TFC

[2015] NSWCATGD 49

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	TFC [2015] NSWCATGD 49
Hearing dates:	17 August 2015
Date of orders:	17 August 2015
Decision date:	17 August 2015
Jurisdiction:	Guardianship Division
Before:	J Anderson, Senior Member (Legal) M Wroth, Senior Member (Professional) E Pickering, General Member (Community)
Decision:	Guardianship order made; public guardian appointed for 12 months to make decisions about accommodation, services, health care and medical and dental treatment.  Financial management order made; NSW Trustee and Guardian appointed; order to be reviewed in 12 months.
Catchwords:	GUARDIANSHIP – application for a guardianship order – subject person is 18 years old previously under the care of the Minister – subject person is an involuntary patient at a mental health unit – consideration of factors in section 14 of the Guardianship Act 1987 – whether subject person was ‘a person in need of a guardian’ – history of involvement with juvenile justice and mental health jurisdictions – consideration of subject person’s vulnerability – guardian appointed   FINANCIAL MANAGEMENT – application for a financial management order – capability to manage own affairs – need for a financial management order – best interests – young age and capacity to develop living skills – reviewable order made
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, and 25M Mental Health Act 2007 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW), s 59 NSW Trustee and Guardian Act 2009 (NSW), s 71(2)
Cases Cited:	H v H (unreported) NSW Supreme Court 20 March 2000 McD v McD (1983) 3 NSWLR 81 PY v RJS [1982] 2 NSWLR 700 Re GHI (a protected person) [2005] NSWSC 581
Category:	Principal judgment
Parties:	Ms TFC (subject person) Ms TVH (applicant) The Public Guardian The NSW Trustee and Guardian
Representation:	Ms Kellie Stares (separate representative for Ms TFC)
File Number(s):	59521
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify a person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

What the Tribunal decided

1. The Tribunal appointed the Public Guardian as Ms TFC's guardian for a period of 12 months to make decisions on her behalf about her accommodation, services, health care, and medical and dental treatment as set out in the Tribunal's Order; and

2. The Tribunal made a financial management order appointing the NSW Trustee and Guardian as financial manager of Ms TFC's estate for review in 12 months; and

3. The Tribunal recommended the NSW Trustee and Guardian, at a time and in circumstances it considers appropriate give consideration to authorising Ms TFC to manage so much of her financial affairs as the NSW Trustee and Guardian considers appropriate.

Background

1. Ms TFC is an 18-year old woman who at the time of the Tribunal hearing was an involuntary patient at a mental health unit of a public hospital in Regional NSW. Prior to this, Ms TFC had been at an adolescent unit of a public mental health facility in Regional NSW, and at a Juvenile Justice Centre in Sydney.

2. Ms TFC was under the care of the Minister from 2013 until 21 July 2015 when she turned 18. During this period, she lived in various placements, including in a supported accommodation facility managed by a not-for-profit organisation in West Sydney from March 2015. Ms TFC was remanded into custody in June 2015 on criminal charges.

3. Ms TFC has contact with her father, Mr SBC. She has not had contact with her mother for many years.

4. On 26 May 2015, the Tribunal received an application for the appointment of a guardian and financial manager for Ms TFC, by Ms TVH, Casework Manager from Family and Community Services (FACS).

The Hearing

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

What did the Tribunal have to decide?

GUARDIANSHIP

6. The questions which had to be decided by the Tribunal in relation to guardianship were:

• Is Ms TFC 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?

7. Is Ms TFC 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?

8. Section 14 of the Guardianship Act 1987 (NSW) ('the Guardianship Act') provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/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), 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), Guardianship Act).

9. The Tribunal had before it the oral and written evidence of health professionals involved in Ms TFC's treatment and care. This included a report of Dr Z, Registrar in Child and Adolescent and Forensic Psychiatry dated 7 July 2015, a report of Mr Y, Welfare Officer, a report of Dr X, Consultant Development Psychiatrist, and a report of Ms W, Psychologist, dated 28 May 2015.

10. The evidence indicates that Ms TFC has had frequent contact with the criminal justice system throughout her childhood and has spent periods in incarceration. Whilst in juvenile detention, Ms TFC has been subject to psychiatric assessment, commencing in 2011 when she was diagnosed with major depression and mood instability, for which she was prescribed Fluoxetine. In 2012, while in juvenile detention, Ms TFC presented with features of psychosis including delusions and hallucinations, for which she was prescribed Risperidone. In the community, she had been referred a Child and Adolescent Mental Health Service unit in Regional NSW and was prescribed Quetiapine and Risperidone, but her compliance with treatment was poor and was complicated by her substance use and itinerancy.

11. In June 2015, shortly before she turned 18 and while living at the not-for-profit organisation's refuge, Ms TFC was charged with various offences of violence, including in relation to an alleged assault of a resident of the refuge. As a result, Ms TFC was remanded in juvenile detention.

12. During this period, Ms TFC was reviewed by Dr X, who suggested that Ms TFC probably did not have an ongoing functional psychosis, but had experienced episodes of violent psychotic behaviour when affected by drugs. Dr X in his report opines Ms TFC has:

Many features of a complex-post traumatic stress disorder including dissociative episodes, frantic efforts to clean herself following many episodes of sexual assault, and the triggering of flashbacks, sudden violence when touched or provoked in such a way that would trigger such memories. She also self-harms when stressed, pursues very risky, if not dangerous strategies for anxiety relief and has very real panic about rejection and abandonment. Whilst her "absences" are probably dissociative in nature, neither the phenomena of psychotic thought-blocking, nor epileptiform dysrhythmia can be excluded. Whilst her responsivity, wit, and capacity for manipulation of her environment, all would militate against psychosis, she has also demonstrated a steady insight-less, down-hill trajectory in her functional capacity that would warn us to be cautious about ascribing all of her presentation to PTSD-related disorders.

13. Two and half weeks after being reviewed by Dr X, Ms TFC was transferred from juvenile detention to the adolescent unit of a public mental health facility in Regional NSW due to her high risk of serious aggression and active symptoms of psychosis.

14. While in that Unit, Ms TFC was reviewed by Dr Z, Registrar in Child and Adolescent and Forensic Psychiatry. In her report prepared for the Mental Health Review Tribunal and for the purposes of a hearing under s 59 of the Mental Health (Forensic Provisions) Act 1990 (NSW), Dr Z states Ms TFC suffers from Schizophrenia with ongoing persecutory delusions and ideas of reference, auditory and olfactory hallucinations, and thought disorder associated with a risk of serious harm to others, and is a mentally ill person as defined by the Mental Health Act 2007 (NSW). A Structured Assessment of Violence Risk (SAVRY) was completed on 7 July 2015, which indicated Ms TFC has a high loading for risk of future violence in the historical domain, high risk in the social/contextual domain, and a moderate to high risk in individual/clinical factors. Dr Z reports Ms TFC has an absence of the following protective factors: prosocial involvement, strong social support, and positive attitude towards authority, school commitment or resilient personality. Further testing indicated Ms TFC has a major mental illness, with active symptoms and poor insight.

15. At the time of the Tribunal hearing on 17 August 2015, Ms TFC had been recently transferred to a mental health unit of a public hospital in Regional NSW. While there appears to be some difference of views as to whether Ms TFC is currently experiencing psychotic symptoms, the diagnoses of Schizophrenia and Complex Post-traumatic Stress Disorder do not appear to be in dispute by the health professionals currently treating Ms TFC.

16. The Tribunal heard evidence from the applicant, Ms TVH, who said that although the treatment is assisting Ms TFC, Ms TFC's mental health condition continues to affect her capacity to make decisions in her best interests. Ms TVH said Ms TFC has a tendency to self-medicate with drugs and alcohol, which have been a feature of Ms TFC's life since she was 12 years old. Ms TVH also said that whilst there have been significant recent improvements, Ms TFC has demonstrated difficulty complying with mental health treatment, and with living with others in the community.

17. Ms Stares, the separate representative appointed for Ms TFC, agrees Ms TFC has a disability as a result of complex mental health disorders, including Schizophrenia and post-traumatic stress disorder, and her disability affects her capacity to make informed decisions.

Tribunal consideration

18. The Tribunal takes into account Ms TFC's youth as well as her traumatic background and circumstances. The Tribunal also takes into account the professional evidence before it, and notes that Ms TFC has now been in hospital for some months, during which time there have been multiple occasions for review by mental health professionals. Whilst Ms TFC's diagnosis of Schizophrenia has emerged relatively recently, and there are some different views about her current presentation and medication, there appears be little, if any, dispute that Ms TFC suffers from complex mental health concerns, including Post-Traumatic Stress Disorder, which have contributed to her poor decision-making and risky behaviours. On all of the evidence before it, the Tribunal is satisfied that Ms TFC has a disability 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?

19. Section 14 of the Guardianship Act requires the Tribunal, in considering whether to not to make a guardianship order, to have regard to the following:

1. the views (if any) of:

1. the person, and

2. the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and

3. the person, if any, who has care of the person,

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.

20. Ms TFC participated in the Tribunal hearing via video-conference from the Mental Health Unit of a public hospital in Regional NSW. Ms TFC initially told the Tribunal that she could make her own decisions and did not need a guardian. However, later in the hearing, consistent with earlier discussion with Ms Stares, Ms TFC told the Tribunal that she did not mind having a guardian appointed for her, but did not want a financial manager.

21. The evidence indicates Ms TFC has had a troubled childhood with exposure to domestic violence, drug use and psychological harm. Her mother and brother both suffer from Schizophrenia. Ms TFC has moved frequently during between placements with friends, family and refuges. Ms TFC last attended school when she was 13 and has been using alcohol and substances since the age of 12. Ms TFC was apparently in a 2-year relationship with a 39-year old man who she had described as her drug dealer. Ms TFC has attended residential rehabilitation for her drug and alcohol issues on four occasions in the last year, but has not completed the rehabilitation. She has a history of aggressive and violent behaviours which have led to multiple criminal charges, including offences of violence and property damage, and which have resulted in a number of periods of incarceration.

22. The present plan is for Ms TFC to spend a further six weeks in hospital, before being discharged (on a community treatment order) to accommodation provided by a not-for-profit specialist homelessness service provider (Service Provider A) in Regional NSW. That accommodation, which is leased by the Service Provider A from Housing NSW, would include case management and up to 14 hours a week of support. The plan is for Service Provider A to sub-let the property to Ms TFC initially on a lease of six weeks, with a possible increase to three months. The current proposal is that the accommodation be available for Ms TFC for a total of 12 months with a review occurring at nine months. Ms V, Manager of Service Provider A, indicated that if things do not go well, Service Provider A would not be in a position to continue supporting Ms TFC.

23. The involvement of Ms TVH and Mr EME is soon to cease as a result of Ms TFC no longer being under Ministerial care. Ms TVH and Mr EME are of the view Ms TFC requires a guardian as she transitions to the community in the absence of FACS involvement and upon leaving the hospital environment.

24. The Tribunal attempted to communicate with Mr SBC by telephone at the commencement of the hearing, but was unable to establish contact. Ms TVH told the Tribunal that although Mr SBC cares about his daughter, he is not in a position to provide assistance with decision making due to his daughter's challenging behaviours and his own work and family commitments.

25. Ms Stares supports the appointment of a guardian for Ms TFC, and is of the view that a guardianship order should include the functions of accommodation, services, health care, and medical and dental treatment. Ms Stares said Ms TFC has a history of not always engaging in services, and notes that a mental health case manager has not yet been appointed for her. In addition, Ms Stares said there had been a history of breakdowns in Ms TFC's accommodation notwithstanding the involvement of FACS, and there is a consequent risk of homelessness and further contact with the criminal justice system. Ms Stares said that with the cessation of FACS, Ms TFC will now need to be self-reliant, and it is appropriate that a guardian be involved during this transition process.

Tribunal consideration

26. Although Ms TFC has made progress in the last two months while receiving treatment in hospital, the Tribunal finds that Ms TFC is a vulnerable young woman who faces challenges as she leaves the framework of ministerial care and enters into the community as an adult. Having regard to Ms TFC's past issues with drug and alcohol use, the instability of her accommodation and services, and her contact with the criminal justice system, and further noting that such issues have been present during periods in which she has had the involvement of a supervisory body, the Tribunal finds that informal arrangements are not likely to be adequate to protect Ms TFC's welfare and interests. Accordingly, the Tribunal finds that Ms TFC is in need of a guardian and it is in her best interests that a guardianship order be made.

What decision-making functions should be included in the order?

27. The Tribunal finds that the guardian's functions should extend to decision-making with respect to accommodation and services, both of which are likely to arise imminently in light of Ms TFC's lengthy hospital admission and the current discharge planning process. In addition, in order to make properly informed decisions for Ms TFC, it will be important for the guardian to have regard to Ms TFC's health care, and be able to liaise with the health professionals to make medical and dental treatment decisions on her behalf as required. In this regard, the Tribunal notes the complexity of Ms TFC's health concerns. Her age and the complexity of her mental health conditions make Ms TFC especially vulnerable and it will be important that the guardian have appropriate functions to ensure effective decision-making occurs.

Who should be the guardian?

28. 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.

29. The Tribunal was not aware of any private person available to be appointed as guardian for Ms TFC. Therefore, the Tribunal appointed the Public Guardian.

How long should the order last?

30. An initial guardianship order can be made for a period of up to one year from the date on which it was made. However, an order of up to three years can be made, if the person the subject of the order has permanent disabilities, is unlikely to become capable of managing his or her person and there is the need for an order longer than one year. The Tribunal decided to make an order for 12 months to enable important decisions to be made during this period.

FINANCIAL MANAGEMENT

31. The questions which had to be decided by the Tribunal in relation to financial management were:

• Is Ms TFC incapable of managing her affairs?

• Is there a need for another person to manage Ms TFC'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 Ms TFC incapable of managing her affairs?

32. A person's capability to manage his or her affairs was considered by Campbell J in the NSW Supreme Court in Re GHI (a protected person) [2005] NSWSC 581. Campbell J affirmed the approach enunciated in PY v RJS [1982] 2 NSWLR 700 by Powell J, at [7]:

It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears:

(a)   that he or she is incapable of dealing, in a reasonably competent fashion with the ordinary routine affairs of man; and

(b)   that by reason of that lack of competence there is shown to be a real risk that either

(i)   he or she may be disadvantaged in the conduct of such affairs; or

(ii)   that such moneys or property that he or she may possess may be dissipated or lost ... it is not sufficient in my view merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner..."

33. Young J in H v H (unreported) NSW Supreme Court 20 March 2000, in dealing with the capacity test as it has been enunciated in NSW, said that dealing with the "ordinary affairs of man" does not simply mean being able to go to the bank and draw out housekeeping money. Most people's affairs, his Honour said,

are more complicated than that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one's family and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills.

34. It should be noted that the relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86).

35. Ms TFC told the Tribunal that she currently receives $437 a fortnight in Centrelink payments, and at the present time she has about $60 in her bank account. She indicated that, to date, she has not been required to pay rent, and that she spends her money on clothes and phone credit. She conceded she used to also spend her money on drugs and alcohol, but said that this is no longer an issue as she is not using those substances.

36. Mr Mr Y, Welfare Officer at the public mental health facility in Regional NSW, is in the process of applying for the Disability Support Pension on Ms TFC's behalf. In the event Ms TFC enters into Service Provider A's accommodation, she will be required to make payments of $120 a week.

37. Ms TFC wishes to manage her Centrelink payments on her own, but does not oppose a financial manager being appointed to manage any future victims of crime compensation monies she receives, admitting that she would probably spend those funds on clothes. In this regard, the Tribunal understands that Ms TFC may be eligible for victim's compensation as a result of the past trauma she has experienced, and whilst it is believed that some paperwork has been completed, it is not certain whether an application has been finalised.

38. Ms Stares expressed concern about Ms TFC's ability to manage her finances, and noted that Ms TFC's drug and alcohol issues may undermine her ability to do so. However, Ms Stares submitted that there was insufficient evidence at this stage to establish Ms TFC lacks the capacity to manage her financial affairs.

39. Ms TVH is of the view that Ms TFC is not yet capable of managing her financial affairs. She said that since Ms TFC was 16, attempts have been made to engage her in programs aimed at developing her living and financial planning skills. However, she has not been able to complete such programs, with periods of incarceration being a factor in preventing her from developing her financial management skills. Ms TVH also said that Ms TFC's association with various peer groups has seen her give her money away to others, and her tendency to have 2-hour showers demonstrates her inability to appreciate the financial implications of such actions.

40. Ms U, House Manager at the not-for-profit organisation refuge in West Sydney where Ms TFC previously resided, reports that Ms TFC would request to go to the bank each payday and withdraw her money, which would be spent on phone credit, cigarettes and take-away food (despite her accommodation providing her with three meals a day). Ms TFC was also observed to frequently spend money on purchasing clothes for herself or family members, and would often only wear clothes for a short time before purchasing new ones. Ms U conducted a Living Skills Checklist with Ms TFC earlier this year, the results of which Ms U asserts indicate that Ms TFC is not able to appropriately budget or establish and maintain financial goals.

41. Ms W and Mr T of the Juvenile Justice Community Services in Regional NSW, in their report of 28 May 2015 indicate that, at that time, it was reported that the entirety of Ms TFC's Centrelink payment was being used for ongoing drug use, despite budgeting assistance and support to participate in rehabilitation being provided by staff involved in her care.

Tribunal consideration

42. The Tribunal notes that Ms TFC presents as an articulate and bright young woman, with quite impressive verbal skills. During the Tribunal hearing, she was able to provide details about her financial affairs, including for example, the precise amount of money she received each fortnight in Centrelink payments.

43. However, notwithstanding Ms TFC's knowledge of her current estate, there is limited evidence to indicate that she would be capable of managing her legal and financial affairs upon her re-entry into the community. Indeed, the evidence indicates that attempts to assist with developing her financial management skills have been unsuccessful. The Tribunal takes into account the views of Ms TFC and the submissions of Ms Stares, and is cognisant of the fact that Ms TFC's circumstances have meant that she has had limited income and limited financial responsibilities. However, on consideration of all of the evidence, including the severity of Ms TFC's mental health concerns, her history of substance abuse, and the fact that her estate and corresponding financial responsibilities are likely to increase, the Tribunal, on balance, was satisfied that Ms TFC is not capable of managing her financial affairs.

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

44. The Tribunal finds that there is a lack of evidence that Ms TFC has developed skills or experience that would enable her to manage her estate independently. On the contrary, the evidence indicates that Ms TFC has made decisions to spend her limited income on items not in her best interests, and in circumstances where she has not been required to fund her own accommodation and care.

45. In addition, the Tribunal takes into account that Ms TFC is soon to live in the community. It will be important during this transition period for Ms TFC to have proper support mechanisms in place, including a framework to protect her financial interests. The Tribunal was concerned that Ms TFC's accommodation would be at risk if she were solely responsible for her finances, which would necessarily include the responsibility of paying her accommodation and care fees. Moreover, the application for victim's compensation may need to be further progressed and decisions made about the use of any funds to which Ms TFC may be entitled. Taking into account Ms TFC's past issues and disengagement from her supports, the Tribunal was not satisfied that informal arrangements, including the assistance of service providers and family, will be sufficient to protect Ms TFC's welfare and interests. On all of the evidence before it, the Tribunal, on balance, was satisfied that there is a need to appoint a financial manager for Ms TFC and it is in her best interests that a financial management order be made.

Who should be appointed financial manager?

46. 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.

47. 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.

48. The Tribunal was not aware of any person suitable and willing to take on the responsibility of managing Ms TFC's legal and financial affairs. Accordingly, the Tribunal was satisfied that the NSW Trustee and Guardian should be appointed as the financial manager of Ms TFC's estate.

Order with a Specified Review Period

49. The Tribunal takes into account the fact that Ms TFC is only 18 years old and it is hoped that she will have opportunities to continuously develop her living skills. The Tribunal decided that the financial management order should be reviewed in 12 months to enable further consideration of the facts and circumstances at that time, including any decisions made by the Public Guardian in relation to its guardianship of Ms TFC. Upon review by the Tribunal in 12 months, Ms TFC and the other parties will have an opportunity to give evidence and make submissions about the financial management order, including whether it is still required and/or if any variations are needed.

Recommendation

50. The Tribunal is mindful of Ms TFC's age and her strongly held wish to be given an opportunity to manage her financial affairs. The Tribunal therefore recommends the NSW Trustee and Guardian, at a time and in circumstances it considers appropriate, pursuant to s 71(2) of the NSW Trustee and Guardian Act 2009 (NSW), give consideration to authorising Ms TFC to manage so much of her financial affairs as the NSW Trustee and Guardian considers appropriate.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 06 June 2016