JHN

[2020] NSWCATGD 92

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

JHN [2020] NSWCATGD 92

Hearing dates:

10 August 2020

Date of orders:

10 August 2020

Decision date:

10 August 2020

Jurisdiction:

Guardianship Division

Before:

A R Boxall, Senior Member (Legal)
Associate Professor C Willcox, Senior Member (Professional)
E A Pickering, General Member (Community)

Decision:

The application for financial management is dismissed after hearing.

The application for guardianship is dismissed after hearing.

The application to review the enduring guardianship appointment dated 17 May 2004 is dismissed after hearing.

Catchwords:

GUARDIANSHIP – application for a guardianship order – ‘person in need of a guardian’ – subject person being treated by medication – reduction in alcohol consumption – medical evidence of capacity to make decisions – rational discussions and observations of subject person – application dismissed.

FINANCIAL MANAGEMENT – application for a financial management order – possible conflict of interest between financial interests of subject person and applicant – capability to manage one’s own affairs – sensible management of assets and liabilities – application dismissed.

ENDURING GUARDIANSHIP – review of enduring guardianship appointment – request to confirm appointment – capability to make and revoke enduring guardian appointment – confirmation would have no effect as subject person could then effectively revoke the appointment – application dismissed.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 14

Cases Cited:

P v NSW Trustee and Guardian [2015] NSWSC 579

PB v BB [2013] NSWSC 1223

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Financial Management Application

JHN (the person)
KBQ (applicant, attorney)
TYN (attorney)
SZN (attorney)
NSW Trustee and Guardian

002: Guardianship Application

JHN (the person)
KBQ (applicant, enduring guardian)
Public Guardian

003: Review of an Enduring Guardianship Appointment

JHN (the person)
KBQ (applicant, enduring guardian)
SZN (enduring guardian, other non-party)
TYN (enduring guardian, other non-party)
NSW Trustee and Guardian
Public Guardian

Representation:

Nil.

File Number(s):

NCAT 2020/00054185

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

GUARDIANSHIP APPLICATION

FINANCIAL MANAGEMENT APPLICATION

APPLICATION TO REVIEW AN ENDURING GUARDIANSHIP APPOINTMENT

Background

1. JHN is 77 years old. He lives in his own home in Inner West Sydney, NSW, where he receives support from various services. He previously lived in a large house in another Inner West Sydney suburb which eventually proved unsuitable for his needs.

2. JHN is a widower, his late-wife having died in 2004. He has three children: a son, SZN, who lives in Western Australia; a son, TYN, who also lives interstate; and a daughter, KBQ, who lives in Sydney and is the Applicant in these matters. For convenience, these reasons will refer to JHN as “[JHN]”, and to his children as respectively “[SZN]”, “[TYN]” and “[KBQ]” or “the Applicant”.

3. On 17 May 2004, JHN:

1. granted an Enduring Power of Attorney to SZN, TYN and KBQ jointly and severally (the 2004 EPA); and

2. appointed KBQ as his enduring guardian (the 2004 EGA).

4. On 5 February 2019, JHN executed:

1. An instrument which was expressed to be an enduring power of attorney in favour of SZN, TYN and KBQ as joint attorneys, containing an elaborate tie-breaker provision requiring any question on which the attorneys were unable to reach unanimity to be referred to a named lawyer and accountant for determination (the 2019 EPA); and

2. An instrument which was expressed to be an enduring guardianship appointment in favour of SZN, TYN and KBQ as joint enduring guardians, containing an elaborate tie-breaker provision requiring any question on which the enduring guardians were unable to reach unanimity to be referred to a named lawyer and accountant for determination (the 2019 EGA).

5. On 14 May 2019, JHN executed instruments (the 2019 Revocations) which were expressed to revoke:

1. an enduring power of attorney dated 17 May 2014 in favour of SZN, TYN and KBQ; and

2. an enduring guardianship appointment 17 May 2014 in favour of SZN, TYN and KBQ.

6. On 19 February 2020, the Tribunal received applications from KBQ, seeking guardianship and financial management orders for JHN. These were followed on 28 February 2020 by a third application from KBQ, for the Tribunal to review and confirm the 2004 EGA.

7. The purpose of today’s hearing is to decide all three applications.

The hearing

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

Does KBQ have standing to bring the applications?

9. A person has standing to bring an application for a guardianship order if he or she is:

1. The person who is the subject of the application;

2. The Public Guardian; or

3. Any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.

10. A person has standing to bring a financial management application if he/she is:

1. the person who is the subject of the application;

2. the NSW Trustee and Guardian; or

3. any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.

11. The Tribunal found that KBQ has standing to make the application for a guardianship order, a financial management order and a review of the 2004 EGA because, as JHN’s daughter, she can reasonably be considered to have the necessary concern for his welfare. This is the case in the Tribunal’s view even though, as JHN said (and KBQ recognized) during the hearing:

1. there is a dispute between them concerning her occupancy of a property owned by him; and

2. the appointment of a financial manager for JHN might conceivably change the dynamic of that dispute, possibly to her benefit.

GUARDIANSHIP APPLICATION

What did the Tribunal have to decide?

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

• Is JHN someone for whom the Tribunal could make an order because he has a disability which renders him totally or partially incapable of managing his person?

• 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 JHN someone for whom the Tribunal could make an order because he has a disability which renders him totally or partially incapable of managing his person?

13. Section 14 of the Guardianship Act 1987 (NSW) (“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 within 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).

14. There appeared to be no dispute that:

1. JHN has a history of bipolar disorder; or

2. Equally, he has a history of excessive alcohol consumption, at least in the years following the death of JHN’s wife.

15. JHN said that:

1. His bipolar disorder has been successfully treated by medication for over 30 years; and

2. He has reduced his alcohol consumption; indeed, for several months he has been totally abstinent.

16. SZN confirmed JHN’s evidence. Neither KBQ nor TYN were able to do so, since they had not been in close contact with JHN for some time.

17. KBQ referred to an assessment made of JHN’s cognition when he was in rehabilitation at a rehabilitation facility, following a serious fall in 2017, which concluded that he had dementia.

18. This is in turn referred to in a report dated 13 August 2018 sent to JHN’s general practitioner, Dr Z, by Mr Y, geriatrician at a public hospital. Mr Y notes that JHN believed that he had been adversely affected by medication when the assessment was made at the rehabilitation facility, and in any case in that report Mr Y concluded that on examination of JHN “... there is no evidence of significant cognitive impairment at this stage”.

19. There was also provided to the Tribunal a copy of a more recent detailed assessment made on 14 July 2020 of JHN’s capacity and cognition by Mr Y. His conclusion is as follows:

“There was no evidence of dementia on the basis of today’s assessments. These assessments were consistent with those done on 06/07/2018. At present, [JHN] has the capacity to make decisions concerning his Will, Enduring Power of Attorney and Enduring Guardian”.

20. Nothing in JHN’s discussions with the Tribunal or its observations of him during the hearing gave it any reason to question the accuracy of Mr Y’s conclusion. In particular, it was impressed by the rational and considered approach taken by JHN towards the establishment and maintenance of his day-to-day domestic arrangements, which were not suggestive of a person whose capacity to make informed decisions concerning important personal matters, was impaired.

21. Moreover, anecdotal and observation evidence from JHN’s sister, Mrs X, was consistent with Mr Y’s conclusions. The Tribunal found Mrs X’s evidence particularly telling since:

1. She has by far the longest association with JHN of any participant in the hearing;

2. She maintains close contact with JHN; and

3. She stands outside the somewhat acrimonious relationships between JHN and two of his children, and amongst JHN’s children.

22. The Tribunal’s views were also influenced by the evidence from JHN himself, SZN and Mr Y’s more recent report concerning the steps taken by him over the past two years to place his domestic arrangements on a footing more suited to his needs:

1. JHN is a retired pharmacist, having for many years operated with his late-wife a pharmacy business in Sydney’s Inner West. He has lived, too, in the Inner West for many years, in two of the pleasant suburbs on the banks of the Parramatta River: initially, in one suburb and more recently in another nearby suburb.

2. While it was clear from the evidence that following his late-wife’s death JHN’s life had been increasingly marred by alcohol consumption and falls at home, over the past two years he appears to have taken steps to reverse this decline.

3. He has now moved to a smaller residence in a suburb Inner West Sydney which, according to his evidence, has been renovated and modified specifically to minimise the risk of falls and to be readily accessible by him.

4. It is in Sydney’s Inner West, where he has lived and worked for many years, and where he has a network of friends and acquaintances. His move to that suburb in Inner West Sydney thus allows him to maintain social continuity.

5. He receives domestic assistance with breakfast and dinner, housework, transport and hygiene.

6. He continues to visit his usual general practitioner in that other suburb in Inner West Sydney.

7. At a practical level, all of this is indicative of a rational and sensible decision-making approach.

23. The Tribunal is not satisfied that JHN has a disability which renders him totally or partially incapable of managing his person. Accordingly, he is not a person for whom the Tribunal could make a guardianship order.

24. Having decided the application should be dismissed on the basis that JHN is not a person for whom the Tribunal could make a guardianship order, there was no need to address the other questions set out above.

FINANCIAL MANAGEMENT APPLICATION

What did the Tribunal have to decide?

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

• Is JHN incapable of managing his affairs?

• Is there a need for another person to manage JHN’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 JHN incapable of managing his affairs?

26. The Applicant’s concerns can be summarised as follows:

1. JHN has dementia and bipolar disorder, and drinks to excess;

2. He is thus financially vulnerable;

3. She is concerned that his financial affairs may be manipulated by others and used for their benefit; and

4. These concerns are underlined by her exclusion from involvement with her father.

27. The test set out in the decided cases is essentially a practical one:

1. In PB v BB [2013] NSWSC 1223, Justice Lindsay observes that the question focuses attention on the special circumstances of the person. His Honour stated, at [7]:

“Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack ‘mental capacity’ or be ‘mentally ill’; or (b) particular reasons for an incapacity for self-management.”

2. 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.”

28. The medical evidence, in the form of Mr Y’s recent report quoted above, is very strongly to the effect that JHN’s capacity to manage his affairs is unimpaired.

29. JHN’s own account of his financial situation revealed a man who was both familiar with his assets and liabilities, and closely engaged in their management. He is a man of some wealth, and there was no evidence – subject to the next paragraph – that he was dealing with it otherwise than in a sensible and prudent way.

30. The primary example offered by KBQ of apparently erratic behaviour by JHN in relation to his financial affairs was his insistence that she and her wife quit the townhouse in Northern Sydney of which he is the registered proprietor and which they have occupied rent-free for some years. This, the Applicant says, is entirely contrary to the views previously expressed by her father, that she could occupy the townhouse indefinitely and his reversal of position is indicative of a decline in his capacity to manage his affairs.

31. While the Tribunal accepts that for JHN to reverse what the Applicant believed to be a long-standing understanding between them may be a source of hurt and distress to her, it does not follow that it is indicative of a loss of capacity on JHN’s part. Indeed, it is equally open to characterisation as JHN’s pursuit of an objection that he holds to certain personal choices made by his daughter, or as a hard-headed business decision, directed at obtaining a market return from an asset which, over recent years at least, has not produced any income, or as a combination of both. That it can be so characterised in several different ways means that the Tribunal cannot infer from it any loss of capacity.

32. Again, Mrs X’s anecdotal and observational evidence concerning her brother was instructive:

1. Her observation of JHN was that he remains “... on top of issues” and “perfectly able to cope”;

2. She noted that JHN has always had strong views on matters; and

3. The falling out between him and TYN was an example of JHN sacrificing interpersonal relationships with his children because of perceived inappropriate behaviour on their part.

33. The Applicant has not demonstrated to the Tribunal’s satisfaction that JHN is, on the balance of probabilities, incapable of managing his affairs. The application should be dismissed on this basis. There is thus no need to address the other questions set out above.

APPLICATION TO REVIEW AN ENDURING GUARDIANSHIP APPOINTMENT

34. In view of Mr Y’s conclusion, the Tribunal was satisfied that JHN retains the capacity to make and revoke appointments of enduring guardians.

35. Hence for the Tribunal to confirm the 2004 EGA, as the Applicant has requested, would be entirely pointless, since JHN could turn around immediately and issue a fresh notice of revocation which, having regard to Mr Y’s opinion, would in all likelihood be effective.

36. The Tribunal thus dismisses the application to review the 2004 EGA.

37. The Tribunal notes, however, that:

1. The 2019 Revocations do not in fact refer to the 2004 EGA or EPA; rather, they refer to instruments made in 2014; and

2. The effect of including the tie-breaker mechanisms referred to earlier in each of the 2019 EGA and the 2019 EPA is unclear, since the net effect of their inclusion is in effect to transfer in certain circumstances the relevant decision-making authority from the attorneys and enduring guardians to the named accountant and lawyer, neither of whose respective appointments have been made in conformity with the statutory requirements for instruments of the relevant kind.

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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