FZQ

[2021] NSWCATGD 33

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FZQ [2021] NSWCATGD 33

Hearing dates:

30 July 2021

Date of orders:

30 July 2021

Decision date:

30 July 2021

Jurisdiction:

Guardianship Division

Before:

S Pinto, Senior Member (Legal)
Associate Professor C Willcox, Senior Member (Professional)
D Crowley, General Member (Community)

Decision:

1. A guardianship order is made for FZQ.

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

3. This is a continuing guardianship order for a period of 12 months from 30 July 2021.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where FZQ may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take FZQ to a place approved by the guardian.

ii) keep him at that place.

iii) return him to that place should he leave it.

c) Health care

To decide what health care FZQ may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to FZQ.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

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

2. QZQ of [Address removed for publication.] is appointed as the financial manager of the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – subject person is of advanced age – subject person diagnosed with severe dementia – subject person an in-patient at a public hospital – conflict between family members – concerns about neglect and adequacy of care previously provided to the subject person – need for accommodation decisions for admission to an aged care facility – need for an ACAT assessment – need for decisions to be made in relation to services, health care, and consent to medical and dental treatment – suitability of proposed guardian – private guardian appointed – order made.

FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their affairs – need to pay for accommodation and care fees in an aged care facility – suitability of proposed private manager – private financial manager appointed - order made.

Legislation Cited:

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

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Guardianship Application

FZQ (the person)
South Western Sydney Local Health District (applicant)
QZQ (joined party)
Public Guardian

002: Financial Management Application

FZQ (the person)
South Western Sydney Local Health District (applicant)
QZQ (joined party)
NSW Trustee and Guardian

Representation:

Nil.

File Number(s):

NCAT 2021/00195931

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

What the Tribunal decided

1. The Tribunal made a guardianship order and appointed QZQ as the private guardian for his father, FZQ, with functions of accommodation; authorise others to take, keep or return FZQ at any accommodation chosen for him; services; health care and to give consent for medical or dental treatment.

2. The Tribunal made a financial management order and appointed QZQ as the private financial manager for his father, under the direction of the NSW Trustee and Guardian.

Background

3. FZQ is 82 years old. He is of Greek background. He was admitted to a public hospital on 11 June 2021 following a fall. Prior to his admission, FZQ resided alone in his home with no formal supports. He is separated from his wife. He has two sons, QZQ and Mr Z. There is extensive family conflict between QZQ and Mr Z, with allegations that Mr Z has made threats of harm towards his brother.

4. Since his admission to hospital, FZQ has been diagnosed with severe dementia.

5. On 8 July 2021, applications for the appointment of a guardian and financial manager were received from Ms Y, social worker, at the public hospital, on behalf of the South Western Sydney Local Health District. The applications indicated that FZQ is unsafe to return home as he requires full time care and assistance with all activities of daily living.

6. Ms Y indicated in her applications that QZQ has exhibited a good understanding of his father’s needs and may be appropriate for appointment as a guardian and financial manager for his father.

The hearing

7. FZQ participated in the hearing. He was accompanied by Ms Y, social worker. QZQ and Mr Z participated in the hearing by telephone from separate locations.

8. An interpreter who spoke the Greek language was available to assist FZQ, but was only required intermittently during the hearing.

9. A list of the parties and hearing participants is at the end of these reasons for decision. [Appendix removed for publication.]

Documents provided to the Tribunal

• Social work report, Ms Y, social worker, 8 July 2021

• Occupational Therapy Report, Ms X, occupational therapist, Campbelltown Hospital

• Medical Report, Dr W, Staff Specialist Geriatrician, 6 July 2021

GUARDIANSHIP APPLICATION

What the Tribunal must decide?

10. The questions which the Tribunal must decide in relation to the application for a guardian for FZQ are:

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

• Should the Tribunal make a guardianship order and if so, what should it include?

• Who should be the guardian?

• How long should the order last?

Is FZQ someone for whom the Tribunal could make a guardianship order?

11. The Tribunal may make a guardianship order in respect of a person if, after conducting a hearing, it is satisfied that he or she is a person in need of a guardian: Guardianship Act 1987 (NSW) (“the Act”), s 14(1).

12. In his report, Dr W stated that FZQ has been under his care since 11 June 2021, and he has reviewed him every two to three days. He was admitted to the public hospital following a fall, with a marked degree of confusion and associated agitation. He was treated with intravenous and oral antibiotics for mild leg cellulitis. His agitation settled over a period of days.

13. Dr W stated that FZQ has severe mixed dementia due to a combination of Alzheimer's disease and vascular dementia. Whilst there was no pre-existing formal diagnosis of dementia, it was clear that FZQ had marked cognitive decline, consistent with significant dementia. Dr W stated that FZQ’s diagnosis of severe dementia is supported by clinical examination, formal cognitive assessments, and medical imaging. FZQ scored 9 out of 30 on the Roland Universal Dementia Assessment Scale (RUDAS), completed on 18 June 2021 by an occupational therapist with the assistance of a Greek interpreter. A score of 23 or above is considered in the normal range, whilst the score of 9 out of 30 is consistent with severe dementia.

14. During the hearing, Ms Y said that the reports are up to date and there have been little changes in FZQ’s condition. She said although he was very agitated and upset when he was admitted, he is now quite settled and enjoys talking to people on the ward. She confirmed that he has a diagnosis of dementia, and it is the view of the treating team that FZQ does not have capacity to make important life decisions and he would need constant care and supervision. He will need someone to make all significant decisions for him in the future.

15. FZQ’s views on his ability to make important life decisions were difficult to discern.

16. We are satisfied that the evidence from the medical and allied professionals, as well as our own impressions during the hearing, establishes that FZQ has a disability, being dementia, as a result of which he is prevented from making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

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

17. In deciding whether to make a guardianship order, the Tribunal must consider s 14(2) of the Act which includes the person’s views; the views of any person who has care of him or her; the importance of preserving family relationships and any cultural and linguistic environments; and the practicability of services being provided without the need for an order. These factors have no hierarchy or weighting and the Tribunal must undertake a balancing exercise in relation to each factor.

18. The Tribunal must also consider s 4 of the Act which sets out the general principles that everyone exercising functions under that Act in respect of persons with disabilities must observe. These principles include that the person’s welfare and interests should be given paramount consideration; freedom of decision and action should be restricted as little as possible; his or her views should be taken into consideration; the importance of preserving cultural and linguistic environments should be recognised; and he or she should be protected from neglect, abuse and exploitation.

19. The occupational therapy report indicates that FZQ was living at home alone before his admission. Mr Z was reported to have been providing care for FZQ, but there were significant concerns from QZQ and FZQ’s ex-wife that the level of care at home was not sufficient or safe. FZQ had no formal supports in place and QZQ reported that his father had mentioned that he had been sleeping in a dirt hole.

20. The occupational therapist stated that FZQ demonstrated a significant level of cognitive impairment and reduced problem-solving insight with his responses to a basic home safety scenario. He required substantial prompting and questions repeated throughout the assessment. The occupational therapist identified several concerns regarding FZQ’s ability to return home and attend to his activities of daily living safely and independently. He requires supervision for all self-care and domestic activities of daily living, and he is currently unable to safely return home. His family is not able to provide this level of care in the community and he requires supported accommodation with 24-hour supervision. The occupational therapist concluded that due to FZQ’s cognitive deficits and complex family situation, he would benefit from the appointment of a guardian to make accommodation and lifestyle decisions.

21. Dr W stated that on 21 June 2021, he and the multidisciplinary team met with Mr Z and made recommendations for constant care and supervision to be provided to FZQ in a residential aged care facility. Mr Z advised the team that he did not agree with the recommendation for permanent care. Dr W stated that “with the utmost respect to Mr Z,” during this meeting the treating team developed concerns about Mr Z’s ability to care for and or make decisions on his father's behalf.

22. Dr W stated that on 24 June 2021 the treating team met with QZQ who expressed full agreement with the plan for his father to move permanently to an age care facility and consented to the current medical management plan. Although Mr Z had been invited to attend the meeting, he did not do so. The treating team subsequently made several attempts to contact Mr Z, who eventually confirmed his view that his father should return home. The team could not resolve the different positions of FZQ’s two sons and it was for that reason that they have sought the appointment of a guardian to make decisions in FZQ’s best interests.

23. During the hearing, Ms Y said it was the view of the treating team that FZQ had not been managing well at home. When he was admitted to hospital on 11 June 2021, he was drowsy and may have lost consciousness. He appeared to have been lying in the same position for several hours after falling and was incontinent and hypertensive. She also confirmed that he had mild cellulitis that had not been treated.

24. Ms Y confirmed during the hearing that it is the view of the treating team that FZQ requires placement in an aged care facility. She said FZQ is generally agreeable to any suggestions made and he appears to be happy in the hospital and enjoys being looked after. She said it is due to the disagreement between family members that the treating team is seeking the appointment of a guardian to make decisions regarding his discharge plans.

25. During the hearing, Mr Z confirmed that he believes his father can return home and he can live with him and look after him 24 hours a day. He said, in response to our comments that his father appears to have settled well in hospital and may benefit from a more social environment within aged care, that he wants his father to enjoy his remaining years and to look after him in his home.

26. QZQ said that he “most definitely” agrees with the views of the treating team, and believes his father needs to be properly looked after. He said his father’s home was a “mess” and he did not believe he was eating properly. QZQ said he gave his father a parcel of food each week, but every time he went to his home, he had mouldy food all around. When his father first went into hospital he was aggressive, which is “definitely not my father” and “looked terrible.” He said since he has been eating properly and is well looked after he has improved considerably, and he is now smiling again.

27. The evidence discussed above indicates that there is disagreement in relation to FZQ’s discharge from hospital, with the treating team and QZQ strongly of the view that FZQ requires 24-hour care in an aged care facility. Whilst FZQ appears content and settled in an environment where he has been properly looked after and has more social contact, his son Mr Z has maintained that his father should return to his home. This is despite numerous concerns that his father was not managing well at home.

28. We accept, due primarily to the disagreement as to FZQ’s discharge from hospital, that there is the need for the appointment of a guardian to make decisions in relation to these matters. We are satisfied that a guardian should be appointed with a decision-making function in relation to accommodation to enable decisions to be made as to where FZQ will reside upon his discharge from hospital.

29. Given the disagreement between family members, and the possibility that a guardian may decide that an aged care facility is the most appropriate destination for FZQ, we consider that a guardian should also be given authority to take, keep or return FZQ to any accommodation found for him. A services function will also be required to enable an ACAT assessment to be progressed.

30. As there is strong disagreement and conflict between QZQ and Mr Z and no clear “person responsible” we are also satisfied that a guardian should be given decision-making functions in relation to health care, and medical and dental consents.

31. In reaching the above conclusions, we have had regard to the factors in s 4 and s 14(2) of the Act, and we accept that the appointment of a guardian may further damage already strained relationships between Mr Z and QZQ. However, we consider that a guardian should be appointed to ensure sound and appropriate decisions are made for FZQ to protect his welfare and interests.

Who should be the guardian?

32. The Tribunal must be satisfied that any person appointed as a private guardian meets the requirements of s 17(1) of the Act. These are that he or she must have a personality generally compatible with the personality of the person under guardianship; have no undue conflict of interest (particularly financial) with those of the person; and be able and willing to exercise the functions of the order.

33. In deciding whether a person can undertake the role of guardian, the Tribunal must also 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. A proposed guardian must be able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

34. QZQ indicated that he wished to be appointed as guardian for his father. Mr Z said he does not believe his father needs a guardian.

35. In their reports, Dr W and Ms Y stated that QZQ has shown a strong concern for his father’s best interests and health and safety. Ms Y also stated that QZQ is reliable and appeared to be able to consider the risks posed to his father’s safety if he was to return to his home. They stated that QZQ reported that his brother Mr Z was an intravenous drug user and he believed that Mr Z would often act in ways contrary to their father’s best interests.

36. Ms Y confirmed during the hearing that it is the view of the treating team that QZQ has shown that he is reliable and able to understand the risks posed to his father and formulate plans in his best interests. Ms Y indicated that there are concerns in relation to Mr Z’s ability to be his father’s guardian as he has been difficult to contact, and when he attended a meeting with the treating team it had to be terminated due to Mr Z’s drowsiness.

37. As above, Mr Z indicated that he wished to take his father home. He denied that he is an intravenous drug user, and said he only takes prescription pain medication due to a workplace injury. He said he had been looking after his father properly before he went into hospital. Mr Z said he will take his father to his own property and make sure he has a bed and will look after him. He indicated that he previously took his father to the general practitioner. He indicated that the only medications his father took were Panadol and was not aware that he was taking any other medication.

38. When asked how he proposed to care for his father, who requires 24-hour care, Mr Z indicated that he will get his father take away meals he enjoys. He said he will make any adjustments required for the shower, including adding handrails. When asked about Meals on Wheels, he said he has spoken to his father about this, and he will organise it. However, he indicated that he had not previously made any arrangements for his father to receive Meals on Wheels. He also indicated that he had not arranged an ACAT assessment for his father or any other services to support him in his home.

39. During the hearing, QZQ said that although Mr Z has said he was caring for their father, he does not believe this is true. He said that every time he telephoned his father or went to his home, Mr Z was not there. He also said that Mr Z would tell him he was with their father, but when he went inside his father’s home, Mr Z was not there.

40. QZQ agreed that despite his concerns that his father was not managing well at home, he had also not organised for him to obtain Meals on Wheels or any other services, and it does not appear that efforts had been made to assist him to clean his home. However, he said he believes he has a “better track record” than his brother and indicated that Mr Z has difficulty looking after himself and would be unable to look after their father.

41. We accept that Mr Z cares for his father and they have maintained a close relationship. We have limited information regarding allegations in relation to Mr Z’s drug use, and the threats he has made to his brother, and it is unnecessary for us to consider it any further. However, we accept that Mr Z was not caring for his father in the manner he claims, and we are not satisfied that he was able to articulate any clear or appropriate plans as to how he would care for his father at home on a 24-hour basis. He also showed an unwillingness to consider the risks to his father’s safety or welfare or to acknowledge the views of his brother and the treating team that FZQ has improved considerably and appears to enjoy the care and support he has received, and may be content and settled in a more supported environment. We are not satisfied that Mr Z has shown he has sufficient insight into his father’s care or that he is able to make decisions in his father’s best interests. We are not satisfied that he is an appropriate person for appointment as a guardian for his father.

32. We have some concerns that QZQ, despite the concerns expressed for his father’s welfare and ability to manage in his home, had also not implemented any strategies to assist his father to manage in his home. However, we are satisfied that QZQ has shown a willingness to listen to the views of the treating team and formulated considered and sound plans for his father’s future to ensure he is safe and comfortable and well settled. We are satisfied that he is strongly motivated by his father’s best interests.

33. We are satisfied that QZQ meets the requirements to be appointed as the private guardian for his father, FZQ.

How long should the order last?

44. An initial guardianship order can be made for a period of up to one year from the date on which it was made.

45. We decided to make an order for 12 months on the basis that this would give QZQ sufficient time to make decisions for his father in relation to the issues identified.

FINANCIAL MANAGEMENT APPLICATION

What does the Tribunal have to decide?

46. The issues to be considered by the Tribunal are:

• Is FZQ incapable of managing his finances?

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

• Who should be appointed as the financial manager?

Is FZQ incapable of managing his affairs?

47. The Supreme Court of NSW has considered the issue of capacity in relation to a person’s ability to manage his or her affairs. These cases have confirmed that of significance is a person’s “functionality of management capacity” and whether a person is reasonably able to manage his or her own affairs in a competent fashion, without the intervention of a financial manager. The relevant cases also indicate that the Tribunal should focus on the capability of a particular person to deal with his or her actual assets, and to do what he or she is proposing to do with them.

48. The Tribunal is required to consider past and present experience as a predictor of the future course of events, support systems available to the person, and the extent to which the person placed as they are can be relied upon to make sound judgments about their welfare and interests.

49. We are satisfied that the evidence from the allied and medical professionals indicates that FZQ has severe dementia, and as a result, he is incapable of managing his financial affairs.

Is there a need for a financial management order and is it in FZQ’s best interests that such an order be made?

50. Although we have found that FZQ is incapable of managing his financial affairs, we must consider whether there is a need for a financial manager and if it is in his best interests that a financial manager is appointed.

51. In considering the above issues, as in making all other orders under the Act, the Tribunal must act with the welfare and interests of the person concerned as the paramount consideration, and in accordance with the other principles set out in s 4 of that Act.

52. FZQ owns his home and receives an aged pension. It is unknown whether he has any other significant assets or funds in bank accounts.

53. During the hearing, Ms Y said she believes there are some significant financial decisions that will need to be made, which may include the sale of FZQ’s home. She confirmed that there is a need for the appointment of a financial manager to access FZQ’s accounts and manage his finances.

54. Both Mr Z and QZQ indicated that they do not know whether their father has money in his bank account or any investments.

55. We are satisfied that there is a need for the appointment of a financial manager to enable a financial manager to make arrangements, if it is deemed that FZQ will enter an aged care facility. This may include the sale of FZQ’s house. A financial manager will also need to contact Centrelink and access FZQ’s bank accounts to ensure he has regular funds for ongoing personal expenses for his comfort and welfare.

56. We are satisfied, therefore, that a financial management order should be made and it is in FZQ best interests.

Who should be the financial manager?

57. In appointing a financial manager, as in making all other orders under the Act, the Tribunal must act with the interest of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of that Act.

58. In her report, Ms Y indicated that there have been concerns expressed that Mr Z has been accessing his father’s bank account.

59. During the hearing, QZQ said his father’s ATM card disappeared from his wallet for the first few weeks that he was in hospital and then reappeared. QZQ also raised concerns that someone had been in his father’s house after he was hospitalised and had been viewing his father’s bank statements.

60. QZQ said that he believes he is appropriate for appointment as his father’s financial manager. He said he is self-sufficient and has worked in a car dealership in a senior position for many years, involving the management of millions of dollars every year.

61. Mr Z said that prior to his father’s hospitalisation, he took his father to the ATM and helped him to withdraw money. He said he only helped his father to pay his bills by taking him to the Post Office. He denied that he had ever taken money from his father. Mr Z said he does not have a key to his father’s house and his father was often rearranging paperwork in his home. He said he is currently unemployed but worked for many years and he is now on a Disability Support Pension. He said he suffered an injury and takes pain medication for ongoing pain due to the injury.

62. FZQ indicated that he trusts both his sons to make financial decisions for him.

63. Ms Y indicated that the treating team supports QZQ’ appointment as his father’s financial manager.

64. Whilst some allegations have been made about Mr Z misusing his father’s finances, no evidence such as bank statements or other documentation has been provided to support this, and we do not consider it necessary or appropriate to make any adverse findings regarding this matter.

65. We accept that QZQ has experience managing money and will make sound financial decisions in his father’s best interests. We also consider that it is in his father’s best interests that QZQ, who has been appointed as guardian for his father, is also able to make financial decisions consistent with decisions he makes as guardian for his father.

66. QZQ said he is not and never has been bankrupt and he has not been charged with any offences of dishonesty. He also indicated that he understood that the NSW Trustee and Guardian has reporting requirements and he undertook to comply with those requirements.

67. We are satisfied that QZQ is a suitable person to be appointed as a financial manager for his father, FZQ, subject to the authority and direction of the NSW Trustee and Guardian.

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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: 23 August 2022