KJC

[2016] NSWCATGD 9

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KJC [2016] NSWCATGD 9

Hearing dates:

12 April 2016

Date of orders:

12 April 2016

Decision date:

12 April 2016

Jurisdiction:

Guardianship Division

Before:

J Currie, Senior Member (Legal)
D Lim, Senior Member (Professional)
S Fogg, General Member (Community)

Decision:

Appointment of enduring guardian under an enduring guardianship instrument revoked.

 

Guardianship order made for 2 years; Public Guardian and a Private Guardian appointed with separate functions; Public Guardian with authority to make decisions about accommodation and access to others and the Private Guardian with the authority to make decisions about health care, consent to medical and dental treatment and services.

 

Financial management order confirmed; directions given to the financial manager.

 Recommendation made to parties to attempt mediation in the event of disputes arising in connection with the guardianship and financial management orders.

Catchwords:

ENDURING GUARDIANSHIP – application to review enduring guardianship instrument – whether welfare and interests of the person best served by the enduring guardianship instrument – whether to make a guardianship order – whether undue conflict – appointment revoked

 

GUARDIANSHIP – consideration of need for an order – conciliation attempted – family conflict – guardianship order made – recommendation made to parties to attempt mediation for any future disputes

  FINANCIAL MANAGEMENT – application to review financial management order – capability to manage affairs – best interests – conflict of interest – financial management order confirmed – direction given to private manager – recommendation made to parties to attempt mediation for any future disputes

Legislation Cited:

Guardianship Act 1987 (NSW), ss 4(e), 17, 17(1), 17(1)(b)
NSW Trustee and Guardian Act 2009 (NSW), ss 39, 39(e)
Powers of Attorney Act 2003 (NSW), s 36

Cases Cited:

CJ v AKJ [2015] NSWSC 498

Category:

Principal judgment

Parties:

to the application for review of the Appointment of Enduring Guardian:

 

Mrs KJC (appointor)
Mr TMC and Mrs LDC (applicants)
Ms MVC (person appointed as the enduring guardian)

 

to the guardianship application:

 

Mrs KJC (subject person)
Mrs TMC and Mrs LDC (applicants)
Ms MVC (appointed enduring guardian and carer for Mrs KJC)
The NSW Public Guardian

 

to the application for review of the financial management order:

  Mrs KJC (person under management)
Mr TMC (appointed financial manager and jointly-appointed attorney of Mrs KJC)
Mr DAC (jointly appointed attorney of Mrs KJC)
The NSW Trustee and Guardian

Representation:

Nil

File Number(s):

49815

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

APPLICATION TO REVIEW APPOINTMENT OF ENDURING GUARDIAN

GUARDIANSHIP APPLICATION

APPLICATION TO REVIEW THE FINANCIAL MANAGEMENT ORDER

What the Tribunal decided

Enduring Guardianship

1. The Tribunal decided to revoke the appointment of Ms MVC as the enduring guardian of Mrs KJC under the instrument of appointment dated 30 June 2011.

Guardianship order

2. The Tribunal decided to make a continuing limited guardianship order for Mrs KJC. The Public Guardian and Ms MVC were appointed as guardians for Mrs KJC for two years with separate functions. The Public Guardian was authorised to make decisions about Mrs KJC’s accommodation, about the access which she has to others, and the conditions of that access. Ms MVC was authorised to make decisions about Mrs KJC’s health care, to give consent to her medical or dental treatment, and to make decisions about the services to be provided to her.

Financial management order

3. The Tribunal decided to confirm the financial management order which had been made for Mrs KJC on 11 July 2012 under which Mr TMC was appointed as Mrs KJC’s financial manager, subject to the authority and direction of NSW Trustee and Guardian. However the Tribunal decided also to give directions to Mr TMC as financial manager in the form set out in Appendix B to these Reasons for Decision.

Recommendation as to mediation

4. The Tribunal decided to make a recommendation to Ms MVC, Mr TMC, Mrs LDC, and Mr DAC in the form set out in Appendix B to these Reasons for Decision.

Background

Mrs KJC and her family

5. Mrs KJC is an 85-year old woman who lives in a northern suburb of Sydney in her own home (“Mrs KJC’s home”) with her daughter and carer Ms MVC. Mrs KJC is reported to have been diagnosed in March 2009 with Alzheimer’s disease and also diagnosed as having hypertension, osteoarthritis, and other medical conditions.

6. Mrs KJC has three children: Ms MVC, Mr DAC, and Mr TMC. Mr TMC lives in a southern suburb of Sydney with his wife Mrs LDC.

Instruments of appointment executed by Mrs KJC

7. By instrument dated 3 February 2009 (“the Enduring Power of Attorney”), Mrs KJC appointed her children Mr DAC, Mr TMC, and Ms MVC jointly and severally as her attorneys. The appointment was an enduring one; that is, that would continue to be effective if Mrs KJC lacked capacity through loss of mental capacity after its execution.

8. By instrument dated 30 June 2011 (“the Appointment of Enduring Guardian”), Mrs KJC appointed her daughter, Ms MVC, as her enduring guardian and authorised her to make decisions on her behalf about her accommodation, health care, services, consents to medical or dental treatment, and end of life decisions.

Proceedings in the Guardianship Tribunal and in this Tribunal

9. On 9 May 2012, the Guardianship Tribunal:

1. confirmed the appointment of Ms MVC under the Appointment of Enduring Guardian without varying her functions as enduring guardian; and

2. dismissed an application brought by Mr TMC which sought the appointment of a guardian for Mrs KJC.

10. On 11 July 2012, the Guardianship Tribunal decided to conduct a review of the operation and effect of the Enduring Power of Attorney, but decided not to make any orders under section 36 of the Powers of Attorney Act 2003 (NSW) in respect of that instrument. It decided to treat the application as an application for the appointment of a financial manager and to hear it conjointly with a financial management application which had been made by Mr TMC.

11. As a result of that hearing on 11 July 2012, the Guardianship Tribunal made a financial management order for Mrs KJC. Mr TMC was appointed as her financial manager, subject to the authority and direction of NSW Trustee and Guardian. This order had the effect of suspending the operation of the Enduring Power of Attorney. The Tribunal also recommended to the parties and particularly to Mr TMC as financial manager, that early consideration be given to making the income derived by Mrs KJC from her Veterans’ Affairs pension available to her carer and guardian, Ms MVC, for Mrs KJC’s everyday needs.

12. On 8 October 2013, the Guardianship Tribunal consented to the withdrawal by Ms MVC of an application brought by her which requested a review of the financial management order made on 11 July 2012. The Tribunal formally dismissed Ms MVC’s application.

13. On 30 September 2014, the Guardianship Division of this Tribunal conducted the hearing of a further application by Ms MVC for review of the financial management order made on 11 July 2012. As a result of its review, the Tribunal confirmed the financial management order and the appointment of Mr TMC as financial manager.

The current applications

14. On 22 September 2015, the Guardianship Division received an application from Mr TMC and Mrs LDC which sought a review the Appointment of Enduring Guardian. On 18 November 2015, it received an application from them which sought the appointment of a guardian for Mrs KJC. On 1 December 2015, the Guardianship Division received an application from Ms MVC. This sought a review of the financial management order made on 11 July 2012.

The hearing on 8 December 2015

15. At its hearing at Balmain on 8 December 2015, the Tribunal considered the three current applications. The Tribunal commenced the hearing of the review of the appointment of enduring guardian and of the guardianship application, but the hearing could not be concluded within the time allotted for the hearing. Because of the time available it was not possible for the review of the financial management order to be commenced on that day. The Tribunal decided to adjourn the further hearing of the two guardianship matters and the hearing of the financial management review for approximately two months. The Tribunal made recommendations to the parties to the guardianship matters in relation to Mrs KJC’s periodic visits to the home of Mr TMC and Mrs LDC and the Tribunal recommended to Ms MVC that she lodge supplementary written submissions as to facts and issues which have emerged or changed in relation to the financial management of Mrs KJC’s estate by Mr TMC as financial manager, since the Tribunal’s orders of 30 September 2014.

16. On that date the Tribunal also excused Mrs KJC from attendance at the resumed hearing.

17. Detailed Reasons for Decision were published in relation to the hearing on 8 December 2015 and these current Reasons for Decision should be read in conjunction with them.

The hearing on 23 February 2016

18. At the opening of this hearing the family members who were parties to the various applications indicated that they wished to attempt conciliation of the issues between them. It was agreed that discussions with a view to conciliation should be held on that day at the Tribunal’s premises, facilitated by Mr Z, the Solicitor for Ms MVC. These discussions, which were held in confidence and in the absence of Tribunal Members, occupied most of the allotted time for the hearing. At the conclusion of the time allocated for the hearing, the parties informed the Tribunal that although no final agreement had been reached, they were moving towards agreement on some issues.

19. The Tribunal formally noted that the parties were moving towards agreement through conciliation on some issues and identified them as:

1. arrangements for access by Mr TMC and Mrs LDC and their family to Mrs KJC at Mrs KJC’s home on reasonable notice;

2. the nature and extent of access in the Mrs KJC’s home through the identified “interleading door”, to an area of the house which Ms MVC wishes to use;

3. regular reports by Ms MVC to Mr TMC and Mrs LDC providing a summary of Mrs KJC’s health and well-being and agreement by Ms MVC that in the event of an emergency affecting Mrs KJC she would inform family members by text as soon as reasonably possible;

4. arrangements for a holiday/respite leave for Ms MVC and the appropriate provision of care for Mrs KJC during that period.

20. The hearing was adjourned part heard for approximately two months.

21. The purpose of the Tribunal’s hearing at Sydney on 12 April 2016 was to resume the hearing of the current applications.

Parties and witnesses

22. Appendix A to these Reasons for Decision identifies the parties to each of the applications and the witnesses who participated in the hearing. [Appendix A removed for publication.]

23. At the commencement of the hearing the Tribunal confirmed that because of her disability and because her views had been obtained at early hearings, Mrs KJC was excused from participation in the hearing.

Issues for determination by the Tribunal

Review of Appointment of Enduring Guardian

24. The issues for determination in relation to this review were:

1. Do the applicants, Mr TMC and Mrs LDC, have standing to bring this application because they are persons who in the opinion of the Tribunal had a genuine concern for the welfare of Mrs KJC?

2. Should the Tribunal exercise its discretion to deal with the application as if it were an application for a guardianship order, or for financial management order, or both? This requires the Tribunal to find that it would be in the best interests of Mrs KJC as appointor for the Tribunal to treat the application in this way.

3. If the answer to issue (2) is no, would it be in the best interests of the appointor, Mrs KJC, for the appointment by her of Ms MVC as her enduring guardian to be revoked?

4. If the answer to questions (2) and (3) is no, should the Tribunal make any variations to the functions which Ms MVC has as the appointed enduring guardian of Mrs KJC?

Guardianship application

25. The issues for decision by the Tribunal were:

1. Is Mrs KJC someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

2. Should the Tribunal make a guardianship order?

3. If so, what order should be made? Specifically what functions should the guardian have?

4. If a guardianship order is to be made, who should be the guardian?

5. How long should the guardianship order last?

Review of the financial management order

26. The issues for determination by the Tribunal were:

1. Does Mrs KJC remain incapable of managing her affairs?

2. Would it be in Mrs KJC’s best interests for the order to be revoked?

3. If the order is not to be revoked, should any variations be made to it?

GUARDIANSHIP ISSUES

Submissions by each of the principal parties

27. At the adjourned hearing held on 8 December 2015, each of the main protagonists; namely Ms MVC, Mr TMC, and Mrs LDC, were invited to state their respective positions in relation to what they believed to be appropriate guardianship arrangements for Mrs KJC. At the conclusion of that hearing those parties were invited to make closing submissions as to the nature of any guardianship order which they believed should be made for Mrs KJC.

28. At the opening of the present hearing the parties confirmed that conciliation discussions between them had broken down and that there was no further prospect of successful conciliation of the issues between them.

29. As the substantive hearing had not been progressed at the hearing on 23 February 2016 due to the conciliation process noted above, and as some five months had elapsed since the last substantive hearing on 8 December 2015, we thought it appropriate to give each of those parties the opportunity to restate their views and to make submissions as to the nature of any guardianship order which should be made.

The submissions of Mr TMC

30. Mr TMC reiterated the principal grounds on which he sought a change of guardianship arrangements for his mother. These are set out in more substantial detail in paragraph 37 of the Reasons for Decision in respect of the hearing on 8 December 2015, but they are also contained in a lengthy and detailed statement, apparently made jointly by Mr TMC and Mrs LDC, dated 10 October 2015 and its annexures.

31. In essence Mr TMC’s contentions were as follows:

1. Mrs KJC’s interests would not be served by the continuation of the appointment of his sister, Ms MVC, as her guardian because his sister’s actions had had the effect of isolating his mother from other members of the family including her grandchildren (that is, Mr TMC’s children). He claimed that his family had been denied access to Mrs KJC’s home by Ms MVC. In this regard, Mr TMC asserted that he had invited his mother to a recent joint celebration of his son’s engagement and his brother, Mr DAC’s birthday that his mother had been keen to attend but that his sister, Ms MVC, had refused to allow her to attend. This isolation of his family from his mother was exacerbated by the gradual decline in proper communication from his sister, Ms MVC, about their mother’s condition, particularly since the Tribunal’s hearing in September 2014.

2. Ms MVC had obstructed him in the carrying out of his obligations as financial manager. Although these allegations are more appropriately dealt with and consideration of the review of the financial management order, we understood Mr TMC’s contention to be that Ms MVC wrongfully or improperly exercised her power as her mother’s guardian to prevent actions which Mr TMC, as financial manager, believed were necessary in the management and protection of her estate.

3. Ms MVC has a conflict of interest which prevents her from acting in the best interests of their mother or in a way which is consistent with Ms MVC’s obligations as enduring guardian. Mr TMC asserted that many of his sister’s actions indicated that she was motivated by her own interests in securing comfortable and convenient accommodation at Mrs KJC’s home, to the possible detriment of Mrs KJC. Mr TMC asserted that this conflict of interest was exemplified by the following incidents:

1. His sister’s dealings with a local Council in relation to changes to the home. He accused her of submitting a development application to the local Council in June 2013, without his knowledge as financial manager and in contravention of earlier advice from NSW Trustee and Guardian that such dealings were the domain of the financial manager. Mr TMC asserted that the draft development application of June 2013 included his mother’s signature as owner. On Mr TMC’s account, which seems to be supported from a letter to him from the local Council dated 24 June 2015, he became aware of the development application and the local Council determination in mid-2014 and then made representations to local Council. These representations resulted in the local Council claiming that they had been led to believe that:

1. Ms MVC as applicant had authority as the appointed attorney of her mother to make the application;

2. the local Council received no indication that the applicant lacked capacity to make the application; and

3. the local Council had not been informed by Ms MVC as applicant that a financial management order had been made for Mrs KJC.

2. The proposed works involved in the development application lodged in June 2013 would have made necessary an updated fire safety certification, which in turn would have involved on Mr TMC’s estimation, further building work of at least three months duration. This would have made his mother’s continued accommodation at home during that building work difficult if not impossible. Ms MVC had made no appropriate alternative accommodation arrangements for her.

3. Ms MVC had from time to time appeared to regard one of the bank accounts maintained in respect of his mother as belonging to her or at least being under her control.

4. Mr TMC also referred to a proposed deed of settlement which had been submitted to him by mail from Mr Z as solicitor for Ms MVC. A copy of the proposed deed had been provided to the Tribunal. Mr TMC indicated that the contents of the deed and the manner of its presentation to him were not consistent with the attempted conciliation discussions held the time of the previous hearing and he had immediately rejected the deed. He asked us to note that it included provisions for payments by him to Ms MVC in the event that Mrs KJC requires to be accommodated in a nursing home. We noted that clause 2(l) of the proposed deed appeared to impose on Mr TMC a generally-expressed obligation to assist Ms MVC financially in those circumstances until she obtained regular paid employment in locating and paying for temporary private accommodation and for any training Ms MVC might undertake “in order to increase her chances of employment”. A further provision required the parties to keep the terms of the deed confidential. We took Mr TMC to be contending that the presentation to him of the draft deed with these provisions demonstrated that Ms MVC was seeking to preserve and advance her own interests, contrary to her obligations as enduring guardian for her mother.

4. Ms MVC had recently taken a holiday or respite leave in circumstances which indicated her disregard for his mother’s relationships with himself and his immediate family including her grandchildren and which also potentially placed his mother at some risk. Mr TMC asserted that although Ms MVC had previously indicated that she was in need of some respite, she had not informed him or members of his family of the arrangements which she had made for a recent short holiday in regional NSW. Ms MVC had engaged a paid carer for this period without consultation with him as financial manager, and he and his family could have cared for Mrs KJC during this period if prior notice had been given.

4. Mr TMC also asserted that Ms MVC has on two occasions threatened to stop caring for their mother unless he is removed as financial manager. Mr TMC contends that that this demonstrated his sister’s inability test to distinguish her own needs from those of her mother.

32. Other documentation lodged by Mr TMC outlined further complaints about his sister Ms MVC’s actions.

33. In his submissions on what the Tribunal should order in relation to the guardianship issues, Mr TMC contended that his mother’s interests and welfare would best be protected by the following arrangements:

1. a guardian should be appointed to make decisions about access to Mrs KJC; but also to make decisions covering the functions in the existing Appointment of Enduring Guardian

2. his sister Ms MVC should retain her role as carer for Mrs KJC, but she should not be her guardian;

3. Mr TMC himself and his wife Mrs LDC should be appointed jointly as guardians with at least the authority to make decisions about Mrs KJC’s access and accommodation.

The submissions of Mrs LDC

34. Mrs LDC was a co-signatory to the lengthy statement made by Mr TMC dated 10 October 2015 and at the hearing she supported her husband’s contentions and position generally. However, Mrs LDC differed from her husband in relation to the orders which she felt should be made in Mrs KJC’s interests. She agreed that Ms MVC should be removed as a guardian and that she and her husband should be appointed jointly as guardians, but she believed that the Public Guardian should be appointed with the accommodation function. In answer to questions from Tribunal Members, Mrs LDC clarified that she believed that she and her husband should have the authority to make decisions about Mrs KJC’s health care and consents to treatment as well as access. Mrs LDC asserted that she and her husband would involve Ms MVC in decisions in recognition of her role as carer for Mrs KJC.

35. In seeking a role as guardian for health care and medical and dental issues, Mrs LDC relied on her nursing qualification and her professional experience as a nurse.

The submissions of Ms MVC

36. At the hearing Ms MVC addressed many of the issues outlined above which had been raised by her brother Mr TMC, but she also addressed them in detailed written submissions to the Tribunal. We commence by summarising Ms MVC’s responses to Mr TMC’s assertions and deal separately with her own submissions.

Ms MVC’s response to Mr TMC’s contentions

37. In relation to the contention that she has isolated her mother, Mrs KJC, from members of Mr TMC’s family, Ms MVC denied that she has done anything which was other than in the best interests of her mother. She also asserted that she was prepared to base arrangements for access by Mr TMC and his family to her mother on “professional advice”. In many items of correspondence and other documentation Ms MVC has dealt in detail with particular incidents where arrangements for access appear to have fallen through. Ms MVC’s position in summary of these matters appears to be that these arrangements fell through due to no fault of hers but rather because of inadequate notification or communication of arrangements by others, particularly her brother, Mr TMC. In her written submissions, Ms MVC asserts that there was an agreed protocol in June 2015 for arranging visits to Mrs KJC and that Mr TMC and others have failed to follow the protocol. Ms MVC also asserted in her written submissions that she has the right of residence in her mother’s house as carer and therefore has a right to privacy and quiet enjoyment but that she remains willing to make herself available to provide access by Mr TMC and others to her mother.

38. In submissions at the hearing, Ms MVC asserted that she has not prevented visits by her brothers or Mr TMC’s family to Mrs KJC’s home nor has she unreasonably restricted her mother’s visits to the home of Mr TMC. In paragraph 27 of her written submission of 30 November 2015 Ms MVC stated:

If there has been any so-called “eight-month ban” (that is a ban asserted by [Mr TMC] to have been imposed by [Ms MVC] on visits by him and his family to [Mrs KJC]), this has been purely due to [Mr TMC’s] (sic) reluctance or refusal to follow agreed protocols.

39. Ms MVC denied that she has failed to communicate reasonably with Mr TMC and others about her mother’s condition.

40. Ms MVC denied that she has improperly obstructed Mr TMC in his role as financial manager. She asserted that she has had to arrange or pay for at least some of the necessary maintenance on her mother’s home including urgent repairs to a window.

41. Ms MVC denied that she has placed herself in a conflict of interest; that is, as we surmise, a conflict between her owns personal interests and her duties as the carer and guardian of her mother.

42. In her written submissions of 30 November 2015, Ms MVC set out details of the care which she has provided to her mother. In a section of the submissions commencing with paragraph 61 she asserts that she should continue as guardian and that her brother, Mr TMC’s proposal to replace her is subject to a number of deficiencies, in particular that it gives insufficient weight to Mrs KJC’s strong wish to continue to live in a family home.

43. At the hearing, Ms MVC provided a detailed explanation of her recent respite holiday in regional NSW. It seemed common ground that Ms MVC had not had respite leave for some two and a half years. At the hearing, Ms MVC also denied that the proposed settlement deed contained anything which could reasonably be seen as a conflict of interest and said that many of the provisions reflected suggestions made by her brother, Mr TMC.

44. Ms MVC asked the Tribunal to allow her to remain as her mother’s enduring guardian. She asserted that as carer and guardian she is the best placed person to provide companionship and care for her mother and that this was also in accordance with the wishes of her deceased father. We understood Ms MVC to assert that allowing her to remain as carer and guardian would be the course which would be in the best interests of her mother Mrs KJC. Ms MVC’s position appeared to be that there was no necessity to appoint a guardian with a specific access function.

The submissions of Mr DAC

45. Mr DAC, son of Mrs KJC, made brief submissions at the hearing regarding guardianship issues. He told us that he believed that all three of Mrs KJC’s children care for her and have her best interests at heart.

46. Mr DAC said he was unable to act as guardian but that he supported the replacement of Ms MVC as enduring guardian with his brother, Mr TMC, and Mrs LDC jointly. Mr DAC said he would support his sister, Ms MVC, continuing to act as their mother’s carer. After some consideration, Mr DAC added that an alternative would be to appoint all three children as joint guardians. He did not provide reasons for this suggestion.

REVIEW OF THE FINANCIAL MANAGEMENT ORDER

Mrs KJC’s incapability, the need for an order and whether a continuation of the order would be in Mrs KJC’s best interests

47. It had not been possible to commence our consideration of the requested review of the financial management order at the hearings on 8 December 2015 and 23 February 2016.

48. The Presiding Member outlined the legal tests which have been developed through the leading cases to guide the Tribunal’s assessment of whether a person is or is not capable of managing their affairs. In particular, it is clear from those authorities that they person will not be capable of doing this if they are unable to make and implement decisions about their own affairs (person and property, capital, and income) in a reasonable, rational and orderly way, with due regard to their present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation: CJ v AKJ [2015] NSWSC 498 (Supreme Court of NSW, Lindsay J.)

49. The principal parties were in consensus that Mrs KJC continues to be incapable of managing her own affairs; that there remained a need for the appointment of a financial manager for Mrs KJC and that it would be in her best interests for there to be a continuing financial management order. The parties were however in substantial dispute as to who should be appointed as financial manager.

Who should be appointed as financial manager?

50. We decided to proceed firstly by asking each of the principal parties to explain briefly their position on this issue and secondly by obtaining the views of NSW Trustee and Guardian. A Client Services Officer of NSW Trustee was able to participate in the hearing by telephone in relation to these issues.

Submissions by the applicant, Ms MVC

51. In her detailed written submissions, Ms MVC raised the following issues relevant to the financial management order:

1. She asserted that Mr TMC as financial manager had failed to maintain the family home of Mrs KJC in a manner that provides a safe and comfortable environment for her. She referred particularly to Mr TMC’s failure to provide funds or to carry out repairs to a window that presented a safety risk to occupants and remedial work identified by builders on the main structure, windows and doors, to metal roofing over the garage and carport and the need for interior painting and removal of mould.

2. She alleged that Mr TMC as financial manager had attempted to access Mrs KJC’s credit card account using the login details and password which she owned as enduring guardian. In her written submissions Ms MVC noted that:

It is not beyond the bounds of possibility that the Financial Manager was contacting (sic) a situation where he could falsely accuse the Enduring Guardian of mismanaging [Mrs KJC’s] credit card account.

3. She also alleged that Mr TMC as financial manager had failed to cooperate with or facilitate her efforts to arrange respite.

4. In what appeared to be her principal contention, Ms MVC asserted that her brother Mr TMC had engaged in a pattern of behaviour that constituted harassment and bullying and general obstruction of her in her role as enduring guardian and for that reason he is unsuitable to remain as financial manager. She provided as examples of this:

1. Mr TMC’s response to the recent cancellation of Mrs KJC’s credit cards by the bank. We understood Ms MVC to allege that she as enduring guardian was attempting to protect Mrs KJC’s credit card account which, by agreement was used for Mrs KJC’s day to day living expenses, but was falsely accused by her brother as financial manager of interfering with the financial management of Mrs KJC’s estate.

2. Secondly, as we understand it, she alleged that her brother falsely accused her of attempting to establish two websites without reference to her brother as financial manager.

3. Thirdly, Ms MVC asserted that her brother as financial manager wrongfully accused her of attempting to interfere with the financial management of the estate.

4. There are other specific instances related in Ms MVC’s documentation which may also be intended to support her general allegation of obstruction through harassment and bullying.

52. In her closing submission, Ms MVC observed that the current split of responsibilities between her and her brother, Mr TMC, whereby she is the carer and enduring guardian and he is financial manager “simply won’t work”. Ms MVC asked the Tribunal to remove Mr TMC as financial manager and instead to commit the management of her mother’s estate to the NSW Trustee and Guardian. We note that in her application Ms MVC actually sought the appointment of Mr TMC, Mr DAC and herself jointly as financial managers, and in the alternative commitment of the management to NSW Trustee and Guardian. However during the hearing she confirmed that she would not pursue her proposal for the joint appointment of the three siblings.

Submissions by the appointed financial manager, Mr TMC

53. In his written submissions and at the hearing, Mr TMC contended that he was suitable for continued appointment as financial manager, that he had acted appropriately and in compliance with his obligations and NSW Trustee and Guardian authorities and directions and that his continued appointment would be in his mother’s best interests. At the hearing, Mr TMC indicated that he and his wife had made financial management of his mother’s estate “a major part of our lives” and he asserted that he had gone to substantial lengths to obtain the cooperation of and compliance by his sister, Ms MVC, with his decisions and requests as financial manager.

54. In response to the particular contentions made by Ms MVC as to his actions as financial manager Mr TMC, in his written submissions and in addressing the Tribunal at the hearing, contended as follows:

1. In relation to his maintenance of his mother’s home, Mr TMC said that his father had built much of the house and that as a young man he had assisted him before going into the building trade himself. Mr TMC described himself as “intimately familiar” with the house, its construction and the need for maintenance. He asserted strongly that he had not neglected necessary maintenance work; for example in relation to the repairs to the windows, that he had through his contacts in the industry arranged three different building companies who were prepared to quote for the work, but that his sister, Ms MVC, had only provided narrow timeframes within which she would allow inspection for this purpose. He said that the carport was affected by movement in the garden retaining wall and that its roof would need readjustment but this was not a job requiring urgent attention and could be done within the next 12 months.

2. We understood Mr TMC to contend in relation to the credit card issue that generally, his sister, Ms MVC, had had great difficulty in accepting that the Tribunal by its order had appointed him as financial manager and difficulty in coming to terms with the implications of that. He asserted that his sister did not fully understand the role, responsibilities or rights of a financial manager and that this was behind her attempts to run a separate credit card for their mother’s expenses. In his contention his sister did not understand that a financial manager must have ultimate control over all accounts and credit cards. He asserted that he had not wrongfully accused his sister of anything and her lack of understanding of the role of the financial manager was exemplified by the way in which she had gone behind his back to lodge the development application with the local Council.

3. In relation to the contention that he had prevented his sister from taking reasonable respite, Mr TMC denied that this was so. He referred to an early incident where Ms MVC wished to take respite care in Western Australia and had unexpectedly suddenly withdrawn her request.

4. In relation to Ms MVC’s allegation that he had harassed and bullied her and generally obstructed her in her role as enduring guardian and carer, Mr TMC denied that this was so. He pointed out that he had attempted to settle differences with his sister and when presented with the draft deed of settlement, whilst he did not agree with it he had written in detail to his sister outlining a compromise proposal, to which there had been no satisfactory response. Mr TMC said that during the period of the various Tribunal proceedings over recent years his sister had on various occasions accused him of being “nefarious” or “fraudulent” and suggested that he had acted contrary to the law. He took great offence at this and believed that his role as financial manager had been made much more difficult by his sister. He denied however that he had knowingly obstructed her in her role and continued to believe that she was an excellent carer for their mother.

55. Mr TMC’s position was that he should be allowed to continue as financial manager.

Submissions by Mrs LDC

56. Mrs LDC generally supported her husband’s position and contentions. She asked the Tribunal to consider the following specific matters:

1. The fact that much of the disputation between her husband that her sister-in-law, Ms MVC, had revolved around Ms MVC’s rights to enjoyment of the separate flat area in Mrs KJC’s home. Mrs LDC asked us to consider what benefit there was to Mrs KJC herself in the rights and position being asserted by Ms MVC. In her contention Ms MVC was acting in her own interests.

2. Ms MVC’s claims that essential work on Mrs KJC’s home had been neglected were greatly exaggerated and the recent exchange of emails between the parties had indicated that about 18 out of 20 necessary repair and renovation tasks had in fact been done.

3. Ms MVC had never been prevented or hindered from taking appropriate respite leave. Ms MVC had herself reneged on the arrangements to go to Perth. We understood Mrs LDC to assert that at least some of Ms MVC’s decisions concerning the timing and length of proposed respite were influenced by the effect of these matters on Ms MVC’s carers’ allowance entitlement.

Submissions by Mr DAC

57. Mr DAC made a brief oral submission at the hearing. He expressed support for the continuation in office as financial manager of his brother, Mr TMC, and asserted that Mr TMC and Mrs LDC had been “completely transparent in their dealings with Mum’s money”.

The views of the Client Services Officer (“the CSO”) of the NSW Trustee and Guardian

58. The CSO of NSW Trustee and Guardian participated by telephone. He confirmed that based on the reports of his colleagues it appeared that Mr TMC as financial manager had been and was in compliance with the authorities and directions issued by NSW Trustee and Guardian.

59. The CSO went on to make some general statements about the obligations of a financial manager in circumstances where there is apparent conflict between family members. In answer to a question from the Presiding Member, the CSO confirmed that he was stating general principles rather than making a finding or stating an opinion on behalf of NSW Trustee and Guardian as to Mr TMC’s actions specifically. The CSO confirmed that that was so. He confirmed that he was not very familiar with the facts of the case.

60. He indicated however that what he had heard of the evidence indicated clearly a degree of conflict between family members, including the financial manager.

61. He said that there was a an expectation from NSW Trustee and Guardian that managers would “make every effort to manage that conflict and that someone in (Mrs KJC’s) position would not be disadvantaged by the discussions and proposals, decisions and actions” and that this should be done “without compromising relationships with stakeholders”.

62. The CSO referred to the “Directions and Authorities” document issued to all financial managers and provided the following further comments concerning the obligations of financial managers generally:

…They have to make what they do a practical action on their part and that’s going to include other parties, other parties’ views, and ideally a manager would convince people who were against the manager’s overall disposition of any particular event, whether it’s got to do with the property or not, they would convince as to why their proposed course of action was reasonable and proper for the person themselves.

63. Significantly, the CSO went on to provide the following comment specific to this case:

So, it’s concerning that the daughter is expressing her inability to be the guardian, if that’s what’s going on. So, it’s concerning because a manager should be able to accommodate that role of guardian. They really should align.

THE TRIBUNAL’S ANALYSIS AND DETERMINATION

64. Having considered the written evidence and supporting documentation lodged and the testimony and submissions of the witnesses who participated in the hearing, we came to conclusions in relation to each of the applications and made specific findings indicated in the following paragraphs.

Guardianship issues

65. We found that Mr TMC and Mrs LDC had standing to bring their application to review the Appointment of Enduring Guardian because in our opinion they had a genuine concern for the welfare of Mrs KJC.

65. We were satisfied and formally found that Mrs KJC continues to have disabilities which prevent her from making some important life decisions.

66. The more difficult issue which is strenuously contested is whether the welfare and interests of Mrs KJC would best be served by continuing the appointment of Ms MVC under the Appointment of Enduring Guardian or alternatively whether we should make a guardianship order for her. In this area, as indeed in respect of many aspects of this case our decision is to some extent guided by, and is made in the context of, the substantial ongoing conflict and lack of mutual trust between Ms MVC and Mr TMC. Several attempts have been made to resolve those differences through discussion and conciliation at past hearings. All these have been unsuccessful.

67. We were ultimately satisfied however that there is a need, in the interests of Mrs KJC, for the current guardianship arrangements to be changed and we were satisfied that we should make a guardianship order and should therefore revoke the appointment of Ms MVC as enduring guardian. We came to that conclusion on the following grounds:

1. We found that there was a clear need for decisions about access to Mrs KJC to be made by a guardian appointed under order of this Tribunal. The Appointment of Enduring Guardian does not extend to such decisions and in any case Ms MVC has a direct interest in these questions and the decision must be made by an independent party.

2. We were satisfied that Ms MVC has great affection for her mother Mrs KJC, which is reciprocated and that Ms MVC has a genuine concern for her mother's welfare. We were also satisfied that she provides ongoing proper care, support and companionship for her mother.

3. We were also satisfied that, by reference to the tests expressed as proscriptions in section 17(1) of the Guardianship Act 1987 (NSW), Ms MVC appears to be the most appropriate person to make decisions about Mrs KJC's health care, medical and dental treatment and services. She appears both willing and able to exercise those functions of the proposed guardianship order. By reason of her close proximity to her mother and her ongoing care, in our view she is more appropriate to be appointed as guardian for those functions than are either Mr TMC or Mrs LDC, who live on the other side of Sydney. We reached that conclusion notwithstanding Mrs LDC's experience in nursing.

4. Anyone in Ms MVC's position as a carer who lives in the same accommodation as the person to whom they are caring must have at least some direct interest if they are also appointed to make accommodation decisions that person. Any such carer is in that sense potentially conflicted in relation to accommodation decisions, but it is not the practice of the Tribunal routinely to deprive a live-in carer of the right to be considered for appointment as guardian on that ground alone, in the absence of what section 17 describes as an "undue" conflict. Having said that, it is undeniable that Ms MVC has a real interest in maintaining her accommodation in her mother's home in some comfort and with some independence and privacy, when she wants it. She has demonstrated that in her evidence concerning the issue of the inter-leading door (although we accept that that dispute is now resolved) and in the exercise of her discretion to make decisions about access by her mother to others. She has been assiduous in protecting her interests in these matters. It is apparent that she has no alternative plans for accommodation. But we do not regard Ms MVC as having an undue conflict between her interests in this regard and her obligation to protect the interests of her mother. To that extent, section 17(1)(b) of the Guardianship Act does not in our view prevent Ms MVC's appointment as guardian.

5. However, it is clear from our assessment of the evidence that Ms MVC has demonstrated that she lacks a complete or adequate or clear understanding of the true extent of the powers, discretions and obligations of a guardian in relation to accommodation decisions, particularly, but not restricted to, the guardian's powers and discretions in exercising his or her relationship with an appointed financial manager. That has been demonstrated to us by:

1. Ms MVC's attitude and the position which she adopted in relation to the dispute concerning the inter-leading door (which we accept is now resolved);

2. her imposition of impediments to reasonable access to the home to enable repairs and renovations work on occasion (and we accept as reliable the evidence of Mr TMC in this regard); and

3. her apparent strategy and her approach to applying for and obtaining Council consent in relation to the "granny flat" and the absence of adequate notice to the parties concerned, including the content of her application and the apparent omission of consideration of fire safety implications.

6. We conclude therefore that Ms MVC is not able to exercise the function of accommodation to be conferred by the proposed guardianship order. It follows that the welfare and interests of Mrs KJC require someone else to be appointed guardian with the authority to make accommodation decisions for her.

7. In our view, the appointment of either or both Mr TMC and Mrs LDC as guardians with the accommodation function would further exacerbate family context and issues and would be likely to result in concern and perhaps distress for Mrs KJC. Accordingly we find that such an appointment would not protect or promote the welfare or interests of Mrs KJC. In our view the role of making accommodation decisions for Mrs KJC could not properly be undertaken by any member of the family in the circumstances and should pass to an independent objective decision-maker. For that reason we grant the accommodation function to the Public Guardian.

69. In summary, there should be a guardianship order under which the Public Guardian and Ms MVC are appointed as guardians with separate decision-making functions. The Public Guardian should have the decision-making functions of access and accommodation and Ms MVC should have the decision-making functions of health care, medical and dental consents, and services.

70. We were satisfied that a limited continuing guardianship order should be made and that the appropriate term of the order was two years.

Review of the financial management order

71. We were satisfied and make a formal finding that Mrs KJC remains incapable of managing her affairs, that there is a continued need for a financial management order for her and that the appointment of a financial manager under a further order would be in her best interests.

72. Clearly the central issue is whether Mr TMC should be permitted to continue as financial manager or whether he should be replaced.

73. We were satisfied and make a formal finding that Mr TMC remains a suitable person for appointment. He has clearly complied with the formal requirements of a financial manager, in the sense that he has complied with the authorities and directions issued by NSW Trustee and Guardian and has apparently complied with any further particular requirements of the NSW Trustee and Guardian.

74. The evidence is sufficient to persuade us that Mr TMC has acted in what he perceived to be his mother’s best interests and welfare. We take into account and accept as genuine and persuasive Mr TMC’s account of his strong affection for his mother, his familiarity, both as a builder and the son of a builder, with his mother’s home and his intentions to carry out his responsibilities as manager in her best interests. We also find that Mr TMC continues to be suitable in the sense that he has substantial experience in the building trade, that he is familiar with handling and keeping account of other people’s money and that in relation to the management and financial recording obligations of a manager he is suitably assisted by his wife Mrs LDC.

75. A substantial issue in the case was whether Mr TMC as financial manager had engaged in a pattern of behaviour that constituted harassment and bullying and general obstruction of his sister, Ms MVC, in her role as enduring guardian to the extent that he should be regarded as unsuitable for further appointment as financial manager.

76. It is obvious that some aspects of Mr TMC’s behaviour were regarded by his sister, Ms MVC, as harassing or bullying in nature. We accept as genuine Ms MVC’s assertions that this was the case and we accept that, if that was so, she may well have been upset and perhaps more defensive about her position as carer and enduring guardian. That is most unfortunate. It is particular unfortunate because it could ultimately impact on the welfare of Mrs KJC. However, we make no finding that Mr TMC intended his action, attitude or reaction to events to be obstructive, harassing, or bullying.

77. Nevertheless we do concur with Ms MVC’s conclusion that against this background of distrust and what she saw as obstruction and harassment, the current apportionment of care, guardianship and financial management responsibilities between her and Mr TMC was unworkable.

78. Nevertheless, we find that Mr TMC has done nothing to render himself unsuitable for further appointment as financial manager. Although the tests of suitability are not explicitly stated in the relevant Part of the Guardianship Act, the practice of the Tribunal and its predecessors, as approved by cases in the NSW Supreme Court and Court of Appeal, involve a consideration of the manager’s compliance with the authorities, directions and accounting requirements of NSW Trustee and Guardian, the manager’s ability not to favour his or her own interests over those of the person under management, their ability to report and account for what they had done as manager, their experience in dealing with money and property on behalf of other people and their public record; in particular their bankruptcy and criminal record.

79. We find that Mr TMC continues to satisfy each of these requirements. In our view it would not be correct or reasonable analysis of the evidence to conclude otherwise. The evidence does not establish to our satisfaction that Mrs KJC’s welfare and interests would not be served by Mr TMC’s continuation in office as financial manager.

80. However, we gave substantial consideration to the views of the CSO of NSW Trustee and Guardian, noting that the CSO had conceded that he had no particular previous familiarity with the facts of this case and that the most part he was making general statements about the obligations of a manager rather than observations about Mr TMC in particular. The CSO highlighted the obligation of a financial manager which arises in particular from section 39 of the NSW Trustee and Guardian Act 2009 (NSW) and is annexed to the written directions and authorisations given to every financial manager, to the effect that the manager must observe and recognise:

…the importance of preserving the family relationships and the cultural and linguistic environments of (the person under management).

81. We were satisfied and make a formal finding that this obligation is of particular relevance to the ongoing conduct by Mr TMC’s, of his role as financial manager. Accordingly, we make a formal direction to Mr TMC to comply with the requirements of section 39 and in particular to recognise the importance of preserving the family relationships of his mother and of working cooperatively and reasonably with the appointed guardians in his role as financial manager, in a manner which will preserve the welfare and interests of his mother.

82. We believe that some of the CSO’s comments, particularly those cited in paragraphs 60 and 61 above require further observation. The CSO appeared to suggest that a private manager’s ability to manage what he called “stakeholder relationships”, that is, relationships between various family members, is a proper consideration for the Tribunal in assessing the suitability of a financial manager. That is not quite accurate in one important respect. The proper consideration for the Tribunal is, where appropriate, whether the financial manager has taken into account the importance of preserving the family relationships of the person under management: see section 4(e) of the Guardianship Act and section 39(e) of the NSW Trustee and Guardian Act. There is no express obligation on us to assess the manager’s success in maintaining the relationships of family members between themselves in assessing the suitability of the appointed financial manager for further appointment. [Emphasis added.] It follows that any failure by a financial manager to resolve family disputes, that is disputes between family members rather than disputes involving the person under management is, of itself, not relevant in assessing the manager’s suitability. We are not sure that the CSO was suggesting that that was the case; but the point is worth making. For completeness, we should add that we recognise that a financial manager does have a general obligation, stemming from his or her duty under sections 4(e) and 39 (e), to try to work constructively with a family member who is a guardian, with a view to protecting and preserving the welfare and interests of the person under management.

Should a reviewable order be made?

83. Ultimately we were satisfied that it would be appropriate for the Tribunal to review the operation of the financial management order at the same time as the guardianship order is due for review. We believe that this would provide a suitable period to enable all affected parties to cooperate under the revised arrangements for guardianship and financial management. Accordingly the financial management order should be reviewed within two years.

Mediation

84. Finally, we believe it is appropriate that each of the principal family members should attempt to mediate any further dispute prior to making any further application to the Tribunal in relation to guardianship or financial management of Mrs KJC. We made an appropriate recommendation to those parties.

ORDERS, DIRECTION, AND RECOMMENDATION

Orders

1. We ordered that the enduring guardianship appointment made by Mrs KJC on 30 June 2011 appointing Ms MVC as her enduring guardian is revoked.

2. We made a continuing limited guardianship order for Mrs KJC. The Public Guardian and Ms MVC are appointed separately as her guardians for a period of two years from the date of this order. The Public Guardian has the authority to decide what access Mrs KJC has to others and the conditions of access and to decide where Mrs KJC may reside. Ms MVC has authority to decide what health care Mrs KJC may receive; to make substitute decisions about proposed minor or major medical or dental treatment where Mrs KJC is not capable of giving a valid consent and to make decisions about services to be provided to Mrs KJC.

3. The financial management order made on 30 September 2014 in relation to the estate of Mrs KJC is confirmed. The order is to be reviewed by the Tribunal within two years.

Directions and Recommendation

1. As set out in Appendix B to these Reasons for Decision.

APPENDIX B

The Tribunal’s directions and recommendations

Directions to Mr TMC

• Mr TMC is directed to comply with the requirements of section 39 of the NSW Trustee and Guardian Act and in particular to recognise the importance of preserving the family relationships of Mrs KJC and to work cooperatively and reasonably with the appointed guardians in his role as financial manager, in a manner which will preserve the welfare and interests of Mrs KJC.

Recommendation to family members

• The Tribunal recommends to Ms MVC, Mr TMC, Mrs LDC, and Mr DAC that in the event of any dispute arising between any of those parties as to the operation and effect of the guardianship order or the financial management order made this day, that prior to any further application being made to the Tribunal in relation to the disputed matters the parties attempt resolution of the dispute by formal mediation by an nationally accredited mediator, the mediator’s appointment to be arranged through the Resolution Institute or the Law Society of NSW.

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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: 06 June 2018