FKT

[2020] NSWCATGD 96

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FKT [2020] NSWCATGD 96

Hearing dates:

18 June 2020

Date of orders:

18 June 2020

Decision date:

18 June 2020

Jurisdiction:

Guardianship Division

Before:

K Ransome, Senior Member (Legal)
Dr L Tong AM, Senior Member (Professional)
S Bullock, General Member (Community)

Decision:

In relation to the enduring guardian appointment made by FKT on 27 November 2018 appointing WBT, NST and LNT the Tribunal orders, directs or declares:

The appointment of WBT, NST and LNT as an enduring guardian is revoked.

The application for review is treated as if it were an application under the Guardianship Act 1987 (NSW) for a guardianship order for FKT.

1. A guardianship order is made for FKT.

2. The Public Guardian is appointed guardian separately to the private guardians NST of [Address removed for publication.] and WBT of [Address removed for publication.] who are appointed jointly.

3. This is a continuing guardianship order for a period of 12 months from 18 June 2020.

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

FUNCTION: The Public Guardian

5. The Public Guardian has the following function:

a) Access

To decide what access FKT has to others and the conditions of access.

FUNCTIONS: NST and WBT

6. NST and WBT have the following functions:

a) Accommodation

To decide where FKT may reside.

b) Health care

To decide what health care FKT may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to FKT.

CONDITION:

7. The condition of this order is:

a) Standard Condition

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

Catchwords:

REVIEW OF ENDURING GUARDIANSHIP – application to review an enduring guardianship appointment – family conflict resulting in loss of contact between subject person and family members – joint enduring guardianship unworkable – enduring guardianship appointment revoked – decision to treat the application to review an enduring guardianship appointment as an application for a guardianship order.

GUARDIANSHIP – practicability of services being provided without an order – ongoing family conflict impedes informal decision-making – need for decisions to be made in relation to access, services, accommodation, health care and consent to medical treatment – suitability of proposed guardian – need for independent decision-maker in relation to access decisions – private guardians appointed jointly with the Public Guardian – order made.

Legislation Cited:

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

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

003: Review of an Enduring Guardianship Appointment

FKT (the person)
WBT (applicant, enduring guardian)
NST (applicant, enduring guardian)
LNT (enduring guardian)
NSW Trustee and Guardian
Public Guardian

Representation:

Nil

File Number(s):

NCAT 2019/00205655

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

1. FKT is an 89-year-old woman who lives with her daughter WBT in regional NSW. She is reported to be legally blind and to have dementia.

2. FKT has seven children: QZT, HYT, WBT, LNT, SAC, NST and EBT. On 27 November 2018 she executed an enduring power of attorney and an appointment of enduring guardianship. WBT, LNT and NST were appointed jointly and severally as her attorneys. Her husband, SCT, was appointed as FKT’s enduring guardian and WBT, LNT and NST were appointed as replacement guardians. SCT passed away in May 2019 and WBT, LNT and NST became FKT’s enduring guardians. On 28 June 2019 FKT revoked the 27 November 2018 appointment of LNT as her attorney.

3. Applications were made to the Tribunal to review these appointments. On 28 November 2019 the Tribunal reviewed the enduring power of attorney and added QZT to act as attorney with WBT and NST jointly and severally. LNT had told the Tribunal she no longer wished to be involved in the management of her mother’s financial affairs. Due to time constraints the application to review the enduring guardianship appointment was adjourned to a later date. This was the hearing of that application in which WBT and NST sought to remove LNT as a guardian.

The hearing

4. At the end of these Reasons for Decision is a list of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

What did the Tribunal have to decide?

5. On reviewing an appointment of enduring guardian document, the Tribunal may:

1. revoke the appointment; or

2. confirm the appointment with or without varying the functions of the guardian.

6. The Tribunal may only revoke the appointment on request of the enduring guardian or if revocation is in the best interests of the person who made the appointment.

7. If the Tribunal revokes the appointment, it may consider making a guardianship order.

8. In considering whether to make a guardianship order, the Tribunal needs to consider:

1. Is the subject person 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?

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?

9. In this application WBT and NST were asking the Tribunal to remove LNT as a guardian and to appoint their brother QZT in her stead. In our view the legislation only enables us to revoke the appointment of enduring guardianship in its entirety rather than just revoking the appointment of a particular person who does not want to be removed from that role. In any event, in correspondence to the Tribunal QZT indicated that he does not wish to be appointed as enduring guardian.

Should the Tribunal revoke or confirm the appointment of enduring guardianship?

10. The Tribunal does not take the decision to revoke an appointment of enduring guardianship lightly as the instrument expresses the wishes of the person who made the appointment. However, we came to the view that it was in FKT’s best interests that the appointment be revoked.

11. It is apparent that there is a great deal of discord within the family which predates the death of the children’s father, SCT. There now appear to be two camps among the children with one aligned with WBT and NST and the other with LNT. There is a significant level of distrust between WBT and NST on the one hand and LNT on the other as evidenced by the material filed with the Tribunal and allegations made, particularly in relation to matters concerning FKT’s finances. We note that these allegations were not found to be substantiated in the previous Tribunal proceedings. Nevertheless, each side is still suspicious of the other and this has led to a significant lack of communication between the guardians (and other members of the family) in relation to FKT’s care needs.

12. In relation to FKT’s care, the appointed guardians are unable to agree on fundamental matters relating to the care of FKT. WBT wishes to keep her mother at home for as long as it is possible to do so, a course with which NST agrees. LNT is adamant that her mother needs to be accommodated and cared for in a nursing home environment and has some support from other family members for this course. WBT wants FKT to have a new General Practitioner closer to her home in regional NSW who will do home visits, while LNT wants FKT to remain a patient of Dr Z in another suburb in regional NSW who has been her doctor for some years. We were told that each takes steps in regard to FKT’s care without consulting or informing the other.

13. One of the central issues arising out of the animosity between the guardians is that there is now extremely limited contact between LNT and some other members of the family and FKT. The situation has been exacerbated by the COVID-19 pandemic, but predates the pandemic and is ongoing. WBT indicated at the hearing that arrangements could be put in place to permit face-to-face contact between FKT and all her children and grandchildren. However, those arrangements would be somewhat circumscribed and would be made more difficult as FKT’s already limited mobility declines further. For her part, LNT is antagonistic towards the level of control exerted by WBT in relation to access to her mother but, along with her sister SAC, expresses a keen desire to have ongoing contact with her. We note that some arrangements have been in place for contact via Skype during the pandemic but some members of the family have not availed themselves of that opportunity. We were also told that it is very difficult to contact FKT by telephone.

14. There is evidence in the material provided to the Tribunal that FKT has been distressed by the deterioration in the relationships between her children and we were advised that she misses her family. It is clearly in her interests, at this stage in her life, for her to have contact with and the ongoing support of her broader family. In light of the poor relationship between the appointed guardians which has impacted upon other members of the family, we saw it as appropriate that the issue of contact between FKT and those members of the family seen to be aligned with LNT be resolved under a guardianship order.

15. As noted above, the Tribunal treads cautiously in overriding a person’s wishes as expressed in the appointment of an enduring guardian. There was no suggestion that at the time she made the appointment in 2018 FKT lacked the capacity to do so. Events have occurred since that time, however, which would indicate that her intentions as expressed in the appointment are not being acted upon. Her appointed guardians agreed that they could not all work together to fulfil their role under the appointment.

16. We were satisfied that the appointment made by FKT is not operating effectively and that it would be in her best interests to revoke the appointment. In view of the competing views within the family about life decisions which need to be made for FKT, we decided to exercise our power to proceed as if an application for a guardianship order had been made.

Guardianship application

17. The matters which must be considered by the Tribunal when deciding whether a guardian should be appointed are set out above.

Is FKT 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?

18. The most recent evidence before us from a medical professional was a report dated 20 August 2019 from Dr Z, General Practitioner. He stated that FKT has a diagnosis of dementia and a range of other medical conditions and noted that she was experiencing delusions about her late husband who died in May 2019 believing him still to be alive. In his opinion FKT does not have capacity to make informed decisions for herself.

19. None of the persons who attended the hearing cavilled with Dr Z’s opinion as expressed in that report. The evidence before us provided by members of the family is that FKT’s physical health and cognition have declined considerably in recent times. FKT now has a serious problem with her leg due to poor circulation which is significantly affecting her mobility. According to WBT, the specialist has said surgery is not appropriate because of the associated risks at FKT’s age. FKT has also become increasingly confused and sometimes suffers from hallucinations.

20. FKT attended the hearing but was able to contribute little and it was unclear whether she understood the nature of the proceedings. We accepted the evidence that FKT has a disability that has resulted in a significant decline in her functioning and that she is unable to independently meet her day-to-day personal needs being restricted in her major life activities to such an extent that she requires supervision and assistance and is thereby incapable of managing her own person. We were therefore satisfied that a guardianship order could be made for FKT.

Should the Tribunal make a guardianship order?

21. When exercising our discretion to make a guardianship order we needed to consider the views of FKT and those of her children. We were also required to consider the importance of preserving FKT’s existing family relationships and her particular cultural and linguistic environments along with the practicability of services being provided to her without the need for the making an order: Guardianship Act 1987 (NSW) (“the Act”), s 14(2).

22. The matters in s 14(2) of the Act have no hierarchy or weighting and each is a mandatory consideration. However, we must undertake a balancing exercise in our consideration of the matters in s 14(2) of the Act. When undertaking this task we may be guided by the principles that are set out in s 4 of the Act.

23. We accepted that there are decisions that are required to be made in relation to FKT’s accommodation and her ongoing health and medical care. Her physical health and mobility are declining as is her cognition and there is also a clear need for further services to be provided to her. FKT had a My Aged Care assessment in 2018 which provided for respite care, permanent care and homecare. The homecare package was not utilised but we note that there some arrangements are now in train which will allow her to receive further assistance if she remains living at home.

24. We considered whether decisions may be able to be made informally for FKT. However, the nature and level of dispute and distrust within the family would impede any such informal decision-making. An appointed guardian, however, would have the requisite authority to make decisions that are in FKT’s best interests. We also considered that the appointment of a guardian would assist in enabling FKT to maintain contact with all her family members.

25. Having carefully considered the matters in s 14(2) of the Act and guided by the principles set out in s 4 of that Act, we were satisfied that it was appropriate for a guardianship order to be made. We decided the appointed guardian should have the functions of accommodation, access, health care, medical and dental treatment and services.

Who should be the guardian and for how long?

26. Section 15(3) of the 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”.

27. We have to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she 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.

28. In deciding whether a person is able to undertake the role of guardian, we 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 Act.

29. FKT said to us at the hearing that she is comfortable living with WBT and has everything that she needs. She also indicated she wants WBT and NST to be the people who make decisions on her behalf. From the evidence that we have received we understand that WBT, supported by her husband and son and NST, provide significant 24-hour care for FKT. WBT and her husband have made modifications to their home to provide better access for FKT. LNT has different views to those of WBT and NST about her mother’s care needs and what steps need to be taken. However, no independent evidence was put before us at the hearing which would indicate that FKT’s care has been compromised or that she has been provided with sub optimal care to date.

30. WBT told us she wants to keep caring for her mother and is taking steps to activate the My Aged Care homecare package and respite care. WBT said that FKT still has some cognitive capacity and has repeatedly requested that she does not want to move to a nursing home at this point in time. Both she and NST indicated that if and when FKT’s care needs change and alternative arrangements are required, they are prepared to make those decisions on her behalf.

31. LNT expressed the view that the number of people able to make decisions on FKT’s behalf should be increased from three to four so conflict could be avoided. She also intimated that the Public Guardian could be appointed. We did not consider that increasing the number of decision makers from three to four family members would reduce the current level of conflict. Indeed in the current circumstances, it would be likely that the conflict would be increased or remain the same.

32. We were satisfied that WBT is a dedicated and competent carer and that, in conjunction with NST, has sought to make FKT’s day-to-day life is comfortable as it can be given her declining condition. We were satisfied that they are suitable persons to perform the role of guardian in relation to accommodation, health, medical and dental consent and services decisions.

33. In one area we decided to appoint the Public Guardian. Given the level of distrust and conflict between WBT and NST and some other members of the family, we did not consider that they would be able to adequately support FKT’s right and desire to have sustained contact with all of her family members. We therefore appointed the Public Guardian in relation to this issue.

34. An initial guardianship order can be made for a period of up to one year from the date on which it was made. We decided that the appointment should be for 12 months and at the end of that time the Tribunal will review the order, and the need for it.

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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: 03 May 2022