FZX (No 2)

[2017] NSWCATGD 37

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FZX (No 2) [2017] NSWCATGD 37

Hearing dates:

22 June 2017

Date of orders:

22 June 2017

Decision date:

22 June 2017

Jurisdiction:

Guardianship Division

Before:

J S Currie, Senior Member (Legal)
A M Matheson, Senior Member (Professional)
M McCalman, General Member (Community)

Decision:

1. The guardianship order for Mrs FZC made by the Tribunal on 5 March 2015 is renewed and varied as follows.

 

2. This is a continuing guardianship order for a period of 3 years from the date of this order.

 

3. This order will not be reviewed at the end of the period set out above.

 

4. The Public Guardian is appointed as the guardian.

 

5. This is a limited guardianship order giving the guardian custody of Mrs FZC to the extent necessary to carry out the functions referred to below.

 

FUNCTIONS

 

6. The guardian has the following functions:

 

a) Accommodation

 

To decide where Mrs FZC may reside.

 

b) Services

 

To make decisions about services to be provided to Mrs FZC.

 

CONDITIONS

 

7. The conditions of this order are:

 a) In exercising this role the guardian shall take all reasonable steps to bring Mrs FZC to an understanding of the issues and to obtain and consider her views before making significant decisions.

Catchwords:

GUARDIANSHIP – review of guardianship order – consideration of who to appoint as guardian – family member willing to provide care at home – insight into care requirements – non-reviewable order made – Public Guardian appointed

Legislation Cited:

Guardianship Act 1987 (NSW), ss 4, 15(3), 16(1), 17, 25A and 25O

Cases Cited:

CS and MY v The Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
FGE (2) [2012] NSWGT 3 (16 March 2012)
P v D1 & Ors [2011] NSWSC 257
W v G [2003] NSWSC 1170

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Mrs FZX
Mr KAX (carer for Mrs FZX)
The NSW Public Guardian

Representation:

Solicitor: 
Ms XON (Mr KAX) also as McKenzie Friend

File Number(s):

C/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

REVIEW OF A GUARDIANSHIP ORDER

What the Tribunal decided

1. The Tribunal decided to renew and vary the continuing limited guardianship order which had been made for Mrs FZX on 5 March 2015. The Public Guardian was appointed as Mrs FZX’s guardian for three years from the date of this order and authorised to make decisions on Mrs FZX’s behalf about her accommodation and services. This order is a non-reviewable order and will not be reviewed on its expiry, unless prior to its expiry a request for review of the order is made to the Tribunal.

Background

2. Mrs FZX is a 98-year-old woman who has been diagnosed with dementia and is reported to demonstrate extreme confusion and to have hearing impediments. Mrs FZX is a permanent resident at a nursing home in Western Sydney. She has two sons, Mr KAX who, until her admission to the nursing home, was her carer and Mr IBX. Both her sons live in Western Sydney.

3. On 6 June 2014, the Tribunal made a guardianship order for Mrs FZX under which it appointed the Public Guardian as her guardian for 12 months with the functions of accommodation and services. On that date the Tribunal dismissed an application for the appointment of a financial manager for Mrs FZX. On 2 September 2014, the Tribunal renewed and varied the guardianship order. The Public Guardian was appointed for the term of the original order and its functions were confirmed with the addition of an authority for the guardian to enlist the services of others in implementing accommodation decisions (“the coercive authority”). The Tribunal also dismissed a separate guardianship application made by Mr KAX.

4. At its hearing on 2 September 2014, the Tribunal also made a financial management order for Mrs FZX. It committed the management of her estate to the NSW Trustee and Guardian. On 5 March 2015, the Tribunal dismissed an application by Mr KAX for revocation of the financial management order.

5. On 5 March 2015, the Tribunal also renewed and varied the guardianship order for Mrs FZX. The Public Guardian was appointed for two years with the functions of access, accommodation (with the coercive authority), and services.

6. On 6 October 2015, Tribunal conducted a hearing of two further applications by Mr KAX; being a second application to revoke the financial management order for his mother and a further application to review the guardianship order for her. The Tribunal refused to conduct a review of either of those orders, in exercise of its discretion under ss 25A and 25O, respectively, of the Guardianship Act 1987 (NSW).

7. On 29 August 2016, Mr KAX made a third application for revocation of the financial management order. The hearing of that application was adjourned on two occasions but finally determined at a hearing by the present Tribunal Panel on 21 April 2017. The present review of the guardianship order for Mrs FZX was also listed for hearing on that day. At that hearing we ordered as follows:

1. in relation to the application to revoke the financial management order for Mrs FZX, we declined to revoke the order and decided to vary the order by requiring it to be reviewed by the Tribunal within 18 months, we revoked the appointment of the NSW Trustee and Guardian as financial manager and appointed Mr KAX on the basis of certain stated conditions and required the order to be reviewed within 18 months; and

2. in relation to the present review of the guardianship order, we adjourned the hearing for approximately two months (part-heard) and made certain directions and recommendations regarding the evidence and Mrs FZX’s accommodation needs.

8. At the hearing on 21 April 2017 in relation to the review of the guardianship order, we were satisfied and made formal findings to the effect that:

1. Mrs FZX continues to have disabilities which prevent her from making some important life decisions, she continues to be “a person in need of a guardian” for the purposes of the Guardianship Act and she is someone for whom a further guardianship order could be made; and

2. there continues to be a current need for decisions on behalf of Mrs FZX to be made by a guardian and it followed that a further guardianship order should be made for her.

9. So our proceedings on 22 June 2017 constituted the resumption of the review of guardianship order adjourned part-heard on 21 April 2017.

Parties and witnesses

10. The Appendix to these Reasons for Decision identifies the parties to the application and the witnesses who participated in the hearing. [Appendix removed for publication.]

Issues for determination by the Tribunal

11. The following issues require resolution under this review of the guardianship order:

1. Is Mrs FZX someone for whom the Tribunal could make a further guardianship order because she continues to have a disability which prevents her from being able to make important life decisions? Is she “a person in need of a guardian” for the purposes of the Guardianship Act?

2. Should the Tribunal make a further guardianship order?

3. If so what order should be made? Specifically, who should be the guardian, what decision-making functions should the guardian have, and how long should any further guardianship order last?

12. As issues (1) and (2) had been determined in the affirmative at our hearing on 21 April 2017, the only issue for determination on 22 June 2017 was that set out in (3) above.

Mrs FZX’s absence

13. Mrs FZX did not participate in this hearing. She had been excused from participation by an order made at the directions hearing on 11 April 2017.

McKenzie Friend

14. We again recognised Ms XON, Solicitor, as the McKenzie Friend of Mr KAX. There was no application for legal representation of any party.

TRIBUNAL'S ASSESSMENT OF THE EVIDENCE AND DETERMINATION OF THE REMAINING ISSUE

What order should be made? Specifically who should be the guardian, what functions should the guardian have, and what should be the duration of the order?

Identity of the guardian: the relevant law and principles

15. As had been the case in most of the previous hearings conducted in relation to Mrs FZX’s guardianship order, the identity of her guardian was the central issue of contention. The real issue is whether the Public Guardian should continue in office as guardian or, as strenuously put by Mr KAX, he should be appointed to replace the Public Guardian as guardian.

16. There are a number of considerations for us in deciding who to appoint. They arise from the Guardianship Act itself and as the result of relevant Supreme Court decisions.

1. Firstly, as required by s 15(3) of the Guardianship Act, when considering the making of a continuing guardianship order we will not appoint the Public Guardian in circumstances where an order “can be made” appointing a suitable private person as guardian.

2. However, s 16(1) of the Guardianship Act requires that any guardian be aged at least 18 years and s 17 of that Act expressly prohibits the appointment of someone as guardian unless the Tribunal is satisfied that the person has a personality generally compatible with the personality of the person under guardianship, has no undue conflict of interest, particularly but not restricted to a financial conflict of interest, in respect of the person under guardianship; and that he or she is willing and able to exercise the functions of the order.

3. In W v G [2003] NSWSC 1170, Justice Windeyer of the Supreme Court of NSW analysed the interaction between ss 15(3), 16, and 17 of the Guardianship Act. He held that s 15(3) of that Act must be read as requiring that the Public Guardian not be appointed in circumstances in which an order can “properly” be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Guardianship Act being given effect. The question for us is not whether the proposed guardian will make a particular decision in the subject person’s best interests, but rather whether he or she is willing and able to exercise their decision-making authority in accordance with the principles set out in the Guardianship Act.

4. The guiding principles set out in s 4 of the Guardianship Act are most relevant here. Section 4 of that Act requires that paramount consideration be given to the welfare and interests of the subject person.

5. It follows that we should balance the willingness expressed by a particular person to be the guardian against their understanding of the principles set out in the Guardianship Act, in particular those set out in s 4. We must focus on the proposed guardian’s awareness of the principles and their process of reaching a decision rather than the substance of any particular decision.

6. Finally, as emphasised in the NSW Supreme Court case of P v D1 & Ors [2011] NSWSC 257, it is important for the candidate for appointment to be able demonstrate to us their insight into their decision-making role and to explain their plans for acting as guardian and that we should be satisfied that if appointed they can act objectively and without perceived conflict of interest. See also: CS and MY v The Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and FGE (2) [2012] NSWGT 3 (16 March 2012).

Our analysis and conclusions on this issue

17. In determining this issue we considered:

1. Mr KAX’s detailed written statements and their annexures;

2. oral submissions made by Mr KAX with the assistance of his McKenzie Friend, Ms XON;

3. Mr KAX’s answers to our questions at the hearing;

4. written reports from the Public Guardian and the brief submissions of Ms Tracey Wilmering, the duty guardian who participated by telephone;

5. the oral submissions from Ms X, Director of Care at the Western Sydney Nursing Home; and

6. brief submissions by Mrs FZX’s other son, Mr IBX, and his answers to our questions.

18. On the basis of that evidence and those submissions and answers we concluded as follows:

1. The interests and welfare of Mrs FZX are best preserved and protected by retaining the Public Guardian as her guardian. We could not be satisfied that they would be preserved and protected by appointing Mr KAX to that role.

2. Although Mr KAX expresses and obviously has an abiding deep relationship with his mother and a genuine concern for her, we could not be satisfied that he has an adequate understanding of the principles in the Guardianship Act, or that if appointed as guardian he would be able to exercise decision-making authority in accordance with the principles set out in that Act. In particular, if appointed as guardian Mr KAX would have an ongoing duty under s 4 of that Act to give his mother’s welfare and interests paramount consideration. We were not persuaded that he would do this, as opposed to making arrangements and decisions for his mother based on his need for her ongoing companionship.

3. The Public Guardian had exercised and would continue to exercise proper oversight in respect of Mrs FZX’s accommodation and care arrangements. In particular, the Public Guardian had exercised appropriate oversight in respect of the accommodation and care arrangements available at the Western Sydney Nursing Home and would continue to do so.

19. In reaching these conclusions we were persuaded, in particular, by the following evidence:

1. Mr KAX’s confirmation that if appointed as guardian he would arrange for his mother’s early transfer from the Western Sydney Nursing Home to a property which he owns in Western Sydney. Mr KAX asserted that arrangements had been made for renovations and changes to this property in order that it would be familiar to Mrs FZX upon her transfer from the nursing home. (We were given to understand that Mrs FZX had previously lived in the property). Mr KAX insisted that his mother would “settle in quickly” to the new accommodation. Against this there was the uncontroverted evidence of Mr IBX that that particular property was presently being rented. Mr KAX, having not mentioned the tenancy to us earlier, then assured us that steps could be taken in the future to terminate the tenancy, but that undermined his earlier assertions as to the availability and suitability of the property.

2. Many of Mr KAX’s complaints about his mother’s present accommodation at the nursing home centred around assertions that his mother did not have sufficient outings or was prevented from making local visits or indeed leaving the nursing home. We accepted the evidence of Ms X from the nursing home that at any time, Mr KAX could pay for additional staff to accompany Mrs FZX on a reasonable outing and that she had told Mr KAX that this was the case and that the nursing home would not stand in the way of reasonable outings, for example for a full morning or afternoon. We note in this regard that Mr KAX was appointed by our orders made on 21 April 2017 as the financial manager of his mother and so could authorise the additional expense, subject to the authorities and directions of the NSW Trustee and Guardian and the conditions attaching to that order.

3. We accepted as reliable and persuasive Ms X’s evidence rebutting Mr KAX’s serious allegations as to ongoing dangers and discomforts to his mother at the nursing home. We preferred Ms X’s evidence to that of Mr KAX on this subject, because her conclusions appeared to be based on sound practice and her professional qualifications and experience and her evidence was consistent. Mr KAX’s evidence reflected a tendency to prevaricate and to exaggerate.

4. Mrs FZX is 99 years of age (she turns 100 on 28 January 2018). Mr IBX submitted that any change of accommodation for someone of that age would be unsuitable and that Mrs FZX in particular would most likely be substantially unsettled by any proposal for a move or by the move itself. We understood that contention to be strongly supported by both the Public Guardian and by Ms X on behalf of the nursing home staff. Mr KAX disagreed with the contention. He told us that he could not see that a change of accommodation for his mother at this stage would be “a big thing”. He appeared to rely on what he regarded as his mother’s ability to adapt readily to her new home because of the changes he had made (or could make) to it. His evidence in that regard is subject to the same deficiencies as noted in subparagraph (1) above. We were not persuaded that Mr KAX has the necessary understanding of or insight as to the accommodation needs of a 99-year-old woman with the health status, the care requirements, and limited capacity of his mother, to justify his appointment as her guardian

Decision-making functions

20. In relation to the existing access function, we accepted the evidence of Ms X and the brief submissions by Ms Wilmering of the Public Guardian as establishing that there is no current need for this function and that access decisions can be managed at the first instance by nursing home staff. We noted that there had been no exercise by the Public Guardian of the access function.

21. In relation to the existing coercive authority, there appeared to be consensus amongst the participants that there was no current need for this authority, which of course substantially restricts Mrs FZX’s freedom of action and decision.

22. In light of Mr KAX’s continuing objection to his mother’s accommodation at the Western Sydney Nursing Home, it was clear to us that the guardian should continue to have the authority to make accommodation decisions. Additionally, the services function should be retained, particularly as it may be possible to arrange further external support services for Mrs FZX. There was nothing to indicate the need for any additional functions.

23. It follows that the order as varied would give the Public Guardian as guardian authority to make decisions about Mrs FZX’s accommodation and services.

Duration of the order

24. We were satisfied on the basis of the evidence and our findings that a reasonably long-term order was appropriate and would not be unduly restrictive of Mrs FZX. There is certainly a need for continuity of decision making for Mrs FZX in her remaining years, particularly in relation to her accommodation and services. That reason we decided to make an order of three years’ duration.

Our decision to make a non-reviewable order

25. We decided to make a non-reviewable order for Mrs FZX. That means that the order will not automatically be reviewed upon its expiry. As we explained to the participants, that leaves it open for any person with a genuine concern for Mrs FZX or the Public Guardian to request a review of the guardianship order. But without such a request the order will lapse on expiry.

26. We decided to make the order non-reviewable because of the need for continuity of Mrs FZX’s accommodation and services as referred to in [24] above and because we were satisfied that in all the circumstances it would be in Mrs FZX’s best interests that the order not be reviewed at its expiration.

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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: 05 July 2018