HME

[2015] NSWCATGD 36

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	HME [2015] NSWCATGD 36
Hearing dates:	19 June 2015
Date of orders:	19 June 2015
Decision date:	19 June 2015
Jurisdiction:	Guardianship Division
Before:	S McCarthy, Senior Member (Legal) R Curran, Senior Member (Professional) S Johnston, General Member (Community)
Decision:	The Tribunal consented to the request that the application for a guardianship order be withdrawn.  The Tribunal appointed two private financial managers for Mrs HME, jointly and severally.
Catchwords:	GUARDIANSHIP – no need for order to be continued – substitute medical consent can be provided informally – Tribunal consented to request to withdraw application for guardianship order   FINANCIAL MANAGEMENT – where protected person unable to participate owing to disability – whether in the best interests of the protected person to proceed with the hearing in her absence – capability to manage affairs – need for a financial management order – who should be appointed – private managers appointed jointly and severally
Legislation Cited:	Guardianship Act 1987 (NSW)
Cases Cited:	H v H (unreported) NSW Supreme Court 20 March 2000 Holt v Protective Commissioner (1993) 31 NSWLR 227 McD v McD (1983) 3 NSWLR 81 at 86 PY v RJS [1982] 2 NSWLR 700 Re GHI (a protected person) [2005] NSWSC 581
Category:	Principal judgment
Parties:	Mrs HME (the subject person) Mrs QAB (the applicant) The NSW Trustee and Guardian The Public Guardian
Representation:	Nil
File Number(s):	59260
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

What the Tribunal decided

1. The Tribunal consented to the request by Mrs QAB that the application for a guardianship order concerning Mrs HME be withdrawn. The application for guardianship is dismissed.

2. The Tribunal appointed Mrs QAB and Mrs SCQ as Mrs HME's financial managers, jointly and severally, subject to the authorities and directions ordered by the NSW Trustee and Guardian.

Background

3. Mrs HME is aged 68 years who resides at an aged care facility in Regional NSW. Mrs HME's husband, Mr EJE, died on 12 May 2015. Mrs HME's family includes her son, Mr EPL, and sister, Mrs QAB. Mrs QAB made an application for guardianship and financial management concerning Mrs HME.

The Hearing

4. At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing. [appendix removed for publication]

What did the Tribunal have to decide?

GUARDIANSHIP

5. The questions which had to be decided by the Tribunal in relation to guardianship were:

• Is Mrs HME someone for whom the Tribunal could make an order because she has a disability which prevents her 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?

WITHDRAWAL OF APPLICATION FOR GUARDIANSHIP

6. Mrs HME commenced residing at the aged care facility for respite on 8 April 2015 and became a permanent resident on 6 May 2015. There are no current important life decisions to be made regarding Mrs HME. She receives all necessary care, services and support at the care facility. Mrs QAB is the 'person responsible' for Mrs HME and can provide substitute consent for Mrs HME's health care, medical treatment and medications. Mrs QAB submitted that the application for guardianship concerning Mrs HME be withdrawn as there are no important life decisions to be made for Mrs HME at the present time requiring a formal guardian. The Tribunal consented to the request that the application for guardianship be withdrawn and dismissed the application.

FINANCIAL MANAGEMENT

7. The questions which had to be decided by the Tribunal in relation to financial management were:

• Is Mrs HME incapable of managing her affairs?

• Is there a need for another person to manage Mrs HME's affairs and is it in her best interests for a financial management order to be made?

• If so, who should be appointed financial manager?

Is Mrs HME incapable of managing her affairs?

8. A person's capability to manage his or her affairs was considered by Campbell J in the NSW Supreme Court in Re GHI (a protected person) [2005] NSWSC 581. Campbell J affirmed the approach enunciated in PY v RJS [1982] 2 NSWLR 700 by Powell J, at paragraph 7:

"It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears:

(a)    that he or she is incapable of dealing, in a reasonably competent fashion with the ordinary routine affairs of man; and

(b)    that by reason of that lack of competence there is shown to be a real risk that either

(i)   he or she may be disadvantaged in the conduct of such affairs; or

(ii)   that such moneys or property that he or she may possess may be dissipated or lost...it is not sufficient in my view merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner..."

9. Young J in H v H (unreported) NSW Supreme Court 20 March 2000, in dealing with the capacity test as it has been enunciated in NSW, said that dealing with the "ordinary affairs of man" does not simply mean being able to go to the bank and draw out housekeeping money. Most people's affairs, his Honour said,

"are more complicated than that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one's family and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills."

10. It should be noted that 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).

11. Dr Z, Medical Officer in Geriatric Medicine at a public hospital, stated that Mrs HME has global deficits in executive functioning, naming, recall, orientation and attention. The doctor is of the view that Mrs HME is incapable of dealing in a reasonable and competent fashion with ordinary routine affairs and moneys and property that she may possess may be dissipated or lost. Mrs HME scored 5/30 in a mini mental assessment.

12. Dr Y stated that Mrs HME has severe Alzheimers dementia and is not capable of making informed decisions about her financial affairs. Dr X stated in a report dated 30 June 2012 that Mrs HME has very advanced dementia.

13. Mrs HME did not attend the hearing. Mrs QAB stated that Mrs HME would be unable to take part in the hearing or understand the proceedings. The Tribunal decided to hear and determine the application in the absence of Mrs HME as it is in her best interests to do so. Mrs HME is not able to effectively take part in the hearing.

14. The Tribunal was satisfied that Mrs HME is incapable of managing her financial affairs. She is not capable of dealing with her affairs or planning for her financial future. She is not capable of making important life decisions concerning her financial matters.

Is there a need for another person to manage Mrs HME's affairs and is it in her best interests for a financial management order to be made?

15. Mrs HME commenced residing at the aged care facility for respite on 8 April 2015 and became a permanent resident on 6 May 2015. An accommodation bond of $450,000 is payable to the care facility. Mrs QAB advised that in order to pay the accommodation bond that Mrs HME's house in West Sydney needs to be sold. Mrs HME has not made an enduring power of attorney.

16. Dr Z supports the appointment of a financial manager for Mrs HME.

17. Mrs QAB stated that Mrs HME has outstanding care facility fees to be paid. There is a need to deal with Mrs HME's superannuation account, her financial accounts. There are expenses to be reimbursed to Mrs HME's family members for expenses paid on her behalf by her family. There are also expenses to be paid for the facility fees for Mrs HME's son, Mr EPL. Mrs QAB said that Mrs HME wishes to ensure that her son's care needs are looked after.

18. The Tribunal was satisfied that there is a need to appoint someone to manage Mrs HME's affairs and it is in her best interests that an order be made. There are decisions to be made concerning Mrs HME's financial affairs include dealing with her house, superannuation, savings and care facility fees. No person currently has the legal authority to deal with Mrs HME's financial affairs on her behalf.

Who should be appointed financial manager?

19. In appointing a financial manager, as in making all other orders under the Guardianship Act 1987 (NSW) ('the Guardianship Act'), the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in section 4 of the Guardianship Act.

20. Section 25M of the Guardianship 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.

21. In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. Mrs QAB stated that she seeks to be appointed as the financial manager for Mrs HME. She seeks that her daughter, Mrs SCQ, also be appointed as financial manager for Mrs HME if Mrs QAB is not able at some stage in the future to act as financial manager. The son of Mr EJE supports the appointment of Mrs QAB as the financial manager for Mrs HME. The sister and brother of Mrs HME support the appointments.

22. The Tribunal was satisfied that Mrs QAB and Mrs SCQ are suitable persons to be appointed as the financial managers for Mrs HME subject to the authorities and directions of the NSW Trustee and Guardian. The appointments of Mrs QAB and Mrs SCQ are made jointly and severally as Mrs QAB has indicated that she seeks the assistance of Mrs SCQ to manage Mrs HME's financial affairs if Mrs QAB is not able to do so at some stage in the future.

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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: 02 December 2015