DKK

[2023] NSWCATGD 19

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DKK [2023] NSWCATGD 19

Hearing dates:

25 July 2023

Date of orders:

25 July 2023

Decision date:

25 July 2023

Jurisdiction:

Guardianship Division

Before:

C P Fougere, Principal Member
A M Matheson, Senior Member (Professional)
R Royer, General Member (Community)

Decision:

The application for guardianship (001, 003, 005 and 006) is dismissed after hearing.

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

2.   Ms Z, of [Address removed for publication.], and HYL, of [Address removed for publication.], are appointed jointly as the financial managers of the estate.

NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – subject person is of advanced age – cognitive impairment – subject person lives in a commune – subject person has strong ties with family members in Germany – subject person’s neighbours and friends are able to provide support – subject person not found to be a person in need of a guardian – application dismissed

FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their affairs – subject person not capable of managing her day-to-day finances – need for another person to manage subject person’s affairs – subject person supports the appointment of her long-standing friends – private managers suitable to be appointed – private managers jointly appointed – order made

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1), 4

Cases Cited:

P V NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Guardianship Application

DKK (the person)
TNQ (applicant)
Public Guardian

002: Financial Management Application

DKK (the person)
TNQ (applicant)
NSW Trustee and Guardian

003: Guardianship Application

DKK (the person)
OMM (applicant, proposed guardian)
Public Guardian

004: Financial Management Application

DKK (the person)
OMM (applicant, attorney, proposed financial manager)
NSW Trustee and Guardian

005: Guardianship Application

DKK (the person)
UZM (applicant, proposed guardian)
Public Guardian

006: Guardianship Application

DKK (the person)
DBN (applicant, proposed guardian)
Public Guardian

007: Financial Management Application

DKK (the person)
HYL (applicant)
NSW Trustee and Guardian

Representation:

Nil.

File Number(s):

NCAT 2023/00205563

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

1. DKK is an 84-year-old woman who has been a patient at a public hospital in regional NSW for approximately seven weeks. DKK was brought to hospital by a friend. Tests revealed that she had a urinary tract infection and COVID-19 and was experiencing a delirium. She has now recovered from these conditions. DKK normally lives in a commune in regional NSW where she has lived for over 25 years. Her husband, with whom she also lived at the commune, passed away approximately 10 years ago. DKK also owns a house in a suburb in the Blue Mountains. It is unoccupied but contains many of her belongings.

2. DKK is originally from Germany, and we had information that confirmed that she remains a citizen of that country. DKK has never been made a citizen or permanent resident of Australia. She continues, however, to have strong ties with her family in Germany and three of these family members, OMM, Ms Y and Ms X, participated in this hearing by videoconference.

3. Applications for the appointment of a guardian and financial manager were first lodged with NCAT on behalf of the public hospital by Ms W, Social Worker (001 and 002). TNQ, Social Worker, took part in this hearing as the substitute applicant on behalf of the Hospital.

4. Further applications for guardianship and financial management were lodged by OMM (003 and 004). In these applications, OMM proposed that she be appointed as her great aunt’s guardian and financial manager. We also had evidence before us that in 2020, DKK signed an enduring power of attorney that sought to appoint OMM and Ms V as her joint attorneys. Neither attorney has signed an acceptance of their appointment however and the document is therefore not in effect.

5. Another application for guardianship was lodged by UZM (005). UZM is DKK’s nephew and lives in Germany. In the application, UZM suggested that he be appointed as his aunt’s guardian. UZM did not participate in the hearing and his other relatives told us that he was unwell and was not able to take part. We nevertheless proceeded in his absence. UZM, as far as we were aware, had not contacted the NCAT registry to request an adjournment of the proceedings so that he could participate at a later date and in our view, it would not have been in DKK’s interests to adjourn the hearing.

6. A further application for guardianship was lodged by DBN (006). DBN has been a neighbour at the commune and friend of DKK for over 25 years. In his application he proposed the appointment of the following people as joint guardians for DKK: DBN, Mr U and Ms Z. Mr U is also a long-time friend and neighbour of DKK at the commune. Ms Z is a long-time friend and lives in Queensland. She travelled to NSW for this hearing and supported DKK at the hospital during the hearing.

7. A final application was lodged by HYL. HYL applied for the making of a financial management order (007) and suggested that he be appointed as DKK’s financial manager. HYL did so at the request of DKK who made clear to us at the hearing her trust in HYL to take on this role. HYL is also a long-term friend and neighbour of DKK.

8. An interpreter in the German language was present throughout the hearing. Early in the hearing, DKK requested the use of the interpreter but later in the hearing, made less use of the interpreter’s services.

Dismissal of guardianship applications

9. After considering all of the written and oral evidence and submissions of the parties, we decided to dismiss the applications for the appointment of a guardian for DKK. A number of reports were provided to us and expressed views about DKK’s capacity as at the dates of those reports. The authors of the reports included: two reports by Dr T, Locum Resident Medical Officer on behalf of Dr S (General Physician) both dated 26 June 2023; Ms R, Occupational Therapist, dated 27 June 2023; Dr Q, Geriatrician, dated 22 June 2023; Dr O, Psychiatry Registrar, dated 13 June 2023.

10. We note that in her report, Dr Q, Geriatrician, expressed the view that DKK “has impaired decision-making capacity at this time…in the context of a recent delirium post UTI, COVID infection and the hospitalisation. I suspected [DKK] has an underlying schizotypal personality disorder historically as the eccentric nature and paranoia has been reported as long-standing”. However “a diagnosis of dementia is difficult at this time given the short period of time we have known her and the collateral is not robust that a progressive cognitive and functional decline was evident in the community. Significant cognitive impairment exists now…a delirium is most likely at this time and hopefully a degree of improvement will be seen over time, however, to what baseline will result is unclear.”

11. We were not provided with up-to-date health professional evidence at the time of the hearing. None of the authors of the reports or other members of DKK’s treating team were available for this hearing so that we could ask their opinion as to any up-to-date assessment of DKK’s “baseline” given the time that has passed since the preparation of those reports.

12. We were prepared to accept that DKK has some degree of cognitive impairment and possibly an underlying condition that is causing paranoia about the actions of others, those suspicions not necessarily being grounded in fact. We were not, however, sufficiently persuaded on the available evidence that DKK is someone for whom a guardianship order could be made at this time, that is, we were not persuaded that she is a “person in need of a guardian“ as that term is defined in s 3(1) of the Guardianship Act 1987 (NSW). We note also that the applicant did not press the making of a guardianship application at this time and, notably, did not suggest that DKK should not be able to return to live in her own home at the commune.

13. DKK spoke with us at some length during the hearing. She was clear and articulate. She made clear her wish to return to live in her home, the friends that she would look to for support and assistance if she needed to, and her close relationship with family in Germany. She also expressed insight into the need to get her financial affairs in order and supported the appointment of the two friends noted as her financial manager to assist her in this regard.

14. The clear written and oral evidence is that DKK has an enormous amount of support around her. She has neighbours and friends at the commune, her friend Ms Z in Queensland, and her family in Germany. All of these people were in agreement that DKK should return to her home and there was a commitment expressed by her close neighbours and friends to provide support where they could to make this sustainable. There was also an acknowledgement that formal support services would likely assist DKK and that her friends will try to arrange for this to occur. Whether or not DKK is accepting of these attempts remains to be seen as she has clearly been a very independent woman. At this time, however, we were not persuaded that we could make a guardianship order. On the basis of the available evidence, we dismissed the current applications for guardianship.

Financial management application

What did the Tribunal have to decide?

15. The questions to be considered by the Tribunal were as follows:

• Is DKK incapable of managing her affairs?

• Is there a need for another person to manage DKK’s affairs and is it in her best interests for a financial management order to be made?

• If so, who should be appointed financial manager?

Is DKK incapable of managing her affairs?

16. DKK was able to outline to us in general terms her assets and liabilities. This included her home at the commune and her house in the Blue Mountains. She told us that she has been in receipt of a German aged pension payment but that this has ceased, and she would like to find out if it can be reinstated. DKK told us that she has accounts with two Australian banks.

17. Family members and friends were able to corroborate this information about the content of DKK’s estate.

18. DKK was less able to explain to us her plans for managing her estate to meet her financial needs for the future. When giving evidence to us about these matters, DKK became distressed. She explained that she wanted to sell her Blue Mountains home but was not able to explain how she would go about doing this. DKK’s focus was on returning to live in her home at the commune but she became emotional when talking about her day-to- day finances such as paying bills and wanting to find out why her German pension has ceased. DKK told us that she has asked HYL to manage her finances as she is good friends with HYL and his wife, Ms P. DKK asked that HYL (and later in the hearing, also Ms Z) to be appointed to manage her finances.

19. DKK’s evidence was consistent with Dr Q’s assessment that DKK is experiencing some cognitive impairment. We also had regard to the opinion expressed by Ms R, Occupational Therapist, that “[DKK] demonstrates impaired judgement, insight and problem-solving skills, which may make complex decision making and understanding financial concepts difficult. Her cognitive deficits place her in a vulnerable situation without appropriate supports in place. It is noted that [DKK] has been taken advantage of financially in the past”. We note that we were not given any further details about this latter assertion.

20. The vulnerability that DKK experiences and the difficulty she currently has to plan and manage her day-to-day life and her finances, led us to the view that DKK is unable to deal with her own affairs in a reasonable, rational and orderly way with due regard to her present and prospective wants and needs and without undue risk of neglect, abuse, or exploitation (P V NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]). We were, therefore, satisfied that DKK is incapable of managing her own affairs.

Is there a need for a financial management order

21. DKK has not made any recent arrangements for her financial affairs to be managed by another person, such as by way of a power of attorney. As previously noted, in 2020 DKK signed an enduring power of attorney that sought to appoint OMM and Ms V as her joint attorneys. Neither proposed attorney signed that document. Ms V told us in the hearing that she no longer wishes to take on this role. OMM told us that she had not been aware until recently that her great aunt had arranged for this document to be prepared.

22. Our questioning revealed that DKK has not sought to have another enduring power of attorney prepared in more recent times that would potentially have allowed her to seek to appoint attorneys that she is currently more comfortable with.

23. As a consequence, only DKK currently has the legal authority to manage her financial affairs. For the reasons previously outlined, we were satisfied that she is currently unable to put into effect the steps that need to be taken to secure her financial future now that DKK requires additional support to remain living for as long as possible in her home in the commune. For these reasons, we were satisfied that a financial management order is needed.

24. A financial manager will be needed to sell DKK’s house in the Blue Mountains which will also require clearing the home of her personal possessions. Steps should be taken to ascertain whether DKK remains entitled to a German pension and, if so, seek to have that pension recommenced. The sale of the Blue Mountains home and a potential pension income will assist in enabling DKK to continue living at the commune which is her wish. A financial manager will also have the authority to arrange for payment of formal support services for DKK if she is agreeable to their introduction.

25. We understood from the evidence that DKK holds a share in the community title of the property at the commune and no changes to this arrangement are currently suggested.

26. We were also provided with a letter dated 17 July 2023 from Ms N, a migration solicitor at a migration law firm. Ms N confirms that DKK does not have permanent residency status but, on 9 February 2022, was granted a Retirement visa (subclass 410). According to this correspondence, DKK is entitled to renew her Retirement visa every 10 years indefinitely.

27. DKK has had a lengthy stay in hospital. We were told that she has private health insurance but note that a financial manager will need to enquire as to any outstanding costs as a result of the hospital stay and that DKK, presumably due to her visa status, is not entitled to Medicare.

Best interests

28. As previously noted, DKK was supportive of the appointment of financial managers of her choice. It was unclear to us whether, despite our explanation, DKK understood that the making of a financial management order removes her ability to manage her own affairs although the appointed managers need to consult with her and take her views into account in accordance with the principles set out in s 4 of the Guardianship Act. They are not, however, bound by her views.

29. We were nevertheless satisfied that it is DKK’s best interests to make a financial management order as it currently provides, in our view, the best opportunity for DKK to continue to live in her home and to have her financial affairs placed in order so that her financial needs for the future can be met out of her current resources.

Who should be appointed as financial manager?

30. We decided to appoint HYL and Ms Z jointly as DKK’s private financial managers. These mangers will be subject to the oversight of the NSW Trustee and Guardian. We were initially of the view that it would be in DKK’s interests to appoint OMM as a joint private financial manager with HYL as she was a close family member and was someone that HYL had already been in regular contact with about DKK’s current circumstances. However, we gave significant weight to DKK’s preference that Ms Z be appointed instead of OMM. DKK expressed concern about not wishing to place this level of responsibility on her great niece and expressed faith in having Ms Z appointed in this role.

31. We decided to appoint HYL and Ms Z jointly rather than on a joint and several basis. We acknowledge that this arrangement may cause some practical challenges in that the private managers do not live close to each other and will need to undertake tasks on a joint basis (rather than being able to do so separately when that may be more convenient for them). However, we decided that it would be in DKK’s interests to have this arrangement in place at least for an initial period so that there is transparency as to the management of DKK’s financial affairs. This will be important so as assist to reduce DKK’s concerns and paranoia, as noted in the reports provided to the Tribunal, about her finances and fears about people taking advantage of her. HYL and Ms Z acknowledge that they do not know each other well, but are willing to do their best to make this arrangement work in DKK’s interests.

32. We were satisfied that HYL is a suitable person to be appointed as one of DKK’s private managers. HYL is a longstanding friend of DKK and she clearly trusts him, hence her request that he look after her financial affairs. HYL is originally from Germany and is able to communicate with DKK in her first language. HYL is now retired but has past professional experience in architecture and management and is financially independent. HYL expressed some relief at being appointed as a joint manager rather than as a sole private manager, given the work that is likely to be required at least in the short term. HYL was able to answer the questions asked of him as to his probity and good standing in the community.

33. We were also satisfied that Ms Z is a suitable person to be appointed as private financial manager. Ms Z is also a long-standing friend of DKK and is also of German origin. DKK nominated her as someone that she trusts to manage her affairs. Ms Z has a professional background in bookkeeping and business management. Ms Z is also financially independent and was able to answer the questions asked of her as to her probity and good standing in the community.

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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: 08 November 2023