NXO

[2015] NSWCATGD 53

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	NXO [2015] NSWCATGD 53
Hearing dates:	26 February 2015
Date of orders:	26 February 2015
Decision date:	26 February 2015
Jurisdiction:	Guardianship Division
Before:	S McCarthy, Senior Member (Legal) W Longley, Senior Member (Professional) J Fraser, General Member (Community)
Decision:	1.  Application for guardianship order dismissed.  2.  Application for financial management order dismissed.
Catchwords:	GUARDIANSHIP – person with a disability unable to give their view – disagreement among family members about what is in the person’s best interests – practicability of service provision without the need for a guardianship order – no need for an order – guardianship application dismissed   FINANCIAL MANAGEMENT – where enduring power of attorney instrument revoked and new enduring power of attorney instrument made appointing different attorney – Tribunal not satisfied the person lacked mental capacity to make the new instrument – enduring power of attorney instrument is in keeping with the person’s best interests and wishes – no need to appoint a financial manager – application for financial management dismissed
Legislation Cited:	Guardianship Act 1987 (NSW) Mental Health Act 2007 (NSW) Powers of Attorney Act 2003 (NSW)
Cases Cited:	H v H (unreported) NSW Supreme Court 20 March 2000 McD v McD (1983) 3 NSWLR 81 at 86 PY v RJS [1982] 2 NSWLR 700 Re GHI (a protected person) [2005] NSWSC 581
Category:	Principal judgment
Parties:	Mr NXO (subject person) Mr UAT (applicant) Mrs HDO (spouse of Mr NXO) The Public Guardian The NSW Trustee and Guardian
Representation:	Separate Representative
File Number(s):	58136
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 dismissed the application for guardianship made by Mr UAT concerning Mr NXO.

2. The Tribunal dismissed the application for financial management made by Mr UAT concerning Mr NXO.

Background

3. Mr NXO is aged 76 years who resides at a care facility in Regional NSW. Prior to residing at the care facility, Mr NXO was living with his second wife and carer, Mrs HDO, in his home in Regional NSW. Mr NXO is of Macedonian cultural background. Mr NXO has two sons from his first marriage, Mr EJO and Mr CKO who has died. His daughter-in-law is Ms BGO.

4. Mr UAT, nephew, made an application for guardianship and financial management concerning Mr NXO.

5. On 27 November 2012 Mr NXO made an enduring power of attorney appointing Mrs HDO and Mr EJO as his attorneys both jointly and severally. This appointment was revoked by Mr NXO on 26 July 2013. Mr NXO made an enduring power of attorney on 26 July 2013 appointing Mrs HDO as his sole attorney.

The Hearing

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

What did the Tribunal have to decide?

GUARDIANSHIP

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

• Is Mr NXO 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?

• 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?

Is Mr NXO 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?

8. 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/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" (section 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;

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 (section 3(2), Guardianship Act).

9. Dr Z stated in a report dated 11 December 2014 that Mr NXO was diagnosed with dementia in 2011 by Dr Y. Since that time his ability to manage his own affairs and give informed consent has been impaired. In a report dated 15 January 2013 Dr Z stated that Mr NXO requires assistance in managing his financial affairs.

10. Dr Y, Geriatrician, stated in a report dated 6 October 2011 that Mr NXO has an emerging dementing illness and the underlying pathology is probably Alzheimer's dementia.

11. The Tribunal is satisfied that Mr NXO has a disability, being cognitive impairment, which prevents him making important life decisions. He 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?

The views of Mr NXO

12. Mr NXO attended some of the hearing by telephone but because of his cognitive impairment it was difficult for the Tribunal to communicate with him. It was unclear whether he understood the nature of the Tribunal proceedings.

13. The parties attending the hearing were of the view that it would be in the best interests of Mr NXO that he be contacted during the hearing but due to his cognitive impairment that he not take part in the whole of the proceedings. The Tribunal decided to contact Mr NXO during the hearing.

Health professional assessments

14. An aged care assessment stated that Mr NXO has dementia and other medical conditions including heart disease, stroke, and incontinence. He is at risk of falls due to his disorientation and poor mobility. The assessment indicates that Mr NXO requires 24-hour care. He must be accompanied for all transfers, needs assistance with all personal care and is to have adequate food and fluid intake, requires bowel regime monitoring and supervision is required at night due to his confusion and disorientation. Mr NXO has poor mobility and balance and impaired judgment. He has been recommended for permanent residential care and respite care at high level.

15. An officer at the care facility stated that Mr NXO is not aware of his toileting needs. He requires nursing care and has episodes of being unsettled and wandering behaviours. Mr NXO resides in a shared ward at the care facility. He moved into the care facility on 12 February 2015.

The view of Mr UAT, nephew

16. Mr UAT stated that Mr NXO should have been given the opportunity to be trialled at home with care being provided by Mrs HDO and with support services. He said that Mrs HDO should be caring for her husband and he should not be residing in the care facility. When Mr UAT has visited Mr NXO, he has said to Mr UAT to "please take me home." Mr UAT said that Mrs HDO was resistant to obtaining a Webster pack for Mr NXO's medication because of the cost involved. He said that arrangements could have been made for Mr NXO to receive support from his family regarding his care needs rather than residing in a care facility.

17. Mr UAT stated that Mr EJO had supported the application for guardianship when it was made. He had submitted in his application that Mr EJO should be appointed as guardian for Mr NXO. However, as Mr EJO has subsequently submitted a statutory declaration stating that he does not support the application, Mr UAT proposed that he be appointed as guardian for Mr NXO.

18. Mr UAT expressed strong concerns that Mrs HDO is proposing to sell Mr NXO's investment property to fund an accommodation bond for Mr NXO at the care facility. He said that there are care facilities where such a bond or payment is not required and that this should have been the guiding factor in deciding on the appropriate accommodation. Mr UAT stated that if the property is sold then Ms BGO and her children will not have a place to live. He submitted that a guardianship order should be made so that Mr NXO moves from his current accommodation and into alternative accommodation where there is no need to sell the investment property to pay for an accommodation bond.

The views of Mr EJO, son

19. Mr EJO did not attend the hearing. He stated in a statutory declaration dated 25 February 2015 that the applications for guardianship and financial management concerning Mr NXO were lodged without his consent. He stated that Mrs HDO is his father's closest relative and she holds his father's power of attorney. His father and stepmother have a loving and caring relationship and she has been jointly in charge of the household finances and the general running of the matrimonial home since she has been married and living with his father. She is totally competent in her role as manager. He opposes the appointment of Mr UAT as guardian for Mr NXO. He stated that his stepmother is perfectly capable and well positioned to be his father's guardian and she would consult him in respect of any decisions as she always has.

The views of Mrs HDO, wife

20. Mrs HDO stated that she is no longer able to care for her husband in his home and he needs to reside in a care facility because of his care needs. She said it is a very difficult decision for her husband to be in care. She said that she has been fully caring for her husband for the past two years. A Macedonian interpreter assisted Mrs HDO in interpreting questions and evidence given at the hearing.

The views of the separate representative

21. The separate representative stated that there is no need for the making of a guardianship order. She said that she visited Mr NXO at the care facility and noted his care needs.

The effect of an order on Mr NXO's family relationships/cultural or linguistic environment.

22. An order may have an effect on Mr NXO's family relationships as decisions made by the guardian might be opposed by family members.

Are there decisions which need to be made by a guardian?

23. Mr NXO is residing in a care facility. This decision was made by Mrs HDO and is supported by an aged care assessment which indicates that Mr NXO requires 24- hour round the clock care because of his high care needs. Mr UAT seeks that an order be made so that Mr NXO moves from his current accommodation to alternative accommodation so that the investment property owned by Mr NXO and where Ms BGO and her family are residing is not sold. Mr NXO's care needs are significant including medical conditions of heart disease, stroke, incontinence and impaired judgment. He is at risk of falls due to his disorientation and poor mobility and must be accompanied for all transfers. Mr NXO needs assistance with all personal care, requires bowel regime monitoring and supervision is required at night due to his confusion and disorientation. He has been recommended for permanent residential care and respite care at high level. The decision for Mr NXO to move into care is in accordance with this health professional assessment. Further, Mr EJO supports the decisions made by Mrs HDO regarding Mr NXO's care.

24. The Tribunal is required to consider the principles set out in section 4 of the Guardianship Act. This includes that the welfare and interests of Mr NXO are of paramount consideration. Further, the Tribunal is required to consider whether the practicability of services can be provided without the need to make a guardianship order. Mr NXO is appropriately accommodated in accordance with the health assessment. A guardian cannot mandate that Mrs HDO care for her husband at home. It is the welfare and best interests of Mr NXO that the Tribunal is required to consider in determining the need for a guardianship order.

25. Mrs HDO is the 'person responsible' and can provide substitute consents for Mr NXO concerning his health care and medical treatment. The Tribunal is not satisfied that there is a need for a guardianship order to be made for Mr NXO and decided to dismiss the application for guardianship.

26. Having decided the application should be dismissed, on the basis that the Tribunal should not make a guardianship order for Mr NXO, there was no need to address the other questions set out above.

FINANCIAL MANAGEMENT

27. The questions which had to be decided by the Tribunal in relation to financial management were:

• Is Mr NXO incapable of managing his affairs?

• Is there a need for another person to manage Mr NXO's affairs and is it in his best interests for a financial management order to be made?

• If so, who should be appointed financial manager?

Is Mr NXO incapable of managing his affairs?

28. A person's capability to manage his or her affairs was considered by Campbell J in the NSW Supreme Court in Re GHI (a protected person) [2005] NSWSC 581. Campbell J affirmed the approach enunciated in PY v RJS [1982] 2 NSWLR 700 by Powell J, at paragraph 7:

"It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears:

(a) that he or she is incapable of dealing, in a reasonably competent fashion with the ordinary routine affairs of man; and

(b) that by reason of that lack of competence there is shown to be a real risk that either

(i)   he or she may be disadvantaged in the conduct of such affairs; or

(ii)    that such moneys or property that he or she may possess may be dissipated or lost...it is not sufficient in my view merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner..."

29. Young J in H v H (unreported) NSW Supreme Court 20 March 2000, in dealing with the capacity test as it has been enunciated in NSW, said that dealing with the "ordinary affairs of man" does not simply mean being able to go to the bank and draw out housekeeping money. Most people's affairs, his Honour said,

"are more complicated than that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one's family and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills."

30. It should be noted that 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).

31. Dr Z stated in a report dated 11 December 2014 that Mr NXO was diagnosed with dementia in 2011 by Dr Y. Since that time his ability to manage his own affairs and give informed consent has been impaired. In a report dated 15 January 2013 Dr Z stated that Mr NXO requires assistance in managing his financial affairs. Dr Y, Geriatrician, stated in a report dated 6 October 2011 that Mr NXO has an emerging dementing illness and the underlying pathology is probably Alzheimer's dementia.

32. The Tribunal was satisfied that Mr NXO is incapable of managing his financial affairs. He is not able to deal with his financial affairs or plan for his financial future. He has impaired judgment, confusion and disorientation.

Is there a need for another person to manage Mr NXO's affairs and is it in his best interests for a financial management order to be made?

The views of Mr NXO

33. Mr NXO attended the hearing by telephone but because of his cognitive impairment it was difficult for the Tribunal to communicate with him. It was unclear whether he understood the nature of the Tribunal proceedings.

34. The parties attending the hearing were of the view that it would be in the best interests of Mr NXO that he be contacted during the hearing but due to his cognitive impairment that he not take part in the whole of the proceedings. The Tribunal decided to contact Mr NXO during the hearing.

35. Mr NXO receives an age pension and owns two properties at Regional NSW (Property A and an investment property, Property B). Mr NXO has a reverse mortgage of around $75,000. He has shares and savings in an insurance company.

36. An enduring power of attorney was made by Mr NXO on 26 July 2013 appointing Mrs HDO as his attorney. The power of attorney operates when the attorney considers that Mr NXO needs assistance with his financial affairs. The power of attorney provides that the attorney can give reasonable gifts as provided by section 11(2) Powers of Attorney Act 2003 (NSW).

The views of Mr UAT

37. Mr UAT submitted that a financial manager should be appointed for Mr NXO. He considers that the decisions made by Mrs HDO regarding Mr NXO's assets and moneys have not been made in Mr NXO's best interests. He stated that Mr NXO's statements from Bank A indicate that during the period July 2013 to early 2014 there was around $14,000 withdrawn in lump sums from his account. Mr UAT said that Mrs HDO sends large amounts of money to her family in Macedonia. He understands that Mrs HDO owns a property in Macedonia and wishes to know whether the property was purchased from funds that she has obtained by utilising Mr NXO's income and savings to cover her own expenses and outgoings. He said that as an attorney under a power of attorney she should not be using Mr NXO's money for her own benefit.

38. Mr UAT stated that Mr NXO could reside at home or at a care facility in Regional NSW where there is no up-front accommodation bond payable. This would mean that the investment property at Regional NSW would not need to be sold so that Mr NXO's three grandchildren are not homeless. He stated that there are alternatives to meet Mr NXO's care costs which would not necessitate the sale of the house. He is concerned as to how the balance of the sale proceeds from the property will be managed. Mrs HDO controls three pensions being her own, Mr NXO and her mother together with carer allowances and she should be able to pay for Mr NXO's care expenses without selling the investment property where Ms BGO and her children reside.

39. Mr UAT stated that Mrs HDO refused to obtain a Webster pack for Mr NXO's medication claiming that it was too expensive.

40. Mr UAT referred to the diagnosis of dementia made by Dr Y in 2011 and submitted that Mr NXO would not have had the capacity to make an enduring power of attorney in 2013. He said that his dealings with Mr NXO around this time supported his concerns.

41. Mr UAT stated that the NSW Trustee and Guardian should be appointed as the financial manager for Mr NXO.

The views of Ms BGO

42. Ms BGO stated that there are current proceedings in the Supreme Court of NSW regarding her claim for occupation and ownership of Mr NXO's investment property in Regional NSW which are listed for mediation on 4 March 2015.

The views of Mr EJO, son

43. Mr EJO did not attend the hearing. He stated in a statutory declaration dated 25 February 2015 that the applications for guardianship and financial management concerning Mr NXO were lodged without his consent. He stated that Mrs HDO is his father's closest relative and she holds his power of attorney. He stated that his father and stepmother have a loving and caring relationship and she has been jointly in charge of the household finances and the general running of the matrimonial home since she has been married and living with his father. She is totally competent in her role as home manager. He opposes the appointment of Mr UAT as guardian for Mr NXO. He stated that his stepmother is perfectly capable and well positioned to be his father's guardian and she would consult him in respect of any decisions as she always has.

The views of Mrs HDO, wife

44. Mrs HDO stated that she is no longer able to care for her husband in his home and he needs to reside in a care facility because of his care needs. A Centrelink aged care assessment has been completed to determine the amount of the accommodation bond. Mrs HDO is seeking to sell the investment property to fund the accommodation bond for Mr NXO which is around $178,000. She said that money was withdrawn from Mr NXO's account during the period July to October 2013 and deposited into an incentive saver account with Bank B for a funeral fund in their joint names. Mrs HDO showed the Tribunal a statement from Bank B with a note that the amount in this account was $10,000.

45. Mrs HDO stated that she has not utilised moneys from Mr NXO to send to her family overseas. She said that there were moneys that were inherited by her family that have been utilised by them. She said that money withdrawn from Mr NXO's account has been used for his purposes and to maintain his assets. She said that she assisted her husband in managing his financial affairs including his banking and provided more assistance for a period of around 18 months prior to him moving into the care facility.

46. A Macedonian interpreter assisted Mrs HDO in interpreting questions and evidence given at the hearing.

The views of Mr TFI, solicitor

47. Mr TFI witnessed the enduring power of attorney made by Mr NXO on 26 July 2013. He stated that he explained the document to Mr NXO and he appeared to understand the nature and effect of the document. Mr NXO was able to give instructions as to the new enduring power of attorney document and to revoke the earlier power of attorney.

The views of the separate representative

48. The separate representative stated that there is no need for the making of a financial management order. She said that she visited Mr NXO at the care facility and noted his care needs. She said that there is no evidence that Mrs HDO has acted inappropriately and that Mr NXO's needs must outweigh any other person's needs. The Supreme Court is the appropriate jurisdiction to determine the occupation and ownership issue of the investment property.

Decision

49. Mr UAT submitted that a financial manager should be appointed for Mr NXO. He stated that Mr NXO's Bank A statements indicate lump sum withdrawals during the period July 2013 to early 2014. He said that Mrs HDO sends large amounts of money to her family in Macedonia. Mr UAT stated that Mrs HDO owns a property in Macedonia and has used Mr NXO's income and savings to cover her own expenses and outgoings so she can send money to her family overseas. Mr UAT stated that Mr NXO could reside at a care facility in Regional NSW where there is no up-front accommodation bond payable or at home. This would mean that the investment property at Regional NSW would not be sold so that Mr NXO's three grandchildren and Ms BGO are not homeless. He stated that there are alternatives to meet Mr NXO's care costs which would not necessitate the sale of the house.

50. Mr UAT referred to the diagnosis of dementia made by Dr Y in 2011 and submitted that Mr NXO would not have had the capacity to make an enduring power of attorney in 2013.

51. Mrs HDO stated that moneys were withdrawn from Mr NXO's Bank A account in 2013 for a funeral fund. She said that money withdrawn from Mr NXO's account have been used for his purposes and to maintain his assets. The amounts withdrawn from Mr NXO's account on a monthly basis have remained consistent over a long period of time (apart from a period in the second half of 2013 which is dealt with below) including an extended period of time prior to his diagnosis of dementia. Mr NXO's Bank A account balance has remained stable over a significant period of time both before and after the diagnosis of cognitive impairment. Mr UAT has not been able to substantiate any allegations he has made that Mrs HDO has been using Mr NXO's money inappropriately. The building society account statements do not support Mr UAT's allegations and Mrs HDO has provided an explanation as to the basis for the lump sum withdrawals in the second half of 2013. The proposed sale of Property B is in order to pay for the care facility accommodation bond for Mr NXO.

52. The Tribunal understands that care facilities from 1 July 2014 are requiring payment of an accommodation bond or equivalent payment. Even if Mr NXO moves to another care facility it is likely that an accommodation bond or other payment is to be made in accordance with the Centrelink assets assessment. He does not have sufficient savings to pay an accommodation bond. There is a need to ensure that Mr NXO's care needs are given paramount consideration and that his assets are used in his best interests. Ms BGO has brought Supreme Court proceedings regarding the ownership and occupation of Mr NXO's investment property. A determination as to her rights and interests regarding this property is not within the jurisdiction of this Tribunal.

53. Mr UAT raised doubts about the mental capacity of Mr NXO to make an enduring power of attorney on 26 July 2013. He stated that from his own interactions with Mr NXO and the diagnosis of dementia made by Dr Y in 2011 that Mr NXO would not have understood the making of an enduring power of attorney in 2013. Mr NXO made an enduring power of attorney on 27 November 2012 appointing Mrs HDO and Mr EJO as his attorneys both jointly and severally. This appointment was revoked by Mr NXO on 26 July 2013. Mr NXO signed an enduring power of attorney on 26 July 2013 appointing Mrs HDO as his attorney. The later power of attorney made on 26 July 2013 continues the appointment of his wife as his attorney and removes his son as attorney. Mr EJO supports the management of his father's affairs by Mrs HDO and the decisions made by her. While Mr NXO was diagnosed in 2011 with dementia and his ability to manage his own affairs and give informed consent has been impaired, there is no assessment as to his mental capacity to make an enduring power of attorney. There was no assessment in 2013 around the time of the making of the enduring power of attorney as to Mr NXO lacking the mental capacity to make such a document. A health professional report dated 15 January 2013 indicates that Mr NXO requires assistance in managing his financial affairs but does not given an opinion about his capacity to make an enduring power of attorney so that he can be assisted in managing his financial affairs. The enduring power of attorney document made on 26 July 2013 is consistent with the wishes of Mr NXO regarding the assistance provided by his wife in dealing with his financial affairs over an extended period of time. It is accordance with the wishes of Mr EJO. Further, Mr TFI, solicitor, gave evidence that Mr NXO understood the nature and effect of the making of the enduring power of attorney on 26 July 2013.

54. Based on the evidence in the proceedings the Tribunal is not satisfied that Mr NXO lacked the mental capacity to make the enduring power of attorney on 26 July 2013.

55. Mr NXO has made an enduring power of attorney on 26 July 2013 where he appointed Mrs HDO to act on his behalf regarding his financial affairs. Mrs HDO is able to act under this legal document to deal with Mr NXO's financial affairs. There is no need to interfere with this arrangement. There has been no substantiation of the allegations made by Mr UAT concerning Mrs HDO's dealings with Mr NXO's assets and income. The Tribunal was not satisfied that there is a need to appoint someone to manage Mr NXO's affairs nor is it in his best interests that an order be made.

56. The application for financial management is dismissed.

**********

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: 29 June 2016