ZKN

[2021] NSWCATGD 34

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ZKN [2021] NSWCATGD 34

Hearing dates:

18 August 2021

Date of orders:

18 August 2021

Decision date:

18 August 2021

Jurisdiction:

Guardianship Division

Before:

C L Grant, Senior Member (Legal)
Dr W Longley, Senior Member (Professional)
I Ferreira, General Member (Community)

Decision:

In relation to the enduring guardian appointment made by ZKN on 25 June 2021 appointing KAQ the Tribunal orders, directs or declares:

The enduring guardian appointment made by ZKN on 25 June 2021 is revoked.

The application for review is treated as if it were an application under the Guardianship Act 1987 (NSW) for a guardianship order for ZKN.

In relation to the enduring power of attorney made by ZKN on 25 June 2021 which appointed KAQ as attorney(s) the Tribunal determines, orders or declares:

to carry out a review of the making of the enduring power of attorney.

Not to make an order under s 36 of the Powers of Attorney Act 2003 (NSW). The application for review of the enduring power of attorney is treated as an application for a financial management order under Pt 3A of the Guardianship Act.

1. The estate of ZKN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. KAQ is appointed as the financial manager of the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.

1. A guardianship order is made for ZKN.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 19 August 2021.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where ZKN may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take ZKN to a place approved by the guardian.

ii) keep her at that place.

iii) return her to that place should she leave it.

c) Health care

To decide what health care ZKN may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to ZKN.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Catchwords:

REVIEW OF ENDURING POWER OF ATTORNEY – review of the making of the enduring power of attorney – whether the subject person had capacity to enter into an enduring power of attorney – Law Society of NSW guidelines on assessing a client’s capacity – whether an order under s 36 of the Powers of Attorney Act should be made – decision to treat application to review an enduring power of attorney as an application for a financial management order – subject person is of advanced age – subject person diagnosed with dementia – subject person incapable of managing own financial affairs – suitability of proposed private manager – private financial manager appointed – order made.

REVIEW OF ENDURING GUARDIANSHIP – finding that the subject person did not have capacity to enter into an enduring guardianship appointment – decision to treat application to review an enduring guardianship appointment as an application for a guardianship order – whether subject person is a person in need of a guardian – subject person an in-patient at a public hospital – need for decisions to be made in relation to services, health care, and consent to medical and dental treatment – need for accommodation function with power to authorise others – no private person suitable to be appointed – public guardian appointed – order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 6J, 6K(1)-(3), 6MA, 14, 17, 25M, Pt 3A

Powers of Attorney Act 2003 (NSW), ss 19, 35(1), 36, 36(1)-(2), 37(1), Div 4 of Pt 5

Cases Cited:

CJ v AKJ [2015] NSWSC 498

P v NSW Trustee and Guardian [2015] NSWSC 579

Re K [1988] Ch 310

Scott v Scott [2012] NSWSC 1541

Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516

Szozda v Szozda [2010] NSWSC 804

Texts Cited:

The Law Society of NSW’s guidelines on “When a client’s mental capacity is in doubt”

Category:

Principal judgment

Parties:

001: Review of an Enduring Guardianship Appointment

ZKN (the person)
Hunter New England Local Health District (applicant)
SZN (enduring guardian)
KAQ (enduring guardian)
NSW Trustee and Guardian
Public Guardian

002: Review of an Enduring Power of Attorney

ZKN (the person)
Hunter New England Local Health District (applicant)
KAQ (attorney)
SZN (attorney)
Public Guardian (joined party)
NSW Trustee and Guardian

Representation:

Nil.

File Number(s):

NCAT 2021/00201522

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

REVIEW OF ENDURING POWER OF ATTORNEY APPOINTMENT

REVIEW OF ENDURING GUARDIANSHIP APPOINTMENT

What the Tribunal decided

1. In relation to the enduring guardian appointment made by ZKN on the 25 June 2021, we decided to treat the application for review as if it were an application for guardianship under the Guardianship Act 1987 (NSW). We then made a guardianship order and appointed the Public Guardian for 12 months to make decisions about accommodation (including authorise others), services, health care and consent to medical and dental treatment.

2. In relation to the enduring power of attorney made by ZKN on the 25 June 2021 appointing KAQ as attorney, we decided, under s 36(1) of the Powers of Attorney Act 2003 (NSW) (“POA Act”), to carry out a review of the instrument. As a consequence of reviewing the enduring power of attorney, we decided under s 36(2) of the Powers of Attorney Act not to make an order under s.36 but treat the application for review as an application for a financial management order. We then made a financial management order appointing KAQ as her financial manager under the directions and authorities of the NSW Trustee and Guardian.

Background

3. ZKN is 94 years old and is currently an inpatient at a public hospital. Prior to her admission, she was residing at her property in regional NSW. However, in May 2021, she was admitted to hospital following a fall at home and has remained an inpatient pending a decision regarding her discharge destination.

4. In recent months, ZKN has instructed her solicitor, Mr Z to prepare and complete the following instruments:

1. On 13 June 2020, enduring guardianship appointing SZN, the wife of ZKN’s nephew;

2. On 13 June 2020, enduring power of attorney appointing Ms W, family friend. Ms W resigned from this role on the 18 December 2020;

3. On 25 October 2020, enduring power of attorney appointing SZN;

4. On 25 June 2021, enduring guardianship appointing KAQ, who resides in London, England, and is, ZKN’s grandson; and

5. On 25 June 2021, enduring power of attorney appointing KAQ.

5. The hospital treating team were recently made aware of the appointments made by ZKN on the 25 June 2021 and expressed concerns that ZKN may have lacked capacity to sign the instruments. On 14 July 2021, the social worker on behalf of the Hunter New England Local Health District made an application to review ZKN’s appointments made on the 25 June 2021.

6. In response to the applications, ZKN is reported to have told the Tribunal officer preparing for the hearing that she has been making her own decisions for many years.

The hearing

7. ZKN attended the hearing by telephone from a room at the public hospital and participated in the hearing.

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

THE LEGAL FRAMEWORK AND THE ORDERS THAT THE TRIBUNAL CAN MAKE

9. The Tribunal’s jurisdiction in relation to the review of the making of powers of attorney is set out in Div 4 of Pt 5 of the POA Act.

10. The Tribunal may, on the application of a person with standing, decide to review the making, revocation, operation or effect of a reviewable power of attorney: POA Act, s 36(1).

11. When reviewing the making of a power of attorney, the Tribunal may make an order declaring that the principal either did or did not have the mental capacity to make a valid power of attorney at the relevant time. If the Tribunal is satisfied the principal did not have the capacity necessary to make the power of attorney, the Tribunal may declare the power of attorney to be invalid. The Tribunal may also make an order that the power of attorney is invalid for some other reason, such as where the principal was induced to make the power of attorney by dishonesty or undue influence.

12. When reviewing the operation and effect of a power of attorney, the Tribunal may make orders but only if it is satisfied that it would be in the best interests of the principal or to do so would better reflect the wishes of the principal. The available orders include removing the person from office as an attorney, appoint a substitute attorney, revoking all or part of the power of attorney or any other orders the Tribunal thinks appropriate.

13. In the alternative, the Tribunal may decide not to make any orders in respect of the review and, in that event, may treat the application as an application for a financial management order under Pt 3A of the Guardianship Act “if it considers it appropriate in all the circumstances to do so”: POA Act, s 37(1). This may be appropriate if there are concerns about the making of a power of attorney but to revoke the instrument would leave the principal without necessary assistance in managing their finances.

14. The Tribunal’s jurisdiction in relation to the review of an enduring guardianship appointment is set out in ss 6J to 6MA of the Guardianship Act.

15. The Tribunal must on the application of a person with standing, review the appointment of an enduring guardian. On reviewing the appointment, the Tribunal may revoke the appointment or confirm the appointment, with or without varying the functions of the guardian: Guardianship Act, s 6K(1). The Tribunal must not revoke the appointment unless the enduring guardian requested the revocation, or it is satisfied that it is in the best interests of the appointor that the appointment be revoked: Guardianship Act, s 6K(2).

16. The Tribunal may also proceed, if it considers it is in the best interests of the appointor to do so, deal with the review as if an application for guardianship, financial management or both had been made: Guardianship Act, s 6K(3).

REVIEW OF ENDURING POWER OF ATTORNEY

What did the Tribunal have to decide?

17. In relation to the review of the enduring power of attorney we were required to decide the following principal issues:

1. Does the Hunter New England Local Health District (HNELHD) have standing to make the application?

2. Should we conduct a review and if so, did ZKN have capacity to enter into the enduring instrument on 25 June 2021?

3. If we determine ZKN did have capacity, should the instrument be revoked because the attorney’s continued operation of the instrument is not in her best interests.

4. Should we make orders under s 36 of the POA Act in respect of the application for review or is it appropriate not to make any orders and instead treat the application as an application for a financial management order?

5. If we decide to treat the review as an application for financial management order, we are required to make an assessment and make findings on ZKN’s capacity to manage her financial affairs, whether there is a need for a financial manager and if so, who should be the financial manager?

Does the HNELHD have standing to make the applications?

18. In relation to a review of enduring power of attorney, s 35(1) of the POA Act requires an applicant to be an ‘interested person’. An interested person is defined as a principal, attorney and includes a person who has a proper interest in the proceedings or a genuine concern for the welfare of the principal.

19. Based on the role of the HNELHD, being primarily responsible for the care and treatment of ZKN while a patient at the public hospital, we are satisfied that they have a genuine interest in the welfare of ZKN and therefore have standing to make the application.

Should the Tribunal conduct the review?

20. In Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516, Slattery J stated [at 80]:

“On an application for s 36 review such as this the Court must first exercise a discretion under Powers of Attorney Act, s 36(1) to decide whether or not to conduct a s 36 review. In my view the Court does not have to conduct a full review of all documents associated with the operation of the subject power of attorney to do this. Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review. In the circumstances of this case the Court can glean sufficient information to exercise the s 36(1) discretion by undertaking a general survey of what... (a party )...has produced.”

21. The application includes a report from Dr Y, Geriatric Specialist, dated 12 July 2021 who stated that due to a diagnosis of dementia and BPSD (Behavioural and Psychological symptoms of Dementia), ZKN clearly lacked capacity to sign the documents on the 25 June 2021 whilst she was still a patient at the hospital. Based on this evidence, we are satisfied that we should conduct a review of the appointment of the enduring power of attorney dated 25 June 2021.

Capacity to enter into an Enduring Power of Attorney

Case law

22. The test for capacity to grant a general and enduring power of attorney was considered in Szozda v Szozda [2010] NSWSC 804. Barratt J stated, “It is the nature of the act (by which I mean to include its ramifications and consequences) that the donor must sufficiently understand”. Barratt J approved of the approach taken by Hoffman J in the English case of Re K [1988] Ch 310 that a donor should have understood the nature and effect of the power being granted by a general and enduring power of attorney.

“First, if such be the terms of the power, that the attorney will be able to assume complete authority over the donor’s affairs; second, if such be the terms of the power, that the attorney will in general be able to do anything with the donor’s property which he himself could have done; third, that the authority will continue if the donor should be or become mentally incapable; fourth, that if he should be or become mentally incapable, the power will be irrevocable without confirmation by the court. Re K [1988] Ch 310”

23. By contrast, in Scott v Scott [2012] NSWSC 1541, Lindsay J considered the test for capacity to make a power of attorney and referred to the necessity to examine each case on its own facts, consideration of the events leading up to the execution of the instrument as well as the time of its actual execution. Lindsay J stated:

“Attention must be focussed on all the circumstances of the case, including the identities of the donor and donee of a disputed power of attorney; their relationship; the terms of the instrument; the nature of the business that might be conducted pursuant to the power; the extent to which the donor might be affected in his or her person or property by an exercise of the power; the circumstances in which the instrument came to be prepared for execution, including any particular purpose for which it may ostensibly have been prepared; and the circumstances in which it was executed: [199].”

The Law Society Guidelines – “Questions for preparing an Enduring Power of Attorney”

24. The Law Society have published guidelines on questions for solicitors who are preparing an enduring power of attorney for a client. The guidelines on capacity include the following statements:

“Did you see the client alone?

To minimise the risk of undue influence it is preferable to see the client alone. If another person is present make a file note of the person’s name and relationship to the client and the reason for their presence…

Did you explain the effect of the power of attorney?

This is required for the certificate for the purposes of section 19 of the Powers of Attorney Act 2003. In particular, the client should understand:

1.That the document is only effective while the client is alive and has no effect after their death;

2.That they can revoke (cancel) the power at any stage, as long as they have mental capacity;

3.That the power that they are giving another person (the attorney) will extend after the client has lost the mental capacity to revoke (cancel) the enduring document;

4.That they must appoint the attorney of their own free will and without any undue influence on the part of a third party;

5. That they are giving power to another person to manage their financial affairs, and this power includes things like:

a) buying and selling property on their behalf (including their own home);

b) depositing and withdrawing money from their account/s; and

c) buying and selling shares with their money.

Did the client appear to understand the effect of the power of attorney?

This is required for the section 19 certificate. If you are not satisfied as to the client’s understanding, consider obtaining a medical opinion, and do not give the certificate [Footnote removed for publication.].

It is recommended that you ask open-ended questions (examples include: Why do you want to appoint someone as your attorney? Tell me about your family and friends. Who do you want to appoint as your attorney/s and why are you choosing them? What sort of decisions will your attorney be able to make?) and record the questions and the client’s answers in a file note.

It is recommended that you discuss with your client the importance of choosing an attorney who is trustworthy and responsible, and discuss the extent of the proposed attorney’s qualifications for the role, either because of their prior knowledge and involvement in the client’s affairs or by reason of having appropriate skills and experience.”

Overview of the Evidence

The views of ZKN

25. We asked ZKN about the appointments made on the 25 June 2021. She could not recall the appointments. We provided details of the appointments and she stated, “I don’t remember”. We asked whether she recalled appointing KAQ and she stated words to the effect, “He is that young fella on the sea and yes I am very proud of him.” She recalled he had two children but she did not know his wife. We asked about whether she knew or could recall Mr Z and she stated that he was “more a friend than a solicitor”. She could not recall any meetings with Mr Z. We asked about SZN. She stated that she should have been in more contact with SZN. She was grateful for the work that SZN did but she did not wish to go to regional NSW and she wanted someone from the family.

26. ZKN told us that she could still make her own decisions. She would like to go home. When asked about whether she needed any assistance or services, she stated, “What sort of services would I need? I am fine. I can cook and do my laundry.”

The views of Dr Y

27. Dr Y spoke to us by telephone and gave evidence consistent with his report of the 12 July 2021. He stated that ZKN had presented to hospital in July 2020 and a MOCA was completed and she scored 20/30 with 26/30 or below indicating a cognitive impairment. He carried out a full neurocognitive assessment and diagnosed ZKN with Alzheimer’s’ Dementia with Behavioural and Psychological symptoms of Dementia (BPSD). The diagnosis was confirmed by a brain scan with significant atrophy indicating vascular disease. At that time, it was discovered that one of her powers of attorney, Ms W was stealing money from her. Ms W subsequently resigned as attorney but the incident highlighted how ZKN was very vulnerable to being financially exploited.

27. Dr Y stated that during ZKN current admission, her cognition has fluctuated having good days and days where she is extremely confused. She has also experienced severe delirium, confusion and paranoia. These symptoms have improved following medication to address her urinary tract infections. A recent MOCA on the 4 June 2021 revealed a score of 18/30.

28. In mid-June 2021, SZN travelled from her home in regional NSW to visit ZKN in hospital and the hospital team updated her. As enduring guardian, she agreed for ZKN to be transferred to a local aged care facility on a respite placement whilst awaiting placement in an aged care facility near regional NSW. When this decision was made, ZKN became upset and did not want SZN to continue in the role as her enduring guardian and attorney. A few days later, Dr Y found out that a solicitor, Mr Z had come to the hospital and obtained ZKN’s signatures to appoint her London based grandson, KAQ as her enduring attorney and guardian. A day after this meeting with Mr Z, Dr Y asked ZKN about the meeting but ZKN could not recall the meeting and signing any documents. These events then prompted the hospital team to make the application.

The views of Mr Z, Solicitor

30. Mr Z prepared and witnessed the execution of the instruments appointing KAQ as ZKN’s enduring guardian and attorney. He provided the Certificate under s 19 of the POA Act. He told us that he was first instructed by ZKN in 2015 when he prepared documentation for ZKN and her husband, now deceased. He agreed that he had been previously instructed by ZKN in relation to the instruments of enduring guardianship and enduring powers of attorney on 13 June 2020 and again on 25 October 2020.

31. In relation to the appointments on 25 June 2021, Mr Z stated that he had received separate telephone calls from both KAQ and ZKN requesting that KAQ be appointed ZKN’s enduring guardian and enduring power of attorney. He then attended the public hospital on the 25 June 2021 to obtain ZKN’s instructions. In relation to this meeting he gave the following evidence:

1. He met with ZKN in her hospital room. He was accompanied by his wife, Ms X;

2. He was not aware of any formal diagnosis of dementia or any issues giving rise to ZKN not having capacity to give him instructions. He was aware that she was in hospital due to due injuries caused by her burning herself at home. Whilst at the hospital, he did not make any enquires of the medical team treating and caring for ZKN as to whether she may have a medical condition impacting on her capacity to understand the documentation he wished to discuss with her;

3. he did not take any notes of the meeting with ZKN. All his evidence was therefore based on his memory and recall;

4. in response to our questions as to how he satisfied himself that ZKN had capacity to instruct him, he stated that he mainly relied on his past dealings with her and her understanding of the process. Her instructions were also consistent with her previous instructions when he had prepared similar documentation;

5. he stated he was aware of the Law Society guidelines on assessing a client’s capacity. We asked him whether he put to ZKN the specific questions referred to in the guidelines regarding ZKN’s understanding of the effect of an enduring power of attorney and whether he asked open ended questions. He stated that he believed he did but he agreed that he could not verify this as he did not taken notes; and

6. he agreed that having heard the evidence of Dr Y, ZKN’s capacity was an issue. He also agreed that had he been aware of her diagnosis, he would have been “more assiduous” in his meeting with ZKN.

Findings on the validity of the EPOA executed on 25 June 2021

32. We found Mr Z’s evidence to be most unsatisfactory. He asserts that he was not aware of any incapacity issues and appears not to have given any consideration to ZKN’s capacity to provide instructions. This is of concern given ZKN’s advanced age and significantly, she was an inpatient in Hospital at the time of their meeting and receiving medical treatment. He did not seek to obtain a medical opinion regarding her capacity and nor did he make any enquires of the medical professionals from the hospital who were treating ZKN. Contrary to the Law Society guidelines and without any justification, he did not take any file notes of the meeting with ZKN. He could not recall the type and content of the questions he asked of ZKN to establish her understanding of the effect of the documentation. He stated he mainly relied on his previous dealings with ZKN to satisfy himself of her understanding of the documentation. The cumulative effect of Mr Z’s failings means that we give no weight to his evidence and his view that ZKN understood the meaning and effect of the instruments she was signing.

33. Based on our findings regarding Mr Z’s evidence and the medical evidence from Dr Y, we are not satisfied that ZKN had the necessary understanding to enter a valid enduring power of attorney made on 25 June 2021. ZKN’s own evidence and lack of recall is also consistent with a diagnosis of dementia.

Consequences of our findings about the making of ZKN’s enduring power of attorney on 15 August 2018

34. We decided not to make an order in respect of the enduring power of attorney and instead, treat the application for review as an application for a financial management order under Pt 3A of the Guardianship Act. We were satisfied that this was the appropriate decision given the strong medical evidence against ZKN having capacity, her estate was significant and it would not be in her best interests to leave her without the necessary assistance in managing her estate.

FINANCIAL MANAGEMENT

35. We had to decide the following questions in relation to financial management:

• Is ZKN incapable of managing her 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 ZKN’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 ZKN incapable of managing her affairs?

36. The test of capability has been clearly set out by Lindsay J in P v NSW Trustee and Guardian [2015] NSWSC 579:

“Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the need for a financial manager charged with a duty to protect his or her welfare and interests?

…

[A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs, in a reasonable, rational and orderly way, with due regard to his or her prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.”

37. In considering whether the person is “able” to manage his or her financial affairs in a reasonably competent manner, consideration may be given to:

• past and present experience as a predictor of the future course of events;

• support systems available to the person; and

• the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498, at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, at [309]. No one at the hearing disputed the validity of the power of attorney.

38. We refer to and rely on the evidence from Dr Y outlined above.

39. Ms V, Occupational Therapist from the public hospital prepared a report dated 20 July 2021. Ms V carried out a full assessment on ZKN at the public, hospital on 27 May 2021 to consider her functional capacity and cognition to facilitate discharge planning. Ms V detailed in report the findings following her assessment. Given ZKN’s deficits, Ms V concluded that ZKN is likely to display a reduced level of insight, problem solving, judgement, memory and orientation. She is likely to require support to manage complex tasks and manage decision making. Ms V supported the appointment of a guardian and financial manager.

40. We refer to and rely on the evidence of ZKN outlined above. In our view, ZKN’s presentation was consistent with the medical evidence. That is, she had no recall or minimal recall of recent events such as meetings with her solicitor and the signing of documents. She struggled to recall names of family members. We also considered a previous incident last year when ZKN was the subject of financial exploitation by an appointed power of attorney. This incident highlights her vulnerability to be taken advantage of by unscrupulous persons in the future.

Conclusion

41. Based on all the evidence, we were satisfied that ZKN did not have capacity to manage her financial affairs.

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

42. We understand from ZKN’s hospital team that prior to her admission, she lived in her acreage home in regional NSW. There is no other information regarding her assets or liabilities. She is reported to have a son, Mr U, who resides in Queensland but with whom she has minimal contact. She also has a grandson, KAQ who resides in London and another family member, SZN who is her niece and lives in regional NSW.

43. Based on the limited information regarding ZKN’s estate which includes a property in regional NSW, the need to manage the payment of her expenses and the need, on her discharge from hospital, to pay for either services to her home or placement in an aged care facility, we were satisfied that there is a need to appoint someone to manage ZKN’s financial affairs and it is in her best interests that an order be made.

Who should be appointed financial manager?

44. In appointing a financial manager, as in making all other orders under Guardianship Act, we 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.

45. Section 25M of the Guardianship Act provides that if we make a financial management order, we may appoint a suitable person to manage the person’s estate or we may commit the management of the estate to the NSW Trustee and Guardian.

The views of KAQ

46. KAQ spoke by telephone during the hearing. Unfortunately, the telephone connection was weak and on several occasions during the hearing, the line dropped out or KAQ’s words dropped out causing him to call back. At other times, his voice became faint and difficult to comprehend.

47. KAQ told us that he was a seafarer and was currently working as an officer on a ship which was presently sailing around the waters of Croatia. This would explain the poor quality of the telephone connection. He stated that he was very close to his grandmother and spoke to her regularly by telephone. He believed his grandmother has always wanted to appoint him as her guardian and attorney but did not because she believed he was not available due to being overseas and having his own family responsibilities.

48. In early June 2021, KAQ found out that his grandmother was in hospital and attempted on several occasions to speak to the treating medical team about her condition and treatment but no person made themselves available apart from the social worker, Ms T. During one telephone call with his grandmother, she indicated she did not wish to move to regional NSW and asked KAQ to become her decision maker. He had a subsequent telephone call with Mr Z who arranged the paperwork and spoke to his grandmother. KAQ then consulted with a London legal practitioner to accept the appointments as enduring guardian and enduring power of attorney.

49. KAQ was only advised of his grandmother’s dementia following his appointment as attorney. However, he was aware of her declining health and was concerned about her particularly in relation to her being financially exploited.

50. KAQ wished to be appointed his grandmother’s financial manager. He understands he does not live in Australia but he stated the real issue is “connectivity”. He is available 24/7 to communicate by mobile or email. He can sign documents and have them returned by email or other social apps. In relation to his grandmother’s estate, he has been in contact with her banks and is seeking information regarding the current balance and any other investments. He has recently arranged for a maintenance person to attend his grandmother’s property and arrange for the lawn to be mowed. If his grandmother needs to be placed in an aged care facility, he could liaise with the management and ensure the fees were paid and placement secured. He was also agreeable to providing regular reports to the NSW Trustee and Guardian and seek guidance from them as required.

The views of SZN, niece

51. SZN stated that she had a long 40-year association with her aunt. She and her husband have visited her twice a year and travel about seven hours from their home in regional NSW. As she had been appointed guardian and attorney, she was consulted by the hospital team about discharge destinations for her aunt. She works in regional NSW at the local hospital and proposed a local aged care facility in regional NSW where she could visit her aunt on a regular basis. She is now aware of her aunt not wishing to move to regional NSW. In view of applications and her aunt’s views, she longer wished to be involved in the decision making for her aunt. She believes an independent body such as the NSW Trustee and Guardian should be appointed rather than KAQ.

Conclusion

52. We considered KAQ’s evidence and found him to be a genuine witness and committed to his grandmother’s best interests. Despite their distance, he was in regular contact with her by telephone. Whilst ZKN’s recollections and evidence was at times vague, she did make her affections towards her grandson very clear and she spoke positively about him. KAQ was adamant that he could undertake the role of financial manager using his mobile, email and social multi-media applications. In this regard, we noted his evidence that since his appointment as enduring power of attorney he had already been in contact with his grandmother’s bank to obtain information.

53. During the hearing, we made enquiries of KAQ to ascertain whether he was a “suitable person”, for the purposes of the Guardianship Act to be appointed as his grandmother’s financial manager. His responses to the probity questions raised no concerns. He also stated there was no conflict or intermingling between his accounts and those of grandmother’s accounts. He was also agreeable to being subject to the accounting and reporting requirements of the NSW Trustee and Guardian.

54. We accepted the evidence of KAQ and we were satisfied that KAQ had the knowledge and experience to be a suitable person to be appointed as financial manager for ZKN subject to the authorities and directions of the NSW Trustee and Guardian.

REVIEW OF ENDURING GUARDIANSHIP APPOINTMENT

What did the Tribunal have to decide?

55. In relation to the review of the enduring guardianship appointment we were required to decide the following principal issues:

1. Does the Hunter New England Local Health District have standing to make the application?

2. Should we confirm the appointment, vary the appointment or revoke the appointment?

3. Alternatively, if in the best interests of ZKN should we deal with the review as if it were an application for guardianship?

4. If we decide to treat the review as an application for guardianship, we are required to make an assessment and make findings on whether ZKN has capacity to make important lifestyle decisions and whether there is a need for a guardianship order. If we do make the order, who should we appoint as ZKN’s guardian?

Does HNELHD have standing to make the application?

56. In relation to a review of an enduring guardianship appointment, s 6MA of the Guardianship Act requires an applicant to have a genuine concern for the welfare of the appointor.

57. For the reasons outlined above in relation to the review of the enduring power of attorney appointment, we find that the HNELHD has standing to bring the application.

What orders are in the best interests of ZKN?

58. For the same reasons outlined above in relation to the validity of the enduring power of attorney made on 25 June 2021, we are not satisfied that ZKN had the necessary understanding to enter a valid enduring guardianship appointment made on the 25 June 2021. It follows that it is in ZKN’s best interests that the enduring guardianship appointment made on the 25 June 2021 be revoked.

59. We were also satisfied that it was in ZKN’s best interests to deal with the review as if it were an application for guardianship. This was due to the clear medical evidence regarding ZKN’s capacity to manage her person and make important decisions, the lack of any informal decision-making options and the need to make an accommodation decision regarding ZKN’s discharge destination.

GUARDIANSHIP

60. Before a guardianship order is made, we must be satisfied that:

• ZKN is a person with a disability within the meaning of the Guardianship Act;

• because of that disability/those disabilities, ZKN is totally or partially incapable of managing her person;

• ZKN is a person in need of a guardian and a guardianship order should be made; and

• and if a guardianship order is made what decision-making functions should be given to the guardian.

Is ZKN a person for whom the Tribunal could make an order because she has a disability which makes her totally or partially incapable of managing her person?

61. Section 14 of the Guardianship Act provides that a guardianship order may be made for a person if the Tribunal 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”: Guardianship Act, s 3(1). 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;

62. 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: Guardianship Act, s 3(2).

63. The term “social habilitation” is not defined by the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered the meaning in the context of s 3(2) of the Guardianship Act, at [303];

“The expression ‘social habilitation’ (in the context of references to ‘disability’, ‘restricted’, ‘major life activities’, and the word ‘requires’) may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others.”

64. We refer to and rely on the evidence of Dr Y, Geriatric Specialist as outlined above. In his report, Dr Y also referred to several issues identified during ZKN’s current admission being:

“Unwitnessed fall, hot water burn, moderate Alzheimer’s dementia further complicated by Sundowning Syndrome and nocturnal agitation, behaviour and psychological symptoms of dementia (BPSD) managed with regular Sertraline, Mirtazapine and Risperidone, multifactorial delirium (now resolved), recurrent urinary tract infections, constipation, essential tremors, poor insight, lives alone and refuses to accept services.”

65. We refer to and rely on the evidence of Ms V, Occupational Therapist as outlined above.

66. While ZKN expressed a view that she could make her own decisions, we preferred the consistent and unequivocal medical evidence regarding her medical conditions and decision-making capacity. As stated, ZKN’s overall presentation and interaction with us during the hearing was also consistent with the medical evidence. Based on all the evidence, we were satisfied that ZKN has a disability that prevents her from making important life decisions. She is a person in need of a guardian and for whom we could make a guardianship order.

Should the Tribunal make a guardianship order and if so, what decision making functions should be included in the order?

67. Section 14 of the Guardianship Act sets out the following as matters that the Tribunal must have regard to when considering whether to make a guardianship order:

• the views of the person, the spouse and the person who has the care of the person;

• the importance of preserving existing family relationships;

• the importance of preserving cultural and linguistic environments; and

• the practicality of services being provided to the person without the need for making a guardianship order.

68. We must also observe the general principles set out in s 4 of the Guardianship Act. These include that:

• the welfare and interests of the person with disabilities should be given paramount consideration and the person’s views taken into account;

• the freedom of decision and freedom of action of such persons should be restricted as little as possible;

• such persons should be encouraged to live a normal life in the community and to be self-reliant in their personal, domestic and financial affairs;

• the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised; and

• the importance of protecting the person from abuse, neglect and exploitation.

69. Ms S, Social worker indicated that ZKN was ready for discharge but due to concerns about her returning home, her discharge destination had not been decided. There had been some previous discussion with SZN about ZKN moving to a respite placement at an aged care facility in regional NSW but ZKN was opposed to going to regional NSW. ZKN had also refused to discuss discharge options other than returning home.

70. Ms V noted in her report that ZKN lives alone in her acreage property. Due to her poor mobility, she requires a wheelchair but has had multiple previous falls at home. ZKN has stated that she had difficulty with activities of daily living and had trouble maintaining her home. She has approval for a level 4 home care package but has previously declined all services. She has been adamant that she does not require support to maintain her living at home.

71. The hospital treating team including Ms S supported a guardianship order being made to facilitate ZKN’s discharge home with adequate and appropriate services or if this is not possible, transfer to a suitable aged care facility.

72. Apart from ZKN, all persons who participated in the hearing supported the making of a guardianship order.

Conclusions

73. We are satisfied that a guardianship order needs to be made for ZKN. She is ready for discharge and an accommodation decision needs to be made. The available and undisputed medical evidence is that ZKN is unable to make informed and rational decisions about this matter. Without a guardian, ZKN would be at risk of returning to her home and being without appropriate services. She would also be at risk of further admissions to hospital. For these reasons and in consideration of her overall welfare, we have decided to make a guardianship order.

74. In the foreseeable future, decisions about accommodation, health care, services medical and dental treatments are likely to be needed to be made on behalf of ZKN. For that reason, we decided to confer these functions on the guardian.

75. In addition, we decided to confer on the guardian a coercive authority in relation to the carrying out of the accommodation function. This authority enables the guardian to authorise the police or ambulance service to assist in moving ZKN to an accommodation place, to keep her there and to return her to that place, should she leave without proper authority. We find there are sufficient grounds for this authority based previous action of declining all offers of services to her home and during her current admission, refusing to discuss with the hospital treating team the alternative discharge options. The medical evidence also highlights her lack of insight regarding her care needs. We note that these authorities are only to be exercised by the guardian as a last option when all less restrictive options have been considered.

Who should be the guardian?

76. Section 17 of the Guardianship Act states:

1. A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that:

1. the personality of the proposed guardian is generally compatible with that of the person under guardianship;

2. there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship; and

3. the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.

77. We are not able to appoint the Public Guardian as a person’s guardian if there is a private person who can properly be appointed.

78. KAQ requested he be appointed. He referred to his submissions outlined above regarding his availability at all times of the day and night by phone, email and other multi-media sources. We raised our concerns with KAQ about his distance from his grandmother, his busy work and family schedule and regarding his 24/7 access, the fact that his call had dropped out on several occasions during the hearing. We also pointed out the types of decisions to be made by a guardian, unlike financial matters, were often requiring immediate attention and often concerning the subject person’s safety, welfare and well-being. These included decisions about accommodation, the services received and medical treatment. These decisions often involved multi-layered and complex processes requiring a guardian to liaise quickly with multiple parties including the subject person. We asked KAQ how he would meet these obligations to make these difficult and complex decisions in the best interests of his grandmother. KAQ was unable to provide any further information or insights that gave us confidence he could fulfil the role, particularly in relation to ZKN who will be unlikely to agree to services and any accommodation proposals put forward that do not involve her returning home. Therefore, while KAQ was willing, he was in our view, unable to meet all the demands and obligations of a guardian and for these reasons, we appointed the Public Guardian there being no other suitable person proposed.

How long should the order last?

79. An initial guardianship order can be made for a period of up to 12 months from the date on which it was made.

80. We decided to make the term of the order for 12 months to be reviewed at the end of that period.

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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 August 2022