BDF [2020] NSWCATGD 26

NCAT Guardianship|2020-02-11|Before: Windeyer J

BACKGROUND

BDF is 66 years old and an inpatient at a public hospital. BDF was diagnosed with Wernicke's encephalopathy on his admission. He has a past diagnosis of frontal lobe dementia.
Prior to admission to hospital, BDF lived in his own home and also spent large periods living in the Philippines.
BDF is reported to exhibit difficult and aggressive behaviour on the ward.
On 22 January 2020, the Tribunal received applications to appoint a guardian and financial manager from MZL, social worker, on behalf of the Central Coast Local Health District. A guardian is requested to assist in decision making regarding BDF's discharge destination. Discharge to a Residential Aged Care Facility (RACF) has been discussed with BDF by hospital staff but he is adamant in rejecting that proposal. A financial manager is requested in the event that placement in an RACF is required and BDF declines to consent to admission or payment of the necessary accommodation fees.
QMC, BDF's brother, holds a current Enduring Power of Attorney (the EPOA) and Enduring Guardian (the EG). QMC has indicated to a Tribunal officer that he is willing to act in the role of attorney under the EPOA.
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.]

Is BDF someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

Section 14 of the Guardianship Act 1987 (NSW) ("the Act") provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is "a person in need of a guardian". A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person": s 3(1) of the Act. A person with a disability is a person who is: 1. intellectually, physically, psychologically or sensorily disabled; 2. of advanced age; 3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or 4. otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: s 3(2) of the Act.
The Tribunal considered the report dated 30 August 2019 prepared by Mr Z, clinical neuropsychology registrar, and Ms Y, clinical neuropsychologist. That document found an historical decline in BDF's cognition in recent years. Dr X, a neurologist, noted an MMSE score of 26/30 in 2017 and 23/30 in 2018. An MRI in 2016 reportedly showed mild cerebral atrophy. BDF was observed to be extremely circumstantial and tangential in conversation and often his answers were so derailed that he did not enter the initial question. The Tribunal also observed that behaviour during the hearing.
Mr Z and Ms Y noted that BDF's cognitive profile was dominated by "striking executive dysfunction". He demonstrated significant cognitive impairment in psychomotor speed and visuo-construction. He performed below the cut off for dementia screening and his condition is consistent alcohol related brain damage exacerbated by Wernicke's encephalopathy and delirium. The Tribunal accepted that evidence.
A more recent report from Dr W, clinical neuropsychologist, and dated 20 January 2020 noted that BDF achieved a score of 18/30 on a MoCA screening test. That is indicative of cognitive impairment. Dr Lambert was of the opinion that BDF was not capable of making decisions regarding his accommodation or support needs. She supported the appointment of a guardian and financial manager. The Tribunal accepted that evidence.
The Tribunal adopted the contents of the Occupational Therapy report of Ms V. BDF oscillated between participating in a screening test and then refusing. BDF had poor memory. After testing Ms V formed the opinion that BDF lacks insight into his medical diagnosis and the effect it has on his behaviour. His ability to manage independently in the community is undermined by his propensity to drink alcohol. Ms V recommended placement in an RACF. She also recommended the appointment of a financial manager.
The Tribunal is satisfied that BDF has a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order and what order should be made?

The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order: 1. the views (if any) of: 1. the person; 2. the person's spouse; 3. the person's carer; and 1. the importance of preserving the person's existing family relationships; 2. the importance of preserving the person's particular cultural and linguistic environments; and 3. the practicability of services being provided to the person without the need for the making of such an order.
These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).
BDF stated that he had been in hospital for 8 months and was feeling depressed by his circumstances. If he left hospital he proposed to return to the Philippines. He denies he requires assistance in decision making. If he returned to live in his home he feels capable of managing independently - the supermarket is nearby and he could shop for himself.
Dr U gave the following summary of BDF's circumstances: 1. He was very confused on admission. 2. He is independent in activities of daily living. He visits the hospital gym but also spends lots of time sleeping. 3. On the ward he is often observed to get agitated and angry. The threats he has made have not led to harm. 4. He is likely to be able to manage in a structured environment but, in Dr U's view, BDF would struggle to live independently in the community. The particular challenges he would face include preparing food and washing himself and his clothes at home. 5. He does not engage with social workers or the occupational therapy team in the hospital. That reduces the likelihood he will build the skills necessary to return to live in his home successfully. 6. His cognition improves significantly when BDF abstains from alcohol. However, even with that improvement, he cannot process complex ideas due to a significant frontal lobe impairment.
Dr U stated that, with support, BDF may be able to secure accommodation that is not in an RACF (as a first option). She considers if he was abstinent from alcohol and was receptive to services there is a chance he may be able to return home. Weighed against that is BDF can be aggressive and so she would not recommend that service providers enter his home. MZL, social worker, expressed concern that when service providers visited BDF at his home he was often not there. For that reason, the service providers may cease visiting.
QMC expressed the opinion that his brother will struggle to not drink alcohol when he leaves hospital. The Tribunal accepted that evidence.
Lisa Shapiro, representing the Public Guardian, considered there was sufficient evidence to recommend an alternative decision maker with functions of accommodation, healthcare, medical/dental consents and services.
The Tribunal was satisfied that the evidence supported the appointment of a guardian with an accommodation function. If an RACF is recommended (after other options are exhausted) then it is reasonable to assume BDF will refuse to go there voluntarily. For that reason, the authority to take or return BDF to an RACF was necessary in the circumstances of this case.
The Tribunal decided on the basis of all of this evidence that a guardianship order should be made with functions of accommodation (authorise others), healthcare, medical/dental consents and services for a period of 12 months.

Who should be the guardian?

There applicant did not nominate a person be appointed guardian for BDF. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she must: 1. have a personality generally compatible with the personality of the person under guardianship; 2. have no undue conflict of interest (particularly financial) with those of the person; and 3. be able and willing to exercise the functions of the order.
In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep and Re B (No. 1) [2011] NSWSC 1075, [66]).
In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.
The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed: s 15(3) of the Act.
The Supreme Court has held that: the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).
QMC stated that he struggled to communicate with his brother because he is prone to aggression and is fixated on past (untrue) events in which he believes QMC took advantage of him.
MZL stated that that BDF is strongly opposed to receiving assistance in decision making from his brother. If difficult decisions need to be made regarding future accommodation it is her concern that the relationship could be adversely affected permanently. The Tribunal accepted that evidence. It formed the view that BDF and QMC do not have a relationship that is compatible to QMC being appointed as a guardian for his brother.
As there is no private person available to be appointed as guardian, the Tribunal appointed the Public Guardian.

What did the Tribunal have to decide?

The questions to be considered by the Tribunal are:

Is BDF incapable of managing his affairs?
Is there a need for another person to manage BDF'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 BDF incapable of managing his affairs?

BDF accepted that he may need assistance in managing his financial affairs.
The Tribunal refers to and repeats the conclusions reached regarding BDF's inability to manage his financial affairs discussed in [9]-[12] above. That is, BDF's diagnosis of Wernicke's encephalopathy and frontal lobe dementia affect his ability to make informed decisions so that he can manage his financial affairs.
The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86). See Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [20].
The evidence presented to the Tribunal is that BDF has a history of heavy drinking that leads to hospital admissions. The Tribunal is satisfied that, in addition to his medical diagnoses, BDF's propensity to return to heavy drinking will also impede his ability to manage his finances.

Is there a need for a financial management order?

BDF stated that he was capable of managing his own finances. He was also happy for his brother to act as his attorney under the EPOA. After that statement BDF became agitated and angry accusing his brother QMC of failing to pay him $3,000 that he allegedly won on a football wager.
MZL stated that the main need for a financial manager was to facilitate admission to an RACF if that was the only course available to BDF. The evidence was that BDF would firmly refuse to allow that to occur. For that reason, the Tribunal was satisfied that a financial management order was required to make that decision (if needed).
The Tribunal was satisfied that there is a need to appoint someone to manage BDF's affairs and that it was in his best interests for an order to be made.

Who should be appointed as financial manager?

In appointing a financial manager, as in making all other orders under the Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Act.
Section 25M of the 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.
In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court's broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.
On the side of the then Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage.
The advantages of the appointment of a family member were more economic management of smaller estates (that is, freedom from fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers.
The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be "more apparent than real," should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family.
In Application by AMAM; Re SAM [2011] NSWSC 503, Hallen AsJ stated: [34] It would be unwise to attempt any definition of the matters that may legitimately be enquired into to determine whether the applicant is suitable. Each case must depend on its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager's character, honesty and ability to manage, diligently, the managed person's property in the managed person's best interests.
The matters or "guidelines" that should be considered when determining who to appoint as financial manager, as established in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, are discussed and expanded upon by Lindsay J in M v M [2013] NSWSC 1495 at [50].
QMC accepted that his brother's attitude to him assisting him with his finances oscillates. It was his observation that his brother is often paranoid that people are stealing money from him. He also expressed the view that when his brother drinks alcohol in excess he becomes "unstable". He admitted that although he is his brother's attorney he has no real control over his brother's decisions regarding finances and most conversations result in a verbal conflict. The Tribunal was satisfied that if QMC was appointed as his brother's financial manager he would not have the support of his brother and it would result in ongoing conflict between them.
As no other person was identified who could fill the role the Tribunal was satisfied that the estate of for BDF should be committed to the NSW Trustee and Guardian.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 September 2020

Trustee and Guardian Act 2009(NSW)

t & Anor v Protective Commissioner (1993) 31 NSWLR 227 IF v IG [2004] NSWADTAP 3 M v M [2013] NSWSC 1495 McD v McD (1983) 3 NSWLR 81 P v D1 & Ors [2011] NSWSC 257 Re B (No. 1) [2011] NSWSC 1075 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 Texts Cited: Nil Category: Principal judgment Parties: 001: Guardianship Application

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