FX v NSW Trustee and Guardian

[2012] NSWADT 184

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	FX v NSW Trustee and Guardian and anor [2012] NSWADT 184
Hearing dates:	30 March 2012, 31 July 2012 and 14 August 2012
Decision date:	05 September 2012
Jurisdiction:	General Division
Before:	P H Molony, Judicial Member
Decision:	The decisions under review are affirmed.
Catchwords:	Guardianship -access to protected person NSW Trustee and Guardian - sale of home
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 NSW Trustee and Guardian Act 2009
Cases Cited:	Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 FW and FX v Protective Commissioner [2009] NSWADT 36 FX v NSW Trustee and Guardian (GD) [2009] NSWADTAP 61 FX v NSW Trustee and Guardian (External) [2011] NSWADTAP 5 FX v NSW Trustee and Guardian (External) [2011] NSWADTAP 31 K v K [2000] NSWSC 1052
Category:	Principal judgment
Parties:	FX (Applicant) NSW Trustee and Guardian (Respondent in 123022) The Public Guardian (Respondent in 123121)
Representation:	FX (Applicant, in person) D French (Respondent)
File Number(s):	123022 and 123121
Publication restriction:	Section 126 Administrative Decisions Tribunal Act 1997

REASONS FOR DECISION

Introduction

1. FW is an 83 old woman who has been a high care, permanent resident of a nursing home in a country NSW since February 2011. She is reported to have moderate to severe dementia, to be doubly incontinent, and to be reliant on others for her care. She suffers from heart disease, stress and anxiety. She is recovering from colorectal cancer. According to her son, FX, FW was first diagnosed with dementia in 1994.

1. FX cared for FW for some years prior to her admissions to care in August 2010. FW also has a daughter, OS. FX and his sister are estranged. According to FX, FW is also estranged from her daughter. There has been Supreme Court litigation involving all three of them concerning the estate of FW's late husband and the provisions made for her.

1. On 1 August 2001 the Guardianship Tribunal made an interim financial management order for FW, and committed the management of her estate to the Protective Commissioner (now the NSW Trustee and Guardian). A final financial management order appointing the Protective Commissioner was made on 17 April 2002.

1. Since 2010 there have been a series of proceedings in the Guardianship Tribunal, this Tribunal, and the Court of Appeal concerning FW's welfare and estate.

1. On 21 May 2010 the Guardianship Tribunal dismissed FX's application to review the financial management order relating to his mother, and confirmed to appointment of the NSW Trustee and Guardian as her financial manager.

1. On 16 November 2012 the Guardianship Tribunal made a temporary guardianship order appointing the Public Guardian as FW's guardian for one month with the functions of accommodation (including coercive powers), health care, medical and dental consents and services. OS made that application. The temporary order was made following FX removing his mother from a respite facility, in circumstances where he had previously said he had no intention of doing so, without first seeking advice from and consulting the facilities manager. His explanation was that the facility had failed to provide appropriate care for his mother, despite his request that they do so.

1. The Guardianship Tribunal was satisfied that FX did not consult the manager and had always intended to remove his mother from the faculty for the purposes of an upcoming court hearing. The Tribunal expressed concern that FX did not appreciate his mother's care needs, and was unable to provide the care she needed. As a result, it made the temporary guardianship order and appointed a separate representative for FW.

1. A consequence of the order was that FX's appointment as his mothers enduring guardian, by an instrument dated 15 October 2010, was suspended during the operation of the Tribunal's order: s 61 Guardianship Act 1987. it remains suspended.

1. On 14 December 2010 the Guardianship Tribunal reviewed that order and made a 6 week continuing guardianship order appointing the Public Guardian as FW's guardian with the functions of accommodation (including the powers to call on assistance), health care, medical and dental consents and services. At the same time OS was joined as party to the guardianship proceedings.

1. A reading of the reasons for that decision reveals that -

• The Member of the Guardianship Tribunal hearing the matter heard FX instruct FW to tell a support officer that she (FW) did not wish to take part in the hearing.
• FW's appointed separate representative told the Tribunal that she was "unable to make a meaningful decision of her own."
• Both FX and FW wanted her to return to live in her own home and be cared for by FX.
• At the end of the hearing FX announced his intention to appeal the decision, and said he would contact his MP to a arrange a full Ministerial Inquiry and would "immediately remove his mother..."

1. On 19 January 2011 the Guardianship Tribunal reviewed that order and made a 12 month continuing guardianship order appointing the Public Guardian as FW's guardian with the functions of accommodation (including the powers to call on assistance), health care, medical and dental consents, services and access. When making that order the Tribunal noted FX supported the appointment of a guardian for his mother, with each of those functions, but argued that he should be appointed to fulfil that role. In appointing the Public Guardian the Tribunal expressly made no adverse finding against FX.

1. On 20 March 2012 the Guardianship Tribunal reviewed that order and made a 12-month continuing guardianship order appointing the Public Guardian as FW's guardian for one month with the functions of accommodation (including powers to call on assistance), health care, medical and dental consents, services and access. A reading of the reasons for that decision reveals that -

• There was evidence before the Tribunal from senior staff of the nursing home of the need for a continuing assess function "in the light of difficulties which the facility had in dealing with antagonistic which had arisen on one or two occasions when FX had attended the facility."
• The Public Guardian supported the continuation of the access function "in the light of several statements made to the Public Guardian by FX to the effect that he intended to take his mother from the facility" without the guardian's permission.
• FX while agreeing with the appointment of a guardian for his mother "because her dementia was likely to become worse' told the Tribunal that she was presently able to make lifestyle decisions for herself, provided that time and patience were exercised in explaining things to her.
• The Tribunal found that FX was not a suitable person to be appointed as his mother's guardian for a number of reasons. One of these was that -

Although it is clear that FX cares deeply for this (sic) mother and that she also fells strongly for her son, the Tribunal unfortunately is not satisfied that FX has sufficient insight into his mother's care needs to be suitable for appointment as her guardian, or that such appointment would be in her best interest.

1. In this Tribunal FX has -

• Unsuccessfully, at first instance, sought to review a decision of the NSW Trustee and Guardian to wind up a sole trader business of his mother's: FW and FX v Protective Commissioner [2009] NSWADT 36.
• Successfully appealed that decision to an Appeal Panel, with the result that the decision to wind up the business was set aside: FX v NSW Trustee and Guardian (GD) [2009] NSWADTAP 61.
• Sought to appeal the decision of the Guardianship Tribunal made in May 2010 to dismiss his application to revoke the financial management order. That appeal was made out of time and an extension of time was refused: FX v NSW Trustee and Guardian (External) [2011] NSWADTAP 5.
• Unsuccessfully appealed the guardianship order made by the Guardianship Tribunal on 19 May 2011 to an Appeal Panel of this Tribunal: FX v NSW Trustee and Guardian (External) [2011] NSWADTAP 31

1. FX subsequently sought to appeal the decision of that Appeal Panel to the Court of Appeal. It is agreed that his appeal was dismissed in August 2012 on the basis that it had no utility, as the order appealed again had been supplanted by the subsequent guardianship order made by the Guardianship Tribunal.

The present applications before the Tribunal

1. These reasons relate to two review applications made by FX.

1. The first application, on Tribunal file 123022, was filed on 24 January 2012 and sought to review a decision made on internal review on 18 November 2011 to sell FW's mother's home. This matter was originally listed for hearing before me on 30 March 2012. It was adjourned part heard, to enable FX to obtain evidence in response to a social work assessment report prepared by Ms Verender, that was tendered during the hearing. FX subsequently sought and was given extra time to obtain such evidence.

1. That application was originally listed together with an application made by FW, on Tribunal file 123023, seeking to review the decision to sell her home. At the commencement of the hearing I spoke with [FW] (who was with FX at the nursing home) by phone. She told me that she wanted her son to inherit her home and therefore did not want it sold. She was unable to tell me what property she owned. She did not know anything about her income or expenses. I indicated that I was not satisfied that the she could present a properly considered opinion, that had regard to her financial circumstances and needs as well as her wishes. I said that her wishes were a matter the Tribunal was required to take into account.

1. As a consequence of FW's apparent lack of understanding, and having regard to the history of her guardianship and financial management, I indicated that if she wished to proceed with her application to the Tribunal I would appoint a guardian ad litem for her under s 71(4A)(b) of the Administrative Decisions Tribunal Act 1997. This led to some discussion between the parties that resulted in them agreeing that FX's application should proceed, with FW's application to be withdrawn. It was subsequently withdrawn in writing.

1. FX's second application, on Tribunal file 123121, was filed on 13 May 2012 and sought to review an access decision by the Public Guardian which required FX's contact with his mother to take place within the ground of the aged care facility, and required that -

Visits should occur within a communal area of the facility, such as the lounge or dining room, in order to promote [FW's] wellbeing.

1. When FX's first application was listed for further hearing on 31 July 2012 his second application was before the Tribunal, but not listed to be heard at the same time. Mr French was appearing for the respondents in both matters. Following discussions it was agreed that, while the issues in the two applications were different, much of the evidence to be relied on, especially from FX, was the same. It was agreed that it would be sensible and more efficient for the two matters to be heard together.

1. An order was made to that effect, and the two applications were heard together on 14 August 2012. A day was allocated to complete both matters. The hearing was scheduled to commence at 10-00am.

1. In his submission dated 8 August 2012 FX sought to have the commencement delayed till 2-30pm in the afternoon because he had "an appointment ...". I refused that application, as a day was required for the hearing. The day before hearing FX sent a fax to the Tribunal advising that he had a medical appointment and would not be available to participate in the hearing by phone until 11-00am.

1. When the hearing commenced at 10-00am I showed the letter to Mr French and stood the matter down until 11am. Shortly before 11 o'clock, FX contacted the Tribunal's Registry and advised he would not be available to 11-15am. I determined that FX had received more than due consideration and commenced the hearing. I asked Mr French to first address the issue of the sale of the home.

1. Shortly after we commenced FX rang in. From then on he participated in the hearing by phone. I briefly outlined to him the submissions Mr French had made before he joined the hearing.

Concerning other issues

1. A noteworthy feature of the hearing was that FX sought to use the hearing to ventilate a significant number of issue that were irrelevant, or only peripherally relevant, to the issues to be determined. Among these were:

• A series of alleged issues concerning the management of his mother's estate by the NSW Trustee and Guardian, including failures to obtain what was due to his mother from his father's estate; the failure to apply for the Exceptional Circumstances Exit Package 2007; the failure to register her with Centrelink for the Pension Bonus Scheme, and the failure to pay the rates on her home when due.
• Issues concerning his mother's capacity to make her own lifestyle decisions; the procedures followed by the Guardianship Tribunal. and the correctness of its determinations; and, the issue of whether FW should live at home with him or in a aged care facilities.

1. Throughout the hearing I repeatedly told FX that the issues for the Tribunal to determine were whether the decision to sell his mother's home and the decision to limit his access were the correct and preferable decisions. At times FX appeared to understand this, at others he did not. For example, when asked what decision he said should be made regarding his mother's home, he said that management decision relating to his mother's affairs should be given to a Centrelink FIS (Financial Information Service) officer.

Written material before the Tribunal

1. FX relied on a large volume of material. These are described below. While relevant to some of the issues FX sought to agitate during the hearing, many of the documents were either irrelevant to or of only peripheral relevance to the issues to be determined by me. I have marked with an asterixis those I considered to be irrelevant. A number of other documents - particular those associated with his mother's past health - are so old as to be only of historical interest in understanding how she has reached her present condition. These I have marked "‡"

1. I considered the following written material submitted by + -

(1)   FX's application to the Tribunal to review the decision of the NSW Trustee and Guardian to sell his mother's home. To this was attached:

(a)   Letter from the NSW Trustee and Guardian dated 18 November 2011 acknowledging receipt of FX's request for internal review.

(b)   Copy decision made on internal review to confirm the decision to sell his mother's home.

(c)   Copy letter dated 16 June 2011 from FX to the NSW Trustee and Guardian seeing out the reasons why he opposed the sale of his mother's home and asking a series of question in relation to the NSW Trustee and Guardian's management of his mother's estate.

(d)   Copy letter dated 20 October 2011 from FX to the NSWTG requesting an internal review and responding to the decision to sell.

(e)   Copy letter dated 18 November 2011 from FX to the NSWTG rasing further question in relation to the decision to sell the property.

(f)   * Copy letter of advice from Turner Freeman, Lawyers to FX dated 13 October 2010 concerning the estate of FW's late husband.

(g)   * Copy, undated, Supreme Court orders made in proceedings between FX and his mother as Plaintiff, and his sister as Defendant.

(h)   * Copy letter to FX dated 30 November 2012 from the NSW Trustee and Guardian

(i)   * Copy of FX's response to that letter dated 30 November 2011 raising issues of alleged mismanagement by the NSW Trustee and Guardian.

(j)   * Copy letter dated 6 May 2004 from Kevin Byrnes, Solicitor to E H Tebbutt & Son re the estate of FW's husband. FX has annotated this letter.

(k)   * Copy letter dated 2 June 2004 from Byrnes Lawyers to the Legal Services Commissioner re the estate of FW's husband.

(2)   FX's application to the Tribunal to review the decision of the Public Guardian requiring that he have access to his mother at the aged care facility, with visits occur in the communal areas of the facility. A copy of the decision was attached.

(3)   Submissions dated 7 August 2012 to which were attached the following documents:

(a)   * Email dated 24 July 2012 re "[FX] Guardianship Order Review" from the Electoral Office Dubbo to the Electoral Office Dubbo.

(b)   * Copy letter from the Director Community Relation, Department of Attorney General and Justice to the member for Dubbo dated 19 July 2012.

(c)   Letter to FX fated 10 January 2011 from the Aged Care Complaints Investigation Scheme regarding complaints he had made regarding his mother's medical care at previous aged care facility.

(d)   Letter to FX fated 10 July 2012 from the Aged Care Complaints Investigation Scheme regarding complaints he had made regarding his mother's care at the aged care facility.

(e)   ‡ Copy letter from Dr Henry Liu to Dr Sivaramamoorthy dated 16 October 2010 recommending the removal of a loose corneal suture from her left eye "perhaps under general anaesthetic."

(f)   ‡ Copy application to the Public Guardian for consent to carry out medical treatment - the removal of left corneal sutures under general anaesthetic - signed by Dr F C Chong on 16 December 2011.

(g)   Copy of page 1 of a letter from the Clarinda Street Practice to the Parkes Hospital dated 11 November 2011 requesting a blood transfusion for FW to treat her anaemia.

(h)   Copy report from Dr William Thoo, Staff Specialist, Geriatric medicine, Concord hospital dated 21 January 2011 assessing FW.

(i)   Copy letter from Dr Sivaramamoorthy to the Guardianship Tribunal dated 1 November 2010 containing a short assessment of +.

(j)   ‡ Copy letter from Dr Abadier, Peal Hill Medical Centre addressed "To whom it may concern" and dated 16 April 2008 concerning +'s condition and FX's care for her.

(k)   Home Care Plan Proposal dated 22 November 2011 prepared by FX and addressed to the Public Guardian.

(l)   Copy letter from FX to Ms Ceri Adams, Office of the Public Guardian confirming home care plan is based on FW living in Peak Hill

(m)   Copy testimonial for FX written by Father Graham Gaul dated August 2012.

(n)   Copy letter from Mrs R Harris dated 6 August 2012 addressed "To whom it may concern."

(o)   Copy letter from FW's nephew dated 6 August 2012 addressed "To whom it may concern."

(p)   Copy letter dated 16 May 2011 from Cathy White, Family Mental Health Support Worker dated 16 May 2011.

(q)   Copy letter, undated, from Margaret Stone a voluntary worker at the aged care facility.

(r)   Copy letter from Mrs T Apps dated 7 May 2012 addressed "To whom it may concern," principally addressing events that occurred at the Guardianship Tribunal hearing in March 2012.

(s)   Copy Centrelink Brochure regarding its Financial Information Service.

(t)   A one-page document (apparently from the Office of the Public Guardian) concerning medical consents for FW in 2011.

(4)   Submissions made 8 August 2012 to which were attached the following documents:

(a)   ‡ Report of Dr Keith Fleming, Consultant Physician, Geriatric Medicine dated 5 July 2001.

(b)   Copy letter from Sue Ellen Sharkey dated 23 August 2010 addressed "To whom it may concern."

(c)   ‡ Handwritten letter dated 20 September 2010 from Dr V Barden, Psychiatrist concerning FX's mental health.

(d)   ‡ Notice from Local Council regarding outstanding rates on the Peak Hill home ($7,212.99) dated 21 November 2006.

1. The respondents relied on their s 58 documents and tendered the social work report of Ms Verender.

FW's financial position

1. The section 58 documents reveal that FW has the following assets:

• Her home in a NSW country town. This is valued at $75,000.00 and could be rented for $130.00 to $135.00 per week. FX presently lives in the house and does not pay rent.
• A nearby farm property that she owns jointly, as tenants in common, with FX on which is conducted a farming business in her name only. In the past 12 months she has received income of $6,236.00 from this business. FX told me that the property is share farmed for crops (although the sharefarmer has just quit) and that he runs stock on it for his mother. In drought, he provides Lucerne as stock feed form a property of his own without charge.

• Cash of some $46,715.70 as of 30 June 2011.
• NSW Trustee and Guardian Trust Account balance of $20,000 as of 30 June 2011.

1. According to the NSW Trustee and Guardian FW had total assets as of 30 June 2011 of $359,000.00.

1. FW is not in receipt of any Centrelink or other pension. As a consequence her only income is that derived from the farm business and from interest earned.

1. FW's annual living expenses, including nursing home fees, are approximately $30,000.00 per year.

1. It is obvious that FW's income is insufficient to meet her expenses. As a result her liquid (cash) assets are being depleted, and will shortly be exhausted. It is unfortunate that the NSW Trustee and Guardian did not provide the Tribunal with up to date figures with respect to FW's cash position, but I accept it is tenuous.

The decision to sell

1. The decision to sell the home was made on the basis that FW needs to liquidate an asset in order to meet her ongoing expenses. Because it is highly unlikely that she will return home, and as she will continue to need residential care, provision has to be made for payment of her ongoing expenses.

1. At the time the decision was made no funds had been received from the farms business, The internal review noted that -

Lack of provision of information regarding the Sole Trader Business including tax returns has disadvantaged [FW]. Centrelink will not assess [FW] for eligibility for an age pension or change her status as anon supported resident until they receive confirmation of the business income and financial status. Consequently [FW] is being financially disadvantaged as much as she is not receiving any benefit she may be entitled to following disclosure of the business income and assets to Centrelink.

1. The internal review noted that the decision to sell was supported by FW's daughter.

The access decision

1. The internal review on the access decision noted that FW is a permanent resident of the aged care facility, and receives all the services she need within its confines, including things such as hairdressing and podiatry. She is regularly reviewed by her GP at the nursing home. She is reported to become anxious when alone and to prefer the company of other residents. She is reported to be content at the aged care facility and not asking to leave. The Public Guardian has made a decision that she will remain there.

1. The internal review also had regard to the following -

- The Public Guardian was informed in March 2011 that there had been issues during [FX]'s access visits, as [FX]'s behaviour and the statements he made were upsetting [FW]. Reports were also received that [FW] had been found to be highly distressed following phone calls from [FX]. It is understood that [FX] had been trying to pressure [FW] into saying she wanted to move back in with him.

- Following this report, [the] Aged Care Facility asked [FX] to keep the bedroom door open at all times when he is visiting [FW]. This allowed staff to monitor the situation and intervene if [FW] required assistance with personal care or if she became agitated.

- In December 2011 there was an incident whereby [FW] requested the Director of Nursing to stay with her during [FX]'s access visit.

- Following the Guardianship Tribunal's Directions Hearing in January 2012, [FX] was overheard by a Registered Nurse "berating" [FW], telling her "you're locked in here, it's like a prison, it's all your fault because you tell them you want to stay here - you're useless". [FW] was highly distressed and crying, immediate staff intervention was required to reassure [FW].

Less restrictive methods have previously been used to try and ensure [FW]'s well being during visits from her son. These have not proven successful as [FW] has still been found in a distressed state. [The] Aged Care Facility asked the Public Guardian to consider making an access decision which included the need for all access visits to occur in a communal area of the nursing home in order to promote [FW]'s wellbeing.

[FX] has made a number of threats to remove [FW] from the facility. [FW] is happy to remain at [the] aged care facility as a permanent resident, and is unable to return to live in the community as her care needs exceed those which could be met even with maximum community service provision. There is no Aged Care Client Record (ACCR) approval for the provision of an Extended Aged Care at Home (EACH) package.

Further information was provided to the Public Guardian by the following individuals:

[FW]

[FW] has not previously requested to go on visits outside of [the aged care facility] Aged Care Facility with [FX]. When asked, she said that she does not wish to go and stay overnight with [FX], however she would be happy to go and have a coffee with him in [town]

[FX]

During the period of this Guardianship Order, [FX] has made a number of threats to several people that he intends to remove [FW] from [the aged care facility] Aged Care Facility and not return her. [FX] has made this threat during phone calls to the Public Guardian on several occasions, most recently in December 2011.

Furthermore [FX] has suggested that he will remove [FW] from New South Wales, rendering the Guardianship Order unenforceable. [FX] has also informed the facility of his intention to remove [FW] from the facility on a permanent basis.

In December 2011 [FX] submitted an access proposal to the Public Guardian seeking consent for a "standing access function" in order to take [FW] to see her animals, go shopping, go to the hairdressers, and spend time with her son.

[XO]

On 6th January 2012 [XO] submitted documents with a cover letter requesting that [FX] be prevented from taking [FW] from the facility at any time. She stated she had concerns for [FW]'s safety as she believes [FX] has a mental illness and is "violent and aggressive". [XO] previously stated that she is concerned [FX] would take [FW] out on a visit and would not return her to [the aged care facility] aged care facility.

...

In seeking the view of the Director of Nursing with regards to [FX]'s proposal, she recommended that visits between [FX] and [FW] to occur only within public areas so staff can intervene if [FW] becomes distressed. The Public Guardian is currently not seeking to limit the amount of time [FX] spends with [FW].

1. Among the s 58 materials relied on by the Public Guardian were a number of incident reports from the aged care facility. These record that:

• On 5 July 2011 a staff member recorded that -

[FX] took [FW] for a walk around DSU. I heard a raised voice. I asked [FX] if everything was OK & he said yes. After we heard [FW] sobbing and [another staff member] asked him what was wrong. He said his mother wanted to go home. We asked him to take [FW] to the dining area. He walked [FW] away from us. Rang RN & she came and asked him to leave because it was dinner time. He left.

• Subsequently, on the same day the same staff member recorded that-

[FX] returned to DSU during supper. He stood at the kitchen & constantly asked questions about his mother's behaviour in DSU. I told him she was happy and had been laughing with other residents during dinner & that her behaviour was fine. He immediately started telling me that I had to go with him to [name] and tell her that his mother was fine & should be home with him. He told me that he was seeing a politician and would be taking [FW] Thursday. He then started talking about her continence. I replied telling him [FW] was very incontinent. He refused to accept this answer & told me when [FW] lived at home with him he had set times through the day for toileting his mother &and would make her sit on the toilet until she had 'done something.' The doorbell rang & my husband and son were there. I quietly asked my husband could he please go and find the RN & ask her to come over to DSU immediately. [FX] moved away while my husband was in DSU but came straight back to kitchen area when I was alone again. He started telling me again how his mother she be home with him. How she would be much better of at home. ...RN arrived in DSU & asked [FX] to leave. She explained it was a busy time & he should leave & let us get on with our job. He refused to go X 2 before he did exist DSU.

• On 7 July 2011 FX phoned the then Director of Nursing and asked whether she would write a letter stating that his mother no longer needed care at the aged care facility. The report continues -

I advised him that I couldn't do this as I firmly believe that [FW] needs high residential care. He stated that he was angry and was going to take his mother interstate. I asked him to calm down and please do not harass the staff for answers. He hung up.

FX's position

1. FX opposes both decisions. Fundamental to his arguments is that he has a close and loving relationship with his mother and has cared for her for many years. This is evidence by his references and is not disputed by the Agencies. They do, however, question his understanding of his mothers' true care needs and his assessment of his own capacity to meet them.

1. In his care plan, submitted to the Public Guardian, FX argued that his mother should live with him in her own home, with support from services (which support was not yet obtained). The Public Guardian, as her guardian with power to make decisions about where she should live, did not accept this proposal and instead determined that she should remain as a permanent resident of the aged care facility.

1. It is clear from FX's presentation to the Tribunal that he does not accept this decision. It is, however, binding on the Tribunal for the purposes of the issues under review. Those issues, as I repeatedly reminded FX, are whether the decision to sell his mother's home and the decision to limit his access are the correct and preferable decisions.

1. In his care plan FX did address the access question as follows, verbatim -

I officially apply for a standing access function be allowed at [the aged care facility] and if transferred to [another town] at an appropriate care facility from to take my mother on extended leave of her health permits. Leave is required for home visits to her animals, shopping, hair perm, time with her son and carer etc. of course I am very aware that I have to liaise with management of aged care facility on times and dates as they require notice in advance. Yes [the other town] is abetter pace for organisation of my mother but at present I will have to works around [the nursing home's] town situation.

1. I asked whether his proposal included overnight access away from the aged care facility. He indicated it did. When asked as to who would make the decision as to wether she would stay overnight or return to the nursing home. FX said it was a matter for his mother to decide.

1. In answer to question from me FX:

• Agreed that his mother has moderate to severe dementia and is suffering from depression.
• Did not accept that she requires constant care. His view was that, if she were at home, she would recover function as she had in the past. He referred me to Dr Fleming's report (2001) and Dr Abadier's report (2008).
• While he accepted that dementia is a progressive disease, he did not accept that his mother's situation and needs now, were different to the situation which prevailed in 2001 and 2008, so as to make the earlier opinions of Dr Fleming and Dr Abadier no longer applicable.
• Agreed that he had given an undertaking not to remove his mother from respite care.
• Denied ever threatening to remove his mother from the aged care facility.
• Agreed that he had been asked to leave the door to her room open when visiting. He said he had complied with that request.
• Denied ever calling his mother useless.
• Agreed that his mother sometimes might be upset and crying when he leaves. This, he said, was not due to any conduct on his part, but to her distress at his departure.
• Was insistent that his mother expressed a desire to go out with, and return to live with, him.
• Thought he had a good insight into her condition and care needs.

1. FX also contested the content of Ms Vernender's report. This is a social work assessment prepared for FW's separate representative at the last Guardianship Tribunal hearing. Ms Vernender was asked to advise on -

[FW's] need and whether she could be moved to another aged care facility, or be cared for by her son in a unit at [another town].

1. Ms Verender consulted with staff at the nursing home, FW, FX and XO.

1. The director of nursing told her that FW needs assistance with all facets of personal care and is incontinent of urine and faeces.

1. Ms Verender reported her discussion with FW in some detail. FW had some difficulty in recalling her personal history. She was able to name her daughter but said, "She did not see a lot of her." She said FX visits, but had not recently as he was busy. Ms Verender noted that staff advised her that FX visited the day before she spoke with FW. She wrote -

[FW] was asked to describe to the author what it was like living on the family property in [town name] with [FX]. She stated that she "did not like it out there" and it did not suit her to live there.

[FW] was asked to describe to the author what it was like living on the family property in [town name] with [FX].. She stated that she "did not like it out there" and it did not suit her to live there.

[FW] was asked the following question on six different occasions during the interview: "If you were given the choice between living in the nursing home and living with Michael, which one would you choose?" Her answers were:-

"I'm happy here since I've arrived and I've met some nice people".

"I'd stop here. I know everybody and they are friendly with me. It's good to have friends here to talk to"

"Michael would like me to live with him but I don't want to do it".

"I want to stay here, I know them all here".

"I want to stay here. I don't think Michael and I would hit it. We clash sometimes".

"I don't want to move out of here, I am very happy here".

"I think we are better off parted and see one another occasionally".

[FW] was also asked what she would do if [FX] were to ask her to live with him. She replied, "I would go with him just to please him". It is noted that [FX] purportedly has written answers to questions posed by her son (see Appendices A and B), which obviously contradicts her stated wishes to the author.

1. With respect to her discussion with FX she wrote -

6

[FX] said he will submit a detailed Care Plan proposal, a copy of which was faxed to me, to the Guardianship Tribunal. [FX] said he plans to live with his mother in a unit in [another town] and will apply for an Extended Aged Care at Home Dementia package because the types of services offered would meet the specific needs of his mother.

From the discussion with [FX], it does appear that he is unable to acknowledge that his mother has a moderate to severe dementia and her needs require professional care. She is still a capable person", he said.

[FX] believes his mother is nervous and disoriented in her new surroundings and has confided in him and asked him to take her home.

He said his mother behaves differently when she is in his company and is able to do more than the professionals say she is able to do. He believes his mother is capable of toileting herself, and is able to bathe herself unsupervised but needs him to run the bath for her.

1. FX argued that Ms Verender's report had been written without due regard to or consideration of his care plan. He disputed her recording of his mother's wishes saying FW had been misled or confused by Ms Verender's question as to what it was like to live on the 'property.' FX said his mother had never lived on the property, meaning the farm property. He argued that this confusion affected the later six questions about living with him. I do no accept this. There may have been some confusion with one question, but not six.

1. With respect to the decision to sell the home FX told me that he lived in the premises, so that he was close to the farm property. He said that there is no need to sell the house, as the business was able to pay for FW's ongoing expenses.

1. When asked to explain this, he said that when his mother had been living at home, in his care, from the income earned by the business, he had paid all outgoings, which included her drawings of approximately $18,000 - $20,000 a year. When asked where this income now was, he referred to bad times through drought and pointed to the $6,600 that had been paid to his mothers account with the NSW Trustee and Guardian in April this year. He also noted that a cheque from Allianz, for storm damage insurance, had been paid into her account ($5553-00) in April.

1. Curiously, FX first told me he had paid six and half thousand dollars to his mother at the hearing on 30 March 2102. According to the NSW Trustee and Guardian $6,236.00 was paid into her account on 2 April 2012.

1. During the hearing I sought to understand the precise arrangement in place whereby FX manages his mother's farm. Mr French, having made inquires of the NSW Trustee and Guardian, told me that management of the farm by FX was on a haphazard and informal basis.

1. Apart from pointing to a Guardianship Tribunal decision, which recorded that he was running the farms under an arrangement with the Protective Commissioner, FX could point to nothing in writing that formalised this arrangement.

1. FX told me that under the arrangement he had an accountant prepare tax returns for his mother, and that he then had her sign them. He also operated bank accounts in her name. He commented that a lack of information from the NSW Trustee and Guardian made preparing her tax difficult. This is the reverse of concerns the NSW Trustee and Guardian has voiced about FX not providing it with information concerning the operation of the farm.

1. Additionally, to the resources that the business can deploy for the care of FW, FX was of the view that FW should be on a pension. He said that if she were on a pension, her nursing home fees would be capped at 85% of the pension, and there would be no need to sell her home.

Relevant Legislation

1. Section 80A of the Guardianship Act 1987 provides:

(1) An application may be made to the ADT for a review of a decision of the Public Guardian that:

(a) is made in connection with the exercise of the Public Guardian's functions under this Act as a guardian, and

(b) is of a class of decision prescribed by the regulations for the purposes of this section.

(2) An application under this section may be made by:

(a) the person to whom the decision relates, or

(b) the spouse of the person, or

(c) the person who has the care of the person to whom the decision relates, or

(d) any other person whose interests are, in the opinion of the ADT, adversely affected by the decision.

1. When read with s 38 of the Administrative Decisions Tribunal Act 1997 section 80A of the Guardianship Act 1987 confers jurisdiction to review an accommodation decision made by the Public Guardian. Section 63 of the Administrative Decision Tribunal Act 1997 (the ADTA) says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

1. Section 4 of the Guardianship Act 1987 sets out a series of principles to be observed by all person exercising function under that Act, including this Tribunal on review. It provides:

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation,

(h) the community should be encouraged to apply and promote these principles.

1. Chapter 4 of the NSW Trustee and Guardian Act 2009 is concerned with 'management functions relating to persons incapable of managing their affairs.' By s 55(a) the Trustee may exercise all the functions necessary and incidental to management and care of the estate of a managed person. This includes all the function of the managed person: s 56. Managed person is defined in s 38 as including a 'protected person". This, in turn is defined as -

protected person means a person in respect of whom an order is in force under Part 4.2 or 4.3 or the Guardianship Act 1987 that the whole or any part of the person's estate be subject to management under this Act.

1. There is in force an order to the Guardianship Tribunal committing management of FW's estate to the Trustee.

1. In managing FW's estate the Trustee may exercise any of the powers vested in it by s16. Relevantly, these include -

(g) buy, sell, realise and mortgage (with or without a power of sale) real and personal property

1. Section 39 mirror the principles of guardianship found in s 4(a) to (g) of the Guardianship Act 1987.

Discussion and Evaluation

A. The decision to sell

1. Turning first to the decision to sell FW's home, I agree that her welfare and best interest requires that the home be sold. While the sale will have the effect that FW cannot return to her home, the reality is that, given her age, health and care needs, this is not a realistic prospect.

1. The weight of recent professional opinion confirms this. For example, Dr William Thoo a Staff Specialist in Geriatric Medicine form Concord Hospital assessed FW in January 2011, FW having been assessed as requiring 24 hour care by the local Aged Care team. He wrote -

In my discussion with [FX] he stated that he had been her carer for 12 years, and that she function better under his care than without, and that [FW] could answer questions better if the right questions and wording were phrased. He believed her memory was fair at the moment, but not acknowledge (sic) that she had dementia.

[FW] has moderate to severe dementia. The timeframe for her dementia and the reported trajectory of her cognitive decline would be consistent with her current reported care needs. Although it is not unheard of for clients requiring 24-hour nursing care to be managed in the community. This does require a particularly devoted carer as well as substantial community resources. It is also appropriate that [FW] receive care in a high level residential aged care facility. Nothing in my assessment today contradicts the information that has been provided by the ...Age Care Service and in normal circumstances I would be guided by Community Aged Care Workers as to their recommended level of care required and to the appropriate places to where that (sic) were to be provided.

1. The Public Guardian has made a decision that FW shall remain living in the aged care facility as a permanent resident. She is reported to be content, well cared for, settled and comfortable there. Her children are able to visit her. Consequently the sale of her home will not unduly restrict her freedom of action. She will continue living in a community environment where she is comfortable and where her family can visit if they so desire. While this differs from being cared for her at home by her son, and limits their daily contact, the reality is that she needs ongoing full-time care, and that FX visits her regularly at the aged care facility.

1. There is considerable conflict as to what FW's view in relation to the sale of her home is. As far as I can ascertain she had not been asked whether, given that she is to continue living in the facility and is short of liquid funds to pay for her accommodation, she supports the sale of the house. Rather she has been asked where she want to live.

1. Her reported answers to that question vary, principally depending on whether FX is present when she answers. When he is, she expresses a desire to return to live at home in his care. When he is absent, she consistently says she is happy where she is. The probable explanation for these inconsistent answers is that FW says she wants to live at home when FX is present, in order to please him. FX's determination that FW return to live with him is obvious both from his actions and the passion with which he advocates for her return. It is understandable that she would not want to disappoint him and, given her diagnosis and their relationship, that she would be swayed by his wants.

1. In my telephone discussion with her she displayed no understanding of her financial circumstances so as to be able to express an informed view as to the merits of a decision to sell her home. She did indicate that it was her hope that her son would inherit it.

1. I concluded that FW is unable to express a considered view in relation to the sale. Like most people she would prefer not to sell her home, but to retain it for the benefit of her family. She is, however, content to remain living at the aged care facility.

1. The reality of FW's financial situation is that her income is not sufficient to meet her accommodation expenses, and that as a consequence her limited, liquid capital is being steadily reduced in order to pay her fees. A crisis point is approaching, when she will no longer have the liquid finds to enable her financial manager to meet her accommodation and care costs. At the same time she has fixed assets of some value, which, if sold, would provide funds for her ongoing care.

1. In order to address this situation prudence requires that the financial manager take action to sell an asset before FW's cash funds are depleted. There are two assets which could be sold:

• The farm property that she jointly own with FX as tenants in common. In order for this to be sold FX would have to agree, or proceedings commenced for division and sale. The sale would also result in her loosing the limited income she receives from the farm business.
• Her home which she fully owns. It does not yield any income and is a drain on her limited resources.

1. The sale of the home is by far the most expeditious of these alternatives, and likely provide for her needs in a shorter time. A sale will, however, deprive her son of the home where he says he lives. He, however, has a property of his own in a larger town that he has referred to in his submissions. If FW's home is sold FX will not be homeless. While the sale may well prove a real inconvenience to him, the decision as to whether or not to sell is to be made in his mother's, not his, best interest. FW's best interest clearly requires that the home be sold.

1. In my opinion the decision to sell FX's home is the correct and preferable decision.

B. The access decision

1. In making a decision with respect to access to a protected person a guardian, and the Tribunal on review from a decision of the Public Guardian, must apply the general principles in s 4 of the Guardianship Act 1987 and be satisfied the decision is appropriate "having regard to all the circumstances of the case": K v K [2000] NSWSC 1052 at [30] per Young J.

1. The evidence demonstrates and I am comfortably satisfied that [FX] and his mother hold different views as to whether she should remain in the aged care facility. As already noted, apparently out of a desire to please FX, FW has not been able to tell FX that she is comfortable where she is and content to remain at the aged care facility. She has however clearly communicated those views to others.

1. FX is passionate in his desire that his mother return to live with him, and is driven in his efforts to achieve that outcome. His passion and commitment is so strong that he denies or minimises all obstacles to him achieving that aim. Thus, despite the persuasive medical evidence to the contrary, he is insistent that that FW's condition will improve, if she returns to live with him. He relies on past experience to demonstrate that her needs will be less when in his care, dismissing current medical advice and paying no heed to the progressive nature of dementia. He dismissed concerns about the management of her faecal and urinary incontinence, by saying her incontinence has improved under his care in the past, and will improve again with the benefit of a strict toileting regime. Similarly, any responses elicited by others from FW, which are inconsistent with FX's desires for his mother to return home, are dismissed by him as obtained by misleading or confusing her. As he sees it only he can communicate with her, so as to obtain her true opinion.

1. The reality is that FX cannot or will not see the extent of his mother's disability. He does not, or will not, truly understand the nature and severity of FW's condition. He demonstrates a lack of insight into her disability and needs. His documented history of threats to remove her from care facilities and his persistent attempts to cajole both her and those caring for her into agreeing with his view illustrates this.

1. While FX insists that he has never yelled at, abused or threatened his mother, there is among the material before me ample evidence that he seeks to dictate to her and has done so for some years. This consists not only of the evidence about his conduct at the aged care facility, which he denies, but goes as far back 14 December 2010. On that day the Presiding Member of the Guardianship Tribunal heard FX instruct FW to say that she did not want to take part in the hearing. The Presiding Member noted that interchange in his reasons for decision, as he did FX's threat to remove FW from the Hospital.

1. In my opinion FX is driven in his efforts to have his mother to return to his care. He has allowed his desires and passion to override his mother's welfare and best interest. His insight into her needs and condition is distorted to align with his own aims. As a consequence, I also accept that, at times, the pressure FX puts FW under causes her upset and distress. This is a more probable explanation of her reported distress than being upset by his departure.

1. In the decision under review the Public Guardian has sought to address these concerns by placing a condition on FX's access to his mother so that it can only occur in communal areas of the aged care facility.

1. In my opinion this will go to ensuring that FW is no longer subject to the pressure that FX has been putting her under. It will thereby enhance and improve her quality of life at the aged care facility. Requiring FX to interact with FW in an environment where they can be observed creates a situation in which FW can be protected from being overborne by FX. This will enhance her freedom of decision and freedom of action. At the same time the requirement should prove an active disincentive towards FX removing FW from care, as he has threatened to do on a number of occasions. Her removal would clearly not be in her best interest as she is reliant on the care and supervision provided in the nursing home.

1. The access condition as drafted does not limit the times at which FX may visit his mother at the facility. While ensuring her protection, it allows for the preservation and continuation of her relationship with FX and OS, who supports the decision.

1. I am satisfied that the access decision made by the Public Guardian is the correct and preferable decision.

Conclusion

1. It follows that the Tribunal affirms the decisions under review.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

**********

Decision last updated: 05 September 2012