GAJ

[2018] NSWCATGD 19

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GAJ [2018] NSWCATGD 19

Hearing dates:

6 April 2018

Date of orders:

06 April 2018

Decision date:

06 April 2018

Jurisdiction:

Guardianship Division

Before:

S Roushan, Senior Member (Legal)
F Duffy, Senior Member (Professional)
J Koussa, General Member (Community)

Decision:

BYJ is joined as a Party.

 

The request by BYJ to be legally represented is refused.

 

GAJ is to be separately represented.

 

Today’s hearing is adjourned to 26 April 2018 at 2pm.

 All parties to give to the Tribunal and all other parties and the separate representative for the person (if any), the material they reply upon by 19 April 2018.

Catchwords:

GUARDIANSHIP – application for a guardianship order – application for a financial management order – interlocutory – representation – application for leave to be legally represented – separate representative – adjournment request – adjournment granted – joinder of party – considerations of Tribunal in joinder of party – vulnerability to exploitation – non-English speaking background

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), Pt 7(1) of Sch 6, ss 36, 36(1), 38, 44, 44(1), 45(1)(a), 45(1)(b)(i)–(ii), 45(4)(c), 67
Guardianship Act 1987 (NSW), ss 3F(5), 4
Civil and Administrative Rules 2014 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Guardianship Application

 

GAJ (the person)
TCN (applicant)
BYJ (joined party, other non-party)
Public Guardian
ZBM (spouse)

 

Financial Management Application

  GAJ (the person)
TCN (applicant)
ZBM (carer, spouse)
BYJ (joined party, other non-party)
NSW Trustee and Guardian

Representation:

Nil

File Number(s):

NCAT 2018/00075751

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

Background

1. Mr GAJ is a 72-year-old man of Italian descent. He is currently an inpatient at a public hospital. He was admitted on 6 February 2018, following an unwitnessed fall at home. Prior to admission, Mr GAJ resided at home with his wife Ms ZBM. He has one son from his first marriage, Mr BYJ.

2. Mr GAJ is reported to have dementia and has a history of mental illness.

3. On 3 March 2018, Ms TCN, social worker, lodged an application for guardianship in respect of Mr GAJ. On 9 March 2018, Ms TCN also lodged an application for financial management.

Evidence

4. The evidence before the Tribunal included the following:

1. Application for guardianship. In her application for guardianship, Ms TCN stated that Mr GAJ’s wife has indicated that she cannot look after him at home, due to the possibility of unintentional harm to her – if she were to be mistaken for an intruder. Mr GAJ only speaks Italian and his wife only speaks Mandarin. It is hard for her to liaise with medical professionals and to seek the help needed by Mr GAJ. Mr GAJ’s cognition is declining, and he needs help with activities of daily living. He seems to be more settled in a structured environment. Mr GAJ only wants to go back home and will not agree to a placement in an aged care facility. He requires a guardian to make decisions about accommodation. Mr GAJ’s son, his sister and his niece all believe that Mr GAJ will be better cared for in a nursing home. Mr GAJ’s son has agreed to be appointed as his guardian.

2. Application for financial management. In her application for financial management, Ms TCN stated that Mr GAJ ‘will go to the nursing home as his wife cannot care for him’. Mr GAJ owns a unit bought with the money his son and his ex-wife obtained by refinancing the family home upon their separation. His son is still repaying that mortgage. Ms TCN made a number of allegations, including Mr GAJ’s wife falsely claiming that they were paying the mortgage until two years ago and that Mr GAJ had told her that his wife only wants money and he has to give her money in order for her to come and visit. She also stated that Mr GAJ had told her that he was concerned that his wife would sell the unit and go back to China. Mr GAJ agreed for his son to be his financial manager and said that he wanted to change his will. Mr GAJ’s son has reported that, on 23 November 2016, Mr GAJ’s wife had put her name on the title of the unit as a joint tenant, despite Mr GAJ having mental illness since 2010.

3. Health Professional Report Form completed by Dr Z, Psychiatry Registrar, stating that Mr GAJ has severe dementia, which is progressing slowly. His significant cognitive impairment impacts his decision-making ability. He requires a guardian to make decisions for him in relation to his accommodation and ‘medical care’. Due to his worsening dementia, he is at risk to himself and others if discharged. He has no insight into his illness and there is a risk that he could misidentify his wife as an ‘intruder’ and hurt her.

4. In an ‘addendum’ to her report, dated 29 March 2018, Dr Z stated that a guardianship application had been lodged in relation to Mr GAJ as his wife/person responsible did not feel that she could care for him due to his psychotic symptoms. Subsequently, his son was contacted, and he agreed to be Mr GAJ’s guardian. However, when Mr GAJ’s mental state improved, and he had a successful trial of leave at home, Ms ZBM expressed a wish to care for her husband at home. This was objected to by Mr GAJ’s son, on the basis of ‘severe’ concerns for Mr GAJ to be cared for at home. He believes that Mr GAJ requires high-level care and should be managed in a nursing home. Dr Z stated that the treating team does not think Mr GAJ requires high level of care at this stage and that, whilst he needs assistance with his ADLs, his wife is happy to provide the assistance required.

5. In a further addendum, dated 4 April 2018, Dr Z, together with Dr Y, stated that Ms ZBM is Mr GAJ’s person responsible, ‘but given son's voiced objections to his father returning home with his wife, team seeking clarity about who weighs up the risks/benefits of returning home versus going to a nursing home’.

6. Neuropsychological Assessment Report by Dr X, Senior Clinical Neuropsychologist. Dr X stated that Mr GAJ’s ‘cognitive profile is consistent with a probable moderate to severe stage Alzheimer’s Dementia with concomitant vascular related brain changes and on the background of a history of heavy ETOH use’. Due to his cognitive impairments, Mr GAJ does not have the ability to make decisions. He requires a financial manager and a guardian with coercive accommodation and medical and dental consent functions. Dr X stated that she has been informed that Mr GAJ’s wife does not wish to be appointed as his guardian or financial manager as she is concerned that this will have a negative impact on her relationship with her husband. Dr X stated that the medical team and Mr GAJ’s wife are supportive of his son being appointed as guardian and financial manager. She also noted that she did not believe that Mr GAJ required a guardian with respect to health care and medical and dental consent.

7. In an addendum to her report, dated 29 March 2018, Dr X stated that, following her initial report, Ms ZBM had indicated that she wished to take care of her husband at home and that she wanted to be the one to make all necessary decisions relating to her husband’s care. Dr X stated:

Medical records clearly document on numerous occasions throughout this admission that [GAJ] himself expresses his basic wish to be with his wife and to return to his own home. In [the] family meeting, [ZBM] indicated that she believes her husband’s mental state has improved, that his sleep has improved and that she is happy to take him home.

8. Dr X reported that, in a meeting with Ms ZBM on 29 March 2018, she had stated that she had never indicated that she did not want to make decisions for her husband and that she was distressed about the applications for guardianship and financial management. She indicated that she respects the wishes of her husband and would like to take him home. Dr X stated that Ms ZBM had reported that ‘she will also take advice from the doctors regarding his care needs [and] as Mr GAJ’s wife and carer that she be the one to make all necessary care decisions for him, as she has done over the past few years’. Dr X further noted:

I understand at the time of writing this addendum, that there is a marked degree of family discord between [ZBM] and [GAJ]’s son [BYJ]. [BYJ] has expressed concern that [ZBM] is unable to provide adequate care to his father and that he would like his father placed in an Aged Care Facility due to his ''high care needs'‘. There is currently, nor has there been previously, any concern from the inpatient or community team regarding the appropriateness of care provided to Mr [GAJ] by his wife [ZBM]. Unfortunately it is apparent that the degree of this discord between [BYJ], his father and [ZBM] is longstanding and is not for [GAJ]’s current clinical team to address.

As per my previous neuropsychological report dated 9th March 2018, due to [GAJ]’s moderate to severe dementia and global cognitive impairments, [GAJ] does not possess the depth of cognitive processing required to make fully informed decisions regarding his accommodation, dental, medical, and other care needs. He also does not possess the depth of cognitive processing to make fully informed decisions regarding his financial management. At present, given the trial leave has been successful and his wife, [ZBM], is keen to continue to provide full-time care for her husband, it is my professional opinion, that [ZBM] can continue to make all relevant decisions regarding her husband’s accommodation, medical, dental and financial decisions as his Person Responsible. (emphasis added)

9. Statement by Ms ZBM, stating that she is 67 years’ old. Neither she nor her husband speaks English and they ‘are amongst the most defenceless and vulnerable members of society’. She stated that she had not been informed about the application and the proceedings and expressed strong objections to the manner in which Ms TCN had proceeded with the applications for guardianship and financial management.

10. Ms ZBM stated that she has been living with Mr GAJ since 2005 and they were married in 2007. They have had a harmonious and happy life together for more than a decade. She looks after all his activities of daily living, complex medical needs and appointments. Mr GAJ had told her previously that his son has repeatedly asked him to sell the unit they currently live in and to give the money to him. Mr GAJ had refused and had told Ms ZBM that he must include her in his will because he did not want her to be ‘kicked out’ by his son. That is why her name is on the deed for the unit and she had paid the remaining balance of the mortgage in late-2016. She stated that Mr GAJ’s son had rarely visited his father and she questioned his motives in wishing to be appointed as financial manager.

11. Letter from Ms W, stating that she and her husband have been friends with Mr and Ms ZBM for eight years. She attested to their loving relationship and Ms ZBM’s commitment to her husband’s care.

12. Letter from Dr V, stating that he has been a neighbour of Mr and Ms ZBM since they moved into their unit some 10 years ago and that he has always found Ms ZBM to be caring wife.

13. Letter from Dr U, stating that Mr GAJ and Ms ZBM have been his patients for many years. Since 2010 when Mr GAJ was diagnosed with a mental illness, his wife has been his carer and has accompanied him to all medical appointments. She has taken good care of him.

5. On 3 April 2018, Mr T of a law firm wrote to the Tribunal, requesting leave to legally represent Mr BYJ in the proceedings. Mr T stated that his client ‘is the Guardian and Financial Manager nominated by the Public Guardian in the Application filed by Ms TCN on behalf of the Public Guardian’. Mr T stated that Mr BYJ ‘does not understand the complexities of legal proceedings and the legal moves made by [Ms ZBM] pertaining to our client’s father’s unit’.

The Hearing

6. The hearing was held on 6 April 2018. Mr GAJ was assisted by an interpreter in Italian and English languages and Ms ZBM was assisted by an interpreter in Mandarin and English languages.

7. At the end of these Reasons for Decision is a list of the witnesses who attended the hearing. [Appendix removed for publication.]

Joinder

8. Pursuant to s 36 of the Civil and Administrative Tribunal Act 2013 (NSW), the guiding principle to be applied to practice and procedure in the Tribunal ‘is to facilitate the just, quick and cheap resolution of the real issues in the proceedings’ consistent with the objects and principles under that Act.

9. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 (NSW) do not otherwise make provision. The Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s 38 and s 67.

10. Section 3F(5) of the Guardianship Act 1987 (NSW) provides that the parties to an application for a financial management order include any person whom the Tribunal has joined as a party under s 44 of the Civil and Administrative Tribunal Act. Section 44(1)(a) of the Civil and Administrative Tribunal Act allows the Tribunal to order that a party be joined, if the Tribunal considers that the person should be joined.

11. Sub-clause 7(1) of Sch 6 of the Civil and Administrative Tribunal Act provides as follows:

7   Tribunal may join parties

(1) The Tribunal may make an order under section 44(1) of this Act joining a person as a party to proceedings for the exercise of a Division function if, in the opinion of the Tribunal, the person should be a party to the proceedings (whether because of the person’s concern for the welfare of the person the subject of the proceedings or for any other reason).

…

12. Mr BYJ did not submit a formal application to request to be joined as a party. However, his intention to do so was clear from the information before the Tribunal. This was confirmed in his evidence at the hearing.

13. On the basis of the evidence before it, the Tribunal was satisfied that Mr BYJ had demonstrated a genuine concern for the welfare and interests of his father. The Tribunal could not see that there was any private, sensitive, or confidential material available for the review to which Mr BYJ should not have access. The Tribunal decided to join Mr BYJ as a party to the proceedings.

Representation

14. A party to proceedings in the Tribunal has the carriage of the party’s own case and is not entitled to representation (s 45(1)(a) of the Civil and Administrative Tribunal Act).

15. A party may only be represented by another person if the Tribunal grants leave for the person to represent the party (s 45(1)(b)(i) of the Civil and Administrative Tribunal Act) or in the case of representation by an Australian legal practitioner – for a particular or any legal Australian legal practitioner to represent the party: s 45(1)(b)(ii) of the Civil and Administrative Tribunal Act.

16. The Tribunal exercises a protective jurisdiction in relation to people with decision making disabilities. When exercising any of its functions under the Civil and Administrative Tribunal Act or the Guardianship Act, it must have regard to the principles set out in s 4 of the Guardianship Act including the requirement to give paramount consideration to the welfare and interests of persons who have disabilities.

17. The Tribunal has broad discretion to decide whether to grant an application for a person to represent a party or for legal representation generally and takes into account the principles in s 4 of the Guardianship Act when making a decision about such an application. Some considerations that may be relevant to the Tribunal’s determination to grant leave are:

• Whether representation will promote the principles in s 4 of the Guardianship Act, in particular the paramount consideration: the interests of the subject person

• The guiding principle set out in s 36(1) of the Civil and Administrative Tribunal Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings

• Any disability or other factor that impedes the party’s capacity to fully participate in the hearing

• The nature and seriousness of the interests of the party that are affected by the proceedings

• Whether the party’s interests and point of view conflict with those of other parties

• Whether the proceedings involve complex legal or factual issues

• Fairness between the parties. It may be unfair if one party is represented but another is not, particularly if the subject person is unrepresented or the parties are in conflict

• Whether representation may assist a party to focus on the relevant issues and may promote a conciliatory approach in the proceedings

18. At the hearing, Mr T submitted that he would be able to assist with facilitating the just, quick and cheap resolution of the issues. When pressed as to how he would be able to do so by legally representing Mr BYJ, he stated that he is of Italian descent, he speaks Italian, he is familiar with the Tribunal’s processes and he has an understanding of the issues as he regularly visits nursing homes. Mr T further submitted that, as Mr BYJ has been proposed as his father’s guardian, he would be able to assist the Tribunal by helping his client, who is anxious, to express his views.

19. Mr BYJ told the Tribunal that he has never appeared before a Tribunal before and this was all new to him. He wished to be legally represented as he wanted to ensure that his views are expressed clearly because he desired the best outcome for his father.

20. Having carefully considered the evidence before it, the Tribunal was not persuaded that leave should be granted. As it was noted at the hearing, the proceedings affected the rights and interests of Mr GAJ. Mr BYJ’s rights were not significantly in issue in these proceedings. Whilst the Tribunal appreciated that Mr BYJ had felt anxious in anticipation of the proceedings, he did not possess any linguistic or other disadvantages that impeded his participation. Mr GAJ was assisted by an interpreter in the Italian language and the Tribunal could not see how Mr T’s Italian language skills would assist the process. Moreover, neither Mr GAJ nor his wife was legally represented. The Tribunal was not satisfied that Mr BYJ being legally represented would be fair or would necessarily assist in promoting a conciliatory approach in the proceedings. Finally, it appeared to the Tribunal that no unusual legal issues would arise in the proceedings.

21. For these reasons, the Tribunal decided not to grant leave for Mr T to represent Mr BYJ in these proceedings. However, the Tribunal made it clear to Mr T that he was free to remain throughout the hearing as a McKenzie friend, and that he would be able to give advice and assistance to Mr BYJ in that capacity.

Separate Representation

22. The Tribunal may order that a party be separately represented: s 45(4)(c) of the Civil and Administrative Tribunal Act.

23. The Tribunal has a broad discretion to decide whether a subject person should be separately represented. The s 4 principles of the Guardianship Act guide the Tribunal’s decision to order that a party be separately represented.

24. The Tribunal may decide to appoint a separate representative for the subject person if:

• There is a serious doubt about the subject person’s capacity to give legal instructions but there is a clear need for the person’s interests to be independently represented at the Tribunal hearing or they wish to be represented

• There is an intense level of conflict between the parties about what is in the best interests of the subject person

• The subject person is vulnerable to or has been subject to duress or intimidation by others involved in the proceedings

• There are serious allegations about exploitation, neglect or abuse of the subject person

• Other parties to the proceeding have been granted leave to be legally represented

• The proceedings involve serious and /or complex issues likely to have a profound impact on the interests and welfare of the person with a disability, such as end-of-life decision making or proposed sterilisation treatment.

25. On the basis of the available evidence, the Tribunal considered that the appointment of a separate representative for Mr GAJ would be in his best interest. In reaching this view, the Tribunal had regard to the following considerations:

1. Mr GAJ has dementia and a history of mental illness. He speaks only Italian. His wife of more than 10 years, Ms ZBM, speaks only Mandarin. The combination of his disabilities, linguistic and cultural disadvantage limits his ability to express his views.

2. Medical professional reports initially presented views pertaining to Mr GAJ and his wife, which formed the basis of the position the authors took with respect to Mr GAJ’s best interests. Ms TCN’s applications, in particular, did not appear to be a fair representation of the totality of Mr GAJ’s circumstances, including his wife’s views. The authors of the reports subsequently changed their position and presented a different perspective. This has raised serious questions as to whether Mr GAJ’s views and bests interests have been, or would be, presented in a consistent and reliable manner.

3. There is an intense level of conflict between Mr GAJ’s son and Mr GAJ’s wife in relation to what is in Mr GAJ’s best interests. Cultural and linguistic issues, including what is culturally appropriate or needed, may be contributing factors in preventing Mr GAJ’s views and best interests being presented as they are or in an impartial manner. Mr GAJ’s views should be obtained and presented independently to ensure his welfare and interests are protected.

26. For the above reasons, the Tribunal decided that Mr GAJ should be separately represented.

Adjournment

27. Having regard to the circumstances of this matter, the Tribunal decided it was appropriate to adjourn the hearing in order for a separate representative to be appointed to seek out Mr GAJ’s views wherever possible, to canvass the views of others involved in the proceedings and to present these to the Tribunal.

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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: 21 December 2018