NXH

[2015] NSWCATGD 20

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	NXH [2015] NSWCATGD 20
Hearing dates:	15 June 2015
Date of orders:	15 June 2015
Decision date:	15 June 2015
Jurisdiction:	Guardianship Division
Before:	J Redfern, Principal Member I Beale, Senior Member (Professional) L Porter, General Member (Community)
Decision:	Financial management order confirmed  Application for guardianship order dismissed
Catchwords:	GUARDIANSHIP – application for plenary orders –proposed consent orders – medical evidence of capacity – refusal to make orders – not satisfied plenary or limited order should be made – noted agreement of parties   FINANCIAL MANAGEMENT – reviewable order – request for further review – no change in circumstances or evidence of mismanagement – request for further review declined – views of protected person considered
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW)
Category:	Principal judgment
Parties:	Mr NXH (the protected person) Mrs NMG and Ms BSH (the financial managers and enduring guardians) Mr CLH (the applicant) The NSW Trustee and Guardian The Public Guardian
Representation:	Legal Representation
File Number(s):	51471
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 confirmed the financial management order it made on 23 March 2015 in relation to Mr NXH (except for the requirement to review that order).

2. The Tribunal dismissed the application for guardianship in relation to Mr NXH made by Mr CLH but noted the acknowledgment and agreement between Mrs NMG and Ms BSH and Mr CLH as set out later in these reasons for decision.

Background

3. Mr NXH is an 89 year old widower with four children: three daughters, Mrs NMG, Ms BSH and Ms KDH, and a son, Mr CLH. Mr CLH lodged applications for guardianship and financial management orders in August 2014.

4. Mr NXH executed an enduring power of attorney on 18 May 2004 appointing Mr CLH as his attorney. He revoked this instrument on 22 February 2006 and executed a further enduring power of attorney on 9 November 2012 appointing Mrs NMG and Ms BSH as his attorneys. The appointment was joint and several.

5. On 11 February 2009, Mr NXH appointed Mrs NMG and Ms BSH as his enduring guardians to make decisions for him, jointly or severally, about where he lived, his health care, the services he received and any medical and dental treatment.

6. Mr CLH previously lodged an application for guardianship which was listed for hearing on 13 November 2013. The Tribunal consented to the withdrawal of this application at the hearing and confirmed the enduring guardianship appointment. The orders made by the Tribunal were made with the consent of the parties.

7. The applications for guardianship and financial management were listed for hearing on 23 March 2015 but the Tribunal adjourned the guardianship application of its own motion in the course of determining a number of interlocutory applications prior to the hearing when it became apparent Mr NXH would not be able to participate in the hearing. The Tribunal made a financial management order for Mr NXH on 23 March 2015 and appointed Mrs NMG and Ms BSH as his financial managers, subject to the supervision and direction of the NSW Trustee and Guardian. The Tribunal directed that the financial management order be reviewed in three months.

8. The Tribunal also directed that a report be provided to the Tribunal about Mr NXH's capacity to manage his finances and person.

9. The application for guardianship and the review of the financial management order were both listed for hearing on 15 June 2015.

The Hearing

10. At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing [appendix removed for publication].

11. Mr NXH attended the hearing in person and was represented by a barrister. Mrs NMG and Ms BSH were represented by a barrister and Mr CLH was represented by a barrister.

12. At the commencement of the hearing the parties requested a delay in the commencement of the hearing to attempt resolution of the various disputes between them. Having regard to the provisions of s 37 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act), which generally provides that the Tribunal should promote the use of resolution processes, the Tribunal adjourned the proceedings for a brief period to give the parties an opportunity to discuss the resolution of the matters in dispute.

13. At the conclusion of this process, the parties provided proposed consent orders to the following effect:

1. That the financial management order made on 23 March 2015 should be confirmed and that the order should continue until a period nominated by the Tribunal.

2. A plenary guardianship order should be made by the Tribunal appointing Mrs NMG and Ms BSH as guardians subject to conditions noting that the guardians had no power to determine who may or may not have access to Mr NXH and that the guardians shall promptly sent a copy of all medical reports regarding Mr NXH to Mr CLH's solicitor.

14. Section 59 of the CAT Act provides that the Tribunal may make such orders as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if the terms of the agreed settlement are in writing and signed on behalf the parties and the Tribunal is satisfied it would have power to make a decision in the terms of the agreed settlement.

15. Notwithstanding the terms of consent orders, the Tribunal is not a 'consent jurisdiction' and will only have authority to make the orders proposed if it is satisfied the terms of the settlement meet the legislative regime, namely the Guardianship Act 1987 (NSW) (the Guardianship Act), which governs the making of such orders.

16. In this case, the Tribunal could only make the orders contemplated by the proposed settlement if satisfied that it was appropriate to:

1. confirm the financial management order made on 23 March 2015, having regard to Division 2 of Part 3A of the Guardianship Act, which deals with the review of the financial management orders; and

2. make a plenary guardianship order in the form proposed, having regard to the matters set out in Division 3 of Part 2 of the Guardianship Act, which deals with the making of guardianship orders.

17. While the Tribunal is mindful of the importance of promoting resolution of disputes between the parties, it is necessarily constrained by the provisions of the Guardianship Act and the nature of its protective jurisdiction. The Tribunal will nonetheless seek to give effect to an agreed resolution by the parties, subject always to being satisfied that the relevant provisions of the Guardianship Act have been established and that the general principles set out in s 4 of the Guardianship Act have been observed. The views of the person who is the subject of the application and their capacity to understand and agree with any settlement will be a critical consideration.

18. Having regard to these matters, the Tribunal determined to consider the proposed settlement in light of the available evidence, the views of Mr NXH and the s 4 general principles.

19. The Tribunal decided to confirm the financial management order but declined to make a guardianship order. Our reasons follow.

What did the Tribunal have to decide?

20. As already noted, the application for guardianship and the review of the financial management order are governed by Division 3 of Part 2 (especially ss 14 to 18) and Division 2 of Part 3A (ss 25N to 25R) of the Guardianship Act.

21. Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/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)). 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;

5. 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)).

22. When considering whether or not to make a guardianship order, the Tribunal must have regard to the matters referred to in s 14(2) of the Guardianship Act. Relevant to the circumstances of this case, the Tribunal must have regard the views of Mr NXH, the importance of preserving his existing family relationships and the practicability of services being provided to him without the need to making such an order. The Tribunal must also consider the general principles set out in s 4 of the Guardianship Act, which directs any person exercising jurisdiction under the Guardianship Act, including the Tribunal, to undertake a balancing exercise when considering the principles. This includes, amongst other things, the duty to observe the principle that "freedom of decision making and action of such persons should be restricted as little as possible" (s 4(b)) while providing that "the welfare and interests of the person with a disability should be given paramount consideration" (s 4(a)).

23. Relevantly, s 15(4) provides that a 'plenary order' should not be made when a limited guardianship order would suffice. A plenary order means an unrestricted order.

24. Section 15(3) provides that a guardianship order appointing the Public Guardian should not be made in circumstances where an order appointing some other person can be made. In other words, the appointment of the Public Guardian should be the 'last resort.' However, s 17(1) provides that a person shall not be appointed as guardian unless the Tribunal is satisfied the person meets the following requirements, namely that the guardian 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.

25. Section 25N of the Guardianship Act provides that the Tribunal may order that a financial management order be reviewed within a certain period of time.

26. On reviewing a financial management, the Tribunal must confirm, revoke or vary the financial management order (s 25P). The Tribunal may revoke the financial management order only if:

1. it is satisfied that the person who is the subject of the order is capable of managing his affairs; or

2. it considers that it is in the best interests of the person that the order be revoked.

27. Having regard to these provisions, the questions which have to be decided by the Tribunal in respect of the guardianship application were:

1. Is Mr NXH someone for whom the Tribunal could make an order because he has a disability which prevents him 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?

28. The questions which have to be decided by the Tribunal in respect of the review of the financial management order were:

1. (5)   Is Mr NXH capable of managing his affairs? And/or

2. (6)   Is it in the best interests of Mr NXH that the order be revoked?

Consideration

The evidence and submissions of the parties

29. Dr Z provided a report to the Tribunal dated 4 June 2015. Dr Z is a Consultant Clinical Neuropsychologist. She has extensive experience in undertaking neuropsychological assessments and her current practice comprises a combination of clinical and medico legal work. She is extensively published and has been in practice for nearly 20 years. Dr Z and has also held a number of academic positions, including as lecturer at a University in the United Kingdom from March 2000 to 2010 for the Doctorate of Clinical Psychology.

30. Her report was detailed and set out particulars of the assessments undertaken by Dr Z, the medical material she reviewed and her instructions. Dr Z set out her opinions and the basis for those opinions. It was a most impressive report to which the Tribunal gave considerable weight. No evidence was provided by the parties to dispute the findings made by Dr Z in her report.

31. Relevantly, Dr Z opined as follows in respect of Mr NXH's capacity to make financial decisions:

145. In my opinion, and based on the description provided of the types of financial transactions and decision with which [Mr NXH] would likely to be involved in managing his finances, [Mr NXH] does not at the present time have the capacity to manage his own financial affairs.

146. The results of neuropsychological assessment suggest [Mr NXH] would struggle to keep up to date with and remember information that is central to his making informed decisions regarding the management of his companies and properties and the investment of company funds.

147. The results of neuropsychological assessment suggest [Mr NXH] would be unable to resolve more complex financial and business situations/scenarios that required him to consider multiple strands of information simultaneously and to move his attention between these.

148. In my opinion, [Mr NXH]'s inability to monitor his own errors and his apparent lack of insight into his cognitive difficulties were placed him at substantial risk of financial exploitation and loss.

149. [Mr NXH] did not demonstrate a sophisticated awareness at the types of assistance he might require in managing his financial affairs or of when and how he would go about seeking out such assistance.

150. The results of neuropsychological assessment suggest that [Mr NXH]'s monetary skills are not commensurate with those that might reasonably be required to make investment decisions regarding very large sums of money and make decisions of a financial nature on a companies (sic) behalf.

151. In the absence of a formal clinical diagnosis for [Mr NXH]'s cognitive impairments, the cause of his cognitive difficulties remains uncertain. It would therefore be important to ensure that there is opportunity for future review of [Mr NXH]'s financial capacity, should this become appropriate.

32. Dr Z opined as follows in respect of Mr NXH's capacity to make general lifestyle decisions, including decisions regarding his medical care and treatment:

152. In my opinion, and with reference to current medical diagnoses, [Mr NXH] does, at the present time, have the capacity to make decisions pertaining to his general lifestyle, medical care and treatment.

153. His comprehension abilities are sufficient to allow him to understand the nature of his medical conditions, when these are explained to him in simple terms, and the corresponding treatment options for these.

154. The medical correspondence indicates that [Mr NXH] (whilst not suffering any delirium) has engaged with his various treating health practitioners in a constructive and sensible manner over the course of the proceeding several years.

155. He appears to be accepting of the care he is currently receiving and I would certainly recommend that supervision of his medications and their preparations continues and that he continues to receive assistance in ensuring that he attends his medical appointments.

156. Although [Mr NXH] was unable to provide a list of his current medications, he demonstrated an awareness of where his medications came from and how and when they were presented to him.

157. It should be noted that [Mr NXH]'s lack of insight into his cognitive impairments will, in all likelihood, have an adverse effect on his ability to make decisions pertaining to this specific aspect of his health care and resultant care needs.

158. In view of the uncertain course of [Mr NXH]'s cognitive impairment (and it's at times fluctuant nature), it would be prudent to monitor his ability to continue to make decisions regarding his own health and lifestyle matters.

33. There was evidence filed by Mr CLH to the effect that he remained concerned about the suitability of his father's accommodation, he was concerned about Mr NXH's medical treatment because he believed his father had dementia was not being treated appropriately and he was concerned that he and his sister, Ms KDH, had been denied access to Mr NXH by Mrs NMG and/or Ms BSH. Mr CLH also denied that his motivation for commencing the financial management and guardianship applications was to take control Mr NXH's assets. In particular, Mr CLH noted that any change in the shareholding the trustee company of Mr CLH's discretionary family trust, had no impact on Mr NXH's financial position. Mr CLH further asserted that letters written (and presumably views formed) by Mr NXH's treating specialist, Dr Y, were unfavourably affected by misinformation provided by Mrs NMG and/or Ms BSH. In this regard, Mr CLH referred to a letter from Dr Y to the Tribunal dated 12 May 2015 which noted as follows:

He [Mr NXH] understands that he has an impending court date with the Guardianship Board with regards to his son wanting to take over his financial affairs. He also understands that he will be seeing a clinical neuropsychologist in the next week or so who will be assessing him from the cognitive perspective.

34. Mr CLH contended that this was not the application made by him and the only way the doctor could have formed this mistaken impression was if he had been incorrectly advised this by Mrs NMG and/or Ms BSH.

35. There was also evidence from Ms KDH responding to allegations made against her by Mrs NMG and Ms BSH in affidavits previously filed by them. In summary, Ms KDH denied she had ongoing mental health and substance-abuse issues, denied she represented any risk of disruption to Mr NXH and asserted that she wished to maintain a full and regular relationship with Mr NXH but was prevented from so doing by the actions of Mrs NMG and Ms BSH.

36. Mrs NMG and Ms BSH filed evidence denying that they had limited access to Mr NXH. They alleged that the relationship between Mr CLH and Ms KDH on the one hand and their father on the other had deteriorated before long their father's hospitalisation because of actions taken by both Mr CLH and Ms KDH. According to Mrs NMG and Ms BSH, the medical team had restricted the access of Mr CLH and Ms KDH based on concerns for his health. Mrs NMG and Ms BSH denied they had personally denied access. Any denial of access was by direction or recommendation of the medical team and/or Mr NXH himself. Mr NXH was the one who made decisions about these matters and he could and should continue to do so.

37. The NSW Trustee and Guardian provided a report dated 27 May 2015 indicating that Mr NXH's known estate comprised approximately $6.5 million together with shareholdings and real estate interests which had not yet been quantified. According to the NSW Trustee and Guardian, the private managers, Mrs NMG and Ms BSH, had complied with all NSW Trustee and Guardian requirements had responded to requests and a timely fashion. In particular, the NSW Trustee and Guardian noted as follows:

Should it be determined by the Tribunal that an ongoing financial management order is required then NSWTG support the appointment of the current managers.

38. The Tribunal was also provided a report from a professional services network firm dated 27 May 2015 which gave an update on audit action being taken by the Australian Taxation Office (ATO) in relation to Mr NXH and a number of related companies. Because this report was said to contain privileged material, it was not distributed to all parties. However, it is relevant to note that report confirmed that the audit was continuing and the professional services network firm were undertaking legal work and correspondence with the ATO in relation to the audit.

38. The Tribunal was also provided with correspondence from carers, copies of extracts of records from a public hospital and evidence from people outside the family attesting to matters relating to access. Some of the issues raised in this further evidence were contentious, for instance relating to access, some matters were not. It is not necessary to fully recount the details of this evidence for the reasons later appearing in these reasons.

Guardianship

40. Based on the evidence of Dr Z, the Tribunal is not satisfied that Mr NXH has a disability which prevents him making important decisions about his medical care and treatment. Nor was the Tribunal satisfied Mr NXH was unable to make decisions about his accommodation or health care. However, it is relevant to note that while Dr Z concluded Mr NXH had capacity to make decisions "pertaining to his general lifestyle," she did not specifically address issues relating to access and, in particular, whether Mr NXH may be unduly influenced by the views of others. She found that Mr NXH's overall level of general cognitive functioning was "less good than what one would typically associate with mild cognitive impairment" and noted, in the financial context, that he may be vulnerable to exploitation. This may make Mr NXH vulnerable to undue influence.

41. Both Mr CLH and Ms KDH asserted this in their affidavits. In contrast, Mrs NMG and Ms BSH strenuously denied this allegation in their affidavits. Mr NXH did not file and serve any evidence addressing this issue.

42. Given the proposed resolution between the parties, the Tribunal was not called upon to determine this issue. Accordingly, it was not necessary for the Tribunal to test the disputed evidence or to undertake further inquiry other than to satisfy itself whether the proposed terms were appropriate in the circumstances of the case.

43. The Tribunal determined not to make the consent orders sought and dismissed the guardianship application for the following reasons:

1. There was evidence before the Tribunal (i.e. in the report of Dr Z at paragraphs 136 and following), which was consistent with Mr NXH's presentation during the hearing, to the effect that Mr NXH may be potentially unable to manage certain aspects of his person.

2. Notwithstanding this evidence, the preponderance of evidence was that Mr NXH was well able to make many decisions regarding his person and did not need a substitute decision maker to make decisions for him in relation to many of his 'general lifestyle' issues.

3. The question of whether the Tribunal should exercise its discretion to make a guardianship order is informed by the mandatory considerations set out in s 14(2), the general principles in s 4 and, in this case, the prohibition on making a plenary guardianship order when a less restrictive option would be available.

4. It was clear from Mr NXH's evidence to the Tribunal that he would object to the imposition of a broad and restrictive plenary order. Mr NXH asserted on a number of occasions that he was able to make many decisions himself. The uncontroverted evidence is that Mr NXH has been independent for many years and has amassed considerable wealth from a modest start in life. He is proud of his achievements and would clearly oppose all important decision-making about his person being delegated to others.

5. The Tribunal was therefore not satisfied that, even if Mr NXH was a person for whom a guardianship order could be made, a plenary order or a limited order (with specific decision making functions) should be made. A plenary order is not justified or warranted. Moreover, there was no evidence of decisions that need to be made for Mr NXH that cannot otherwise be made by him or informally with the assistance of Mrs NMG and/or Ms BSH.

6. As matters presently stand, Mrs NMG and Ms BSH have been appointed as enduring guardians for Mr NXH with decision making functions, in the event they are needed, in respect of Mr NXH's accommodation, medical and dental treatment, health care and services. The appointment does not give Mrs NMG and Ms BSH authority to make decisions on Mr NXH's access to others. All parties agreed that Mr NXH should expressly retain this right.

7. It was also agreed by the parties that it would be in all parties' interests, including Mr NXH, for this issue to be clarified so there is no confusion or misapprehension that Mrs NMG and Ms BSH have authority to restrict access to Mr NXH. It was further agreed by Mrs NMG and Ms BSH that they would provide medical reports about Mr NXH to Mr CLH. While the Tribunal is not empowered to make such orders or enforce such an agreement, there is benefit in the Tribunal formally noting the agreement between the parties.

44. Accordingly, the Tribunal decided not to make a guardianship order and dismissed the application but noted the acknowledgments and agreement between Mrs NMG, Ms BSH and Mr CLH as follows:

1. That Ms BSH and Mrs NMG accept that the appointment of enduring guardian dated 11 February 2009 does not authorise them to make decision for Mr NXH in relation to his access to others.

2. That Ms BSH and Mrs NMG will not make or purport to make decisions for Mr NXH in relation to his access to others.

3. That Ms BSH and Mrs NMG will provide to Mr CLH's solicitors all medical reports regarding Mr NXH within a reasonable period of time but no longer than seven (7) days after receipt of the same.

Financial management

45. When the previous order was made, the Tribunal found that Mr NXH was not capable of managing his financial affairs.

46. There is no new evidence that contradicts these findings. Indeed the report of Dr Z supports the previous finding that Mr NXH is not able to manage his financial affairs. The financial management order cannot be revoked on this basis.

47. When the previous order was made, the Tribunal was also satisfied that it was in Mr NXH's best interests for a financial management order to be made. The Tribunal noted that Mr NXH's assets, including related party assets, were in the vicinity of $100 million. It also noted that there was potential liability as a result of an ATO audit in the sum of $20 million. The Tribunal found that Mrs NMG and Ms BSH had potential conflicts of interest, being those identified in the reasons for decisions, and further found at [52] and [53] as follows:

52. Having regard to this evidence, the Tribunal was not satisfied that it would be [Mr NXH]'s best interests for [Mrs NMG] and [Ms BSH] to continue to manage his finances unsupervised, through the authority of the enduring power of attorney.

53. Given it is clear that [Mr NXH]'s finances need to be managed and informal management or management through the enduring power of attorney would not be satisfactory, the Tribunal determined that there is a need to appoint someone to manage [Mr NXH]'s affairs and it is in his best interests that an order be made. The Tribunal also noted that the appointment of a private manage would necessarily involve direction and supervision from the New South Wales Trustee and Guardian.

48. There is no new evidence that contradicts these findings. The position remains that Mrs NMG and Ms BSH have a potential conflict of interest, there is an ATO audit that has the potential to substantially affect Mr NXH's assets and it remains in Mr NXH's best interests that Mrs NMG and Ms BSH manage his finances and, in particular, make decisions in respect of the ATO audit, under the supervision and directions of the New South Wales Trustee and Guardian.

49. Accordingly, the Tribunal confirmed the financial management order and in so doing also had regard to the views of the parties, including Mr NXH, that the current financial management order should continue.

50. Mr CLH submitted that the order should be reviewed in 12 months. The reason given for this submission was that Mr CLH considered it would be beneficial to have further reports from the New South Wales Trustee and Guardian about financial management. In particular, it was submitted that any report would highlight deficiencies or mismanagement by Mrs NMG and Ms BSH.

51. The Tribunal declined to make the financial management order reviewable in 12 months for two reasons.

52. First, if there is any deficiency or serious mismanagement by Mrs NMG and/or Ms BSH identified by the New South Wales Trustee and Guardian in its supervisory role, it is likely this matter would be brought to the attention of the Tribunal by the New South Wales Trustee and Guardian requesting a review of their appointment. If Mr CLH became aware of or concerned about any issues, he could also request a review of either the financial management order or the appointment of Mrs NMG and Ms BSH as financial managers. Secondly, to require the financial management order to be reviewed in 12 months' time would necessitate a further hearing. Mr NXH told the Tribunal he found the process before the Tribunal stressful and he was anxious not to be put to the expense and inconvenience of having a further hearing. Mr NXH, through his legal representative, requested that the financial manager management order not be reviewable.

53. Given there was no mismanagement established, the New South Wales Trustee and Guardian supported the continued appointment of Mrs NMG and Ms BSH and there was evidence they had complied with all directions and requests made by the New South Wales Trustee and Guardian at the time of the report, the Tribunal was not satisfied that the financial management order should be reviewed in 12 months or that Mr NXH should be put to the expense, anxiety and inconvenience of a further Tribunal hearing. The review processes available to the parties under Divisions 2 and 3 of Part 3A of the Guardianship Act, whereby the parties can request a review of the financial management orders or a revocation of the appointment of the private financial managers, should be sufficient to protect Mr NXH's interests.

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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: 28 July 2015