FA v Protective Commissioner

[2008] NSWADTAP 36

Appeal Panel - External

CITATION:

FA v Protective Commissioner and ors [2008] NSWADTAP 36

PARTIES:

APPELLANT
FA

FIRST RESPONDENT
Protective Commissioner

SECOND RESPONDENT
FB

DECISION MAKER
Guardianship Tribunal

FILE NUMBER:

088003

HEARING DATES:

15 May 2008

SUBMISSIONS CLOSED:

15 May 2008

 
DATE OF DECISION: 

18 June 2008

BEFORE:

Hennessy N - Magistrate (Deputy President); Britton A - Deputy President; Green J - Non Judicial Member

CATCHWORDS:

Financial management order - making - question of law

MATTER FOR DECISION:

Principal matter

DECISION UNDER APPEAL:

Application for financial management order

FILE NUMBER UNDER APPEAL:

Guardianship Tribunal : C/37619 Matter No: 2007/6221

DATE OF DECISION UNDER APPEAL:

01/31/2008

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997
Guardianship Act 1987

CASES CITED:

PY v RJS [1982] 2 NSWLR 700
H v H (Supreme Court, Young J, unreported, 20 March 2000)Re GHI (a protected person) [2005] NSWSC 581
P v R [2003] NSWSC 819
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Mifsud v Campbell (1991) 21 NSWLR 725
GM v Protective Commissioner & Ors [2003] NSWADTAP 59

REPRESENTATION:

APPELLANT
J Azzi, barrister

FIRST RESPONDENT
No appearance

SECOND RESPONDENT
FA's son and daughter as agents for FB

DECISION MAKER
E Cho, legal officer

ORDERS:

The decision of the Guardianship Tribunal to make a financial management order in relation to FA and to appoint the Protective Commissioner to be her manager is affirmed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

(1A) This section applies only to the following:



(a) proceedings in the Community Services Division of the Tribunal,


(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,



(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,


(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983


(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:


(a) who appears as a witness before the Tribunal in any proceedings, or


(b) to whom any proceedings before the Tribunal relate, or


(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1 FA is a 91 year old woman who had lived with her daughter and son-in-law, rent free, for 20 years until she moved into a nursing home in August 2007. In September 2007, the son-in-law applied to the Guardianship Tribunal for a financial management order in relation to FA because she had not paid the accommodation bond or the fortnightly payments due to the nursing home. The son-in-law says that FA has a property which is worth about $125,000 and a fortnightly pension and that she should sell the property and use her pension to pay her debts. FA refuses to sell the property arguing that her daughter and son-in-law should pay for her accommodation because they told her that they would look after her until she died. The Tribunal made a financial management order and appointed the Protective Commissioner as FA’s manager. FA has appealed against that decision.

2 The Appeal Panel's jurisdiction to hear external appeals comes from section 67A of the Guardianship Act 1987 and section 118A of the Administrative Decisions Tribunal Act 1997 (ADT Act). An external appeal may be made as of right on any question of law or by leave on any other ground: ADT Act, section 118B(I). FA appealed on questions of law but did not seek leave for the appeal to be extended to the merits of the Tribunal’s decision.

Parties

3 The parties to an external appeal are the appellant, FA, and any person who was a party to the proceedings before the Guardianship Tribunal: ADT Act, section 67(2A); Administrative Decisions Tribunal Rules (Transitional) Regulation 1998, Rule 41A(1) of Schedule 1. FA has standing to lodge the appeal as she was a party to the original proceedings before the Guardianship Tribunal and she is the person who has been made subject to a financial management order: Guardianship Act 1987, section 3F(5)(b) and section 67A(2). A legal practitioner represented FA at the appeal hearing. The other parties to the appeal as of right are the son-in-law, who was the original applicant for the financial management order, and the Protective Commissioner, who was appointed by the Guardianship Tribunal to manage FA’s affairs. The Protective Commissioner chose to play no part in this appeal. The son-in-law did not attend the hearing but was represented by his wife, FA’s daughter, and FA’s son, as agents.

4 The Guardianship Tribunal was a party to the appeal in accordance with the provisions of section 67(2B) of the ADT Act, which provides that when there is an external appeal the original decision-maker may elect to be a party to the appeal. Ms Cho represented the Guardianship Tribunal. In keeping with authority and practice the Guardianship Tribunal was not an active participant at the hearing in the sense of opposing or supporting the appeal, but provided useful procedural information about this case.

Tribunal’s decision

5 After providing some background information, the Tribunal set out the statutory test for the making of a financial management order under section 25G of the Guardianship Act 1987:

The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person’s capability to manage his or her own affairs and is satisfied that:
(a) the person is not capable of managing those affairs, and

(b) there is a need for another person to manage those affairs on the person’s behalf, and

(c) it is in the person’s best interests that the order be made.

6 The Tribunal then quoted some of the relevant case law, particularly on the interpretation of the phrase “not capable of managing those affairs”. The Tribunal noted that FA opposed the making of a financial management order submitting that she was capable of managing her affairs. The Tribunal referred to a medical report provided by FA from a general practitioner, Dr Silver, but concluded that the report was of little value in determining FA’s cognitive capacity. The Tribunal also referred to a report from another general practitioner Dr Wood, who FA has seen on several occasions. Dr Wood reported some memory loss and confusion. The Tribunal made the following comments before concluding that FA lacked capacity to manage her affairs, as required by section 25G(a):
[FA] told the Tribunal that she receives a pension and that she banks at the Commonwealth Bank at Edgecliff. [The son] gave evidence that his mother is very generous and has been known to give money to strangers at bus stops. She owns a block of land in the Blue Mountains. The Tribunal was told that it is estimated to be worth approximately $125,000. FA told the Tribunal that she intends to use the land as a sort of family gathering place or commune. However, she was not able to express the details of the plan in a logical or comprehensible fashion. Other evidence suggests that [FA] intends to donate the land to the Seventh Day Adventists, of which congregation she is a member. [The son-in-law] believes that the land needs to be sold in order to pay for [FA's] accommodation bond.

In view of the obvious tensions in the relationship between [FA] and certain members of her family, the Tribunal is of the view that [FA's] plans, however vaguely expressed, display lack of insight into the reality of her current situation.

[FA] gave evidence that, in her view, she should not be required to pay for her retirement village fees. She expressed the firm view that the responsibility to pay these expenses rests with her daughter and son-in-law. The Tribunal was persuaded that her attitude in this regard indicated a lack of understanding of financial responsibility.

On the basis of the evidence referred to above the Tribunal is satisfied that [FA] is a person who lacks the capacity to manage her affairs and is therefore someone for whom a financial manager may be appointed.

7 The Tribunal went on to consider the next two elements of section 25G, namely whether there was a need for a financial manager to be appointed and whether it was in FA’s best interests to make such an appointment. After concluding that a financial manager should be appointed, the Tribunal decided to appoint the Protective Commissioner.

Grounds of Appeal

8 In the Notice of Appeal, counsel for FA listed numerous grounds of appeal relating to the evidence and the weight of the evidence. However, it became apparent during the course of the hearing that two main grounds of appeal were relied on. The first was that the Tribunal had ignored probative evidence relevant to the question of whether FA lacked capacity to manage her financial affairs. The second ground was that the Tribunal breached the rules of procedural fairness by denying FA an opportunity to respond to adverse material. We note that FA abandoned the ground of appeal that the Tribunal’s decision was ultra vires.

Meaning of “not capable of managing those affairs”

9 Although FA did not challenge the Tribunal’s interpretation of section 25G(a), it is useful to clarify the meaning of that provision. A comprehensive analysis of an equivalent provision (section 13(1) of the Protected Estates Act 1983) was undertaken by Campbell J in Re GHI (a protected person) [2005] NSWSC 581. His Honour began by referring to the classic statement of the meaning of the term “incapable of managing his affairs” in PY v RJS [1982] 2 NSWLR 700:

It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears:
(a) that he or she appears incapable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of man; and

(b) that, by reason of that lack of competence there is shown to be a real risk that either:

(i) he or she may be disadvantaged in the conduct of such affairs; or

(ii) that such moneys or property which he or she may possess may be dissipated or lost (see Re an Alleged Incapable Person [(1959) 76 WN (NSW) 477]); it is not sufficient, in my view, merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner: see In the Matter of Case (1915) 214 NY 199 at page 203, per Cardozo J.

10 Campbell J noted that the test in New South Wales is an objective one. When applying that test the question is not whether the person can manage his own affairs but, at least initially, whether the person can deal with the ordinary routine affairs of man. Campbell J went on to note that determining whether a person “is capable” of managing his or her affairs involves determining, in part, whether the person is likely to be able to deal satisfactorily with the financial management tasks that will arise in the future. Young J emphasised in H v H (Supreme Court, unreported, 20 March 2000) that the “ordinary affairs” of man include planning for the future. Finally, in Re GHI (a protected person) Campbell J at [120] recognised the importance of a person having sufficient insight to seek relevant financial advice when determining whether they were capable of managing their affairs.

11 What evidence did the Tribunal overlook? Counsel for FA submitted that the Guardianship Tribunal ignored FA’s evidence that her daughter had promised in 1986 when she first moved in with them, that she and her husband would “mind her until the day she died”. FA told the Tribunal that her daughter and son-in-law are “well to do” people and that there was no mention of her paying for her accommodation. She questioned why she had to pay the nursing home fees when “they moved me out of a lifetime’s situation without warning and moved me into this place.” The significance of this evidence, according to counsel for FA, was that it was reasonable for FA to rely on this “promise” and the evidence also demonstrated that FA had planned for her financial future.

12 Other evidence that the Guardianship Tribunal was said to have overlooked was that FA recently put a caveat on her property in the Blue Mountains. Counsel for FA characterised this as a sophisticated decision designed to protect her property. FA’s statement to the Guardianship Tribunal suggests that she put the caveat on the property because she believed that her son-in-law had stolen the title to her property. The son-in-law denied that allegation saying the documents were found in boxes of rubbish. Finally, counsel for FA said that the Tribunal did not refer to a report by an Aged Care Assessment Team (ACAT) from the Department of Health and Ageing. Under the heading “Cognitive behaviour/psychological aspects” the report records that FA is “never” confused or disoriented.

13 What is the error that the Tribunal is said to have made? Counsel for FA relied on the decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 as authority for the proposition that ignoring relevant evidence in a way that affects the exercise of power is an error of law: per McHugh, Gummow and Hayne JJ at [82]. While the authorities relating to federal legislation are of some relevance, the principles enunciated by the New South Wales Court of Appeal are more directly on point. That Court has held that ignoring evidence that is critical to an issue in the case amounts to an error of law: Mifsud v Campbell (1991) 21 NSWLR 725. However, while a decision maker must consider all the evidence, it is not necessary to refer to all the evidence or to make findings about all of it: per Samuels J at 281.

14 Does failing to refer to this evidence constitute an error of law in this case? In relation to the evidence about FA’s expectations about who should pay for her nursing home accommodation, the Presiding Member made the following comment in the course of the hearing:

Ms Bailey: What we have here I think is a real expectation mismatch.

FA: Yeah.

Ms Bailey: We have a situation where expectations are just not marrying. It’s perhaps a very difficult situation for everybody concerned.

15 FA’s submission appears to be that she was justified in relying on a “promise” that had allegedly been made to her by her daughter and that reliance on that promise was evidence of her capacity to manage her affairs. The fact that the Tribunal did not mention the evidence about the promise was said to be an error of law.

16 We do not agree with this analysis. The Tribunal was well aware that FA continued to believe that her daughter and son-in-law should pay for her accommodation, even after it had been made clear to her that they were not prepared to do so. At the time of the Guardianship Tribunal hearing, FA was on notice that her daughter and son-in-law were no longer prepared to pay all her expenses. That was clear from conversations she had had with them, the fact that the accounts for her accommodation were sent to her and the fact that her son-in-law had applied to the Guardianship Tribunal. Any promise that the daughter and son-in law may have made had been withdrawn. Although counsel for FA suggested that the alleged promise gave rise to a promissory estoppel, he acknowledged that neither the Guardianship Tribunal nor the Appeal Panel has jurisdiction to decide that issue.

17 In our view, none of the evidence about promises that may have been made, supports FA’s submission that she was capable of managing her financial affairs. It was partly FA’s inability or unwillingness to accept that it is now her responsibility to pay for her accommodation that prompted the Tribunal to conclude that she did not have the capacity to manage her affairs. Similarly, the fact that FA had put a caveat on her property was not evidence, which was critical to her capacity to manage her financial affairs. Contrary to the representative’s submission, lodging a caveat, by itself, does not demonstrate that FA has a sophisticated capacity to manage her financial affairs. On the contrary, given the evidence about FA’s reasons for lodging the caveat, it may well have supported the opposite conclusion. Either way, the Tribunal’s failure to mention it in the reasons was not a critical matter. Finally, the evidence in the ACAT report is not critical to the issue because those assessments relate to the level of care a person needs if they can no longer live at home. They are not intended as an assessment of a person’s capacity to manage their financial affairs.

18 Our review of the evidence leads us to the conclusion that, even if the Tribunal took account of the evidence to which we have referred, there is no reason to think that the Tribunal’s finding was incorrect. On that basis, the Tribunal did not make an error of law by failing to refer to it.

Procedural fairness

19 Counsel for FA submitted that his client had been denied procedural fairness because she was not given a reasonable opportunity to respond to certain material that was before the Tribunal. That material comprised two letters from the son-in-law, dated 25 July 2007 and 27 September 2007 and the report from Dr Wood. The content of the hearing rule in Guardianship Tribunal cases was discussed in some detail in GM v Guardianship Tribunal & Ors; GM v Protective Commissioner & Ors [2003] NSWADTAP 59 (25 November 2003) and we adopt those principles in this case. In short, the general rule is that the Tribunal must give FA a reasonable opportunity to deal with adverse information that is credible, relevant and significant to the decision.

20 FA is legally blind. She was given a copy of the investigation officer’s report prior to the hearing and she said her son read it to her. She was not given the letters from the son-in-law or Dr Wood’s report. When the hearing started, the Presiding Member said, “Ideally you would have had the opportunity to look at those documents so what we’re going to do instead is to ask [the son-in-law] to outline the basis of his application orally so that you have the opportunity to hear it and also to respond to it.” The specific allegations that counsel for FA said were adverse to his client, and to which she was not given an opportunity to respond, were the opinions in Dr Wood’s report that she suffers from memory loss and confusion and that she was unsure which medications she was taking. FA was aware that a report had been obtained from Dr Wood because she wrote in her statement to the Tribunal that:

My daughter and her husband have insisted that I have an appointment with Dr Wood every three months. I believe that this is so that a local doctor will be able to certify my passing in the event of my sudden death.

. . .

21 In relation to medication, FA said in her statement that:

I obtain all my regular prescriptions from Dr Silver. I was born with a triple heart murmur. In approximately 1993 I developed rheumatic fever, which could not be treated with anaesthetic because of caution about my congenital murmur. Dr Silver prescribes for me blood thinning medication called “Lenoxin” and I am administered aspirin and macular vision medication. I am interested in natural health care and remedies. I take a fish oil supplements and executive B vitamins.

. . .

22 FA denied that she had dementia or paranoia.

23 Although not expressly on notice of Dr Wood’s opinions, FA addressed the substance of those views in her statement. In those circumstances, the fact that those matters were not put to her in the hearing does not constitute a breach of procedural fairness.

Conclusion

24 We have found no error of law and FA did not apply for leave for the appeal to be extended to the merits of the Tribunal’s decision. Once an Appeal Panel has determined the appeal it may make "such orders as it thinks appropriate in the light of its decision": ADT Act, section 118C(1). The Appeal Panel may affirm or set aside the original decision: ADT Act, section 118C(2)(a). The appropriate order in this case is to affirm the Guardianship Tribunal’s decision to make a financial management order and to appoint the Protective Commissioner as FA’s financial manager.