CKS

[2021] NSWCATGD 35

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CKS [2021] NSWCATGD 35

Hearing dates:

16 December 2021

Date of orders:

16 December 2021

Decision date:

16 December 2021

Jurisdiction:

Guardianship Division

Before:

S Pinto, Senior Member (Legal)
Dr F Duffy, Senior Member (Professional)
R M Fela, General Member (Community)

Decision:

In relation to the enduring guardian appointment made by CKS on 13 August 2020 appointing DKN the Tribunal orders, directs or declares:

The appointment of DKN as an enduring guardian is revoked.

Catchwords:

REVIEW OF ENDURING GUARDIANSHIP – application to review an enduring guardianship appointment – principal is of advanced age – principal diagnosed with dementia – principal resides in an aged care facility – allegations of elder abuse and mistreatment of the principal by the enduring guardian – enduring guardian seeks to remove the principal from aged care against the principal’s best interests – principal expressed strong wishes not to have any contact with the enduring guardian – enduring guardianship instrument no longer workable – evidence that the principal can make own decisions regarding accommodation, health care and medical treatment – enduring guardianship appointment revoked.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 6J, 6K, 6MA, 14(1), Pt 2

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Review of an Enduring Guardianship Appointment

CKS (the person)
EDJ (applicant)
DKN (carer, enduring guardian)
Public Guardian
NSW Trustee and Guardian

Representation:

Nil.

File Number(s):

NCAT 2021/00337077

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

REVIEW OF ENDURING GUARDIANSHIP INSTRUMENT

Background

1. CKS is 80 years of age. She is currently on a respite placement at an aged care facility in regional NSW, where she was admitted in October 2021. CKS previously lived with her great niece, DKN, in regional NSW. CKS had inherited the home from her mother in 2004. These arrangements had been in place for about 15 to 18 months. Prior to that time, CKS had been living alone but had been having difficulty managing.

2. CKS has two sisters, EDJ and Mrs Z.

3. On 13 August 2020, CKS executed an enduring guardianship and enduring power of attorney, appointing DKN as her enduring guardian and attorney.

4. CKS has been diagnosed with dementia and the enduring guardian and enduring power of attorney have been enacted.

5. On 24 November 2021, EDJ, made an application for a review of the enduring guardianship. In her application, EDJ stated that DKN has neglected CKS’s care and she requires permanent placement in residential care. She stated that CKS does not want to return to live with DKN and wishes to stay at the age care facility. EDJ has been advised that DKN has been visiting the age care facility and demanding to staff that CKS returns home.

6. EDJ stated that she is requesting the enduring guardianship is revoked, and guardianship and financial management orders are made for CKS.

The hearing

7. CKS participated in the hearing by videoconference. She was accompanied by Ms Y, the facility manager and Ms X, care manager. DKN participated in the hearing from a separate location. Ms W (CKS’s niece), Mr V (DKN’s stepfather), and Ms Z (CKS’s sister) participated in the hearing together by telephone, and EDJ, Mr U (EDJ’s husband) and Mr T (EDJ’s son) and Ms R (EDJ’s niece) participated in the hearing together by telephone.

8. Ms Q, social worker, and Mr S, solicitor, both from the Elder Abuse unit of Legal Aid, participated in the hearing by telephone.

9. A list of the parties and hearing participants is at the end of these reasons for decision. [Appendix removed from publication.]

The Tribunal’s jurisdiction and role in reviewing an enduring guardianship

10. The Tribunal was provided with an Appointment of Enduring Guardian signed on 13 August 2020 by CKS, appointing DKN as her enduring guardian to decide where she lives; health care; personal services; and medical and dental treatment.

11. The Tribunal's jurisdiction in relation to the review of an enduring guardianship appointment is set out in s 6K and s 6MA of the Guardianship Act1987 (NSW) (“the Act”).

12. Section 6J of the Act provides that the Tribunal may (on its own motion) and must (at the request of any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the principal) review the appointment of an enduring guardianship.

13. On reviewing the appointment of an enduring guardian, the Tribunal may under s 6K of the Act:

• confirm the appointment of an enduring guardian with or without varying the functions of the appointed enduring guardian

• proceed as if an application for guardianship or an application for financial management (or both) had been made

• revoke the appointment, with or without then proceeding as if an application for guardianship or an application for financial management (or both) had been made

14. Under s 6MA, of the Act the Tribunal may appoint a substitute enduring guardian to replace an enduring guardian who has died, resigned or become incapacitated. The Tribunal may appoint a substitute enduring guardian only if:

1. the person is eligible to be appointed as an enduring guardian under Pt 2 of the Act, and

2. the Tribunal is satisfied that:

1. CKS is in need of an enduring guardian; and

2. the person has a close personal relationship with CKS; and

3. the person is capable of carrying out the functions of an enduring guardian.

15. In considering the above issues, we must have regard s 4 of the Act which sets out the general principles that everyone exercising functions under the Act in respect of persons with disabilities must observe. These principles include that the person’s welfare and interests should be given paramount consideration; freedom of decision and action should be restricted as little as possible; his or her views should be taken into consideration; the importance of preserving cultural and linguistic environments should be recognised; and he or she should be protected from neglect, abuse and exploitation.

Should we confirm the appointment of the enduring guardian?

16. Several allegations have been made against DKN by EDJ and others in relation to DKN’s treatment of CKS whilst in her care. They also raised concerns that it was DKN’s intention to remove CKS from the aged care facility.

17. DKN disputes the allegations and her stepfather and Ms Z support her and dispute the allegations.

18. As above, the Tribunal can confirm the appointment of the enduring guardian. In considering whether we should confirm the appointment, we have considered the allegations made against DKN, and her denial of those allegations.

19. In a report to the Tribunal, Ms Y, facility manager, stated that CKS was admitted to her facility for respite care on 20 October 2021 following a shoulder replacement. CKS has said she likes the facility and wants to stay because she has settled in well and wants to sell her home. However, the aged care facility cannot facilitate her wishes because her niece DKN holds enduring guardianship, and she has attended the facility and indicated that she wants to take CKS home. Ms Y stated that CKS is very distressed by this and does not want DKN to have any contact with her. CKS reported that whilst she was living with DKN, she was very lonely and was made to sit in a room all day and services and outings were cancelled. CKS has voiced suicide if she has to return home with DKN and begged staff not to allow her to take her home,

20. In an e-mail to the Tribunal, dated 25 November 2021, Ms Q stated that she is representing CKS and is extremely concerned that DKN, the enduring guardian, will remove CKS from the aged care facility. She stated that CKS is in a safe place and wants to remain at the facility. Ms Q stated that CKS alleges that since DKN moved in with her, she has not helped her at home, takes drugs and drinks, and she is frightened of her. She stated that DKN listens to her on telephone calls, takes her money, and she was sad and unhappy with DKN. Ms Q also indicated that CKS was not receiving her medication from DKN and there were concerns that services had been cancelled.

21. Mr S also provided a statement to the Tribunal in which he stated that he is acting for CKS. He stated that he realises it is “highly prejudicial” but there is information that DKN has been jailed for kidnapping, which is supported by newspaper reports. He stated that there are concerns that DKN will return to the nursing home and insist on her rights to remove CKS from the facility.

22. In an e-mail to the Tribunal, DKN disputed the allegations made against her by her aunt and others. Mr V and Ms P, DKN’s mother, also provided a more detailed statement to the Tribunal where they addressed the allegations made against DKN. Mr V and Ms P stated that they and DKN agree that aged care is in CKS’s best interests, and they have no intention of removing her.

23. Mr V and Ms P stated that the background to the current dispute began in April 2004 when CKS’s mother left the house to her and not to Mrs Z or EDJ. As a result, EDJ did not speak to CKS for over 10 years, and it was only in 2004 that she re-established contact. In June 2020 DKN offered to move in with CKS due to her difficulty living at home. CKS was happy with this arrangement and DKN helped her around the house.

24. Mr V and Ms P stated that it was only this year when EDJ learned that CKS had inherited the house unencumbered, and not as a life tenant which she previously believed, that EDJ began to make accusations against DKN and began slandering her and asking her about CKS’s will, and soon after the police were called for a welfare check. Mr V and Ms P stated that Mrs Z recalls CKS was very happy before that time, and it was only after EDJ learned about the inheritance that she began making accusation against DKN. However, CKS nevertheless gave her wedding rings to DKN for safekeeping on 20 October 2021.

25. Mr V and Ms P stated that the accusations made against DKN by Mr S are untrue and dispute that she was found guilty for the kidnapping, as she was acquitted. However, due to DKN’s health issues, they believe it may be in both CKS’s and DKN’s best interests that she is relieved of the responsibility as enduring guardian. Mr V and Ms P referred to DKN’s health issue, including the loss of a baby at full term in April 2020 and bipolar disorder.

Hearing discussion

26. During the hearing, Ms Q confirmed her views as set out in her e-mail and said CKS was referred to her service following a welfare check where police had attended. She said CKS consistently reported that she was feeling unsafe and was not consulted in relation to decisions. She said DKN had ceased home care and had not taken over any of the tasks undertaken by the carers. Ms Q also indicated that concerns were raised by home care services about the level of care DKN was providing to CKS.

27. EDJ told us she became concerned for CKS when she called her one night and she was very distressed, and CKS told her that DKN had been restraining her. EDJ said she had not been looking after her and had left her alone on several occasions.

28. CKS said she believes she has been a prisoner in her own home and does not want to return to live with DKN. She said she was not allowed to have a bath or shower and had to use a small bowl of water to clean herself. She said she believes DKN is an alcoholic and does not want her involved in her care.

29. Mr S referred us to the request for a financial management order and indicated that he has concerns about any future expectations that DKN has in relation to CKS’s home, in which she has continued to live. He also said there is information indicating that DKN attempted to remove her aunt from the facility and was loud, vocal, and assertive and demanding that CKS return home with her.

30. DKN told us that she believes she has done her best to help her aunt and put her needs over her own. She said she arranged for her aunt to enter a nursing home and it is untrue that she did not assist her or try to take her out of the home. DKN continued to deny the allegations against her in relation to the provision of insufficient care of her aunt and said she only wanted to take her aunt home for a short period to collect some belongings and she intended to return her to the facility.

31. When asked whether she believes she can continue in the role as her aunt’s enduring guardian given the conflict and the apparent loss of trust her aunt has in her, she said she is aware it would be very difficult for her to continue in the role. She again said she is willing to step down from the role, but indicated continuing ambivalence, saying she had promised her aunt that she would take care of her. DKN indicated that Ms W, who is her CKS’s niece, is willing to take on the role of enduring guardian. She said she believes she is a “neutral person”. DKN also indicated that her aunt’s bank accounts have been frozen and she no longer has access to them, even though she is her aunt’s power of attorney.

32. Mr V said the information provided by Mr S is prejudicial and there have been no police reports provided in relation to the welfare checks or any other information.

33. Mrs Z said she disputed EDJ’s interest in CKS and said they did not speak for years, and she questions why she has recently become involved.

Our consideration

34. We accept that CKS and DKN had a close and loving relationship for some time, and we accept that DKN continues to care for her aunt. However, we consider that the allegations against DKN are concerning, and we are satisfied that the standard of care CKS was receiving in her home was at times not optimal, and this has resulted in CKS’s distress and strong wishes to not return to living with DKN, or indeed to have any continuing contact with her.

35. We are satisfied that due to these issues, that the enduring guardianship instrument is no longer workable. During the hearing, DKN appeared to agree with this and confirmed that she can no longer make decisions for her aunt due to the level of animosity her aunt has developed towards her. We have, therefore, decided that we should not confirm the appointment of DKN as enduring guardian for CKS.

Should we proceed as if an application for a guardianship order and/or financial management order has been made?

36. The Tribunal can make a guardianship order for CKS if satisfied that She 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 who has a ‘disability’ means a person who is intellectually, physically, psychologically or sensorily disabled; is of advanced age; is mentally ill within the meaning of the Mental Health Act 2007 (NSW); or who is otherwise disabled; and who by virtue of that fact, is restricted in one more life activities to such an extent that he or he requires supervision or social habilitation: the Act, s 3(2).

37. A medical report by Dr O, senior staff specialist, Hunter New England Local Health District, dated 24 June 2021, was provided to the Tribunal. Dr O indicated that it was undertaken only for the purpose of determining whether the enduring guardian and power of attorney should be enacted. Dr O stated that CKS was seen with her carer, DKN, on 21 June 2021. He stated that the assessment was conducted because of a request from a solicitor as to whether the enduring guardian and power of attorney could be enacted.

38. Dr O stated that CKS has progressive cognitive changes and frequent recall issues, and some delusional constructs, together with repetitive actions, falls, and frequent repetition of single phrases. He conducted a Mini-Mental State Examination (MMSE) and CKS scored 23/30. Dr O concluded that CKS meets the criteria for moderate dementia with CDR 2.0, which means that she has reached the stage in her dementia where an existing power of attorney and guardianship can be “realistically enacted on the basis of loss of capacity” and this information can be passed on to the solicitor.

39. The Tribunal was provided with an ACAT assessment undertaken in October 2021, indicating that CKS was at that time was living with DKN, her partner and son, who had moved into CKS’s home. The assessment indicates that CKS was alert, oriented and capable of making her own decisions, but had physical problems, requiring assistance. She used a four-wheel walker and required assistance with stoma care and was having problems attending to this. CKS was approved for respite and permanent aged care placement.

40. During the hearing, we explained to the parties that before a guardianship order can be made, we must be satisfied that CKS lacks capacity to make important life decisions. We noted that the only evidence we have been provided is from Dr O in June 2021, which was prepared in relation to CKS’s capacity regarding the execution of the enduring guardian and power of attorney. When EDJ was asked whether she believes her sister can make her own decisions, she said she believes she is able to do so.

41. We noted that the reports indicate that a geriatrician’s assessment was to have been conducted in relation to CKS’s cognitive abilities. Ms Y said a request has been made but a further assessment has not yet been undertaken. When asked her view on CKS’s ability to make important life decisions, Ms Y said it is a “grey area,” and CKS is very clear about day-to-day issues and what she wants, but may have difficulty with more complicated matters. Ms Y indicated that CKS has to date been making her own medical and health decisions and if she decides she wishes to remain at the facility her view will be accepted.

42. CKS said, when asked whether she believes that she can make her own decisions, she is very capable of making her own decisions. She said she wants to remain at the aged care facility.

43. Mr S said he has been representing CKS and had taken instructions from her. He said he had proceeded on the basis that she was competent from her manner and discussions, and it was only recently that he learned of the document from Dr O.

44. Both Mr S and Ms Q said that CKS has always been “very consistent” and her views on her accommodation and health were clear. Mr S said he believes CKS can make her own decisions, in relation to an assessment for a guardianship order, but he is less certain about her ability to manage her financial affairs.

Our consideration

45. We are not satisfied that the evidence establishes that CKS is someone for whom the Tribunal could make a guardianship order because she has a disability that prevents her from being able to make important life decisions. We note the evidence provided by Dr O but are mindful that it was prepared only for the purpose of establishing whether the enduring guardian and power of attorney should be enacted.

46. The evidence provided to us from family members, Ms Y, and Mr S and Ms Q indicates that CKS can make her own decisions and the aged care facility is accepting her decisions in relation to her accommodation, health care and medical treatment. CKS has also disputed her inability to make important life decisions and we observed during the hearing that she appeared to be consistent and appropriate in response to our questions.

47. We have, therefore, not proceeded as if an application has been made for a guardianship order.

48. We have also considered whether we should proceed as if an application for a financial management order has been made. To make a financial management order we must be satisfied that CKS does not have capacity to manage her financial decisions.

45. We note Mr S’s views and concerns regarding DKN’s interest in relation to CKS’s finances. However, we are not satisfied that there is sufficient evidence before us to conclude that CKS is unable to manage her finances. We also note that this matter was not pursued, and the focus of the evidence provided to us was in relation to DKN’s care of CKS. We consider it more appropriate that the enduring power of attorney, including the suitability of DKN’s appointment, be reviewed by the Tribunal if any of the parties decide to pursue this matter.

46. We have not, therefore, decided to proceed as if an application for a financial management order is made.

Should we substitute the enduring guardian?

51. As discussed above, we can also consider substituting an enduring guardian if the current enduring guardian is deceased, incapacitated or has resigned. DKN is neither deceased nor incapacitated. Although DKN indicated during the hearing that she would resign, she was ambivalent, and her views appeared to fluctuate. We are not satisfied that DKN resigned her position, and in any event, we are not satisfied there is any person whom we would consider is appropriate as a substitute guardian. Although Ms W was proposed by DKN and her family, we had limited information regarding her suitability, and we are not satisfied this appointment was supported by all family members or by CKS.

52. Furthermore, due to the level of conflict between family members, we are not satisfied that substitution of an enduring guardian to replace DKN is in CKS’s best interests.

Should we revoke the appointment with or without proceeding as if an application for guardianship or financial management has been made?

53. We have declined to confirm the appointment of DKN as enduring guardian. We have also declined to revoke the appointment and proceed as if an application for a financial management order and/or a guardianship order has been made, and we have also decided not to substitute an enduring guardian.

54. We have decided that we should revoke the enduring guardianship instrument without proceeding as if an application for financial management or guardianship has been made. We have found that the current instrument is unworkable, and it is not feasible that DKN retains her appointment. We consider that it is in CKS’s welfare and interests that the instrument is revoked. If the need arises, it is open for any persons with a genuine interest in CKS’s welfare to consider whether she can execute a further enduring guardianship or make a further application to the Tribunal for a guardianship order.

55. We have, therefore, revoked the enduring guardianship instrument signed by CKS on 13 August 2020, appointing DKN as the enduring guardian. We are satisfied that our decision is consistent with the principles in s 4 of the Act to ensure CKS’s welfare and interests are protected.

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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: 23 August 2022