In the Matter of LQL

[2018] ACAT 53

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

IN THE MATTER OF LQL (Guardianship) [2018] ACAT 53

GT 40/2018

Catchwords:              GUARDIANSHIP – primary consideration when assessing suitability of appointment of a guardian and manager is the protection of the welfare and interests of the particular protected person concerned – preference for appointment of an individual over public administration where the Tribunal is satisfied that the individual is suitable for appointment – matters to take into account when assessing suitability for appointment – non-exhaustive guidelines regarding guardianship and administration appointments and decisions – fiduciary duties of a guardian or attorney – written reasons elaborating on earlier ex tempore oral reasons

Legislation cited:      Guardianship and Management of Property Act 1991 ss 5A, 7, 8, 9, 10, 16, 19, 29

Cases cited:               Holt v Protective Commissioner (1993) 31 NSWLR 227
  LA v Protective Commissioner [2004] NSWADTAP 39

In the Matter of AB [2017] ACAT 67

In the Matter of AB [2018] ACAT 18

M v M [2013] NSWSC 1495

Negri v Secretary, Department of Social Services [2016] FCA 879
Public Trustee for the ACT v Lee [2014] ACAT 69
Re LSC and GC [2016] NSWSC 1896
SH v Protective Commissioner [2006] NSWADTAP 4
Smith v Smith [2017] NSWSC 408

Tribunal:                   Presidential Member G McCarthy
  Senior Member M Matheson

Date of Orders:  24 April 2018

Date of Reasons for Decision:         15 May 2018

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL           )           GT40/2018

IN THE MATTER OF LQL

TRIBUNAL:Presidential Member G McCarthy

Senior Member M Matheson

DATE:24 April 2018 

ORDER

Appointment of Guardian

1.The Public Trustee and Guardian is appointed guardian for [LQL] (the protected person) with the following powers:

(a)     to decide where, and with whom the protected person is to live;

(b)    to do things necessary to give effect to decisions about the matters set out above, including (but not limited to):

(i)giving or receiving information; or

(ii)giving consent to investigations and assessments; or

(iii)participating in negotiations; or

(iv)signing documents.

2.The Tribunal will review this appointment on its own initiative before 23 October 2018.[1]

[1] The original order incorrectly stated "23 October 2021". The error has been corrected.

3.The guardian must notify the Tribunal of any changes to the address of, or of any other significant change in circumstances of, itself or of the protected person.

Appointment of Manager

4.The Public Trustee and Guardian is appointed as manager to manage all of the property including finances of [LQL] (the protected person) with the following powers:

(i)     all the powers the protected person would have been entitled to exercise if she were legally competent to exercise powers in relation to her property including her finances herself.

5.The Tribunal will review this appointment on its own initiative before 23 October 2018.[2]

[2] The original order incorrectly stated “23 October 2021”. The error has been corrected.

6.The manager must notify the Tribunal of any changes to the address of, or of any other significant change in the circumstances of, itself or of the protected person.

……………Signed……………..

Presidential Member G McCarthy

STATEMENT OF REASONS

1.On 24 April 2018, the Tribunal heard two applications for appointment of a guardian and manager for a woman referred to in these reasons for decision as LQL. [3]

[3] The letters ‘LQL’ have been used to preserve the anonymity of the proposed protected person and her family. The letters bear no resemblance to the initials of the proposed protected person.

2.The first application was brought by LQL’s daughter, referred to as LDL in these reasons for decision, for appointment of herself as LQL’s guardian and manager.

3.The second application was brought by one of LQL’s husband’s daughters, referred to as LJL in these reasons for decision, for appointment of the Public Trustee and Guardian (PTG) as LQL’s guardian and manager. LQL’s husband is referred to as LRL in these reasons for decision.

4.LDL attended the hearing, and was represented at the hearing by her solicitor. LJL was unable to attend the hearing for important but unrelated personal reasons. LQL and LRL attended the hearing, together with a friend of long-standing who attended to provide them with comfort and support. Another of LRL’s daughters, referred to in these reasons as LKL, also attended the hearing. An officer of the PTG also attended.

5.At the conclusion of the hearing, and in recognition of the need for a prompt appointment of a guardian and manager, the Tribunal appointed the PTG as LQL’s guardian with power to decide where and with whom she is to live and as her manager with plenary power to make decisions concerning her property including her finances.

6.The Tribunal gave ex tempore oral reasons for its decision, but considered that the important matters of principle that arose in this case warranted written reasons for decision referenced to the applicable legislation and earlier authority. These are those reasons, which elaborate upon but are consistent with the earlier oral reasons with reference to authority.

7.In Negri v Secretary, Department of Social Services[4] Bromberg J of the Federal Court commented on the delivery of detailed written reasons for decision in these circumstances:

As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning.

The view that I have reached is consistent with the practical constraints of a busy tribunal, not wholly constituted by lawyers. It accommodates the desirable goal of the Tribunal giving unelaborate ex tempore oral reasons in appropriate matters. It furthers the objective of fair, just, economical, informal and quick review[5]

Factual background

[4] Negri v Secretary, Department of Social Services [2016] FCA 879

[5] Negri v Secretary, Department of Social Services [2016] FCA 879 at [27] – [28]

8.LQL married LRL in March 1990.[6] They have been married for more than 28 years. LQL is now 87 years old. The Tribunal was told that LRL is 92. Both had been married previously. LQL had her daughter, LDL, and a son by her earlier marriage, although her son has predeceased her. LDL is LQL’s only surviving child. LRL has four daughters (including LJL and LKL) and a son by his earlier marriage.

[6] The letters ‘LRL’ have been used to preserve the anonymity of the proposed protected person’s husband and his family

9.It was apparent at the hearing that LQL and LRL have enjoyed and continue to enjoy a strong and loving marriage and relationship. LDL and LKL agreed.

10.The Tribunal received a report from LQL’s family doctor that LQL “is suffering from moderately severe dementia” and no longer has “the testamentary capacity to make decisions for herself concerning her health, finances or daily care.” The Tribunal was told that LQL’s physical and mental abilities have declined to the point that she is no longer able to live safely in her home despite the best efforts of her husband and outside care providers. In the interests of her health and welfare, she is presently living in a nursing home in respite care. LRL has elected also to stay at the nursing home. He stated that he has done so in order to be with his wife and to fulfil his promise to her that he would care for her as best he can.

11.All persons who attended the hearing agreed, and the Tribunal was satisfied, that LQL has impaired decision-making ability in relation to matters concerning her health and welfare; that a decision needs to be made in relation to where she should live; and that her needs will not be met unless a guardian is appointed. It followed that a guardian needed to be appointed under section 7 of the Guardianship and Management of Property Act 1991 (the Act) for LQL with power to make that decision. The Tribunal so found.

12.Arising from her mental and physical decline, LQL will need to live somewhere where she can obtain significant medical and practical support on a daily basis. Her options will depend, to a significant degree, upon her means. Also, her assets will be relevant when determining any bond she would be required to pay in order to access supported accommodation. The Tribunal was conscious that in most if not all cases the bond amount payable is ‘means tested’, and can be very substantial. For a person owning significant assets, particularly their own home, in most cases the most sensible option in order to obtain the necessary bond money is to sell the proposed protected person’s home (particularly where the protected person will no longer be living there) and to avoid placing the protected person into debt.

13.In any event, significant decisions will need to be made regarding LQL’s property including her money in connection with where she will live. The Tribunal was satisfied that LQL has impaired decision-making ability in relation to her financial matters and matters affecting her property; that decisions need to be made in relation to her finances and property; and that if a manager is not appointed her needs will not be met. Consequently, the Tribunal was satisfied that a manager needed to be appointed under section 8 of the Act to make decisions concerning her property including her finances. Again, those who attended the hearing agreed.

14.In issue was who should be appointed as LQL’s guardian and/or manager. On the applications before the Tribunal, the options were LDL and the PTG.

Legal framework

15.Section 10 of the Act sets out a statutory framework that the Tribunal must apply when considering the appointment of a guardian or manager:

10 Considerations affecting appointment

(1)     A person must not be appointed as a guardian or manager unless the person consents in writing to the appointment.

(2)     A person (except the public trustee and guardian or a trustee company) must not be appointed as a guardian or manager unless the person is an adult and has informed the ACAT on oath whether the person—

(a)has been convicted or found guilty of an offence involving violence, fraud or dishonesty; or

(b)has been, either in the ACT or elsewhere, refused appointment as a guardian or manager, or removed from office as a guardian or manager; or

(c)is bankrupt or personally insolvent (and, if so, has given particulars to the ACAT).

Note        Bankrupt or personally insolvent—see the Legislation Act, dictionary, pt 1.

(3)     Someone (other than the public trustee and guardian) may be appointed as a guardian or manager only if the ACAT is satisfied that the person will follow the decision-making principles and is otherwise suitable for appointment.

(4)     For subsection (3), the matters the ACAT must take into account include—

(a)the views and wishes of the person (the protected person) for whom a guardian or manager is to be appointed; and

(b)the desirability of preserving existing relationships with family and any other carers; and

(c)whether the proposed guardian or manager is compatible with the protected person; and

(d)whether the proposed guardian or manager lives in the ACT; and

(e)whether the proposed guardian or manager will be available and accessible to the protected person; and

(f)the nature of the functions to be exercised under the order and whether the proposed guardian or manager is competent to exercise them; and

(g)whether the interests and duties of the proposed guardian or manager are likely to conflict with the protected person’s interests to the detriment of the protected person’s interests.

(5)     The interests and duties of the domestic partner or a relative of a person must not be taken to be likely to conflict with the interests of the person only because of the fact of being the domestic partner or relative.

16.There is no issue that LDL consented in writing to her appointment for the purposes of section 10(1), and that she satisfies the criteria in section 10(2). In issue is whether the Tribunal is satisfied that she will follow the decision-making principles and is otherwise “suitable for appointment”.

17.The Tribunal here notes that sections 9(3) and (4) of the Act constrain the circumstances in which the PTG may be appointed as a person’s guardian or manager as follows:

(4) The public trustee and guardian must not be appointed as a person’s guardian if an individual who is otherwise suitable has consented to be appointed.

(5) The public trustee and guardian or a trustee company must not be appointed as a manager of a person’s property if an individual who is otherwise suitable has consented to be appointed.

18.By reference to sections 9(3) and (4), the PTG is sometimes described as the appointment ‘of last resort’.

19.The Tribunal queries that characterisation, which suggests the PTG can or should be appointed only where there is no one else who could fulfil the role. It is more a question of preference from the options available in the application/s before it.

20.In the case In the Matter of AB[7] the Appeal Tribunal characterised the preference by noting that although the Act contemplates that either the PTG or an individual may be appointed, the Act “also makes it clear that if in a particular case a choice between two can be made, the categories of potential appointees are not equal.”[8] The Appeal Tribunal referred to an earlier decision of an appeal tribunal in Public Trustee for the ACT v Lee,[9] in which that tribunal stated that the Explanatory Statement to the Bill giving rise to the Act “clearly indicated that where there is a suitable, natural person available such as a relative or close friend, that person takes precedence in terms of appointment”.

[7] In the Matter of AB [2017] ACAT 67, upheld on appeal in In the Matter of AB [2018] ACAT 18

[8] In the Matter of AB [2017] ACAT 67 at [67]

[9] Public Trustee for the ACT v Lee [2014] ACAT 69

21.In Holt v Protective Commissioner,[10] Kirby P of the NSW Supreme Court of Appeal described the preference for an individual person where a choice needed to be made as a “sensible hierarchy of choices”.

[10] Holt v Protective Commissioner (1993) 31 NSWLR 227

22.The shift away from the appointment of a public administrator where a suitable natural person is available for appointment stemmed from the decision of the NSW Court of Appeal in Holt where Kirby P commented on (then) section 22 of the Protected Estates Act 1993 (NSW) which stated:

22. The Court may, by order, appoint a suitable person as manager of the estate of a protected person in respect of whom it has made an order under section 13 or may, by such an order, commit the management of the estate of any such protected person to the Protective Commissioner.

23.Commenting on section 22, Kirby P said:

It will not have escaped attention that when parliament enacted s 22 of the Act (above) it provided first that a “suitable person” should be appointed as manager of the estate of a protected person and only secondly that the management of that estate should be committed to the Protective Commissioner. This is a sensible hierarchy of choices. In many estates of modest size it will be appropriate where there is no risk of conflict of interest and duty, and where a relationship of love or affection is established, to reflect in the statutory appointment the form of management which for millennia, in primitive societies as in civilised communities, has been followed when a family member is found to be incapable of managing his or her affairs. It is normal then for the family to step in. The courts conserved their intervention to cases where there is no family or where no family are willing to act or for special reasons of incompetence or conflict of interest it is unsuitable to appoint a family member. There is a danger in the administration of the Act of overlooking not only this natural order of things but the way in which parliament has reflected it in the terms of s 22 of the Act.[11] (emphasis added)

[11] Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238G – 239B

24.The provisos about the appointment of a family member (or another suitable person) in preference to the Protective Commissioner, or in this case the PTG, are important. Earlier, Kirby P noted that an appointment or a change of appointment must be:

guided always by the welfare and best interests of the beneficiary as the dominant consideration.[12]

[12] Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238C – D

25.In AB, the Tribunal noted that a guardian or manager may be appointed “only if” the Tribunal is satisfied that the person will follow the decision-making principles and is “otherwise suitable for appointment”. The Tribunal continued:

70.     The key criterion in relation to an individual is that they are “otherwise suitable” for appointment (section 9(4), (5), section 10(3)). When deciding whether a person is “otherwise suitable”, the Tribunal must take into account the factors listed in section 10(4).

71.     Although the Tribunal “must take into account” those listed matters, they can affect, but need not determine, whether a particular person is suitable for appointment as a guardian or manager.

72.     In many instances it will be obvious that an individual will follow the decision-making principles and is “otherwise suitable” for appointment.

73.     The Tribunal must consider closely the matters listed in the GMP Act and may consider other matters, if the suitability for appointment of an individual is contested. The present proceeding is such a case. (emphasis added).

26.In AB, AB’s father had applied for guardianship of his son. Notwithstanding AB meeting most of the criteria in section 10(3), the Tribunal was not satisfied that he was “suitable for appointment” because of his repeated interventions with his son’s treating team which impeded and interfered with a treatment program designed to reduce AB’s symptoms of chronic schizophrenia.[13]

[13] In the Matter of AB [2017] ACAT 67 at [146]

27.In Holt, the parties invited the Court to provide “guidelines” regarding appointment of a person to manage the estate of a protected person. The Court was unwilling to provide guidelines, save to observe a general guideline that the court (or tribunal) is bound to consider “all relevant circumstances”. Nevertheless, Kirby P was willing to provide the following “checklist of considerations [that ] might be kept in mind” (references omitted):

1.The application invites the exercise of a discretion. That discretion is conferred on the court in the exercise of a special jurisdiction. It derives from legislation. It must therefore be exercised keeping in mind the purposes of the legislation, not narrowing the exercise to circumstances developed for other purposes around other legislation;

2.An application for the removal of a person validly appointed as a manager will not invoke the same discretion as the initial appointment of such a person or another as manager. As in any application, it will normally be necessary, at least forensically, for the party seeking a change in the status quo to show some reason why the court should so order;

3.The abiding rule in the exercise of powers under the Act is the achievement of best interests of the protected person. This is a rule common to all trust and quasi trust relationships.

4.Where it is shown that a person appointed as manager is incompetent or has acted in a relevant way improperly or unlawfully, the court may terminate the appointment and appoint another manager;

5.Ordinarily, a person who would face a conflict of interest and duty would not be appointed a manager of a protected person's estate. However, in some family situations, inter-related property interests may present such conflicts. Sometimes they will be more apparent than real. They do not necessarily present an absolute bar to appointment as a manager for otherwise this would exclude from consideration a range of family members in every other way appropriate;

6.When weighing up the competing advantages of appointing a family member or the Protective Commissioner to manage the estate of a protected person, the court may take into account as relevant:

(a)     to the appointment of the Protective Commissioner, the following advantages:

(i)     the manifest independence of his statutory office;

(ii)   the advantages of a dispassionate and neutral approach where there is a potential for family conflict and sharply divided views concerning the best interests of the protected person;

(iii)   the expertise of his staff, their experience in managing estates, the know how accumulated by them over time and their impeccable reputation; and

(iv)   the security provided to the estate against loss or damage; and

(b)to the appointment of a family member, the following advantages:

(i) the size and complexity of the estate: in a smaller estate it may often be appropriate to appoint a family member who will be entirely familiar with the assets and liabilities and readily able to manage them with greater economy and possibly free of cost to the protected person. The Protective Commissioner is entitled to and ordinarily does recover fees under the Act;

(ii)   the capacity of the protected person, if disabled, to interact with his or her manager so that, so far as possible, within the disability which has led to the appointment, such person may remain in charge of, or at least able to influence, the broad directions of the management of the estate;

(iii)     the ingredient of love and affection and unquestioning devotion to the protected person which an appropriate family member can add to the task of management. Whilst the office of manager is, by its definition, concerned with proprietary and financial matters and involves the prudent control of the property and like interests of the protected person, in the nature of things the manager of the estate of a protected person is more likely than a general trustee or receiver to become involved in decisions which affect the protected person's quality of life. A lifetime knowledge of the person and a devotion to his or her interest may contribute to that quality. It may more readily be secured by the appointment as manager of a family member with the requisite knowledge and motivation;

(iv)     any special features of the case which may require particular attention. Thus, in the instant case there was the special feature that, since the original appointment, the marriage between Mr Michael Holt and his wife has been dissolved, a large damages verdict has been recovered and new arrangements have been made for the daily care of Mr Michael Holt; and

(v)   any special qualities of the applicants to act as managers will be relevant. Although professional training does not necessarily guarantee good management, the fact that one of the present appellants is a chartered accountant and the other a medical practitioner suggests, at least, the possibility that they would not be unfamiliar with the management of large sums of money.

Different considerations may affect the management of an estate comprised of few liquid assets when contrasted to one which enjoys substantial and regular income. The court, appointing a manager from the family of the protected person, should satisfy itself that the income and (where necessary) the capital assets of that person's estate are devoted to the protected person's interests. Especially where (as here) the bulk of the estate is made up of a verdict calculated by reference to the protected person's expectation of life and as compensation for injuries, disabilities, pain and suffering and loss of the enjoyment of life it is appropriate that the capital and income should be expended, as intended, to advance the quality of life of the protected person rather than to increase in due course the assets of the protected person's family.[14]

[14] Holt v Protective Commissioner (1993) 31 NSWLR 227 at 241F – 243D. The checklist has been consistently applied: see for example LA v Protective Commissioner [2004] NSWADTAP 39 and SH v Protective Commissioner [2006] NSWADTAP 4

28.In M v M,[15] Lindsay J of the NSW Supreme Court noted with approval Kirby P’s ‘checklist’ in Holt and then provided his own non-exhaustive ‘guidelines’ that (he said) might be borne in mind “when the Court is called upon to make a decision about the identity of a manager of a protected estate or the substitution of one manager for another”. Lindsay J referenced each guideline to authority although those authorities are omitted here for reasons of brevity:

[15] M v M [2013] NSWSC 1495

(a) First, the jurisdiction the Court is called upon to exercise is not a “consent jurisdiction”. An order for the appointment, removal or replacement of a particular manager is not to be made merely because a party, or some other person, seeks it, consents to it or acquiesces in it … The Court is bound to exercise an independent judgment because of the public interest element in the decision to be made and the possibility, if not the fact, that the protected person lacks the mental capacity requisite to informed decision-making.

(b) Secondly, the governing purpose of the jurisdiction exercised by the Court is protection of the welfare and interests of the particular protected person concerned.

(c) Thirdly, any decision made affecting the welfare or interests of a protected person must be made in a manner, and for a purpose, calculated to be in the best interests, and for the benefit, of the protected person..

(d) Fourthly, care needs to be taken in all decision-making affecting a protected person to focus on the facts of the particular case, preferably with due consultation with the protected person, his or her family and carers who may be well placed to inform the Court of the protected person's particular circumstances.

(e) Fifthly, in the choice of a manager consultation of the welfare and interests of a protected person may favour appointment of a member of his or her family over the appointment of an institutional manager.

(f) Sixthly, decisions need to be made in the context of a prudential management regime that can be administered, without strife in the simplest and least expensive way, in the interests of the protected person.

(g) Seventhly, regard needs to be had to the value and nature of the property comprising a protected person's estate in deciding upon the identity of a manager or an appropriate management plan.

(h) Eighthly, recognition needs to be given to the status and obligations of a manager of a protected estate as the holder of a fiduciary office. This means that the Court, managers and other affected persons need to be alive to the importance of avoiding, or at least minimising, exposure of a protected person to dangers associated with a manager having a conflict between a duty owed to the protected person and the manager's personal interests. Nevertheless, it must also be recognised that the liability of a manager of a protected estate to account may differ from that of a trustee of an ordinary trust to the extent necessary to accommodate the protective purpose of the manager's appointment.

(i) Ninthly, in conformity with fiduciary law, the office of a manager of a protected estate must generally be regarded as a gratuitous one unless, by an order of the Court or by legislation, a special arrangement to the contrary is made.

(j) Tenthly, in deciding whether, when and on what terms a manager of a protected estate is to be allowed remuneration out of the estate, care needs to be taken not to shift the focus of decision-making from what is in the best interests, and for the benefit, of the protected person to a perceived “right” on the part of any, or any prospective, manager to remuneration. If a manager is to be allowed remuneration, a decision to that effect must be driven by the perspective of the protected person, not the perspective of the manager.

(k) Eleventhly, the primacy given to the protective purpose of the Court's jurisdiction carries with it, as a correlative, the absence in any manager (public or private) of a legal entitlement to be, or to remain, manager of a particular protected estate.

(l) Twelfthly, a decision about whether a manager should be replaced may need to be approached differently from one made about the identity of an appointment as an initial manager because of a perceived need to identify an acceptable reason (ie, one governed by the purpose of the protective jurisdiction and consideration of the best interests of, and benefits available to, the protected person) for change. Depending on the facts of the particular case this may, but will not necessarily, involve recognition that an applicant for change bears, at least, a forensic onus to establish a case for change.

(m) Thirteenthly, a manager, or prospective manager, of a protected estate needs to have given thoughtful attention (in the case of a private manager, in consultation with the NSW Trustee and, in the context of the Corporations Act, the Australian Securities and Investments Commission) to the development, and operation, of a plan for management of the protected person's estate.

(n) Fourteenthly, although disputes about the management of a protected estate may at times need to be determined in an adversarial setting, an exercise of protective jurisdiction is not inherently, or necessarily, adversarial in nature. That reality finds expression in the Court's approach to orders for costs in protective list proceedings. The Court ordinarily exercises its discretion, not by reference to a rule that costs follow the event, but having regard to what, in all the circumstances, seems proper.

(o) Fifteenthly, part of the role of the Court in its exercise of protective jurisdiction is to give consideration to the manner and form of a decision-making process calculated to ensure that the protective purpose of the jurisdiction is duly served.

(p) Sixteenthly, in the context of the current legislative and administrative regime for management of protected estates, the Court will ordinarily require that any substantial decision it may be called upon to make affecting a protected estate, beyond the routine, is made on notice to the NSW Trustee, allowing the NSW Trustee to be heard in an appropriate case and inviting its assistance where necessary.

29.The checklist and guidelines stated by Kirby P in Holt and by Lindsay J in M v M are useful aids when considering whether a person is ‘suitable’ for appointment, per section 10(3) of the Act, but both judges made clear that their guidelines are not exhaustive, that all relevant circumstances must be considered in each case and that the governing purpose of the jurisdiction is the protection of the welfare and interests of the proposed protected person.

30.In Re LSC and GC[16] Lindsay J said:

The governing purpose of an exercise of protective jurisdiction by the Court is protection of the welfare and interests of the particular protected person concerned; any decision made affecting the welfare or interests of such a person must be made in a manner, and for a purpose, calculated to be in the best interests, and for the benefit, of that person[17] (emphasis in the decision)

[16] Re LSC and GC [2016] NSWSC 1896

[17] Re LSC and GC [2016] NSWSC 1896 at [50]

31.When considering whether LDL was “suitable for appointment”, the starting point was the list of matters in section 10(4) of the Act which the Tribunal “must take into account.”

32.The Tribunal first noted, per section 10(4)(a) of the Act, that the primary view and wish of LQL is to be with her husband, to continue living with her husband so far as she is able, and to enable his wish to be with her and look after her. LQL’s love for her husband is mirrored by her husband’s love for her. All those at the hearing agreed, and the Tribunal found, that the promotion, protection and support of their relationship is therefore an important consideration when determining who should be appointed as LQL’s guardian and manager.

33.This gave relevance to LRL’s views and wishes about who should make decisions on LQL’s behalf because those decisions and who is making them is likely to impact, for better or worse, on LQL’s relationship with LRL and his with her. LRL stated that he had “real concerns” about the appointment of LDL. His view was corroborated by a statutory declaration made by LDL in which she states that LRL “has become very antagonistic towards me”. LRL supported the appointment of the PTG as an independent person (or office) to make decisions on LQL’s behalf.

34.The Tribunal concluded that to appoint LDL to make decisions on behalf of LQL was likely to be detrimental to her mother’s relationship with her husband, contrary to LQL’s primary wish.

35.Section 10(4)(b) of the Act required the Tribunal to take into account the desirability of preserving existing relationships with family and other carers. At one level there is little to preserve. There appeared to be very little interaction between LDL and any of LRL’s daughters. LDL stated that she did not know LKL’s surname, despite LKL living with LQL and LRL since January 2018 and being her sister by marriage for 28 years. There is plainly a poor relationship between LDL and LRL. The relationships of substance and relevance are those between LQL and LRL, and between LQL and LRL’s daughters (or some of them). The Tribunal concluded that there was a high risk that the appointment of LDL as guardian and/or manager to make decisions regarding where LQL would live (and implicitly also where LRL would live), and decisions regarding LQL’s property and finances, would divide and damage if not destroy relationships not only between LDL and her mother but also relationships between LQL and LRL and between LQL and LRL’s daughters. To some degree the Tribunal’s conclusion was consistent with LDL’s statutory declaration, in which she stated that LRL’s daughters “have been trying to keep me away from my mother’s house and her.”

36.Section 10(4)(c) of the Act required the Tribunal to take into account whether the proposed guardian or manager is compatible with the protected person. When asked during the hearing if she has a good relationship with her daughter, LQL answered “No”. The issue was not explored, and did not need to be. Dementia may have contributed to her answer and her response might be unjustified. The circumstances giving rise to her response are secondary to the primary issue. What matters, where an appointment needs to be made by reference to the interests of the protected person, is that that was LQL’s expressed view.

37.Towards the close of the hearing, LKL offered by way of possible resolution that she would be willing to make decisions with LDL as a joint guardian/manager. The Tribunal considered that option but was not satisfied that it was likely to achieve harmonious or consensual decisions. The Tribunal considered that a joint appointment was more likely to increase tension between family members and cause dispute between children to the detriment of the interests and protection of LQL and LRL.

38.Section 10(4)(d) of the Act required the Tribunal to take into account whether the proposed guardian or manager lives in the ACT. LDL lives in the ACT, and is suitable for appointment in this respect, but it was of minor importance in comparison to the wider personal issues involved.

39.Section 10(4)(e) of the Act required the Tribunal to take into account whether the proposed guardian or manager will be available and accessible to the protected person. Again, the Tribunal had concerns. LDL stated in her statutory declaration that LRL and LRL’s daughters “have been trying to keep me away from my mother’s house and her.” LDL’s solicitor impressed upon the Tribunal that LDL has a high level job in the public service managing a budget in excess of $300 million. This was stated in the context of demonstrating LDL’s competence to manage her mother’s property and finances, but it raised concerns for the Tribunal about the time she could give to the somewhat labour-intensive task of locating appropriate accommodation, re-locating LQL and LRL to it and all the logistical tasks that that would entail. Again, however, it was a secondary consideration to the Tribunal’s primary concern about preserving and protecting the relationship between LQL and LRL.

40.Section 10(4)(f) of the Act required the Tribunal to take into account the nature of the functions to be exercised under the order and whether the proposed guardian or manager is competent to exercise them.

41.The statutory declarations filed with the two applications for appointment of a guardian and manager state that LQL owns two residential properties valued (in total) at between $1.4 and 1.5 million, furniture with an agreed value of $50,000, and cash in different bank accounts of between $20,000 and $120,000. LQL also draws income derived from superannuation and a lease over one of the properties.

42.The Tribunal accepts that LDL could, in an objective sense, manage LQL’s significant assets, but their management would not in the Tribunal’s view require particular skills or competence, particularly where a manager could draw upon advice from third parties. LDL’s management skills are also of marginal relevance to the context in which decisions need to be made. The most pressing and significant decision needing to be made is where and with whom LQL and LRL are to live. That decision will involve qualitative consideration of LQL’s and LRL’s wish to continue living together, their respective health needs, their lifestyle wishes and their accommodation options having regard to their financial means. In the Tribunal’s view, “competence” for the purposes of section 10(4)(f) must be construed according to the context in which the decisions are to be made.

43.As mentioned, payment of a significant bond may require, or at least justify, the sale of LQL’s home, particularly where she and her husband will no longer need that home. LDL’s solicitor noted however that the sale of the home might not be necessary and that money can be raised by way of a mortgage or other means. The Tribunal was concerned about this response. At their age, it is difficult to understand why it would be preferable to put LQL and LRL into debt or sell other assets in order to retain a house that they will no longer live in.

44.Last, section 10(4)(g) of the Act required the Tribunal to take into account whether the interests and duties of the proposed guardian and manager are likely to conflict with the protected persons interests to the detriment of the protected person’s interests.

45.A ‘person’s interests’ include those listed in section 5A of the Act which states:

What are a person’s interests?

A person’s interests include the following:
(a) protection of the person from physical or mental harm;
(b) prevention of the physical or mental deterioration of the person;
(c) the ability of the person to—

(i) look after himself or herself; and
(ii) live in the general community; and
(iii) take part in community activities; and
(iv) maintain the person’s preferred lifestyle (other than any part of the person’s preferred lifestyle that is harmful to the person);

(d) promotion of the person’s financial security;

(e) prevention of the wasting of the person’s financial resources or the person becoming destitute.

46.Use of the word ‘includes’ rather than ‘means’ in section 5A means that the stated interests do not comprise an exhaustive list of a person’s interests. The Tribunal concluded that, arising from the charged personal circumstances of the family, the significance of the decision about where LQL and LRL are to live, the probable need to draw significantly upon LQL’s assets to fund where she and LRL would live and the impact the decision would have on everyone concerned, LDL was in a difficult position of conflict between her interests and those of others concerned, particularly LQL. More importantly, the fraught relationships between LDL and, it seemed, everyone else made it inherently unlikely that this conflict could be managed. For this reason, the Tribunal concluded that decisions about where LQL and LRL are to live, and the use of her assets and funds to facilitate where they live, needed to be made objectively and independently, with transparent priority given to the promotion of LQL’s views and wishes and the protection of her relationship with LRL.

47.The need for objectivity was a significant consideration in the Tribunal’s conclusion that the PTG should be appointed. In Holt, Kirby said:

[The power and responsibility of a manager] is to be exercised for purposes which are somewhat different from those of the general trustee or a company or bankrupt’s receiver. It is not solely for the investment of funds, their proper management and disbursement, the keeping of audited accounts and other financial responsibilities. What is involved goes beyond this. In the case of a protected person it includes ensuring that the person has a quality of life which is as beneficial to the person as the resources available to the manager permits.[18]

[18] Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238C

48.A further area of potential conflict of interest between LDL and LQL was financial conflict, although it was not necessary to explore or deal with it at the hearing. To have done so also risked heightening antagonism between some family members.

49.The Tribunal was told that LQL has changed her will to leave everything she owns to LDL and LDL’s children. That LQL did not wish to leave anything to her husband is curious, but of limited relevance. Whether LQL‘s wishes expressed under her will should be implemented is not an issue arising in the determination of this application because, under section 29 of the Act, a person’s guardian or manager ceases to be guardian or manager when the person dies.

50.The terms of the will may become relevant however because, the Tribunal was told, LQL holds the legal title to LQL and LRL’s home. At hearing, when the question arose about the need to sell the home in order to pay a bond required for LQL and LRL to obtain supported accommodation, LQL’s solicitor stated that that may not be necessary. Not to sell the home would also preserve it as part of LQL’s estate.

51.The Tribunal did not need to explore this issue. The personal considerations concerning LDL, dealt with by reference to section 10(4)(a) – (f), caused the Tribunal to conclude that the PTG should be appointed, without having to explore the potential financial conflict between LQL’s interest in having the best quality of life that her resources permit, and LDL’s interest in preserving LQL’s assets for LDL and her children to inherit.

52.This is not to imply any untoward intention on the part of LDL. Such conflicts of interest are inherent in many family arrangements and their management can be extraordinarily subjective and elusive. Cases such as Smith v Smith[19] are powerful illustrations of how a family member entrusted under a management order or an enduring power of attorney to manage the property of a protected family member will utilise and intermingle the assets of the protected person with their own, as if all is ‘family’ property, without any recognition, much less acceptance, that to do so is in breach of the obligations of trust invested in a manager or an attorney. In Smith v Smith, the NSW Supreme Court said:

[T]he purpose of the power of attorney was not, as the first defendant would have it, to empower her to treat the deceased’s property as her own or, without express authority otherwise duly granted, to subvert the deceased’s formally declared intention. Its purpose was to empower the first defendant to manage the deceased’s estate for his benefit during his incapacity for self-management. Any benefit she might derive from her management of his estate could not, without a breach of duty on her part, be anything more than incidental.[20]

[19] Smith v Smith [2017] NSWSC 408

[20] Smith v Smith [2017] NSWSC 408 at [35]

53.The Court rejected the defendants’ submission summarised as follows:

In substance, the defendants contend that, the first defendant having discharged her wifely duties to the deceased, she should, by one means or another, be excused from any breach of fiduciary attending her dealing with his property. They submit that, having ensured that his needs were catered for in a nursing home environment, she was at liberty to apply his property as her own whether or not she consulted him in her disposition of it.[21]

[21] Smith v Smith [2017] NSWSC 408 at [47]

54.Regarding the proposition, believed by some, that property is in some way ‘family’ property, the Court said:

A summary of Australian law, strengthened by subsequent legislative developments, may be taken from a paper published by Rosalind Atherton as chapter 11 in Diane Kirkby (ed), Sex, Power and Justice: Historical Perspectives of Law in Australia (Oxford University Press, 1995) at page 168:

“In Australia today there is no legal concept of ‘family property’ as such, in the sense of assets that are considered to be owned jointly in some way between or among individuals because of their being related to each other as a ‘family’. While such a concept exists in European jurisdictions, jurisdictions which have their legal roots in English law have generally preferred an individualistic system of property ownership, expressed in such principles as ‘freedom of contract’, ‘freedom of property’ and its offshoot, ‘freedom of testation’. Generally speaking, this has meant that ownership of things is determined, not by virtue of the relationship between people, but because of purchase, gift or inheritance by individuals....”[22]

[22] Smith v Smith [2017] NSWSC 408 at [55]

55.The Tribunal did not need to deal with LDL’s conflict between her financial interests and those of her mother, but mentions these principles because guardianship orders are not fixed. Under section 19 of the Act, orders may be reviewed at any time on application by anyone.

56.Statutory provision for review exist, and are necessary, because circumstances can change or be better understood. Further facts relevant to an appointment can become known. Facts upon which a tribunal relied can be shown not to be correct. If circumstances relevant to the best interests of LQL change, so might the appointment of her guardian and/or manager. In Holt, Kirby said:

… if the Protective Commissioner has been validly and properly appointed upon the material which was before the court at the time of his appointment but it is later shown that, on balance, it is in the best interests of the beneficiary that some other person, or persons, should be appointed as manager of the protected person’s estate, the court is duty-bound to appoint that other person or persons. It should not hold back either because no “clear and convincing demonstration” has been shown that the Protective Commissioner should be replaced or because other criteria at to the removal of trustees generally … have not been established”[23]

[23] Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238E – F

57.Lindsay J’s twelfth guideline in M v M referred to above is to the same effect, although noting that the onus is on an applicant to establish a case for change of guardian and/or manager.

58.In AB, the Tribunal made a similar observation:

The conclusion in this case does not, and need not, preclude the appointment of a member of AB’s family as guardian and/or manager in the future if AB’s condition improves significantly, his circumstances change, and the role of the treating team is reduced accordingly in both legal and practical terms. We do not speculate about whether or when that might occur, or whether a member or members of AB’s family would necessarily be appointed. Indeed, it might be that eventually there is no need for AB to have a guardian and/or manager. All we are saying is that the fact that AC has not satisfied this review Tribunal that he be appointed as AB’s guardian and manager does not preclude him from applying successfully in the future in significantly different circumstances.

[24] In the Matter of AB [2017] ACAT 67 at [195] – [196]

The conclusion in this case has been reached at a particular time in specific circumstances.[24]

59.LDL’s solicitor submitted that concerns about the appointment of LDL as guardian and/or manager could be addressed by the Tribunal giving directions under section 16 of the Act about LDL’s exercise of her functions or powers. The Tribunal considered that possibility and concluded that it was not workable. The proposition of giving directions to LDL concurrent with her initial appointment as guardian and/or manager only highlighted why LDL was not “suitable for appointment”. The Tribunal could not envisage what kind of directions could have been made to alleviate the intrinsic personal issues involved, or that could be workable in the context of the subjective decisions that need to be made.

60.Although the Tribunal was satisfied that the PTG should be appointed as guardian and manager, the Tribunal considers that the PTG should consult with LQL, LRL, LDL, LJL and LKL about the decisions it proposes to make, and should take their views into account before making those decisions. That said, and noting Kirby J’s observations about the PTG in his guideline 6a quoted in paragraph 27 above, the Tribunal is mindful of the objectivity and skill that the PTG will be able to bring to bear on the subjective and difficult decisions that need to be made.

61.The Tribunal determined that the PTG need not be given power to make decisions concerning medical treatment for LQL where those decisions can be made by LRL and/or LDL in their capacity as health attorneys under Part 2A of the Act.

62.The Tribunal also determined that the PTG’s appointments should be reviewed in six months (before 23 October 2018) by which time decisions should have been made and implemented as to where LQL is to live and about use of her property and money to facilitate where she should live, taking into LQL wishes to continue to live and have a relationship with her husband “as the resources available to [the PTG] permits.”[25]

[25] Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238C

………………………………..

Presidential Member G McCarthy

HEARING DETAILS

FILE NUMBER:

GT 40/2018

PARTIES, APPLICANT:

LQL

PARTIES, RESPONDENT:

Public Trustee and Guardian

COUNSEL APPEARING, APPLICANT

N/A

COUNSEL APPEARING, RESPONDENT

N/A

SOLICITORS FOR APPLICANT

Farrar Gesini Dunn

SOLICITORS FOR RESPONDENT

N/A

TRIBUNAL MEMBER:

Presidential Member G McCarthy

Senior Member M Matheson

DATE OF HEARING:

24 April 2018