KZM

[2020] NSWCATGD 97

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KZM [2020] NSWCATGD 97

Hearing dates:

18 February 2020

Date of orders:

18 February 2020

Decision date:

18 February 2020

Jurisdiction:

Guardianship Division

Before:

N Jones, Senior Member (Legal)
Dr S L Thompson, Senior Member (Professional)
F E Hilson, General Member (Community)

Decision:

GUARDIANSHIP:

1. A guardianship order is made for KZM.

2. UND of [Address removed for publication.] is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 18 February 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where KZM may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take KZM to a place approved by the guardian.

ii) keep him at that place.

iii) return him to that place should he leave it.

c) Services

To make decisions about services to be provided to KZM.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

FINANCIAL MANAGEMENT:

1. The estate of KZM is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. UND of [Address removed for publication.] is appointed as the financial manager of the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – unconfirmed diagnosis of dementia – subject person an inpatient in hospital – lack of insight into their condition, needs, and reason for admission to hospital – long-term alcohol use and possible liver damage – need for accommodation decisions post-discharge – subject person exhibits wish to return home – need for authorise others function – suitability of proposed private guardian – private guardian appointed – order made.

FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their own affairs – subject person unable to budget – charitable organisation paying subject person’s expenses – subject person has unpaid debts – potential need for residential aged care contracts to be signed on subject person’s behalf – proposed financial manager able to approach the role in a clinical, methodical fashion – private financial manager appointed – order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4(e), 14(1)-(2), 14(2)(b)

NSW Trustee and Guardian Act 2009 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

001: Guardianship Application

KZM (the person)
UND (applicant)
Public Guardian
KNM (spouse)

002: Financial Management Application

KZM (the person)
UND (applicant)
NSW Trustee and Guardian
KNM (spouse)

Representation:

Nil

File Number(s):

NCAT 2020/00030674

Publication restriction:

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

REASONS FOR DECISION

What the Tribunal decided

1. The Tribunal made a continuing guardianship order appointing UND as guardian for KZM with functions as set out above. The order will be reviewed at the end of 12 months.

2. The Tribunal made a financial management order making the estate of KZM subject to management under the NSW Trustee and Guardian Act 2009 (NSW) and appointing UND as the financial manager for KZM.

Background

1. KZM is 83 years old and is presently an inpatient at a public hospital. Before admission he was living with his wife, KNM, in their home in regional NSW.

2. KZM was admitted to hospital after being found by police wandering the streets in a confused state.

3. KZM is suspected to have dementia.

4. KZM and KNM do not have children of their own. They are supported in the regional NSW community by their nieces and nephews.

5. The treating team caring for KZM do not believe that he can be safely discharged to continue to live in his own home. They are suggesting that KZM, together with KNM, should be discharged to a residential care facility.

6. On 30 January 2020, the Tribunal received applications for guardianship and for financial management. The applicant in each case is UND, the niece of KZM and KNM.

The Hearing

7. At the end of these Reasons for Decision is a list of the parties and witnesses who attended the hearing. [Appendix removed for publication.]

8. Applications for guardianship and financial management had also been made by UND in respect of KNM. The applications for each of KZM and KNM were heard together.

GUARDIANSHIP

What did we have to decide?

9. The questions we considered were:

• Is KZM someone for whom we could make a guardianship order?

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

• If a guardianship order is to be made, who should be the guardian and how long should the order last?

Is KZM someone for whom we could make a guardianship order?

10. Section 14(1) of the Guardianship Act 1987 (NSW) (“the Act”) enables the Tribunal to make a guardianship order for KZM if we are satisfied that he is “a person in need of a guardian”.

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

12. The following documents were before us at the hearing and were considered by us:

• A Health Professional Report Form completed by Dr Z dated 19 December 2019;

• Letter from Dr Y, Geriatrician dated 23 October 2019 (while written in respect of KNM, this letter contains information relevant to both KZM and KNM);

• Social Work Report prepared by Ms X dated 19 December 2019;

• The originating applications.

13. Dr Z records in his report that KZM is suspected of having dementia although this is yet to be confirmed by a geriatrician. He writes that KZM has poor insight into his own lack of nutrition and an inability to manage tasks at home. He also had no insight into the reason for his admission into hospital or his lack of safety at home.

14. Dr Y saw KNM in the company of her great niece, Ms W and interviewed each of them separately. In her letter following that report, Dr Y records that there are concerns about KZM’s cognition, alcohol intake and driving ability.

15. Dr Y goes on to write that it appears that KZM and KNM are in high need of services and require case management. At the time of interview an Aged Care Assessment Team (ACAT) assessment was needed for each of them.

16. In the hearing, Dr Z told us that KZM is thought to have dementia, however, that has not yet been formally diagnosed. Dr Z told us that KZM has poor short-term memory and lacks insight into his condition and circumstances. As a result, KZM has an impaired ability to make decisions about his accommodation and services. More complex medical decisions cannot be made safely by KZM.

17. Dr Z said that KZM is generally fit and well. The main medical issue relates to his long-term alcohol use. Dr Z believes that KZM may have a degree of chronic liver damage.

18. KNM was admitted into a public hospital on 25 October 2019. UND told us that KZM was admitted into hospital the following day. On that day, KZM’s grandniece, Ms V, had called KZM to inquire after KNM’s condition following her admission to hospital. KZM reportedly said that KNM was at the RSL Club, raising concerns for his welfare and the police being asked to conduct a welfare check. Police found KZM wandering in the street in a confused state before they took him to hospital.

19. Ms W, who regularly visited KZM and KNM in their home, told us that KZM’s decline was noticeable. This was perhaps masked to a degree because KNM, despite her own issues, was still looking after him. Ms W told us that she had noted that neither of them ate much.

20. We asked KZM about his views about guardianship. Save for expressing a view about who he would want to be a guardian if we appointed one, KZM was otherwise unable to express a clear view to us on any of the other issues we need to consider in respect of guardianship.

21. On the evidence before us, we were satisfied that KZM has a disability arising from his likely dementia condition. This causes him to have impaired decision-making capacity for important personal, health and lifestyle decisions, such that he is at least partially incapable of managing his person and needs supervision or assistance to function in society. It follows that KZM is a person that we could make a guardianship order for.

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

22. Section 14(2) of the Act requires us to consider, amongst a number of other things, the practicability of services being provided to KZM without the need for an order.

23. It was the evidence of all who spoke to us at the hearing that the number one issue for KZM was his future accommodation. UND told us that she believed a retirement village is the best option. She has made an inquiry with a residential care facility in regional NSW. They have provided her with forms but she is unable to complete them without being appointed as KZM’s guardian.

24. Dr Z and Ms X both told us that they are aware that KZM is determined that he wishes to return home to live. Given that KZM can be stubbornly independent in his thinking, both Dr Z and Dr Lew felt that an ‘authorise others’ function may be appropriate to assist in KZM’s transition into a residential facility following discharge. It was also noted that a further ACAT assessment and ‘my aged care’ will be required to facilitate the move into new accommodation for KZM.

25. Dr Z told us that Ms W is recognised as the person responsible for KZM for his healthcare needs such that no function is required in respect of KZM’s medical needs.

26. On the evidence before us, we determined that it is appropriate to make a guardianship order with functions for accommodation with an ‘authorise others’ functions and services.

If a guardianship order is to be made, who should be the guardian and how long should the order last?

27. When asked by us who he may wish to have as a guardian if one were appointed, KZM told us that Ms W was his choice, saying that she was ‘head and shoulders above the rest’.

28. Ms X told us that, in her conversations with KZM, KZM had nominated Ms W as a guardian for him, noting his trust for her. That said, Ms X also told us that the treating team at the hospital had formed the view that KZM may not cognitively be able to make that call.

29. UND proposed herself to be the guardian for KZM. We put to her that Ms W has been active in assisting KZM. UND did not disagree. She described Ms W’s efforts with KZM as “fantastic” and saying that Ms W was the ‘frontline’ and that she “has done an amazing job”.

30. UND’s issue appeared to be more in ensuring that Ms W’s relationship remained unscathed by any decisions that may need to be made in the future. This in particular seems relevant in terms of accommodation. There seems to be no doubt held by any that KZM wishes to remain in his own home yet everything points to him needing to be in a residential facility. As UND noted, when that decision is made it is likely that Ms W will “cop their [KZM and KNM’s] full displeasure”. Not being the guardian making that decision will allow Ms W, with clear conscience, to blame UND for the move.

31. No doubt without realising it, UND expressed an important consideration for us in this matter, that being the principles expressed at ss 4(e) and 14(2)(b) of the Act requiring us to consider and act in a way most likely to preserve KZM’s existing family relationship with Ms W which, on the face of it, appears possibly the one that KZM now holds most dear.

32. It is primarily for this reason that we determined that it is in KZM’s best interest to appoint UND alone to act as KZM’s guardian. In doing so, we did however note that Ms W will continue to be the person responsible for KZM in terms of KZM’s health needs. That role Ms W has already carried to date such as to obviate the need for us to make guardianship orders including healthcare and medical/dental consent functions.

33. We decided to make the order a continuing order and for the order to be reviewed in 12 months.

FINANCIAL MANAGEMENT

What did we have to decide?

34. The questions which we had to decide in relation to financial management are:

• Is KZM incapable of managing his affairs?

• Is there a need for another person to manage KZM’s affairs and is it in his best interests for a financial management order to be made?

• If so, who should be appointed financial manager?

Is KZM incapable of managing his affairs?

35. A person is not shown to be incapable of managing their financial affairs unless they are incapable of dealing, in a reasonably competent fashion, with their affairs and because of that lack of competence there is a real risk that either they may be disadvantaged in the conduct of such affairs or their money or property may be dissipated or lost.

36. In the letter written by Dr Y, Dr Y writing about Mr and KNM jointly, records: “The couple apparently withdraw the full pension in cash and are no longer able to budget. They then ask their family for money and/or food. The family paid for the telephone to be reconnected. They have defaulted on accounts for which they had direct debit arrangements, including a funeral insurance.”

37. Ms W gave us an overview of KZM’s financial situation as she understands it. Ms W told us that she had had to set up direct debit payments for KZM for gas, electricity and phone. She had been able to access KZM’s funds to pay off other debts KZM had with a local plumber and a tyre shop.

38. Ms W told us that KZM and KNM own their home. She believes that a Catholic community group are paying the council land and water rates on that property. She also understands that the home will be bequeathed to the community group on the passing of KZM and KNM. When we asked KNM about this, KNM appeared to understand the question but did not answer. We also got the clear sense that UND may know something of this arrangement although she did not make any comment about this. UND was able to confirm that much of what Ms W had told us was accurate although did say with some apparent authority that some of the information was incorrect.

39. On the whole, on the question of whether he could manage his affairs and on the other questions we need to consider in respect of financial management, KZM was essentially silent.

40. On the evidence before us, we were satisfied that KZM is not capable of managing his financial affairs.

Is there a need for another person to manage KZM’s affairs and is it in his best interests for a financial management order to be made?

41. As noted above, there is now a need for KZM to move into a residential care facility. That is likely to involve contracts needing to be signed which KZM does not have the capacity to do. In addition, KZM has debts that need to be serviced which he has been unable to do without the assistance of Ms W.

42. It follows that we were satisfied that there is a need for another person to manage KZM’s affairs and that it is in KZM’s best interests to make a financial management order.

Who should be appointed financial manager?

43. As with guardianship, the efforts of Ms W in assisting KZM with his finances are evident and commendable.

44. Also as with the guardianship application, UND proposed herself to be the sole financial manager for KZM.

45. In her evidence to us, it became apparent that UND has a good understanding of KZM’s financial affairs. UND is a person back from ‘the frontline’. UND’s evidence left us with the impression that she will be able to approach the financial management of KZM’s estate in a clinical, methodical fashion. She evidently enjoys good communications with Ms W who will no doubt provide an ideal conduit for keeping UND aware of any financial need KZM may have in the future.

46. We were therefore satisfied that it is in KZM’s best interests for UND to be appointed as financial manager for KZM.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 03 May 2022