PND

[2020] NSWCATGD 23

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

PND [2020] NSWCATGD 23

Hearing dates:

7 February 2020

Date of orders:

7 February 2020

Decision date:

07 February 2020

Jurisdiction:

Guardianship Division

Before:

V Massey, Senior Member (Legal)
Professor C Willcox, Senior Member (Professional)
M L Williams, General Member (Community)

Decision:

Guardianship Application

1. A guardianship order is made for PND.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of one year from 7 February 2020.

4. This is a limited guardianship order giving the guardian(s) custody of PND to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where PND may reside.

b) Health care

To decide what health care PND may receive.

c) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where PND is not capable of giving a valid consent.

d) Services

To make decisions about services to be provided to PND.

CONDITION:

6. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring PND to an understanding of the issues and to obtain and consider their views before making significant decisions.

Financial Management Application

1. The estate of PND is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. The management of the estate of PND is committed to the NSW Trustee and Guardian.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – subject person is of advanced age – subject person has significant cognitive impairment – significant conflict within subject person’s close family - need for accommodation and health decisions – whether proposed guardian suitable to be appointed guardian – where a conflict of interest exists – proposed guardian’s accommodation interests conflicts with subject person’s financial needs – proposed guardian not suitable to be appointed guardian – Public Guardian appointed – order made.

FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their own affairs – subject person unable to recall bank balance – subject person lacks reasonably sound understanding of her assets and liabilities – subject person unable to identify circumstances where people may take advantage of her – best interests of the subject person that an order be made – significant conflict within subject person’s family – importance of preserving subject person’s family relationships - no private person suitable to be appointed – NSW Trustee and Guardian appointed – order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 3E(1), 4, 14, 14(2), 15(3), 17(1), 18(1)(a), 25M, 33A(4), 33A(4)(d)

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep

IF v IG [2004] NSWADTAP 3

P v D1 & Ors [2011] NSWSC 257

Re B (No. 1) [2011] NSWSC 1075

Texts Cited:

Nil

Category:

Principal judgment

Parties:

001: Guardianship Application

PND (the person)
UXD (applicant, carer)
EZD (carer)
CAD (carer)
TYD (carer)
EBD (joined party)
NSW Public Guardian

002: Financial Management Application

PND (the person)
UXD (applicant, carer)
EZD (carer)
TYD (carer)
CAD (carer)
EBD (joined party)
NSW Trustee and Guardian

Representation:

Nil

File Number(s):

NCAT 2019/00382340

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

WHAT THE TRIBUNAL DECIDED

1. The Tribunal appointed the Public Guardian as PND’s guardian for a period of one year to make decisions on her behalf about her accommodation, health care and medical and dental treatment and services which she should receive as set out in the Tribunal’s order.

AND

2. The Tribunal made a financial management order in relation to PND and committed the estate of PND to the NSW Trustee and Guardian.

BACKGROUND

3. PND is a 98-year-old widow who at the time of hearing was living on respite at an aged care facility at regional NSW.

4. PND was admitted to a public hospital on 8 October 2019 following an unwitnessed fall and community acquired pneumonia. PND was discharged to a private hospital on 10 October 2019. On 11 November 2019, PND was discharged to an aged care facility where she is living on respite.

5. Prior to her admission to the public hospital on 8 October 2019, PND lived in her home at regional NSW. She had support from family members and the Commonwealth Home Support Programme.

6. PND has three children, her sons EBD and UXD and a daughter Ms NX.

7. Her grandchildren are TYD, CAD, EZD and Ms EQ.

8. PND was assessed by an ACAT clinician on 26 June 2019. PND was approved for residential permanent, residential respite high care, short-term restorative care and a Home Care Package Level 4.

9. On 4 December 2019, the Guardianship Division of NCAT received applications for the appointment of a guardian and for the appointment of a financial manager for PND. The applicant was her son UXD. The applicant proposed that he be considered by the Tribunal for appointment as PND’s guardian and as her financial manager.

10. The applications were submitted because the applicant believes that PND’s care needs could not be met with her continuing to live at home and for that reason, a guardian is needed to make lifestyle decisions for her. The applicant also believes that PND is no longer able to manage her finances.

GUARDIANSHIP APPLICATION

What the Tribunal decided

11. The Tribunal appointed the Public Guardian as PND’s guardian for a period of one year to make decisions on her behalf about her accommodation, health care and medical and dental treatment and services which she should receive as set out in the Tribunal’s order.

The hearing

12. 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.]

13. On 30 January 2020, the Tribunal ordered that EBD be joined as a party to the proceedings and directed the applicant to provide EBD with copies of the applications and all documents submitted with the applications.

14. At the hearing, the Tribunal was handed an undated medical certificate prepared by Dr Z and a letter dated 24 January 2020 from Ms Y, Customer Support Manager with the aged care facility. EBD and Ms NX were provided with copies of those documents and afforded the opportunity to read them. Neither had any objection to those documents being admitted into evidence and the hearing proceeding.

15. In a letter dated 28 January 2020, Ms NX requested the appointment of a separate representative for PND. The Tribunal outlined the role of a separate representative. PND responded saying: “I want to make my own decisions.” She then asked the question: “Who would be best to make decisions?” and answered her question saying: “The person themselves.”

16. The Tribunal pointed out that if we appointed a separate representative we would have to adjourn the hearing until the separate representative had been assigned by Legal Aid NSW. Ms NX withdrew her application for the appointment of a separate representative for PND.

Does UXD have standing to bring the application?

17. A person has standing to bring an application if he or she is:

1. the person who is the subject of the application;

2. the Public Guardian; or

3. any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.

18. The Tribunal found that UXD has standing to make the application for a guardianship order because he is a person who, in the opinion of the Tribunal, has a genuine concern for the welfare of PND.

Settlement

19. The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. There was significant conflict in this matter. The Tribunal explored settlement possibilities but was not able to assist the parties to reach agreement. Ms NX summed the situation up succinctly in saying: “We can’t work together.”

What did the Tribunal have to decide?

20. The questions which had to be decided by the Tribunal were:

• Is PND someone for whom the Tribunal could make an order because she has a disability which prevents her 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 PND someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

21. Section 14 of the Guardianship Act 1987 (NSW) (“the Act”) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or 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) of the 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;

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) of the Act.

22. PND gave evidence that she can make her own decisions. She went on to say that she would now consider staying on at the aged care facility. PND appeared to be recognising the need for a level of care over and above the care and support that has to be date been provided for her at home by her family.

23. TYD identified PND’s decision as “a new decision” and, whilst acknowledging that remaining at the aged care facility was best for her grandmother, said that her grandmother had a history of changing her mind.

24. In a letter dated 6 November 2019, Ms X, Social Worker at the private hospital says: “During her stay at [the private hospital] it has become evident that she ([PND]) requires 24/7 care and supervision, the level of which is most appropriate to be provided in an aged care facility.”

25. Ms X says that in a MoCA on 29 October 2019 PND scored 6/30 “…..where scores under 26 indicate impairment. Her Home Safety Questions were not appropriate.” Ms X goes on to say that PND: “….lacks insight into the impact of this care on her family members, both emotionally and physically”.

26. Ms X supports the application for guardianship (and financial management) stating that: “[PND] does not have the capacity to manage her own finances, nor the insight to arrange and maintain her own care needs.”

27. In the medical certificate handed up at the hearing Dr Z says of PND: “She is significantly cognitively impaired and unable to make decisions regarding her own care in my opinion.”

28. The Tribunal accepts the medical evidence.

29. The Tribunal is satisfied that PND has a disability being cognitive impairment which prevents her making important life decisions. She 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?

30. The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order:

1. the views (if any) of:

1. the person;

2. the person's spouse;

3. the person's carer; and

2. the importance of preserving the person's existing family relationships;

3. the importance of preserving the person's particular cultural and linguistic environments; and

4. the practicability of services being provided to the person without the need for the making of such an order.

31. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

32. It appeared at first that this question was answered by PND’s evidence that she felt she should remain living at the aged care facility. The Tribunal notes that PND qualified her evidence with the words “….would consider stopping…..”.

33. A number of witnesses drew attention to PND’s history of changing her mind.

34. The role of “person responsible” is recognised in the Act. The hierarchy of persons from whom the person responsible for a person is to be ascertained is set out in s 33A(4) of the Act.

35. Relevantly the list in descending order ends with s 33A(4)(d) of the Act which identifies “a close friend or relative of the person” as person responsible for another person. The meaning of “close friend or relative” is contained in s 3E(1) of the Act which provides:

“A person is a close friend or relative of another person for the purposes of this Act if the person maintains both a close personal relationship with another person through frequent personal contact and a personal interest in the other person’s welfare. However, a person is not to be regarded as a close friend or relative if the person is receiving remuneration (whether from the other person or from some other source) for, or has a financial interest in, any services that he or she performs for the other person in relation to the person’s care.”

36. Each of PND’s children and grandchildren satisfies the definition of “close friend or relative”.

37. However, the prospect of being able to rely upon them as persons responsible broke down in discussion about who would be the primary contact with the aged care facility in the event that PND remained there as a permanent resident.

38. CAD gave evidence that in her view relationships between the family members remained “… hostile and in reality would fall apart in a short time”.

39. In summary, the evidence satisfied the Tribunal that there was a need to appoint a guardian with a health care and medical and dental consent function to ensure that PND’s health needs could be met with decisions being made promptly and decisively.

40. The question of how best to assist an aging family member with arrangements for his or her care and the management of his or her financial affairs are matters on which people of good will may quite legitimately differ.

41. It was evident to the Tribunal that there was a significant degree of conflict among some of the members of PND’s family concerning the best arrangements for her care. This conflict is referred to in the written material supplied to the Tribunal before the hearing and in some of the comments made by various participants during the hearing.

42. At this stage it would not be in PND’s interests for the Tribunal to recite the details of the past or present disagreements. The Tribunal does not consider it either necessary or helpful to summarise here the range of views expressed, unless specifically relevant to an issue before the Tribunal. The members of the Tribunal carefully considered the views that were expressed and took account of those views when making the Tribunal’s determinations.

43. In this case the Tribunal gives significant weight to the importance of preserving PND’s existing family relationships. She is clearly loved by all of her family members and she returns that love.

44. There was no evidence before the Tribunal of particular cultural or linguistic issues that were relevant to our consideration of this matter.

45. It is not known the nature and extent of services that will be provided for PND at the aged care facility.

46. One accommodation option for a guardian to consider is having PND return home with increased services available to her. For that reason the Tribunal will include a services function in an order appointing a guardian to maximise the options available to the guardian in making an accommodation decision for PND.

47. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made.

48. The Tribunal decided that the functions of accommodation, health care and medical and dental treatment, and services should be included in the order.

Who should be the guardian?

49. There is a proposal in the application that UXD be appointed guardian for PND.

50. Ms NX expressed the view that all three of PND’s children should be appointed as her guardians.

51. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she 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.

52. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep and Re B (No. 1) [2011] NSWSC 1075, [66]).

53. In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

54. The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed; s 15(3) of the Act.

55. The Supreme Court has held that:

the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).

56. The Tribunal is satisfied that her three children each have a personality generally compatible with that of PND.

57. Ms NX gave evidence that she and her husband have been providing care for PND for the whole of their married life since 1979. She and her husband live in the regional NSW house, albeit in a separate part of the house from that occupied by PND.

58. Ms NX gave evidence that she is in receipt of a carer’s pension and is identified by Centrelink as her mother’s carer. She is recognised by Centrelink as a protected person. She and her husband intend to continue living at the regional NSW property.

59. The Tribunal identifies a potential financial conflict of interest between Ms NX and PND. If the guardian decides that PND is to continue to live at the aged care facility we were told, in the letter from Ms Y dated 24 January 2020, that a refundable accommodation deposit of $480,000.00 would have to be paid. The only source of that money would be from the sale of PND’s home. The sale of the home would displace Ms NX and her husband who have lived there for the whole of their married lives.

60. Appointment of UXD and/or EBD as PND’s guardian absent the appointment of Ms NX would create a significant problem for a guardian deciding on PND’s accommodation. Such an appointment would be destructive to the already fragile family relationships between the siblings and adversely impact on PND.

61. The Tribunal must give paramount consideration to PND’s welfare and interests. Her welfare and interests would not be met by orders which have the potential to further fragment the already fragile family relationships.

56. The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed: s 15(3) of the Act.

57. The Tribunal finds that there is there is no private person available who meets the requirements of s 17(1) of the Act to be appointed as guardian. The Tribunal appointed the Public Guardian.

How long should the order last?

64. An initial guardianship order can be made for a period of up to one year from the date on which it was made.

65. The Tribunal decided to make an order for 12 months consistent with s 18(1)(a) of the Act there being no evidence that satisfied the Tribunal that there is a present need for an order of longer duration than 12 months.

FINANCIAL MANAGEMENT APPLICATION

What the Tribunal decided

66. The Tribunal made a financial management order in relation to PND and committed the estate of PND to the NSW Trustee and Guardian.

The hearing

67. 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.]

68. On 30 January 2020, the Tribunal ordered that EBD be joined as a party to the proceedings and directed the applicant to provide EBD with copies of the applications and all documents submitted with the applications.

69. At the hearing the Tribunal was handed an undated medical certificate prepared by Dr Z and a letter dated 24 January 2020 from Ms Y, Customer Support Manager with the aged care facility. EBD and Ms NX were provided with copies of those documents and afforded the opportunity to read them. Neither had any objection to those documents being admitted into evidence and the hearing proceeding.

70. In a letter dated 28 January 2020 Ms NX requested the appointment of a separate representative for PND. The Tribunal outlined the role of a separate representative. PND responded saying: “I want to make my own decisions.” She then asked the question: “Who would be best to make decisions?” and answered her question saying: “The person themselves.”

71. The Tribunal pointed out that if we appointed a separate representative we would have to adjourn the hearing until the separate representative had been assigned by Legal Aid NSW. Ms NX withdrew her application for the appointment of a separate representative for PND.

Settlement

72. The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. There was significant conflict in this matter. The Tribunal took the time to explore settlement possibilities but was not able to assist the parties to reach agreement. Ms NX summed the situation up succinctly in saying: “We can’t work together.”

Does UXD have standing to bring this application?

73. A person has standing to bring an application if he or she is:

1. the person who is the subject of the application;

2. the NSW Trustee and Guardian; or

3. any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.

74. The Tribunal found that UXD has standing to make the application for a financial management order because he is a person who, in the opinion of the Tribunal, has a genuine concern for the welfare of PND.

What did the Tribunal have to decide?

75. The questions to be considered by the Tribunal are:

• Is PND incapable of managing her affairs?

• Is there a need for another person to manage PND’s affairs and is it in her best interests for a financial management order to be made?

• If so, who should be appointed financial manager?

Is PND incapable of managing her affairs?

76. The medical evidence given by Dr Z and the evidence of the social worker, Ms X, both support a finding that PND is incapable of managing her affairs. Ms NX disagrees submitting that if matters are explained to PND she is capable of understanding them.

77. EBD agreed “if things are explained properly, yes”.

78. The applicant told the Tribunal that for years his sister, Ms NX, had been looking after PND’s financial affairs at home.

79. PND said: “I know what’s going on.”

80. PND told the Tribunal that she banked with a commercial bank. She had “no clue” as to the balance she had in the bank. She said she didn’t know exactly how much pension she received but commented that she had “plenty of money”. She had “no clue” about the fees payable at the aged care facility.

81. PND told the Tribunal that she owned the property at regional NSW and that the title deeds were in her drawer at home.

82. PND said that she had not been told about the refundable accommodation deposit (RAD) that would be payable if she became a permanent resident at the aged care facility. UXD gave evidence that he had discussed the RAD with PND.

83. When asked where the source of funds she would use to pay the RAD, PND said: “Out of the bank.” Ms NX responded telling the Tribunal that the credit balance in PND’s bank account was $11,000.00. PND replied: “I don’t know where it would come from.”

84. The Tribunal is required to consider PND’s functional management capacity in handling her finances rather than her mental capacity or the particular reasons for her incapacity for self-management. The Tribunal must look at PND’s assets, how she proposes to manage her ordinary affairs of living, whether she can look after her assets and what she proposes to do with them.

85. Weighing all of the evidence the Tribunal finds that PND does not have a reasonably sound understanding of her assets and liabilities and what needs to be done to preserve them. Whilst there is no suggestion that PND has ever been financially disadvantaged by anyone the Tribunal finds that she lacks the ability to identify situations where others may be attempting to benefit from her assets.

86. The Tribunal finds that because PND does not have a reasonably sound understanding of her assets and liabilities and lacks the ability to identify circumstances where people may take advantage of her, she is incapable of managing her affairs.

Is there a need for a financial management order?

87. No decision has yet been made as to whether PND will continue to live at the aged care facility as a permanent resident or whether she will return home or whether some other arrangement will be made for her accommodation for the foreseeable future.

88. Should the decision be made for PND to reside at the aged care facility, a decision has to be made about whether the refundable accommodation deposit should be paid and if so how it could be paid.

89. EBD pointed out that any shortfall in the daily fee should be made up by the three siblings and for that reason the house does not have to be sold.

90. Ms NX’s entitlement to remain living in the house at regional NSW as a protected person needs to be looked at. EBD added that PND’s Will says that Ms NX can remain living there for the remainder of her lifetime and then the house will be sold and the proceeds of sale divided in accordance with the terms of the Will.

91. The Tribunal was satisfied that there is a need to appoint someone to manage PND’s affairs.

Is it in PND’s best interest that a financial management order be made?

92. The Tribunal was satisfied that it is in the best interests of PND that a financial management order be made.

Who should be appointed as financial manager?

93. In appointing a financial manager, as in making all other orders under the Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Act.

94. Section 25M of the Act provides that, if the 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 NSW Trustee and Guardian.

95. The Tribunal finds that the appointment of one of PND’s children or any combination of them as her financial manager will place at significant risk the already fragile family relationships that exist between them.

96. The Tribunal must recognise the importance of preserving PND’s family relationships. An order placing those relationships at risk of further fragmentation is not in PND’s best interests.

97. For that reason the Tribunal decided that the NSW Trustee and Guardian should be appointed as PND’s financial manager.

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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: 18 August 2020