MOI
[2017] NSWCATGD 23
•26 June 2017
|
New South Wales |
Case Name: | MOI |
Medium Neutral Citation: | [2017] NSWCATGD 23 |
Hearing Date(s): | 26 June 2017 |
Date of Orders: | 26 June 2017 |
Decision Date: | 26 June 2017 |
Jurisdiction: | Guardianship Division |
Before: | K A McMahon, Senior Member (Legal) |
Decision: | The enduring guardianship appointment made by Mr MOI on 16 April 2010 appointing Mr SAI and Mr QAI as his enduring guardians is confirmed. |
Catchwords: | ENDURING GUARDIANSHIP – review of enduring guardianship appointment – requested revocation – intention to execute a further enduring guardianship appointment – allegations that enduring guardian not acting in best interests of appointor – family conflict – best interests – appointment confirmed |
Legislation Cited: | Civil and Administrative Tribunal Act 2013 (NSW), s 36 |
Cases Cited: | Nil |
Texts Cited: | Nil |
Category: | Principal judgment |
Parties: | Mr MOI (the appointor) |
Representation: | Nil |
File Number(s): | 65268 |
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
WHAT THE TRIBUNAL DECIDED
The Tribunal reviewed the enduring guardianship appointment made by Mr MOI on 16 April 2010 appointing Mr SAI and Mr QAI to be his enduring guardians. The Tribunal confirmed the appointment of Mr SAI and Mr QAI as enduring guardians for Mr MOI.
BACKGROUND
Mr MOI, who is 100 years old, lives at an aged care facility in South West Sydney. He has lived there since 2011. Prior to that, Mr MOI lived in his own home in South West Sydney. Mr MOI has three adult children: Mr SAI, Mr QAI, and Ms QED. Mr MOI is reported to have dementia which was diagnosed in November 2015.
On 16 April 2010, Mr MOI appointed his sons, Mr SAI and Mr QAI, to be his enduring guardians, with the authority to act jointly and severally. On the same day, Mr MOI executed an enduring power of attorney, under which he appointed Mr SAI and Mr QAI to be his attorneys, once again with the authority to act jointly and severally.
On 20 March 2017, the Tribunal received applications from Ms QED for a financial management order for Mr MOI and for review of the enduring guardianship and enduring power of attorney appointment.
On 9 May 2017, the Tribunal heard the application for a financial management order. The Tribunal made a financial management order appointing Mr SAI as Mr MOI’s financial manager. The Tribunal determined under s 36(1) of the Powers of Attorney Act 2003 (NSW), not to carry out a review of the enduring power of attorney executed by Mr MOI on 16 April 2010. The Tribunal adjourned the application for review of the enduring guardianship application as there was insufficient time to hear the application.
The application for review of the enduring guardianship appointment was listed before the Tribunal on 26 June 2017.
THE HEARING
At the start of the hearing, Ms QED made an application for an adjournment. Ms QED’s reason for seeking an adjournment was that she was still preparing a written response to the large amount of material served by Mr SAI and Mr QAI before the last hearing. More specifically, Ms QED said she needed to respond to the attack on her credibility contained in this material. Mr SAI and Mr QAI opposed the application for an adjournment, submitting that Ms QED had already had sufficient time to respond to the material served by them.
We refused the application for an adjournment. In our view, Ms QED had already had sufficient opportunity to prepare her response. No new issue was identified by Ms QED relevant to any issue about Mr MOI’s welfare that could not be adequately addressed at the hearing. We were not persuaded Ms QED would be prejudiced by reason of the hearing proceeding in view of the issues for determination. Our refusal of the application is consistent with the guiding principle set out in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) that the Tribunal is to facilitate the just, quick, and cheap resolution of the real issues in the proceedings.
As noted in the Reasons for Decisions of the Tribunal dated 9 May 2017, the question of how best to assist a family member who might have a disability with arrangements for his care, and the management of his financial affairs, are matters on which people of good will may quite legitimately differ. The Tribunal noted on that occasion and we agree that it is quite evident there is conflict between Ms QED on the one hand, and Mr SAI and Mr QAI, on the other concerning the arrangements for Mr MOI’s care. This conflict is referred to in the written material provided by the Tribunal and in some of the comments made during the hearing by the various participants.
On the last occasion, the Tribunal took the view that it would not be in Mr MOI’s best interests to recite the details of past and present disagreements. The Tribunal did not consider it either necessary or helpful to summarise the range of views expressed, unless specifically relevant to an issue before the Tribunal. We take a similar view. We carefully considered the views that were expressed and took account of those views when making our determination.
Whenever possible the Tribunal seeks to convene in a manner that promotes the participation of the person the subject of the application. Mr MOI did not attend the hearing. When we telephoned Mr MOI at the aged care facility, he appeared to have little understanding of the issues under consideration in the application. His ability to communicate with us was limited. This is consistent with the medical evidence before us that Mr MOI has dementia, which is not in dispute between the parties.
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.]
REVIEW OF ENDURING GUARDIANSHIP APPOINTMENT
What did the Tribunal have to decide?
On reviewing the appointment of an enduring guardian, the Tribunal may:
confirm the appointment of an enduring guardian with or without varying the functions of the appointed enduring guardian
proceed as if an application for guardianship or an application for financial management (or both) had been made, or
revoke the appointment, with or without then proceeding as if an application for guardianship or an application for financial management (or both) had been made.
The Tribunal must not revoke the appointment of an enduring guardian unless:
(a)the enduring guardian requests the revocation; or
(b)the Tribunal is satisfied it is in the best interests of Mr MOI that the appointment be revoked.
The Tribunal may only proceed as if an application for guardianship or an application for financial management (or both) had been made if it considers it is in the best interests of Mr MOI to do so.
Details of the enduring guardianship appointment
Mr MOI executed a document on 16 April 2010 appointing Mr SAI and Mr QAI as his enduring guardians with the authority to act jointly and severally. The document was witnessed by Mr LAI, Solicitor, who confirmed Mr MOI executed the instrument voluntarily and appeared to understand the effect of the instrument.
It is common ground between the parties that Mr MOI was fully cognisant at the time he executed the enduring guardianship appointment.
Reasons for this application
Ms QED brings the application seeking that the enduring guardianship appointment be revoked on the basis that Mr SAI and Mr QAI, in their role as enduring guardians, are making decisions contrary to Mr MOI’s best interests. The focus of Ms QED’s application is her concern that it is contrary to Mr MOI’s best interests to remain living at the aged care facility. Ms QED seeks to be appointed as her father’s guardian either solely or jointly with Mr QAI.
Ms QED is concerned that a decision needs to be made about whether Mr MOI should remain living at the aged care facility or move to alternative accommodation, either in her home or in an alternative aged care facility in proximity to the Regional NSW area where she lives.
Mr SAI and Mr QAI oppose Ms QED’s application. They dispute Ms QED’s suggestion that they are making decisions contrary to Mr MOI’s best interests. They say Mr MOI is receiving a high level of care at the aged care facility and it would be detrimental to him to move away from this facility. They seek that their appointment as Mr MOI’s enduring guardians be confirmed. Mr SAI and Mr QAI emphasise that this gives effect to Mr MOI’s previously expressed wishes.
Discussion about alternative enduring guardian in 2015
Ms QED conceded that the enduring guardianship appointment executed in 2010 was an expression of Mr MOI’s wishes of who he wanted to appoint as his enduring guardians at that time. She said, however, that Mr MOI had subsequently expressed an intention to execute a further enduring guardianship appointment including her along with her brothers.
Ms QED says she had discussions with Mr MOI in 2015 and a family meeting was proposed to discuss this. She was in contact with a solicitor; however, Mr MOI was not in a position to complete an enduring guardianship appointment as he was taking Endone for an extended period. When she took Mr MOI to see a solicitor on 5 July 2016, the solicitor declined to take Mr MOI instructions on the matter.
In evidence before us is a statement from Mr B, Solicitor, dated 19 June 2016, indicating Ms QED organised an appointment and attended with her father on 5 July 2016. Mr B says Mr MOI was unable to answer any questions and did not have capacity to provide any instructions.
Ms QED has provided to the Tribunal an email dated 26 March 2015 from Mr QAI to her. This email responds to an earlier email sent by Ms QED referring to discussions she had with her father proposing that he execute a further power of attorney and that he agreed to this. The email states that Mr MOI discussed this with Mr QAI. Mr QAI did not express opposition to the proposed power of attorney. Mr QAI told us he did not recall having any discussion with his father although does not dispute the email or that this may have occurred. We note that the email makes reference only to an enduring power of attorney.
We do not accept Mr QED’s submission that these events provide sufficient justification for revoking the enduring guardianship appointment executed by Mr MOI on 16 April 2010. Even accepting Ms QED’s evidence that Mr MOI expressed agreement to her proposal that he execute a further enduring guardianship appointment, the simple fact is he never completed one. It is not in Mr MOI’s best interests that the properly executed enduring guardianship appointment dated 16 April 2010 evidencing his wishes be overridden in these circumstances. The instrument executed on 16 April 2010 is unquestionably valid and was completed at a time where there was no doubt as to his capacity.
Is it in the best interests of Mr MOI that the enduring guardianship appointment be revoked?
Ms QED submitted the enduring guardianship appointment should be revoked because Mr SAI and Mr QAI are not making decisions in Mr MOI’s best interests. In particular, Ms QED states Mr MOI has expressed that he does not want to live at the aged care facility and he is being provided with inadequate care at this facility.
Mr SAI and Mr QAI’s evidence is that Mr MOI moved from his home in South West Sydney to the aged care facility on his own volition in 2011. Mr MOI chose this facility after inspecting a number of facilities in the area and completed the necessary documents in connection with the move himself. Ms QED does not dispute that Mr MOI was fully cognisant at the time he moved to the aged care facility.
It is common ground between the parties that Mr MOI continued to live at the aged care facility for some years before the onset of dementia. Mr SAI and Mr QAI indicate Mr MOI was diagnosed with dementia in November 2015. They submit, and we accept, that Mr MOI did not seek to leave the aged care facility prior to his diagnosis, despite him having capacity to decide to leave if he had chosen to.
Ms QED does not dispute that Mr MOI did not take steps to leave the aged care facility prior to the onset of dementia which was diagnosed in November 2015.
Mr SAI and Mr QAI state that it is in Mr MOI’s best interests that he continues to live at the aged care facility. They say this is giving effect to the choice Mr MOI himself made about where he wanted to live. They say he receives a high standard of care at the facility.
In evidence before us is a report from Dr X, General Practitioner, dated 27 April 2017. Dr X has been Mr MOI’s general practitioner since 2007, initially whilst he was still living in his home and since 2011 when he moved to the aged care facility. Dr X has reviewed Mr MOI regularly since 2011. He states Mr MOI is now suffering from significant and advancing dementia and is gradually becoming more and more frail. Dr X says Mr MOI’s care needs are great and staff at the aged care facility are doing a good job addressing those needs. Dr X states Mr MOI requires high-level care such as that offered by a facility like the aged care facility.
Mr SAI and Mr QAI argue strongly that it is preferable for Mr MOI to remain in a facility with which he is familiar in view of his dementia. He has established relationships with staff and is familiar with the environment generally. They are supported on this issue by Ms BIS, Care Manager at the facility. Ms BIS states that moving Mr MOI from his familiar environment would have a detrimental effect on him in view of his dementia.
There are a number of statements in evidence before us from relatives and friends of Mr MOI attesting to Mr MOI’s strong ties to the South West Sydney area and that he is settled and well cared for in the aged care facility. We accept that this opinion is not universally expressed in all the statements before us. Specifically, Ms QED, her partner Mr KOT, and Ms QED’s son, Mr CED, whilst not disputing his strong ties to the South West Sydney area, express concern about Mr MOI’s care at the aged care facility.
It is Ms QED’s opinion that Mr MOI’s best interests would be promoted by moving him to an alternative aged care facility in the area of Regional NSW where she lives. Whilst she appeared to accept that Mr MOI’s care needs are such that he needs to live in an aged care facility, she also said Mr MOI could possibly move in with her.
When we asked Ms QED about whether moving Mr MOI away from his familiar environment would be disruptive to him, particularly in view of his dementia, her response as that her father is a people person who loves and responds well to change. She saw no difficulty with Mr MOI forming new relationships with staff or residents at an alternative aged care facility. Ms QED commented that a long-term friend of Mr MOI is a resident at an aged care facility at Regional NSW and this may possibly be a good option.
Whilst Ms QED did not dispute that Mr MOI’s location at the aged care facility is closer to the majority of the relatives who visit him, she said she would be able to take Mr MOI on more outings away from the facility which would be beneficial for him.
Whilst Ms QED speaks highly of Dr X’s ongoing care of Mr MOI, she did not accept any downside arising from the loss of this continuity in care if Mr MOI was to move to Regional NSW. Ms QED’s response was that Dr X has indicated he is agreeable to providing a comprehensive hand over to an alternative general practitioner in the event that Mr MOI moves to Regional NSW
Overall, we find the evidence indicating a move away from the aged care facility would be disruptive to Mr MOI is more persuasive, particularly given the evidence of the length of time he has lived at this facility and the extent of his dementia.
Ms QED expresses concerns about medication Mr MOI has received at the aged care facility and in particular Endone and Haloperidol. The evidence is, however, that Mr MOI has not received either of these medications for some time. Further, the evidence indicates that Ms QED was able to raise concerns about these medications, and particularly the Haloperidol, and has a line of communication with Dr X about these matters. Further the evidence does not support a finding that Mr MOI has any untreated health conditions or that there are problems with hygiene as contended by Ms QED placing Mr MOI at risk sufficient to justify moving him away from the facility. We find the weight of the evidence suggests that Mr MOI is well cared for at the facility.
We find that the evidence strongly points to a conclusion that it is not in Mr MOI’s best interests that the enduring guardianship appointment dated 16 April 2010 be revoked. We place weight on the fact that Mr MOI chose to appoint Mr SAI and Mr QAI as his enduring guardians at a time when he was fully cognisant to do so.
Our conclusion respects and gives effect to Mr MOI’s expressed wishes as articulated in the document. We are not persuaded that Mr QAI or Mr SAI is acting contrary to Mr MOI’s best interests. The evidence indeed points to the contrary. In supporting Mr MOI remaining at the aged care facility they are continuing to respect and give effect to Mr MOI’s wishes about where he wanted to live. We have little difficulty reaching a finding that Mr MOI’s best interests are promoted by him remaining in a familiar environment where he has established relationships and is receiving good care.
Should the enduring guardianship appointment be confirmed?
We have reviewed the enduring guardianship appointment made by Mr MOI on 16 April 2010 appointing Mr SAI and Mr QAI to be his enduring guardians.
In view of our conclusions as outlined above, we are satisfied the enduring guardianship appointment should be confirmed.
We accordingly confirm the appointment of Mr SAI and Mr QAI as enduring guardians for Mr MOI.
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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
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