IBX

[2014] NSWCATGD 3

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

IBX [2014] NSWCATGD 3

Hearing dates:

24 January 2014

Decision date:

24 January 2014

Jurisdiction:

Guardianship Division

Before:

D'Arcy J, Senior Member (Legal)
Hollis J, Senior Member (Professional)
Circuitt M, General Member (Community)

Decision:

Limited guardianship order made for a period of 12 months; Public Guardian appointed with accommodation, services, health care and medical and dental consent functions.

Financial management order made with exclusion of pension; NSW Trustee and Guardian appointed.

Catchwords:

GUARDIANSHIP - application for guardianship order - subject person refusing services and accommodation decisions - subject person objecting to order - limited guardianship order.

FINANCIAL MANAGEMENT - application for financial management order - sale of property - capacity to instruct solicitor - vulnerability to exploitation - order made with exclusion.

Legislation Cited:

Guardianship Act 1987 (NSW)

Cases Cited:

Re GHI (a protected person) [2005] NSWSC 581
PY v RJS [1982] 2 NSWLR 700
H v H (unreported) NSW Supreme Court 20 March 2000
McD v McD (1983) 3 NSWLR 81

Category:

Principal judgment

Parties:

Mr IBX
Mrs FNN (Applicant)
Ms KAO (Applicant)
The Public Guardian
The NSW Trustee and Guardian

File Number(s):

55336

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. The Tribunal appointed the Public Guardian as Mr IBX's guardian for a period of 12 months to make decisions on his behalf about his accommodation, services, health care and consent to medical and dental treatment as set out in the Tribunal's Order.

1. The Tribunal committed the estate of Mr IBX to the NSW Trustee and Guardian.

Background

1. Mr IBX is an 85-year-old man of Austrian background. For the past 20 years he has lived alone on a property in regional NSW which is jointly owned with his friend, Mr SED. He is said to have limited social contacts and is reported to have dementia.

1. On 27 December 2013 Mr IBX was admitted to regional hospital A following a fall.

1. On 16 January 2014 Ms KAO, social worker, regional hospital A, applied for the NSW Trustee to be appointed as his financial manager because a purchaser had been found for the property and the sale of the property jointly owned by him and Mr SED was imminent.

1. On 22 January 2014 Mrs FNN, manager, Service Provider Z applied for the Public Guardian to be appointed as Mr IBX's guardian because his failing health and mobility prevent him from living on the property where there is no power, no running water and an infestation of beetles in his bedding and around his home. He is a major falls risk. When his living conditions are discussed with him he threatens to leave to live in Austria.

1. A list of parties to the review and witnesses at the hearing is attached as an appendix to these Reasons for Decision. [Appendix removed for publication]

GUARDIANSHIP

Issues to be determined by the Tribunal

1. Before the Tribunal may make a guardianship order it must be satisfied that:

• Mr IBX is a person with a disability within the meaning of the Guardianship Act 1987 (NSW) ('the Guardianship Act') and that because of that disability, he is totally or partially incapable of managing his person; and
• There is a need for a guardianship order to be made for Mr IBX.

Disability and Incapacity

1. 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 (NSW), 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 habitation (subsection 3(2) of the Guardianship Act).

1. Dr Z, Advanced Trainee - Geriatrics, regional hospital A, stated that Mr IBX had significant hearing and visual impairments and is in the early stages of vascular dementia. He has declined cognitively in the last six to nine months, although his capacity maybe intact to make certain decisions.

1. Ms KAO stated that he had no insight into his situation and was not coping.

1. Solicitor Y is a solicitor with Legal Aid. She interviewed Mr IBX in relation to the sale of the property. In the same interview he was adamant that he would not sell the property and later said that he would sell. She was concerned about his capacity to give instructions which could be reliably followed. She also raised concerns about his capacity to make choices when presented with different options.

1. Occupational therapist, Ms MOJ provided a report dated 10 January 2014 in which she stated that Mr IBX had a traumatic brain injury about 15 years ago which has left him with decreased insight, difficulty with structuring conversations, perseveration, poor short-term memory, reduced judgement and a vulnerability to financial exploitation. She recorded a Mini Mental Status Examination score of 16/30 on 9 January 2014.

1. Dr Z commented that this score may have been affected by his visual and hearing impairments, also noting that, pre-morbidly, he was not highly intelligent.

1. Although there is no recent and comprehensive cognitive assessment the Tribunal considered Mr IBX's age together with the recent diagnosis of vascular dementia, his significant visual and hearing impairments, his lack of insight into the potential difficulties of his current living situation and Solicitor Y's assessment that he was unable to give reliable instructions to find that Mr IBX does have a disability which affects his capacity to make reasoned and well informed decisions about his lifestyle. He is therefore a person to whom a guardianship order could be made, if necessary.

Need for a Guardianship Order

1. According to Ms FNN, Mr IBX is living in squalid conditions and the hospital is reluctant to discharge him to his isolated property where there is no electricity, running water and where his house is infested with beetles. Due to the condition of the house services could not be provided there for him.

1. Decisions need to be made as to whether he returns to his property or alternative accommodation is found for him.

1. Due to his significant visual and hearing impairments queries were raised as to whether Mr IBX is able to make decisions about his health care or consent to treatment. If he returns to live at home daily services will be required to assist him.

1. Mr IBX was adamant that he did not need anyone to help him. He could make his own decisions and he wanted to return to live on his property indefinitely.

1. In considering whether to make a guardianship order, the Tribunal must consider the views of the person who is the subject of the application, the person's spouse and carer. The Tribunal must take into account the principles set out in section 4 of the Guardianship Act, which includes the principle that the welfare and interests of the person should be given paramount consideration. The Tribunal must also have regard to the practicability of services being provided to the person without the need for a guardianship order.

1. The Tribunal carefully considered Mr IBX's view but, given his lack of insight into the difficulties of his current living conditions for a man of his age with his impairments, the Tribunal preferred the views of the treating team that it is in Mr IBX's best interests to appoint a substitute decision maker for him to ensure that the most appropriate decision is made about his future accommodation and services so that consideration can be given to him remaining living independently with appropriate services for as long as possible.

The Guardian and the Functions of the Guardian

1. There being no proposal for a private guardian, the Tribunal appointed the Public Guardian as Mr IBX's guardian to make decisions about his accommodation, services needed to support him in his accommodation, health care and medical and dental consent.

1. The Tribunal is satisfied that the term of the order should be for 12 months, which is the usual maximum period for an initial guardianship order. At the end of this period the Tribunal will review the order.

1. The Tribunal decided in all of the circumstances to make an order for a period of one year, which is sufficient time to permit the Public Guardian to make decisions about his accommodation and services and to provide the Tribunal, at the end of the period, with an assessment of whether he has an ongoing need for a guardian, and, if so, whether any variation is warranted in the functions granted to the guardian.

FINANCIAL MANAGEMENT

Issues to be determined by the Tribunal

1. Before the Tribunal may make a financial management order it must be satisfied that:

• Mr IBX is incapable of managing his own financial affairs;
• There is a need for another person to manage those affairs; and
• It is in his best interests that a financial management order is made.

Capability

1. Mr IBX's and Mr SED's property is currently on the market for a purchase price of around $400,000. Mr SED advised that the prospective purchaser would allow Mr IBX to remain on the property for one to two years.

1. Ms KAO raised concerns that with his lack of insight and his trusting nature Mr IBX is open to financial exploitation. He had advised her that his neighbours had offered him $100,000 for the property and those same neighbours charge him $50 every time they take him shopping.

1. 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..."

1. 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."

1. 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).

1. In applying the above test to Mr IBX's situation, the Tribunal was satisfied that he was not reasonably competent in dealing with the sale and the proceeds of sale of his jointly owned property. The Tribunal's view was reinforced by Solicitor Y's view that he was not capable of giving reliable instructions about his property.

1. The Tribunal concluded that Mr IBX was incapable of managing his financial affairs.

Need and Best Interests

1. The need for a financial management order is created by the imminent sale of Mr IBX's property and it is clearly in his best interests that a financial management order is made to protect him from financial exploitation.

1. However there is no evidence that Mr IBX has mismanaged his pension in the past, nor is there any evidence of debts or other financial problems.

The Financial Manager

1. In the absence of any proposals for the appointment of a private financial manager, the Tribunal appointed the NSW Trustee and Guardian as Mr IBX's financial manager.

1. In doing so, the Tribunal decided to exclude from management any pension that Mr IBX receives from Centrelink or from overseas.

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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: 10 April 2014