FVX
[2015] NSWCATGD 25
•6 October 2015
|
New South Wales |
Case Name: | FVX |
Medium Neutral Citation: | [2015] NSWCATGD 25 |
Hearing Date(s): | 6 October 2015 |
Date of Orders: | 6 October 2015 |
Decision Date: | 6 October 2015 |
Jurisdiction: | Guardianship Division |
Before: | J Kearney, Senior Member (Legal) |
Decision: | Request to review guardianship order refused. |
Catchwords: | GUARDIANSHIP – request to review guardianship order – participation by subject person in the hearing – ability of subject person to participate – best interests |
Legislation Cited: | Civil and Administrative Tribunal Act 2013 (NSW) |
Category: | Principal judgment |
Parties: | Mrs FVX (the subject person) |
Representation: | Legal Representatives |
File Number(s): | 56099 |
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)). |
REASONS FOR DECISION
WHAT THE TRIBUNAL DECIDED
The Tribunal refused the request to review the guardianship order pursuant to s 25A of the Guardianship Act 1987 (NSW).
AND
The Tribunal refused the request to review the financial management order pursuant to s 25O of the Guardianship Act.
Background/History
Mrs FVX is a 97-year old lady who lives at a nursing home in a suburb in the Inner West of Sydney. Mrs FVX has two sons, Mr KDX who lives at Inner West Sydney and Mr IPX who lives in Inner Southwest Sydney. Mr KDX was previously the carer for Mrs FVX.
On 6 June 2014 the Tribunal heard two applications for the appointment of a guardian for Mrs FVX, one from each of Mr KDX and Mr IPX. The Tribunal made a guardianship order appointing the public guardian for Mrs FVX for a period of 12 months with powers of accommodation and services. The Tribunal dismissed an application by Mr KDX for financial management.
On 2 September 2014 the Tribunal reviewed the guardianship order and renewed it for the term of the original order and varied it by adding coercive authorities to the accommodation function. A financial management order was made appointing NSW Trustee and Guardian as Mrs FVX’s financial manager. It dismissed the application by Mr KDX to review the guardianship order.
On 5 March 2015 the Tribunal dealt with a further application by Mr KDX for revocation of the financial management order (which was dismissed) and an application to review the guardianship order. The order appointing the public guardian as guardian was confirmed for a period of two years and the functions varied to include the powers over access, accommodation (to authorise others), and services.
The current applications were made by Mr KDX to revoke the financial management order made 2 September 2014 and to review the previous guardianship order made 5 March 2015.
The views of Mrs FVX
The views of Mrs FVX were not sought during the hearing.
The Tribunal accepted that Mrs FVX’s involvement would be unduly distressing for her, as was the case at previous Tribunal hearings.
(1)She participated in the Tribunal hearing on 6 June 2014 but her cognitive impairment at that time indicated she was incapable of making informed decisions about significant issues in her life.
(2)Mrs FVX did not participate in the Tribunal hearing on 2 September 2014. Tribunal staff reported that a few days prior, Mrs FVX was confused as to where she was and was not able to respond to questions.
(3)Mrs FVX attended the Tribunal hearing on 5 March 2015 but she was greatly distressed by the hearing and actually waited outside in the waiting area and did not participate.
(4)Mrs FVX’s views were sought by Tribunal staff just prior to the current application. Staff were informed by the CEO of the nursing home that Mrs FVX gets very confused and very upset. The CEO of the nursing home said that Mrs FVX was unable to communicate by phone and would be unable to participate in a hearing.
The Tribunal decided to hear and determine the applications in Mrs FVX's absence as it was considered in her best interests to do so because of the distress likely to be caused to her by the Tribunal proceedings and her inability to participate meaningfully.
Interlocutory
Mr KDX sought leave to be legally represented. The Tribunal decided to deal with the issue of legal representation at the outset.
A party may be represented by another person only by leave of the Tribunal (s 45(1) Civil and Administrative Tribunal Act 2013 (NSW)). The Tribunal may grant or refuse leave at its discretion (s 45(3)).
Mr KDX provided a statement dated 1 October setting out the reasons for seeking legal representation that included:
(a)He was not confident to present his case at the hearing; and
(b)The proceedings were important for himself and his mother because he believes that it is in his mother’s best interests and care that she be returned to her own home to be cared by him with assistance.
Also present at the hearing were a solicitor and a barrister. The barrister indicated to the Tribunal that if leave were granted he could assist the Tribunal in its procedure and deliberations of the matter.
The Tribunal considered these issues and the history of the matter. The Tribunal accepted the proceedings were important for Mr KDX and that the Tribunal was likely to be assisted by Counsel if leave were granted.
The Tribunal decided to grant leave for Mr KDX to be legally represented by the solicitor and to allow her to instruct the barrister.
Threshold Issue
At the start of the hearing the Tribunal invited Mr KDX’s representative to address it on a threshold question, namely whether the applications for review of the guardianship order and to revoke the financial management order disclosed sufficient grounds to warrant a review (refer ss 25A and 25O of the Guardianship Act).
These will be dealt with separately.
Application to review the guardianship order made 5 March 2015
Mr KDX’s representatives conceded that the application itself did not disclose any grounds for a review. The barrister argued that the grounds might become apparent if an adjournment were granted with directions for a medical assessment of Mrs FVX by a doctor of Mr KDX’s choice. The purpose of this medical examination, it was stated, would be to determine the best option for Mrs FVX’s future care given that Mr KDX wants to care for her himself on a full time basis and live in with her in her home to do that.
Mr IPX, opposed the application by his brother saying his mother’s welfare was best advanced by maintaining the appointment of the Public Guardian.
The Tribunal decided that if Mr KDX wished to have his mother medically examined then that was a matter to be arranged with her guardian and not a matter for the Tribunal. Further, even if a medical examination occurred;
(1)it would not necessarily provide grounds for a review, and
(2)because it was in the future, it did not provide any grounds to the current application.
The Tribunal decided, after hearing argument from the applicant’s representative, that there were no additional grounds for review than were disclosed in the application. The Tribunal found the application disclosed no grounds for review at all.
Pursuant to s 25A the Tribunal was satisfied that the application did not disclose grounds that warrant a review and the Tribunal refused to review the guardianship order made 5 March 2015.
Financial management order made 2 September 2014
The Tribunal invited Mr KDX’s representatives to address it on the question of whether grounds existed to warrant review of the financial management order (which includes revocation or variation).
The Tribunal allowed the Applicant to tender in evidence a statement of himself, Mr KDX, dated 2 October 2015. Further, the barrister had prepared written submissions for the assistance of the Tribunal on this question.
Mr IPX, opposed the application by his brother. He said his mother’s affairs should remain with management of NSW Trustee and Guardian.
In the statement of 2 October 2015 Mr KDX
(1)once again states his intention that if the guardianship orders were made in his favour he intended to move his mother from the present residential care into her own home in Inner West Sydney where he would care for her, with assistance.
(2)outlines the history of his previous (that is before the present financial management order) informal and successful management of his mother’s affairs over many years.
(3)says that it would be to his mother’s advantage for him to be the financial manager because he has more knowledge than anyone else about how his mother preferred her money to be managed.
(4)says that his mother is capable of understanding her assets and is capable of understanding financial matters when he explains it to her.
It is not the role of the Tribunal to decide the type or nature of accommodation that is appropriate for Mrs FVX. The Public Guardian has decided that she is best cared for in 24-hour care in an aged care facility. Mr KDX opposed that in September 2014. His strong views then expressed were repeated in the current application.
The written submissions were critical of the previous reasons given on 5 March 2015. They placed weight upon a letter from Mrs FVX’s accountant indicating Mr KDX looked after his mother’s affairs efficiently. They further submitted that in a Will executed by Mrs FVX in 2012, she appointed Mr KDX sole executor and beneficiary of her estate, thus demonstrating an intention on her part for Mr KDX to administer her affairs after her death. Thus, the submissions argue he was a person his mother trusted with her affairs.
There was no suggestion that Mrs FVX had recovered her capacity to manage her own affairs. Thus, if the current application to revoke the financial management order is to succeed, it must be on the basis that it is in the “best interests” of the protected person that the financial management order be revoked – refer s 25P(2) Guardianship Act. On the threshold issue, the Tribunal is interested to identify any grounds going to that ultimate issue.
The Tribunal considered all of the above and accepted that:
(a)the application itself disclosed no grounds for the review.
(b)the statement of Mr KDX dated 2 October 2015 did not disclose any grounds that warrant a review. It was, if anything, confirmatory of the reasons for the appointment of the NSW Trustee and Guardian as financial manager in September 2014. That is because part of those reasons were that Mr KDX lacked insight into his mother’s needs and suggested that he would not be objective in regards to his mother’s accommodation needs. The statement of 2 October showed he maintained that fixed view that her needs can only be satisfied by being returned to his care in her own home.
(c)the only expressed advantage to Mrs FVX of the proposed change of financial manager was the allegation that Mr KDX knew his mother’s preferences in money management.
(d)the material provided was lacking any substantive detail as to how his mother’s welfare might be promoted by his management of her affairs.
(e)Mr KDX’s statement did not address the Tribunal’s concerns expressed in its Reasons for Decision on 2 September 2014, that if he remained financial manager, there was a risk he would refuse to use his mother’s money to pay for her accommodation in a aged care facility (because of his fixed views about caring for her at home).
(f)the evidence disclosed no real change from the circumstances that existed at the time when the financial management order was made.
In weighing up the question as to whether the application disclosed grounds that warrant a review, the Tribunal also took account of the following facts:
(1)The previous financial management order was made only one year ago, and
(2)An application by Mr KDX to revoke it had been dismissed only six months ago.
Indeed, a prior review of the financial management order can constitute a separate ground to refuse to review the financial management order – see s 25O(b). However, this aspect was not argued at the hearing and is not a reason to refuse the current review.
The Tribunal did not accept that the assertion that Mrs FVX would be advantaged by the proposed change of financial manager, provided grounds for a review.
Taking account of all of the above matters the Tribunal decided, pursuant to s 25O, that the current application for revocation of the financial management order made 2 September 2015 did not disclose grounds that warranted a review.
Accordingly, the application for revocation of the financial management order made 2 September 2015, is dismissed.
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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
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