DZH

[2020] NSWCATGD 86

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DZH [2020] NSWCATGD 86

Hearing dates:

21 December 2020

Date of orders:

21 December 2020

Decision date:

21 December 2020

Jurisdiction:

Guardianship Division

Before:

S M Roberts, Senior Member (Legal)
Dr A M Berry, Senior Member (Professional)
J Cootes AM, General Member (Community)

Decision:

001: Guardianship Application

1. A guardianship order is made for DZH.

2. KBH of [Address removed for publication.] is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 21 December 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where DZH may reside.

b) The guardian may authorise others including

members of NSW Police and the Ambulance Service of NSW to:

i) take DZH to a place approved by the guardian.

ii) keep her at that place.

iii) return her to that place should she leave it.

c) Health care

To decide what health care DZH may

receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to DZH.

AUTHORITY:

6. The guardian has the following authority:

a) Authority to override objections to medical treatment

i) The guardian may override the objection of DZH to major or minor medical treatment.

CONDITION:

7. The condition of this order is:

a) Standard Condition

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

002: Financial Management Application

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

2. KBH of [Address removed for publication.] is appointed as the financial manager of the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.

3. This order be reviewed by the Tribunal within 12 months.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person inpatient in hospital – subject person with dementia – high level of carer stress – subject person unwilling to move to aged care – need for an ACAT assessment – need for accommodation decisions for admission to an aged care facility – need for medical and dental consent decisions – need for healthcare and services decisions – need for others to bring accommodation decisions into effect – authority to override objections to medical treatment – suitability of proposed guardian - private guardian appointed – order made.

FINANCIAL MANAGEMENT – application for a financial management order – whether subject person incapable of managing their own affairs – where financial decisions need to be made for subject person to enter residential aged care – private person suitable to be appointed as financial manager – private financial manager appointed – order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 4, 14(2), 17(1), 46A

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Guardianship Application
DZH (the person)
Nepean Blue Mountains Local Health District
(applicant)
KBH (carer)
Public Guardian (statutory party)

002: Financial Management Application
DZH (the person)
Nepean Blue Mountains Local Health District
(applicant)
KBH (carer)
NSW Trustee and Guardian (statutory party)

Representation:

Nil.

File Number(s):

NCAT 2020/00348041

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

Introduction

1. DZH is a 70-year-old woman who at the time of the hearing is an inpatient at a public hospital. DZH was admitted on 15 November 2020 for assessment after experiencing chest pain. Usually DZH lives in a private rental with her ex-husband, Mr Z, and her daughter and carer, KBH. It is reported DZH has a diagnosis of moderate vascular dementia.

2. On 8 October 2020, the Tribunal received applications from Ms BN, Social Worker, on behalf of Nepean Blue Mountains Local Health District (NBMLHD), for guardianship and financial management orders for DZH.

3. On 21 December 2020, we conducted a hearing into the applications. DZH, KBH, Mr Z, Ms BN, Dr Y (Advanced Trainee in Geriatric Medicine) and Ms X (Occupational Therapist) participated in the hearing by telephone.

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

GUARDIANSHIP APPLICATION

What did the Tribunal have to decide?

5. We need to decide if DZH needs a guardianship order. In making this decision, we need to consider the following issues:

1. Does DZH have a disability that prevents her from being able to make important life decisions? If she does then,

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

3. Who should be appointed as DZH’s guardian?

4. How long should the order last?

Does DZH have a disability that prevents her from being able to make important life decisions?

6. We had before us:

1. a letter dated 28 November 2020 by Dr Y;

2. a Social Worker Report dated 8 December 2020 by Ms BN; and

3. an Occupational Therapy Report dated 11 December 2020 by Ms X.

7. The relevant findings in these documents is that:

1. DZH has a diagnosis of moderate vascular dementia. She has a MOCA score of 11/30 and demonstrates “significant cognitive concerns and requires 24/7 supervision”;

2. DZH demonstrates a lack of insight into her situation and has been unable to weigh up the advantages and disadvantages of different accommodation and medical treatment options;

3. DZH also has a lack of insight into her financial management and is very vague about her assets, expenditures; and

4. DZH’s lack of capacity to make these decisions result from the underlying cognitive impairment from moderate vascular dementia and a guardian is recommended.

8. We are satisfied on the basis of this evidence DZH lacks the capacity to make her own important life decisions due to her dementia and is a person for whom a guardianship order could be made.

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

9. In deciding if DZH needs a guardianship order, we need to consider the following matters set out in s 14(2) of the Guardianship Act 1987 (NSW):

1. the views of DZH, her spouse (if any) and her carer;

2. the importance of preserving DZH’s existing family relationships;

3. the importance of preserving DZH’s cultural and linguistic environments; and

4. the practicability of services being provided to DZH without the need for the making of a guardianship order.

10. Each of these matters is a mandatory consideration and has no hierarchy or weighting. Rather we undertake a balancing exercise with respect to these considerations. We are guided in making our decision by the principles in s 4 of the Guardianship Act including that:

1. DZH’s welfare and interests should be given paramount consideration;

2. DZH’s freedom of decision and freedom of action should be restricted as little as possible;

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

4. DZH should be encouraged, as far as possible, to be self-reliant in matters relating to her personal, domestic and financial affairs; and

5. DZH should be protected from neglect, abuse and exploitation.


The views of DZH

11. DZH’s presentation is consistent with her disability. She made it clear she is very unhappy to be the subject of the hearing. DZH said she wants to make her own decisions and discharge herself from hospital to return to her home. She said she cannot remember what medical tests her doctors want to perform on her but she does not want any.

12. DZH appeared very angry with KBH for her current circumstances. She appears to blame her for the applications being lodged with the Tribunal.

The views of KBH

13. It was evident during the hearing there is tension and conflict between DZH and KBH. KBH supports the making of a guardianship application for her mother.

14. The documentation before us indicates KBH has been DZH’s carer for over 20 years and her full time stay at home carer for eight years. KBH reports she cannot continue to care for her mother in the home environment. She has reported that DZH refuses to have any external services come into the house, has refused to shower or have a sponge bath for almost three years, has rarely left her room for almost three years and refuses to attend medical appointments.

15. KBH told us that when at home her mother would occasionally but not regularly agree to take insulin to treat her diabetes.

16. The documentation states KBH is exhibiting symptoms of carer stress.

The views of Mr Z

17. Mr Z is DZH’s ex-husband. He lives with her and KBH. Mr Z indicated KBH has “always looked after” his ex-wife.

The view of Ms BN

18. Ms BN provided a thorough report dated 8 December 2020 as well giving oral evidence.

19. Ms BN’s evidence may be summarised as follows:

1. DZH’s behaviours before being admitted to hospital included:

1. refusing for almost three years to have a shower or bathe at home leading to painful and excoriated skin under her breasts for which she often refuses the application of cream;

2. refusing to leave her bedroom at home and using a bedside commode;

3. consuming large quantities of Coca-Cola when home despite KBH warning her it is not good for her diabetes; and

4. refusing to have services in the home.

2. It is thought DZH suffered a heart attack before her admission to hospital. However, as she refuses procedures/tests/medications for diagnostic or treatment purposes, the reason for her chest pains remains unknown. DZH is verbally abusive towards hospital staff when they try and encourage her to take medications or undergo investigations.

DZH does not appear to understand the seriousness of her current condition and does not believe it could be life threatening if left untreated.

DZH refuses medication for all her medical conditions. Ms BN is on the view an authority to override DZH’s objections to medical treatment is required;

3. DZH refuses all discharge options that do not involve her discharging to the family home. It is the view of DZH’s treating team she requires permanent placement in an aged care facility and needs 24/7 care and support that cannot safely be provided in the family home. The treating team is also of the view returning to the family home poses serious concerns for the welfare of DZH and KBH.

DZH threatens to discharge herself against medical advice. As she is able to mobilise with a four wheel walker, there is a risk she may abscond from hospital.

Given DZH’s opposition to her discharge to an aged care facility, her agitated behaviours and risk of absconding, it is recommended by Ms BN that the “authorise others” function be included with an accommodation function in her guardianship order.

4. As has been the case during previous admissions, DZH refuses to consider services in the home upon discharge due to her concerns about cost or having strangers in the house. She states she can look after herself when she goes home or get help from her daughter. DZH requires an ACAT assessment and has refused to consent to one herself.

20. In summary, Ms BN’s evidence is that a guardianship order should be made for DZH with the decision-making functions of accommodation (including authorising others to implement those decisions), health care, consenting to medical and dental treatment, services and overriding DZH’s objections to medical treatment.

The views of Dr Y

21. Dr Y told us his view about DZH has not changed since he wrote the letter referred to in [6(1)] above. He said DZH lacks capacity to make her own important life decisions and needs a guardianship order.

Our consideration and deliberation

22. We are satisfied DZH needs a guardianship order. In particular, we are satisfied decisions need to be made with respect to her discharge location and health issues and that these decisions cannot be made in the absence of a guardianship order.

23. We find making a guardianship order does not negatively impact upon DZH’s existing family relationships or her cultural and linguistic environments.

24. We accept the professional opinion of Ms BN (who we found to be a very helpful witness) that appointing a guardian with the decision-making functions of accommodation and the authority to authorise others to implement accommodation decisions is necessary. DZH clearly objects to being discharged to any location other than her home. We are satisfied, in the absence of these functions, there is a high risk DZH will discharge herself home. We agree this may not be in her best interests given her high-level needs and KBH’s inability to continue to meet those needs despite her best efforts to date. We also accept there is a risk DZH may abscond from hospital and may have to be returned there against her will.

25. We are satisfied a guardian is required to make decisions about DZH’s health care and consent to her medical and dental treatment. She is currently refusing all medications and any investigations of her chest pains. This could result in outcomes very detrimental to DZH’s well-being. Given her history of refusing medications and treatment by medical professionals, we are satisfied there is a need to include the authority under s 46A of the Guardianship Act to override DZH’s objections to medical treatment.

26. We are also satisfied decisions may need to be made about services DZH may need once she is discharged from hospital.

27. In summary, we are satisfied it is in DZH’s best interests for a guardianship order to be made with the decision-making functions of accommodation (with the authority to authorise others to implement accommodation decisions), health care, consenting to medical and dental treatment, services and overriding DZH’s objections to medical treatment.

Who should be appointed as guardian?

28. We may appoint a suitable private person as DZH’s guardian or if there is not such a person, we may appoint the Public Guardian.

29. Ms BN proposes in the application that KBH be appointed as DZH’s guardian. She told us this was at KBH’s request. Ms BN said she does herself have some concerns appointing KBH as her mother’s guardian may increase tension between her and DZH. Ms BN said she shared these concerns to KBH and the view it may be better to propose the Public Guardian for all or some of the decision-making functions. She told us KBH told her she still wishes to be appointed as DZH’s guardian.

30. KBH told us she is willing to be appointed as guardian. Mr Z supports this proposal.

31. We asked KBH if it may be difficult if she is appointed as guardian to make decisions contrary to DZH’s wishes and, in particular, to override her objections to medical treatment. KBH told us there was already conflict between her and her mother. She believes she is capable of performing the role especially given the intense caring role for her mother she has fulfilled over the last three years.

32. Section 17(1) of the Guardianship Act provides:

1. A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that:

1. the personality of the proposed guardian is generally compatible with that of the person under guardianship;

2. there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship; and

3.  the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.

33. We are satisfied KBH satisfies sub-paragraphs (b) and (c) above. We are also satisfied, despite the tension between DZH and KBH during the hearing, KBH satisfies sub-paragraph (a) as well. DZH presents as being very defiant and oppositional. These are most likely symptoms of her diagnosis. We would suggest DZH may not be compatible or agreeable with any guardian appointed at this point in time.

34. It is also reported KBH exhibits carer stress. This is not surprising given the load she has carried caring for her mother in the home environment over the last three years. The fact KBH and DZH have managed in that relationship and environment for so long satisfies us they are compatible on some level to the extent the circumstances permit.

35. We are satisfied KBH is a suitable person to appoint as DZH’s guardian. In the event, KBH forms the view at a later time that it may be preferable for an independent guardian to be appointed, she may seek a review of this order.

36. We therefore appoint KBH as DZH’s guardian.

How long is the order?

37. We are satisfied it is appropriate to make DZH’s guardianship order for a period of 12 months. We are satisfied decisions will need to be made for her for this period of time.

FINANCIAL MANAGEMENT APPLICATION

38. As stated above, NBMLHD also made a financial management application for DZH.

What does the Tribunal need to decide?

39. The issues we need to consider in deciding if DZH needs a financial management order are:

1. Is DZH not capable of managing her affairs?

2. Is there a need for another person to manage DZH’s affairs?

3. Is it in DZH’s best interests for a financial management order to be made? If so,

4. Who should be appointed financial manager?

5. In deciding these issues, we are guided by the principles in s 4 of the Guardianship Act as set out in [10] above.

40. We will now consider each of the issues set out in [39] above by applying the considerations and principles of the Guardianship Act.

Is DZH not capable of managing her affairs?

41. We are satisfied on the basis of the evidence referred to in [6] and [7] above DZH is not capable of managing her finances due to her disabilities.

Is there a need for another person to manage DZH’s affairs?

42. DZH told us she does not need a financial management order. She said KBH manages her money.

43. KBH told us she has informally managed DZH’s finances for approximately eight years. She told us:

1. DZH has one bank account in her name with a balance of approximately $15. KBH accesses this account through internet banking and the ATM. She is not a signatory on the account;

2. DZH’s aged pension is paid into this account. KBH is her Centrelink nominee;

3. the lease on the private rental is in the names of DZH, Mr Z and KBH. The rent is paid in cash and contributed to equally by DZH, Mr Z and KBH;

4. all bills are in DZH’s name. They are paid at the post office by KBH and contributed to equally by DZH, Mr Z and KBH; and

5. DZH does not have any other assets or debts.

44. Ms BN told us financial decisions will need to be made on behalf of DZH if a decision is made for her to enter residential aged care.

45. We are satisfied on the basis of the evidence outlined above there is a need for another person to manage DZH’s finances. There will be financial decisions to be made on behalf of DZH if she enters residential aged care. If this occurs then it will also be necessary for someone to have authority to remove her name from the lease and bills.

46. We are therefore satisfied there is a need to for a financial management order to be made for DZH.

Is it in DZH’s best interests for a financial management order to be made?

47. We are satisfied on the basis of the evidence above, it is in DZH’s best interests for someone to be appointed to manage her affairs so her finances can be used and organised for her benefit.

Who should be appointed financial manager?

48. We may appoint a suitable person or persons as DZH’s private financial manager under the supervision of the NSW Trustee and Guardian.

49. Ms BN proposes KBH be appointed as DZH’s financial manager. She told us she does not have any concerns about KBH being able to perform this role despite the tension between her and DZH.

50. KBH told us she is willing to be appointed as her mother’s financial manager. Mr Z supports this proposal.

51. KBH answered the standard probity questions to our satisfaction. She also told us she has experience in managing her own finances and has worked previously in retail where she managed the “till and float”.

52. We are satisfied KBH is a suitable person to appoint as DZH’s financial manager.

53. We are satisfied it is appropriate to appoint KBH as DZH’s financial manager.

Should the order be reviewable?

54. We are satisfied that once decisions have been made about DZH’s accommodation and her lease and bills amended, there may not be an ongoing need for her to be under financial management.

55. We therefore make this order for 12 months. At the end of this time, it will be reviewed by the Tribunal to see if DZH still requires a financial management order.

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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: 29 April 2022