failing to give him an opportunity to cross-examine witnesses

8 We did not have access to the tape or the transcript of the Tribunal’s proceedings. The Tribunal mistakenly erased the tape after Mr Cachia did not pursue his application for the transcript. The only evidence we have of what happened at the hearing is Mr Cachia’s evidence.

Obligation to bring the parties to a settlement

9 Section 66 of the Act obliges the Tribunal to attempt to settle the matter before making a decision unless it considers that it is not possible, or appropriate, to attempt to bring the parties to a settlement. Section 66 states that:

(1) The Tribunal shall not make a decision in respect of an application made to it until it has brought, or used its best endeavours to bring, the parties to a settlement.

(1A) Subsection (1) does not apply in respect of an application if the Tribunal considers that it is not possible, or appropriate, to attempt to bring the parties to a settlement.

(2) Any meetings conducted or proceedings held in the course of attempting to bring or bringing the parties to a settlement shall not be conducted or held in public.

(3) Any statement or admission made during the course of a conciliation hearing is not, except with the consent of all the parties, admissible as evidence in proceedings before the Tribunal or in any court.

10 Generally, proceedings before the Tribunal are open to the public: s 56. Section 66(2) makes it clear that attempts to bring the parties to settlement must be conducted in private. However, in its reasons for decision, the Tribunal said, “Throughout the course of the hearing, the Tribunal used its best endeavours to bring the parties to a settlement. These endeavours were not successful.” This statement suggests that settlement was attempted during the course of the public hearing. While it is likely that no members of the public were actually present, care needs to be taken to ensure that any settlement proceedings are not conducted in public.

11 Contrary to the Tribunal’s statement, Mr Cachia gave evidence to the Appeal Panel that he does not recall any members of the Tribunal mentioning settlement. From his point of view, the Tribunal did not attempt to bring the parties to settlement. If Mr Cachia is correct, and the Tribunal did fail to comply with s 66, the question for the Appeal Panel is whether that constitutes an error of law. Section 66 is a procedural provision any breach of which would not invalidate the ultimate decision. (See Tasker v Fullwood [1978] 1 NSWLR 20; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490). Consequently any breach becomes irrelevant once the Tribunal proceeds to hearing and makes a determination. (See Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [21], [46], [169] and [251].)

Ensuring all relevant evidence is available

12 Role of Tribunal. According to Mr Cachia, the Tribunal failed to ensure that all relevant evidence was available to it at the hearing. In addition Mr Cachia submitted that the Tribunal should have tested the evidence during the course of the hearing.

13 Appeal Panel’s reasoning. There is no statutory or common law obligation on the Tribunal to obtain relevant evidence or to test that evidence itself. Consequently, even if the Tribunal failed to do so, it would not have made an error of law.

Accepting unsworn evidence

14 Unsworn evidence. The Evidence Act 1995 generally requires that a witness in a proceeding either take an oath, or make an affirmation, before giving evidence: s 21. We are satisfied on the basis of Mr Cachia’s evidence that none of the witnesses or parties was sworn or affirmed prior to giving evidence. Because the Tribunal is not bound by the rules of evidence it can receive evidence in circumstances where a witness does not take an oath or make an affirmation. The provisions of the Act support this conclusion. Section s 59 allows a party to give evidence on oath and s 60(1)(b) gives the Tribunal discretion to require a person who appears before it to be sworn for the purpose of giving evidence on oath. However s 62 contemplates that a person may give unsworn evidence. Consequently the Tribunal will not be making an error of law if it allows witnesses to give evidence without being sworn or taking an affirmation.

Insufficiency or inadmissibility of evidence.

15 Mr Cachia’s submission. Mr Cachia nominated two main areas in which he said the Tribunal had acted on unreliable evidence. That evidence included:

- MO’s behaviour during a period when she was under the influence of drugs (Mr Cachia said that this behaviour was not typical); and

- hearsay evidence from MO’s neighbours about MO’s erratic behaviour which was relied on by Ms Sajn in the report accompanying her application and referred to by the experts in their medical reports.

16 Emphasis on certain evidence . Mr Cachia was concerned that the evidence before the Tribunal related principally to a period when MO was under the influence of drugs and not her normal self. According to Mr Cachia, this evidence painted an inaccurate impression of MO’s behaviour. We presume that Mr Cachia is submitting that undue weight was given to this evidence and that consequently the Tribunal’s finding that MO is not capable of managing her affairs was incorrect.

17 Hearsay evidence. Similarly, Mr Cachia alleged that the Tribunal erred by relying on material which contained hearsay evidence. According to Mr Cachia, the unreliability of hearsay evidence means that the Tribunal should not have accepted it as evidence when making the important decision to restrict MO’s right to financial independence.

18 Nature of the evidence. In her report to the Tribunal, Ms Sajn states that, “The neighbours (and MO’s daughter) can give a clear history of problems becoming very obvious from about October/November 2003.” Ms Sajn relates several incidents concerning neighbours including the following:

MO wandering out onto the streets late at night or early morning dressed in underwear or a nightie. When found by neighbours she would say she didn’t know what she was looking for or was looking for her dog. . .

Throwing her belongings in neighbours’ yards – photos, clothing, a handbag;

Calling on neighbours frequently to help her turn her stove off because she couldn’t work out how to do this...

...(MO) was seen by one of the neighbours to be eating rotten fish fingers;

Placing her rubbish in other people’s bins and in inappropriate places like behind trees or sheds;

Late December 2003 onwards (MO) was seen to urinate in neighbours’ yards...

19 In her report Dr Claire Jones repeats much of the hearsay material referred to by Ms Sajn in her report. She says, for example, that:
Her neighbours had brought her to hospital following concerns over her behaviour in the preceding 3-4 months. This included locking herself out of the house, wandering the streets at night in her underwear, throwing rubbish and her belongings into other people’s gardens and sometimes urinating or defecating there also. She had only cat food in her fridge and was becoming increasingly unkempt.
20 Dr S Williams, consultant psychogeriatrician, also prepared a report at the request of Dr Jones. The report included the following comment:
I had access to the records... including the letters provided to the Tribunal by Dr Jones and Ms Judy Sajn, social worker. However I have reached an independent opinion based on my assessment of (MO) herself.
21 Appeal Panel’s reasoning . Despite not being bound by the rules of evidence, the Tribunal should only give weight to evidence that is relevant to the issues before it and logically probative. (See RePochi and Minister for Immigration and Ethnic Affairs (1977) 2 ALD 33.) In Moore v Guardianship and Administration Board [1990] VR 902 the Supreme Court of Victoria held at p 912 that even if a Tribunal is not bound by the rules of evidence it is not entitled to act on material of little or no probative weight, especially where it has significant prejudicial effect. The Tribunal will have made an error of law if its findings are “perverse” or “contrary to the overwhelming weight of the evidence”: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149. This is sometimes called the “no evidence” rule and is regarded as an element of natural justice or procedural fairness.

22 In this case while the evidence of Ms Sajn and Dr Jones was based partly on hearsay material, the opinion of Dr Williams that MO “is not capable of making autonomous decisions about her own residential placement or financial matters” was based solely on the doctor’s assessment of MO. Similarly, a reading of the evidence as a whole, together with the Tribunal’s decision, does not support Mr Cachia’s assertion that the Tribunal relied unfairly on observations of MO’s behaviour while apparently under the influence of drugs. For example, Dr Williams’ report was not based on any behaviour of MO during such a period. In those circumstances it cannot be said that the Tribunal’s finding that MO is not capable of managing her affairs was “perverse” or “contrary to the overwhelming weight of evidence”.

Relevant considerations

23 Mr Cachia’s final submission was that the Tribunal did not take into account certain relevant considerations when making its determination including the cost to MO of having the Protective Commissioner act as her financial manager. The Tribunal has a broad discretion in s 25M to

(a) appoint a suitable person as manager of that estate, or

(b) commit the management of that estate to the Protective Commissioner.

24 The Tribunal will only have made an error of law if, when deciding whether to appoint the Protective Commissioner or a “suitable person”, it failed to take into consideration a matter which it was bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. In our view, the cost of the Protective Commissioner’s services is not a matter which the Tribunal was bound to take into account. The Tribunal does not have to list every possible factor which may be relevant to the exercise of its discretion: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375.) We find no error of law in relation to any alleged failure by the Tribunal to consider the costs of the Protective Commissioner’s services.

Cross examination of witnesses

25 Statutory right to cross-examine. We have found that Mr Cachia was a party to the financial management application. As a result, he has a statutory entitlement under s 59(b) to cross-examine any witness called by another party. Ms Sajn was the applicant in the Tribunal proceedings and gave evidence to the Tribunal. The fact that she was a party, not a witness called by another party, is irrelevant as s 59(b) clearly applies to any person who gives evidence in the proceedings. We accept Mr Cachia’s evidence that the Tribunal did not invite him to cross-examine any of the parties or witnesses, nor did they expressly deny him that opportunity.

26 Appeal Panel’s conclusion. In Carew v Protective Commissioner and Ors [2005] NSWADTAP 13 the Appeal Panel decided that in the absence of an express statutory requirement, the authorities fall short of imposing a positive obligation on the decision making body to invite cross-examination. The Appeal Panel noted that while it is best practice when dealing with litigants in person to invite them to cross-examine witnesses, it was not persuaded that the failure of a decision maker to inform a party of their right to cross examine constitutes an error of law. We adopt the Appeal Panel’s reasoning at [31] to [34] of that decision.

Procedural fairness in relation to medical reports.

27 Medical reports relied on by the Tribunal. The medical reports on which the Tribunal relied were the undated report of Dr Claire Jones, a letter from Dr Jones to Mrs Thoms dated 13 May 2004 and a report from Dr S Williams dated 24 May 2004. Neither Dr Jones nor Dr Williams gave oral evidence. Dr Jones is a psychiatrist who gave written evidence that MO presented a “clinical picture consistent with dementia” resulting in significant disability and impaired capacity. Dr Williams formed the view that MO was experiencing “very significant cognitive impairment caused probably by mixed pathology: Alzheimer’s disease and vascular pathology.” He concluded that MO could not manage at home alone without intensive 24-hour support and that she is not capable of making autonomous decisions about her own residential placement or financial matters. The Tribunal relied on the medical evidence and discussions with MO’s children to reach the conclusion that MO had cognitive deficits and was unable to manage her own affairs. Consequently, the Tribunal was satisfied that the first element of s 25G (that MO is not capable of managing her affairs) had been satisfied. The Tribunal noted that, according to Mr Cachia, MO was rational and reasonable and was capable of managing her financial affairs.

28 Mr Cachia’s submissions The medical reports were directly relevant to the question of whether MO is capable of managing her own financial affairs. Mr Cachia said that he had informally advised MO in relation to financial matters since they met in 1985. In October 2003 MO provided him with authority to access her bank account and in November MO signed a power of attorney appointing Mr Cachia has her attorney. According to Mr Cachia, the need for a power of attorney arose from problems with the non-payment of bills. Despite the fact that Mr Cachia saw the need for MO to have a power of attorney, he told the Tribunal that MO was rational and capable of making all her own decisions, including managing her financial affairs.

29 Tribunal’s procedure. There was no dispute that Mr Cachia was not given copies of any of the medical reports prior to or during the hearing. The Tribunal read out passages from those reports during the hearing. A subsequent request from Mr Cachia to the Tribunal for copies of those reports was denied. Mr Cachia claimed that failure to provide him with a copy of the reports so that he could respond to the material in them was a breach of procedural fairness.

30 Hearing rule. The “hearing rule”, which is one aspect of the rules of procedural fairness, requires that a decision maker hear a person before making a decision affecting their interests. (See Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52 at 73.) The content of the hearing rule must be determined keeping in mind that the rules must be “ appropriate and adapted to the circumstances of the particular case.” (Kioa v West (1985) 159 CLR 550 per Mason J at 585) Our task is to determine the content of the hearing rule taking into account the Tribunal's jurisdiction, the statutory requirements about how that jurisdiction is to be exercised and judicial statements concerning the meaning of the obligation to abide by the rules of natural justice. The questions which the Appeal Panel must ask itself include:

- whether the interests, rights or legitimate expectations of Mr Cachia are affected by the Tribunal’s decision ( Kioa v West (1985) 159 CLR 550 at 584 per Mason J);

- whether the material is “credible, relevant and significant to the decision to be made” ( Kioa v West (1985) 159 CLR 550 at 629 per Brennan J); and

- if so, whether that material, or the substance of that material, was put to Mr Cachia in circumstances where he had an adequate opportunity to respond to it?

31 Interests . At the time of the Tribunal hearing, Mr Cachia held a general power of attorney in relation to MO. He was in the privileged legal position of making certain financial decisions on MO’s behalf. At the Tribunal hearing he put himself forward as a suitable person to be MO’s financial manager, either by continuing to hold the power of attorney or by being appointed as manager of her estate, if that is what she wanted. The appointment of the Protective Commissioner meant that he was no longer legally entitled to make financial decisions on behalf of MO. In those circumstances we are satisfied that Mr Cachia had a legal interest in the proceedings that was affected by the Tribunal’s decision.

32 Credible relevant and significant material. The medical reports relied on by the Tribunal in this case contain “credible, relevant and significant” material about MO’s capacity to manage her financial affairs. While the issue of whether the subject person lacks capacity will generally not be in dispute, it was in dispute in this case.

33 Substance or gravamen of material. Procedural fairness requires that at least the substance of any credible, relevant or significant document be disclosed to a party whose interests are affected. (Ansell v Wells (1982) 43 ALR 41; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 113 at 557.) However, as was the case in Ansell v Wells, there are times when a party will need to respond to a document and cannot realistically do so unless they have access to a copy of the whole document. Unless there is a persuasive reason for not disclosing a medical report, a copy of the whole report should be disclosed if the content is disputed and there is no other justification for non-disclosure such as urgency or confidentiality.

34 What constitutes an adequate opportunity to respond ? If a document is “credible, relevant and significant” then a reasonable time must be given for the party to inspect and make comment on the document. (Moore v Guardianship And Administration Board & Another [1990] VR 902 ; The Grand Hotel v Development Assessment Commission [1998] SASC 7018 at [45].) A copy of the document should be provided to parties as soon as is practicable after the medical report is received. We appreciate that the Tribunal may receive medical evidence very close to the hearing date or at the hearing itself. In those cases, alternative arrangements will be needed such as the granting of an adjournment if the content of the report is disputed.

35 Conclusion . Mr Cachia’s legal interests are affected by the Tribunal’s decision and there is no indication in the Act of an intention that he not be afforded procedural fairness. In the light of the Tribunal's jurisdiction, the statutory requirements about how that jurisdiction is to be exercised and judicial statements, the Tribunal is obliged to give him an adequate opportunity to respond to any adverse information that is “credible, relevant and significant to the decision to be made”. The general rule will not apply where there are exceptional circumstances, such as the need for an urgent hearing or where the material needs to be kept confidential because, for example, disclosure could cause serious harm to the health or safety of a person. None of those circumstances was present in this case.

36 In the circumstances of this case it was not sufficient to merely read passages of the report to Mr Cachia at the hearing. A full copy of the report is necessary to enable Mr Cachia and/or other practitioners to comment on the diagnosis outlined in the report. Mr Cachia did not receive copies of any medical reports before or after the hearing. In our view the Tribunal did not give Mr Cachia an adequate opportunity to respond to the medical evidence and there has been a breach of the hearing rule in that regard.

Extension to the merits?

37 Having found an error of law the question arises as to whether we should hear and determine the merits of the appeal. One advantage of hearing the merits of the appeal is that the applications would be resolved more quickly. Nevertheless, since the Tribunal is a specialist Tribunal with the relevant skills and expertise in this area, we have decided to remit the matter to the Tribunal. Their determination may include the hearing of further evidence, if any, from any party whose interests are affected by the financial management decision.

Orders

1. The financial management order of the Guardianship Tribunal made on 27 May 2004 in relation to MO is set aside.

2. The matter is remitted to the Guardianship Tribunal to be heard and decided again in accordance with these reasons including the hearing of further evidence, if any, from any party.

38 One effect of setting aside the Tribunal’s decision is that the power of attorney held by Mr Cachia is no longer suspended. Although this theoretically means that he could make financial decisions on behalf of MO, we strongly recommend that he does not make any major financial decisions until this matter has been resolved.