SZC

[2020] NSWCATGD 44

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

SZC [2020] NSWCATGD 44

Hearing dates:

31 March 2020

Date of orders:

31 March 2020

Decision date:

31 March 2020

Jurisdiction:

Guardianship Division

Before:

E M Connor, Senior Member (Legal)

Decision:

The guardianship order for SZC made on 19 March 2019 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 three years from 31 March 2020.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Accommodation

To decide where SZC may reside.

b) Health care

To decide what health care SZC may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to SZC.

CONDITION:

5. The condition of this order is:

a) Standard Condition

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

Catchwords:

GUARDIANSHIP – end-of-term review of a guardianship order – whether subject person continues to have disabilities which prevent them from making important life decisions – subject person with mixed vascular and Alzheimer’s dementia - whether a further guardianship order should be made – subject person’s husband denies seriousness of subject person’s cognitive impairment – need for guardian to make health care, medical treatment, accommodation and services decisions – suitability of proposed guardian – proposed guardian not suitable – no other private guardian available - Public Guardian appointed - order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2)

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

Nil

Category:

Principal judgment

Parties:

SZC
TAC
NSW Public Guardian

Representation:

Nil

File Number(s):

NCAT 2018/00057845

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

Background

1. SZC is an 85-year-old woman who lives at home with her husband, TAC, in Upper North Shore Sydney. They do not have any children. The Tribunal has previously accepted evidence that SZC has mixed vascular and Alzheimer’s dementia.

2. On 5 April 2018 the Tribunal consented to the withdrawal of applications for the appointment of a guardian and financial manager for SZC.

3. On 19 March 2019, following receipt of fresh applications, the Tribunal made a guardianship order appointing the Public Guardian as SZC’s guardian with the functions of accommodation, health care, medical and dental consents, and services.

The hearing

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

Settlement

5. The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. There was no conflict in this matter.

STATUTORY REVIEW OF GUARDIANSHIP ORDER

What did the Tribunal have to decide?

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

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

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

• Should the Tribunal make a further guardianship order and if so, what order should be made?

• Who should be the guardian?

• How long should the order last?

Is SZC someone for whom the Tribunal could make a further order because she continues to have a disability which prevents her from being able to make important life decisions?

8. Section 14 of the Guardianship Act 1987 (NSW) 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 Guardianship 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 Guardianship Act.

9. When the previous order was made, the Tribunal found that SZC had mixed vascular and Alzheimer’s dementia and that she sustained a stroke in 2016. As a result of her disabilities the Tribunal was satisfied that she was unable to make important life decisions. There is no new evidence before the Tribunal in relation to this issue.

10. TAC does not agree that his wife has these disabilities, telling me that ‘she is quite capable, although she doesn’t do much’. He told me that she has 24-hour care.

11. Ms Z is a service provider with a healthcare provider who was caring for SZC at the time of the hearing. She stated that SZC is ‘completely bedridden and is not able to make decisions for herself’.

12. Mr Y is a longstanding friend of Mr and SZC. He said that he has not seen SZC since October 2019 and did not wish to comment on her ability to make decisions for herself.

13. Ms G from the Public Guardian gave evidence that she visited SZC in July 2019. SZC’s presentation was consistent with that of a person with dementia and she was unable to make informed decisions. Ms G submitted that SZC has experienced an overall decline since then and has had a number of hospitalisations.

14. I am satisfied that SZC continues to have disabilities which prevent her making important life decisions. She is a person for whom the Tribunal could make a further guardianship order.

Should the Tribunal make a further guardianship order and if so, what order should be made?

15. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further 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.

16. 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 Guardianship Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

17. Ms G provided a written report dated 16 March 2020 on behalf of the Public Guardian, recommending the continuation of the guardianship order with the functions of accommodation, health care, medical and dental consents, and services.

18. Ms G explained during the hearing that she has been informed by the NSW Trustee and Guardian that the available financial resources will only enable SZC to remain at home with private care for approximately two years, assuming there are no significant unforeseen expenses. There will need to be a decision about a more affordable form of accommodation and care for SZC prior to the available funds running out.

19. TAC stated that ‘when a decision needs to be made it will be discussed’. He stated that the cost of care is ‘low’ as there is only one person present most of the time.

20. Mr Y declined to offer a view about the need for the guardianship order to continue.

21. I decided on the basis of evidence before me that a further guardianship order should be made with the functions recommended by the Public Guardian: accommodation, services, health care, and medical and dental consents.

22. A decision will need to be made about SZC’s future accommodation prior to her being unable to afford to pay for private care at home. There is a need to oversee the services currently being provided and for the guardian to be able to make decisions about her health care. Given TAC’s apparent lack of understanding or denial of the seriousness of his wife’s cognitive impairment, there is a need for the guardian to be able to consent to medical and dental treatment on SZC’s behalf. I am not satisfied that he is able to act as her ‘Person Responsible’.

Who should be appointed as the guardian?

23. The Public Guardian was appointed as SZC’s guardian on the last occasion.

24. I do not believe TAC is a suitable person to be appointed as guardian for his wife. He did not demonstrate a realistic view of her impairments and needs or their inability to continue to pay for private care at home indefinitely.

25. As there is no private person available to be appointed as guardian, I reappointed the Public Guardian.

How long should the order last?

26. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made.

27. I decided to make an order for three years. Ms G indicated that provided there are no unforeseen expenses, it is anticipated that SZC will be able to continue to be cared for at home for approximately two years. A three-year order will enable SZC to then be placed in appropriate alternative accommodation prior to the further review of the order. This was supported by Ms G during the hearing.

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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: 26 March 2021