DXM

[2022] NSWCATGD 17

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DXM [2022] NSWCATGD 17

Hearing dates:

20 May 2022

Date of orders:

20 May 2022

Decision date:

20 May 2022

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)
Dr M J Wroth, Senior Member (Professional)
L Stewart, General Member (Community)

Decision:

Review of Guardianship

The guardianship order for DXM made on 27 April 2022 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 20 May 2022.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where DXM may reside.

b) Health care

To decide what health care DXM may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to DXM.

CONDITION:

5. The condition of this order is:

a) Standard Condition

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

Financial Management Application

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

2. The management of the estate of DXM is committed to the NSW Trustee and Guardian.

Catchwords:

GUARDIANSHIP – end-of-term review of a guardianship order – subject person with cerebral palsy and visual impairment – subject person an in-patient at a public hospital – awaiting discharge into supported independent living placement – need for revision to NDIS plan – need for accommodation, healthcare and services decisions – need for medical and dental consent decisions – conflict within subject person's close family – no private person suitable to be appointed – Public Guardian appointed – order made.

FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their affairs – family conflict – no private person suitable to be appointed – need for an independent and objective financial manager – maintenance of family relationships – NSW Trustee and Guardian appointed – order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 3D, 4, 14, 14(2), 15(3), 17(1), 25M, 33A(4), 36

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)

Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227

IF v IG [2004] NSWADTAP 3

In P v NSW Trustee and Guardian [2015] NSWSC 579

P v D1 & Ors [2011] NSWSC 257

P v NSW Trustee and Guardian [2015] NSWSC 579

Re B [2011] NSWSC 1075

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

003: Financial Management Application

DXM (the person)
EZX (applicant)
BAM (carer)
NSW Trustee and Guardian

004: Financial Management Application

DXM (the person)
TFJ (applicant)
BAM (carer)
NSW Trustee and Guardian

005: Review of Guardianship Order

DXM (the person)
Public Guardian (appointed guardian)
BAM (carer)

Representation:

H Campbell as separate representative for DXM

File Number(s):

NCAT 2022/00073105

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

STATUTORY REVIEW OF GUARDIANSHIP ORDER

1. DXM is 25 years old and at the time of the hearing he was a patient at public hospital YZ. Prior to his hospital admission he was living at an independent living house in regional NSW, having moved there from where he was living with his brother, BAM, and his late-father, Mr Z. His father died in January 2022.

2. On 27 April 2022 the Tribunal made a guardianship order appointing the Public Guardian for one month to make decisions for DXM about his accommodation, services, health care and medical/dental treatment and adjourned the hearing of financial management applications made by TFJ, who is DXM’s mother, and EZX, a social worker at public hospital AB.

3. The hearing on 20 May 2022 was the end of term review of the guardianship order made on 27 April 2022 and the adjourned proceedings in respect of the applications for financial management.

The hearing

4. Due to restrictions necessitated by the COVID-19 pandemic, the Tribunal’s hearings were being conducted by way of telephone and, where possible, video communication.

5. At the conclusion of the hearing, we reserved our decision. Having reached a decision at a later point during the day we advised of our decision by making the orders set out above.

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

What did the Tribunal have to decide?

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

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

• Is DXM someone for whom the Tribunal could make an order because he continues to have a disability which prevents him from being able to make important life decisions?

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

• Who should be the guardian?

• How long should the order last?

9. Section 4 of the Guardianship Act 1987 (NSW) provides that it is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

1. the welfare and interests of such persons should be given paramount consideration,

2. the freedom of decision and freedom of action of such persons should be restricted as little as possible,

3. such persons should be encouraged, as far as possible, to live a normal life in the community,

4. the views of such persons in relation to the exercise of those functions should be taken into consideration,

5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

7. such persons should be protected from neglect, abuse and exploitation,

8. the community should be encouraged to apply and promote these principles.

Is DXM someone for whom the Tribunal could make a further order because he continues to have a disability which prevents him from being able to make important life decisions?

10. Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he 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”: Guardianship Act, s 3(1). 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: Guardianship Act, s 3(2).

11. The term “social habilitation” is not defined in the Guardianship Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Guardianship Act, at [303]

“The expression ‘social habilitation’ (in the context of references to ‘disability’, ‘restricted’, ‘major life activities’ and the word ‘requires’) may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others.”

12. When the previous order was made, the Tribunal took into account a letter from Dr Y, a paediatrician, and from Ms X, an occupational therapist. Dr Y noted that DXM has cerebral palsy and a cortical visual impairment. Ms X indicated that DXM had a severe level of cerebral palsy, was reliant on equipment for mobility, and was dependent on others to complete his activities of daily living. Ms X also recorded that DXM had severe expressive communication difficulty and was able to say only about 15 words. He was able to understand speech and was able to nod or shake his head for “yes” and “no” respectively when asked a closed question.

13. A report dated 5 May 2022 written by Ms W, an occupational therapist, indicates that due to DXM’s complex communication impairment, it had not been possible to conduct a formal capacity assessment. She notes that DXM was dependent on others for activities of daily living.

14. It was commonly accepted by all those at the hearing that due to his diagnosed conditions DXM is not able to manage his person and requires some assistance to do so.

15. Taking into account the previous decision of the Tribunal and lack of any more recent evidence to the contrary, as well as the views of those participating in the hearing, we were satisfied that as a result of his condition DXM is restricted in managing his person and needs assistance to do so. He is, therefore, a person for whom the Tribunal could make a further guardianship order.

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

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

1. the views (if any) of:

1. the person,

2. the person's spouse,

3. the person's carer, and

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

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.

17. 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 Guardianship Act. When undertaking this task, the Tribunal is guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

18. The Tribunal was previously satisfied that that there was a need for a guardian to make decisions for DXM about his accommodation, services, health care and medical/dental treatment.

19. We had regard to a letter dated 11 April 2022 from a disability service provider to law firm responding to particular questions put to them. The letter includes the following information:

1. DXM has been a client of the disability service provider since 2014 and a recipient of their services under the National Disability Insurance Scheme (NDIS) since 2016. Services provided include community access, personal care, respite services and supports at home.

2. DXM has limited ability to indicate his views regarding his services. He can respond “yes” or “no” when asked a question.

3. When the late Mr Z became ill and unable to care for DXM, the disability service provider offered him a temporary placement at the independent living house. He was not charged rent as his NDIS package did not provide for that. His NDIS plan was billed for support services provided at the accommodation.

4. Whilst DXM was in hospital, staff from the disability service provider were attending to assist with care, including at mealtimes.

5. If DXM were to return to the independent living house, assessments would be required regarding his care and equipment needs with a view to their costs being met under an NDIS plan.

6. There is no current service agreement with the disability service provider. A new plan was apparently devised in December 2021 after the late Mr Z requested a plan review and the old plan was terminated on 22 March 2022, but no new service agreement had been entered.

7. Macleay Options had succeeded in obtaining funds for plan management for DXM and for providing disability support services during his hospital admission and until the guardianship issue was finalised.

20. Ms V, of the disability service provider, who is DXM’s NDIS support coordinator said that an application had been made for review of DXM’s NDIS plan and an NDIS hospital liaison officer was attempting to escalate consideration of the application. She indicated that it was hoped that DXM could continue to be accommodated at the independent living house where some adjustments would be required to meet his needs. It was hoped that those adjustments would be funded by the NDIS.

21. The Public Guardian provided a report written by Ms U and Ms T, Duty Guardian, spoke to that report during the hearing. The report included the following information:

1. DXM was in public hospital YZ awaiting discharge to a supported independent living (SIL) placement, but his NDIS Plan needed to be revised to meet the cost of care in the SIL. If the SIL funding was not approved, other accommodation options would need to be explored. The Public Guardian was of the view that there was an ongoing need for a guardian to make accommodation decisions for DXM.

2. DXM has complex health and medical needs. Following his initial treatment in hospital other procedures, investigations and treatments were required and consent was required. Accordingly, there is a need for a substitute decision-maker to make medical and dental decisions for DXM.

3. As DXM has complex health and medical needs, it is in his best interests for a guardian to be able to access and transmit health information to advocate for appropriate care and to ensure that support workers and health and medical providers have adequate information about DXM’s circumstances.

4. Since the death of the late Mr Z there have been difficulties communicating with the National Disability Insurance Agency (NDIA) regarding DXM’s NDIS plan. Decisions regarding DXM’s services are ongoing and there is a need for a guardian to advocate for adequate and appropriate services and to provide oversight of the provision of services. For these reasons there is a need for a guardian to make decisions about DXM’s services.

22. During the hearing, Dr S provided the following information regarding DXM’s current medical circumstances:

1. DXM was admitted to hospital in February 2022. A percutaneous endoscopic gastrostomy (PEG) tube has been inserted following which he had a gastrointestinal bleed. He has been treated for suspected aspiration pneumonia and has had multiple infections. He was doing well at the time of the hearing and was medically stable and was ready for discharge if he had appropriate support.

2. Upon discharge DXM will need adequate support including from occupational therapists and physiotherapy.

23. There was no dispute amongst those in attendance at the hearing that there was an ongoing need for a guardian to make decisions for DXM about his accommodation, services, health care and medical/dental treatment.

24. We accepted the evidence and views of the Public Guardian, Dr S, and Ms V as those informed by involvement in decisions about DXM’s lifestyle over the past months.

25. Taking into account the previous decision of the Tribunal and the evidence and views provided at the current hearing, we were satisfied that there are decisions to be made about DXM’s accommodation and services. Those decisions require formalised negotiations, and we were satisfied that they cannot be accomplished informally. We were also satisfied that owing to DXM’s complex health and medical circumstances there will be an ongoing need for substitute decision making regarding his medical treatment, and that it is in his best interests to appoint a guardian with a health care function so that important health information can be accessed and transmitted to facilitate informed and effective care for DXM.

26. We are required to consider the effect of a guardianship order on DXM’s family relationships. Whilst there is considerable discord amongst family members, and in particular between TFJ and BAM, they do not disagree about the need for a guardianship order. We are satisfied that the allocation of decision-making functions to a guardian, of itself, will not adversely affect DXM’s family relationships. As can be seen from the section of these Reasons dealing with who should be appointed as the guardian, there was a lack of agreement about who should take up that role. In coming to a decision on that matter we took into account the effect of the order on DXM’s family relationships.

27. We were not advised of any cultural or linguistic matters that were likely to be adversely affected by making a guardianship order.

28. Having considered the evidence and having reached the conclusions noted above, we made a guardianship order appointing a guardian to make decisions for DXM about his accommodation, services, health care and medical/dental treatment.

Who should be appointed as the guardian?

29. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Guardianship Act. She or he must:

1. have a personality generally compatible with the personality of the person under guardianship,

2. have no undue conflict of interest (particularly financial) with those of the person, and

3. be able and willing to exercise the functions of the order.

30. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Guardianship Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, [66]).

31. In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

32. The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed: Guardianship Act, s 15(3).

33. The Supreme Court has held that:

“the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).”

34. TFJ, BAM and Mr R, the brother of the late Mr Z each proposed that they be appointed as the guardians.

Mr R

35. In support of his proposal that he should be appointed as the guardian, Mr R said that although he now lives in Queensland, he previously lived in regional NSW and visited his brother and BAM and DXM. In respect of the maintenance of family relationships, Mr R said that he would continue to “be there” for DXM and BAM but that he had “problems” with TFJ, whom he described as being “loose with the truth”.

36. When asked about his recent contact with DXM, Mr R said that he had seen him twice in the last two years. He said that he has daily telephone contact with BAM.

TFJ

37. Progress notes from public hospital AB record the following regarding TFJ:

1. Notes made on 1 March 2022 by a speech pathologist record that TFJ made numerous telephone calls and was asking inappropriate questions that were outside the scope of speech pathology and became upset and verbally combative, stating that as DXM’s mother she had a right to know what was happening with him.

1. Notes made on 2 March 2022 record that TFJ was attempting to feed DXM and was advised that he was nil by mouth. TFJ was advised that she was not entitled to be given information about DXM and that BAM was the next of kin. TFJ was increasingly agitated and indicated that in her view, BAM was unable to be next of kin due to a mild to moderate intellectual disability.

2. Notes made by EZX on 2 March 2022 indicate that TFJ became upset when asked by EZX how she had managed to obtain Centrelink and NDIS documents regarding DXM. Concerns had been raised by speech pathology staff that TFJ had been aggressive in a conversation regarding DXM. BAM had accused TFJ of Centrelink fraud and had reported that she had a mental health condition and had a carer. EZX was of the view that BAM was able to provide consent to medical treatment for DXM.

3. Notes made on 5 March 2022 record that TFJ was “upset and argumentative towards NS” and wanted to know why DXM was no longer verbal and why he wasn’t eating. She was “upset and angry”. BAM said that he wanted all details and updates to go through him as he believes that his mother is “only in it for the money”.

4. Notes made on 10 March 2022 include that BAM could provide consent to medical treatment and “pls exclude mum from the decision making as she is not NOK or carer”.

5. Notes made on 21 March 2022 express concern about the possibility of TFJ being appointed as the guardian and opine that her behaviour was “abnormal and (her) expectations of [DXM] unreasonable”.

38. During the hearing TFJ made submission to the effect that she has known DXM for all his life. Despite her separation from Mr Z and not being the carer for DXM, she has remained involved in his life, has visited him at home and has maintained contact with therapists working with him.

39. In a statutory declaration dated 22 April 2022, TFJ includes information to the following effect:

1. Until DXM and BAM were 13 years old she lived with them and their father. During that time, she provided care for them and took them to health and medical appointments.

2. When she left the marital home, she took DXM with her and BAM stayed with his father.

3. She cared for DXM by herself until he was 15 years old, but he became too large for her to lift. She suggested to Mr Z that DXM be placed in full time care, but Mr Z refused, and it was decided that DXM should live with him for a short period to provide TFJ with respite. Mr Z refused to return DXM to TFJ’s care and actively excluded her from his life. She subsequently re-established contact but from about 2016 was again excluded by Mr Z and her contact with BAM and DXM was by way of telephone calls and text messages until Mr Z prevented that contact.

4. When she discovered that Mr Z was ill, she attempted to contact him to check on the welfare of DXM and BAM but was unable to make contact.

5. She was not told initially that DXM was receiving respite care at the independent living house when Mr Z was unwell. When she made contact with the independent living house, she was advised that no funds had been received from DXM’s Centrelink payments.

6. BAM advised her that DXM’s Centrelink payments had been paid into the bank account of Mr Z and that BAM could operate that account using a key card. When she asked if DXM was receiving his funds, BAM used expletives telling her to go away. She had also been advised by others that BAM was spending a lot of money gambling and drinking at local venues. Out of concern for DXM she attended Centrelink and was advised to open a bank account in trust for DXM and that in the meantime his funds would be redirected to her bank account. She had received one payment into her account and had spent those funds on clothes and food for DXM and for payments to the disability service provider. Since 24 January 2022, DXM’s Centrelink benefits were paid in an account in her name “in trust for [DXM]” and the money was used for his benefit. BAM became abusive when he realised that TFJ had redirected DXM’s funds.

7. She has sought to have DXM’s equipment moved from the home of the late Mr Z to the disability service provider, but BAM has resisted that attempt and has asked how much TFJ was willing to pay for the equipment.

8. When DXM was in hospital she had difficulty accessing information about his condition and was told that as DXM’s next of kin, BAM had instructed staff not to provide her with information. She denies the matters raised by EZX regarding her alleged attempts to interfere with DXM’s care, including that she was attempting to feed him solid food in the knowledge that he was unable to swallow. She agrees that she became frustrated and expressed this verbally when DXM was at the public hospital AB. She has a good relationship with staff at the public hospital YZ.

40. In a letter to the Tribunal dated 8 April 2022, Ms Q, a clinical psychologist, advises that TFJ has been consulting with her and that “ongoing negative interactions with other family members and their representative has exacerbated (her) anxiety symptoms”.

41. BAM opposed the appointment of TFJ as the guardian. He asserted that she had not been involved with DXM in the past 25 years.

BAM

42. Medical Progress Notes from public hospital AB on 1 March 2022 record discussions with BAM about DXM’s health circumstance. However notes made on 9 March 2022 include that a Registrar had said that BAM did not want to be involved with decision making and that a support worker had advised that DXM’s brother had been “ignorant of [DXM]’s care” since the death of their father and that he wanted nothing to do with DXM.

43. Hospital notes by EZX include that:

1. BAM advised that he has a business driving trucks and is not always able to reply to telephone calls and requested that contact be by text to which he would reply when possible.

2. TFJ’s husband, Mr Y, had expressed concerns that BAM would not make appropriate decisions for DXM and noted that the late Mr Z had refused treatment such as a nasal gastric tube.

44. During the hearing BAM submitted that he had taken over the care of his father and DXM. He denied indicating that he did not want to be involved in decisions about DXM’s care as had been indicated in the hospital notes. He also denied indicating that contact with him should be by email as he was driving trucks and had difficulty responding to telephone calls.

45. EZX said that in all her conversations with BAM he had never indicated that he did not want to be involved in decisions about DXM’s care. To the contrary, he has been willing to make decisions and has asked appropriate questions and had indicated a willingness to discuss decisions with his sisters, who are the daughters of the late Mr Z, but not of TFJ.

46. Ms V said that BAM was in frequent contact with the disability service provider about DXM’s needs.

47. When asked how he would seek to ensure a maintenance of DXM’s family relationships if he were appointed as the guardian, BAM said he would communicate with Mr R and TFJ by telephone. He thought DXM would return to reside at the independent living house and he was not opposed to TFJ visiting him there.

48. TFJ opposed the appointment of BAM on the basis that he would be unlikely to provide her with information about DXM’s welfare and said that she has unsuccessfully sought information from him a number of times.

Views of DXM

49. Mr O, a Disability Advocate for DXM, said that prior to the hearing, he had asked DXM about his preferences for who should be appointed as the guardian. He had not known that Mr R was seeking to be appointed as the guardian and had asked DXM about his preferences regarding the appointment of the Public Guardian, TFJ and BAM. He said that DXM said yes to each of the alternatives.

50. During the hearing and with the assistance of Mr O, Ms Campbell asked DXM about his preference as to who should be appointed as the guardian. He said “yes” to each alternative but appeared most enthusiastic when BAM was proposed. When asked if he thought that BAM might initially require assistance from someone like the Public Guardian he also said “yes”.

Views of the Public Guardian

51. Ms T, Public Guardian, noted that there were family members who had liaised with service providers regarding DXM’s lifestyle and submitted that the Tribunal should consider whether to appoint a private guardian in preference to the Public Guardian who is a guardian of last resort.

Views of the separate representative

52. Ms Campbell submitted that there are some very important changes to be made in DXM’s life as he transitions to a SIL model of accommodation, and these changes involve important and complex decisions. She submitted that the intrafamilial conflict in evidence before the Tribunal could result in family members pursuing their own agendas rather than focussing on the best interests of DXM and that the appointment of a family member could result in the further breakdown of family relationships. Recognising that BAM has been involved in decision making for DXM regarding his services and health and medical matters up until now, and also taking into account the views of DXM, she suggested that BAM be appointed to make decisions for DXM about his health care and medical/dental treatment whilst the Public Guardian should be appointed to make decisions about his accommodation and services. She noted that shared decision making of the type she suggested can sometimes result in difficulties.

53. We carefully considered the evidence and views put to us and reached the following conclusions:

1. In our view each of the proposed private guardians has different experiences and understandings of DXM’s needs and interests. It is our view that as he moves into new life circumstances, decisions that promote his welfare and best interests would benefit from consultation and objective assessment of alternatives taking into account the range of views. The documents and oral evidence available to us indicate a high level of conflict between TFJ on the one part and BAM and Mr R on the other part and provide little support for a conclusion that, within the foreseeable future, the proposed private guardians would develop relationships conducive to effective communication that would result in decision making that takes into account those varying views. In our view, to the extent that effective consultation is not achieved, decisions may not be in the best interests of DXM.

2. It is also our view that as long as the current level of discord remains, the sharing of information and views is likely to be hampered and as a result the appointment of any one family member as DXM’s guardian is likely to adversely affect DXM’s relationships with other family members.

54. In considering TFJ’s proposal that she be appointed as the guardian, we reached the following conclusions:

1. In respect of matters raised in the public hospital AB notes we accept that during that time TFJ was distressed and anxious about DXM’s welfare and was being deprived of information about him. We accept that as a result she reacted emotionally and sometimes angrily. It is possible that if she were a decision maker and, therefore, in possession of information about DXM, TFJ’s interaction with health and care staff could be different. We took this possibility into account in considering whether to appoint her as the guardian.

2. The hospital notes also record that TFJ had unrealistic expectations about DXM’s circumstances. She sought information that was not within the capacity of speech pathology staff to provide and reacted angrily when questioned as to how she had obtained personal information about DXM, including NDIS and Centrelink documents. It is our view that given DXM’s complex health and medical circumstances, there is likely to be some ongoing stress in making decisions for him and a guardian will be required to communicate appropriately with health and services personnel in times of stress. We take into account that TFJ was under some emotional strain when DXM was in hospital, and we accept that under different circumstances she might communicate more effectively with relevant personnel. However we lack objective evidence of that possibility and this reduces the extent to which we can be satisfied that she will be able to make insightful and objective decisions about DXM’s lifestyle.

3. TFJ has indicated that if appointed as the guardian she would seek to have DXM return to the independent living house and would seek to ensure adequate services under the NDIS. We accept that these are TFJ’s intentions. However we note that she has not had direct knowledge of DXM’s needs for many years and that in the view of hospital personnel she had unrealistic expectations of DXM’s capabilities. Her lack of recent knowledge of DXM’s circumstances and capabilities and evidence of some difficulties in communicating with health and medical staff reduces the extent to which we are satisfied that she is currently in a position to make decisions for DXM that will be in his best interests and will promote his welfare.

4. In her letter Ms Q indicates that TFJ’s interactions with members of DXM’s family had exacerbated her anxiety symptoms. As noted above we are of the view that making decisions in the best interests of DXM will require consultation with family members. As TFJ has not been in close contact with DXM for some years she would need to consult with other family members. Taking into account the conflict in evidence before the Tribunal and Ms Q’s comments, we are not satisfied that TFJ is in a position to consult effectively with other family members.

5. Having reached the decisions noted above, we were not satisfied that currently TFJ is able to make decisions that promote the principles set out in s 4 of the Guardianship Act and that will promote his family relationships.

55. We considered the proposal that Mr R be appointed as the guardian. As noted in the preceding paragraphs, we were concerned that the ongoing discord between TFJ on the one part and Mr R and BAM on the other part, hampers the ability of each family member to take proper account of the views and experience of the others to make decisions that promote the welfare, best interests of DXM and the maintenance of his family relationships. With particular reference to the evidence of Mr R we note that he saw his role as supporting BAM and expressed negative views about TFJ’s integrity. We also take into account that Mr R resides some distance from DXM. Whilst this in itself is not a bar to him being appointed as guardian, it does mean that to some extent he would be reliant on others geographically closer to DXM to provide him with information and views about DXM’s welfare. Given Mr R’s negative views about TFJ’s integrity, we consider it unlikely that he would seek or place weight on her views and to that extent we are not satisfied that he would access and assess all relevant information or act in a manner that would promote the maintenance of DXM’s family relationships. Accordingly we are not satisfied that he is in position to carry out the functions of the order in accordance with the best interests and welfare of DXM and in a manner that would assist in the maintenance of his family relationships.

56. In considering the proposal that BAM be appointed as the guardian we took into account that when asked by Ms Campbell who he would prefer as guardian, DXM was accepting of each of the proposed private guardians and the Public Guardian but appeared to be more in favour of the appointment of BAM. We are of the view that it is likely that DXM would prefer BAM as his guardian. We note also that BAM and DXM have lived together and are well known to each other. For these reasons we carefully considered whether to appoint BAM as the guardian. In deciding not to do so we reached the following conclusions:

1. We are satisfied on the evidence of EZX and Ms V, that since DXM has been in the care of the disability service provider and also under medical care in hospital, BAM has been communicating appropriately with care and service providers and his decisions in relation to those matters have not been cause for concern.

2. However, we are not satisfied that the adequacy of BAM’s decision making up until now provides sufficient evidence of adequate capability into the short to medium future. We are of this view for the following reasons:

1. Whilst DXM has been in hospital, BAM has been able to draw on the assistance of health and medical practitioners, including EZX, in accessing information and making decisions about DXM.

2. We accept the submissions of Ms Campbell to the effect that as DXM transitions to a new lifestyle a range of decisions and actions will be required by his guardian. In particular, we note that DXM has not previously been funded for SIL accommodation and an NDIS Plan review will be required to fund such accommodation. A number of health and medical assessments will be required to support increased funding under the NDIS Plan. As mentioned by Ms V, it is hoped that an NDIS Plan will also include funding for modifications to proposed accommodation to make it suitable for DXM and as mentioned by TFJ, there may be a need to procure appropriate equipment and furnishings such as a hospital bed. In our view, there is a need for strong and experienced advocacy to achieve the best outcome for DXM in respect of his accommodation and services. In our view whilst BAM’s decision making up until now has been appropriate, the decisions and advocacy required in the short to medium term may be outside his capacity, taking into account his lack of experience with the complexities involved in achieving the best outcomes for DXM.

3. The notes from public hospital AB indicate that BAM instructed that TFJ was not to be given information about DXM’s condition and TFJ indicated that she had telephoned BAM seeking information about DXM and her calls were not returned. In respect of the relationship between BAM and TFJ we formed the following views:

1. As noted above, we were concerned that the ongoing discord between TFJ on the one part and Mr R and BAM on the other part, hampers the ability of each family member to take proper account of the views and experience of the others to make decisions that promote the welfare, best interests of DXM and the maintenance of his family relationships. In our view the evidence indicates that in the short to medium term the conflict in evidence between BAM and TFJ would prevent BAM from seeking or placing weight on TFJ’s views and to that extent we are not satisfied that he would access and assess all relevant information.

2. We are also of the view that the extent of the discord is such that it is unlikely that BAM would freely communicate information to TFJ and to the extent that she lacks access to information about DXM, her ability to maintain a relationship with him would be hampered. We are of the view that under these circumstances the maintenance of DXM’s family relationship could be at risk.

4. Ms Campbell was of the view that whilst the nature of decisions to be made in the foreseeable future were such that the Public Guardian should be appointed to make decisions for DXM about his accommodation and services, it could be appropriate to appoint BAM to make decisions about his health care and medical treatment. However she acknowledged that there can be practical difficulties in split decision making. In respect of Ms Campbell’s proposal, we formed the following views:

1. DXM has been hospitalised and has experienced complications in his treatment.

2. As was indicated by Ms V, some modifications will be required to meet DXM’s health and care needs in a SIL placement and there is a need for specialised equipment to provide him with adequate care.

3. In our view, there is a nexus between DXM’s health and medical needs and his accommodation and services. We consider that a guardian who is making decisions about DXM’s accommodation and services will need to access and to be authorised to transfer, important health information relevant to DXM’s care needs. For this reason, it is our view that the accommodation, services and health care functions should reside in the same guardian.

1. We were also of the view that it was in the best interests of DXM for a guardian to be allocated the decision-making function about his medical/dental treatment in addition to those in relation to his accommodation, services and health care. The reasons for that view are outlined in the paragraphs below.

57. If there were no guardian appointed to make medical decisions for DXM, that role would be determined according to ‘person responsible’ provisions of the Guardianship Act. Section 36 of the Guardianship Act provides that where a person is not able to consent to medical or dental treatment consent can be given by a ‘person responsible’.

58. Section 33A(4) of the Guardianship Act provides a hierarchy by which to determine who is a ‘person responsible’ who may consent to medical and dental treatment on behalf of a person who is unable to do so. In descending order, the hierarchy is:

1. the person's guardian, if any, if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to the carrying out of medical or dental treatment on the person,

2. the spouse of the person, if any, if:

1. (i) the relationship between the person and the spouse is close and continuing, and

2. (ii) the spouse is not a person under guardianship,

3. a person who has the care of the person,

4. a close friend or relative of the person.

59. A person who has the care of the person is defined in s 3D of the Guardianship Act as including the following:

1. A person who, otherwise than for remuneration on a regular basis:

1. provides domestic services and support to the other person, or

2. arranges for the other person to be provided with such services and support.

60. Section 3D of the Guardianship Act also provides that a person who resides in an institution (such as a hospital, nursing home, group home, boarding-house or hostel) at which he or she is cared for by some other person remains in the care of the person in whose care he or she was immediately before residing in the institution.

61. We understand that it is under the provisions referred to in the preceding paragraphs that BAM has been identified as the person to consent to treatment for DXM whilst he has been in hospital. We have no criticism of the nature of the decisions made by BAM in that role. However we consider that as DXM moves into SIL accommodation where his health and medical needs are so related to his accommodation and services it is in his best interests for the medical decision maker to be able to access health care information as well as to have oversight of his accommodation and services provision and the adequacy of those in respect to his health and medical needs. Accordingly, we were satisfied that the medical decision making should be allocated to a guardian who is also allocated decision-making functions regarding DXM’s accommodation, services and health care.

62. Taking into account the matters outlined above, it was our view that BAM is not in a position to exercise the accommodation and services decision-making functions in the best interests of DXM or in such a way as to promote the maintenance of his family relationships. Nor are we of the view that it is currently in the best interests of DXM to appoint BAM as the guardian for health and medical decisions whilst allocating the accommodation and services decision-making functions to a Public Guardian.

63. Having reached the decisions outlined above, it was our view that each of the proposed private guardians is not in a position to undertake the functions of the guardian in a manner that promotes DXM’s best interests, welfare and family relationships and we appointed the Public Guardian. In making that appointment we note that over the period of the order it is possible that the intrafamilial discord could fade and that the complexities in decision making and advocacy required for DXM could decrease. Such developments could result in nullifying a number of the concerns expressed above by the Tribunal in respect of the proposed appointment of private guardians.

How long should the order last?

64. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. Ms Campbell was of the view that a guardianship order should be made for 12 months and there was no other submission regarding the length of the order. We made the order for 12 months because we are of the view that it will take some time to implement and evaluate decisions made under the guardianship order and it will then be appropriate to review the ongoing suitability of the order to DXM’s welfare and best interests.

FINANCIAL MANAGEMENT APPLICATION

What did the Tribunal have to decide?

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

• Is DXM incapable of managing his affairs?

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

• If so, who should be appointed financial manager?

Is DXM incapable of managing his affairs?

66. The test for determining a person's capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]):

“Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests?

…

[A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.”

67. As can be seen in the section of these Reasons dealing with guardianship the Tribunal considered matters related to DXM’s functioning in the context of his ability to make lifestyle decisions Those matters are relevant to his ability to manage his affairs and are considered, but are not reproduced in this section of these Reasons. We note in particular the evidence of health and medical practitioners to the effect that DXM has a severe level of cerebral palsy, was reliant on equipment for mobility and was dependent on others to complete his activities of daily living and that he has severe expressive communication difficulty and was able to say only about 15 words. He was able to understand speech and was able to nod or shake his head for “yes” and “no” respectively when asked a closed question.

68. In addition to the material referred to in the preceding paragraph, we also took into account the concerns expressed by TFJ to the effect that she had been advised that DXM was not provided with funds when he was at the independent living house and that the late Mr Z had been managing his affairs.

69. During the hearing BAM confirmed that DXM’s funds had been managed by the late Mr Z who paid rent from his account and that the three residents in the home took turns in paying expenses, or split the expenses. He said that he had been accessing that account since the death of the late Mr Z.

70. The letter from the disability service provider dated 11 April 2022 includes the following comments:

1. Costs to be met by a resident at the independent living house include rent of $100 per week and $50 per week for food and utilities. DXM had not been paying those expenses during his respite placement at the independent living house because he did not have access to his pension.

2. TFJ had provided funds to the disability service provider to meet DXM’s immediate spending needs. The disability service provider was unaware of the source of those funds.

71. During the hearing there was no evidence or submission to the effect that DXM is able to manage his affairs.

72. We were satisfied that due to the nature and extent of his disabilities, DXM is not able to manage his financial affairs to meet his day-to-day needs or to plan for his financial future and implement such plans or to protect himself from financial exploitation. Accordingly, we are satisfied that he is not able to manage his financial affairs.

Is there a need for a financial management order and is it in DXM’s best interest that a financial management order be made?

73. In her statutory declaration dated 22 April 2022 TFJ indicated:

1. She was concerned that DXM’s funds had been placed in the account of the late Mr Z and after his death were being accessed by BAM.

2. She was advised by the disability service provider that no money had been provided for the care of DXM. She subsequently attended Centrelink and arranged, first for DXM’s Centrelink funds to be paid into her bank account, and later into a bank account in her name, in trust for DXM.

3. She was contacted by Ms P, the eldest daughter of the late Mr Z, who had the death certificate for Mr Z. Ms P expressed concern that if DXM’s interests were not protected he might not obtain his share of the estate of the late Mr Z. Ms P had given TFJ the death certificate for safe keeping pending the appointment of a financial manager for DXM.

4. She has been advised that DXM needs a hospital grade bed that costs $33,000 to buy or $500 per month to rent. She believes that DXM needs access to his inheritance from Mr Z to obtain this bed unless it can be provided under the NDIS.

74. TFJ provided copies of bank statements for the account held in her name in trust for DXM and provided copies of receipts for items purchased for DXM. During the hearing TFJ indicated that the bank account held in trust for DXM has a balance of approximately $7000.

75. We were provided with a letter to BAM regarding a claim on a life insurance policy for the late Mr Z. During the hearing BAM told us that the late Mr Z had taken out a life insurance policy naming each of BAM, DXM and their two sisters as beneficiaries upon his death. He was not aware of the details of the policy, but he believed that the policy would pay each of the siblings $50,000. He also indicated that the late Mr Z had died interstate and had few assets.

76. Bank statements provided by TFJ for a bank account in the name of the late Mr Z indicate that frequent withdrawals were made at a hotel. BAM agreed that the account was to one to which DXM’s Centrelink payments were paid. He said that he used the account with the consent of his father when the late Mr Z was alive. Initially he denied using the account after the death of his father but when provided with evidence of withdrawals made at the hotel after the death of the late Mr Z he agreed that he had used the account but denied using the funds for gambling or alcohol. He said that he used the money that he withdrew to pay bills. We considered BAM’s evidence on this matter to be inconsistent and the withdrawals to be unexplained.

77. We were satisfied that there is a need to appoint a financial manager, and it is in the best interests of DXM to do so, to ensure that DXM’s Centrelink funds are utilised to meet his needs, to consider if any action should be taken regarding the use of his funds up until now, and to represent his interests in respect of the insurance policy that, according to BAM, names DXM as beneficiary.

Who should be appointed as financial manager?

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

79. Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person’s estate or may commit the management of the estate to the NSW Trustee and Guardian.

80. 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.

81. 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.

82. The advantages of the appointment of a family member were more economic management of smaller estates (that is, freedom from fees) 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.

83. The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be “more apparent than real,” should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family.

84. TFJ proposed that she be appointed as the financial manager. She said that she had been bankrupt approximately 12 years ago but was discharged from bankruptcy. She said that she has financial management experience gained from running a bistro in a bowling club and from operating a cleaning business.

85. Ms Campbell indicated that whilst TFJ was speaking, DXM had sought to express himself. We stood the matter down to provide an opportunity for Ms Campbell, with the assistance of Mr O and Ms N, a support worker, to ascertain DXM’s views. Upon resuming the hearing, we were advised that DXM was unforthcoming when offered an opportunity to comment on the proposed appointment of TFJ as financial manager, but that he was clearly supportive of a proposal that his affairs be managed by the NSW Trustee and Guardian. We accepted this evidence as an indication of DXM’s preference for his affairs to be managed by the NSW Trustee and Guardian.

86. In deciding to commit the affairs of DXM to management by the NSW Trustee and Guardian as an alternative to appointing TFJ as the financial manager we took into account our following conclusions based on the evidence available:

1. The management of DXM’s day-to-day affairs will not be complex once he is accommodated in supported accommodation and his fees structure is established.

2. In addition to management of DXM’s day-to-day affairs, a financial manager will be required to represent DXM’s interests in respect of the estate of the late Mr Z, including as a beneficiary in any life insurance policy. It is in the best interests of DXM that this task not be complicated by intrafamilial discord. In our view the discord between TFJ and BAM is such that it is likely to interfere with discussions and decisions regarding DXM’s entitlements under the estate of the late Mr Z.

3. It appears that DXM has no savings and there is no clear record of the use made of his funds or the extent to which his funds might have been used for the benefit of others. In our view, in the interests of maintaining DXM’s family relationships, a decision as to whether to pursue this matter should be made by an independent and objective financial manager. We are also of the view that if this matter is pursued, it will be more effective for it to be pursued by an independent and objective financial manager, rather than it being clouded by issues of intrafamilial conflict.

4. We were of the view that the appointment of a family member as a financial manager was likely to prolong and contribute to intrafamilial discord and was not likely to assist DXM to maintain his family relationships.

87. Having reached the decisions noted above we were of the view that TFJ was not a suitable person to be appointed as financial manager.

88. We were satisfied that DXM’s estate should be committed to the management of the NSW Trustee and Guardian.

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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: 18 January 2023