DZG

[2020] NSWCATGD 12

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DZG [2020] NSWCATGD 12

Hearing dates:

20 May 2020

Date of orders:

20 May 2020

Decision date:

20 May 2020

Jurisdiction:

Guardianship Division

Before:

J D’Arcy, Senior Member (Legal)
F Duffy, Senior Member (Professional)

Decision:

The applications are dismissed because BYG has withdrawn the applications and the Tribunal consents.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – applicant required by aged care facility to apply for a guardianship order – no evidence of disability affecting subject person’s decision making capacity – person not a person for whom a guardianship order could be made – application withdrawn and dismissed.

  FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their own affairs – applicant required by aged care facility to apply for a financial management order – subject person able to explain her current financial situation – no evidence of subject person being unable to manage their own finances – informal supports sufficient in any event – application withdrawn and dismissed.

Legislation Cited:

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

Cases Cited:

CJ v AKJ [2015] NSWSC 498
P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

Nil

Category:

Principal judgment

Parties:

001: Guardianship Application

 

DZG (the person)
BYG (applicant)
NSW Public Guardian

 

002: Financial Management Application

  DZG (the person)
BYG (applicant)
NSW Trustee and Guardian

Representation:

Nil

File Number(s):

NCAT 2020/00118835

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

Background

1. BYG has applied to be appointed as the guardian and financial manager for his mother, DZG, having given an “irrevocable undertaking” to his mother’s accommodation provider that he would make the applications as a precondition to signing the Resident Agreement.

2. DZG is 92 years old. She was living in an independent living unit in an aged care facility in southwest Sydney for 10 years and nine months when she fell and made her own decision to move into the residential care section of the facility.

3. On 6 April 2020 at the request of the aged care facility, BYG signed a document entitled “Irrevocable undertaking – Application for appointment as Guardian/Financial Manager for Prospective Resident” in which he agreed to sign the Resident Agreement “upon being appointed as the Prospective Resident’s Guardian/Financial Manager”. Part 2 of the document states:

Irrevocable undertaking:

I, [BYG] irrevocably undertake to:

a)   apply to the NSW Civil and Administrative Tribunal (NCAT) to be appointed as Guardian/Financial manager for the Prospective Resident as soon as reasonably practicable.

b)   keep [the aged care facility] updated on the progress of my application to be appointed as the Prospective Resident’s Guardian/Financial Manager and to notify [the aged care facility] as soon as reasonably practicable upon receiving notification that my application for appointment has been either successful or unsuccessful.

c)   in the event that I am appointed as the Prospective Resident’s Guardian/Financial Manager, I will promptly execute the Resident Agreement for the Prospective Resident and return the signed Resident Agreement to [the aged care facility].

4. In his applications BYG stated that he was applying to be appointed as his mother’s guardian and financial manager on the direction of [the aged care facility]. He made the applications after he had signed the Resident Agreement.

The hearing

5. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

GUARDIANSHIP

What did the Tribunal have to decide?

6. The questions which had to be decided by the Tribunal were:

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

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

• Who should be the guardian?

• How long should the order last?

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

7. 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 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.

8. There was no medical or other evidence available to the Tribunal that DZG has a disability which affects her decision making capacity. She was fully engaged in the hearing and able to lucidly and readily explain her reasoning about moving from independent living to residential care. Although she described herself as confused at times there was no evidence of any such confusion in the hearing.

9. In his application BYG stated that his mother’s mobility was poor, her hearing was impaired and she was of advanced age. In the hearing he explained that he felt pressured to make the applications by the aged care facility because he did not want to jeopardise his mother’s current accommodation.

10. Having spoken to DZG in the hearing the Tribunal was satisfied that there was no evidence that her advanced age or hearing impairment had any impact on her ability to make decisions about her lifestyle.

11. The Tribunal could not be satisfied that DZG has a disability which prevents her making important life decisions. She is not a person for whom the Tribunal could make a guardianship order. It was unnecessary therefore to continue to consider if the irrevocable undertaking created a need for a guardianship order. However there was no information from the aged care facility giving reasons for the need for a guardianship order as a prerequisite to entering into residential care and, in any event, the document appeared to be of questionable legal validity.

12. Having explained to BYG that his mother did not meet the threshold requirement of having a disability which affected her decision-making capacity for the Tribunal to be able to make a guardianship order, BYG requested that the application be withdrawn. The Tribunal consented to his request and dismissed the application.

FINANCIAL MANAGEMENT

What did the Tribunal have to decide?

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

• Is DZG incapable of managing her affairs?

• Is there a need for another person to manage DZG’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 DZG incapable of managing her affairs?

14. DZG explained that about 18 months ago she made her sons, BYG and SZ, signatories to her accounts because she did not want the stress of managing her funds. She advised that she had recently received a letter from the bank advising her that her term deposit of $30,000 had matured but wanted to hand the term deposit over to her sons to manage because she could no longer get to the bank and did not want the stress of managing her finances.

15. DZG advised that she was not sure how much money she had to pay to the aged care facility because she had only recently received a letter about the payment to be made and had not been able to discuss the letter with BYG during the recent lockdown of the village due to the pandemic. BYG also stated that he was unaware of the payments to be made to the aged care facility until the outcome of the income and asset assessment is finalised.

16. 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.

17. In considering whether the person is “able” in this sense, consideration may be given to:

• past and present experience as a predictor of the future course of events;

• support systems available to the person; and

• the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498 at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579 at [309].

18. On the available evidence the Tribunal was unable to find that DZG was incapable of managing her day-to-day finances. She was able to fully explain the current financial arrangements in place and the reasons for making her sons signatories to her bank accounts.

19. The financial transactions involved in moving from an independent living unit to residential aged care are highly complex and family members often engage financial planners to assist in the decision making around the financial transactions involved. DZG’s lack of understanding of these transactions is no indication that she is incapable of managing her day-to-day finances. There was no apparent reason why she could not have signed the Resident Agreement.

20. In any event, even if the Tribunal had found that DZG was incapable of managing her finances, considering that she had made both of her sons signatories to her bank accounts, there was no need for a financial management order. Her estate is not complex; she receives an age pension; and has a term deposit. Payment of her accommodation fees can be made by direct debit which can be established by either DZG or her sons. In these circumstances, DZG’s finances can be managed informally without the need for a financial management order which would involve monitoring by the NSW Trustee and Guardian and payment of fees for that monitoring.

21. The Tribunal considered that the existence of the irrevocable undertaking that BYG had signed did not create a need for a financial management order, particularly when the Resident Agreement had already been signed.

22. Having explained to BYG that he and his brother could continue to manage their mother’s finances informally, he requested that the application for the appointment of financial manager be withdrawn. The Tribunal consented to his request and dismissed the application.

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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: 04 June 2020