KNC

[2015] NSWCATGD 51

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	KNC [2015] NSWCATGD 51
Hearing dates:	1 December 2015
Date of orders:	01 December 2015
Decision date:	01 December 2015
Jurisdiction:	Guardianship Division
Before:	J Anderson, Senior Member (Legal) D Lim, Senior Member (Professional) S Fogg, General Member (Community)
Decision:	Guardianship order renewed and varied. Joint private guardians appointed for three years with the functions of accommodation, health care and medical and dental treatment.  Appointment of deceased private financial manager revoked; new private manager appointed.
Catchwords:	GUARDIANSHIP – requested review of guardianship order – consideration of factors in section 14 of the Guardianship Act (NSW) – change in person’s circumstances – previously appointed guardian has died – consideration of section 4 principles in the Guardianship Act (NSW) – where person believes they can make their own decisions – ongoing need for a guardianship order – guardianship order renewed and varied – joint private guardians appointed FINANCIAL MANAGEMENT – requested review of financial management order – death of appointed financial manager – tribunal’s powers to revoke the financial management order – consideration of section 25M of the Guardianship Act (NSW) – suitable person to manage the person’s estate – appointment of deceased financial manager revoked – new private manager appointed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 15(3), 17(1), and 25M Mental Health Act 2007 (NSW)
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court, Windeyer J, 29 November 1999 IF v IG [2004] NSWADTAP 3 P v D1 [2011] NSWSC 257 Re B [2011] NSWSC 1075
Category:	Principal judgment
Parties:	Mrs KNC (person under guardianship) Mr KLC (spouse, financial manager, and guardian) Mr TZP (guardian) Mr DAP (applicant) The NSW Trustee and Guardian
File Number(s):	50775
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify a person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

REQUESTED REVIEW OF GUARDIANSHIP ORDER

What the Tribunal decided

1. The Tribunal reviewed the previous guardianship order made on 4 August 2015 concerning Mrs KNC and renewed and varied it as follows: Mr DAP and Mr TZP were appointed for three years as joint guardians of Mrs KNC with the functions of accommodation, health care, and medical and dental treatment.

Background

2. Mrs KNC is a 73-year old woman who is a resident of an aged care facility in Southwest Sydney. Mrs KNC’s husband, Mr KLC, passed away on 29 November 2015, two days prior to the Tribunal hearing. Mrs KNC has two sons: Mr DAP who lives in Victoria and Mr TZP, who lives in Queensland. Mrs KNC, who requests to be known as Ms XX, is said to have Bipolar Affective Disorder, and receives support from a Community Mental Health Service.

3. On 24 September 2012, the Tribunal made a guardianship order in respect of Mrs KNC, appointing Mr KLC and Mr TZP as joint guardians for a period of 12 months. On the same date, the Tribunal made a financial management order appointing Mr KLC as Mrs KNC’s financial manager.

4. On 20 September 2013, the Tribunal reviewed the guardianship order and renewed it for three years, appointing Mr KLC and Mr TZP jointly as Mrs KNC’s guardians with the functions of health care and medical and dental treatment. On the same date, the Tribunal reviewed the financial management order and confirmed the order.

5. On 4 August 2015, at the request of Mr KLC, the Tribunal reviewed the guardianship order in respect of Mrs KNC and varied the order to include the functions of accommodation and services.

6. On 22 October 2015, the Tribunal received a request by Mr DAP to review both the guardianship order and the financial management order in respect of Mrs KNC.

The hearing

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

What did the Tribunal have to decide?

8. On reviewing the current guardianship order, the Tribunal may confirm, vary, suspend, revoke, renew, or renew and vary the order. Mr DAP requested the Tribunal to review the current guardianship order for Mrs KNC because of the ill-health of his father, Mr KLC, a guardian appointed for Mrs KNC.

9. Accordingly, the questions to be considered by the Tribunal are:

• Is Mrs KNC someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

• Should the guardianship order continue, be revoked or be renewed?

• What functions should now be given to the guardian?

• Who should be the guardian?

Is Mrs KNC someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

10. Section 14 of the Guardianship Act 1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she is “a person in need of a guardian”. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person” (s 3(1), Guardianship Act). A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation (s 3(2), Guardianship Act).

11. When the previous orders were made, the Tribunal found that Mrs KNC had a disability being mental illness, namely Bipolar Affective Disorder, and was unable to make important life decisions. There is no new evidence before the Tribunal in relation to this issue. Furthermore, the Tribunal notes that since the last Tribunal hearing four months ago, Mrs KNC has moved to supported (hostel) accommodation. Ms SPC, Director of Care of Mrs KNC’s accommodation facility, told the Tribunal that Mrs KNC, while not requiring constant supervision, does need assistance with activities of daily living, including medication and meals. Ms SPC states Mrs KNC has no insight into her situation and her care needs, and is in need of a guardian.

12. Mrs KNC believes she is capable of making her own decisions. She told the Tribunal that she has never had a mental problem, and was used as an experimental patient.

13. The Tribunal takes into the account the totality of the evidence, including the evidence in support of the original application as well as the current evidence of Ms SPC. There was no expert evidence to contradict the professional evidence, and the Tribunal was satisfied on all of the evidence before it that Mrs KNC continues to have a disability which prevents her making important life decisions. She is a person for whom the Tribunal could make a further guardianship order.

Should the Tribunal make a further guardianship order and if so, what order should be made?

14. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further guardianship order:

1. the views (if any) of:

1. the person, and

2. the person's spouse, and

3. the person's carer and

2. the importance of preserving the person's existing family relationships, and

3. the importance of preserving the person's particular cultural and linguistic environments, and

4. the practicability of services being provided to the person without the need for the making of such an order.

15. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2). When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

16. Since the last Tribunal review of the guardianship order, Mrs KNC’s circumstances have changed considerably. Her husband, Mr KLC, became very unwell, requiring hospitalisation and then supported accommodation and care. Sadly, Mr KLC passed away two days prior to the Tribunal hearing. Mr KLC was for many years Mrs KNC’s primary care-giver and a significant source of support and decision-making for Mrs KNC. His ill-health, and his ability to continue in this role, prompted the application to review the guardianship order. Six days prior to his death, Mr KLC spoke to the Tribunal Officer with carriage of the matter and advised of his support for his sons, Mr DAP and Mr TZP, to be appointed as joint guardians of Mrs KNC.

17. Mrs KNC attended the Tribunal hearing in person, accompanied by both of her sons. At the outset, she told the Tribunal that her surname was XX, and asked to be referred to by that name. Mrs KNC said that she was not happy living in her current accommodation, and identified that the meals were not to her liking, she hadn’t had any visitors, she was not allowed to go anywhere, and no appointment had been made in relation to her foot problems. As indicated previously, Mrs KNC is of the view that she is quite capable of making her own decisions. She does not support the renewal of the guardianship order.

18. Ms SPC told the Tribunal that Mrs KNC expresses a wish to live at home, but has no insight into her situation and care needs. Ms SPC said Mrs KNC visits her in her office, usually on a daily basis, and a Clinical Nurse Specialist in Mental Health sees Mrs KNC every shift, which usually occurs about three times a week. Ms SPC has arranged for Mrs KNC to see a visiting podiatrist next month to review her foot problems. The accommodation provides an extensive leisure program, and enables opportunities for social interaction.

19. Ms SPC indicated Mrs KNC displays impulsive behaviour, including attending to tasks independently rather than seeking assistance. As a result, she has sustained two falls since her admission to the accommodation. Ms SPC supports a guardianship order for Mrs KNC and indicated that both Mr DAP and Mr TZP had been “fantastic”, in terms of their communication and involvement with their mother.

20. Mr DAP and Mr TZP are very pleased with the standard of care their mother is receiving at the hostel, which they submit was, and continues to be, necessary following their father’s ill-health and subsequent death. Mr DAP and Mr TZP submit that a guardianship order is required for their mother, particularly in relation to her accommodation, health care and medical and dental treatment.

Tribunal consideration

21. In coming to its decision, the Tribunal took into account all of the evidence, both oral and documentary. It also took into account the submissions of the parties and participants in the hearing, as well as the important principles set out in s 4 of the Guardianship Act.

22. The Tribunal was satisfied that there continues to be a need for a guardian to be appointed for Mrs KNC, and accordingly the guardianship order should be renewed. In coming to this conclusion, the Tribunal was cognisant of the fact that Mrs KNC continues to express resistance to her current accommodation. She does not agree that her disability impacts upon her decision-making and that she requires increased care. The Tribunal formed the view that decisions about Mrs KNC’s accommodation and care are not decisions which in the current circumstances ought to be made informally. Rather, those are matters that the Tribunal was satisfied should be explored, and ultimately determined, by an appointed guardian; that is, someone specifically tasked with making decisions applying the important principles in s 4 of the Guardianship Act. Accordingly, the Tribunal finds that informal mechanisms are not appropriate to protect Mrs KNC’s welfare and interests and in all the circumstances, a guardianship order should be made.

What decision-making functions should be included in the order?

23. The Tribunal finds that Mrs KNC lacks insight into her health concerns and her medical treatment. In order to make properly informed decisions for Mrs KNC, it will be important for the guardian to be able to liaise with the health professionals involved in her treatment and care. As a result, the guardianship order should continue to include the functions of health care and medical and dental treatment. In addition, the Tribunal finds that a guardian’s functions should extend to decision making with respect to accommodation, which continues to be an issue for Mrs KNC.

Who should be appointed as guardian?

24. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Guardianship Act. He/she must:

1. have a personality generally compatible with the personality of the person under guardianship,

2. have no undue conflict of interest (particularly financial) with those of the person and

3. be able and willing to exercise the functions of the order.

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

26. In P v D1 [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.

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

28. It is evident that both Mr DAP and Mr TZP love and care deeply for their mother. They are united in their genuine concern for her welfare and have demonstrated an ability to work collaboratively in her best interests. They are in regular contact with the health professionals involved in their mother’s treatment and care, and notwithstanding their residence interstate, they have demonstrated a capacity and availability to make decisions as required.

29. Mr TZP seeks to continue in his role as guardian, and supports the joint appointment of his brother, Mr DAP. The Tribunal notes the wishes of the late Mr KLC that Mr DAP replace him as guardian.

30. The Tribunal was satisfied that both Mr DAP and Mr TZP meet the requirements of the Guardianship Act and should be appointed and re-appointed respectively.

Should the order be renewed and, if so, how long should the order last?

31. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. The Tribunal notes that the term of the guardianship order made on 20 September 2013 was for three years. This term was not varied when the order was reviewed recently by the Tribunal in August 2015.

32. However, the Tribunal notes that Mrs KNC’s situation has changed considerably in recent times and has required a number of important decisions to be made. Mrs KNC is no longer living in her home and has recently entered supported accommodation. Her husband (and predominant support in her life) has now passed away. This change in circumstances is likely to give rise to a number of decisions to be made for Mrs KNC, especially as Mrs KNC ages and her care needs increase.

33. Mr DAP and Mr TZP have participated in previous Tribunal hearings (of which there have been a total of three). They requested that the Tribunal consider renewing the guardianship order for a period longer than the current order (the term of which ends in nine months’ time). They told the Tribunal that the issues facing their mother have existed for 40 years and there is not an indication that they will cease. Mrs KNC, who did not support a guardianship order being made at all, did not support a longer order being made.

34. On the evidence before it, including the findings that guardianship has been required continuously for Mrs KNC during the last three years, the Tribunal determined that an order for a period of three years is appropriate. In coming to this conclusion, the Tribunal formed the view that Mrs KNC is highly unlikely to regain capacity to make her own decisions, which are likely to continue to arise on a regular basis. Moreover, the Tribunal notes that Mr DAP and Mr TZP have always played an important role in their mother’s life. Their care and respect for her was apparent during the Tribunal hearing notwithstanding the challenges brought about by their mother’s condition.

35. In light of the specific circumstances of this matter, the nature of Mrs KNC’s disability, and the ongoing nature of the decisions to be made, the Tribunal decided to renew the guardianship order for a period of three years from the date of this order.

REVIEW OF FINANCIAL MANAGEMENT ORDER

What did the Tribunal have to decide?

36. Mr DAP has requested that the Tribunal review the financial management order because of the inability of the current financial manager, Mr KLC, to continue in the role.

37. On reviewing the financial management order the Tribunal must confirm, confirm and vary or revoke the financial management order.

38. The Tribunal may revoke the financial management order only if:

1. it is satisfied that Mrs KNC is capable of managing her affairs; or

2. it considers that it is in the best interests of Mrs KNC that the order be revoked.

39. The Tribunal may also review the appointment of the manager if it considers it appropriate to do so.

40. On reviewing the appointment of the manager, the Tribunal may either confirm or revoke the appointment. The Tribunal may revoke the appointment under review only if:

1. The appointed manager seeks the revocation, or

2. The Tribunal is satisfied that it is in the best interests of Mrs KNC that the appointment be revoked.

41. If the appointment of the manager is revoked but the financial management order remains in place, the Tribunal must appoint a substitute manager.

Should the order be revoked because the person has regained the capability to manage her affairs?

42. When the financial management order was made, the Tribunal was satisfied that, because of her medical condition, Mrs KNC could not deal with her affairs in a reasonably competent manner, was at significant risk of being disadvantaged and having her assets dissipated. There was no new evidence before the Tribunal indicating that Mrs KNC has regained capacity to manage her affairs. The financial management order cannot be revoked on this basis.

Should the order be revoked because it is in the best interests of the person?

43. There was no evidence before the Tribunal that the financial management order in relation to Mrs KNC should be revoked in her best interests. Rather, the evidence of Mr DAP and Mr TZP is that Mrs KNC remains impulsive with her spending and is vulnerable to financial exploitation.

44. Prior to his death, Mr KLC opened a credit union trust account into which he would make regular small deposits of money. He also made arrangements so that Mrs KNC could access those funds via a key card. However, due to the fact that Mrs KNC’s estate is subject to management, the credit union appears not to have permitted Mrs KNC to access the account in this manner.

45. The Tribunal did not seek to determine, or further inquire of, those specific issues. The Tribunal is aware, however, that the NSW Trustee and Guardian, when acting as financial manager for clients, will often deposit amounts of money into accounts to which the client can access. In this sense, the practice appears to be not uncommon. In any event, it may be appropriate that further information is sought from the NSW Trustee and Guardian about those and any other related matters.

43. The Tribunal determined that the financial management order in respect of Mrs KNC should remain in place. That is, the Tribunal was not satisfied that the financial management order should be revoked in Mrs KNC’s best interests.

Should the appointment of the manager be reviewed?

47. In light of the death of the financial manager, Mr KLC, the Tribunal decided that it was appropriate to review the appointment.

Is it in the best interests of Mrs KNC that the appointment of Mr KLC be revoked?

48. By reason of the death of the current financial manager, the appointment of Mr KLC should be revoked.

Who should be appointed?

49. In appointing a financial manager, as in making all other orders under the Guardianship Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Guardianship Act.

50. Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person’s estate or may commit the management of the estate to the NSW Trustee and Guardian.

51. Mr DAP seeks to replace his father as financial manager of Mrs KNC’s estate. His appointment is supported by Mr TZP. It was also supported by Mr KLC, who prior to his death, advised the relevant Tribunal Officer of his views.

52. Mr DAP is responsible for managing financial affairs in his current employment as Sales Director for a multinational company. He is experienced in keeping records and compiling spreadsheets. He is also executor of his late father’s will, and is due to obtain financial advice about investment strategies to ensure his mother’s ongoing accommodation and care is appropriately funded into the future. The Tribunal was satisfied that Mr DAP was a suitable person to be appointed as financial manager for Mrs KNC, subject to the authorities and directions of the NSW Trustee and Guardian.

53. Accordingly, due to the death of Mr KLC, it was appropriate that his appointment as financial manager be revoked, and in substitution, Mr DAP be appointed as financial manager of the estate of Mrs KNC.

**********

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: 15 June 2016