NFK

[2020] NSWCATGD 20

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NFK [2020] NSWCATGD 20

Hearing dates:

4 February 2020 (Guardianship)
18 March 2020 (Financial Management)

Date of orders:

4 February 2020 (Guardianship)
18 March 2020 (Financial Management)

Decision date:

18 March 2020

Jurisdiction:

Guardianship Division

Before:

J Moir, Senior Member (Legal)
F Duffy, Senior Member (Professional)
M Watson, General Member (Community) (Guardianship)
I Ferreira (Community) (Financial Management)

Decision:

Guardianship applications (4 February 2020)

1. A guardianship order is made for NFK.

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

3. This is a continuing guardianship order for a period of 12 months from 5 February 2020.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where NFK may reside.

b) Health care

To decide what health care NFK may receive.

c) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where NFK is not capable of giving a valid consent.

d) Services

To make decisions about services to be provided to NFK.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management applications (18 March 2020)

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

2. MZT 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 she has obtained all necessary authorities from the NSW Trustee and Guardian.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – practicability of services bring provided without a guardianship order - persistent family conflict – concerns about adequacy of care previously provided to the subject person – subject person recently receiving all necessary care – need for accommodation decisions – need for health care and services decisions – need for medical and dental consent decisions – suitability of proposed guardian – multiple proposed guardians – family conflict a significant impediment – private guardian appointed – order made.

FINANCIAL MANAGEMENT – application for a financial management order – whether there is a need for a financial management order – whether it is in subject person’s best interests that a financial management order be made – informal management adequate in the short term – possible need for decisions about the sale of property to pay for accommodation – matters unable to be managed informally – suitability of proposed financial manager – persistent family conflict – efficiency of appointing a the same person as guardian and financial manager – private financial manager appointed – order made.

INTERLOCUTORY – joinder of parties – whether person a “spouse” – whether person “had the care of” the subject person – s 36 of the Civil and Administrative Tribunal Act - “just, quick and cheap resolution of the real issues in the proceedings” – real issue in proceedings are the guardianship and financial management applications – person had an interest in the applications and longstanding relationship with the subject person – person joined as party to proceedings.

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s 36

Guardianship Act 1987 (NSW), ss 3(1)-(2), 3D, 4, 14, 14(2), 15(3), 17(1), 25M

Cases Cited:

Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227

IF v IG [2004] NSWADTAP 3

McD v McD (1983) 3 NSWLR 81

P v D1 & Ors [2011] NSWSC 257

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

Nil

Category:

Principal judgment

Parties:

001: Guardianship Application

NFK (the person)
FQK (applicant)
MZT (joined party)
Public Guardian
FYT (joined party)

002: Guardianship Application

NFK (the person)
NAK (applicant)
MZT (joined party)
NSW Public Guardian
FYT (joined party)

003: Financial Management Application

NFK (the person)
NAK (applicant)
NSW Trustee and Guardian
FYT (joined party)
MZT (joined party)

004: Financial Management Application

NFK (the person)
FQK (applicant)
NSW Trustee and Guardian
FYT (joined party)
MZT (joined party)

005: Financial Management Application

NFK (the person)
MZT (applicant)
NSW Trustee and Guardian
NAK (carer)

Representation:

Nil

File Number(s):

NCAT 2019/00386960

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

GUARDIANSHIP APPLICATION AND FINANCIAL MANAGEMENT APPLICATION

Background

1. NFK is an 82-year-old woman who has lived for much of her life in west regional NSW. At the time of the hearing on 4 February 2020, NFK was staying with her son, NAK, and his wife, Ms Z, in south regional NSW, having been discharged to their care from hospital. NFK is reported to have fallen and fractured her hip in November 2019 at her home, was treated at Public Hospital YZ and then discharged to NAK’s home. NFK has been diagnosed with cognitive impairment caused by dementia. At the time of the hearing on 18 March 2020 NFK was in respite care, in another area in south regional NSW.

2. Prior to her fall, NFK lived in her own home in west regional NSW with her former partner, FYT, and her son, FQK and his partner, Ms Y, and their five children. NFK also has a daughter, Ms X who lives in west regional NSW and son, Mr W, who also lives in west regional NSW. NFK has a number of siblings, and of these, Ms MT and Ms DT are most involved in her life.

3. On 9 December 2019, the Tribunal received applications for a guardianship order for NFK from FQK. On 12 December 2019, the Tribunal received an application for a guardianship order from NAK. On 21 January 2020, the Tribunal received an application for a financial management order from NAK and on 26 January 2020 the Tribunal received an application for a financial management order from FQK.

4. On 4 February 2020, the Tribunal conducted a hearing in regional NSW and considered the applications for guardianship orders. The applications for financial management orders were adjourned to 18 March 2020 because there was not enough time to consider them at the hearing on 4 February 2020.

5. On 10 March 2020, the Tribunal received an application for a financial management order from Ms MT.

6. These reasons for decision arise from both of the hearings, addressing each of these applications.

Conduct of the hearings

7. 4 February 2020: The hearing was held in regional NSW and NFK attended in person with NAK, Ms Z, Ms X, Ms MT, Ms DT and her daughter, Ms KT. FQK and FYT both participated by telephone. NFK was not able to remain at the hearing for long before she became agitated and wanted to leave. It was evident that she was not able to follow the discussion or understand the purpose of the hearing because of the extent of her dementia and the Tribunal excused her from the remainder of that hearing. The Tribunal also excused her from participating in the hearing of the financial management applications.

8. At the start of the hearing the Tribunal clarified that there was some material which had been submitted in the few days prior to the hearing which had not been provided to all of the other parties. With the agreement of the parties the matter was stood down for a period, the missing material was sent to the parties and they were given a brief opportunity to read and familiarise themselves with this material. The hearing then resumed.

9. 18 March 2020: The hearing was held from Sydney and all participants spoke to the Tribunal by telephone. The participants were NAK, Ms Z, Ms MT, FQK and FYT. As noted above, NFK had been excused from participating in the hearing.

10. Again, at the start of the hearing, the Tribunal clarified that some material that had been submitted in the few days prior to the hearing had not been provided to all of the other parties. Parties were given the opportunity of standing the matter down and allowing time to read this material, however the parties indicated their preferred approach was to proceed with the hearing on the basis that any of this material on which the Tribunal was going to rely would be addressed in the oral evidence.

Parties

11. At the 4 February 2020 hearing, the Tribunal noted from the hearing material that there was disagreement about FYT’s status as a party to the applications. A “party” to an application has certain rights in relation to the process of dealing with an application, including the right to have access to all of the evidence, to submit their own evidence, question the evidence submitted by others, know about and participate in the hearing, be advised of the outcome and appeal against the outcome. Other people might participate in the process, for example, as a witness, by giving written or oral evidence, but this does not entitle them to see all of the other evidence in the matter or the other rights that a party has.

12. The Guardianship Act 1987 (NSW) (“the Act”) provides that certain people are automatically “parties” to an application for a guardianship order or a financial management order, relevantly including the person about whom the application has been made, the applicant, the person’s spouse, and the person who “has the carer of” them (their carer). In addition to those that are specified in the Act as parties, the Tribunal is able to “join” someone as a party where it is appropriate in the circumstances.

13. The Tribunal noted that FYT was described in some material as NFK’s spouse, and as her carer, and that this is how he described himself. On this basis, in preparing these applications for hearing, the Tribunal’s Registry staff had identified him as a party to the applications and had treated him as such. However, other parties and witnesses disputed that FYT was in either of these relationships with NFK and provided written submissions detailing their concerns. There was no dispute that NFK and FYT had previously been in a longstanding de facto relationship, and had a child together (FQK). Nor was it disputed that they had separated many years ago and had lived quite separate lives for a long period. The question of FYT’s recent status in NFK’s life hinged on two elements: whether he and NFK reconciled their relationship when she moved back in with him a few years ago: and/or whether he “had the care of” NFK prior to her hospitalisation. The Act’s definition of this term is set out in the footnote below. [1]

    1. Guardianship Act 1987 (NSW), Section 3D Circumstances in which a person "has the care of another person"

14. Sadly, due to her dementia, NFK was not able to assist the Tribunal in understanding the nature of her relationship with FYT. FYT and FQK both said that NFK and FYT had reconciled their relationship a few years ago when NFK moved back in to her home with them from Ms DT’s house, where she had been living for some time. They also said that FYT provided care for NFK as her dementia progressed.

15. Both of these claims were disputed by all of the other hearing participants, as well as other family members who had provided written submissions. By their account, NFK lived with Ms DT since her mother died in around 2004, and her house in west regional NSW was rented out. FYT and FQK had been living in Melbourne, but when this could not continue, on FQK’s request she allowed them to move into her house; FQK, because he was her son, and FYT, because he was her son’s father. In around 2017 NFK moved back to her own home because of a breakdown in the relationship with her brother, Mr V, who was also staying at Ms DT’s place. These witnesses assert that NFK’s return to her own house was not related to any reconciliation with FYT and that they did not reconcile in the time that she lived there. By their account NFK was already experiencing signs of dementia when she made the move back to her house. In support of the view that they were not living as a couple, the Tribunal was told that FYT and NFK were both paid the single person’s rate of aged pension. At the hearing, FYT said that this might have been Centrelink’s mistake and said that he also received a carer allowance for caring for her.

16. Others assert that FYT did not provide any care for NFK during this period, even when her cognitive health declined and she needed increasing care and support. They state that even when others made medical and allied care appointments for her, he did not assist her to keep those appointments. As a result, her health and well-being deteriorated as did her living conditions, and when other family saw her, she showed clear signs of neglect. This was also noted on her admission to hospital in November 2019. This evidence was not consistent with FYT having “the care of” NFK prior to her hospitalisation.

17. The Tribunal therefore had two sharply contrasting accounts which were not possible to reconcile, and no opportunity to obtain NFK’s view. Determination of this issue was likely to take considerable time and possibly lead to an adjournment of both applications.

18. The Tribunal is established under the Civil and Administrative Tribunal Act 2013 (NSW), and this legislation provides the basis under which the Tribunal operates. In considering a procedural issue (such as the parties to an application), the Tribunal must apply the guiding principle, set out in s 36 of that Act, which is to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”. The “real issues” in these proceedings are whether NFK is someone for whom the Tribunal could or should make guardianship and financial management orders, and if so, the scope of those orders and who should be given those responsibilities. The issue of who the parties are to the applications, whilst important, should not, in the Tribunal’s view be given priority over the issue of determining the substantive questions about NFK’s interests and welfare.

19. The Tribunal noted FYT’s claims as well as the genuinely held opposition to these from the others. However, the Tribunal did not consider that it was consistent with the “just, quick and cheap resolution of the real issues” in these applications to spend the time that would have been necessary to make a final determination on whether FYT is NFK’s spouse or her carer, at the expense of considering the applications themselves. The Tribunal therefore chose not to come to a concluded view about the nature of FYT’s relationship with NFK and whether or not he is her spouse or carer. Nonetheless, the Tribunal was mindful that regardless of the nature of his relationship, FYT has an interest in the applications, and a longstanding relationship with NFK. The Tribunal also noted that FYT had already been treated as a party to the proceedings, and so had been given all of the material, and was anticipating participating in the hearings. For these reasons the Tribunal decided to join FYT as a party to the applications that had been lodged by 4 February 2020 and proceeded with the hearing on this basis.

What did the Tribunal have to decide?

20. The questions which had to be decided by the Tribunal in relation to the guardianship application were:

• Is NFK 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?

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

• Who should be the guardian?

• How long should the order last?

21. In making any decision under the Act, the Tribunal must observe the principles in s 4 of the Act. They include that NFK’s welfare and interests should be given paramount consideration, her freedom of decision and action should be restricted as little as possible, her views should be taken into consideration, the importance of preserving her family relationships and cultural and linguistic environments should be recognised, and she should be protected from neglect, abuse and exploitation.

22. The questions to be considered by the Tribunal in relation to the financial management application were:

• Is NFK incapable of managing her affairs?

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

• If so, who should be appointed financial manager?

GUARDIANSHIP

Is NFK 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?

23. Section 14 of the Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that 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) of the 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) of the Act.

24. The Tribunal was given a number of reports and letters which addressed the issue of NFK’s capacity to make decisions on her own behalf. These included professional opinion as well as written material from her family members. These were:

• Aged Care Assessment Team assessment (ACAT) dated 19 December 2019 conducted after NFK’s discharge from hospital;

• Medical certificate from Dr U, GP, Medical Practice in south regional NSW dated 11 December 2019;

• Discharge Referral dated 6 December 2019 from Public hospital YZ;

• Health Professional Report from Dr T, GP, Medical Centre in west regional NSW.

25. These provide a consistent view that NFK has a significant degree of cognitive impairment from dementia. She is not able to make decisions on her own behalf about important matters because of poor understanding and comprehension, and impaired memory. A Rowlands Universal Dementia Scale assessment (RUDAS) conducted during the ACAT assessment resulted in a score of 7/30 which is indicative of significant cognitive impairment.

26. This was entirely consistent with NFK’s presentation at the hearing, and there was no dispute from the hearing participants that NFK’s dementia has progressed to the point that she is no longer able to make important decisions on her own behalf.

27. Based on the available evidence, the Tribunal is satisfied that NFK has a disability which prevents her making important life decisions. She is a person for whom the Tribunal could make a guardianship order if necessary.

Should the Tribunal make a guardianship order and what order should be made?

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

1. the views (if any) of:

1. the person;

2. the person’s spouse;

3. the person’s carer; and

2. the importance of preserving the person’s existing family relationships;

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.

29. 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) of the Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

29. As this suggests, provided it is sufficient to meet the person’s needs, informal decision making is consistent with the principles of the Act as well as the s 14 matters of that Act. NFK has never previously been subject to a guardianship order and the Tribunal confirmed that she has never appointed an enduring guardian. To date, therefore any decisions that have been made by others about her care, treatment and support, have been made on an informal basis. The Tribunal considered whether there was any need to disturb the informal decision making arrangements by making a guardianship order.

30. The Discharge Summary indicates that NFK was admitted to Public Hospital YZ on 28 November 2019 from Public Hospital AB for management of a fractured left hip resulting from a reported fall at home. She had no complications from the operative and post-operative treatment and was discharged to the “care of family” on 3 December 2019, being NAK and Ms Z’s house in south regional NSW. The Discharge summary identifies “social concerns” regarding NFK’s safety and psychosocial stressors in her living situation in west regional NSW. These concerns were identified as follows:

1. allegations (made by next of kin) of domestic violence by FYT and Ms Y (FQK’s partner);

2. during the admission, FYT was asked to leave the ward on two occasions regarding incidents including verbal abuse to NFK. He was escorted off the hospital grounds on one of these occasions and police were subsequently involved;

3. police have previously been called to the family home and FYT acknowledge to hospital staff that he had been “struggling” with NFK’s care.

32. On the assessment of the treating team NFK was not safe to be discharged to her home in west regional NSW with FYT and FQK and instead was discharged to NAK and Ms Z’s care, some nine hours away.

33. The ACAT assessment was conducted once NFK had moved to stay with NAK and Ms Z. It identifies that due to her global cognitive deficits, NFK requires assistance with all aspects of daily living, including prompting and assistance with personal care. She was also noted to experience “sun downing” and to become verbally aggressive and to experience hallucinations. She naps during the day. She sleeps only one to two hours and wanders at night.

34. Statements provided by family members echo and provide considerably more detail regarding concerns about NFK’s living situation and lack of care prior to her hospitalisation since returning to her house in west regional NSW. In addition to the information in NAK’s application, the Tribunal was given statements from Ms MT (affidavit dated 3 February 2020), Ms Z (undated but received on 31 January 2020; Ms SC, niece (affidavit dated 30 January 2020); Ms X (1 January 2020); and Ms Q (affidavit dated 29 January 2020).

35. Again these provide a consistent picture of NFK’s living situation at west regional NSW being increasing unsuitable for her because of her own increasing care needs and dependence on others and the inadequate care being provided to her. The situation was also unsuitable because of the general state of the house which was reported to be unhygienic and dangerous. There were also troubling assertions that FYT had sought to distance NFK from others in her family by making it difficult for them to visit or have contact.

36. In her written statement Ms X states that she has always had a close relationship with NFK, and that they owned a dress shop business together for many years and were living together at Ms DT’s place before NFK returned to live in her own home. She held concerns about NFK’s cognition whilst they were living together. She states that between them she and Ms DT used to take NFK to all her appointments, and attend to her day to day care, including cooking and medication supervision. Ms MT’s statement confirms that some years prior to NFK’s return to her house in 2017, she was clearly showing signs of memory loss and disorientation, wandering into town, becoming lost and having to be retrieved.

37. Ms X said that she continued to try to help her mother when NFK returned to her own house, but was initially made to feel unwelcome by FYT. Once he became more relaxed about her offering help, she was more involved and would make necessary appointments for NFK, such as the podiatrist, to attend to NFK’s overlong and seemingly infected toenails. However, NFK missed these appointments because FYT would not allow Ms X to take her, but then did not take her himself.

38. Ms X states that she approached FQK and tried to encourage him to agree to NFK having services come to the house to assist with her care, however he did not agree to this, being reluctant to have people “sticking their nose in”. She states that he told her that he was power of attorney and guardian for NFK, and on this basis Ms X, and other family she told about this felt that there was little more they could do, despite their concerns.

39. As stated above, the Tribunal confirmed at the hearing that NFK, has, in fact made no enduring (or general) power of attorney or enduring guardianship appointment.

40. In her written statement Ms MT gave details of the last time she saw NFK prior to her hospitalisation, which was at Easter 2019. She states that she was at Ms X’s place and FYT dropped NFK off as he had to take his greyhounds to race out of town. NFK did not recognise her, or their brother, Mr S, who also visited. Ms MT states ‘I was shocked to see [NFK], she had a torn dress on, she was not clean, her hair was not done, she had no bra on, her toenails were at least an inch past the toes and looked very sore. She had a large bandaid on her left leg and the leg was very red and inflamed. I said to [Ms X] “Look at her leg, has she seen a doctor?” [Ms X] immediately asked [NFK] “What happened to your leg mum?” to which [NFK] replied “I was helping [FYT] clean up the dogs and I cut it on a piece of time.” [Ms X] immediately showered [NFK], washed her hair, dressed her in clean clothes and took her to the hospital to have her leg attended to. [NFK] had a very serious infection in the leg and was placed on medication....It got extremely late and [FYT] had not returned to get [NFK] or take her home, nor did he contact [Ms X] to let her know when he would be back to collect [NFK]. [Ms X] tried calling [FQK]. But could not get him. It was around midnight at this stage.’

41. Similar experiences and observations about NFK’s confusion, poor cognition and lack of care were made by Ms SC, who is NFK’s niece, regarding a visit to west regional NSW in 2018. In similar vein, Ms Z stated that after NAK visited his mother on one occasion he was so worried about the conditions she was living in she called the Public Hospital AB social worker, who made a welfare visit to the house. The social worker told Ms Z that she had told FYT and FQK that NFK needed an ACAT assessment, but this was never done.

42. FYT and FQK each asserted in their written and oral evidence that NFK was well cared for and had all the assistance she required when living with them. FYT said that health workers had come to the house and no one had raised any concerns. It was not possible to reconcile this with the evidence from the hospital and from NFK’s other family members and on balance the Tribunal preferred the evidence that prior to her hospitalisation in November 2019, NFK’s care needs were not being met and that she was living in unsuitable conditions.

43. On this basis, the Tribunal was satisfied that the informal decision making arrangement that was in place for NFK prior to her hospitalisation was not adequate and that it was not in her interests for these arrangements to remain in place.

44. The Tribunal was advised that since NFK’s discharge from hospital, NAK and Ms Z have made all necessary arrangements for her care and well-being, including the ACAT and OT assessment, finding her a new GP, attending to various allied health and dental needs, and arranging for home care as well as providing all her day to day care. Ms Z has worked for many years in aged care and so had a good understanding of the needs of a person with dementia. She and her husband both confirmed that they were happy for NFK to remain living with them for as long as this was safe for her and that they could meet her care needs. These decisions have all been made without the need for a guardianship order, presumably on the basis that NAK and Ms Z have been recognised as NFK’s “persons responsible”, and that she is in their care even though this not something that FYT and FQK agreed with.

45. However, there was a general agreement that whilst NFK’s current living situation is meeting her needs, it was most likely that at some point NFK was going need a higher level of care, and that a move to residential care was likely.

46. It was apparent from the expressed views of the parties that any decision about a move to residential aged care would be difficult because of the competing views of NFK’s children – particularly in relation to the location of the facility, given the geographical distance between south regional NSW, west regional NSW and Sydney, where NFK has family members who each wish to have the opportunity to spend time with her. In particular FQK and FYT were very keen that NFK should move to an aged care facility in west regional NSW, where she had chosen to live, and where, they said, most of her family live.

47. A decision about a move to residential aged will likely need to be made in conjunction with decisions about services and healthcare she might access, as well as the medical and dental treatment she should have, each of which may have some degree of conflict or challenge for the decision maker.

48. It was also apparent that it would not be possible for NFK’s children to communicate with each about the issue of residential aged care or effectively make a decision about this, or associated matters because of the poor communication between them. It seems that this communication impasse is contributed to by the influence of FYT.

49. The Tribunal decided on the basis of all of this evidence that to ensure that it is clear who has the authority to make decisions for NFK, in the context of potential disagreement between close family members, a guardianship order should be made and the guardian given authority for making decisions about NFK’s accommodation, services, health care and to consent to her medical and dental treatment.

Who should be the guardian?

50. NAK, FQK and Ms MT each proposed that they be appointed as guardian for NFK. 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 Act. 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.

51. 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 Act.

52. In P v D1 & Ors [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.

53. 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) of the Act.

54. The Supreme Court has held that:

the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).

55. Where there are a number of suitable people proposed as private guardians, the Tribunal must appoint the person who is best placed to fulfil the obligations of the role. It is consistent with the principles of the Act that a person’s guardian makes decisions which, amongst other considerations, preserve to the extent that is possible the person’s family relationships. It is implicit in this that the guardian have a willingness and an effective means of communicating with other key people in the person’s life, in order to obtain their views about important decisions, and communicate decisions.

56. As indicated above, there is significant distrust and a consequent breakdown in the communication between NAK and FQK, and neither was able to assist the Tribunal to understand how they would overcome this barrier to ensure that they could make decisions as guardian that would give regard to preserving NFK’s family relationships.

57. FQK felt very strongly that NFK should return to west regional NSW when she needs residential aged care because this was closest to him and FYT and “most” of her other family. He did not accept he had any a problem communicating with other family members. However, the other hearing participants disagreed and indicated that FQK had not communicated with other family about NFK during the two years prior to her hospitalisation at the end of 2019 despite her deteriorating health.

58. FQK also considered that the concerns raised about NFK’s care during that period were “blown out of proportion” and that she had been “happy and well cared for”. Given the other evidence about NFK’s living conditions and care during this period, the Tribunal held serious reservations about FQK’s understanding of NFK’s illness and her care needs. This gave rise to concerns about his ability to make decisions about these matters which were in her best interests. The Tribunal also noted that he has a likely conflict of interest in making decisions about his mother’s future accommodation and care because he currently lives in her house, which might need to be sold, depending on her care needs. In combination with his lack of effective communication with other important people in NFK’s family, this meant that the Tribunal was not satisfied that FQK was a suitable person to be appointed as guardian for his mother.

59. For his part, NAK maintained that although he was living a long way from his mother, they had a close and trusting relationship and that he had maintained frequent telephone contact with her until she was no longer able to maintain phone calls. After this he did visit when he was able, as noted earlier. He understands his mother’s care needs and feels he is able to make decisions in her best interests, particularly with the support of Ms Z. However as noted earlier, NAK was not able to demonstrate to the Tribunal how he would communicate with FQK about any decisions that needed to make by the guardian. It was evident that the conflict between them would be a significant impediment.

60. Ms MT has maintained a close ongoing relationship with her sister, although she lives in Sydney. She demonstrated that she has a good understanding of her sister’s needs and also that she understood the importance of communicating with close family about any significant decisions which needed to be made for NFK. The other parties each agreed that they would be able to communicate with Ms MT and that they trusted her to make decisions in NFK’s best interests. She has no conflict of interest and is sufficiently “removed” from the situation to be able to make decisions that are focussed on her sister’s interests and welfare alone. On balance, the Tribunal preferred Ms MT as guardian for NFK, and was satisfied that she best meets the requirements to be appointed as the private guardian for NFK and appointed her in this role.

How long should the order last?

61. An initial guardianship order can be made for a period of up to one year from the date on which it was made.

62. The Tribunal decided to make an order for 12 months because this should provide sufficient time for necessary decisions to be made. It is appropriate that the order then be reviewed to consider if it continues to be necessary.

FINANCIAL MANAGEMENT

Is NFK incapable of managing her affairs?

63. The test for determining a person’s capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]):

Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests?

…

[A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.

64. In considering whether the person is “able” in this sense, consideration may be given to:

• past and present experience as a predictor of the future course of events;

• support systems available to the person; and

• the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests.

65. The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86).

66. Given the evidence already referred to regarding the extent of her dementia and care needs, and that there was agreement from the hearing participants, the Tribunal was satisfied that NFK is not capable of managing her own financial affairs.

Is there a need for a financial management order and is it in NFK’s best interest that a financial management order be made?

67. NFK owns the house in west regional NSW. She receives a Centrelink aged pension at the single rate and has a non-profit institution account with four sub-accounts. Her pension is paid into one subaccount and she has some modest savings in others, though the balance is unclear. The Tribunal was told that FQK and FYT used to help her with some banking and bill payment but that neither are authorise to operate her account as signatories. There is a direct debit arrangement set up for payment of bills for the fixed costs on her house, such as rates and insurance as well as her funeral fund. She and FYT have a joint account with a building and construction company, which was used to fund a hire purchase type arrangement for some household items such as an air conditioner and a heater. FYT said that he has been paying this in full recently.

68. The Tribunal heard allegations that NFK’s money was not used for her benefit and that NAK and Ms Z had to buy her clothes and toiletries and personal items when she moved to live with them as she had nothing of her own. They advised that her bank statement shows her account was accessed and $900 withdrawn after she had moved to south regional NSW. The credit union has put a partial stop on the account, and they negotiated that they would allow for payment of her expenses from her account, pending this application being determined.

69. FQK said that NFK had everything she needed when she lived with them and denied that it was necessary for a whole new wardrobe and personal items to be bought for her. He explained that the withdrawal of $900 was prior to her move though the statement shows a date a few days later. He withdrew the money on NFK’s request to pay for him to get legal advice about the proposed move from hospital to south regional NSW. This involved him seeing a lawyer and spending a night at west regional NSW in a hotel as well as the cost of the petrol to get there and back. He has a receipt from the lawyer and he is holding onto the money that wasn’t spent for her.

67. Regardless of the way in which NFK’s finances were previously managed, and whether or not this was appropriate, there was general agreement that her changed circumstances mean that there is a need to change the way her finances are managed. Although NAK and Ms Z have been able to manage financial matters for NFK on a temporary basis without formal authority, it is clear that this cannot continue in the longer term. The arrangement with the non-profit institution is temporary, and if NFK needs a permanent move to aged care it will be necessary for someone to complete the Department of Human Services paperwork to have her fees assessed based on her income and assets. Depending on the outcome of this, and any determination of whether she must pay a lump sum contribution to her accommodation, there may be a need to sell her house or formalise a rental agreement. The Tribunal is satisfied that these matters cannot be managed informally and can only properly be attended to by a financial manager.

68. The Tribunal was satisfied that there is a need to appoint someone to manage NFK’s affairs and that it is in her best interests that a financial management order be made.

Who should be appointed as financial manager?

72. In appointing a financial manager, as in making all other orders under the 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 Act.

73. Section 25M of the 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.

74. In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court’s broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.

75. NAK proposed that he and his wife could be appointed as financial managers, and Ms MT said that she would also be willing to be appointed as financial manager. FQK said that he (and his father) preferred that the NSW Trustee and Guardian be appointed because the conflict within the family means that it would be better to have an independent financial manager. The Tribunal understood that this might be preferable for FQK and FYT, but was not persuaded that it was necessary from NFK’s perspective to have an independent financial manager appointed.

76. Ms X supported Ms MT being appointed and also supported NAK and Ms Z being appointed. She was not in favour of the NSW Trustee and Guardian being appointed because she understood that, being a large organisation there were often delays and difficulties in communication.

77. NAK, Ms Z and Ms MT each satisfied the Tribunal’s probity questions. They have never been bankrupt, nor charged or convicted of offences of dishonesty. They have experience in financial record keeping and are willing to comply with the requirements of the NSW Trustee and Guardian. The Tribunal was satisfied that none of them have a conflict of interest with NFK such that their own interests might influence decisions they make about her financial affairs.

78. The Tribunal ultimately decided to appoint Ms MT as financial manager. This was not because of any concerns about NAK and Ms Z’s suitability for the role. Instead it was recognition that it was more efficient for NFK to have the same person appointed as her guardian and financial manager, and also that in answering the Tribunal’s questions about the role, Ms MT showed a greater understanding of the complexity of some of the issues, including the likely impact of any decision about NFK’s house. Whilst the financial manager must make decisions that are in NFK’s best interests, these may well impact on other people. For this reason communication with those who may be affected and the decisions that are made need to be managed sensitively. Given the conflict already noted between NAK and his brother and FYT, the Tribunal was persuaded that Ms MT would be better able to manage this aspect of the role. The Tribunal was satisfied that Ms MT was a suitable person to be appointed as financial manager for NFK subject to the authorities and directions of the NSW Trustee and Guardian and appointed her to this role.

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Endnote

(1) For the purposes of this Act, the circumstances in which a person is to be regarded as

"having the care of another person" include (but are not limited to) the case where the person, otherwise than for remuneration (whether from the other person or any other source), on a regular basis:

(a) provides domestic services and support to the other person, or

(b) arranges for the other person to be provided with such services and support.

(b) arranges for the other person to be provided with such services and support.

(2) A person who resides in an institution (such as a hospital, nursing home, group home, boarding-house or hostel) at which he or she is cared for by some other person is not, merely because of that fact, to be regarded as being in the care of that other person, and remains in the care of the person in whose care he or she was immediately before residing in the institution.

(3) In this section, "remuneration" does not include a carer's pension.

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: 12 August 2020