ZDQ

[2016] NSWCATGD 68

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	ZDQ [2016] NSWCATGD 68
Hearing dates:	1 December 2016
Date of orders:	01 December 2016
Decision date:	01 December 2016
Jurisdiction:	Guardianship Division
Before:	Mr A Suthers, Senior Member (Legal) Dr H Creasey, Senior Member (Professional) Ms L Porter, General Member (Community)
Decision:	1. The applications by Mr ZDP for a financial management order in relation to the estate of Mr ZDQ are dismissed.
Catchwords:	FINANCIAL MANAGEMENT – application for a financial management order – presumption of capacity – insufficient evidence to rebut presumption – application dismissed
Legislation Cited:	Civil and Administrative Tribunal Act (2013) NSW, s 38(4)
Category:	Principal judgment
Parties:	ZDQ (Subject person) ZDP (Applicant – son) ZDT (Son) ZDS (Spouse)
Representation:	Solicitors: Ms Joanna Kwan, (Separate Representative)
File Number(s):	C/61267
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 dismissed the application for the appointment of a financial manager for Mr ZDQ.

Background

2. Mr ZDQ is a 76-year-old man who lives in privately rented accommodation with one of his sons, Mr ZDT, in Sydney.

3. In October 2014, Mr ZDQ had a serious motor vehicle accident. Injured in the accident were Mr ZDQ, his wife Ms ZDS, and Mr ZDT, who was the driver of the vehicle.

4. In the accident, Mr ZDQ received several injuries including complex facial fractures, a traumatic brain injury, a cervical spine and neck injury, clavicle and rib fractures, thoracic and lumbar spine fractures, a right hip displacement and fracture, and a right first metacarpal fracture. His wife was more seriously injured than he was.

5. Concerns were raised by various treating doctors who were assisting Mr ZDQ after his injury, not only about his physical recovery from the accident but whether it had an impact on his cognitive capacity.

6. For example, neuropsychological testing conducted in January 2015 by Dr Z was reported to indicate that Mr ZDQ was withdrawn and difficult to engage. It was reported that he had cognitive defects because of the accident and the doctor felt that this was consistent with his traumatic brain injury. Dr Z was concerned that there was a potential differential diagnosis of dementia because of these issues but noted that the cognitive profile and reported sudden change of personality and apathy was more consistent with a traumatic brain injury than Alzheimer’s disease.

7. Dr Z also noted that it had been two months since the accident when she conducted her investigations in relation to Mr ZDQ and said that spontaneous cognitive recovery was ‘likely to be slower from here on, although he may continue to improve over the next 12 months or so’.

8. Continuing concerns were raised about Mr ZDQ’s cognitive capacity by the treating medical practitioners who assisted him and in reports prepared for the NSW Lifetime Care and Support Scheme, through which Mr ZDQ was obtaining assistance through his solicitors.

9. On 13 April 2015, Mr ZDQ appointed his two sons, Mr ZDT and Mr ZDP, as his joint attorneys under an Enduring Power of Attorney.

10. A dispute arose between Mr ZDT and Mr ZDP, though, about Mr ZDQ’s finances. They could not agree on the decisions and Mr ZDQ revoked that appointment on 9 November 2015.

11. Mr ZDP subsequently brought an application to the Tribunal for appointment of a financial manager for his father.

12. It is that application which is being dealt with before the Tribunal.

13. The Tribunal ordered that a separate representative be appointed for Mr ZDQ. Ms Joanna Kwan, solicitor, was appointed as Mr ZDQ’s separate representative.

The Hearing

14. 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.] Ms ZDS was unable to attend or participate due to her injuries.

15. The matter initially came before the Tribunal on 10 February 2016. At that time, the Tribunal noted that there was insufficient evidence for it to make a definitive finding in relation to Mr ZDQ’s ability to manage his financial affairs. The Tribunal was concerned, though, by allegations made by Mr ZDP that Mr ZDT was controlling Mr ZDQ’s finances and that they were being used inappropriately.

16. The Tribunal made an interim order for a period of three months and otherwise adjourned the hearing.

17. Mr ZDT and Mr ZDQ appealed that decision in the NSW Supreme Court. The appeal was dealt with by his Honour Justice Lindsay on 27 August 2016. A transcript of those proceedings was before the Tribunal.

18. It is apparent from the transcript that, because by the time the matter reached His Honour the interim order already expired, the Court was of the view that there was no utility in reviewing the order. On that basis, the appeal was dismissed.

19. His Honour noted, in his orders made on 22 August 2016, the following: ‘Note that dismissal of these proceedings on that basis allows NCAT to entertain such, if any, applications as may be made to it relating to the person or estate of the first Plaintiff’ (Mr ZDQ).

20. The matter was relisted before the Tribunal.

21. At a directions hearing on 22 September 2016, Mr ZDT submitted that, based on the order made by His Honour Justice Lindsay referred to above, the Tribunal no longer had a valid application before it.

22. The Tribunal was not able to determine that issue at the directions hearing. It made a direction that Mr ZDP file any further application he may wish to rely on and left that issue ultimately for the determination of the Tribunal at the hearing. Mr ZDP decided to file a further application, in accordance with the directions.

23. At the hearing, Mr ZDT acknowledged that there was an application properly before the Tribunal. In the Tribunal’s view, notwithstanding the order of His Honour Justice Lindsay, the original application was still on foot. The application had been adjourned, as previously referred to. Correspondence from the Tribunal to the parties dated 22 April 2016 confirmed that to be the case.

24. The Tribunal was satisfied that it could proceed on the original application in those circumstances.

25. In any event, a further application in the same or similar terms had been filed and there was no suggestion that any party was not on appropriate notice that there was an application for the appointment of a financial manager for Mr ZDQ.

26. Given Mr ZDT’s concession that there was now an application appropriately before the Tribunal, the Tribunal proceeded without hearing arguments in relation to this technical legal issue.

27. The Tribunal is obliged, under s 38(4) of the Civil and Administrative TribunalAct 2013 (NSW), to act with as little formality as the circumstances of the case permit and according to equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal forms.

28. The Tribunal is satisfied that there was no utility in making a formal determination as to which application was to apply and proceeded on the first application. If the Tribunal is wrong on that issue, it would have proceeded on the second application, in any event.

29. The Tribunal received late papers in the form of reports from the appointed separate representative about the difficulties she had in speaking to Mr ZDQ prior to the hearing (referred to later in these reasons) and a letter the separate representative had sent to Mr ZDQ’s solicitors in relation to his compensation claim. On the day of hearing, a response from the solicitors was received which indicated, relevantly, that there was no tutor appointed to Mr ZDQ in those proceedings and it is not, in effect, a large claim.

30. Those documents were of short compass and were provided to the parties at the earliest opportunity. No objection was taken to them being received. No prejudice was claimed by the parties caused by their late receipt. In the end, they had little probative value and the evidence they contained was largely available to the Tribunal from oral evidence referred to below.

What did the Tribunal have to decide?

31. Every person who is the subject of an application is presumed to have capacity to make their own decisions, until the Tribunal receives sufficient evidence to rebut that presumption.

32. The threshold issue for the Tribunal, once an application has been properly made, is whether there is relevant incapacity of the person who is the subject of the application to manage their finances.

33. If this threshold issue is established, the Tribunal has discretion about whether to make orders. The Tribunal considers all relevant factors, and will attempt to give effect to arrangements already made by the person in respect of substitute decision-making, provided those arrangements were understood by the person, are appropriate and in their best interests. The welfare and interests of Mr ZDQ are the Tribunal’s paramount consideration.

FINANCIAL MANAGEMENT

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

• Is Mr ZDQ incapable of managing his affairs? Evidence of how the person is actually managing their affairs is relevant. The Tribunal assesses the subjective circumstances of the person including the support available to them and their ability, within the bounds of that support, to make sound judgements.

• Is there a need for another person to manage Mr ZDQ’s affairs and is it in his best interests for a financial management order to be made?

• If so, who should be appointed financial manager?

Is Mr ZDQ incapable of managing his affairs?

35. A person is not shown to be incapable of managing their financial affairs unless they are incapable of dealing, in a reasonably competent fashion with their affairs and because of that lack of competence there is a real risk that either they may be disadvantaged in the conduct of such affairs or their money or property may be dissipated or lost.

36. The medical reports about Mr ZDQ’s cognitive ability began to change in about February 2015, after the reports referred to earlier.

37. The first such notation of a change in the reports about Mr ZDQ’s cognitive ability was contained in a report by Dr Y, dated 11 February 2015.

38. Dr Y, a Director of Rehabilitation Medicine at a public hospital in NSW, noted in that report that a Rowland universal dementia assessment screen (RUDAS) had been conducted with Mr ZDQ with a Mandarin interpreter and that Mr ZDQ returned a score of 29 out of 30. Despite noting the earlier neuropsychological assessment which had been undertaken by Dr Z, the doctor’s view was, in summary, that the effect of this testing was that ‘some early concerns about cognitive impairment related to traumatic brain injury receded somewhat’ once that screen was undertaken.

39. More recently and as contained in a report dated 25 March 2016, Mr ZDQ was assessed by Dr X.

40. Dr X is a psychiatrist. The report makes it clear that Dr X spoke at length to Mr ZDQ about his financial affairs, in addition to conducting cognitive testing. Dr X noted that Mr ZDQ was ‘oriented to time, place and person. He was aware of the season and oriented to current political events. His concentration was normal and he was able to conduct the serial seven test (a test of concentration and simple mathematical skills) efficiently and accurately. His short-term memory was intact. He was able to draw a clock face and copy overlapping pentagons accurately (a test of visual-spatial and organisational skills).’

41. In summarising his opinion, Dr X said there was no available evidence to suggest that Mr ZDQ has impaired financial management capacity.

42. Dr X said that Mr ZDQ is aware of his assets, knows all his family members, and has a plan in terms of how to allocate his assets in the future. Dr X opined that Mr ZDQ had no signs or symptoms indicative of cognitive impairment.

43. That formal assessment in terms of Mr ZDQ’s psychiatric presentation was bolstered by an Occupational Therapist’s report conducted by Ms W, an Occupational Therapist of an occupational therapy organisation, dated 8 August 2016.

44. Ms W examined Mr ZDQ’s ability to make decisions and manage his financial affairs. She considered the concerns of Dr Z as well as the more recent testing and the RUDAS score. Ms W’s report notes that Mr ZDQ scored a perfect score on testing she performed relating to his comprehension, expression, social interaction, problem solving, and memory.

45. Ms W noted no apparent difficulty in Mr ZDQ’s perception, recall, planning, and performance. She reported a perfect score in relation to a mini-mental state examination undertaken with Mr ZDQ, that he scored 100% and 90% on maze testing, his mathematical calculations, and managing money and identifying money.

46. Ms W believed that Mr ZDQ comprehended the questions that were asked of him and noted that the interpreter who assisted her found no hesitation or limitations in Mr ZDQ’s responses.

47. The report concludes that ‘overall the OT did not find any functional cognitive limitations that would impact on him managing his activities of daily living considering the injuries sustained from the motor vehicle accident’.

48. In the most recent report available to the Tribunal, a report by Dr V, Consultant Physician in Rehabilitation Medicine, dated 30 August 2016, the doctor notes that Mr ZDQ completed the mini-mental state examination translated into Chinese, returning a score of 28/30, which the doctor described as a ‘normal score’.

49. Dr V said, in summary, that ‘Mr [ZDQ] has sustained a severe traumatic brain injury based on the information provided however, he has made an excellent and surprisingly good recovery and the impairment related to this is zero per cent whole person impairment.’

50. The Tribunal took the opportunity to speak to Mr ZDQ through an interpreter. He answered the Tribunal’s questions promptly and without input from anyone else in the room.

51. Mr ZDQ could explain how he manages his finances. His explanation, although not identical to the reports he gave Dr X about the issue, was generally consistent. Mr ZDQ said that he receives approximately $1,600.00 per month income from China, which goes into an account in a Chinese bank. Mr ZDQ says that he accesses that money from an ATM near his home. He described the process by which he did that, and noted that the ATM provides instructions in Chinese for that to occur. He did, in answer to a question by the presiding member, say that his account was held with that bank (an Australian bank) but later confirmed that he uses his card with the Chinese bank to withdraw the money. Little turned on that discrepancy.

52. He said he takes approximately $150 for himself for what he describes as his ‘pocket money’ which he says is sufficient for him to cover his day to day financial needs. He says he gives the rest of the money to his son, Mr ZDT, to pay for his accommodation and other expenses. He trusts Mr ZDT to manage the balance of his income and that it is not even enough to cover his actual living expenses.

53. Overall, the Tribunal was impressed by Mr ZDQ’s ability to account for how he has arranged the management of his financial affairs. That, it must be noted by the Tribunal, is particularly in circumstances where Mr ZDQ was obviously concerned about the Tribunal’s process and whether it was one in which he wished to participate.

54. The Tribunal, noting issues which will be referred to later, suspects that Mr ZDQ’s reticence to participate in, and concerns about the Tribunal’s process were contributed to by his son Mr ZDT.

55. Notwithstanding that, he appeared to relax as the hearing progressed and participated thoroughly.

56. The Tribunal pointed out to each of the parties that it must presume that Mr ZDQ has capacity to manage his finances at the outset of the hearing.

57. Having summarised the medical evidence, and giving the other parties the opportunity to hear from Mr ZDQ, the Tribunal asked Mr ZDP whether he agreed that the summary of the evidence, which was effectively that which is referred to above, was accurate or whether the Tribunal had overlooked any relevant and important issues.

58. Mr ZDP drew the Tribunal’s attention to various references in the reports which indicate Mr ZDT was present for and interjected in some investigations in relation to his father’s cognition (including yelling at Mr ZDQ when he did not provide information to the doctors) and the earlier reports of concern about Mr ZDQ’s cognitive capacity (as well as part of a more recent ophthalmic surgeon’s report where they were referred to). He also referred to what was described as his father’s “lethargy” as documented in earlier reports.

59. When asked, though, whether there was anything in the more recent reports which indicated from a medical perspective that Mr ZDQ has impaired capacity for making financial decisions, there was nothing which Mr ZDP pointed to in reports from the last fourteen months which the Tribunal was satisfied was indicative of Mr ZDQ having any incapacity for managing his finances.

60. Mr ZDP acknowledged that he had not had an opportunity to interact with his father, or observe how he manages his money for about a year.

61. Mr ZDP, it must be said, was also very concerned about the vulnerability of Mr ZDQ to being influenced by his son Mr ZDT.

62. The Tribunal can understand those concerns. Mr ZDT’s presentation at the hearing was agitated and the Tribunal received evidence from Ms Joanna Kwan, the separate representative who was appointed to assist Mr ZDQ, that Mr ZDT had been obstructive in her speaking to Mr ZDQ to the extent that she had not been able to have any discussion with him prior to the day of hearing.

63. Even on the day of hearing Ms Kwan described Mr ZDT intervening in her attempts to speak to Mr ZDQ prior to the hearing commencing, threatening to call the police if she spoke to Mr ZDQ and being obstructive of that taking place.

64. The material filed by the parties also indicates that Mr ZDT has a very forceful personality and strong views about how things in relation to his family should be done. At the hearing on 10 February 2016, Mr ZDT had to be reminded by the Tribunal not to communicate directly with his father in Mandarin and was, at one point, ejected from the hearing. (To his credit, the Tribunal had no concerns about Mr ZDT’s conduct during this hearing.)

65. Accepting these issues, and that it raised an issue of risk of undue influence which the Tribunal needed to consider, the Tribunal asked Mr ZDQ various questions about his son’s assistance in managing his finances.

66. Mr ZDQ said that he was satisfied with his son’s assistance and that he did not ‘boss him around’. He told the Tribunal that “Mr [ZDT] is not in charge of me.”

67. Mr ZDQ said that he was now estranged from Mr ZDP because of Mr ZDP’s lack of care for his family and that Mr ZDP wanted an equal share of Mr ZDQ’s money but did not want to provide an equal amount of the care. He told the Tribunal that “[ZDP] does not spend time with “his” parents.”

68. The Tribunal was satisfied from questioning Mr ZDQ that, at least to some extent, the opinion of Mr ZDP held by Mr ZDQ was contributed to by Mr ZDT.

69. Another issue of concern for Mr ZDP was that, after the Tribunal’s initial order, $7,000 was withdrawn from Mr ZDQ’s accounts when it should not have been, given that Mr ZDQ’s finances were subject to management at that time.

70. If Mr ZDQ made the decision to withdraw that money, despite the Tribunal’s order, there is little use the Tribunal can make of that evidence in terms of Mr ZDQ’s capacity to manage his own affairs now.

71. If Mr ZDT was instrumental in assisting his father, then that may well have had a bearing on his appropriateness to be appointed as financial manager, had the Tribunal reached that point of its deliberations and had he sought appointment.

35. Mr ZDT said, in summary, that he felt that his father could manage his own financial affairs. He believed that his father’s capacity post-accident was getting “better and better”. He pointed to the lack of recent medical evidence supporting the assertion that his father was unable to manage his affairs.

36. The Tribunal also heard submissions from Ms Kwan. As she had been unable to speak to Mr ZDQ prior to the hearing, she made submissions based only on the written evidence and what she heard during the hearing itself. She submitted that the Tribunal would have concerns that it should make financial management order.

37. She cited a report from 2015, which indicated that Mr ZDQ had difficulty using a telephone and the earlier reports about the fact that Mr ZDQ had a traumatic brain injury.

38. When asked by the Tribunal, though, to identify any medical evidence which indicated that the traumatic brain injury had an ongoing effect in relation to Mr ZDQ’s cognition, Ms Kwan was unable to do so.

39. There are issues of concern within the dynamic of this family for the Tribunal. Mr ZDT has a forceful and potentially overbearing personality. Undoubtedly, then, Mr ZDQ is potentially vulnerable to financial exploitation given his age, and the recent traumas in his life.

40. The Tribunal, though, must apply the presumption that Mr ZDQ can manage his own financial affairs. There is no medical evidence prepared within the last fourteen months which contradicts the presumption that Mr ZDQ can manage his own finances, or exercise free will.

41. Mr ZDQ’s own presentation was also indicative of him having the ability to manage his finances affairs, even if he decides to then largely delegate that issue to his son Mr ZDT.

42. There are, of course, infinitely variable arrangements which families put in place in relation to their interpersonal affairs. It is not for the Tribunal to judge whether Mr ZDT is a sound or appropriate person for Mr ZDQ to place his trust in, if Mr ZDQ can understand that decision, weigh his options, and make that decision freely and voluntarily.

43. There is insufficient evidence before the Tribunal to satisfy it that is not the case.

44. The Tribunal was not satisfied that Mr ZDQ is incapable of managing his financial affairs. On that basis, the application was dismissed.

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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: 23 January 2018