NSD

[2016] NSWCATGD 20

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	NSD [2016] NSWCATGD 20
Hearing dates:	23 February 2016
Date of orders:	23 February 2016
Decision date:	23 February 2016
Jurisdiction:	Guardianship Division
Before:	J Kearney, Senior Member (Legal) S Thompson, Senior Member (Professional) S Johnston, General Member (Community)
Decision:	Guardianship order made; private guardian appointed for 12 months to make decisions about accommodation (including authorising others), health care, medical and dental treatment (with power to override objections) and services.  Financial order made; private financial manager appointed.
Catchwords:	GUARDIANSHIP – application for a guardianship order – consideration of s 14 of the Guardianship Act 1987 (NSW) – subject person refused medical services – power to override objections to health care medical and dental treatment – guardianship order made FINANCIAL MANAGEMENT – application for a financial management order – financial management order made – consideration of s 25M of the Guardianship Act 1987 (NSW) – private financial manager appointed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 17(1), 25M, 46A
Cases Cited:	IF v IG [2004] NSWADTAP 3
Category:	Principal judgment
Parties:	Mrs NSD (subject person) Mr KRN (applicant) The NSW Public Guardian
Representation:	Nil
File Number(s):	61742
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

1. The Tribunal appointed Mr KRN as Mrs NSD’s guardian for a period of 12 months to make decisions about her accommodation (including authorising others), health care and medical and dental treatment (with power to override objections), and services which she should receive as set out in the Tribunal’s order.

2. The Tribunal appointed Mr KRN as Mrs NSD's financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian.

GUARDIANSHIP APPLICATION

Background

3. Mrs NSD is a 75-year old aboriginal woman. She lives in her home in Regional NSW with her son, Mr KRN, who is her carer. Mrs NSD has eight other children. On 1 February 2016, the Tribunal received an application from Mr KRN for the appointment of a financial manager and the appointment of a guardian. He nominated himself for both positions.

The hearing

4. 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?

5. The questions which had to be decided by the Tribunal were:

1. Is Mrs NSD 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?

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

3. Who should be the guardian?

4. How long should the order last?

Is Mrs NSD 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?

6. Section 14 of the Guardianship Act 1987 (NSW) (‘the Guardianship Act’) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he 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 her 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).

Capacity

7. Mrs NSD spoke to the Tribunal by telephone from her home in Regional NSW. She had with her a number of relatives including three nieces, a daughter, her brother, and her care co-ordinator from an Aboriginal Community Services centre. Mrs NSD told the Tribunal that she was happy with her son Mr KRN being appointed her guardian. She said she understood that a guardian could make decisions about her accommodation, healthcare, and services.

8. The Tribunal had before it the clinical notes from an admission to a district hospital of 10 February 2016, when Mrs NSD underwent a mini mental state examination in which she scored 12 out of 30 suggesting significant impairment. However, the Tribunal notes that she was medically unwell at the time and that could have affected the outcome.

9. The Tribunal also has a report from Ms Z, a care co-ordinator and occupational therapist. Ms Z has had contact with Mrs NSD since 8 February 2016. Her report records that Mrs NSD had limited insight, noting that she denied that she had recently been in hospital and that she had any health concerns or that she needed any follow up. Ms Z also recorded that Mrs NSD had short-term memory loss. It was recorded the long term memory was largely intact.

10. Ms Y, who is a care co-ordinator with the Aboriginal Community Services centre, said that she had extensive experience with Mrs NSD over a number of years as that service used to provide domestic and lawn mowing services until Mr KRN became Mrs NSD’s carer. Her observations were that Mrs NSD’s long-term memory was intact but that Mrs NSD could become vague and her capacity to make decisions had diminished in recent years. The significant issue, she said, was that Mrs NSD did not realise the severity of her own medical condition.

11. Another factor in evaluating capacity is the clear report from a number of persons that Mrs NSD is reluctant to engage with members of the medical profession, so that there has been limited opportunity for a more complete investigation of a cognitive capacity to be undertaken.

12. Despite the incomplete investigations, the Tribunal accepted the medical and other evidence detailed above and decided that Mrs NSD was a person who suffers a disability which affects her ability to make important life decisions.

13. The Tribunal is satisfied that Mrs NSD has a disability which prevents her making important life decisions. She is a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order and 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 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 the 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. The Tribunal noted that Mrs NSD is currently 75 years of age. The history as described by her son, Mr KRN, is that he has been her carer since about 2008. He cares for her in her own home. She lost her driver’s licence two or three years ago and Mr KRN has been making decisions about her medical treatment for the last two years or so.

17. The applicant, Mr KRN, said that a guardianship order was needed because his mother refused medical services sometimes. In particular, during her recent stay in hospital she required a blood transfusion and while she could be persuaded on that occasion to receive that medical treatment, he was not confident that such would be the case in the future, particularly against the background where she is likely to require another blood transfusion in the coming times. In particular, Mr KRN said that he sometimes called the ambulance to provide her with medical care but she has refused to go in the ambulance. Mr KRN said it was necessary for any guardian to have authority to override her objections.

18. Ms Y agreed that a guardianship order was needed because there are significant difficulties in obtaining Mrs NSD’s consent to stay in hospital. She certainly lacked insight into her own needs in her opinion.

19. All of the family present agreed that Mrs NSD needed a guardianship order. The Tribunal observed a large amount of support from the wider family for Mrs NSD and also support and encouragement to Mr KRN for the care he had provided to her to date.

20. A representative from the Public Guardian told the Tribunal that there was merit in making a guardianship order in this case, particularly against the background where Mrs NSD may require hospitalisation to which she objects. The guardian, in his view, would require functions of health care, medical, and dental functions with s 46A power to override objections, services. The Tribunal accepted those submissions.

21. The Public Guardian representative said that Mr KRN is an appropriate choice as a private guardian because he has a compatible personality and there was no conflict of interest and he is able and willing to act. The Tribunal agreed with those submissions.

22. The Tribunal decided on the basis of all of the evidence that a guardianship order should be made.

Who should be the guardian?

23. There is a proposal that Mr KRN be appointed guardian for Mrs NSD. 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.

24. The Tribunal was told and accepted that Mr KRN had no financial conflict with the affairs of his mother.

25. The Tribunal accepted the evidence that Mr KRN had been successfully caring for his mother for some years and found that he had a personality compatible with her. He was willing to be her guardian so that the proposed private guardian meets the requirements of s 17(1).

26. The family present agreed that Mr KRN was the appropriate person to be appointed guardian. There was no objection from anyone in the family to his appointment. Mrs NSD consented to his appointment.

27. On the basis of the evidence, the Tribunal was satisfied that Mr KRN meets the requirements to be appointed as the private guardian for Mrs NSD.

How long should the order last?

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

29. The Tribunal decided to make an order for 12 months because that will enable the guardian to oversee treatment and accommodation and services for Mrs NSD. It will also be a reasonable period within which Mr KRN can evaluate whether a further order is required and, if so, what functions should be attached to such an order.

30. The Tribunal appointed Mr KRN as guardian for Mrs NSD for a period of 12 months with the functions of accommodation (including authorise others) and such accommodation is to include hospital or other aged care facility, healthcare, medical, and dental consent (with authority to override objections to medical treatment) and services.

FINANCIAL MANAGEMENT APPLICATION

What did the Tribunal have to decide?

31. The questions to be considered by the Tribunal are:

1. Is Mrs NSD incapable of managing her affairs?

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

3. If so, who should be appointed financial manager?

Is Mrs NSD incapable of managing her affairs?

32. The Tribunal considered the evidence above regarding capacity to make important life decisions and found that Mrs NSD is not capable of managing her affairs.

33. Mrs NSD said that she consented to her son Mr KRN being appointed as her financial manager.

Is there a need for a financial management order?

34. Mr KRN explained that his mother had no assets apart from an unregistered motor vehicle and personal effects of commercial value. He said she receives a Centrelink pension which, after deductions for rent and a loan leaves her $320 per fortnight net. She also has a public service pension of approximately $200 per fortnight. Both pensions are paid into Mrs NSD’s bank.

35. Mr KRN said that he had experienced problems in recent times because his mother has been too unwell to attend the bank to withdraw money. She does not have a key card or bank book. He has no access to his mother’s bank account and had been paying from his own pocket for some time for any additional needs including sanitary nappies and medications.

36. The Tribunal was satisfied that there is a need to appoint someone to manage Mrs NSD’s affairs.

Is it in Mrs NSD’s best interest that a financial management order be made?

37. The Tribunal was satisfied that it is in the best interests of Mrs NSD that a financial management order be made.

Who should be appointed as financial manager?

38. 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.

39. 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.

40. Mr KRN said that he had never been made bankrupt and had never been convicted of an offence involving dishonesty. There was no financial conflict with the affairs of his mother. He was willing to accept the authority and direction of the NSW Trustee and Guardian. He said that he preferred to have a formal financial management order and it would be impractical to rely on his mother giving him simple authority over her bank account because she became easily confused when she attends the bank.

41. All the family present agreed that Mr KRN was the appropriate person to be appointed financial manager. There was no objection from anyone in the family to his appointment except for his brother Mr QLN who told a Tribunal officer that he objected to Mr KRN being appointed financial manager. However, Mr QLN refused to say why and said he would obtain legal advice. The Tribunal officer did not hear from him again and his phone number has not been provided to the Tribunal. He did not attend the hearing.

42. When asked about Mr QLN’s objection, Mr KRN said that he had a personality conflict with Mr QLN, who had not had much contact with Mrs NSD. Mr KRN said the personality conflict was the reason for his opposition. The Tribunal accepted this explanation and noted that Mr QLN had not taken any further active steps to oppose Mr KRN’s appointment. In the circumstances, the Tribunal found that the objection of Mr QLN did not overcome the clear advantages to Mrs NSD of Mr KRN being appointed as her financial manager.

43. The Tribunal appointed Mr KRN as financial manager for Mrs NSD.

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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: 22 September 2016