HCN

[2020] NSWCATGD 87

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

HCN [2020] NSWCATGD 87

Hearing dates:

3 November 2020

Date of orders:

3 November 2020

Decision date:

03 November 2020

Jurisdiction:

Guardianship Division

Before:

J Kearney, Senior Member (Legal)
J M Wortley, Senior Member (Professional)
D R Sword, General Member (Community)

Decision:

Guardianship

1. A guardianship order is made for HCN.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 3 November 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where HCN may reside.

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

i) take HCN 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 HCN may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to HCN.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management

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

2. The management of the estate of HCN is committed to 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 an inpatient in hospital – need for decision in relation to accommodation upon discharge – need for medical and dental consent decisions – need for healthcare and services decisions – proposed guardian not suitable to be appointed – potential conflict of interest – Public Guardian appointed – order made.

FINANCIAL MANAGEMENT – application for a financial management order – capacity to manage one’s own affairs – proposed financial manager not suitable to be appointed – potential conflict of interest – financial management order made – appointment of NSW Trustee and Guardian as financial manager – order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 25E, 25G, 25M

Cases Cited:

CJ v AKJ [2015] NSWSC 498

IF v G [2004] NSWADTAP 3

McD v McD (1983) 3 NSWLR 81

P v NSW Trustee and Guardian [2015] NSWSC 579

Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Guardianship Application

HCN (the person)
DNE (applicant)
Public Guardian

002: Financial Management Application

HCN (the person)
DNE (applicant)
NSW Trustee and Guardian

Representation:

Nil.

File Number(s):

NCAT 2020/00297238

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 appointed the Public Guardian as guardian for HCN for a period of 12 months to make decisions on HCN’s behalf about his accommodation, health care, medical and dental treatment and services with authority to direct others to return HCN to a location nominated by the guardian.

2. The Tribunal ordered that the NSW Trustee and Guardian be appointed the financial manager for the estate of HCN.

Background

3. HCN is 71 years of age and is an inpatient at a Public Hospital AB. HCN has been diagnosed with Korsakoff Syndrome. HCN has a sister, Ms Z who lives in regional NSW. On 9 September 2020 HCN was admitted to the Public Hospital YZ before being transferred to the Public Hospital AB on 22 September 2020. Prior to his recent admission to hospital, HCN lived in his unit at regional NSW.

4. On 16 October 2020, the Tribunal received a guardianship application and financial management application from DNE, a social worker at the Public Hospital AB. The Public Guardian was nominated to become HCN’s guardian and the NSW Trustee and Guardian was nominated to become the financial manager for HCN’s estate.

5. On 3 November 2020, the Tribunal heard the applications.

The Hearing

6. At the end of these reasons for decision is a list of the parties to the application and the participants who attended the hearing. [Appendix removed for publication.]

7. The hearing was conducted at the Tribunal’s Sydney registry with the participants attending by telephone.

GUARDIANSHIP

What did the Tribunal have to decide?

8. The relevant legislation governing the issues raised in these proceedings is the Guardianship Act 1987 (NSW) (“the Act”).

9. In making decisions under the Act, the Tribunal is required to have regard to the general principles set out in s 4 of the Act. There are eight principles set out in s 4 of the Act which provide as follows in relation to the person with a disability:

1. The welfare and interests of such persons should be given paramount consideration;

2. The freedom of decision and freedom of action of such persons should be restricted as little as possible;

3. Such persons should be encouraged…to live a normal life in the community;

4. The views of such persons…should be taken into consideration;

5. The importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised;

6. Such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs;

7. Such persons should be protected from abuse, neglect and exploitation;

8. The community should be encouraged to apply and promote these principles.

10. Section 14 of the Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is “a person in need of a guardian”. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person”: the Act, s 3(1). A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age,

3. a mentally ill person with the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: the Act, s 3(2).

11. The questions which had to be decided by the Tribunal were:

• Is HCN someone for whom the Tribunal could make an 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 order should be made?

• Who should be the guardian?

• How long should the order last?

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

12. The Tribunal had the benefit of the following medical reports about HCN:

• Medical progress note from Dr Y, geriatrician at the Public Hospital YZ, dated 21 September 2020;

• Medical progress note from Dr X, junior medical officer at the Public Hospital AB, dated 26 September 2020;

• Certificate of capacity from Dr X, junior medical officer at the Public Hospital AB, dated 8 October 2020;

• Medical progress note from Dr W at the Public Hospital AB, dated 9 October 2020;

• Occupational therapy report from Ms V, occupational therapist at the Public Hospital AB, dated 12 October 2020;

• Health professional report from Ms U, clinical nurse specialist at the Public Hospital AB, dated 12 October 2020;

• Health professional report from Ms T, clinical dietician at the Public Hospital AB, dated 13 October 2020;

• Speech pathology report from Ms S, speech pathologist at the Public Hospital AB, dated 14 October 2020;

• Health professional report from Dr R at the Public Hospital AB, dated 15 October 2020;

• Social work report from DNE, social worker at the Public Hospital AB, dated 15 October 2020.

13. In combination, the reports were consistent in terms of HCN’s diagnosis of Korsakoff Syndrome and him having a mild brain injury arising from a subdural haematoma which is reportedly chronic and will not improve. The Tribunal was told that HCN’s cognitive capacity was declining with HCN scoring 12/30 on a Montreal Cognitive Assessment (‘MoCA’) on 18 September 2020 and 9/30 for a MoCA on 6 October 2020. The Tribunal heard that HCN’s cognition was at risk of further decline if he re-commenced drinking alcohol.

14. HCN said he “could not agree whole-heartedly” with the diagnosis or any perceived lack of capacity he had to make significant lifestyle decisions on his own. His presentation was consistent with the observations of his medical treating team in that even when he heard that his medical treating team recommended his placement into a residential aged care facility, HCN said he understood that they were content for him to return to his unit at regional NSW. HCN was expansive in giving his evidence to the effect that he rejected the submission that he was incapable of looking after himself in his unit or that he needed a guardian.

15. Ms Z’s evidence was to the effect that she agreed with her brother’s diagnosis and that her brother was incapable of making informed decisions about significant lifestyle issues.

16. The medical participants agreed that HCN is a person for whom a guardianship order can be made. The Tribunal noted the view of HCN and Ms Z.

17. The Tribunal was satisfied that on the basis of the reports and the evidence at hearing, HCN’s disability causes him to be unable to manage his person, in the sense of making informed decisions about significant issues in his life. He is therefore a person for whom a guardian can be appointed.

Should the Tribunal make a guardianship order and if so, what order should be made?

The Legal Principles

18. The Act sets out in s 14(2), specific considerations to be applied when considering whether to make a guardianship order. The Tribunal is directed to consider:

1. the views of the person, their spouse (if a continuing and close relationship exists), and the person who has the care of the person;

2. the importance of preserving existing family relationships;

3. the importance of preserving cultural and linguistic environments;

4. the practicability of services being provided to the person without the need for making such an order.

19. Basically, the Tribunal is directed to positively consider whether the circumstances of the life of the person under consideration require the appointment of a legally-authorised substitute decision-maker, or whether their need for appropriate decision-making can be achieved in less formal ways?

20. These matters have no hierarchy or weighting, and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v G [2004] NSWADTAP 3).

21. The Tribunal heard that HCN’s discharge plan recommends that it is not safe for him to return to his home and that he requires 24-hour supervision.

22. We had regard to the medical reports referred to above, as well as the oral evidence of the participants. The evidence explained the need for formal decision-making in each of these areas of HCN’s life as summarised below:

• HCN’s long-term accommodation is uncertain. HCN has a unit at regional NSW to which he wants to return, against the recommendations of his medical treating team who consider his needs would be best met by permanent residential aged care. Decisions need to be made about where he will live.

• The Tribunal heard that for the first four to six weeks of his admission at the Public Hospital AB, HCN would either deliberately attempt to abscond from the hospital or get disorientated finding the toilet from his bed and there was a risk that he may either deliberately or unintentionally become disorientated and abscond from his accommodation in the future. Ms Z and HCN disputed that there was any risk of either of these events occurring and that if a decision was made for HCN to enter into a residential aged care facility, he would stay there.

• HCN has ongoing medical conditions requiring ongoing monitoring, particularly in relation to his subdural haematoma which requires regular brain scans to be conducted. Ms Z said her brother had never been to a doctor in his life and had received dental treatment at a local hospital. Decisions may need to be made for future medical interventions.

• HCN may benefit from further assessments and services depending on what services are available at any future accommodation he enters. Subject to where HCN lives, enquiries relating to his health care and services may be required. Ms Z agreed that this function would be required.

23. The Tribunal noted HCN’s view which was that he was capable of managing his person and did not need a guardian.

24. All other participants agreed that a guardian should be appointed, albeit they gave varying views on what functions were required.

25. On the basis of the evidence, the Tribunal was satisfied that a guardianship order was needed in HCN’s life to promote his welfare and interests with the power to make decisions about HCN’s accommodation, health care, medical and dental treatment and services with authority to direct others to return HCN to a place nominated by the guardian.

Who should be the guardian?

26. The Tribunal is required to consider the importance of preserving existing family relationships and the importance of preserving cultural and linguistic environments.

27. Ms Z nominated herself to be her brother’s guardian. HCN said that if he had to have a guardian he would prefer his sister over the Public Guardian.

28. DNE confirmed that the Public Guardian should be appointed.

29. Ms Z said that if the medical treating team recommended her brother enter a nursing home, she would follow that advice. Her preference was for the nursing home to be close to where she lives so that she could easily visit him. The Tribunal explored the potential for a breakdown in Ms Z’s relationship with her brother in the event he was unhappy with her decision to place him in a nursing home. She said that she was confident that there would be no breakdown in their relationship.

30. The Tribunal heard that Ms Z intended to move into HCN’s unit in the event that he was placed into an aged care facility. When it was put to her that a condition of HCN’s entry into such a facility may be the payment of a refundable accommodation deposit (‘RAD’) which might mean his unit had to be sold, Ms Z was adamant that the unit would not be sold as it was ultimately meant to go to her children.

31. The Tribunal became concerned that Ms Z may be incapable of putting her brother’s welfare and best interests above her own. For this reason, the Public Guardian was appointed.

How long should the order last?

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

33. For the reasons indicated above, the Tribunal has fixed the term of this order at one year.

FINANCIAL MANAGEMENT

What did the Tribunal have to decide?

34. Section 25E of the Act provides that the Tribunal may make a financial management order and s 25G of that Act sets out the grounds on which an order can be made.

35. The questions to be considered by the Tribunal are:

• Is HCN incapable of managing his affairs?

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

• If so, who should be appointed financial manager?

Is HCN incapable of managing his affairs?

The Legal Principles

36. The test for determining a person’s capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]–[308]):

“Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests?

…

[A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.”

37. In considering whether the person is “able” in this sense, regard may be given to:

• the past and present experience as a predictor of the future course of events

• the support systems available to the person

• the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498, at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, at [309].

38. The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86). See Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [20].

39. Each case must be considered on its own facts, including not only actual facts presently known but also, so far as they can be known, prospective changes in circumstances.

40. The Tribunal noted the medical reports referred to above. HCN said that he could manage his own money but that in the future he would defer to his sister to help him manage his financial affairs.

41. Ms Z said that she already helped HCN with the payment of his bills by prompting him to do so and taking him to the post office to facilitate these transactions. She said that her brother does not have capacity to manage his financial affairs.

42. Having heard this evidence, HCN agreed that his sister does prompt him to pay his bills.

43. The medical witnesses agreed with Ms Z that HCN is a person for whom a financial management order can be made.

44. The Tribunal had regard to HCN’s view.

45. Considering all the evidence, the Tribunal was satisfied that HCN is incapable of managing his affairs.

Is there a need for a financial management order?

46. HCN said his estate consisted of:

• A bank account with a balance “in the thousands”;

• Another bank account with a balance “in the thousands”;

• His unit at regional NSW valued at about $550,000.

47. He said the unit could be sold at any time but “he had spoken at length with his sister and would prefer leaving it to the family.”

48. He denied receiving a government pension, despite Ms Z’s interjection that he did receive a pension. He said he receives income from his bank accounts but having explored the reason for this, HCN could not explain why. He said that to his knowledge he has no outstanding bills.

49. HCN said he does not have an enduring power of attorney, with Ms Z expressing her dismay that this had not occurred prior to her brother’s decline.

50. HCN was clear to say that the informal arrangement between him and his sister was sufficient the appointment of a financial manager was not needed. The Tribunal had regard to his view.

51. Given the medical treating team’s view about HCN’s future accommodation, the Tribunal was concerned that a financial manager may be required (at the very least) to complete various forms to satisfy the Commonwealth government’s requirement for an income and assets test and sign contracts to permit HCN to enter an aged care facility.

47. For the reasons above, the Tribunal concluded that there was a need to appoint someone to manage HCN’s affairs and that it was in his best interests for a financial management order to be made.

If so, who should be appointed financial manager?

53. In appointing a financial manager, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accord with the other principles set out in s 4 of the Act.

54. Section 25M the Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian. There are two broad categories from which a financial manager can be chosen, a private financial manager or a public financial manager.

55. In deciding who should be appointed, some of the considerations are whether:

• the financial manager will make any decisions affecting the protected person’s welfare and interests in the best interests and for the benefit of the protected person;

• the financial manager will focus on the facts of the protected person and preferably with due consultation with the protected person and their family and carers as is necessary;

• a member of the protected person’s family or a public or institutional manager will be better able to engage in consultation with the protected person and their family and carers as is necessary;

• the complexity of the protected person’s estate and the need to manage the estate in the most cost-effective and efficient way;

• there is any conflict of interest between the proposed financial manager and the protected person;

• any proposed private financial manager is able to comply with the administration of the estate in accordance with the directions of the NSW Trustee and Guardian and be able to engage with the NSW Trustee and Guardian as may be required during the course of their appointment.

56. Ms Z nominated herself to be her brother’s financial manager. HCN said that if a financial manager had to be appointed he would prefer his sister rather than the NSW Trustee and Guardian.

57. DNE confirmed her nomination of the NSW Trustee and Guardian.

58. Noting the evidence referred to above about Ms Z’s intention to move into HCN’s unit, the Tribunal explored with her whether she could see that there may be a conflict of interest between her desire for accommodation and HCN’s possible transition to an aged care facility? Ms Z said that having heard about the possibility of the unit being sold, she would be going to see her lawyer.

59. The Tribunal had regard to the views of HCN and Ms Z, however, the Tribunal became concerned that if Ms Z was appointed, she may be exposed to a potential conflict of interest between her interests and those of her brother’s.

60. The Tribunal found that HCN’s best interests would be served by a financial management order with the NSW Trustee and Guardian appointed as financial manager.

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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: 03 May 2022