SGX

[2023] NSWCATGD 6

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

SGX [2023] NSWCATGD 6

Hearing dates:

19 April 2023

Date of orders:

19 April 2023

Decision date:

19 April 2023

Jurisdiction:

Guardianship Division

Before:

A R Boxall, Senior Member (Legal)
Dr W Longley, Senior Member (Professional)
Dr M Spencer, General Member (Community)

Decision:

002: Review of Guardianship Order

The guardianship order for SGX made on 9 November 2022 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of six months from 19 April 2023.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Advocacy

To advocate generally for SGX.

b) Accommodation

To decide where SGX may reside.

c) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take SGX to a place approved by the guardian.

ii) keep him at that place.

iii) return him to that place should he leave it.

d) Health care

To decide what health care SGX may receive.

e) Services

To make decisions about services to be provided to SGX.

f) Legal services

To make decisions for SGX in relation to access to legal services.

CONDITIONS:

5. The condition of this order is:

a) Standard Condition

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

003: Financial Management Application

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

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

3. This is an interim financial management order for a period of six months from the date of this Order.

The further hearing of these proceedings is adjourned to a date to be confirmed by the Registry.

In today’s proceedings, SGX is to be legally represented by D Yakenian, Solicitor.

Any of the parties or anyone who in the opinion of the Tribunal has a genuine concern for the welfare of SGX may apply to the Registrar to restore these proceedings to the list for an earlier hearing.

Catchwords:

GUARDIANSHIP – end-of-term review of guardianship order – whether a further guardianship order should be made – subject person with an intellectual disability – subject person is a participant in the NDIS – subject person at risk of homelessness – need for decisions to be made about accommodation with power to authorise others – need for decisions to be made in relation to health care, services, and legal services – Public Guardian reappointed – six-month reviewable order made

FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their affairs – subject person is dependent on others to manage his financial affairs – need for management of NDIS care package – subject person vulnerable to the risk of financial exploitation – no private person able to be appointed – NSW Trustee and Guardian appointed – six-month reviewable order made

PROCEDURE – rejection of adjournment request – legal representative received instructions the day before the hearing – notice was provided to the subject person and service providers involved in his care – subject person unable to be located – decision to proceed with hearing in the absence of all parties other than the Public Guardian – in the subject person’s best interests for the hearing to proceed without further delay

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s 36

Guardianship Act 1987 (NSW), ss 4, 4(a), 25M

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

002: Review of Guardianship Order

SGX (the person)
Public Guardian (appointed guardian)
HZQ (enduring guardian)

003: Financial Management Application

SGX (the person)
Public Guardian (applicant)
HZQ (attorney)
NSW Trustee and Guardian

Representation:

Solicitors:

D Yakenian, for SGX

File Number(s):

NCAT 2022/00264805

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

FINANCIAL MANAGEMENT APPLICATION

Background

1. SGX is 61 years old and is of Aboriginal heritage. He is reported to be living in a rented unit in regional NSW, with support services from a disability service provider. He is reported as not having any supportive family members, but to have a friendly relationship with Mr Z and HZQ. Mr Z is reported to have a commercial connection with (or with entities associated with) the disability service provider.

2. On 12 March 2022, SGX reportedly:

1. Executed an enduring guardianship appointment appointing HZQ as his enduring guardian and Mr Y as his substitute enduring guardian (the EGA); and

2. Executed an enduring power of attorney appointing HZQ as his enduring attorney (the EPA).

3. On 9 November 2022, the Tribunal:

1. Found that by reason of an intellectual disability, SGX was in part at least unable to manage his person (and was thus someone for whom the Tribunal could make a guardianship order); and

2. Made a guardianship order for him, appointing the Public Guardian as his guardian for six months, to advocate for him and to make decisions about his accommodation, health care and services.

4. On 6 April 2023, the Tribunal received a financial management application for SGX from the Public Guardian.

5. The purpose of today’s hearing is to conduct the guardianship review and decide the financial management application.

The hearing

6. 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.]

7. SGX did not attend either in person or through the Tribunal’s virtual hearing room facility, and multiple attempts to contact him by telephone were fruitless. The Tribunal also tried to contact him through the office of the disability service provider and its associate, another care provider t/as disability care provider YZ. Neither organisation could tell the Tribunal where SGX was or to provide any contact details for him other than those already held by the Tribunal.

8. Mr Dickran Yakenian, solicitor, arrived at the hearing about 10 minutes after it started, and informed the Tribunal that he had been instructed the previous evening by SGX (whom he did not know, but who he believed contacted him on Mr Z’s recommendation) by telephone, to represent him at the hearing. The Tribunal pointed out to Mr Yakenian that he had no right of audience without the Tribunal’s consent, but indicated that since:

1. SGX was not present, and

2. He (Mr Yakenian) at least had instructions to appear,

it would allow Mr Yakenian to represent SGX at this morning’s proceedings only. Legal representation for SGX at any future hearing was a matter to be determined at that time.

9. Prior to Mr Yakenian’s arrival, a Mr X (who indicated that he was a representative of SGX’s care providers) briefly appeared to inform the Tribunal that he was attempting to locate Mr Yakenian and assist him to find the hearing room. Several minutes after Mr X’s departure from the hearing room on this mission, the Tribunal telephoned him to check whether SGX’s legal representative had arrived. Mr X said that he was still waiting at the main street entrance of the Tribunal’s premises and that he would return to the hearing room with the solicitor on the latter’s arrival. Mr Yakenian came into the hearing room without Mr X, who did not thereafter return to the hearing room. The Tribunal telephoned him to find out his intentions. He did not answer his telephone and so the Tribunal was unable to pursue further with him the substantive matters to be addressed in the review and financial management application.

10. The Tribunal also contacted a Ms W, whom it understood to have some role in SGX’s care, on her mobile telephone. There was no answer and the Tribunal left a message inviting her to call into the hearing by telephone or through the virtual meeting room. She did not do so.

11. The Tribunal called HZQ. There was no answer, and it left a message inviting him to call into the hearing by telephone or through the virtual meeting room. He did not do so.

12. Similarly, the Tribunal called Mr Z. There was no answer, and it left a message inviting him to call into the hearing by telephone or through the virtual meeting room. He did not do so. However, later in the morning after the hearing had ended the making of the orders noted above, a gentleman claiming to be Mr Z presented himself at the Tribunal’s reception area. He was informed that the hearing was finished.

Adjournment request

13. Mr Yakenian sought an adjournment of the hearing. This was for several reasons:

1. To allow him to meet his client, and

2. To obtain instructions from SGX.

14. Ms V, representing the Public Guardian, was strongly opposed to any adjournment. This was because the Public Guardian had grave concerns as to:

1. The quality and integrity of the care arrangements for SGX;

2. His general well-being; and

3. His financial situation; in particular the Public Guardian was concerned that he (or his National Disability Insurance Scheme (NDIS) package) was being financially exploited.

15. While noting Mr Yakenian’s request and the difficulties that the apparent unavailability of SGX, Mr X and Mr Z all imposed, the Tribunal was equally conscious that notice of the hearing had been provided to SGX, and that Mr X, Mr Z and SGX all appeared to be well aware of it (as the engagement of Mr Yakenian indicated) and to have decided for whatever reason not to participate. The Tribunal considered, having regard to these matters, that its statutory obligation under s 4(a) of the Guardianship Act 1987 (NSW) required it:

1. to hold the hearing without further delay, and

2. to address the self-evident concerns that arose from making orders in SGX’s absence by limiting the duration and extent of any such orders to the extent appropriate.

Applicable general principles

Section 4 of the Guardianship Act provides as follows:

4 General Principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a)    the welfare and interests of such persons should be given paramount consideration,

(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,

(e)    the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

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

(g)    such persons should be protected from neglect, abuse and exploitation,

(h)    the community should be encouraged to apply and promote these principles.

16. Section 36 of the Civil and Administrative Tribunal Act 2013 (NSW) provides as follows:

“The ‘guiding principle’ for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.”

17. These two sets of principles together inform the approach taken by the Tribunal in this hearing.

STATUTORY REVIEW OF GUARDIANSHIP ORDER

Reasoning

18. There was no new evidence as to SGX’s cognitive capacity, and accordingly the Tribunal remains satisfied that SGX continues to be a person for whom it can make a guardianship order.

19. The Tribunal noted Ms V’s observation the National Disability Insurance Agency (NDIA) appointed a support coordinator for SGX, with a view to revisiting the diagnoses – Prader Willi Syndrome and schizoaffective disorder – on the basis of which SGX had been granted NDIS funding. In the absence of any such determination and of any professional evidence underlying it, the fact of such an appointment does not challenge the Tribunal’s finding as to SGX’s impaired ability to manage his person.

20. Ms V presented the Public Guardian’s report and recommendations. These were in summary that the guardianship order be renewed for a further period of two years, with the functions of accommodation (with authority to enlist the services of others to implement those decisions), services, health care and medical and dental consents.

21. The reasoning behind this recommendation was as follows:

1. There are concerns as to the continuing availability of accommodation to SGX. When the original order was made, he was living in a rented home unit in regional NSW. He was named on the lease as tenant, along with Mr Z. Subsequently, Mr X informed the Public Guardian that disability care provider YZ (which as noted above appears to be an affiliate of the disability service provider) had taken over the lease, and that SGX would be required to vacate his accommodation if a service agreement for him was not entered into with disability care provider YZ. Because of the Public Guardian’s concerns as to the quality of care provided to SGX, it declined to approve a services agreement with disability care provider YZ and made arrangements with another service provider to move SGX to other accommodation. These arrangements broke down because of difficulties that the service encountered in finding SGX, and so there is real concern that SGX is at risk of homelessness or may possibly already be homeless.

2. SGX has strong views about accommodation, coupled with little insight as to either the quite high care needs that he has or the practical suitability of particular accommodation. There is a real concern that he may refuse to enter or remain at accommodation secured for him. Hence the Public Guardian proposes the inclusion in the order of authority to exercise coercive powers to bring SGX to his accommodation and to keep him there.

3. SGX has a continuing need for medical treatment for which he is not necessarily able to provide informed consent. Hence, the suggested medical and dental consent function. Moreover, the need to establish and manage a range of medical appointments and information exchanges between health care providers makes a health care function appropriate.

4. There are concerning reports about his service providers having charged disproportionately large amounts to his NDIS package over a short period, purportedly in connection with the provision of emergency accommodation. The reports suggest that $40,000 has been claimed over a period of about 8 weeks, which in the Public Guardian’s experience would appear to be a very (and ultimately unsustainable) rate of depletion of SGX’s package. The opacity of the relationship between the disability service provider and its associate, disability care provider YZ, raises further concern as to the approach adopted in managing his package.

5. Moreover, the Public Guardian had noted in its direct interactions with SGX that he appeared on occasions to be “… in an uncomfortable and malodorous state”, such as to raise concerns in the Public Guardian’s mind that “... [SGX]’s dignity was not upheld by [disability care provider YZ]”.

6. There is no need for a separate advocacy function, since that role is implicit in the substantive functions.

22. There was no participation in the hearing by any representative of either the disability service provider or disability care provider YZ, apart from Mr X’s lightning visit before the hearing began and Mr Z’s somewhat belated arrival. The Tribunal did not therefore have the opportunity to learn their views, but the apparent inability of either Mr X or Mr Z:

1. to make themselves available, by telephone at least, to assist the Tribunal in its review of SGX’s order, and

2. to procure SGX’s participation,

coupled with the gravity of the concerns expressed by the Public Guardian, satisfied the Tribunal that, having regard to its paramount duty to look to his interests and welfare, it should renew the guardianship order for SGX with the functions proposed by Ms V.

23. The fact of Mr Yakenian’s dramatic entry into the process, instructed as he said at the last minute by SGX in conjunction with Mr Z, coupled with his limited familiarity with the guardianship jurisdiction, raised questions for the Tribunal as to both the process by which SGX decided to seek legal representation and, having regard to the original evidence as to his mental health and cognitive abilities, SGX’s capacity effectively to instruct legal representatives. Hence the Tribunal decided to include a legal services function in the order, to ensure that the process of obtaining legal representation for SGX proceeds in a way that is consistent with SGX’s best interests. Nothing in these observations should be taken as making any criticism of Mr Yakenian, who conducted himself with professionalism and propriety in his interactions with the Tribunal.

24. The Tribunal makes the guardianship order in the expectation that the order will allow decisions to be made that can both stabilise, at least in the short to medium term, SGX’s living and care arrangements and allow his disabilities and medical needs to be assessed and definitively determined.

25. The failure of any party to participate in the hearing other than the Public Guardian made it inappropriate to make a lengthy order. In an attempt to balance this consideration against the expectation referred to in the previous paragraph, the Tribunal decided to make the order for a term of 6 months only, at which stage it must be reviewed.

The EGA

26. The effect of the guardianship order is to suspend the operation of the EGA, if in fact it exists.

FINANCIAL MANAGEMENT APPLICATION

Does Public Guardian have standing to bring this application?

27. 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.

28. The Tribunal found that Public Guardian, as SGX’s guardian, has standing to make the application for a financial management order because it can reasonably be considered to have the necessary concern.

What did the Tribunal have to decide?

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

• Is SGX incapable of managing his affairs?

• Is there a need for another person to manage SGX’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 SGX incapable of managing his affairs?

30. The Applicant referred the   Tribunal to, in particular:

1. Its findings on 9 November 2022 concerning the challenges faced by SGX in managing his person;

2. The Occupational Therapy Functional Assessment report concerning SGX, dated 20 September 2022 and prepared by Ms U; this describes SGX’s functional ability in financial matters as semi-independent, and notes that SGX “... reports a history of being taken advantage of in the past and now reports he has his finances managed by his Guardian and assistance with his daily budget by [Mr Z]”;

3. The Behaviour Support Plan dated 14 September 2022 for SGX, prepared by Ms T; this notes that SGX “… is very concerned about his finances ..” and that “Large financial decisions are made by [SGX]’s public guardian”; this is a little perplexing, since no guardianship order was made for SGX until 9 November 2022 and accordingly SGX had no Public Guardian at the time of the report; perhaps the reference is to HZQ, his guardian and attorney under the reported EGA and EPAS (of which the Tribunal has not seen copies); and

1. SGX’s own reports to the Public Guardian, to the effect that:

1. He does not have possession or control of his bank keycard; rather this is held by Mr Z;

2. He is on the lease for his rental property in regional NSW, along with at least one other person or entity;

3. Because his rent is so high, he cannot afford groceries but these are paid for and provided to him by Mr Z.

31. This evidence indicates, at the very least, that SGX’s ability to manage his financial affairs prudently and successfully is compromised, that he is to some degree dependent on others to do so for him, and that he is thus – in part at least – incapable of managing his affairs.

Is there a need for a financial management order?

32. What emerges from the Public Guardian’s evidence is that:

1. SGX has incurred at least one significant liability, namely an obligation to pay rent, in an amount that would appear substantially to exhaust his likely pension income, unless there is another source of payment;

2. There is some suggestion that his NDIS package may be applied to a significant degree to pay his rent; this raises two questions:

1. If so, is this an appropriate use of his NDIS funding?

2. If so, what is the portion of his pension income that is not applied to rent used for?

3. The tenancy arrangements for the property are unclear, with SGX being a tenant along with one or more entities (including perhaps the disability service provider and disability care provider YZ, which appear to be related entities) that seemingly provide him with support or care funded through the NDIS;

4. There have been attempts to link SGX’s continuing occupation of the rental property with his continuing use of (or payment for) services offered by disability care provider YZ, all of which raises concerns as to SGX becoming homeless;

5. SGX does not appear to have access to his own bank account, since his keycard is held by Mr Z (who in turn is said to have a relationship with the disability service provider and/or disability care provider YZ); and

6. There are questions that may be asked as to whether these arrangements can reasonably be considered to operate in SGX’s best interests, or to place him at risk of financial exploitation.

33. Unfortunately, since:

1. None of SGX, HZQ, Mr Z or (despite a fleeting appearance early in the hearing that was not continued in any meaningful way) Mr X were available to give evidence, and

34. Mr Yakenian’s limited instructions and near total unfamiliarity with SGX’s circumstances prevented him from providing the Tribunal with any meaningful assistance on these matters (and here again it should be noted that the Tribunal does not make any criticism of Mr Yakenian, whose practical ability to contribute could only be as good as his instructions),

the Tribunal finds itself left with the concerns articulated by Ms V, a situation suggestive of SGX being at the very least vulnerable to the risk of financial exploitation, and no countervailing evidence to indicate that there are any effective structures or efforts directed at mitigating that risk. Far from being such a structure, the reported EPA (if in fact it exists) may well increase that risk.

35. Bearing in mind again the Tribunal’s paramount concern under s 4(a) of the Guardianship Act, to look to the interests and welfare of SGX, Tribunal was satisfied that:

1. there is a need to appoint someone to manage SGX’s affairs; and

2. it is in the best interests of SGX that a financial management order be made.

Who should be appointed as financial manager?

36. In appointing a financial manager, as in making all other orders under the Guardianship 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 Guardianship Act.

37. Section 25M of the Guardianship 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.

38. There was no private candidate to act as financial manager. The Tribunal was satisfied therefore that the estate of SGX should be committed to the NSW Trustee and Guardian.

Should a reviewable financial management order be made?

39. The Tribunal may determine that a financial management order should be reviewed within a specified time. In this matter, the Tribunal determined that the financial management order should be reviewed within six months, at the same time as the guardianship order, because the failure of any party to participate in the hearing other than the Public Guardian made it inappropriate to make a lengthy order.

The EPA

40. If the reported EPA exists, the effect of this order is to suspend its operation for the duration of the financial management order.

**********

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: 22 June 2023