CFM

[2014] NSWCATGD 26

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CFM [2014] NSWCATGD 26

Hearing dates:

11 July 2014

Decision date:

11 July 2014

Jurisdiction:

Guardianship Division

Before:

Boxall A, Senior Member (Legal)
Oxenham M, Senior Member (Professional)
Pickering E, General Member (Community)

Decision:

Limited guardianship order made for six months; private guardian appointed with accommodation, services, health care and medical and dental consent.

Financial management order made; private manager appointed; reviewable within six months.

Catchwords:

GUARDIANSHIP - application for guardianship order - capacity to make personal and lifestyle decisions - mental health issues - increased support needs - private guardian.

FINANCIAL MANAGEMENT - application for financial management order - capability to manage - potential need to sell property due to possible accommodation decision of guardian - lack of insight - rational appreciation of estate - private person - supervision of NSW Trustee and Guardian - reviewable order

Legislation Cited:

Guardianship Act 1987 (NSW)

Cases Cited:

Re GHI (a protected person) [2005] NSWSC 581
PY v RJS [1982] 2 NSWLR 700
H v H (unreported) NSW Supreme Court, Young J, 20 March 2000
McD v McD (1983) 3 NSWLR 81

Category:

Principal judgment

Parties:

Mr CFM (subject person)
Mr KGM (applicant)
The Public Guardian
The NSW Trustee and Guardian

File Number(s):

56333

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

What the Tribunal decided

1. The Tribunal appointed Mr NHM as Mr CFM's guardian for a period of six months to make decisions on his behalf about his accommodation, services, health care and medical and dental treatment as set out in the Tribunal's Order.

1. The Tribunal also appointed Mr KGM as Mr CFM's financial manager, to be reviewed at the expiry of six months, subject to the authorities and directions ordered by the NSW Trustee and Guardian.

Background

1. Mr CFM is aged 75. He is Swedish, but has lived in Australia for many decades, and his command of English is excellent. He lives in an independent living unit in a retirement village north west of Sydney. He has two sons, Mr KGM, who is the Applicant and seeks to be appointed as his father's financial manager, and Mr NHM, whose appointment as his father's guardian is sought by the Applicant.

The Hearing

1. As a preliminary matter, the Tribunal considered whether Mr KGM had a genuine concern for Mr CFM's welfare, as required of a private third-party applicant under s 9(1)(d) and s 25I(1)(b) of the Guardianship Act 1987 (NSW) ('the Guardianship Act'). The Tribunal was so satisfied.

GUARDIANSHIP

1. The questions which had to be decided by the Tribunal in relation to guardianship were:

(1)   Is Mr CFM someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

(2)   Should the Tribunal make a guardianship order and if so, what order should be made?

(3)   Who should be the guardian?

(4)   How long should the order last?

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

1. Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she is "a person in need of a guardian." 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" (s 3(1), Guardianship Act). A person with a disability is a person who is:

(a)   intellectually, physically, psychologically or sensorily disabled;

(b)   of advanced age;

(c)   a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

(d)   otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation (s 3(2), Guardianship Act).

1. The Applicant indicated that Mr CFM has a long history of mental illness, which despite treatment continues. The illness particularly manifests itself in the form of delusions, currently to the effect that Ms Z, a former radio presenter, has implanted a device in his body by means of which she controls Mr CFM's actions.

1. The Applicant provided to the Tribunal copies of:

• a report dated 11 June 2014 by Ms Y, Mental Health Social Worker, which outlines Mr CFM's mental health history, and
• a neuropsychological assessment of Mr CFM, dated 3 and 4 March 2014, by Ms X, clinical neuropsychologist at a public hospital.

1. Both reports indicate that Mr CFM suffers from significant mental illness. Ms X's report is markedly cognitively impaired in several respects.

1. The Tribunal is therefore satisfied that Mr CFM has a disability which 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?

The views of Mr CFM

1. Mr CFM was able to provide his views to the Tribunal. He was articulate, well-dressed and well-groomed, and made his observations to the Tribunal from a page of notes which he had prepared. His views, in summary, were that he had no need of a guardian, and was perfectly capable of making all relevant decisions himself. He was happy in his current accommodation, and received assistance form the retirement village staff in relation to matters such as medication. He was able to make all relevant decisions as to medical matters. The issue with his sons was a misunderstanding; they thought that he was ill, whereas he was in fact being influenced through the devices which Ms Z had implanted in his body. What his sons took for symptoms were, in fact, the consequences of Ms Z's manipulations. When he was in fact ill rather than manipulated - and he could tell the difference between illness and the results of manipulation - he readily obtained medical advice. If, however, a guardian were to be appointed, he had no issue with Mr NHM undertaking the role.

The views of family members

1. The application by Mr KGM was supported by his brother, Mr NHM and his sister, Ms LXM. Mr NHM attended the hearing, and Ms LXM provided her views by email. All three children are generally consistent in their concerns, which in summary are as follows:

• Mr CFM's mental health has not been good for many years. As he ages, it has become worse, with more frequent episodes of delusion, accompanied generally a cognitive decline and increasing physical frailty.
• Although he has lived satisfactorily in his current unit for some years, this has been facilitated by regular informal support from the care staff from the high care section of the retirement village; for example, staff have assisted him regularly with medication. The worsening of Mr CMF's condition has made the Village staff reluctant to continue incurring the effective responsibilities inherent in providing informal support without being in a position to supervise Mr CFM's overall care. Accordingly, the Village management has indicated that informal support will no longer be available to Mr CFM, and have advised that in view of his condition he should transfer to supported accommodation, which is available. These concerns reflect growing anxiety by Mr CFM's children as to his ability, both mental and physical, to cope without closer support. Accordingly, they believe that he should move into supported accommodation within the Village.
• These concerns as to accommodation are paralleled by concerns as to his medical and health care. As indicated above, Mr CFM's mental condition makes him resistant to seeking medical attention when required. The result has been a recurrent pattern under which illness is left untreated, and worsens until it becomes necessary to hospitalise Mr CFM for treatment. This has occurred on five occasions over the past three years.
• They were concerned that Mr CFM was a danger to himself, and believed that decisions needed to be taken to protect him. He was unwilling not only to take the decisions, but to recognise the underlying issues.
• Mr CFM's friend, Mrs W, attended the hearing. She raised a concern, as to whether sufficient effort had been made to arrange for services to be provided to Mr CFM, such that he could remain in his accommodation. Mr NHM indicated that various attempts had been made to do so, but that Mr CFM had been unreceptive to them.

The effect of an order on Mr CFM's family relationships/cultural or linguistic environment

1. While Mr CFM opposes the making of an order, he is in the Tribunal's observation on manifestly good terms with his two sons. It appeared unlikely that these relationships would be affected by an order.

Are there decisions which need to be made by a guardian?

1. The retirement village's decision to cease providing informal support with medication and services to Mr CFM while he remains in the accommodation clearly means that decisions as to his accommodation and/or services will need to be made. Mr CFM does not, however, recognise this need. Equally, his reluctance to recognise his illnesses in turn means that decisions as to health care and medical treatment which Mr CFM is unwilling or unable to make are likely to be required.

1. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made.

What decision making functions should be included in the order?

1. In view of:

• The impending withdrawal of informal support which is currently being provided to Mr CFM by the retirement village staff; and
• Mr CFM's delusions as to the causes of his various physical symptoms;

the following decision making areas need to be provided for in the order. These are his accommodation, the provision of services to him, his health care and his medical and dental treatment.

Who should be the guardian?

1. 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. There is a proposal that Mr NHM be appointed guardian for Mr CFM. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with section 17 of the Guardianship Act. He/she must:

(a)   have a personality generally compatible with the personality of the person under guardianship;

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

(c)   be able and willing to exercise the functions of the order.

1. Mr NHM confirmed to the Tribunal that he had no relevant conflict of interest in acting as his father's guardian, and that he was willing to undertake the responsibilities of guardianship. Moreover, it appeared to the Tribunal, form observation of the relationship between Mr CFM and his sons, that Mr NHM would be a personally compatible guardian for Mr CFM.

1. The Tribunal is satisfied that Mr NHM meets the requirements to be a guardian for Mr CFM and he should be appointed.

How long should the order last?

1. An initial guardianship order can be made for a period of up to one year from the date on which it was made. The Tribunal formed the view, based on Mr CFM's circumstances and the information supplied by his sons, that most issues to which guardianship related were likely to be resolved within the next few months, and accordingly decided to make an order for a six-month guardianship only. Should there still be a need for guardianship at that time, the appointment can be extended by the Tribunal.

Should conditions placed on the order?

1. The Tribunal was of the view that only the usual conditions as to consultation and information should be imposed.

FINANCIAL MANAGEMENT

1. The questions which had to be decided by the Tribunal in relation to financial management were:

(1)   Is Mr CFM incapable of managing his affairs?

(2)   Is there a need for another person to manage Mr CFM's affairs and is it in his best interests for a financial management order to be made?

(3)   If so, who should be appointed financial manager?

(4)   Is Mr CFM incapable of managing his affairs?

1. A person's capability to manage his or her affairs was considered by Campbell J in the NSW Supreme Court in Re GHI (a protected person) [2005] NSWSC 581. Campbell J affirmed the approach enunciated in PY v RJS [1982] 2 NSWLR 700 by Powell J, at paragraph 7:

"It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears:

that he or she is incapable of dealing, in a reasonably competent fashion with the ordinary routine affairs of man; and

that by reason of that lack of competence there is shown to be a real risk that either

he or she may be disadvantaged in the conduct of such affairs; or

that such moneys or property that he or she may possess may be dissipated or lost ... it is not sufficient in my view merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner..."

1. Young J in H v H (unreported) NSW Supreme Court 20 March 2000, in dealing with the capacity test as it has been enunciated in NSW, said that dealing with the "ordinary affairs of man" does not simply mean being able to go to the bank and draw out housekeeping money. Most people's affairs, his Honour said,

"are more complicated than that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one's family and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills."

1. It should be noted that 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).

1. Mr CFM's finances are relatively straightforward. His assets are his home unit, currently worth between $250,000 and $300,000, and cash deposits with Bank A of approximately $100,000. His income is approximately $900 per fortnight, derived as to two thirds from an Australian pension, and as to one third from a Swedish pension. It appears to be common ground as between the Applicant and Mr CFM that Mr CFM is efficient in handling his day to day cash needs and bill payments. Two issues arise as to his wider finances: first, significant changes will need to be made to his arrangements with the retirement village if his accommodation changes, and Mr CFM indicated an intention to frustrate any decisions made by his guardian by refusing to give effect to the necessary financial arrangements; and, secondly, Mr CFM appeared to have a shaky grasp of his wider finances, persisting in the erroneous view that he had cash deposits of $230,000.

1. The Tribunal was satisfied that Mr CFM is incapable of managing his financial affairs.

Is there a need for another person to manage Mr CFM's affairs and is it in his best interests for a financial management order to be made?

1. If only in order to facilitate the implementation of the financial and property dealings which are the necessary corollary of decisions made by his guardian, the Tribunal was satisfied that there is a need to appoint someone to manage Mr CFM's affairs and it is in his best interests that an order be made.

Who should be appointed financial manager?

1. In appointing a financial manager, as in making all other orders under the the Guardianship Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in section 4 of the Guardianship Act.

1. Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it 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.

1. Mr KGM indicated that:

• He was willing to manage his father's finances.
• He is a Protestant minister, and has considerable experience of managing church finances.
• He is not (and never has been) bankrupt, and has not been convicted or accused of any offences involving fraud.

1. No conflict of interest arises from his managing his father's affairs. Contrary to Mr CFM's belief, he is in fact financially comfortable, and not "...keen to get his hands on..." (as Mr CFM put it) Mr CFM's money. He and his family live in a house provided by the Church, and are in a position to purchase another residence on retirement; he has, therefore, no personal need to get access to Mr CFM's savings.

1. When it was explained to Mr CFM that his financial manager was obliged to manage his finances for Mr CFM's benefit, and that his financial manager was under the supervision of the NSW Trustee and Guardian, Mr CFM indicated that he had no objection to Mr KGM's appointment.

1. The Tribunal was satisfied that Mr KGM was a suitable person to be appointed as financial manager for Mr CFM subject to the authorities and directions of the NSW Trustee and Guardian.

Order with a Specified Review Period

1. Because the financial management order was essentially ancillary to the guardianship order, the Tribunal ordered that it be reviewed after six months, simultaneously with the guardianship order.

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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: 29 October 2014