SNC (No 1)
[2014] NSWCATGD 17
•27 February 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: SNC (No 1) [2014] NSWCATGD 17 Hearing dates: 27 February 2014 Decision date: 27 February 2014 Jurisdiction: Guardianship Division Before: Simpson J, Senior Member (Legal)
Jamieson G, Senior Member (Professional)
Whaite A, General Member (Community)Decision: Enduring guardianship appointment revoked; decision to treat as guardianship application.
Limited guardianship order made for a period of 12 months; Public Guardian appointed with access; private guardian appointed with accommodation, health care and services.
Catchwords: REVIEW OF ENDURING GUARDIANSHIP - review of appointment of enduring guardian - capacity to make - allegations that enduring guardian not acting in best interests of appointor - allegation against carer - family conflict - appointment revoked - best interests - decision to treat as guardianship application - apprehended violence order - access function. Legislation Cited: Guardianship Act 1987 (NSW)
Powers of Attorney Act 2003 (NSW)Cases Cited: IF v IG & Others [2004] NSWADTAP 3 Category: Principal judgment Parties: Mrs SNC (subject person)
Mr DBC (enduring guardian)
Mr KBK (applicant, alternative enduring guardian)
The Public GuardianFile Number(s): 55277 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).
reasons for decision
What the Tribunal decided
The Tribunal reviewed the enduring guardianship appointment whereby Mrs SNC appointed Mr DBC to be her enduring guardian with Mr KBK as alternative guardian. The Tribunal revoked that appointment and made a guardianship order appointing Mr DBC in relation to accommodation, health and services issues and the Public Guardian in relation to contact between Mrs SNC and Mr KBK.
The Tribunal accepted an oral application by Mr DBC for review of a revocation of power of attorney that had been executed by Mrs SNC on 13 June 2013.
The Tribunal adjourned for further hearing the power of attorney reviews.
Background
Mrs SNC is a 69-year-old woman who is being supported by her husband in their home in regional NSW. Mr DBC and Mrs SNC have two surviving sons, Mr DYU and Mr KBK. In the last year, there has been very limited contact between Mr DYU and his family.
In November 2012, Mr KBK moved into the family home to assist with carer responsibilities.
In June 2013, Mrs SNC executed an appointment of enduring guardian and an enduring power of attorney, in each case appointing Mr DBC with Mr KBK as alternative guardian and attorney. Mrs SNC also signed a revocation of a previous power of attorney that she had signed in February 2011 appointing Mr DBC.
During 2013, there was a deterioration in the relationship between Mr KBK and his father and this came to a head in December 2013. In December, Mrs SNC had a period in Hospital and then a period of respite at an aged care facility. The local police took out a provisional apprehended domestic violence order against Mr KBK on behalf of Mr DBC.
Mr KBK expressed major concerns in relation to Mr DBC's actions in relation to Mrs SNC and applied for review of the appointment of enduring guardian. The matter came on to hearing in early 2014 and the Tribunal adjourned it with directions. Mr DBC then lodged an application for review of the 2013 power of attorney with a view to Mr KBK being removed as alternative attorney. At the end of the current hearing, the Tribunal decided the guardianship issues but needed to adjourn the power of attorney review. The Tribunal noted that there were clear issues about Mrs SNC's capacity to sign enduring documents in June 2013 and accepted Mr DBC's verbal application for review of the June 2013 revocation of the 2011 power of attorney.
REVIEW OF APPOINTMENT OF ENDURING GUARDIAN
The legal framework
On reviewing an appointment of enduring guardian document, the Tribunal may:
(a) Revoke the appointment; or
(b) Confirm the appointment with or without varying the functions of the guardian.
The Tribunal may only revoke the appointment on request of the enduring guardian or if revocation is in the best interests of the person who made the appointment.
If the Tribunal revokes the appointment, it may consider making a guardianship order.
In considering whether to make a guardianship order, the Tribunal needs to consider:
(a) Is the subject person 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?
(b) Should the Tribunal make a guardianship order and if so, what order should be made?
(c) Who should be the guardian?
(d) How long should the order last?
Here, Mr KBK was asking the Tribunal to remove Mr DBC from the position of enduring guardian and elevate Mr KBK from alternative enduring guardian to enduring guardian, with the Public Guardian to become alternative guardian. Mr DBC wanted the Tribunal to confirm his appointment as enduring guardian but remove Mr KBK as alternative enduring guardian.
The Tribunal only saw itself as able to revoke the appointment of enduring guardian document as a whole rather than just revoke the appointment of a particular person who does not want to be removed.
Should the Tribunal revoke or confirm the appointment of enduring guardian?
A number of factors led the Tribunal to the view that it was in Mrs SNC's best interests that it revoke the appointment of enduring guardian:
(1) In the appointment, Mr DBC is guardian but Mr KBK is alternative guardian with power to act if Mr DBC is "unwilling or unable to act". There is now a flagrant extremely poor relationship between Mr DBC and Mr KBK including an apprehended violence order currently being in place against Mr KBK and major disputes in relation to Mrs SNC's accommodation and care. Neither of them wanted the current situation to continue where one was guardian and the other was alternative guardian. The Tribunal did not have the power to simply remove one of them from the enduring guardian document.
(2) There is a current contentious issue in relation to whether Mr KBK should have contact with his mother as he very much wishes to. Mr DBC is opposed to this. For this issue to be resolved, the Tribunal would have needed to give Mr DBC as enduring guardian a function of deciding about contact by Mr KBK or revoke the enduring guardianship appointment and make a guardianship order. In view of the extremely poor relationship between Mr KBK and Mr DBC, the Tribunal saw it as appropriate that the issue of contact with Mr KBK be resolved under a guardianship order rather than under the appointment of enduring guardian.
(3) The Tribunal needs to be cautious about overriding a person's wishes as expressed in an appointment of enduring guardian. However, here, there was strong professional evidence in the report of Dr Z geriatrician that Mrs SNC had moderate to severe dementia at the time she made the appointment of enduring guardian. The solicitor who drew up and witnessed the document, Ms SIO, was not aware that Mrs SNC had dementia and her evidence of the process she went through with Mrs SNC did not reassure the Tribunal in relation to Mrs SNC's capacity to understand the document. The Tribunal had doubts about Mrs SNC's capacity and at least saw her dementia as reducing the weight that it should attach to her wishes as reflected in the appointment of enduring guardian.
The Tribunal decided to revoke the appointment of enduring guardian. In view of the contention between Mr DBC and Mr KBK in relation to life decisions for Mrs SNC, the Tribunal decided to exercise its power to proceed as if an application for a guardianship order had been made.
Does Mrs SNC have a disability that prevents her from being able to make important life decisions?
To put this issue more precisely using the words in the Guardianship Act, the Tribunal could not consider making a guardianship order unless it was satisfied that:
(1) Mrs SNC has a disability which restricts her in one or more major life activities to the extent that she requires supervision or social habilitation, and that, as a result,
(2) she is at least partially incapable of managing his person.
Dr Z, geriatrician, reported in January 2014 that he had known Mrs SNC for approximately two and a half years. When he had last seen her, in February 2013, she had moderately severe dementia with deficits in areas including orientation, memory and visiospacial functioning. She had moderately severe deficits in function and needed assistance with activities. She lacked capacity to make decisions about accommodation, medical and lifestyle decisions.
Dr Y, psychogeriatrician, saw Mrs SNC in February 2014. She showed prominent language difficulties and had trouble focusing visually. She had poverty of speech and thought form. Her insight and cognition were impaired. Mr DBC also reported his wife having visual hallucinations and delusions of reference from the television.
The Tribunal spoke with Mrs SNC during the hearing and her presentation was consistent with the evidence about her cognition in the professional reports.
Mr DBC wrote that, since his wife's diagnosis with dementia in mid-2011, she has needed an increasing amount of assistance with daily care needs. In the last 12 months, she has needed 24/7 care including full assistance with dressing, showering, grooming, toileting and feeding.
An Aged Care assessment in November 2013 approved Mrs SNC as eligible for a home care package and high level respite and residential care.
The only evidence questioning that Mrs SNC had a marked cognitive impairment was the view of Mr KBK in his application.
The Tribunal accepted the strong weight of evidence that Mrs SNC has dementia, high support needs, lacks capacity to make important life decisions and otherwise satisfies the statutory prerequisites for it to consider making a guardianship order.
Should the Tribunal make a guardianship order?
In deciding whether to make a guardianship order, the Tribunal needed to take account of all relevant factors, including those listed in section 14(2) of the Guardianship Act. These relate to the views of Mrs SNC, her spouse and any unpaid carer, preserving family relationships, preserving cultural and linguistic environments and the practicability of services being provided without a guardianship order. The Tribunal could be guided by the principles in section 4 of the Guardianship Act, in particular regarding Mrs SNC's interests as its paramount consideration. The Tribunal ultimately has a broad discretion whether to make a guardianship order (IFvIG&Others [2004] NSWADTAP 3).
In recent months, there has been a high level of contention between Mr DBC and Mr KBK about Mrs SNC's accommodation and health care. Mr DBC wants to continue looking after his wife at home.
Mr KBK said that his mother should be in an aged care facility. He alleged that Mr DBC provided inadequate care and had placed Mrs SNC's health at grave risk by giving her an inappropriate mix of prescription medications. She had improved in her period of respite and he could visit her there. She feels isolated at home.
There is also a major issue about whether Mr KBK should have access to his mother and what arrangements there would be for any access. Mr KBK is very keen to see his mother. Mr DBC is opposed to this in view of the events of recent months. In the hearing, Mrs SNC spoke positively about Mr KBK and Mr DBC's evidence included that his wife had persuaded him to have Mr KBK return home in November 2012 and that he had written a letter supportive of his son to the Local Court in September 2013 under pressure from his wife.
The Tribunal could only obtain limited views from Mrs SNC in the hearing due to her cognitive impairment.
If the Tribunal revoked the appointment of enduring guardian, Mr DBC supported a guardianship order being made.
In view of the high level of contention within the family in relation to accommodation and health issues, and in view of the issue of Mr KBK's access to his mother, the Tribunal was clear that it should make a guardianship order covering these issues.
In relation to Mr KBK's contact with his mother, a guardian was needed to decide whether Mr KBK should have contact and the arrangements for any contact. This may require the guardian to provide some input to the ongoing local court proceedings in relation to Mr DBC's AVO against Mr KBK.
Who should be the guardian?
The Tribunal has to be satisfied that any person appointed as a private guardian:
(a) has a personality generally compatible with the personality of the person under guardianship,
(b) has no undue conflict of interest (particularly financial) with those of the person and
(c) is able and willing to exercise the functions of the order.
If there is no private person qualified to appoint as guardian or if the circumstances otherwise make it inappropriate to appoint a private person, the Tribunal can appoint the Public Guardian (Guardianship Act sections 15(3) and 17(1)).
Mr DBC and Mr KBK was each keen to be Mrs SNC's guardian. In the hearing, Mrs SNC spoke very positively about her current situation, about her life with Mr DBC and about her family.
Mr and Mrs SNC have been married 43 years and Mr DBC wrote that they have had a loving, caring and wonderful relationship. Mr DBC wrote that, since his wife's diagnosis with dementia in mid-2011, she has needed an increasing amount of assistance with daily care needs.
Mr DBC has been his wife's carer for a lengthy period. From November 2012 until December 2013, Mr KBK assisted him in this role. Mr DBC wrote that initially Mr KBK provided a positive role but in mid-2013 his behaviour slowly changed. Things came to a head in December 2013 and since then Mr KBK has not been living in the family property. Mr DBC remains carer and has the opportunity to access a package of services.
In the hearing, Mr DBC said that he has respite services available. His wife is calmer and more settled than she was in December. He wants to look after her at home for as long as possible and then choose an aged care facility.
There are obvious arguments to consider appointing a long-standing spouse and carer to act as guardian where one is needed. However, Mr KBK raised a number of allegations against his father:
Mr DBC's capacity to be carer
Mr KBK alleged that Mr DBC had a history of alcoholism and opioid overdose and had some sort of mental breakdown in late 2013; Mr DBC had neglected Mrs SNC for years.
Mr DBC denied those allegations though acknowledging being a drinker and having needed in the past to use endone and oxycontin for severe lower back conditions and sciatica.
Mr KBK said that there had been occasions Mrs SNC had said she was terrified and asked him to get her out of the house.
Dr X, medical registrar at the Hospital, wrote a report in December 2013 in response to concerns raised by Mr KBK during Mrs SNC's admission from 11 to 19 December.
Dr W had reported that she was the family general practitioner for 20 to 25 years with her most recent contact being in August 2013. She has always seen Mr DBC as a dedicated and caring husband who supports his wife extremely well. There had been no evidence to suggest misdoing or harm. Many years ago, Mr DBC did drink to excess but this had been managed well over recent years and had not affected his relationship with Mrs SNC or his ability as carer.
Dr U, general practitioner, had only seen Mrs SNC once but said she appeared to be extremely well cared for with a supportive husband. Dr U had no concerns regarding the care giving or welfare of Mrs SNC.
Hospital medical and nursing staff commented that Mrs SNC appeared very well cared for. She had no pressure areas and was well kempt.
Dr Z, geriatrician, had been reviewing Mrs SNC since mid-2011. Mr and Mrs SNC were managing reasonably well in the community. Dr Z supported continuation of the current situation with Mr DBC as substitute decision maker.
Dr Y, psychogeriatrician, saw Mrs SNC in February 2014. She was appropriately dressed. She was pleasant and smiling. She was briefly anxious when her husband stepped away for a few minutes. She appeared to be well nourished and in good spirits with settled behaviour.
Ms T, registered nurse at the facility where Mrs SNC had a period of post hospital respite in December 2013, told the Tribunal that, on a few occasions, she appeared anxious and agitated when Mr DBC visited. Dr X's report noted that on a visit by Mr KBK to the hospital, he had told Mrs SNC that Mr DBC was trying to poison her and Mrs SNC became very upset and distressed.
Mr KBK provided a letter that he claimed his father had authored to the local court which included acknowledgements of addiction problems with alcohol and opioid medications so that he needed the assistance of Mr KBK in caring for Mrs SNC. Mr DBC fiercely denied that this was his letter and pointed to the use of a small i rather than capital I in the letter as consistent with documents prepared by Mr KBK. Mr KBK gave a confusing response in the hearing despite having known that Mr DBC hotly disputed his authorship of the letter. The Tribunal accepted that Mr DBC was not the author of this document.
In view of the strong weight of health professional evidence, the Tribunal accepted that Mr DBC is both a conscientious and competent carer for his wife. This finding made the Tribunal very cautious about the reliability of Mr KBK's evidence generally.
Mr DBC is now sole carer whereas in 2013 he had assistance from Mr KBK and in early 2014 he had some assistance from his sister who was visiting from England. However, Mr DBC has respite care available and accepts that a time may come when an aged care facility is needed.
Inappropriate administration of antidepressant medications
In his application, Mr KBK alleged that Mr DBC had administered Mrs SNC with a "lethal combination of prescription medication". After Mrs SNC had a severe adverse reaction to these medications, Mr KBK had rung a doctor, the medications had been stopped and she had recovered. Then she went into a sharp decline again and "it was clear she was being given more medication". Mr DBC then refused medical assistance until a fourth ambulance visit was enforced by the police.
Mr DBC responded that he had consulted Dr U because his wife's efexor did not seem to be addressing her depression. Dr U prescribed avanza and gave a timetable for transition from one medication to the other. Mrs SNC did become ill with the new medication and he and Mr KBK of their own initiative had stopped the medications. She did improve after a few days. Mr DBC denied that he had restarted the medications. Mr KBK had accused him of trying to poison his wife. The ambulance service came on a number of occasions on 9 and 10 December to check Mrs SNC's condition. On the further ambulance visit on 11 December, Mrs SNC had deteriorated and was taken to hospital.
In the hearing, the Tribunal asked Mr KBK what was his basis for alleging that his father had recommenced the two antidepressants. He claimed that he saw his father do this.
Dr X reported that Mrs SNC had gradually improved in hospital with simple supportive care. Mr KBK had thought that Mrs SNC's decline was due to serotonin syndrome but Mrs SNC did not meet the diagnostic criteria for this. Mr KBK claimed that Mr DBC was attempting to poison Mrs SNC by continuing the combination of antidepressants. There was no medical evidence of this being the case.
The Tribunal accepted Mr DBC's evidence on all of this. He had started the transition of medications on advice from Dr U. It would be very strange for Mr DBC to seek to harm his wife of 43 years and inconsistent with the strong weight of professional evidence in relation to how he has approached his caring role.
Mrs SNC's discharge from the nursing home
After her admission to Hospital, Mrs SNC spent 13 days at an aged care facility.
Mr KBK alleged that Mr DBC removed Mrs SNC from that facility contrary to her wishes and interests. Mr DBC responded that she had only been admitted for 14 days respite and that the facility had not opposed the discharge. Mrs SNC was agitated when he came to pick her up with Mr KBK holding a phone to her ear. The nursing sister said that it was quite okay to discharge Mrs SNC.
In the hearing, Ms S, deputy director of nursing, said that there was a concern about whether Mrs SNC could receive the high level of care that she needed at home. However there was no indication that Mrs SNC did not wish to go home.
Ms R, registered nurse said that she understood that Mrs SNC was to stay until 5 January and was surprised that Mr DBC had taken her home on 31 December. Mrs SNC had been very happy to see Mr KBK on his visits. On a few occasions, she appeared anxious and agitated when Mr DBC visited.
The Tribunal was not satisfied that Mr DBC had acted inappropriately in discharging Mrs SNC from the nursing home. While some facility staff had concerns, the weight of evidence already set out is that Mr DBC is a competent and conscientious carer. The recent visit of Dr Y confirms that Mrs SNC's needs are being met at home and that she is settled there.
The combination of Mrs SNC going home and Mr DBC's AVO against Mr KBK did stop Mr KBK's access to his mother. However, whether or not Mr KBK should have access to Mrs SNC, the Tribunal did not see the issue of access as a major one in relation to whether Mr DBC should be at home or in an aged care facility.
Mr KBK as a possible guardian
The Tribunal accepted that Mr KBK cares about his mother. However, the Tribunal did not accept the validity of very serious allegations he made in relation to his father.
In his application, Mr KBK questioned whether his mother really had a major cognitive impairment. The professional evidence showed otherwise.
Mr KBK acknowledged that he has a significant history of driving offences including dangerous driving, drink driving and driving while disqualified. He has been in jail three times including a period of six months in 2012. He remains disqualified from driving.
Mr KBK and his father have a very negative relationship and Mr DBC currently has an apprehended violence order against Mr KBK. Mrs SNC is in the care of Mr DBC. This interplay of factors would have made it extremely difficult for Mr KBK to consider his mother's current living situation and make decisions about her accommodation, health, services and his access to his mother.
In view of all of these factors, the Tribunal was not satisfied that Mr KBK was able to perform the functions in the guardianship order.
The Tribunal appointed two guardians
Mr DBC has been married to his wife for 43 years. The overall range of professional evidence confirmed that he is a competent and conscientious carer who is seeking to make his wife's life as good as it can be in the face of her declining condition. The Tribunal was satisfied that he was well able to perform the role of guardian in relation to accommodation, health and services decisions.
Mr DBC faces no undue conflict of interests in relation to these decisions. The only conflict was the financial conflict that very commonly arises for a person who has to decide when their spouse should move into an aged care facility with the usual financial implications of that.
There can be tensions between any carer and a person with dementia. However, they have been married for 43 years and the Tribunal accepted Mr DBC's evidence that theirs has been a loving and positive relationship. The evidence of Dr Y's recent visit indicated a positive relationship. The Tribunal accepted that Mr DBC's personality is compatible with that of his wife.
The Tribunal did not see any circumstances that made it inappropriate to appoint Mr DBC as guardian in relation to accommodation, health and services decisions.
On one issue, the Tribunal decided that it should appoint the Public Guardian. This is the issue of whether Mr KBK should have access to Mrs SNC and arrangements for any access. There is fierce conflict between Mr DBC and Mr KBK which includes AVO proceedings and Mr KBK having made very serious allegations against his father which the Tribunal found unsubstantiated. In these circumstances, the Tribunal did not see Mr DBC as able to work through and make decisions about the issue of access. The Tribunal also saw him as having an undue conflict of interest on this issue. The Tribunal appointed the Public Guardian in relation to this issue.
How long should the order last?
The guardianship order is for one year and will then be reviewed by the Tribunal.
REVIEW OF POWER OF ATTORNEY
Mr DBC had applied for review of the 2013 power of attorney with the aim of having Mr KBK removed as alternative attorney.
The Tribunal obtained some evidence in relation to Mrs SNC's financial situation. Mr DBC told the Tribunal that he and his wife jointly own their own home with no mortgage. His wife owns shares from an inheritance. She also received cash from an inheritance of approximately $500,000. Some of this money was used to pay debts and house expenses. Mrs SNC's inheritance and his money had gone into one kitty. He had always managed his wife's money; she had not wanted to. Both their money goes into one pool from which expenses are paid. There is now about $200,000 in joint names. Mr DBC has always managed the family money. Mrs SNC receives a part pension but this may become a full pension soon. Mr DBC receives an aged pension.
Mr KBK told the Tribunal that a 1997 inheritance of his mother had been abused. His mother held a power of attorney for her aunt who also willed all her estate to Mrs SNC. However, the money ran out before the aunt died. Mr DBC denied this version of events.
Having considered the professional evidence in relation to Mrs SNC's cognition, the Tribunal had concerns about whether she had capacity to make the 2013 power of attorney and execute at the same time a revocation of the 2011 power of attorney.
These concerns were not allayed by the evidence of solicitor Ms SIO who prepared the 2013 documents. She said that she had not been aware that Mrs SNC had dementia. She had taken initial instructions from Mr DBC and then prepared the documents. Mr and Mrs SNC and Mr KBK then came in for execution of the documents. At least Mr and Mrs SNC were in the room when this happened. Ms SIO had asked Mrs SNC who she wanted as attorney and she had indicated her husband. Ms SIO had asked who she wanted a second attorney and she indicated her son. Ms SIO had said that it was a powerful document and Mrs SNC had responded, "Yes I know". Ms SIO had explained what the documents related to. Ms SIO was concerned that she had not been aware that Mrs SNC had a cognitive disability. She had been told there was a physical disability. Ms SIO still holds the original of the 2011 power of attorney which is in the standard form. This was dated 18 February and appointed Mr DBC alone.
Mr DBC said that he believed his wife was able to understand the 2013 power.
In the time available, the Tribunal was not able to fully consider the application. After some discussion, Mr DBC made an oral application for review of the revocation of the 2011 power of attorney.
At the adjourned hearing, the Tribunal will have a range of options to consider as set out in Section 36 of the Powers of Attorney Act. These include:
(a) Deciding whether Mrs SNC had the mental capacity to sign the 2013 enduring power of attorney and revocation of the 2011 power. If the Tribunal decides that Mrs SNC lacked capacity for these documents, the 2013 power of attorney could not be used and the 2011 power or attorney would no longer be revoked.
(b) If the 2013 power remains on foot, considering whether to remove Mr KBK as alternative attorney.
(c) Considering whether to make a financial management order and appoint a family member as manager (under the usual oversight and direction of the NSW Trustee) or appoint the NSW Trustee as 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: 21 October 2014
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