HJC

[2018] NSWCATGD 7

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	HJC [2018] NSWCATGD 7
Hearing dates:	29 January 2018
Date of orders:	29 January 2018
Decision date:	29 January 2018
Jurisdiction:	Guardianship Division
Before:	A Britton, Principal Member W E Blaxland, Senior Member (Professional) J Koussa, General Member (Community)
Decision:	The application for appointment of a guardian for Mr HJC is dismissed after hearing.
Catchwords:	GUARDIANSHIP – application for guardianship order where enduring guardians appointed – no evidence that enduring guardians not acting in subject person’s best interests – when appointment of enduring guardian comes into effect – whether enduring guardian is required to make decisions in accordance with directions given by appointor
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3, 3(2), 4, 4(a), 4(d), 6, 6A(1)(a), 6D(1), 6D(2)(a), 6E(1)(a), 6J(1), 7, 14, 16(2)
Category:	Principal judgment
Parties:	001: Guardianship Application   Mr HJC (the person) Mr JZC (applicant, enduring guardian) Mr QAC (enduring guardian) Public Guardian
Representation:	Nil
File Number(s):	NCAT 2017/00377332
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

1. In October 2017, eighty-nine-year-old Mr HJC moved to live in residential aged care in Northwest Sydney after a short admission to a public hospital. Prior to that admission, Mr HJC had been living independently in regional NSW.

2. In December 2017, one of Mr HJC’s sons, Mr JZC, made an application to the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT) seeking a guardianship order in respect of his father (the Application). Mr JZC wrote that the reason he made the Application was because of his father’s insistence that he return to live in a suburb in regional NSW. That suburb is a three and half hour drive from Northwest Sydney.

3. In May 2014, Mr HJC executed an instrument appointing his sons, Mr JZC and Mr QAC to act as his enduring guardians, jointly and severally. Under that instrument, Mr HJC conferred on his sons a number of functions, which included the power to make decision about where he should live, in the event he became a “person in need of a guardian”. Because Mr HJC made that appointment together with the absence of any evidence to suggest that the appointed guardians were not acting in their Mr HJC’s best interests, we decided not to exercise the power to make a guardianship order.

4. In these reasons all reference to “HJC” are to Mr HJC.

Operation of an enduring guardian appointment

5. To explain the reasons for declining to exercise the power to make a guardianship order in respect of Mr HJC, it is necessarily to consider the statutory provisions governing the appointment of enduring guardians and guardianship orders made under the Guardianship Act 1987 (NSW) (the Act).

6. A person of or above the age of 18 years may, by instrument in writing, appoint a person as his or her guardian: s 6 of the Act. To be valid, the instrument of appointment must comply with a number of requirements, which include that the instrument is in the prescribed form, is signed by the appointor, is endorsed with the appointee's acceptance of the appointment, and the execution of the instrument by the appointor and appointee is witnessed by one or more eligible witnesses: s 7 of the Act. Subject to its terms, the instrument appointing a person as an enduring guardian, authorises the appointee, while the appointment has effect, to exercise a number of functions. These include deciding the place (such as a specific nursing home, or the appointor's own home) in which the appointor is to live: s 6E(1)(a) of the Act.

7. The appointor may under the instrument of appointment, appoint two or more enduring guardians to act jointly, severally or jointly and severally: s 6D(1) of the Act. If the instrument appoints two or more enduring guardians to act both jointly and severally, the appointees are authorised to act jointly or severally at their discretion in relation to the appointor, unless otherwise provided by the instrument of appointment: s 6D(2)(a) of the Act.

8. An appointment of an enduring guardian has effect only during such period of time as the appointor is a “person in need of a guardian”: s 6A(1)(a) of the Act. Section 3 of the Act defines a “person in need of a guardian” to mean a “person who, because of a disability, is totally or partially incapable of managing his or her person”. In turn, s 3(2) of the Act states that a reference to a person who has a disability is a reference to a person:

(a)    who is intellectually, physically, psychologically or sensorily disabled,

(b)    who is of advanced age,

(c)    who is a mentally ill person within the meaning of the Mental Health Act 2007, or

(d)    who is otherwise disabled,

and who, 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.

9. This outline of the governing legalisation reveals that by making an instrument of appointment, the appointor, gives to the enduring guardian(s) the power to make decisions on their behalf, in respect of the functions conferred by the Act, or the instrument of appointment, throughout any period or periods, the appointor is a “person in need of a guardian”. By executing the instrument of appointment, Mr HJC authorised his sons, Mr QAC and Mr JZC, to make decisions about a number of matters, including accommodation, during any period or period he is a “person in need of a guardian”.

10. The Act gives the Tribunal the power to review the appointment (or purported appointment) of an enduring guardian: s 6J(1). On review, the Tribunal may, among other things, revoke or confirm the appointment, with or without varying the functions of the enduring guardian. Alternatively, if the Tribunal considers that it is in the best interests of the appointor to do so, the Tribunal may deal with a review of the appointment of an enduring guardian, as if an application has been for a guardianship order.

11. Section 14 of the Act gives the Tribunal the power to make a guardianship order in respect of a person, if the Tribunal is satisfied that the person is a “person in need of a guardian”. Among other things the Tribunal must specify in any guardianship order made which of the functions of a guardian the guardian shall have in respect of the person under guardianship: s 16(2) of the Act.

12. While the routes to making a guardianship order and an enduring guardian appointment are different — a guardianship order is made by the Tribunal; an enduring guardian appointment is made by the appointor — each authorise certain decisions to be made on behalf of the subject person. A guardianship order can only be made if the person is a “person in need of a guardian”. The power to exercise the functions of an enduring guardian can only be exercised during the period(s) the subject person is a “person in need of a guardian”.

13. In these proceedings, Mr HJC indicated that he was now resigned to the fact that because of poor health he was now unable to return to live at home. (Apparently he held a different view when the initiating application was made to NCAT.) At the hearing he stated that he would prefer to live in an aged care facility closer to the suburb in regional NSW so that he could remain in contact with his friends. Mr QAC and Mr JZC stated they had reviewed accommodation options closer to the suburb in regional NSW and had formed the view that they are inferior to the facility where their father now resides at Northwest Sydney. They indicated however that if after inspecting the available options, their father continued to hold the view that he would prefer to live closer to his old home, they would defer to his wishes.

Should the appointment be revoked or a guardianship order made?

14. While not necessary for us to express a concluded view, the available medical evidence suggests that Mr HJC is now a “person in need of a guardian”, and as a consequence the 2014 appointment has come into effect.

15. Mr HJC’s dissatisfaction with the decision made by his sons to move him to Northwest Sydney is not, of itself, a reason to exercise the power to make a guardianship order. While s 4(d) of the Act instructs that an enduring guardian must take into account the views of the appointor in the exercise of the functions conferred by the instrument of appointment, the Act does not require the enduring guardian to make decisions in accordance with the wishes of the appointor. The statement of principles listed in s 4 of the Act require the enduring guardian when making substitute decisions on behalf of the appointor, to balance a number of potentially competing considerations. These include, restricting the appointor’s freedom of decision making and action as little as possible, encouraging, as far as possible, the appointor to live a normal life in the community, protecting the appointor from neglect, abuse, and exploitation. At all times the paramount consideration is the welfare and interest of the appointor: s 4(a) of the Act.

16. In our view, given the facts of this case, no useful purpose would be served in making a guardianship order. At a time when he apparently had capacity to make decisions of significance, Mr HJC decided to appoint his sons as his substitute decision-makers, in the event he became a person in need in a guardian. There is no evidence to suggest that his sons have abused their respective positions or not sought to act in their father’s best interests. The fact that Mr HJC now disagrees with their decision about his accommodation does not warrant the exercise of the power to make a guardianship order or appoint another individual to act as Mr HJC’s enduring guardian.

17. For these reasons we have decided to dismiss the application to make a guardianship order.

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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 April 2018