NXC

[2016] NSWCATGD 13

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	NXC [2016] NSWCATGD 13
Hearing dates:	30 October 2015, 15 December 2015, 27 January 2016
Date of orders:	30 October 2015
Decision date:	22 March 2016
Jurisdiction:	Guardianship Division
Before:	A Britton, Principal Member P Williams, Senior Member (Professional) L Porter, General Member (Community)
Decision:	1. Public Guardian appointed for a period of five years to make decisions on behalf of NXC about access, services, advocacy in relation to accommodation, healthcare and to give consent on her behalf to medical and dental treatment.
Catchwords:	GUARDIANSHIP – end of term review of guardianship order – welfare and interests of the subject person considered – section 4, Guardianship Act 1987 (NSW) – access function – guardianship order renewed and varied
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), cl 5 of sch 6 Guardianship Act 1987 (NSW), ss 3(1), 4, 4(f), 14, 15(3), 17(1), 18(1)(b), 21B, 25C(2)
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported per Windeyer J, 29 October 1999) IF v IG [2004] NSWADTAP 3 Re B [2011] NSWSC 1075 SAB v SEM [2013] NSWSC 253 NXC (Guardianship Tribunal (NSW), J Currie, D Wroth, M Circuitt, 30 October 2013, unrep) NXC (Guardianship Tribunal (NSW), T Sheedy, M Wroth, M Watson, 25 July 2012, unrep) W &G [2003] NSWSC 1170; (2003) 59 NSWLR 220
Category:	Principal judgment
Parties:	Mrs NXC (subject person) Ms DVC and Mrs TFN (joint guardians) Ms TPC (former carer) The NSW Public Guardian
Representation:	Nil
File Number(s):	49013
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

1. These reasons concern an end-of-term review of guardianship orders made in 2013 by the (then) NSW Guardianship Tribunal in respect of Mrs NXC. Mrs NXC is 91 years of age and suffers from severe dementia. Since July 2011 she has resided in a Sydney nursing home. Immediately before that, Mrs NXC spent four months in a different nursing home and before that resided in north-east Sydney, with one of her three daughters, Ms TPC.

2. On 5 January 2012, the Guardianship Tribunal made a temporary guardianship order appointing the Public Guardian as Mrs NXC’s guardian. That order was renewed as a further temporary guardianship order on 2 February 2012 and 16 February 2012. On 25 July 2012, the Tribunal made continuing guardianship order appointing two of Mrs NXC’s daughters, Ms DVC and Mrs TFN, as joint guardians for a period of 12 months, with authority to make decisions with respect to Mrs NXC’s accommodation, health care, medical and dental treatment (the 2012 Orders). Ms TPC unsuccessfully challenged that decision in the Supreme Court of NSW: SAB v SEM & Ors [2013] NSWSC 253.

3. Following an end-of-term review conducted in November 2013 by a differently constituted Tribunal, the 2012 Orders were renewed and varied for a period of two years (the 2013 Orders). Ms DVC and Mrs TFN were reappointed as joint guardians with the same functions as conferred under the 2012 Orders. In addition, the Tribunal appointed the Public Guardian as joint guardian with an access function to decide “what access Mrs NXC has to other persons and the conditions of access”.

4. A hearing to review the 2013 orders was conducted over three days. In the course of this review, a number of interlocutory applications were determined, including an application made by Ms TPC to be legally represented. That application was refused.

5. For the reasons that follow, we have decided to renew and vary the 2013 Orders and to appoint the Public Guardian as sole guardian for Mrs NXC to make decisions on her behalf in relation to accommodation, access, services, advocacy in relation to accommodation, healthcare and, to give consent on her behalf to medical and dental treatment.

6. In these Reasons for Decision, all references to “[Mrs NXC]” are to Mrs NXC.

Issues to be determined

7. Mrs NXC’s three daughters and the Public Guardian agree that Mrs NXC remains “a person in need of a guardian” and that a guardianship order should continue to be made in respect of Mrs NXC: ss 3(1) and 14 of the Guardianship Act 1987 (NSW) (the Act)). There is ample evidence to support each proposition.

8. Therefore, the principal issue for determination is which functions should be conferred under the guardianship order and who should be appointed as Mrs NXC’s guardian(s). Ms TPC contends that her sisters are unsuitable to act as guardians and seeks appointment to the role. Ms DVC and Mrs TFN (the current guardians), contend that they have discharged the responsibilities of their role with diligence and care and it is in their mother’s best interests that their appointment continue. They contend that their sister lacks the necessary skills to make decisions on behalf of their mother. Furthermore, they assert that their sister should not be appointed to the role as guardian because of the “demonstrable conflict” between her financial interests and those of their mother.

9. All of Mrs NXC’s daughters and the Public Guardian agree that the appointed guardian should hold those functions held by the current guardians. However, they disagree about whether the access function is needed. The current guardians contend it is in their mother’s interests that the Public Guardian continue to hold an access function.

10. Ms TPC opposes the making of a guardianship order with an access function. She contends there is, and never has been, a need for decisions to be made about access on behalf of her mother.

Background

11. To understand the submissions made by the parties it is necessary to have regard to the long history of conflict between the daughters of Mrs NXC. That history to November 2013 is usefully summarised in the Reasons for Decision given for the 2013 Orders (NXC (Guardianship Tribunal (NSW), J Currie, D Wroth, M Circuitt, 30 October 2013, unrep) pp 2-4. Conflict continues to this day.

12. Since 2011, Mrs NXC’s estate has been committed to the management of the NSW Trustee and Guardian (the Trustee). In September 2013, the Trustee, acting as tutor for Mrs NXC, commenced proceedings in the Supreme Court of NSW (2013/xx06) to recover property which Ms TPC is alleged to have misappropriated from her mother (Supreme Court proceedings). Those proceedings settled on the second day of a 10 day hearing which commenced on 9 November 2015. On 18 November 2015, the Supreme Court entered consent orders requiring Ms TPC, “without admission as to liability”, to: (i) pay her mother the sum of $1.35 million ($600,000 by 2 December 2015 and $750,000 by 18 April 2016); and (ii) indemnify her mother for any liability in respect of the mortgage over the property at northern Sydney.

Request that Mrs NXC be moved from the Sydney nursing home

13. In mid-2015, the Sydney nursing home’s managers requested the current guardians to find alternative accommodation for Mrs NXC. On the first day of the hearing we contacted the Sydney nursing home’s Director of Nursing, Ms Z, to obtain further information about that decision. Ms Z testified that the conflict within the family absorbed “a huge amount” of the facility’s time. She estimated that staff spent more time on issues raised by Mrs NXC’s family than on issues raised by all other families of the facility put together.

14. According to Ms Z, the time absorbed by Mrs NXC’s family coupled with their “constant negativity” about the quality of the care provided to Mrs NXC had led to the “regrettable” decision to ask Mrs NXC, “who is absolutely no trouble at all”, to leave the facility. She stated that an independent guardian might provide a more workable solution. She said the Sydney nursing home could “absolutely not” work with the current guardians from a health care point of view, pointing out that they had threatened to lodge a complaint about the Sydney nursing home with the Health Care Complaints Commission.

15. Ms Z stated that while the conflict over access to Mrs NXC appears to have settled since the appointment of the Public Guardian, based on past experience she was not confident that this would continue.

16. When asked by the Tribunal whether the Sydney nursing home would be prepared to reconsider its decision if the Public Guardian were to be appointed as sole guardian, Ms Z said she would need to consult with the Sydney nursing home’s CEO, who was not able to be contacted until the following week.

17. Given the significance of this issue we decided to adjourn the proceedings and to write to the Sydney nursing home and ask whether its request that alternative accommodation be found for Mrs NXC stood and, if so, whether it would be prepared to reconsider that decision if the Public Guardian were to be appointed as guardian for Mrs NXC with accommodation, medical, dental, and healthcare functions.

18. In an undated letter received by the Tribunal on 23 November 2015, Ms Z replied:

The request made some months ago to family members to seek alternative accommodation for their mother still stands and to our knowledge, this has not been attended.

Further request from the guardianship board is unable to be met.

19. The Public Guardian and Mrs NXC’s daughters agree that a move to alternative accommodation is likely to cause Mrs NXC considerable distress and that it is in her best interests to remain at the Sydney nursing home. A psychiatrist, Professor Y, the only expert to have commented on the proposed move, agreed; pointing out that if she were to move, this would be Mrs NXC’s third facility move in four years, interposed with seven hospital admissions.

20. The current guardians blame Ms TPC for the Sydney nursing home’s decision; she blames them. Ms TPC contends that the reason for that decision is the actions of the current guardians, including their threat to lodge complaints about the Sydney nursing home with health care authorities. The current guardians contend that the reason for the Sydney nursing home’s decision is their sister’s interference with the home’s carers, her practice of spending excessive amounts of time with their mother, refusing to respect the home’s visiting hours and interfering with their mother’s need to rest and receive care from staff.

21. The current guardians state they found disappointing the comment made by Ms Z that she “could no longer work with the family”. They believe it to be the result of their request for an explanation for the reason their mother’s health was allowed to deteriorate to the extent it did before being admitted to hospital in May 2015 (see below).

Admission to a public hospital in May 2015

22. On 15 May 2015, Mrs NXC was admitted to a public hospital with decreased consciousness associated with urosepsis. She was found to be severely dehydrated. She recovered after being given intravenous antibiotics and fluids and was discharged seven days later. This was Mrs NXC’s fifth admission to a public hospital since moving to the Sydney nursing home in July 2011. Her previous admissions were in June 2013, September 2013, October 2014 and April 2015.

23. Ms TPC submits that the instruction “not to palliate” issued by the current guardians to hospital staff during the most recent admission was contrary to her mother’s express wishes. In support, she points to the direction contained in the instrument purportedly executed by her mother in September 2004, appointing her as enduring guardian:

When there is no reasonable hope for my recovery, I direct that I be allowed to die naturally, receiving only comfort care and pain relief, even if this shortens my life.

24. In addition, Ms TPC relies on the opinion of Professor Y set out in a report dated 1 December 2015, prepared at the request of her solicitors.

25. For the purpose of preparing that report, Professor Y considered, among other things, the clinical notes relating to Mrs NXC’s admissions to hospital throughout the period she has resided at the Sydney nursing home. With respect to the most recent admission, Professor Y considered the following entries made on 16 may 2016 to be of particular relevance:

12.45 am: very unwell likely terminal event multiple pathologies

9.40: not yet palliative

13.00: Pt is NOT palliative, as per daughter’s wishes …Patient is still for active management

14.55: [Mrs TFN instructed]… basic information to be given to other daughter [Ms TPC] and the word palliative not to be used. [Mrs TFN] would like to be contacted at any time.

26. In Professor Y’s opinion, these entries together with the clinical notes read as a whole, indicate that the “Advanced Care Directive (ACD)”, namely the direction contained in the September 2004 instrument is not being heeded. She concluded “active decisions not to palliate” have repeatedly been made since 2013 and “medical staff have been forbidden by the [current guardians] to comply with the ACD”. According to Professor Y, Mrs NXC is in the terminal phases of dementia and “there is no reasonable hope for recovery”. In her opinion, except for the March 2015 admission for a fractured femur, none of the admissions to the public hospital were in Mrs NXC’s best interests.

27. In Professor Y’s opinion, the evidence regarding Mrs NXC’s dementia is so “deeply disputed” as to render “any firm conclusions regarding such prior to 2009 to 2011, difficult to conclude with any certainty”. She noted the evidence that by 2009 Mrs NXC had “longstanding memory loss”. Nonetheless, in her opinion the history of cognitive impairment was insufficient to rebut the presumption of capacity at the time the ACD was made.

28. The current guardians take issue with Professor Y’s opinion. They point out that in preparing her report, Professor Y was largely reliant on the information provided by their sister and she failed to obtain their version of events. Further, they reject the characterisation of the health care decisions they have made on behalf of their mother as “heroic”. While serious, they assert that urinary sepsis is a treatable condition, as demonstrated by their mother’s prompt recovery after receiving fluids and antibiotics. Mrs TFN, a registered nurse with significant experience in aged care, stated that IV fluids, antibiotics and pain relief have long been accepted as “comfort care”. She claimed she could not recall a single case during her long experience in nursing terminally ill patients, where fluids or pain relief had been withdrawn.

29. The current guardians claimed the reason they instructed staff not to use the word “palliate” during their mother’s recent admission to the public hospital was because in Mrs TFN’s experience, once that label is used, medical staff tend to treat the patient as if death was imminent. They claim they instructed the Sydney nursing home not to take unwarranted measures to prolong their mother’s life.

30. The current guardians point out that despite spending five hours with their mother on the day of her most recent admission to the public hospital, their sister neither reported the deterioration in their mother’s condition nor sought medical treatment on her behalf. They question her claim that on that day her mother refused fluids, claiming when offered, she “eats and drinks with gusto”. According to the guardians, their sister’s “inaction” provides a further example that she is attempting to “expedite our mother’s demise”.

31. With respect to Professor Y’s opinion on capacity, they point to the conflicting view expressed by Professor X, who is of the opinion that by 2004 Mrs NXC lacked capacity to appoint an enduring guardian. (The Trustee called Professor X to give evidence about this issue in the Supreme Court proceedings.) In addition, they point to the notes relating to Mrs NXC’s admission to another public hospital in Northern Sydney in July 2011 which record that their sister told hospital staff that their mother had “undiagnosed dementia for the past six years”.

32. The current guardians point out that the instrument purportedly appointing their sister as enduring guardian was made the day before their mother was scheduled to undergo major surgery in circumstances where she was concerned she might be left with a major disability. In any event, they contend that the instructions they gave staff during their mother’s recent admission to the public hospital were not inconsistent with the purported ACD.

33. Ms TPC stated that on the day of her mother’s admission to the public hospital in May 2015, despite her best efforts, she was unable to get her mother to eat or drink. She said she was told by a nurse that “it looked as if [Mrs NXC] had given up”. She said the reason she did not report the deterioration in her mother’s condition or seek medical treatment was because she was not the guardian and therefore lacked any authority.

Weight loss allegation

34. Ms TPC asserts that her mother’s weight has been at unhealthy levels while at the Sydney nursing home and this demonstrates that her sisters have failed in their role as guardians. This had been a live issue in earlier proceedings. (See for example Reasons for Decision for the 2012 Orders (NXC (Guardianship Tribunal (NSW), T Sheedy, M Wroth, M Watson, 25 July 2012, unrep) pp 8 and 12, and Reasons for Decision for the 2013 Orders, pp 10 and 11.)

35. Ms TPC relies on an undated report prepared by consultant dietician, Ms W. Relying on weight charts apparently obtained from the Sydney nursing home, Ms W concluded that Mrs NXC’s weight dropped about nine kilograms in the three months to August 2013. In her report, Ms W criticised aspects of the diet provided by the Sydney nursing home to Mrs NXC and also the diet recommended by a dietician with the public hospital in May 2015.

36. In answer to those claims, Mrs TFN disputes both the accuracy of the assumptions made by Ms W about the fluctuation in Mrs NXC’s weight and her opinion about the appropriateness of the recommended diet(s). She pointed out that following her discharge from the public hospital in May 2015, she and Ms DVC arranged for a carer to provide one-on-one care to their mother and assist with feeding. She asserted that since her discharge from the public hospital in May 2015, her mother has been eating well and her weight has steadily increased. Further, she pointed out that Ms W did not ask either guardian to comment on any of the assumptions on which her opinion was based and has not seen Mrs NXC for over four years.

What functions should the guardian(s) be given?

37. On reviewing the 2013 Orders, we may renew, or renew and vary the order, or determine that the order is to lapse and revoke the order in respect of any unexpired period for which the order is specified to have effect: s 25C(2) of the Act. In this review we adopt the approach consistently taken by NCAT and one of its predecessor tribunals, the Guardianship Tribunal of NSW, that in conducting an end-of-term review the Tribunal should have regard to the matters listed in s 14 of the Act, which must be taken into account in making a guardianship order: IF v IG & Ors [2004] NSWADTAP 3 at [20]. In addition, we are bound to observe the “general principles” listed in s 4 of the Act:

4   General principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a)   the welfare and interests of such persons should be given paramount consideration,

(b)    the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c)    such persons should be encouraged, as far as possible, to live a normal life in the community,

(d)    the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e)    the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f)    such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g)    such persons should be protected from neglect, abuse and exploitation,

(h)    the community should be encouraged to apply and promote these principles.

See also cl 5 of sch 6 to the Civil and Administrative Tribunal Act 2013 (NSW).

Should an access function be retained?

38. As noted the current guardians submit an access function is needed. Ms TPC disagrees.

39. In its Reasons for deciding to appoint the Public Guardian as joint guardian, and give it an access function, the Tribunal (differently constituted) referred to the history of conflict among Mrs NXC’s daughters over visiting arrangements and the Sydney nursing home’s view that a timetable restricting visiting hours was needed. The Reasons also record that the separate representative who appeared in those proceedings, urged the Tribunal to appoint the Public Guardian and to confer an access function given the “degree of conflict between the daughters”.

40. In December 2013, the Public Guardian made an access decision limiting the times the family could visit Mrs NXC to between 9:30 am to 2 pm and 4pm to 6pm. Ms TPC applied to the Administrative and Equal Opportunity Division of NCAT for review of that decision. On 9 October 2015, the Tribunal entered consent orders varying that decision, permitting family members to visit between 2 pm and 4pm, with the consent of a “responsible person” nominated by the Sydney nursing home.

41. In addition, the Public Guardian made two decisions during Mrs NXC’s admission to the public hospital in October 2014. In reasons for that decision dated 20 October 2014, the Public Guardian wrote that the decision was made because of conflict between Mrs NXC’s daughters, which “[the public hospital’s] treating team was unable to resolve informally”.

42. Ms TPC contends that the access function is not and was never needed. She asserts that there have been no disputes over visiting arrangements in the past 12 months. While the current guardians concede that since the Public Guardian’s appointment the level of conflict has decreased, they contend that in the absence of a third party empowered to arbitrate disputes about access, they will revert to being unable to “self-regulate” and spending excessive amounts of time with their mother, interfering with her need to rest and receive care from staff.

43. In a report dated 20 October 2015, prepared for the purpose of this review, the Public Guardian wrote that an access function was no longer needed because the “current arrangements seem to be working”. In these proceedings, when questioned by the Tribunal about whether the Public Guardian remained of that opinion given the high level of family conflict demonstrated throughout the hearing, the Public Guardian’s representative conceded that there may be merit in retaining an access function.

44. While the evidence indicates that the conflict over access arrangements has settled to some degree, in our view there is a real and material risk that if the access function were to be revoked, disagreement, if not open hostility between the daughters would be repeated. It would not be in Mrs NXC’s interests to be exposed to the unedifying spectacle of “open conflict” between her daughters. Further, a repeat of that conduct is likely to further jeopardise Mrs NXC’s ability to remain at the Sydney nursing home or indeed at any future facility. Self-evidently, no aged care facility would welcome the prospect of managing open conflict between the family members of a resident.

45. We do not accept, as Ms TPC argues, that a decision to retain an access function would be contrary to her mother’s wishes. Even if it is accepted, as she contends, that she was the favoured daughter, it does not follow that if Mrs NXC were able to express an opinion she would oppose an access function, especially if that meant the risk of open conflict between her daughters would be reduced.

46. We have concluded that there is a need for an access function, and it is in Mrs NXC’s best interests that the function be retained.

Should an advocacy function be conferred?

47. The decision made by the Sydney nursing home to request the current guardians to find alternative accommodation for Mrs NXC leads us to conclude that there is a need for a person to advocate on Mrs NXC’s behalf and attempt to negotiate an agreement with the Sydney nursing home. Arguably, such an order is unnecessary given that s 21B of the Act gives a guardian ancillary powers “to…do all such things as are necessary to give effect to any function of the guardian”. Nonetheless, in the interests of abundant caution we have decided to confer an advocacy function.

Should a services function be conferred?

48. As noted, after her discharge from the public hospital in May 2015, the current guardians arranged for a carer to provide one-on-one care to Mrs NXC, presumably in the exercise of the healthcare function. While not raised by the parties, it is arguable that that decision does not fall within the scope of the “health care function”. Neither the Act nor its regulations offer a definition of functions commonly conferred under a guardianship order: accommodation, services, and health care.

49. To remove any doubt that decisions of this type can be properly be made by the guardian, we have decided to confer a services function.

Who should be appointed as Mrs NXC’s guardian?

50. The current guardians seek reappointment and support the continuation of the Public Guardian as joint guardian with an access function. Ms TPC seeks appointment as guardian. In the alternative, she submits that the Public Guardian should be appointed sole guardian.

Statutory framework

51. Section 15(3) of the Act states:

15   Restrictions on Tribunal’s power to make guardianship orders

…

(3)    A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person.

52. Section 17(1) of the Act states:

17    Guardians

(1)   A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that:

(a)   the personality of the proposed guardian is generally compatible with that of the person under guardianship,

(b)    there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and

(c)    the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.

Submissions made by Ms TPC

53. Ms TPC submits for these and other reasons that she should be appointed guardian.

54. First, she asserts her appointment would be consistent with her mother’s wishes. She claims that in contrast with her mother’s relationship with her sisters, her relationship with her mother was “extremely close”, so much so that by the mid-1990s she had become her mother’s “significant other”. That claim, she argues is evidenced by her mother’s decision to appoint her as her attorney in 1998, enduring guardian in 2004, and executrix and major beneficiary under her will. She asserts the reason her mother decided to “disinherit” her sisters was because her relationship with Mrs TFN was “estranged”, and with Ms DVC, “distant”.

55. Second, if appointed guardian she would be committed to honouring her mother’s wishes in respect of “end of life decisions”. She contends that the approach taken by the current guardians to decisions about their mother’s medical treatment has been “excessively medical” and failed to respect their mother’s needs and wishes. In support she cites the opinion held by Professor Y.

56. Third, she contends that the adverse findings made by the Tribunal (differently constituted) as set out in its Reasons for for making the 2012 Orders, in particular that she had “demonstrated a pattern of poor or delayed decision-making” were based on misleading and incomplete information following “an ambush” by her sisters in the course of the Tribunal proceedings. She urges us to revisit and “unravel” those findings.

57. Fourth, she asserts that her style is less-confrontationist than that of her sisters, making her better placed to resolve the impasse over her mother’s continued residence at the Sydney nursing home.

58. Fifth, she asserts that her sisters lack “honesty, candour and integrity”, pointing to the “false” evidence they gave to the Supreme Court and the Tribunal and their actions in “deceiving” five government agencies since 2011.

Response by the current guardians

59. The guardians oppose Ms TPC’s appointment.

60. First, they contend that there is a conflict between Ms TPC’s financial interests and those of their mother and by the operation of s 17(1)(c) of the Act, it is not open to the Tribunal to appoint her as guardian. They point out that the reason the NSW Trustee and Guardian decided to commence recovery proceedings against their sister was because it had formed the opinion that she had misappropriated their mother’s property. They say that despite her attempts to characterise the 2015 Consent Orders as a decision by the Court to exculpate her conduct, the Court made no findings about their sister’s conduct. They assert that over a long period their sister has been dishonest in her dealings with their mother.

61. Further, they argue that there remains a relevant conflict of interest, if for no other reason that the 2015 Consent Orders require their sister to make a further payment to their mother of $700,000. They suggest that as a consequence of her indebtedness to their mother together with being the major beneficiary of her estate, there is a real risk if she were appointed guardian that she might “try to expedite our mother’s demise”. They contend that her attack on their decision to arrange for their mother to be admitted to the public hospital in May 2015 must be assessed in that context.

62. Second, they contend that their sister lacks the necessary skills and ability to advocate and make decisions on their mother’s behalf. Among other things, they point to the arguments she advanced in support of her application to be legally represented in these and previous proceedings of the Tribunal: that she lacked the ability and confidence to speak and advocate on her own behalf. They point to her repeated inability throughout these proceedings to respond to questions asked by the Tribunal. Of particular significance, they contend was her inability to respond to the Tribunal’s question about what steps she would take to resolve the current accommodation impasse if she were to be appointed guardian.

63. Third, they submit that there is no basis to revisit the findings made by the Tribunal in 2012 and affirmed by a different tribunal in 2013, that their sister demonstrated a pattern of poor decision-making in relation to their mother.

64. The current guardians assert that they have discharged their responsibilities as guardians with diligence and care, “above and beyond” what is required. They reject their sister’s allegation that they have made a series of poor decisions in their role as guardians. In addition, they disagree that they are responsible for the Sydney nursing home’s decision to request that alternative accommodation be found for Mrs NXC. They argue that the reason for the decision is their sister’s constant interference with the care provided at the Sydney nursing home.

65. Further, they claim that despite the misgivings expressed by the Tribunal (differently constituted) in 2013 about their willingness to consult their sister, they have kept her “in the loop” in decisions affecting their mother.

66. The current guardians reject the contention that their actions in arranging for their mother to be admitted to the public hospital in May 2015 demonstrate that they are overriding their mother’s wishes. They contend that the treatment given was reasonable and nothing more than comfort care.

Findings and conclusions

67. By the operation of s 15(3) of the Act, the Tribunal must not appoint the Public Guardian in circumstances in which an order can properly be made in favour of another person (see W &G [2003] NSWSC 1170; (2003) 59 NSWLR 220). In Re B [2011] NSWSC 1075, White J set aside a guardianship order appointing the Public Guardian in circumstances where the Tribunal was found to have failed to make necessary findings that a family member could not be properly appointed in the best interests of the person needing a guardian. His Honour cited, with approval, Windeyer J’s decision in W & G at [25].

68. 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 accord with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported per Windeyer J, 29 October 1999)).

69. We have considered the allegations made by the current guardians that their sister has a conflict of interest because of the funds due under the 2015 Consent Orders and her position as beneficiary under Mrs NXC’s will. While there may be a potential conflict of interest, other matters relevant to the suitability or otherwise of the parties to be the guardian which we now discuss have much greater and more immediate relevance.

70. Whether a person is able to exercise the functions conferred under a guardianship order cannot be assessed at an abstract level and requires consideration of whether the proposed guardian is practically able to discharge those functions. This requires consideration to be given to all relevant considerations, including the nature of the functions conferred, the type of decisions that will be, or are likely to be, required to be made on behalf of the subject person, the circumstances surrounding those decisions and the skills, experience, training, and personal attributes of the proposed guardian. That assessment also requires consideration to be given to whether the proposed guardian is willing and able to exercise the functions conferred in a manner consistent with the statement of principles.

71. Here, that assessment must be considered in the context of the immediate threat to Mrs NXC’s continued residency at the Sydney nursing home and the likelihood that end-of-life decisions will need to be made.

72. Both the current guardians and Ms TPC have at various times criticised and found fault with the Sydney nursing home. Nonetheless, each now believes it is in their mother’s best interests that she remains at the Sydney nursing home. The Public Guardian also holds that view as does Professor Y, the only expert to have commented on the proposed move. We concur with that view.

73. In oral evidence, Ms Z seemed open to the possibility that the decision to request the current guardians to remove Mrs NXC might be revisited if the Public Guardian were to be appointed. Her written response to our questions indicated that the Sydney nursing home had firmed in its resolve to act on the request made to the current guardians to arrange for Mrs NXC to leave the Sydney nursing home, even if the Public Guardian were to take over the functions of the current guardians. Nonetheless, until reasonable efforts have been made by the appointed guardian to explore whether a settlement could be reached, in our opinion it could not be said that it is a foregone conclusion that the Sydney nursing home will act on its decision.

74. Two main factors appear to lie behind the Sydney nursing home’s decision: the conflict within Mrs NXC’s family and the breakdown in the relationship with the current guardians. Ms Z’s comment that the Sydney nursing home spends as much time on Mrs NXC’s family as all of the families at their facility combined, indicates that the long standing dispute between Mrs NXC’s daughters has exhausted the patience of the Sydney nursing home management and its staff. We note Ms Z made much the same comment during the 2013 review, claiming that a great deal of “professional and care time” was spent on “family member issues” (see Reasons for Decision for 2013 Orders, p 14).

75. Ms Z’s statement that she is no longer prepared to work with the current guardians appears to be the result of her frustration with dealing with the family dynamic together with the current guardians’ stated intention to lodge a complaint about the Sydney nursing home’s alleged inaction, which they believe necessitated Mrs NXC’s most recent admission to the public hospital. It is not to the point whether Ms Z acted unreasonably, or whether the current guardians were justified in considering lodging a complaint about the Sydney nursing home. As long as the managers of the Sydney nursing home refuse to work with the current guardians, however competent and well-meaning, their ability to discharge an accommodation and advocacy function is likely to be thwarted.

76. The current guardians are plainly intelligent and capable people. Mrs TFN has the immeasurable advantage of significant experience in aged care. We do not accept many of the criticisms made by Ms TPC about the decisions they have made on behalf of their mother. For example, in relation to the fluctuation in Mrs NXC’s weight, the available material does not support a finding that it is attributable to a series of poor decisions made by the current guardians. The evidence reveals that the current guardians have followed the recommendations made by the Sydney nursing home and suitably qualified health professionals. That Ms W disagrees with those recommendations does not establish, as we understand Ms TPC to suggest, that the current guardians have acted negligently or made poor decisions. Notably, when confronted with Mrs NXC’s significant weight loss following her most recent admission to the public hospital, they took the initiative of arranging for additional care for their mother, a decision endorsed by their sister. This indicates that they have been diligent and proactive in their role.

77. Nonetheless, given the breakdown of the relationship with the Sydney nursing home, together with what can only be described as a poisonous family dynamic, we are not satisfied on the balance of probabilities that the current guardians would be able to exercise advocacy and accommodation functions in a manner consistent with their obligation to observe the s 4 principles, in particular to give paramount consideration to the welfare and interests of Mrs NXC.

78. Nor are we satisfied that Ms TPC would be able to exercise those functions. Firstly, because of the family dynamic we think it improbable that the Sydney nursing home’s managers would be prepared to deal with any of Mrs NXC’s daughters. Secondly, we have misgivings about whether Ms TPC has the necessary attributes and skills to exercise an accommodation and advocacy function in the current circumstances. In these proceedings we invited Ms TPC to outline the steps she would take to deal with the impasse created by the Sydney nursing home’s decision if appointed to the role of guardian. Apart from repeating the mantra that it was in her mother’s best interests that she remain at the Sydney nursing home and that she would be prepared to “work with” the home’s managers and her mother’s treating doctors, Ms TPC was unable to outline any concrete steps she would take to secure or find alternative accommodation for her mother. Her response suggested that either she had not turned her mind to, or lacked the ability to navigate, the difficulties that have now arisen as a consequence of the home’s decision. Either way, her responses gave us little confidence that she would be able to exercise those functions.

79. We accept, as argued by the current guardians, that even if the Public Guardian were appointed as sole guardian, this would not guarantee that the Sydney nursing home would reverse its decision. As they point out, even if the Public Guardian were the sole guardian, it would not quarantine the management and staff of the Sydney nursing home from the family conflict. Nonetheless, we think the management of the home would be more likely to reconsider its decision if in their dealings with Mrs NXC’s substitute decision-maker, they were able to deal with a person not party to the family dispute.

67. Further, if Mrs NXC were to be moved, in our opinion there is a risk that the problems which led to the Sydney nursing home’s decision may again arise and jeopardise her accommodation in that facility. As noted by the Public Guardian, the Sydney nursing home is not the only facility to experience difficulties. In 2014 the treating team at the public hospital found itself unable to manage the “open conflict” between Mrs NXC’s daughters. If that were to reoccur, none of the daughters of Mrs NXC would, in our opinion, be able to exercise the accommodation and, if needed, advocacy function in a manner consistent with their mother’s best interests.

68. The degree of acrimony between Mrs NXC’s daughters is starkly illustrated by the dispute about decisions made relating to medical treatment. Each has made breathtaking accusations about the other: the current guardians assert that their sister has an interest in facilitating their mother’s early demise to preserve the estate and to maximise her inheritance; in turn, she accuses them of making a series of “heroic” decisions designed to unnecessarily prolong their mother’s life and to use their mother as a pawn in their dispute with her.

69. In this environment, any health care or treatment decision made by the current guardians of their sister is likely to be viewed with suspicion and further undermine family relationships. Given this fraught environment and the probability that in the foreseeable future sensitive decisions, such as whether palliative care is appropriate may need to be made, we are not confident that any of the proposed guardians could make such decisions in a manner consistent with the obligation to preserve family relationships (s 4(f) of the Act). Further, given the high level of conflict we think there is a risk that each of Mrs NXC’s daughters may lack the necessary objectivity and detachment to make decisions in a manner consistent with their mother’s best interests.

70. We are not satisfied that any of the proposed guardians are able to discharge the functions conferred under the guardianship order in a manner consistent with the obligation to observe the principles listed in s 4 of the Act. It follows we are precluded from appointing any as guardian and must appoint the Public Guardian.

How long should the order last?

84. A guardianship order may be renewed for a period of up to three years: s 18(1)(b) of the Act. However, where the subject person has permanent disabilities, is unlikely to become capable of managing his or her person and there is a need for an order longer than three years, the term of the order may be made for a period of up to five years: s 18(1B) of the Act. Plainly the first two pre-conditions are satisfied. While it is not possible to know how long Mrs NXC will live, if she does live beyond three years there will be a need for an order for that period.

85. In our view, there would be no utility in reviewing the guardianship order made by us within the next three years. For that reason we have decided to exercise the power to make the guardianship order for a term of five years.

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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: 06 June 2018