OZL

[2020] NSWCATGD 46

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

OZL [2020] NSWCATGD 46

Hearing dates:

6 April 2020

Date of orders:

6 April 2020

Decision date:

06 April 2020

Jurisdiction:

Guardianship Division

Before:

D Jay, Senior Member (Legal)
Dr M Jarrett, Senior Member (Professional)
D R Sword, General Member (Community)

Decision:

Today’s hearing for Review of the Guardianship Order for OZL is adjourned to a day to be confirmed by the registry.

Catchwords:

GUARDIANSHIP – end-of-term review of guardianship order – purported revocation of guardianship arrangements – revocation instrument invalid and invalidly made – appointment of enduring guardian of no effect if guardianship order in place.

INTERLOCUTORY – adjournment – reasonable opportunity to be heard – parties not contactable or refuse to participate – opportunity to consider late documents – hearing adjourned.

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 38(5)-(6), 51

Guardianship Act 1987 (NSW), ss 4, 6C, 6I; Division 4

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

003: Review of Guardianship Order

OZL (the person)
Public Guardian (appointed guardian)
XAL (carer)
TYD (spouse)

Representation:

Nil

File Number(s):

NCAT 2019/00090350

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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

STATUTORY REVIEW OF GUARDIANSHIP ORDER

Background

1. OZL is 84 years old and resides at an aged care facility in southern Sydney. He is reported to have limited English language skills.

2. His first wife died in 2015. He has no children. He is in contact with his nephew, XAL.

3. OZL married TYD in July 2016. She returned to Europe in October 2016. She again came to Australia on 25 April 2019. She is reported to be residing in Australia on a one-year tourist visa.

4. Applications for guardianship and financial management were lodged by a representative of the South Eastern Sydney Local Health District on 25 March 2019. On 11 April 2019 the Tribunal appointed XAL as OZL’s guardian for a period of 12 months. It also appointed XAL as the Financial Manager.

5. On 6 May 2019, applications for a Requested Review of a Guardianship Order and to Review or Revoke a Financial Management Order were lodged with the Tribunal by TYD.

6. On 28 October 2019 the Tribunal appointed the Public Guardian as OZL’s guardian with the functions of accommodation with powers to “authorise others”, health care, medical/dental consents, services, legal services and an authority to override OZL’s objections to medical treatment. On the same date the Tribunal revoked the appointment of XAL as the financial manager and committed the estate of OZL to the NSW Trustee and Guardian.

7. The matter before this Tribunal was an End of Term Review of the 28 October 2019 guardianship order.

8. Prior to the hearing a Tribunal officer was advised that OZL would be assisted to participate by telephone by staff from the aged care facility and TYD would participate by telephone with her daughter.

9. The Public Guardian provided a written view dated 30 March 2020.

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

What did the Tribunal have to decide?

11. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.

12. In respect of any application involving a person for guardianship or financial management orders, there is a presumption that the person has capacity to make their own decisions, until there is sufficient evidence before the Tribunal to rebut that presumption.

13. The presumption is a threshold issue for the Tribunal that arises following an application being properly made, where the Tribunal must examine the relevant incapacity of a person subject to an application to manage that person’s lifestyle decisions and/or finances.

14. In circumstances where the threshold issue is established, the Tribunal will consider all relevant evidence concerning the person’s ability to make their own decisions. The Tribunal must examine and consider any arrangements which have already been put in place in respect of substitute decision making for the person, providing those arrangements are in the best interests of the person, appropriate and that the person to whom the application relates has some knowledge of them. At all times the Tribunal must adopt the least restrictive approach when considering the making of guardianship or financial management orders and the welfare and interests of OZL are the paramount consideration of the Tribunal.

Evidence provided to the Tribunal

15. Prior to the review hearing the Tribunal was provided with a number of documents including:

1. A document entitled Revocation of appointment of Enduring Guardian dated 4 March 2020 (the Revocation);

2. Appointment of Enduring Guardian dated 4 March 2020.

16. For the reasons discussed below the contents of those documents were not the subject of evidence or submissions, however, it is appropriate to make some observations regarding what those documents purport to do and the obvious defects they contain as they may affect OZL’s wellbeing pending a final hearing.

17. The Revocation purported to: “Revoke the appointment of [insert the name of each Enduring Guardian] [XAL], NCAT, [Mr V] (Public Trustee), The Public Guardian and the NSW Trustee and Guardian as my Enduring Guardian/s”. A witness certificate is provided by a solicitor who identifies herself in the following terms: Miriam Miryana Milivojevic, Lvl 38 MLC Centre, 19 Martin Place Sydney. She certified that “[OZL] appeared to understand the effect of this revocation and voluntarily executed the revocation in my presence”.

18. The Revocation is defective on its face. None of NCAT, Mr V, the Public Guardian or the NSW Trustee and Guardian are Enduring Guardians for OZL. A person is appointed as an Enduring Guardian by instrument in accordance with s 6C of the Guardianship Act1987 (NSW). The Public Guardian was appointed as OZL’s guardian by order of this Tribunal on 28 October 2019 in accordance with Division 4 of the Guardianship Act. The Public Guardian was not appointed by an instrument and is not an Enduring Guardian. The Revocation has no effect on the continuing appointment and authorities granted to the Public Guardian. We further note that it is axiomatic that OZL could not have understood the effect of the purported revocation when the solicitor who certified explaining it to him (and witnessed the document) did so on a fundamentally misinformed basis.

19. The Appointment of Enduring Guardians dated 4 March 2020 purported to appoint TYD and Ms Z as OZL’s Enduring Guardians. That document purported to give “UNLIMITED” powers in respect functions of accommodation, health care, personal services and medical/dental consents. It also purported to make decisions “About my finances and my estate”. Even if it were an effective instrument an Enduring Guardian has no authority to make decisions about a person’s finances and estate while a Financial Manager is appointed by this Tribunal.

20. Section 6I of the Guardianship Act provides:

(1)   A guardianship order made in respect of a person who has appointed an enduring guardian operates to suspend, for the duration of the order, all authority of the enduring guardian to exercise a function under the appointment.

(2)   If a person who is the subject of a guardianship order purports to appoint an enduring guardian, the purported appointment has no effect (our emphasis).

21. The document was again executed before, and purportedly explained by, Miriam Milivojevic.

22. The purported Appointment of Enduring Guardians made on 4 March 2020 has no effect. TYD and Ms Z have no authority to make any decisions in respect of OZL in reliance on the document. The Tribunal wishes to make it clear that the Revocation and Appointment of Enduring Guardians are of no force and effect because a letter signed by TYD and Ms Z was filed with the Tribunal on 2 April 2020 which stated:

On March 9, 2020, notice of revocation of guardianship, and legal appointing of new guardian(s) was duly sent to parties of interest in regards to (sic) appointee, [OZL].

I/We, TYD, and Ms Z, the legal guardians of [OZL], do by this instant notice seek to terminate and all agreements with [the aged care facility in southern Sydney], regarding the care and housing of [OZL] as of 1:00pm Sunday 5^th of April, 2020. This provides at least 24-hour notice for [OZL], his effects, and any paperwork to be signed by said new guardians to be made ready for the said time and date.

23. For the reasons given above, TYD and/or Ms Z are not the guardians for OZL. They have no authority to instruct the aged care facility in respect of his accommodation. Any decisions regarding his accommodation, health care, services and medical/dental consents are authorised to be made by the Public Guardian in accordance with the order of this Tribunal made on 28 October 2019. In addition, any decisions regarding his finances are to be made by the NSW Trustee and Guardian.

Adjournment

24. At present all hearings in the Guardianship Division of NCAT are being conducted remotely by telephone and/or videolink. For that reason, we attempted to contact all interested parties by telephone. The Tribunal was able to contact Mr V, representing the Public Guardian, an interpreter, and OZL at the aged care facility.

25. The Tribunal attempted to speak to OZL. We were advised by Ms Y, registered nurse at the aged care facility, that he was shaking his head and pushing the phone away. The Tribunal then attempted to speak to OZL through the interpreter to explain the purpose of the hearing. Again, OZL declined to participate.

26. The Tribunal tried several times to call TYD (the Tribunal was advised she would be with Ms Z). On each occasion the phone dropped out (that is it rang briefly but did not go to message bank and was not answered).

27. The Tribunal attempted a third time to speak with OZL without success.

28. At this point the Tribunal put to Mr V that the matter should be adjourned given that OZL declined to participate (for reasons that were not clear) and that TYD and Ms Z were not contactable.

29. The Tribunal may adjourn proceedings at any time and place: Civil and Administrative Tribunal Act2013 (NSW) (the Act), s 51. When considering whether to adjourn proceedings, the Tribunal has regard to the guiding principle of the Act to facilitate the just, quick and cheap resolution of the issues in the proceedings: s 36(1) of the Act. The Tribunal may also consider the principles in s 4 of the Guardianship Act including the paramount concern as to the welfare and interest of the person who is the subject of the proceedings. The Tribunal is required to take such steps as may be reasonably practicable to ensure that the parties understand the nature of the proceedings and have a reasonable opportunity to be heard or otherwise have their submissions considered: s 38(5) of the Act. The Tribunal is also required to ensure that all relevant material is disclosed to the Tribunal to enable it to determine all of the relevant facts in issue in the proceedings: s 38(6) of the Act.

30. Mr V submitted that an adjournment was the only option available. The Tribunal accepted that submission noting that it was unclear that OZL understood the purpose of the proceedings, TYD and Ms Z had not had an opportunity to be heard and that there was no immediate risk to OZL in circumstances where his accommodation was secure. Finally, Mr V noted that a report of Dr X dated 26 February 2020 was provided to him a few hours before the hearing regarding OZL’s capacity. It had been provided to him by the aged care facility’s legal team. As the guardian he is entitled to the opportunity to consider the contents of that document and respond if necessary.

31. For those reasons, the Tribunal adjourned the matter to a date to be fixed by the Registry. The orders made on 28 October 2019 appointing the Public Guardian remain in effect until the matter is next heard and determined.

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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 April 2021