EZX

[2020] NSWCATGD 72

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EZX [2020] NSWCATGD 72

Hearing dates:

26 June 2020

Date of orders:

26 June 2020

Decision date:

26 June 2020

Jurisdiction:

Guardianship Division

Before:

S Roushan, Senior Member (Legal)
A M Matheson, Senior Member (Professional)
R Royer, General Member (Community)

Decision:

Guardianship

1. A guardianship order is made for EZX.

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

3. This is a continuing guardianship order for a period of 12 months from 26 June 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where EZX may reside.

b) Health care

To decide what health care EZX may receive.

c) Services

To make decisions about services to be provided to EZX.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management

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

2. MYG 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 – admitted to a multi-purpose health service – condition deteriorated – close family relationships – no undue conflict of interest – subject person and family support appointment – private guardian appointed

FINANCIAL MANAGEMENT – application for a financial management order – risk of homelessness – vulnerable to exploitation – payments managed by sibling – financial arrangements needed if accommodation changes – subject person supports appointment – private manager found suitable

Legislation Cited:

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

Cases Cited:

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

CJ v AKJ [2015] NSWSC 498

IF v IG [2004] NSWADTAP 3

P v NSW Trustee and Guardian [2015] NSWSC 579

Re B [2011] NSWSC 1075

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

Guardianship Application

EZX (the person)
DAQ (applicant)
MYG (joined party, proposed guardian)
Public Guardian

Financial Management Application

EZX (the person)
DAQ (applicant)
MYG (joined party, proposed financial manager)
NSW Trustee and Guardian

Representation:

Nil.

File Number(s):

NCAT 2020/00173290

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. EZX is a 72-year-old Aboriginal man. He reportedly sustained a CVA a number of years go.

2. EZX was admitted to a Multi-Purpose Health Service (MPS) on 14 May 2020 following a fall. On 17 May 2020, he was transferred to a public hospital. He returned to the MPS on 22 June 2020.

3. Prior to his admission, EZX lived alone in his home and received cleaning services and ‘meals on wheels’, as well as some informal support from family members. He has reportedly experienced a number of falls at home requiring presentation to the MPS.

4. On 11 June 2020, the Tribunal received applications for guardianship and financial management in relation to EZX from DAQ, Nurse Manager at the MPS.

Evidence in support of the applications

5. It was stated in the applications that EZX is unable to make informed decisions about his accommodation and medical care. He has intermittent episodes of confusion and agitation, and he is at high risk of falls and injuries related to falls and excessive use of alcohol. EZX has had multiple ED presentations related to alcohol use and has declined the offer of a permanent aged care bed multiple times. He is malnourished, doubly incontinent, immobile non-compliant with medication and unable to care for himself. He insists on going home and becomes very agitated when alternative accommodation options are discussed.

6. DAQ stated that EZX is not capable of managing his own finances, placing him at risk of homelessness. He usually relies on other people to do some shopping for him and that leaves him vulnerable to exploitation. He spends most of his money on alcohol and cigarettes, potentially putting his rent payments at risk.

7. In a detailed report, Ms Z, Virtual Occupational Therapist at another public hospital, stated that EZX has had a number of falls at home over the past 11 months, requiring presentation to the MPS. He is currently dependent on a wheelchair for his mobility. He has sustained approximately five falls during his current admission. On 15 August 2019, an ACAT assessment was completed, which noted that EZX requires support with personal care and medication and that he is dependent for meals, domestic help and transport. In the month prior to his admission, EZX’s capacity to manage at home had significantly reduced. EZX had scored 23/30 in a Mini-Mental State Examination (MMSE) conducted on 14 August 2019, indicating ‘mild cognitive impairment’. EZX scored 24/30 in another MMSE completed on 13 December 2019, being at the ‘lower end of normal cognition’. EZX returned a score of 14/30 in the most recent MMSE completed on 28 May 2020, putting him within the moderate cognitive impairment range.

8. At the time of his admission to hospital, EZX had been impacted by ‘acute delirium’. He scored 6/22 in a MoCA Blind conducted on 3 June 2020, indicating a severe cognitive impairment. EZX is no longer able to care for himself with support from formal and informal sources and requires 24/7 supervision to manage daily self-care tasks. The clinical staff currently caring for EZX are documenting his ‘confusion and unsettledness that can develop into anger and refusal to receive care’. EZX’s cognitive impairment means he is unable to remember how to independently engage with tasks for everyday life or recall his physical impairments.

The hearing

9. The matter was listed for hearing on Friday, 26 June 2020. At the end of these Reasons for Decision is a list of the witnesses who attended the hearing. [Appendix removed for publication.]

The Guardianship Application

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

1. Is EZX someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

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

3. Who should be the guardian?

4. How long should the order last?

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

11. Section 14 of the Guardianship Act 1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is ‘a person in need of a guardian’. A person in need of a guardian is ‘a person who because of a disability is totally or partially incapable of managing his or her person’: 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).

12. At the hearing, Dr Y stated that the testing and assessments completed to date indicate that EZX is cognitively impaired. He has a form of dementia related to his alcohol consumption ‘with an element of Korsakoff syndrome’. Dr Y informed us that EZX has been referred to a geriatrician for a more formal diagnosis.

13. EZX demonstrated a limited capacity to make a meaningful contribution at the hearing and the contents of his evidence were consistent with the medical evidence presented.

14. On the basis of the evidence before us, which we accepted, we were satisfied that EZX has cognitive impairment and that his disability results in him being restricted in certain major life activities to such an extent that he requires supervision and assistance and is thereby incapable of managing his own person. We were, therefore, satisfied that a guardianship order could be made for EZX.

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

15. 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 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.

16. 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 may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

17. EZX told us at the hearing that he has been ‘like this’ for a while, but he has coped well at home. EZX’s brother, MYG, stated that, whilst EZX had been able to manage on his own in the past, his condition had deteriorated over the past year and that he is no longer as independent as he thinks he is.

18. We accepted the evidence before us that EZX’s cognition and his ability to manage on his own has significantly deteriorated over the past 12 months. We accepted that his safety and well-being would be placed at risk if he were to return home to reside on his own. EZX has not been consistent in agreeing to being placed at an aged care facility. We accepted these circumstances necessitate the appointment of a guardian to make decisions in relation to EZX’s accommodation and any services required by him. We further accepted that there are decisions that are required to be made in relation to EZX’s health care.

19. At the hearing, the close relationship between EZX and his siblings, MYG and Mr X, was evident to us. EZX’s siblings communicate with him regularly and are his persons responsible for the purpose of making decisions about his medical and dental treatment.

20. Having regard to the mandatory considerations set out in s 14(2) of the Guardianship Act and after weighing the principles contained in s 4 of that Act, we were satisfied that a guardianship order should be made for EZX. We were satisfied that there are decisions to be made with respect to EZX’s accommodation, services, and health care. In making these findings, we considered EZX’s views, the importance of preserving his existing family relationships and his particular cultural and linguistic environments, as well the practicability of services being provided to EZX without the need for the making of such an order.

Who should be the guardian?

21. 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]).

22. Section 15(3) of the Guardianship Act provides that the Public Guardian should not be appointed ‘in circumstances in which such an order can be made appointing some other person as the guardian of the person’.

23. Section 17 of the Guardianship Act expressly prohibits the Tribunal from appointing a person as guardian unless it is satisfied that the person has a personality generally compatible with the personality of the person under guardianship, has no undue conflict of interest in respect of the person under guardianship; and that he or she is willing and able to exercise the functions of the order.

24. As already noted, the close and loving relationship enjoyed by EZX and his siblings was evident to us. At the hearing, EZX expressed his clear view that he wanted MYG to make decisions on his behalf. The applicant and other family members were also supportive of the appointment of MYG as EZX’s guardian. We were left with little doubt that MYG had a good knowledge of his brother’s circumstances and insight into his needs; and that he is willing and able to exercise the functions of the order. He has a harmonious relationship with EZX, and he appeared to be committed to protecting and promoting his brother’s best interests. There was nothing apparent on the face of the evidence to suggest that MYG had any undue conflict of interest with EZX. On the basis of this evidence, we were satisfied that MYG meets the requirements to be appointed as guardian for EZX.

How long should the order last?

25. An initial guardianship order is usually made for a period of up to one year from the date on which it was made. We decided to make an order for 12 months to ensure that the appointed guardian would be able to undertake important decisions on EZX’s behalf with regard to the functions specified in the Tribunal’s order.

Financial Management Application

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

1. Is EZX incapable of managing his affairs?

2. Is there a need for another person to manage EZX affairs and is it in his best interests for a financial management order to be made?

3. If so, who should be appointed financial manager?

Is EZX incapable of managing his affairs?

27. 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.”

28. 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].

29. The medical evidence, detailed above and accepted by us, indicated that EZX has a cognitive impairment. At the hearing, EZX acknowledged that, in recent times, he had surrendered his key card and disclosed his PIN to others to enable them to withdraw money or shop for him. He also acknowledged that he might have been taken advantage of financially.

30. On the basis of the evidence before us, we were satisfied that EZX is unable to deal with his own affairs in a reasonable, rational, and orderly way with due regard to his present and prospective wants and needs and those of family and friends without undue risk of neglect, abuse, or exploitation. We were satisfied that EZX is incapable of managing his own affairs.

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

31. EZX is a recipient of the Age Pension. The available evidence did not indicate that he has any assets or debts. However, MYG’s evidence that EZX had started working from a young age suggested that he may have a superannuation account.

32. MYG expressed concern is relation to his brother being at risk of exploitation. He told us that he is now in possession of EZX’s key card, which he has safely locked away. MYG also told us that EZX’s rent is up to date and all his bills have been paid.

33. We were satisfied that EZX’s cognitive impairment prevents him from managing his affairs and makes him vulnerable to exploitation and self-mismanagement. We also accepted that EZX has no discernible assets or debts and that his rent and bill payments have been managed informally by MYG. However, we also accepted that, should EZX transit into a care facility, it would be necessary for the relevant financial agreements to be signed, his lease and utilities to be terminated and other financial arrangements to be made. For these reasons, we were satisfied that there is a need to appoint someone to manage EZX’s affairs. We were satisfied that it would be in his best interests to make a financial management order.

Who should be appointed as financial manager?

34. 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.

35. 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.

36. EZX told us at the hearing that he wished MYG to manage his finances for him. We accepted MYG’s oral evidence that he is willing to act as EZX’s financial manager under the supervision of NSW Trustee and Guardian. We were satisfied that MYG is a suitable person to be appointed as financial manager for EZX subject to the authorities and directions of the NSW Trustee and Guardian.

Should the order be reviewable?

37. The Tribunal may determine that a financial management order should be reviewed within a specified time. In this case, in view of the matters discussed above in relation to the nature of the ongoing financial decisions regarding EZX, we decided that the need for another person to manage his affairs should again be reassessed. Accordingly, we determined that the financial management order should be reviewed within 12 months.

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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: 11 October 2021