KLS

[2017] NSWCATGD 42

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	KLS [2017] NSWCATGD 42
Hearing dates:	4 December 2017
Date of orders:	04 December 2017
Decision date:	04 December 2017
Jurisdiction:	Guardianship Division
Before:	A Britton, Principal Member W E Blaxland, Senior Member (Professional) J Cootes, General Member (Community)
Decision:	The application is dismissed because the Tribunal has no jurisdiction.
Catchwords:	GUARDIANSHIP – application for guardianship – consideration of section 3(2) of the Guardianship Act 1987 (NSW) – whether subject person is a “person in need of a guardian” – lack of evidence as to need for order
Legislation Cited:	Guardianship Act (1987) NSW ss 3(2), 4(d) and 14)(a)(i), 14(1), 25G(a) Mental Health Act 2007 (NSW)
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 P v NSW Trustee and Guardian [2015] NSWSC 579
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Ms KLS (the person) Mrs LZS (applicant) The NSW Public Guardian
Representation:	Nil
File Number(s):	2017/00197365
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

1. Sixty-four year old Ms KLS lives independently in an apartment in Southern Sydney. Ms KLS and her sister, Mrs LZS, are joint owners of the apartment, which was given to them by their mother.

2. Ms KLS is currently the subject of a financial management order made by a differently constituted Tribunal in June 2017.

3. In July 2017, Mrs LZS made an application to NCAT seeking a guardianship order in respect of Ms KLS (the Application). Mrs LZS wrote in the Application that she intends to sell the apartment. In her opinion Ms KLS lacks the ability to look for alternative accommodation and needs a “mental health assessment” and treatment.

4. For the reasons that follow, we conclude that the available material does not permit the exercise of the power to make a guardianship order.

Should the hearing proceed in the absence of Ms KLS?

5. Ms KLS did not participate in the hearing to determine the Application. Nor did she attend the hearing held a few months earlier to determine the application made by Mrs LZS for a financial management order to be made in respect of herself.

6. The NSW Civil and Administrative Tribunal’s (NCAT) files reveal that a notice of hearing was sent to Ms KLS. In a pre-hearing report, a staff member of NCAT wrote that he attempted to contact Ms KLS by phone, without success. In the course of the hearing we left a series of phone messages for Ms KLS and requested that she contact the Tribunal. Our calls were not returned.

7. Mrs LZS produced copies of emails she had sent to Ms KLS, alerting her to the hearing listed to determine the Application.

8. Being satisfied that Ms KLS had notice of the hearing, we decided to proceed to determine the Application in her absence. In reaching that decision, we took into account the obligation to have regard to Ms KLS’s views in exercising the power to make a guardianship order: ss 4(d) and 14)(a)(i) of the Guardianship Act1987 (NSW) (the Act). Nonetheless, in the absence of any information to suggest that if the hearing were to be adjourned to a future date, Ms KLS would be likely to participate, and given the history of her failure to participate in other hearings, we decided to proceed to determine the Application in her absence.

Statutory framework

9. The power to make a guardianship order can only be exercised if the person the subject of the proposed order is a "person in need of a guardian": s 14(1) of the Act. The Act defines a “person in need of a guardian” as “a person who, because of a disability, is totally or partially incapable of managing his or her person”: s 3(2) of the Act. Section 3(2) of the Act, defines a "person who has a disability" in the following terms:

3 Definitions

...

(2)   In this Act, a reference to a person who has a disability is a reference to a person:

(a)   who is intellectually, physically, psychologically or sensorily disabled,

(b)    who is of advanced age,

(c)    who is a mentally ill person within the meaning of Mental Health Act 2007, or

(d)    who is otherwise disabled,

and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation.

10. The term “social habilitation” used in the above definition is not defined by the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J at [303] considered its meaning in the context of s 3(2) of the Act:

The expression “social habilitation” (in the context of references to “disability”, “restricted”, “major life activities” and the word “requires”) may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others.

Is Ms KLS a person in need of a guardian?

11. In determining whether Ms KLS is a person in need of a guardian, we have taken into account the material filed by Mrs LZS in these proceedings, and, at her request, the material filed in the proceedings to determine the application for a financial management order. In addition, we had regard to the reasons given by the Tribunal for deciding to make a financial management order in June 2017 (see, Reasons for Decision, 27 June 2017).

12. Mrs LZS lives in Tasmania and is in regular contact with her mother who lives in Sydney. She attempts to, but is not always successful in, maintaining regular contact with her sister.

13. Mrs LZS claims that after years of attempting to disentangle herself from the ownership of the apartment, she has decided she must now act for the following reasons. First, she can no longer continue to afford to fund the outgoings on the property, which she has done to date, without assistance from her sister. Second, she claims that her ownership of the apartment adversely impacts upon her pension entitlements. Mrs LZS stated that she plans to use her share of the proceeds of the sale to establish a trust fund for her sister.

14. Mrs LZS claims that despite her encouragement, Ms KLS has made no attempt to find alternative accommodation. According to Mrs LZS, when pressed about her accommodation plans once the sale of the apartment is finalised, Ms KLS said she would live with her mother. In Mrs LZS’s opinion this option would be “disastrous” and is likely to result in Ms KLS killing their mother, or vice versa.

15. In a statutory declaration submitted in support of the financial management application, Mrs LZS wrote that Ms KLS:

1. Displays irrational behaviour which she believes to be indicative of some form of mental illness;

2. Refuses to seek medical assistance for her illness;

3. Has largely been unemployed since stopping work as a teacher 20 years ago;

4. Has a “seriously impaired” ability to have co-operative, rational discussions about anything to do with planning, finances, property, or housing.

16. In Mrs LZS’s opinion, Ms KLS is now incapable of decisions of any significance. She says that she is concerned that without a guardian, once the apartment is sold, there is a risk her sister will find herself homeless.

17. In these proceedings Mrs LZS stated that in the last five years there has been an “evident deterioration” in her sister’s physical and mental health. According to Mrs LZS, Ms KLS refuses to consult with health practitioners and is often unwell for extended periods.

18. In support of her claim that her sister is a “person who has a disability”, Mrs LZS points to Ms KLS’s:

1. Pattern of “avoidant behaviour” to an “extreme degree”, as illustrated by her failure to: participate in this hearing and previous hearings, and despite being requested to do so on numerous occasions, engage with the NSW Trustee and Guardian;

2. “Increasingly paranoid and irrational behaviour”. She cites as an example a recent birthday celebration where Ms KLS stormed out of a restaurant over a seemingly inconsequential matter, leaving their elderly mother and other members of the family, stranded and without transport.

19. As acknowledged by Mrs LZS, there is no medical evidence to support her belief that Ms KLS is a “person who has a disability” within the meaning of s 3(2) of the Act. In the material before us, the only document prepared by a health practitioner in relation to Ms KLS, is a report prepared by an Acute Care team leader of a public hospital, Ms Z. Dated 8 May 2017, in that report Ms Z wrote that on two occasions in the last 12 months at the request of Mrs LZS, staff of the public hospital’s Acute Care made phone contact with Ms KLS who “politely declined to be seen by the service”. According to Ms Z during those conversations, Ms KLS was “thought coherent … at all times”. Ms Z wrote that Mrs LZS had informed the public hospital’s Acute Care of long standing tension between her and Ms KLS and “while there may be issues there, she certainly declined having any acute symptoms of mental illness”. She wrote that the team was unable to “elicit any evidence of acute safety concerns, such as suicidiality or evidence of psychotic thinking or manic symptoms, which would warrant our service pursuing the matter further, as guided by the Mental Health Act 2007 (NSW)”.

20. In Mrs LZS’s opinion, her sister probably has a combination of Asperger’s Syndrome, Manic Depression, and Obsessive Compulsive Disorder. She bases that opinion on her personal experience of dealing with people with mental illness, including her father and a young woman with paranoid schizophrenia who lived with her family throughout the 1980's. In addition, she states that her opinion is shared by a family friend who is an experienced medical practitioner and is familiar with her sister’s history.

Consideration

21. We accept that Mrs LZS holds the genuine and honest belief that Ms KLS is a “person who has a disability” and is a “person in need of a guardian”. Nonetheless, for the reasons that follow we are not satisfied that the available material establishes either contention on the balance of probabilities.

22. A diagnosis made by a qualified health practitioner is not a pre-condition to a finding that a person has a mental illness or is psychologically disabled. Nonetheless, the absence of such evidence makes the task of establishing that the subject person has a mental illness or is psychologically disabled, difficult.

23. It is a matter of common knowledge that some people with a mental illness, condition or disorder, lack insight into their condition and, as a consequence may avoid seeking medical treatment. The fact that a person has not been diagnosed with a mental illness, disorder or condition, and/or does not seek treatment for the purported condition does not establish that they do not have a relevant condition. Conversely, it does not establish that they do. The Tribunal needs to be actually persuaded that that the subject person is a person who has a disability and as the authorities have consistently warned, it is insufficient to rely on “slender and exiguous proofs” (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 per Rich J at [350]), or “inexact proofs, indefinite testimony, or indirect inferences” (Briginshaw per Dixon J at [362]).

24. The available evidence reveals that Ms KLS has a long and troubled relationship with her mother and sister, does not engage with health services, is isolated in the community and lacks the capacity to manage her financial affairs. However, apart from the observations made by and the opinions expressed by Mrs LZS, there is no material to suggest that Ms KLS suffers from a mental illness, disorder or condition. Indeed, while their contact with Ms KLS has been limited, Ms Z’s report indicates that members of the Acute Care team of the public hospital, do not share Mrs LZS’s opinion that Ms KLS is a person with an “acute mental disorder”.

25. It may be that Mrs LZS is correct and Ms KLS is psychologically disabled and/or has a mental illness and by virtue of that fact is restricted in one or more major life activities to such an extent that she requires supervision or services to live within the community. Further, it may be that it is in Ms KLS’s best interests for a substitute decision-maker to be appointed to make decisions on her behalf about her accommodation and health services. However, Mrs LZS’s unqualified opinion about her sister’s mental condition together with her unsupported observations about her sister’s behaviour, provide an insufficient basis to conclude that Ms KLS is a person who has a disability and is a person in need of a guardian, as those terms are defined in the Act.

26. In making this finding we note that the Tribunal (differently constituted) in deciding to make a financial management order in respect of Ms KLS found she was not capable of managing her affairs. While there is a degree of overlap between the concepts of a “person in need of a guardian” and a person who is “not capable of managing their affairs” (s 25G(a) of the Act) they are not one and the same thing. Relevantly, the latter does not require a finding to be made that the subject person is a “person who has a disability”.

27. Not being satisfied that Ms KLS is a person who has a disability and is a person in need of a guardian, the power to make a guardianship order cannot be exercised and we must dismiss the Application.

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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: 05 July 2018