CZT

[2019] NSWCATGD 17

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CZT [2019] NSWCATGD 17

Hearing dates:

22 February 2019

Date of orders:

22 February 2019

Decision date:

22 February 2019

Jurisdiction:

Guardianship Division

Before:

S Roushan, Senior Member (Legal)
L Anthony, Senior Member (Professional)
J V Le Breton, General Member (Community)

Decision:

Guardianship

 

The guardianship order for CZT made on 7 January 2019 has been reviewed. The order now is as follows:

 

1. The Public Guardian is appointed as the guardian.

 

2. This is a continuing guardianship order for a period of 12 months from 22 February 2019.

 

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

 

FUNCTIONS:

 

4. The guardian has the following functions:

 

a) Access

 

To decide what access CZT has to others and the conditions of access.

 

b) Accommodation

 

To decide where CZT may reside.

 

c) Health care

 

To decide what health care CZT may receive.

 

d) Medical/Dental consent

 

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

 

e) Services

 

To make decisions about services to be provided to CZT.

 

CONDITION:

 

5. The condition of this order is:

 

a) Standard Condition

 

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

 

Financial Management

 

The Financial Management order for CZT made on 28 April 2014 has been reviewed. The order now is as follows:

 

1. The appointment of EZT as the financial manager of the estate of CZT is revoked.

 

2. The estate of CZT is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

 3. The management of the estate of CZT is committed to the NSW Trustee and Guardian.

Catchwords:

GUARDIANSHIP – review of guardianship order – end-of-term review of guardianship order – whether guardianship order should be renewed – need for a guardianship order – guardianship at the end stage of life – significant conflict between care facility and family member – police involvement – need for decisions to be made – possible change in accommodation and service provider – need for independent decision maker – guardianship order made – Public Guardian appointed.

  FINANCIAL MANAGEMENT – review of financial management order – requested review of financial management order – whether financial management order should be revoked – whether financial manager should be replaced – unexplained depletion of estate – use of managed funds for manager’s personal expenses – assets not being used to advance subject person’s best interests – need for dispassionate and neutral approach to financial management – appointment of private manager revoked – NSW Trustee and Guardian appointed.

Legislation Cited:

Guardianship Act 1987 (NSW) ss 3(1)-(2), 4, 14(2), 25M

Cases Cited:

Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
IF v IG [2004] NSWADTAP 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Review or Revoke Financial Management Order

 

CZT (the person)
Mrs U (applicant)
EZT (appointed financial manager)
NSW Trustee and Guardian (proposed financial manager)

 

Review of Guardianship Order

  CZT (the person)
Public Guardian (appointed guardian)
EZT (carer)

Representation:

Ms E (separate representative for CZT)

File Number(s):

NCAT 2010/00438972

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

Background and Procedural History

1. EZT is 91 years old. She is reported to have dementia. She has been residing at her current accommodation facility (the facility) for approximately nine years. She previously resided in her own home in another suburb of eastern Sydney, which she continues to have ownership of.

2. CZT has three children: EZT (daughter), MZK (daughter) and NZT (son). The son currently resides in his mother’s house.

3. CZT has been known to the Tribunal, in its various manifestations, since 2010, and there have been a number of applications concerning her since then.

4. On 2 June 2010, the then Guardianship Tribunal made a three-month guardianship order for CZT and appointed the Public Guardian as her guardian. On the same day, it made a financial management order in respect of her estate and appointed the NSW Trustee and Guardian as her financial manager. The order was to be reviewed within three months.

5. On 1 September 2010, the Guardianship Tribunal reviewed the financial management order and appointed MZK and EZT as their mother’s joint financial managers in place of the NSW Trustee and Guardian. On the same day, the guardianship order was reviewed, renewed and varied with MZK and EZT appointed as joint guardians for CZT in place of the Public Guardian.

6. On 2 September 2011, the guardianship order was reviewed again and allowed to lapse.

7. In June 2013, EZT applied to review the financial management order. On 28 April 2014, the Tribunal reviewed the financial management order and revoked the joint appointment of MZK and EZT as managers on the basis that that arrangement was not operating as it should. In their place, the Tribunal appointed EZT as manager of the estate. MZK had proposed the appointment of an independent manager to provide assurance that things were above board.

8. On 31 October 2018, the Tribunal received an application for a guardianship order in respect of CZT from Ms L, Facility Manager at the facility. Ms L proposed the appointment of the Public Guardian. The application indicated that CZT’s care needs had increased, and her family dynamics are ‘unstable’. There had been difficulties in dealing with EZT as first contact and that staff were scared of her due to threats, prompting the police to be involved on several occasions.

9. On 22 November 2018, the Tribunal received an application to review or revoke the financial management order concerning CZT’s estate. The applicant was Mrs U, Chief Financial Officer of the facility. Mrs U sought the replacement of EZT as manager of the estate with the NSW Trustee and Guardian. At that point, CZT’s fees were approximately $18,000 in arrears. It has been reported by EZT that her brother has been living in CZT’s house rent-free for nine years. She also alleged that the facility owe CZT $24,000 due to previously overcharging her.

10. The two applications came on together for hearing on 10 December 2018. On that occasion, a differently constituted Tribunal heard the guardianship application and made a 30-day temporary guardianship order for CZT. The information before the Tribunal at that time indicated that CZT has had dementia for several years and ‘she is close to the end of her life’. The Public Guardian was appointed as the guardian with the functions of access, health care, services and consent to medical and dental treatment. In relation to the application to review the financial management order, at the request of EZT, the Tribunal adjourned the hearing until 7 January 2019. The Tribunal stated in its reasons that EZT had indicated that she has had insufficient time to address the application, she was unable to attend the hearing for health-related reasons and the Tribunal did not have a report from the NSW Trustee and Guardian. The end-of-term review of the temporary guardianship application was listed for hearing with the adjourned application for review of the financial management order on 7 January 2019.

11. On 20 December 2018, Ms L took out an interim apprehended personal violence order (APVOs) against EZT and, on 10 January 2019, EZT took out a similar order against Ms L in favour of herself and her two sons. The terms of the interim APVOs do not appear to prevent those named in each of the respective orders from personally attending the Tribunal’s hearings at the same time.

12. On 28 December 2018, the Tribunal received a report from the NSW Trustee and Guardian concerning the estate of CZT. The report noted that the accounts for the estate for the period 1 September 2017 to 31 August 2018 had been due on 28 September 2018 but had not been received. The accounts for the estate for the period 1 September 2016 to 31 August 2017 had been received on 1 August 2018 but were not passed due to unexplained depletion of the estate. The report noted that the Private Manager has declared $14,369.26 on personal expenses, without seeking approval ‘for these personal expenses’. The bank statements showed money has been spent at Myer, petrol stations, restaurants in eastern Sydney, Toni and Guy hairdressing, BWS liquor, McDonald’s and Apple iTunes, etc.

13. At the hearing on 7 January 2019, EZT requested a further adjournment on the basis that she had not been able to obtain legal and other professional advice over the Christmas period. EZT had sought a period of adjournment of two weeks. The Tribunal, differently constituted, decided to adjourn the application to review the financial management order to provide a further opportunity for EZT to address the allegations concerning her management of CZT’s estate with the assistance of her solicitor and CZT’s accountant. In its reasons for decision, the Tribunal noted an email from Mr O, solicitor, stating that he will be seeking leave to represent EZT, but that he would not be available on 7 January 2019. The Tribunal also noted the report from the NSW Trustee and Guardian which, it said, raised some ‘serious allegations of mismanagement’ by EZT. Accordingly, the Tribunal adjourned the matter to 22 January 2019. The Tribunal, nevertheless, heard the end-of-term review of the temporary guardianship order and decided to renew the order made on 10 December 2018 without variation for a further 30 days. The information before the Tribunal at that time indicated that CZT was at the end stages of dementia and receiving palliative care.

14. The end-of-term review of the renewed guardianship order was listed with the hearing of the application for review of the financial management order on 22 January 2019.

15. On 15 January 2019, the Tribunal received a further report from the NSW Trustee and Guardian concerning CZT’s estate. The report noted that the accounts fee for accounts period 1 September 2016 to 31 August 2017 is outstanding and that accounts for period 1 September 2017 to 31 August 2018 was due on 28 September 2018 and is still outstanding. The report further noted that the accounts for period 1 September 2016 to 31 August 2017 was received on 1 August 2018 and ‘was not passed upon examination due to unexplained depletion of the estate’. It was stated in the report that CZT owns a property in eastern Sydney which her son resides in, and no income has been received for this property. CZT pays for the insurance and rates on this property that is not generating any income. The report again referred to the unapproved personal expenses declared by EZT and the unexplained expenses reflected in CZT’s bank statements.

16. Prior to the commencement of the hearing on 22 January 2019, the Tribunal’s registry received from EZT a series of emails attaching various material she wished the Tribunal to consider for the purposes of the hearing. As noted in its reasons for decision, the previous Tribunal, differently constituted, was not able to consider the material prior to the commencement of the hearing. Nor was the material able to be provided to the other parties to the proceedings. EZT had also confirmed that she has bronchitis which had affected her preparation for the hearing and that she had inadvertently left some ‘major’ and ‘crucial’ evidence at home, being photographs of the neglect of her mother by the facility.

17. The material provided by EZT before the hearing on 22 January 2019 included a number of emails exchanged between her and Ms F, the former Chief Executive of the facility. These emails essentially highlighted the ongoing dispute and disagreements between EZT and the facility regarding the scheduled visit times imposed by the facility, EZT’s alleged behaviour towards staff, the staff’s alleged behaviour towards her and the facility’s alleged neglect of CZT’s care. The material also included emails from EZT to the Public Guardian in relation to CZT’s health care appointments and a request for the Public Guardian to reconsider a decision allowing an optometrist to examine CZT’s eyes.

18. The previous Tribunal decided to adjourn the hearing until Friday, 22 February 2019. The Tribunal also decided to list the matters for directions on Friday 1 February 2019. In its reasons, the Tribunal stated that ‘the purpose of the adjournment was to enable a further opportunity for material to be relied upon to be provided to the Tribunal and other parties, and that the directions hearing will facilitate the making of orders in that regard’. The Tribunal stated that the term of the guardianship order made on 7 January 2019 is taken to be extended and the Public Guardian would continue as CZT’s guardian until the completion of the review.

19. In its reasons for decision, the previous Tribunal noted that some of the material sent by EZT to the Tribunal on the morning of 22 January 2019 comprised bank statements for her mother's pension bank account (no. ****-****). These statements covered the period from 14 June 2017 to 13 April 2018, overlapping with the accounts for the estate lodged with the NSW Trustee and Guardian for the period 1 September 2016 to 31 August 2017. No further statements have been subsequently provided.

20. The Tribunal also noted that the material sent by EZT to the Tribunal on 22 January 2019 included an unsigned document styled Private Manager Accounts for the period 1 September 2016 to 31 August 2017. The Tribunal was unable to determine whether the document was a draft revision of the accounts and not the accounts as actually lodged and not passed by the NSW Trustee and Guardian. Whilst the Tribunal noted that this should be clarified by directing EZT to produce a copy of the accounts as lodged with the NSW Trustee and Guardian on 1 August 2018, these accounts have not been provided to the Tribunal.

21. On 1 February 2019, EZT sent an email to the registry, essentially outlining the difficulties she had previously faced in collating material to be provided to the Tribunal. EZT stated that she wished to be appointed as her mother’s guardian and enquired as to the date when she was required to submit information to the Tribunal. Amongst other things, EZT also requested that only female staff at the facility look after CZT’s personal care, questioned why Ms F and not Ms L was communicating with the Public Guardian, noted the Public Guardian was not communicating with her in relation to CZT’s health care, requested that her scheduled hours of visitation be changed, objected to the manner in which her mother was being cared for at the facility and requested a neutral speech therapist to treat her mother. In her email EZT stated that she had contacted the facility offering to pay her mother’s outstanding fees and ‘requesting can this be dropped with the Tribunal if I pay’. She said she was ready to pay the outstanding amount in accordance with an agreement she had reached with the facility in July/August 2018. However, she also stated that she had been advised by Centrelink staff that her mother has been overcharged and that the facility has a debt to CZT.

22. At a directions hearing on 1 February 2019, the Tribunal ordered CZT to be separately represented and refused EZT’s request to be legally represented. The Tribunal also made the following order in relation to both matters:

• All parties to give to the Tribunal the material they rely upon by 11 February 2019 and the Tribunal will distribute this material to the other parties and separate representative.

• All parties to give to the Tribunal any material in reply by 15 February 2019 and the Tribunal will distribute this material to the other parties and separate representative.

• Any party applying for the issue of a summons is to give the application to the Tribunal by 11 February 2019.

• Material may not be submitted to the Tribunal after 15 February 2019 without the consent of the Tribunal.

23. Ms E was subsequently appointed as CZT’s Separate Representative (the separate representative).

24. On 4 February 2019, EZT wrote an email to the Tribunal, essentially objecting to processes and the manner in which she had been dealt with at the previous two Tribunal hearings. She also stated that she disagreed with a Legal Aid solicitor being appointed as her mother’s Separate Representative.

25. On 8 February 2019, the Tribunal received a letter from Ms C, Group Financial Controller at the facility. Ms C provided the following information in her letter:

[CZT] has been a resident at [the facility] since 14/01/2011.

As determined by the Department of Human Services all residents in an aged care home are to pay a basic daily fee. The basic daily fee is 85% of the single person rate of the basic age pension and is currently set at $50.66 per day.

[CZT] is also eligible to pay the maximum rate of accommodation charge of $28.72 per day as set by the Department of Human Services…

[The facility] did not receive payment for [CZT]’s care from 20th April 2018 to 5th February 2019, a period of 9 months. A bank cheque for $20,000 was received on the 5th February from [CZT]’s Financial Manager, [EZT], and has been applied to the oldest outstanding fees. As at the date of this letter, [the facility] have not been provided bank details for the ongoing direct debit of fortnightly fees.

26. In support of her letter, Ms C provided a notification from the Department of Human Services, dated 18 March 2011 and noted that the facility has not received notification of any change to this rate since then.

27. On 5 February 2019, in response to an email from Ms C acknowledging the receipt of EZT’s cheque for $20,000, EZT stated that the facility had agreed ‘to take mums pension only’. She also stated that her mother’s fees were set by the facility’s staff nine years ago and not by the Department of Human Services.

28. On 12 February 2019, the Tribunal received a medical certificate from Dr I, stating that EZT ‘has a medical condition and has not had adequate time to prepare for NCAT’ and that she would benefit from an extension of time until 15 February 2019. The certificate did not provide any other details in relation to the nature of EZT’s medical condition and why it had prevented her from being able to prepare.

29. On the same day, the Tribunal received an email from EZT, addressed to the Public Guardian, stating that she checks her mother’s ‘computer profile’ notes ‘to see her diet/liquid intake’ and looks at her scheduled medical appointments during her visits. On her last visit, she had been informed that she could no longer examine the computer records. She reported that staff at the facility had screamed at her and had called the police. She indicated her desire to be present during a scheduled visit by ‘palliative care’. She also stated that she will be going to the police and that she had previously brought to the attention of police videos and photos of the facility’s ‘neglect’ and ‘screaming and the intimidation tactics’.

30. On 14 February 2019, the Tribunal received an incident report from the facility in relation to an incident which had occurred on 12 February 2019. According the report, EZT had ‘screamed’ towards the facility manager, stating that the ‘police is coming to arrest you’.

31. On 18 February 2019, the Tribunal received an email from EZT addressed to the Tribunal and the Public Guardian. She stated in her email that the Tribunal will be receiving via Express Post material ‘regarding photos, Doctors Certificates, Affidavits, crucial information, submissions to Federal Commission Aged Care, Ombudsman’s Office application for ACCC…’ She noted that police reports were pending, and she was arranging ‘professional specialist reports for the photos of my mother whether my mother has been strangled’. She also stated that she was waiting for submission and reports from ‘[the bank] for fraud and from [a] Residential Aged Care Financial Adviser’. EZT also referred to her disagreement with the facility in relation to the fees charged and stated that further evidence regarding the expenditure shown on her mother’s bank statements will be provided. She stated that her mother’s property at the facility has been stolen or taken in the past nine years. She requested more time to provide more evidence and noted that she will be submitting an application ‘through NCAT website’.

26. On 19 February 2019, the Tribunal received a Medical Certificate from Dr H, dated 18 February 2019. Dr H stated that EZT ‘requires a time extension for the hearing’ and that ‘the original time frame is inadequate for the preparation of the evidence as the evidence is extensive’ and she has no assistance.

27. EZT provided to the Tribunal a further Medical Certificate from Dr H, dated 15 February 2019. However, the certificate essentially provided a character reference for EZT, stating that she has been an outstanding carer for her mother at the expense of her own needs. She is thoughtful, considerate and giving and she is outspoken on behalf of those without ‘representation’. Dr H stated that EZT is concerned about the level of care her mother receives and has brought issues of concern to the facility’s attention. As a result, her visiting hours have been limited, causing her emotional distress. It was stated that if EZT ceases to be her mother’s ‘legal guardian’, CZT’s care will suffer.

28. On 22 February 2019, Ms C replaced Ms U as the applicant in relation to the application to review or revoke the financial management order concerning CZT’s estate.

The Hearing

35. A hearing in relation to the review of the guardianship order and the application to review or revoke the financial management order was held on 22 February 2019.

36. Given the evidence concerning the extent of her disabilities, the Tribunal did not attempt to seek CZT’s views about the applications before it. CZT’s Separate Representative, who had visited CZT at the facility a few days earlier, reported that it would be difficult for CZT to present her views or to engage. No one else participating in the hearing felt that it would be in CZT’s best interests for the Tribunal to attempt to speak with her about the applications.

37. The Tribunal also considered EZT’s requests prior to the hearing for a further adjournment or an extension of time. EZT did not press her request at the hearing. Nevertheless, the Tribunal is mindful of its obligation to give parties a reasonable opportunity to present their case and the substance of any material that is credible, relevant and significant to the decision to be made. In the circumstances of this case, the Tribunal was satisfied that EZT has had a reasonable opportunity to present her case and submit relevant evidence. As outlined in the preceding paragraphs, since December 2018, the matter has been adjourned on a number of occasions at EZT’s request and in order to provide her with opportunities to submit further evidence. On 1 February 2019, the Tribunal directed all parties to give to the Tribunal the material they rely upon by 11 February 2019 and any material in reply by 15 February 2019. The procedural history of the case and the nature of some of the ‘pending’ evidence referred to in EZT’s emails, did not inspire confidence that, in light of the ongoing dispute and the previous adjournments, material that is credible, relevant and significant to the decision is likely be provided within a reasonable period of time. The Tribunal was not satisfied that it is in the best interests of CZT to adjourn the proceedings.

38. At the end of these Reasons for Decision is a list of the witnesses who attended the hearing. [Appendix removed for publication.]

Statutory Review of Guardianship Order

39. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.

40. The questions to be considered by the Tribunal are:

1. Is CZT someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

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

3. Who should be the guardian?

4. How long should the order last?

Is CZT someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

41. Section 14 of the Guardianship Act 1987 (NSW) (“the Act”) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or 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) of the Act. 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 major life activities to such an extent that he or she requires supervision or social habilitation: s 3(2) of the Act.

42. When the previous order was made, the Tribunal found that CZT had a disability, being longstanding dementia, and was unable to make important life decisions. Whilst at the time of the previous decision CZT’s health had declined and she was receiving palliative care, the evidence given by EZT, Ms L and the separate representative indicated that CZT’s health has now improved, and she is no longer at the palliative stage. There is no other new evidence before the Tribunal in relation to this issue.

43. The Tribunal is satisfied that CZT continues to have a disability, and that as a result of this disability, she is incapable of managing her own person and is unable to make important life decisions on her own behalf. She is a person for whom the Tribunal could make a further guardianship order.

Should the Tribunal make a further guardianship order and what order should be made?

44. The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order:

1. The views (if any) of:

1. the person, and

2. the person's spouse, and

3. the person's carer and

2. The importance of preserving the person's existing family relationships, and

3. The importance of preserving the person's particular cultural and linguistic environments, and

4. the practicability of services being provided to the person without the need for the making of such an order.

45. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

46. The separate representative told the Tribunal at the hearing that during her recent visit CZT was awake, appeared to be comfortable on the day, cognisant of her surroundings and seemed to have all her needs met. CZT is not mobile, but she is able to move around the facility and partake in activities offered when assisted on a comfort chair. The separate representative stated that she is concerned about the irrevocable breakdown of the relationship between EZT and the facility. She said it is possible that CZT may have a sense of this conflict and the need may arise for an appointed guardian to make decisions in relation to CZT’s accommodation. However, CZT has been at the facility for some nine years and the impact of any change on CZT and whether it would be appropriate to move her have to be considered carefully.

47. Ms L told the Tribunal that the guardianship application had been made due to the difficulties faced by the facility in providing care for CZT. EZT’s directives in relation to her mother’s clinical care conflict with those of the facility, making exercising clinical judgments or making clinical choices on a daily basis very difficult. Ms L elaborated that the facility had engaged a speech pathologist to decide what form of modified food should be given to CZT to ensure safe consumption of food. Following the decline in CZT’s mobility and clinical needs, the speech pathologist had recommended a ‘minced diet’. CZT tolerated the diet very well. However, EZT put ‘pressure’ on the speech pathologist, who then recommended a ‘pureed diet’. Ms L stated that there is not much difference between the two forms of diet as both are safe. There have been no further reviews of CZT’s diet since then. She said the facility had concerns in relation to CZT being fed by EZT, having observed that the time taken by EZT to feed her mother was 10 minutes when it normally took the staff 30 minutes to feed her. This gave rise to a risk of aspiration. Another concern was that EZT was not feeding CZT at all. This, in addition to EZT’s alleged abusive behaviour towards staff, resulted in the facility’s management imposing restrictions on EZT’s visiting times. Ms L noted that CZT has been at the facility for nine years and the facility would like to continue to accommodate her. However, EZT’s behaviour ‘provokes’ her and her clinical staff.

48. In her evidence, EZT reiterated her concerns in relation to the level and manner of care provided to her mother at the facility and expressed her dissatisfaction with the current circumstances. She alleged that only during scheduled visits her mother’s situation is presented in the best light and everything appears to be perfect. She stated that her mother had ‘supposedly’ fallen out of bed a number of times, receiving serious injuries. She has been very stressed looking at the photos of her mother’s injuries. EZT produced these photographs at the hearing, and they were viewed by the Tribunal. She stated that her relationship with the facility’s staff had changed as soon as she had made a formal complaint. EZT confirmed that she is pursuing other avenues to put forward her complaint and seek a redress to her concerns, including through the ombudsman and the ACCC.

49. EZT stated that she would like to move her mother to a different facility. Her mother’s state of health previously did not permit such a move and Dr D had advised that a move would not be a good idea as CZT was at her end stage of life. CZT’s condition, however, has now improved and other accommodation options are available. EZT stated that she would like to secure consistent care for her mother. She said she has made an appointment with Dr D to discuss the health implications of her move. EZT said she would listen to Dr D’s advice if he were to make a recommendation against her mother being moved. When asked about the differences of opinion between her and the facility in relation to her mother’s clinical care, she said her mother was being fed unsuitable types of food. Dr D had brought it to her attention that CZT cannot chew and that she should eat pureed food to avoid risk of choking. EZT acknowledged that her mother is now having pureed food. She added, however, that she is unable to check her mother’s food for consistency due to the restrictions placed on her visiting hours.

50. EZT’s two minor sons, Mr Y and Mr Z, gave evidence in support of their mother, referring to their own observations of what they perceived to be neglect and inadequate level of care given to their grandmother at the facility.

51. MZK told the Tribunal that she has had no problems with the facility and its staff. She reported that she finds her mother in a clean, hygienic, environment every time she visits. She noted that the problems between her sister and the facility have been ongoing over a long period of time and they were not due to a change in the facility’s management. She said she is a shift worker and visits her mother unannounced at various different times. She said she has not witnessed the issues raised by her sister and is opposed to her mother being moved at this stage of her life. A move would have a major impact on her mother, and she wants her to be comfortable in a familiar environment at this point of time.

52. An officer from the Office of the Public Guardian submitted that he has had discussions with the facility in relation to EZT’s visits and had concluded that CZT has not been adversely affected by the visits. The officer said that he had been informed by Ms F that there were concerns in relation to EZT feeding or not feeding CZT. The Public Guardian had felt that it would be difficult to make an access decision in relation to feeding times. Whilst no formal decision had been made, following discussions, it had been agreed for a staff member to be present during feeding. The officer stated that the existing conflict is between the facility and EZT. CZT is not a party to the conflict. Therefore, the Public Guardian had deemed that it would be more appropriate for the facility to manage the visits. The officer submitted that the Public Guardian would not be opposed to a continuing guardianship order being made. He recommended the accommodation function to be added to the existing functions.

53. The separate representative also submitted that the guardianship order should be renewed. She stated that accommodation may become ‘a live issue’ and that there may be differences of clinical opinion as to whether CZT can be moved.

54. Having considered the evidence before it, the Tribunal decided that a further guardianship order should be made. The Tribunal decided to renew the guardianship order.

55. The evidence before the Tribunal clearly indicated that there are certain decisions that may be required to be made in relation to CZT. The conflict between EZT and the facility is ongoing and EZT has raised the possibility of moving her mother to a different facility. However, decisions around accommodation would require careful consideration of CZT’s state of health, evaluation of the relevant clinical opinion(s) and the impact of any move on her wellbeing. The Tribunal further accepts there have been ongoing disagreement and conflict between EZT and the facility’s staff and other professionals engaged by the facility about Ms Stone's clinical care and treatment. Decisions, therefore, are required to be made in relation to CZT’s health care and medical treatment. The Tribunal also accepts that, in view of the evidence regarding the nature of the interactions between EZT and the staff at the facility, as well as concerns in relation to EZT’s opinions and alleged actions during CZT’s feeding times, access decisions may be required to be made. Finally, the Tribunal was satisfied that the services function should remain in place as it was foreseeable that CZT will need additional services during this stage of her life.

56. Having regard to the mandatory considerations set out in s 14(2) of the Act and after weighing the principles contained in s 4 of the Act, the Tribunal was satisfied, on the evidence, that a further guardianship order should be made. The Tribunal, therefore, decided to renew the guardianship order. The Tribunal also decided to vary the order by adding accommodation to the functions of the appointed guardian. The Tribunal formed the view that it was appropriate for a guardian to have the functions of accommodation, health care, medical and dental consent, services and access.

Who should be the guardian?

57. The Public Guardian was appointed as CZT’s guardian on the last occasion. Ms L and Ms C told the Tribunal that the appointment of the Public Guardian had ‘streamlined’ communication and minimised conflict. They expressed the view that it would be in CZT’s best interests for the Public Guardian to continue to act as CZT’s guardian. Ms G, Regional Director at the facility, referred to the differences of opinion amongst family members and noted that the Public Guardian as an independent decision maker would be preferable.

58. MZK also noted that the appointment of the Public Guardian would ‘lessen the impact of friction’ and matters will be handled in a professional manner.

59. The separate representative submitted that during the period the Public Guardian has been acting as CZT’s guardian, streamlining of communication has occurred. She referred in particular to the decisions that may arise in relation to CZT’s accommodation and clinical care and submitted that it would be in CZT’s best interests if the Public Guardian were to continue as guardian to devise a plan of action to address these issues.

60. EZT told the Tribunal that she has been caring for her mother for the past nine years and her only concern is her mother’s care. She is very close to her mother and she knows when her mother is happy or when something is wrong. She would like her to be as comfortable as possible. She noted that she had spoken to Dr N, her mother’s GP, to arrange a visit by palliative care and had also informed the officer from the Public Guardian. The visit, however, had been cancelled by the facility on the basis that they saw no need for it. In addition, the facility had arranged for an optometrist to examine her mother’s eyes, but she did not want her mother’s eyes to be tested because she did not want her mother to be disturbed. EZT stated that she has been and continues to be the best person to care for her mother.

61. EZT’s friend, Mr W gave evidence in support of EZT and stated that the appointment of the Public Guardian may appear to be an easy option, but only because of the negative way in which EZT has been portrayed.

62. The Tribunal has carefully considered the evidence and submissions presented. The Tribunal has no doubt that EZT is a loving daughter, who has been devoted to the care of her mother over a number of years. This view is reflected in Mr W’s evidence as well as a character reference by Ms X, EZT’s friend. As it was explained at the hearing, a carer and a decision maker do not fulfil the same functions. In view of the evidence before it, the Tribunal is satisfied that, in the circumstances of this case, the ongoing conflict between EZT and the facility may require an independent decision maker to undertake the specified important decisions on CZT’s behalf objectively. The Tribunal accepts that, during the previous period, the appointment of the Public Guardian had decreased tensions and streamlined communication, facilitating effective and objective decision making. The Tribunal, therefore, decided that it would be in CZT’s best interests to reappoint the Public Guardian as guardian.

How long should the order last?

63. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. In view of the evidence before it, the Tribunal decided to make an order for 12 months. The Tribunal was satisfied that the appointed guardian would be able to undertake the important decisions on CZT’s behalf with regard to the functions specified in the Tribunal’s order within this period.

Review or Revoke Financial Management Order

64. In her application, Mrs U requested the replacement of EZT as manager of the estate as CZT’s fees were in arrears.

65. On reviewing the appointment of the manager, the Tribunal may either confirm or revoke the appointment. The Tribunal may revoke the appointment under review only if:

1. The appointed manager seeks the revocation, or

2. The Tribunal is satisfied that it is in the best interests of CZT that the appointment be revoked.

66. If the appointment of the manager is revoked but the financial management order remains in place, the Tribunal must appoint a substitute manager.

67. In this matter the issues for the Tribunal were:

• Is it in the best interests of CZT that the order be revoked?

• Is it appropriate to review the appointment of EZT as the current financial manager?

• If so, it in the best interests of CZT that the appointment of EZT be revoked?

• If so, who should be appointed financial manager?

68. Having considered the evidence set out above, the Tribunal decided that it was appropriate to review the appointment of EZT as financial manager.

Is it in the best interests of CZT that the appointment of EZT be revoked?

69. At the time of the application, CZT’s aged care facility fees were approximately $18,000 in arrears. The evidence submitted by the facility indicates that, in addition to the basic daily fee as set by the Department of Human Services, CZT is also eligible to pay the maximum rate of accommodation charge of $28.72 per day set by the Department. The facility did not receive payments for CZT’s care for a period of nine months from 20 April 2018 to 5 February 2019. On 5 February 2019, the facility received a bank cheque for $20,000 from EZT, which was applied to the outstanding fees. However, bank details for the ongoing direct debit of fortnightly fees were not provided to the facility. At the hearing, Ms C told the Tribunal that the outstanding fees were now $7,382, and the facility remained concerned in relation to the ongoing payment of fees. Ms C added that the facility has not received any advice from the Department that the fees are not being charged at the correct level.

69. EZT told the Tribunal that the fees were set some nine years ago, and they had to be reassessed. She stated that she had approached the Department of Human Services and was told that her mother has been overcharged. EZT, however, did not present any other evidence to the Tribunal to confirm the nature of the advice provided to her. When the Tribunal enquired about this matter at the hearing, she stated that she has engaged an aged care financial adviser to provide this advice to her in writing.

70. The Tribunal notes that in its reasons for decision, dated 2 September 2011, the Guardianship Tribunal stated that it had been informed by EZT that ‘she has some concerns about the current level of fees being charged to CZT, and she is currently working on this with the assistance of a financial advisor’. The Tribunal further notes that in email correspondence submitted by EZT, she stated that she had approached the Department of Human Services/Centrelink on 7 July 2018 in relation to her mother’s fees. If there was any evidence or advice originating from the Department of Human Service to indicate incorrect application of fees by the facility since 2011, the Tribunal considers it reasonable to expect EZT or the facility to have received some form of written acknowledgment.

71. The Tribunal is of the view that the ongoing dispute in relation to the fees and the uncertainty as to whether a resolution is likely to be reached in the near future so that CZT’s care fees are paid is not in CZT’s best interests.

72. The Tribunal is also concerned that CZT’s property in eastern Sydney is not being utilised in a manner that is of benefit to her. As noted by the NSW Trustee in their successive reports, CZT pays for the insurance and rates on this property, but the property is not generating any income. In her evidence, EZT confirmed that her brother, NZT, resides in this property and does not pay rent. She stated that she worries about her brother as he is not mentally well. Her mother wanted NZT to stay in the house, but it’s important that he pays the rent. NZT’s participation at the hearing was brief. He was abusive towards EZT before abruptly terminating the call. The Tribunal appreciates that her brother’s situation and her ongoing conflict with him will continue to make financial decisions around the management of the property difficult for EZT. As reported by the NSW Trustee and Guardian, CZT’s estate has been depleted and urgent and financially prudent decisions are required to be made in relation to the management of her property. On the basis of this evidence, the Tribunal is satisfied that at present CZT’s assets are not being managed in a manner that would be in her best interests.

73. Finally, the NSW Trustee and Guardian has reported that EZT, as Private Manager, has declared $14,369.26 on personal expenses and no approval has been sought for these expenses. CZT’s bank statements show that money has been spent at Myer, petrol stations, restaurants in eastern Sydney, a hair dressing salon, a liquor store, McDonald’s, Sony PlayStation and Apple iTunes, etc. As an explanation, EZT stated at the hearing that both her and her mother have been victims of fraud. She stated that the fraud has happened continuously, and she has reported the matter to the bank, and the police are investigating. She acknowledged that some of the expenses showing on her mother’s account were her own expenses and she believed that approximately $3,500 needs to be reimbursed to CZT. She said she had accessed her mother’s account because her own account was also affected by fraud. She added that her accountant has itemised everything and this material has been provided to the Tribunal. When it was noted that the Tribunal has not received these documents, EZT stated that she had provided the material ‘weeks and weeks ago’. She said she did not know if the NSW Trustee had received the document. The Tribunal has not received these documents and EZT did not offer any other persuasive information as to why. As noted above, EZT has had ample opportunity to submit all evidence.

74. The Tribunal is not persuaded by EZT’s evidence that the unexplained expenses can all be attributed to some form of fraud. CZT’s bank statements indicate that the unexplained personal expenses date back to June 2017. The only communication from the bank submitted by EZT consisted of an email from a banking consultant dated 8 August 2018. The email stated:

As per our discussion yesterday, here is the information you need for [the bank] Statutory compliance. They will require a request in writing but before you do that, give them a call and discuss.

76. At the hearing, EZT was asked if she has received any other letters or documents from the bank in relation to the alleged fraud. She responded that she had requested more time from the Tribunal to obtain documentation. As already noted, EZT has had ample opportunity to submit evidence in support of her claims. In an email to the Tribunal, which attached the email, EZT stated that she had met the banking consultant on 7 August 2018 ‘to help me with mum’s fraudulent transactions’. The Tribunal considers it reasonable to expect that if such extensive fraud over a period of 18 months had been committed on CZT’s account and the fraud was reported some time ago, the bank would have taken action, notifying CZT and her Private Manager. However, no evidence to this effect has been provided.

77. The separate representative submitted that there are many unexplained matters, including in relation to personal expenses on CZT’s account and the depletion of her estate. The separate representative rightly observed that there were no references in the NSW Trustee and Guardian’s report to the bank or any account fraud. On this basis, the separate representative submitted that the application should be granted.

78. The Tribunal agreed. The Tribunal was satisfied that it is in the best interests of CZT that the appointment of EZT as financial manager should be revoked.

Who should be appointed?

79. In appointing a financial manager, as in making all other orders under the 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 s 4 of the Act.

80. Section 25M of the 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.

81. In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court’s broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.

82. On the side of the then Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage.

83. The advantages of the appointment of a family member were more economic management of smaller estates and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers.

84. On the basis of the evidence outlined above, the Tribunal was not satisfied that the estate and capital assets of CZT have been utilised to advance her interests. The Tribunal is also mindful of the conflict between EZT and her brother, which may interfere with the effective management of CZT’s property. The Tribunal is of the view that there would be a clear advantage in opting for a dispassionate and neutral approach, as well as expertise and experience in managing CZT’s estate.

85. Having regard to the interests of CZT as the paramount consideration, the Tribunal appointed the NSW Trustee and Guardian as her financial manager.

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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: 13 November 2019