KGN

[2024] NSWCATGD 23

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KGN [2024] NSWCATGD 23

Hearing dates:

13 May 2024

Date of orders:

13 May 2024

Decision date:

13 May 2024

Jurisdiction:

Guardianship Division

Before:

S Barnes, Senior Member (Legal)
Dr K J Banerjee, Senior Member (Professional)
E A Pickering, General Member (Community)

Decision:

Guardianship

1. A guardianship order is made for KGN.

2. The Public Guardian and SZN, of [Address removed for publication.], are appointed separately as the guardians.

3. This is a continuing guardianship order for a period of 12 months from 13 May 2024.

4. This is a limited guardianship order giving the guardian(s) custody of KGN to the extent necessary to carry out the functions below.

FUNCTION: SZN

5. SZN has the following function:

(a) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where KGN is not capable of giving a valid consent.

FUNCTIONS: The Public Guardian

6. The Public Guardian has the following functions:

(a) Health care

To decide what health care KGN may receive.

(b) Services

To make decisions about services to be provided to KGN.

CONDITION:

7. The condition of this order is:

(a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring KGN to an understanding of the issues and to obtain and consider her views before making significant decisions.

Financial Management

The application for a financial management order is dismissed after hearing.

Catchwords:

GUARDIANSHIP – subject person is 84 years old – diagnosis of dementia – subject person is a person for whom the Tribunal could make a guardianship order – difficulty obtaining in-home support services – history of carer stress – need to appoint a substitute decision-maker with a services and health care function – Public Guardian and SZN appointed separately as guardians – order made.

FINANCIAL MANAGEMENT – concerns about actual or potential financial abuse – subject person assisted with her financial management – subject person’s finances are managed adequately with informal assistance – no evidence of unwise spending, exploitation or loss – financial management order not necessary – application dismissed.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14(1)-(2), 9(1), 15(3), 17, 17(1)(c), 25I(1)

Health Services Act 1988 (Vic), ss 3(1), 9, 65P; Sch 5

Interpretation Act 1987 (NSW), s 3(3); Sch 4

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)

CJH v Department of Family and Community Services [2016] NSWCATAD 162

CZX [2020] NSWCATGD 29

Disability Services v People With Disability Australia Inc (CSD) [2010] NSWADTAP 44

EBI [2017] NSWCATGD 6

NEJ [2017] NSWCATGD 1

P v D1 & Ors [2011] NSWSC 257

Re B [2011] NSWSC 1075

TC v Public Guardian & Ors [2006] NSWADTAP 15

Texts Cited:

Albury Wadonga Health, Annual Report 2022-2023 (Report, 14 September 2023)

Category:

Principal judgment

Parties:

001: Guardianship Application

KGN (the person)
Albury Wodonga Health (applicant)
SZN (carer)
Public Guardian

002: Financial Management Application

KGN (the person)
Albury Wodonga Health (applicant)
SZN (carer)
NSW Trustee and Guardian

Representation:

K Hall, solicitor, appeared as separate representative for KGN

File Number(s):

NCAT 2024/00066873

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 AND FINANCIAL MANAGEMENT APPLICATION

What the Tribunal decided

1. The Tribunal made a guardianship order appointing the Public Guardian and SZN separately as guardians for KGN. The Public Guardian was given power to make decisions in relation to services and health care and SZN was given power to consent to medical and dental treatment for his mother as set out above.

2. The Tribunal dismissed the application for a financial management order.

Background

3. KGN is 84 years old and lives with her son, SZN, and his partner, Ms Z, in Albury. Her other son, Mr Y, is in prison.

4. KGN has a diagnosis of dementia. She was admitted to Wodonga Hospital in March 2024 but was discharged against medical advice.

5. On 28 March 2024, Albury Wodonga Health (AWH) lodged a financial management application. On 3 May 2024, AWH lodged a guardianship application (in place of an earlier application which had not been served on KGN).

6. The Tribunal appointed a separate representative for KGN. Kathryn Hall, Solicitor, was appointed as KGN’s separate representative.

The Hearing

7. At the end of these Reasons for Decision is a list of the participants in the hearing. [Appendix removed for publication.] Mr Y had initially advised the Tribunal registry that he hoped to participate in the hearing by videoconference, but on the day of the hearing advised that he was unable to do so. However, he provided a written statement which, at his request, was read out at the start of the hearing. We had regard to his views.

Does Albury Wodonga Health have standing to bring the application?

8. Under s 9(1) of the Guardianship Act 1987 (NSW) (the Act) an application for a guardianship order in respect of a person may be made to the Tribunal by the person, by the Public Guardian, or by “any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person”.

9. Similarly, under s 25I(1) of the Act an application for a financial management order may be made by the NSW Trustee and Guardian, the person who is the subject of the application, or “any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person who is the subject of the application”.

10. It was necessary to consider whether AWH had standing to make the applications as a “person” within the meaning of both provisions, and whether we were of the opinion that AWH had a genuine concern for the welfare of KGN.

11. AWH submitted that it had standing to bring the applications. None of the participants in the hearing, including Ms Hall as separate representative for KGN, put any contrary views to us.

12. In various decisions, the Tribunal has determined that certain other corporate entities providing health care have standing to bring applications under the Act. (see, for example, NEJ [2017] NSWCATGD 1, EBI [2017] NSWCATGD 6 and CZX [2020] NSWCATGD 29).

13. AWH is the primary health service for the rural cities of Albury (in NSW) and Wodonga (in Victoria) and a regional referral service for Northeastern Victoria and Southern NSW. It was constituted in 2009 under the Health Services Act 1988 (Vic) with the amalgamation of Wodonga Regional Health Service and Albury Base Hospital, and is reportedly the only cross-border health service in Australia. Under an inter-governmental agreement between NSW and Victoria, funding is provided by both States, and Victoria has responsibility for administration and management of AWH.

14. AWH is a Victorian “public health service” (see s 3(1) and Sch 5 of the Health Services Act). Section 65P of the Health Services Act provides that each public health service “is a body corporate”, with perpetual succession, which has an official seal, may sue and be sued in its corporate name, is capable of engaging in real and personal property transactions, and of “doing and suffering all acts and things which bodies corporate may by law do or suffer”.

15. Section 3(3) of the Interpretation Act 1987 (NSW) provides that the Dictionary in Sch 4 to that Act defines certain terms used in NSW Acts (such as the Guardianship Act). The Dictionary includes a definition of “person” as follows: “person includes an individual, a corporation and a body corporate or politic.”

16. AWH is a body corporate under the Health Services Act of Victoria and there is no contrary intention in the Guardianship Act or in the NSW Interpretation Act to indicate that the word “person” in either ss 9(1) or 25I(1) of the Act does not extend to such a body corporate.

17. The Tribunal was satisfied that AWH is a “person” within ss 9(1) and 25I(1) of the Act. As such, it can make a guardianship application and a financial management application under the Act provided that, in the opinion of the Tribunal, it has a genuine concern for the welfare of the person who is the subject of the application. In this case, KGN.

18. In considering the standing requirements in relation to applications for guardianship and financial management orders, the Appeal Panel of the ADT in TC v Public Guardian & Ors [2006] NSWADTAP 15 pointed out at [26]:

“While most standing requirements in legislation prevent a person from litigating about the violation of another person’s rights or interests, applicants for guardianship and financial management orders (other than the subject person) are doing just that. Because the subject person is unable to manage his or her personal and/or financial affairs, there is a public interest in someone else who ‘has a genuine concern’ for their welfare making an application. Consequently, in many cases, the applicant will have no separate interest from the interests of the subject person.”

19. In CJH v Department of Family and Community Services [2016] NSWCATAD 162, it was suggested that the words “genuine concern” are uncontroversial and should be given their ordinary meaning. Some guidance as to potentially relevant factors had been given in Minister forDisability Services v People with Disability Australia Inc (CSD) [2010] NSWADTAP 44. It was suggested that where the applicant was an organisation, the genuineness of its concern would likely be assessed in a way that had regard to the issues raised by the proceedings, the objects and aims of the organisation, and the level of its practical activity in pursuit of its objects and aims. Such an approach was also taken in the Tribunal decisions cited at [12] above. We consider it appropriate.

20. We had regard to the protective nature of the Act and the paramountcy of the interests and welfare of the person the subject of any application. AWH is a public health service under the Victorian Health Services Act. The objectives of that Act (see s 9) include making provision to ensure that health care agencies provide safe, patient-centred and appropriate health services, and to foster continuous improvement in the quality and safety of the care they provide.

21. AWH’s vision, purpose and values are detailed in the Albury Wadonga Health, Annual Report 2022-2023 (Report, 14 September 2023), and include:

“Our Vision: The Best of Health

Our Purpose: We deliver complex health services to improve the health and wellbeing of our community.

Our Values:

Patient and Client focused: Our purpose is to serve our patients and clients in order to achieve the vision and purpose of Albury Wodonga Health.

Ethical: Both in our clinical endeavour and our business practices we will be just in all our dealings.

Teamwork: Esprit de corps, harmony, partnership and unity are valued.

Equity: Fairness, integrity and justice are apparent in our actions.

Respect: Appreciation of the worth of others in regard for their contribution is inherent.

Compassion: Consideration, empathy and humanity are given freely to our patients and staff alike.

Accountability: Understanding that all bear a personal responsibility to our community.

Trust: Confidence that all are doing their best, honestly and positively.”

22. Having regard to the protective nature of the Act, the statutory functions and the aims of AWH as a public health service, we were satisfied that AWH is able to have a “genuine concern” for KGN’s welfare.

23. As explained in the material before the Tribunal, the applications were lodged because AWH staff were concerned that KGN (who had been diagnosed with mixed dementia) was unable to manage her personal and financial decisions and did not recognise her need for assistance. She had been an inpatient in Wodonga Hospital in March 2024, but a solicitor had discharged her against medical advice on Sunday 11 March 2024, allegedly on the instructions of KGN and her son, Mr Y. Her primary carer, SZN, was experiencing carer stress and she was seen as vulnerable, both personally and financially. The applications were brought to promote her health and safety.

24. We were satisfied that AWH made the applications out of a genuine concern for the welfare of KGN and that it had standing to make both the guardianship and financial management applications.

GUARDIANSHIP

What did the Tribunal have to decide?

25. In making any decision in an application of this nature, we must consider the principles set out in s 4 of the Act, in particular, that the interests and welfare of KGN are paramount.

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

1. Is KGN someone for whom we could make a guardianship order?

2. Should we make a guardianship order, and if so, what order should we make?

3. If we make a guardianship order, who should we appoint as guardian and how long should the order last?

Is KGN someone for whom the Tribunal could make a guardianship order?

27. Section 14(1) of the Act enables the Tribunal to make a guardianship order for KGN if we are satisfied that she is “a person in need of a guardian”.

28. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing their person”: s 3(1) of the Act. The disability must restrict the person in one or more major life activities to the extent that he or she requires supervision or social habilitation (s 3(2) of the Act), that is, assistance to manage in society. Commonly, we consider the person’s ability to make important personal, health and lifestyle decisions, as that is a major life activity that impacts on the person’s ability to manage in society.

29. For her part, KGN believed that she could make decisions for herself regarding important personal matters.

30. However, during her hospital admission in 2022, Mercy Health Albury reported that KGN had cognitive decline indicative of dementia. She was said to be paranoid at times. A CT brain scan had shown severe chronic small vessel vascular changes. The reported impression was cognitive decline due to mixed vascular disease and alcohol related brain injury.

31. AWH discharge notes, relating to a November 2023 admission after KGN was found on the floor at home after a fall, noted the reported cognitive decline and also that, during the 2023 admission, KGN had been verbally aggressive and had sought a discharge against medical advice.

32. In reports of 18 and 19 March 2024 and at the hearing, Dr X, geriatrician, reported that he had visited KGN at her home on 19 February 2024 in response to elder abuse concerns that had been raised by an ambulance officer. SZN had reportedly told Dr X that his partner, Ms Z, had what he understood was a terminal illness and that he could not meet his mother’s care needs alone and would need to move out of her home.

33. At that time, KGN had refused to participate in cognitive testing but had seemed impaired to Dr X on informal interaction. She had reportedly scored 68/100 in an Addenbrooke’s Cognitive Assessment conducted at the end of 2022. She had been unable to identify any supports she would benefit from at home, or any challenges at home other than difficulties in her relationship with Ms Z and SZN, or identify potential advantages and disadvantages of moving into residential care or staying at home.

34. Dr X was concerned for KGN’s welfare with no supports in her home. There was no opportunity for in-home support from her other son, Mr Y, as he was in prison with no current plans for release. Dr X was of the view that, if there was no available support at home, KGN’s care needs would best be met in a residential aged care facility, despite the fact that she had clearly indicated a wish to remain at home.

35. Dr X noted the 2022 Mercy report indicating a diagnosis of vascular and alcoholic impairment. He observed that a recent CT brain scan demonstrated severe vascular pathology which would impact on her cognition.

36. After Dr X’s in-home assessment and when SZN exhibited carer stress and threatened to move out of her home, KGN was provided with a bed in Wodonga Hospital under Dr X’s care. He reported that, on admission, KGN exhibited some challenging behaviours, becoming verbally aggressive and attempting to abscond multiple times, and that this had ultimately resulted in physical abuse against him when she had attempted to leave in a taxi. Dr X viewed these behaviours as partly a manifestation of KGN’s cognitive impairment.

37. Dr X referred generally to the existence of information outlining a “very complex social situation” with accusations of abuse, in particular centring around financial abuse, by and against numerous persons that KGN had relationships with throughout the community.

38. While in hospital, KGN had initially refused further cognitive assessment. Eventually, she agreed to a cognitive assessment in which she had scored 15/30, a decline from a July 2022 score of 19/30 on the same instrument. This and the findings on the CT brain scan were said to give weight to the Mercy diagnosis of dementia. Dr X agreed with that diagnosis, noting that the assessments had been performed by a range of clinicians.

39. KGN had been reluctant to participate in functional assessments and left hospital before more testing could be performed. However, according to Dr X, during her 2024 admission her short-term memory loss was readily apparent, and she had been unable to demonstrate significant, consistent insight into the varied allegations of abuse, or to provide consistent reasoning about her accommodation and financial decisions.

40. AWH had agreed to fund a neuropsychological assessment to further explore KGN’s cognition and decision-making capacity, but before this could be arranged, her solicitor had discharged her against medical advice on Sunday, 17 March 2024, reportedly on instructions from KGN and her imprisoned son, Mr Y.

41. Dr X’s clinical opinion was that KGN was incapable of making decisions regarding accommodation, care and services, health and medical care and financial matters, having regard to her poor memory and judgment, limited insight, her inconsistent decision-making, and her inability to weigh up advantages and disadvantages of various options.

42. SZN initially opposed, but ultimately supported, the making of a guardianship order. He told us that prior to his mother’s hospital admission, he had “had his head in the sand” about her dementia and health, and that when his partner was sick (and in palliative care) he had “a bit of a mental breakdown” and had said that he could not cope, but that now, things were good, and he wanted to be his mother’s guardian.

43. Ms Z told us that KGN made her own major decisions but was of the view that if a guardian were to be appointed, it should be SZN. She also described the extensive help she provides to KGN, suggesting that there was a need for two people to provide the needed services and the significant unmet need for in-home services.

44. Ms W, AWH nurse practitioner, told us that when she had seen KGN she had not demonstrated insight into her care needs and could not articulate what SZN had been doing for her, or how much support she needed. The nurse practitioner saw a need for a guardianship order. Similarly, Ms V, AWH social worker, told us that the hospital view was that KGN had impaired decision-making capacity and that we could and should make a guardianship order.

45. Kathryn Hall, separate representative, told us that she had spoken to KGN about the nature of and reason for the applications on two separate occasions. She thought that a guardianship order would be helpful in some respects. We understood that Ms Hall did not dispute the clinical views of Dr X in relation to KGN’s impaired decision-making capacity.

27. We had regard to KGN’s views but bore in mind her lack of insight as to the impact of her diagnosed condition, and preferred and gave more weight to the views of the health professionals in relation to her informed lifestyle decision-making capacity.

28. We were satisfied that KGN has a disability, being dementia, which causes her to have impaired decision-making capacity for important personal, health and lifestyle decisions. She is partially incapable of managing her person and needs supervision or assistance to function in society. She is a person for whom the Tribunal could make a guardianship order.

Should we make a guardianship order, and if so, what order should we make?

48. When considering making an order, we must have regard to KGN’s views, if we were able to obtain them, and those of her son, SZN, as her carer. We also consider the views of other family members. We are required to consider the importance of preserving KGN’s existing family relationships and any particular cultural and linguistic environments, as well as the practicability of her being provided with services without the need for an order: s 14(2) of the Act.

49. We must consider each of these matters. If we need to consider different or competing issues, we undertake a balancing exercise. We also consider any other relevant evidence. We must have regard to the principles set out in s 4 of the Act.

50. KGN was adamant that she could make her own decisions and did not need a guardian. She did not acknowledge any need for increased personal support.

51. SZN and Ms Z were initially opposed to any guardianship order, but also both spoke of KGN’s significant care needs and the difficulties they had faced in seeking in-home services. SZN acknowledged a need for support in arranging for needed services. Ms Z told us that she had cancer and had been very unwell, but that it was now in a “static mode”, and she was again able to provide care to KGN with her partner SZN. She recognised that they needed practical in-home support and that told us that if she again became unwell, they may need to access respite care for KGN. She had made inquiries as to the extent of possible respite care.

52. While Mr Y opposed the making of any order, it appeared from his email that this was based largely on his mother’s wish to remain in her own home and her reports to him in telephone conversations as to how she was managing.

53. The AWH staff supported the making of an order conferring accommodation, medical and dental consents, health care and services functions. In relation to accommodation, they expressed concern that in the future SZN may again find himself in a position of carer stress in which he was unable to provide needed care (as had occurred prior to KGN’s recent hospital admission), particularly if Ms Z was again unwell. They also expressed concern about the circumstances in which KGN had been discharged against medical advice and reportedly taken to the home of a friend who could not manage her care and had returned her to her home.

54. SZN and Ms Z told us that things were back to normal now and they were managing. Their main concern was that they had not been able to get any in home support services set up. SZN told us of his attempts to obtain such services over the past two years and his frustration. He recognised that his reactions and those of his mother to potential service providers may have been an obstacle.

55. Ms Hall, separate representative, confirmed that KGN had told her of her wishes and of her happiness living at home in the care of SZN and Ms Z. She had visited KGN at home and found her to be very settled, and the home to be neat and tidy. Ms Hall saw no present need for an accommodation function, but did see a services issue, including a need for an ACAT reassessment.

56. We appreciated that there is concern that in the future there may be a need for an appointed guardian to make an accommodation decision (including in the context of keeping KGN in hospital were she again to be admitted following carer stress or for respite care if Ms Z was again unwell). Her family is clearly concerned that conferring such a function on an independent guardian would automatically result in a decision to move KGN into residential aged care, even though that is not necessarily so. More pertinently, we accepted the submissions of the separate representative and were not satisfied that there is a present need for an accommodation function. KGN is settled at home and respite care could be arranged informally if needed.

57. As noted during the hearing, should the previous carer stress, or the admission or discharge circumstances recur or a need otherwise arise, a variation of a guardianship order could be sought (including by hospital staff on an urgent after-hours basis, if appropriate).

58. However, during the hearing, SZN and Ms Z openly acknowledged the care difficulties occasioned by their inability to arrange and obtain in-home support services for KGN and conceded that assistance in this respect would be of benefit. There was also evidence that there was a need for her ACAT assessment to be updated so that she was eligible for the appropriate level of support. We were of the view that it would be in KGN’s best interests if an independent experienced appointed guardian had power to make services decisions and to take other action in relation to needed services that her family has not been able to arrange, and also to have a health care function which would facilitate access to health records and an updated ACAT assessment.

59. We were also of the view that it would be in KGN’s interests to clarify who has power to make medical and dental consent decisions if she is unable to do so.

60. We were satisfied that making such a guardianship order would not impact KGN’s family relationships adversely. There was no evidence of any relevant cultural or linguistic environment. However, the acknowledged difficulties her family has experienced in obtaining needed in-home services is such that we were satisfied that it would be less practicable for her to be provided with needed services in the absence of such a formal order.

61. We decided that we should make a guardianship order conferring health care and services functions, and also medical and dental consent functions.

Whom should we appoint as guardian, and how long should the order last?

62. The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can properly be appointed: the Act, s 15(3).

63. The Supreme Court has held that:

“the proper meaning to be given to [section 15(3)] is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).”

64. In deciding whether a person is able to undertake the role of guardian, we must consider whether they are able to exercise the functions in accordance with the principles set out in s 4 of the Act: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075 at [66].

65. We must also be satisfied that any proposed private guardian has a personality which is generally compatible with that of KGN, has no undue conflict of interest, and is willing and able to exercise the functions of the proposed order: s 17 of the Act.

66. In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

67. As indicated, KGN opposed the making of any order and would not be drawn on who should be appointed if we made an order. Mr Y also opposed any guardianship order, but he is in prison and was unable to participate in the hearing during which a need was identified. He did support the appointment of SZN if we made a financial management order. Ms Z and SZN initially supported the appointment of SZN if a guardianship order were to be made, but SZN then acknowledged the need for independent support in relation to some decisions. The separate representative also acknowledged that the appointment of an independent guardian with a services function would be of benefit to KGN.

68. Guardians can be appointed with separate functions. Insofar as it was proposed that SZN should be appointed guardian, we accepted that he is his mother’s primary carer and wishes to continue in this role, and to make medical and dental consent decisions if his mother is unable to do so. We were satisfied that he is willing and able to exercise a medical and dental consent function in accordance with the principles in s 4 of the Act, and that conferring this function on him would clarify who has such responsibility. We were satisfied that he met the s 17 requirements in this respect and that he could properly be appointed as guardian to make medical and dental consent decisions.

69. However, we also accepted SZN’s evidence that for some two years, he and Ms Z (who has been unwell), have been unable to organise ongoing in-home services which KGN needs. It is understood that her ACAT assessment is out of date and needs reconsideration in light of her present health and care needs. He acknowledged, and we accepted, that he had not been able to arrange needed services (cf s 17(1)(c) of the Act). This is contrary to his mother’s best interests and welfare. An order conferring services and associated health care functions on him could not properly be made under s 15(3) of the Act.

70. We were satisfied that it would be in KGN’s best interests and in accordance with the principles in s 4 of the Act to appoint the Public Guardian, an independent impartial decision-maker with experience in this respect, to have a services function and also a health care function in relation to KGN, in particular, so that there is access to needed health records.

71. We appointed SZN and the Public Guardian separately as guardians for KGN. SZN is to have formal power to make medical and dental consent decisions for his mother and the Public Guardian is to have power to make services and health care decisions for KGN.

72. We decided to make an order for 12 months. It is an initial order. We were conscious that the separate appointments may be complex and that circumstances may change. The order will be reviewed on expiration. If circumstances do change, review could be sought at any time.

FINANCIAL MANAGEMENT

73. The questions which had to be decided by the Tribunal concerning financial management were:

1. Is KGN incapable of managing her affairs? Evidence of how KGN is managing her affairs is relevant as we assess the person’s actual circumstances, including the support available to them and their ability, with that support, to make sound financial decisions.

2. Is there a need for another person to manage KGN’s affairs, and is it in her best interests to make a financial management order?

3. If so, who should we appoint as the financial manager?

74. We had regard to Dr X’s professional opinion that KGN is incapable of making informed decisions in relation to her financial affairs.

75. AWH staff were concerned about allegations of actual or potential financial abuse. In part, these allegations were said to have been made by a friend of KGN who did not participate in the hearing, despite being afforded the opportunity to do so, and did not respond to several attempts by Ms Hall to gain her views. We were also told that on one occasion while in hospital, KGN had proffered her bank card to staff and asked them to make a purchase for her. Particular concern was expressed about allegations that accommodation decisions were being made based on financial considerations such as access to the house. The friend had reportedly said that KGN intended to leave her house to her, but that SZN was trying to get his mother out of the house. SZN had allegedly thought that the friend was attempting to gain access to the house. We were also told this friend had been barred access to the hospital and had been removed from the hospital by the police.

76. KGN thought that she could manage her own financial affairs. She said that she paid her own bills through online banking (other than some household bills which SZN pays). Ms Hall reported that in their discussions KGN had demonstrated an understanding of her finances and bill payment.

77. SZN and Ms Z told us of the manner in which they, in particular Ms Z, assist KGN in practical terms with her financial management, how automatic payments have been set up, and how KGN checks withdrawals and payments made for her by Ms Z for shopping and other expenses. Ms Z said that she sees KGN’s statements (for a retirement savings account and a smaller account for bill payments) and that they do not raise concerns. She and SZN have tried to ensure that the accounts are set up so that if KGN were to fall victim to a scam she could only lose a limited amount. Her main bank account can only be accessed by KGN in person. They wish to continue to care for her in the home.

78. The separate representative opposed the making of a financial management order on the basis that it was neither needed nor in KGN’s best interests. She felt that KGN was presently in control of what was being spent and that there were adequate protections against exploitation.

79. We were of the view that it was unnecessary to make a finding as to whether KGN has the capacity to manage her finances because even if her capacity is impaired by her dementia and cognitive issues, we accepted that her finances are managed adequately with informal assistance from Ms Z and SZN without the need for a formal financial management order. There was no evidence of unwise spending, exploitation or loss and the concerns about allegations linking potential accommodation decisions to financial interests of persons other than KGN were not substantiated. We were not satisfied on the evidence before us at the time of the hearing that we should appoint someone to manage KGN’s affairs and that it was in her best interests to do so.

80. Hence it was unnecessary to consider who should be appointed financial manager. We dismissed the financial management application after hearing.

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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: 08 May 2025