XCB

[2015] NSWCATGD 29

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	XCB [2015] NSWCATGD 29
Hearing dates:	4 June 2015
Date of orders:	04 June 2015
Decision date:	04 June 2015
Jurisdiction:	Guardianship Division
Before:	R Gurr, Senior Member (Legal) G Jamieson, Senior Member (Professional) M Oxenham, General Member (Community)
Decision:	The Tribunal committed the estate of XCB to the management of the NSW Trustee and Guardian and directed that the order by reviewed in 12 months.
Catchwords:	FINANCIAL MANAGEMENT – capacity to manage affairs – test for assessing capacity – need for financial management order – best interests – reviewable financial management order made
Legislation Cited:	Guardianship Act 1987 (NSW)
Cases Cited:	CJ v AKJ [2015] NSWSC 498 EB v Guardianship Tribunal [2011] NSWSC 767 P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 Re D [2012] NSWSC 1006 Re D (No 2) [2014] NSWSC 724 Re R [2014] NSWSC 1810
Category:	Principal judgment
Parties:	Ms XCB (the subject person) The Public Trustee of Tasmania (applicant) Ms TQJ (carer of Ms XCB) The NSW Trustee and Guardian
File Number(s):	59021
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

1. The Tribunal committed the estate of Ms XCB's to the management of the NSW Trustee and Guardian. This order is to be reviewed in twelve months' time.

Background

2. Ms XCB is currently residing with her nephews, Mr BPI and Mr TMS in Western Sydney. Ms XCB is originally from Afghanistan and is from an ethnic minority in Afghanistan. Ms XCB's two sons were killed in conflict in Afghanistan. Ms XCB has three daughters who reside overseas. She arrived in Australia via a South Asian country in April 2014 as a refugee with her daughter-in-law and three grandchildren between 12 and 17 years of age. Ms XCB initially lived in Tasmania before moving to Sydney to live with her nephews.

3. On 26 November 2014 the Guardianship and Administration Board of Tasmania appointed the Public Trustee of Tasmania as Ms XCB's administrator, an order effective until 25 November 2017, that is, three years from the date on which it was made.

4. On 26 March 2015 the Public Trustee of Tasmania submitted an application for a financial management order to be made in New South Wales as Ms XCB had moved permanently to this state. It is this application which now comes to be determined.

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 from publication].

What did the Tribunal have to decide?

6. The Guardianship Act 1987 (NSW) sets out the grounds for making a financial management order in s 25G:

The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that:

(a) the person is not capable of managing those affairs, and

(b) there is a need for another person to manage those affairs on the person's behalf, and

(c) it is in the person's best interests that the order be made.

7. The questions for the Tribunal were, therefore:

• Is Ms XCB incapable of managing her affairs?

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

8. In the case of P v R [2003] NSWSC 819 Barrett J restated the question thus (at [26]):

"The task of the court, upon an application such as this, is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person's property. This is a somewhat shorthand version of the tests laid down by the authorities..... The point to be emphasised is that the requisite judgment is to be made in the light of objective physical facts concerning the relevant person's property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter." (our emphasis).

9. This formulation was accepted by His Honour, Mr Justice White in Re D [2012] NSWSC 1006, by Mr Justice Ball Re D (No 2) [2014] NSWSC 724 and more recently by Mr Justice White in Re R [2014] NSWSC 1810. It is a succinct and practical statement of the task before us.

10. This approach and line of authority has been very recently endorsed by Mr Justice Lindsay in a comprehensive judgment in the case of P v NSW Trustee and Guardian [2015] NSWSC 579 (18 May 2015), in which His Honour examined the legislative history, whereby concepts of cognitive impairment became detached from what is now "a freestanding idea governed in context by the purposive character of the jurisdiction to be exercised." (CJ v AKJ [2015] NSWSC 498 at [27], that is, a protective jurisdiction. He emphasised the functional nature of the test and the fact that a person can be incapable of managing his or her financial affairs without being "a person with a disability" as defined by the Guardianship Act or indeed as it might generally be understood (at [304]), although it will in most cases be a relevant consideration.

11. Justice Lindsay said that it is necessary to closely examine the facts of a particular case in determining whether a person is "incapable of managing his or her own affairs" (at [312]). He redirected attention back to the words of the legislation and rejected additional tests which sought to add a gloss to them. He endorsed the approach taken in EB v Guardianship Tribunal and Ors [2011] NSWSC 767 at [134] which saw it often as relevant to ask whether there was "a particular action to be taken which the person cannot take and which won't happen if someone is not appointed." He reiterated (at [320]) that ultimately what is done must be in the best interests of the person concerned.

12. In the application it is noted that the Public Trustee of Tasmania has had difficulties obtaining information about Ms XCB's needs and expenses. It is claimed that Ms XCB had previously been potentially at risk of exploitation, having reportedly loaned money that was never repaid and having a tendency to withdraw large sums of money which she kept on her person.

13. In the application it is indicated that Ms XCB probably had dementia and possibly had a personality disorder. The Tribunal was referred to professional reports which had also been before the Tasmanian Tribunal.

14. There was a report by Dr Z, geriatrician - emanating from an examination he undertook on 9 July 2014 - the day he had first met Ms XCB. He has reported a "Possible personality disorder" and a "Probable dementia."

15. In relation to a question about "Any other disability" in the report form he was using he says the following:

[Ms XCB] has been noted by several careful observers to be impulsive and inconsistent in decision making. She has repeatedly demonstrated lack of risk recognition and ability to provide accurate information or make reasonable plans re ongoing personal care and living arrangements (several years by family's report.)

16. As to prognosis he has indicated her condition is both "Static" and "Deteriorating" and says "It is quite unrealistic to expect improvement."

17. He reports on the poor long term poor relationship between Ms XCB and her daughter in law and says she is unable to make a reliable or reasonable decision in relation to her long term care and accommodation. Her deficits in relation to decision making were said to be "impulse control, capacity for new learning, susceptibility to influence and planning and reasoning skills."

18. He concludes that she cannot make decisions about her accommodation or her finances.

19. He goes on to say

"[Ms XCB] exhibits clearly manipulative behaviour directed at her own wishes without regard to the wishes or needs of her other family members. She has made negative claims in relation to these family members treatment of her which simply cannot be true (See social work report.)

20. He says he has not discussed his report with Ms XCB and is concerned if disclosed it "will cause unnecessary stress." She would be prevented from attending a hearing in his view "she will be unable to understand the need for guardianship procedure, would be very distressed."

21. A comprehensive social work report dated 21 July 2014 was before the Tribunal. Ms NRC says that Ms XCB was admitted to a public hospital in Tasmania on 8 May 2014 with poor mobility and chronic back pain - following investigations a severe narrowing of the spinal canal compounded by a lumbar 2/3 compression fracture was revealed. She was diagnosed with cauda equina syndrome and a staph infection in her spine requiring intravenous antibiotic treatment. During admission she was diagnosed with depression with a background of severe grief, loss and trauma noted, and commenced on anti-depressant medication. She had surgery on her spine in a country in South Asia approximately eighteen months prior. She was also diagnosed with a hiatus hernia and oesophagitis.

22. Her family have indicated they are no longer willing to care for her and propose to move long term to accommodation which will not accommodate her.

23. She was assessed as having functional innumeracy and illiteracy although she can sign her name. She was reported not to be able to use an ATM card independently and be reliant on her 17-year old grandson. There were tensions within the family as she was reported to be reluctant to put her money towards the house hold expenses and she reported the family did not offer her adequate food and only gave her food if she gave them cash; they in turn said she often refused food because she said she felt sick. She also claimed her daughter-in-law refused to provide her with adequate assistance with her personal hygiene. Independent investigation appeared to show no basis for her claims of neglect. She later admitted that the family had in fact assisted her since arrival in Australia and during the three years they were in a country in South Asia. Whilst in hospital she has fallen a number of times and appears to lack insight in the need for care in relation to her fragile spine. She is unable to call for support when needed - compounded by cultural and language barriers.

24. Ms XCB was taken to see a care facility near where her family would probably locate, as she was reported to have said that she would accept supported accommodation to Dr Y, psychologist. However, when she went there, she is reported to have refused and asked to be discharged to her family. It had thus been said that she is unable to "articulate a consistent plan or express consistent wishes as to where she would like to live."

25. Her case worker reports that she has also found Ms XCB constantly changing her mind about whether she did or did not wish to live alone, live with the family or live alone with support from the family. Centacare staff have also expressed deep concern that they may assist her to sign up for a long-term lease for accommodation which may not be regarded as safe for her. The appointment of an administrator (that is, a financial manager) Ms NRC said will ensure financial and legal agreements can be undertaken to secure care and service.

26. An occupational therapy report dated 1 July identified a number of difficulties experienced by Ms XCB in completing a familiar task which were related to problem solving in an unfamiliar situation and taking in new learning. She was able [to] plan and initiate a familiar task and plan alternate strategies for achieving what she wanted to do, that is, make a cup of tea. In relation to finances she was at that time reported to be able to identify coins in Australian currency but had difficulty with larger denominations especially when the size of notes of the same denomination was different.

27. On 6 October 2014 Dr X, Consultation Liaison Psychiatrist, interviewed Ms XCB with the assistance of an interpreter with view to providing a report on her capacity to make decisions in relation to her medical treatment, accommodation and finances.

28. He concluded that in all probability Ms XCB suffered from a form of irreversible cognitive impairment. He could not from the interview with her clarify what type of impairment this was. He also believed she was suffering a major depressive episode but did not think this was impacting on her cognitive capacity to a dramatic extent, that is, treating this would not restore cognitive capacity significantly. Functionally she appeared to lack cognitive capacity to retain sufficient information or to process relevant information adequately to make reasonable decisions regarding her accommodation, health care or finances, even taking into account the cultural and language difficulties. He did not foresee Ms XCB as regaining capacity in these domains in the future.

29. On the bass of all of the evidence before it, the Tasmanian Guardianship and Administration board was satisfied as at 24 November 2014 that Ms XCB "was a person with a disability, and was unable by reason of that disability to make reasonable judgements in respect of her estate and was in need of administrator."

30. The applicant says that Ms XCB suffers a disability being a probable dementia and a possible personality disorder based on the same evidence which was before the Tasmanian Board. We do not have any [Reasons for Decision] of the Tasmanian board as to how and why they reached their conclusions. This Tribunal is not able to simply adopt the view of the Tasmanian Board for a number of reasons including that we have not reached the same conclusions as the Board on the basis of the medical evidence in relation to Ms XCB having a disability, the effluxion of time since that decision and the differences in the law in the two states relating to the threshold test as to capacity to manage financial affairs.

31. The authorities set out above make it clear that the Tribunal in NSW does not have to find that Ms XCB has a disability in order to find that she lacks the capacity to manage her financial affairs - that is essentially a practical enquiry based on the facts of her particular case. However the Tribunal's view about any disability does affect the type of order the Tribunal would make - whether we consider there is some prospect in the future of Ms XCB regaining the capacity to manage her financial affairs or it being likely the situation will be such that it would be in her best interests for there to be no order in place. If we are satisfied of either of these we would make an order reviewable after a certain period of time, unlike the more usual order which does not specify a review period. Whilst the reason for a person's incapacity does not matter - as long as there is that practical incapacity, our view about disability if there is one, will also be one of the factors we would take into account in our eventual conclusion about a person's ability to manage their affairs.

32. We cannot be satisfied that Ms XCB suffers from dementia or any other irreversible or progressive cause of cognitive impairment.

33. Dr X's report does not assist us - it does not meet the standard for professional evidence (the so called Makita standard) in that it is not possible to discern from it what diagnostic criteria he used or how he reached his conclusion that she suffers some form of irreversible cognitive impairment or that the major depression she was thought to suffer did not dramatically affect her decision making.

34. The Tribunal notes that at the time of Dr Z's report and the other professional reports written at a similar time, that is, in July 2014, Ms XCB had been in Australia less than three months after spending three years as a refugee in a South Asian country after fleeing violence in her home country in which two of her sons were killed and she was living with, and dependent on the wife of one of them, with whom she did not get on and who no doubt had more than her own share of grief and difficulty, having lost her husband and recently brought three children, for whom she is now solely responsible with her to Australia - a country as far as the Tribunal knows is wholly strange to her. The family had also made it clear that they did not want to continue to have Ms XCB live with them - for a whole range of reasons it was clearly "all too hard." Ms XCB knew this and whilst she did not get on with her daughter-in-law it must have caused her considerable anxiety in a new and totally unfamiliar society where she did not speak the language and the social environment, expectations, and organisation was completely alien.

35. That Ms XCB was inconsistent in her choices about accommodation and care, veering between wanting to be with her family and wanting to be independent of them is hardly surprising, as she would naturally be ambivalent about the possibility of being by herself after all the family had been through together and their expressed attitude of not wanting to continue to have then live with them, even though she does not get on well with her daughter-in-law. This is not in itself sufficient to conclude she has an irreversible cognitive impairment from dementia or any other cause, other than the difficult and confusing situation in which she finds herself and her traumatic history.

36. Dr Z says her condition (it is unclear whether this is the dementia or the personality disorder or both and there do not seem to be any diagnostic criteria for either of these) is both "static" and "deteriorating" - but the Tribunal could not see how it could be both.

37. In summary, the medical and other professionals who were involved with Ms XCB in Tasmania were clearly concerned about her and worried that she would not access the level of care they thought she needed, bearing in mind her physical restrictions, the fact that her family had experienced considerable difficulty in seeking to care for her, her behaviours which seemed strange to them and they categorised in negative terms, the difficulty in communication, her vulnerability for a range of reasons and her apparent inability to make clear decisions, but they did not really know what was wrong with her or if she really suffered from some diagnosable disease or condition which affected her cognition, apart from depression. They did not have any other explanation for the behaviours and actions they were concerned about - hence the "possible" or "probable" diagnoses.

38. When the matter came before this Tribunal, there were two other pieces of professional evidence presented. The first is a letter dated 2 June 2015 from a counsellor at the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) where Ms XCB has been receiving assistance. It says that

[Ms XCB]'s clinical presentation is consistent with her being a trauma survivor. She reports suffering from trauma related symptoms, anxiety and depression symptoms including: lack of interest in daily activities, low mood, restlessness, sleep problems and social withdrawal...

"Currently [Ms XCB] experiences (lack of control over her money) as a major source of stress and lack of control in her life. (She) stated that she had been independent throughout her life (and) believes...(she is)...capable in managing her income and life expenses at this stage. She also feels much supported by her current family friends and carer who are willing to provide any support to her when it is needed."

39. The counsellor goes on to emphasise the importance of a feeling of control over her life to her recovery and recommends for that reason she be given the management of her finances.

39. Also before the Tribunal is a report from GP Dr W from a medical centre in Western Sydney. He reports an MMSE score of 25/30. He notes she is illiterate in her own language and has no formal education, which may affect her score. He notes a diagnosis of major depression in January 2015, but there is no notation of any diagnosis of cognitive impairment or of a personality disorder. Nor is there any mention of these in the STARTTS report.

40. The Tasmanian Trustee report $10,000 held in the Trust account on Ms XCB's account and say $400 per week is now paid to her nephew to meet her costs. Previously it was $200 per week and the Trustee reported that there had been some difficulty at first in ascertaining just how much was needed for her living expenses when she came to live in Sydney. A further $2500 had been made available from which a mattress, pillow, a rug and a heater had been purchased for Ms XCB's use. Mr BPI says that she can continue to live with him. His wife, Ms TQJ assists her as her carer as he is at work all day. Their household expenses are split three ways.

41. Bearing in mind the practical nature of the test we have to apply, the Tribunal spoke at some length to Ms XCB about her financial situation.

42. A Tribunal Officer had reportedly contacted Ms XCB prior to the hearing in order to ascertain her views. In a reported telephone conversation on 28 May 2015, with the assistance of an interpreter speaking Ms XCB’s community language, Ms XCB reportedly expressed the view that she could look after her own money. Ms XCB indicated that no one was currently helping her to look after her money. In relation to whether there was anyone she would trust to look after her money if she needed help, Ms XCB advised that she would have to think about it.

43. At the hearing Ms XCB also told the Tribunal she could look after her own money. She agreed she had lent a member of her community in Tasmania $3500 and said prior to that she had $7000, $3500 of which she still had. This was the money observed to be on her person by staff of the public hospital in Tasmania. She said that she received back the $3500 loan before she left Tasmania.

44. Ms XCB says that all of the problems she has experienced in not being able to control her money are "because of the bank." She thinks her income somehow comes from the bank and they are withholding that money, although she also told the Tribunal that her money came "from the government." She did not now know how much of her money was spent, for example, on rent and food but knew she had previously received $840 in her income payment. She categorically rejected the idea that should she regain control of her money she would put any of it in the bank. She said she would "keep it at home and spend it." Ms XCB says one of the reasons she wants control over her money is because she wants to pay for her daughter to come to Australia from Norway and her nephew explained she wanted to be able to pay a lawyer to enable this to happen.

45. Ms AIH from an international not-for-profit organisation said that they had been trying to assist Ms XCB understand about Centrelink and Australian currency. She had found Ms XCB to be "active and intelligent." It was very common for older people from Afghanistan not to understand about the banking and social security systems and to be mistrustful of banks. Ms XCB was also being assisted to access public housing and if this was allocated she would need to enter into a lease and arrange to pay rent. Her service would now be handing over to another not-for-profit organisation based in Western Sydney. The Tribunal noted Ms LBI from the not-for-profit organisation in Western Sydney was at the hearing and confirmed they would be providing services to assist Ms XCB in the future.

46. From all of this evidence, the Tribunal concluded that Ms XCB did not understand the Australian social security and banking systems and did not understand that the safety of large sums of money was compromised if they were not deposited in a bank or some other safe place. We do not think that this lack of understanding arises from dementia or other irreversible cognitive condition. It is, however, due to her history and the fact that her age will make it more difficult to process new information in the alien social and linguistic environment she finds herself in. She is, however, a survivor and the Tribunal is by no means convinced that her current deficiencies in understanding cannot be overcome in due course. Now, however, the Tribunal has concluded they more likely than not mean that she is not able to properly manage her financial affairs. Of course, this has not in fact been able to actually be tested in her current situation, because her affairs have been being managed by the Tasmanian Trustee since November 2014.

47. It was also previously reported that she had declined to contribute to the family expenses, which may be one of the reasons she had managed to accumulate a large sum of money when she was in the public hospital in Tasmania. She has a very strong desire to bring her daughter from Norway - entirely understandable in her circumstances - but which may make her reluctant to contribute the bulk of her income to the household to ensure her living expenses are paid. She clearly feels happier and more secure with her family members in Sydney than she did in Tasmania and this may mean that this is no longer a problem but the Tribunal did not want to see her current situation, which was clearly contributing positively to her welfare, compromised.

48. The Tribunal is also concerned that she may be asked to enter into a lease for the rental of property and we are not satisfied that she has the capacity to understand the lease in its entirety and the obligations she may assume by entering into it. There has been no suggestion from the service providers which she has encountered since arriving in Sydney that she requires highly supported accommodation or that she cannot live in the community with her family or independently. There has clearly been a strongly positive change in Ms XCB's situation since the matter was before the Tasmanian Board.

49. In summary, the Tribunal was satisfied that Ms XCB is currently incapable of managing her financial affairs in the sense required by the Guardianship Act.

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

51. As noted above, Ms XCB was able to provide her views to the Tribunal. She opposed the making of a financial management order.

52. The Applicant said that an order was needed. If an order was made in NSW the Tasmanian Trustee undertook to approach the Tasmanian Board to have the order there revoked. The Tasmanian Trustee representative participating in the hearing said that she did not think there would be any other basis on which the Trustee would be prepared to seek the revocation of the Tasmanian order or on which the Board would be likely to revoke the order, bearing in mind it was relatively recent.

53. As noted above, the STARRTS counsellor had reported that Ms XCB's recovery from her trauma would be hastened by her having a greater sense of control over her life including her finances.

54. On balance, the Tribunal was satisfied that there is a need to appoint someone to manage Ms XCB's affairs and it is in her best interests that an order be made. We are mindful of the advice of the STARRTS counsellor, but on balance we have concluded that a formal order will ensure her affairs as between Tasmania and NSW being resolved most expeditiously and Ms XCB being appropriately protected whilst she finds her feet in Sydney and secures a permanent living situation.

Who should be appointed financial manager?

55. 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.

56. The Tribunal was satisfied that the estate of for Ms XCB should be committed to the NSW Trustee and Guardian, there being no private person proposed at this stage.

Order with a Specified Review Period

57. As indicated above, the Tribunal is by no means convinced that Ms XCB will necessarily continue to have the need for a financial management order - whether because she can manage herself or because, in the absence of the Tasmanian order, a family member can assist her informally. We will make the order reviewable in twelve months, which of course does not preclude Ms XCB or anyone with genuine concern for her welfare approaching the Tribunal before that date to have the order reviewed.

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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: 01 December 2015