OT v OU

[2010] NSWADTAP 9

Appeal Panel - External

CITATION:	OT v OU [2010] NSWADTAP 9
PARTIES:	APPELLANT OT in 098006 OY in 098008 RESPONDENT OU, The Public Guardian, OY OU, The Public Guardian, OT
FILE NUMBER:	098006, 098008
HEARING DATES:	12 February 2010
SUBMISSIONS CLOSED:	12 February 2010
DATE OF DECISION:	24 February 2010
BEFORE:	Hennessy N - Magistrate (Deputy President); Higgins S - Judicial Member; Field B - Non-Judicial Member
CATCHWORDS:	Guardianship and financial management orders – review – leave to review merits – Guardianship Act 1987, ss 4, 14
DECISION UNDER APPEAL:	C/41350
FILE NUMBER UNDER APPEAL:	2009/948, 2009/949
LEGISLATION CITED:	Guardianship Act 1987 (NSW)
CASES CITED:	IF v IG & Ors [2004] NSWADTAP 3 KA v Public Guardian [2004] NSWADTAP 25 KV v Protective Commissioner & Ors; KW & Ors v KV & Ors (No 2) [2004] NSWADTAP 48 K v K [2000] NSWSC 1052 S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886 (17 August 2000)
REPRESENTATION:	APPELLANT D Roberts, barrister RESPONDENT S Sirtes, barrister
ORDERS:	1. Leave is refused for the appeal to extend to the merits of either of the Guardianship Tribunal’s decisions in relation to OY 2. The decision of the Guardianship Tribunal that OY be placed under guardianship and that her guardian be the Public Guardian is affirmed 3. The decision of the Guardianship Tribunal that the estate of OY be subject to management under the Protected Estates Act 1983 (as it then was) and that management of the estate be committed to the Protective Commissioner (now the NSW Trustee) is affirmed.

Introduction

1 OY is an 85 year old woman who lives alone. She has been diagnosed as having moderate dementia. A former neighbour and close friend, OT, has been helping her with her everyday affairs. On 22 December 2008, OY appointed OT as her enduring guardian and attorney. Those documents were prepared and witnessed by a solicitor, Mr Pickering. At about the same time, OY’s niece, OU became concerned that OT may be financially exploiting her aunt and applied to the Guardianship Tribunal for a guardianship order and a financial management order. Shortly after that application was made OY changed her will to make OT the principle beneficiary.

2 OY strongly expressed her view to the Guardianship Tribunal that OT should be her guardian and manage her financial affairs. She had already appointed OT to perform those roles and he was prepared to continue to carry them out. While finding that there was no evidence that OT had used OY’s resources in any significant way for his own interests, the Guardianship Tribunal made a guardianship order appointing the Public Guardian for 12 months and a financial management order appointing the Protective Commissioner (now the NSW Trustee) as OY’s financial manager. Those orders have the effect of suspending the appointment of OT as the enduring guardian: Guardianship Act 1987, s 6I.

3 Both OY and OT have appealed against the Guardianship Tribunal’s decision. OY has appealed against both the guardianship order and the financial management order while OT has only appealed against the guardianship order. An appeal may be made as of right on a question of law and with leave on other grounds: Administrative Decisions Tribunal Act 1997 (ADT Act), s 118B(1).

Guardianship Tribunal’s decision

4 Guardianship decision. The Guardianship Tribunal identified the issues to be determined as:

1. whether OY was a person for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

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

3. who should be the guardian; and

4. how long should the order last.

5 The Guardianship Tribunal then summarised the evidence and addressed each issue it had identified. In relation to the first issue, the Guardianship Tribunal was satisfied that OY was a person with a disability and that because of that disability she was “totally or partially incapable of managing his or her person”: Guardianship Act 1987, s 14, and s 3. No appeal was made against that finding.

6 On the question of whether the Guardianship Tribunal should make a guardianship order, the relevant provision is s 14 of the Guardianship Act which states that:

(2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to:
(a) the views (if any) of:
(i) the person, and
(ii) the person’s spouse, if any, if the relationship between the person and the spouse is close and continuing, and
(iii) the person, if any, who has care of the person,
(b) the importance of preserving the person’s existing family relationships,
(c) the importance of preserving the person’s particular cultural and linguistic environments, and
(d) the practicability of services being provided to the person without the need for the making of such an order.

7 When addressing this issue, the Guardianship Tribunal is required to exercise a ‘structured discretion’ having regard to each of the matters set out in s 14(2). As well as having regard to those matters, the Guardianship Tribunal has a duty to observe the general principles that underpin the legislation which are set out in s 4 of the Guardianship Act: IF v IG & Ors [2004] NSWADTAP 3. Those principles include recognising ‘the importance of preserving the family relationships and the cultural and linguistic environments’ of the person. After recording the views of each of the parties and identifying decisions which needed to be made by a guardian, the Guardianship Tribunal decided that a guardianship order should be made.

8 On the question of who should be appointed as the guardian, the Guardianship Tribunal referred to the fact that it is not able to appoint the Public Guardian if there is a private person who can be appointed: Guardianship Act, s 15. The Guardianship Tribunal then set out the matters about which it had to be satisfied before appointing a private person as a guardian. Those matters are set out in s 17(1):

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

b) there is not 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.

9 The Guardianship Tribunal found that OT’s personality was compatible with OY’s, but was not satisfied as to the other two matters. The Guardianship Tribunal found that OY had a conflict of interest with OT in relation to financial matters and referred to its decision in relation to the application for financial management to support that conclusion. OT is the principal beneficiary under OY’s will and the Guardianship Tribunal found that he has ‘some interest’ in preserving her assets. In the Guardianship Tribunal’s words, “There is an issue as to whether appropriate services should be obtained to assist [OY] and whether her resources would be utilised in her interest and quality of life.” While emphasising that there was no evidence that OT had used OY’s resources for his own interests, the Guardianship Tribunal nevertheless had concerns that OT had not always operated at arms length from OY’s financial affairs, but rather had ‘intertwined’ his affairs with those of OY. The Guardianship Tribunal said:

Firstly it appeared that he had some difficulty in understanding that as an attorney, he should not intertwine his affairs with those of [OY]. He had offered to purchase her house and there was no evidence, other than his assertion, to suggest that what he was prepared to offer was in fact the market value of the property. He had also offered to purchase some shares from her. He had borrowed money to assist his son and he had utilised a cheque account to pay for shares for himself. He said that he had repaid the money for the shares and there was documentary evidence to prove that.

The Tribunal also took into account that the enduring guardianship, Power of Attorney and will have been prepared at a time when [OY] had a long-standing diagnosis of Alzheimer’s disease and significant memory deficits. We were particularly concerned that [OT] knowing this to be the case does not appear to have communicated this to Mr Pickering.

10 As well as finding that there was an undue conflict of interest, the Guardianship Tribunal was not satisfied that OT would be able and willing to exercise the functions of the guardian in accordance with the principles of the Guardianship Act. In particular, the Guardianship Tribunal was not satisfied that OT would observe the principle of preserving family relationships given that, in the Guardianship Tribunal’s view, he has not been able to communicate adequately with OY’s nieces.

11 The Guardianship Tribunal gave the Public Guardian the functions of accommodation, health care, medical and dental consent and services.

12 Financial management decision. The Guardianship Tribunal identified the issues to be determined as:

a) whether OY is incapable of managing her affairs;

b) whether there is a need for another person to manage her affairs and whether it is in her best interests for a financial management order to be made; and

c) who should be appointed financial manager.

13 After setting out the evidence, the Guardianship Tribunal concluded that OY was not capable of managing her affairs. The Guardianship Tribunal noted that OY had appointed OT as her attorney but said that it was unlikely that Mr Pickering was aware of the diagnosis of dementia at the time the enduring Power of Attorney was executed. The Guardianship Tribunal added that had he been aware of that diagnosis he may have required some medical evidence before allowing OY to execute that document. The Guardianship Tribunal concluded, in view of the history of OT’s dealings with OY’s financial affairs, that there was a need to appoint someone to manage OY’s affairs and that it was in her best interests that an order be made. Section 25M provides that, if the Guardianship Tribunal makes a financial management order, it may appoint a suitable person to manage the person’s estate or may commit the management of the estate to the Protective Commissioner (now the NSW Trustee). After weighing the pros and cons of appointing the NSW Trustee or OT as OY’s financial manager, the Guardianship Tribunal concluded that ‘in situations such as this where there is some conflict between family members and other persons who might be appointed as financial manager, such as OT, . . . the appointment of an independent person (the Protective Commissioner) has some advantages.’

Grounds of Appeal

14 Guardianship order- errors of law. OY adopted OT’s submissions in relation to the guardianship order. The grounds of appeal on a question of law can be summarised as follows:

a) breach of procedural fairness by not giving OT an adequate opportunity to respond to relevant information against him;

b) failing to take account of the principles in s 4 of the Guardianship Act;

c) making findings that were ‘against the evidence’.

15 Refusal to amend appeal. When making submissions OT’s legal representative said that his client had been given inadequate notice of the appeal and insufficient time to respond to medical reports. As these matters were not referred to in the Notice of Appeal, OT sought to amend the Notice accordingly. We refused that application because OT has been legally represented since the appeal was filed and it would have been unfair to expect OU’s lawyer to respond to new grounds of appeal at the hearing.

16 Procedural fairness Essentially procedural fairness in Guardianship Tribunal proceedings requires that a person with an interest in the proceedings be given a reasonable opportunity to respond to the substance of credible, relevant and significant material adverse to that person: KA v Public Guardian [2004] NSWADTAP 25. We are satisfied that OT has an interest in the proceedings: KV v Protective Commissioner & Ors; KW & Ors v KV & Ors (No 2) [2004] NSWADTAP 48. The material to which OT said he did not have an adequate opportunity to respond were allegations as to his lack of communication with OY’s nieces and his inability to recognise and respond to OY’s current and possible future needs for services and for alternative accommodation.

17 OT had three weeks’ notice of the hearing and took relevant documents with him to that hearing. The transcript discloses that OT was given a reasonable opportunity to address the Guardianship Tribunal in relation to communication issues and the extent to which he had provided for or planned for OY’s current and future needs. While OT disagrees with the Guardianship Tribunal’s findings on these matters, he was unable to satisfy us that there was any failure on the Guardianship Tribunal’s part to give him an adequate opportunity to provide evidence in relation to those matters. There has been no breach of procedural fairness.

18 Principles in s 4. The principles which OT said the Guardianship Tribunal did not recognise were those set out s s 4(b), (c), (d) and (f):

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,

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

19 Section 4 sets out the general principles under which persons, including the Guardianship Tribunal, must follow in exercising their functions under the Act. Those principles are intended as an aid to interpreting and applying the Guardianship Act as a whole and as a guide to the considerations the Guardianship Tribunal should observe when exercising its discretionary powers. The relevance and applicability of those principles will depend on all the circumstances of the case. Contrary to the implication in OT’s submission, none of the principles require the Guardianship Tribunal to make a particular finding or decision. Nothing put by OT satisfied us that the Guardianship Tribunal had made an error of law because it failed to observe any of the principles in s 4.

20 Findings ‘against the evidence’. OT submitted that the Guardianship Tribunal had made certain findings that were ‘against the evidence.’ A failure to give ‘sufficient weight’ to the evidence is not an error of law. The Guardianship Tribunal is obliged to make findings of fact based on logically probative evidence. Even if a finding is ‘against the evidence’ that does not constitute an error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 per Glass JA with whom Samuels JA agreed at 155-156. An error of law will only be made out in circumstances where there is no evidence to support the finding. Each of the Guardianship Tribunal’s findings was supported by evidence.

21 Other grounds of appeal. OT requires leave before appealing against factual findings made by the Guardianship Tribunal. OT appealed against the following factual findings:

a) that OT had a conflict of interest with OY’s financial affairs;

b) that OT could not or would not preserve OY’s family relationships because of the way he communicated with OY’s nieces;

c) that OT did not disclose to the solicitor, Mr Pickering, that OY had Alzheimer’s disease and that it is unlikely that he knew about that diagnosis.

22 Principles for granting leave. The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886 (17 August 2000). Those cases interpret s 67 of the Guardianship Act which is the equivalent provision in relation to appeals from Guardianship Tribunal decisions to the Supreme Court. In K v K, Young J observed at [10] that ‘it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67’, but went on to make a number of observations on this point: see para [10]-[15]. After considering the relationship between the Court and the Guardianship Tribunal, Young J observed at [15]:

It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

23 This passage provides guidance as to the circumstances in which the Appeal Panel would give leave to re-visit the merits of findings of fact made by the Guardianship Tribunal.

24 Conflict of interest. There was undisputed evidence that the current will makes OT the principal beneficiary of OY’s estate. It was uncontroversial for the Guardianship Tribunal to find that that comprises a financial ‘conflict of interest’. However, OT did not agree that the evidence supported a finding that that conflict was ‘undue’. The Guardianship Tribunal impliedly came to that view on the basis of evidence about OT’s interactions with OY’s financial affairs. OT’s lawyer pointed to evidence which, he said, supported a finding that OT had acted honestly and reasonably and had kept his bank accounts entirely separate from those of OY. The Guardianship Tribunal’s findings in relation to this issue are set out at [9] above. OT did not submit that those findings were incorrect, or had been reached in an unorthodox manner. Rather, he implied that they produced an unfair result because they should not have led the Guardianship Tribunal to conclude that he had an ‘undue’ conflict of interest. In our view, that conclusion was reasonably open to the Guardianship Tribunal on the evidence and should not be disturbed.

25 Lack of communication. The basis on which the Guardianship Tribunal concluded that it was not satisfied that OT was willing and able to preserve family relationships was the evidence about his communication with OY’s nieces. The Guardianship Tribunal recorded that OU gave evidence that there was little or no communication with OT. The Guardianship Tribunal found that OT did not appear to have consulted OU before taking OY to a solicitor for the purpose of appointing him as the guardian and attorney. OY also told the Guardianship Tribunal that OT had not told her when OY had been hospitalised recently after a fall. OT’s response was that OY had asked him not to contact her. The Guardianship Tribunal concluded that OT has been ‘unable to communicate adequately with important members of [OY’s] family’.

26 OT submitted that contrary to the Guardianship Tribunal’s finding, the evidence demonstrated that he had encouraged OY to communicate with her relatives and only failed to contact her nieces after her last fall because OY had specifically requested that he not do so. OT does not disagree with the Guardianship Tribunal’s findings but rather with the conclusion it reached on the basis of those findings. Again, that conclusion was reasonably open to the Guardianship Tribunal on the evidence and should not be disturbed.

27 Legitimacy of guardian and attorney appointments. The point which OT put most forcefully was that the Guardianship Tribunal should have called Mr Pickering as a witness to give evidence as to the circumstances in which OY had signed the power of attorney and enduring guardianship documents on 22 December 2008. The Guardianship Tribunal had contacted Mr Pickering during the investigation process and he had provided copies of those documents. OT gave detailed evidence to the Guardianship Tribunal about the circumstances surrounding his appointment as OY’s guardian and attorney. When asked whether he took any reports to Mr Pickering, OT said that there were no reports from the geriatrician (Dr Kainer) or from the aged care assessment team available at the time. There were parts of the transcript which appeared to deal with this issue but which were not transcribable. The Guardianship Tribunal recorded OT as saying that he thought he had mentioned OY’s diagnosis to Mr Pickering but was not sure. On the basis of all the evidence the Guardianship Tribunal concluded, in relation to the financial management order, that:

The Tribunal took into account that the enduring guardianship, Power of Attorney and will had been prepared at a time when [OY] had a longstanding diagnosis of Alzheimer’s disease and significant memory deficits. We were particularly concerned that [OT] knowing this to be the case does not appear to have communicated this to Mr Pickering.

28 OT said that Mr Pickering was available to give evidence to the Guardianship Tribunal on that issue and that the Guardianship Tribunal should have spoken to him rather than speculating about what happened.

29 The reason this ground of appeal must fail is that it was not a basis for the Guardianship Tribunal’s decision to make a guardianship order. The extract from the Guardianship Tribunal’s decision quoted above was part of the financial management decision and OT has not appealed against that decision. That conclusion is apparent from the Guardianship Tribunal’s reasons for decision. When addressing the issue of whether there was an ‘undue conflict’ of interest the Guardianship Tribunal said, “However, as noted in the section of these reasons dealing with financial management, the Tribunal reached the view that [OT] had a conflict of interest with [OY] in relation to financial matters.” The relevant passage relating to conflict of interest in the reasons dealing with financial management is as follows:

As far as [OT] is concerned, as the principal beneficiary under the will, there is clearly some interest that he would have in preserving the assets. There is an issue as to whether appropriate services should be obtained to assist [OY] and whether her resources would be utilised in her interest and quality of life. [OT] offered to purchase the house and was frank in his continued interest in doing this. He has borrowed from [OY] on behalf of family members from whom a debt is still outstanding. He has, in summary, some conflict of interest in managing [OY]’s estate.

30 There is no reference in the Guardianship Tribunal’s findings about conflict of interest to any concern that OT had not communicated information about OY’s diagnosis to Mr Pickering. Consequently, we are not persuaded that the Guardianship Tribunal’s concern about that lack of communication referred to in the financial management decision, was relevant to its decision to make a guardianship order.

31 Financial Management Order- errors of law. As well as appealing against the guardianship order, OY appealed against the financial management order. The error of law identified by OY was that that the Guardianship Tribunal had failed to ensure that OY was legally represented at the hearing.

32 Legal representation. OY submitted that she should have been legally represented at the hearing. Section 58 of the Guardianship Act provides that a party may appear in person or, by leave, be represented by a legal practitioner or agent. The Guardianship Tribunal may also appoint a separate representative for a person ‘if it appears . . that the person ought to be separately represented’: s 58(3). A solicitor, Ms Quinn, was present at the Guardianship Tribunal hearing but did not seek leave to represent either OT or OY. In those circumstances, we do not agree that the Guardianship Tribunal made an error of law in allowing OY to participate in the hearing without legal representation.

33 Other grounds of appeal. OY requires leave before appealing against factual findings made by the Guardianship Tribunal. The factual finding against which OY appealed was the finding that OT did not appear to have told Mr Pickering about OY’s diagnosis. The basis for seeking leave was that the Tribunal made that finding without hearing from Mr Pickering. The principles for granting leave are as outlined above at [22].

34 Failure to call Mr Pickering. OT gave evidence to the Guardianship Tribunal as to what he told Mr Pickering on 22 December 2008. OT said that he did not provide any medical reports to Mr Pickering because he did not have copies of those reports at the time and that he was not sure whether he told Mr Pickering that OY had dementia. A member of the Guardianship Tribunal noted that they had not talked to Mr Pickering at that stage and added that ‘we should do that, that could be another thing that we could do. . .’ Despite that statement, the Guardianship Tribunal did not ask Mr Pickering to give evidence. The issue for the Guardianship Tribunal was not whether the appointment of OT as enduring guardian and attorney was valid, but rather whether OT disclosed to Mr Pickering any deficits in OY’s capacity. OT gave evidence about that issue and we are not persuaded that the Guardianship Tribunal’s finding on the basis of that evidence alone was unorthodox or unfair.

35 Conclusion. None of the questions raised by OT or OY constitute errors of law or justify the Appeal Panel re-visiting the merits of the Guardianship Tribunal’s decisions. We note that the guardianship order is due to expire on 28 April 2010 at which time OT will have another opportunity to satisfy the Guardianship Tribunal that he should be OY’s guardian.

1. Leave is refused for the appeal to extend to the merits of either of the Guardianship Tribunal’s decisions in relation to OY.

2. The decision of the Guardianship Tribunal that OY be placed under guardianship and that her guardian be the Public Guardian is affirmed.

3. The decision of the Guardianship Tribunal that the estate of OY be subject to management under the Protected Estates Act 1983 (as it then was) and that management of the estate be committed to the Protective Commissioner (now the NSW Trustee) is affirmed.