BSC [2019] NSWCATGD 22

The Hearing

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

What did the Tribunal have to decide?

1. 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.
2. The threshold issue for the Tribunal, once an application has been properly made, is whether the person who is the subject of the application has a disability which renders them at least partially unable to manage their person.
3. Even if this threshold issue is established, the Tribunal has discretion about whether to make orders and what kind of orders to make. 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 BSC are the Tribunal's paramount consideration.

GUARDIANSHIP

1. The questions to be considered by the Tribunal are: 1. Is BSC someone for whom the Tribunal could make a guardianship order? 2. Should the Tribunal make a guardianship order and if so, what order should be made? 3. If a guardianship order is to be made, who should be the guardian and how long should the order last?

Is BSC someone for whom the Tribunal could make a guardianship order?

1. Section 14(1) of the Guardianship Act 1987 (NSW) ('the Act') enables the Tribunal to make a guardianship order for BSC if we are satisfied that he is "a person in need of a guardian".
2. A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing their person": s 3(1) of the Act. The disability must restrict them in one or more major life activities to the extent that they require supervision or social habilitation (s 3(2) of the Act), that is, assistance to manage in society. Commonly, we consider the person's ability to make important personal, health and lifestyle decisions, which is a major life activity that impacts on the person's ability to manage in society.
3. We received several consistent medical reports in relation to BSC, which indicate that he has sustained a severe traumatic brain injury. The most recent report was authored by Dr X, clinical neuropsychologist, and dated 26 August 2019. It was apparently prepared for the purpose of determining whether BSC could provide instructions to his solicitors. The doctor reports that whilst BSC felt that he could understand the legal process and was capable of instructing his solicitors, he also acknowledged that he would be happy to have his mother assist him. The doctor noted that BSC has planned a mediation with his wife in relation to both financial matters and his parental obligations.
4. After referring to a number of tests and the process of interviews undertaken with BSC, the doctor reports, in summary, that in relation to his ability to instruct his solicitors BSC can understand the: …general nature of the divorce proceedings and is able to express himself and state his wishes clearly. However, the following factors will impact on his capacity to give instructions. His memory is impaired and unreliable, such that he is likely to forget information and advice that is provided. His judgement and reasoning skills are impaired and his thinking tends to be mentally inflexibly and rigid. These impairments will impact adversely on his capacity to remember and weigh up information, consider the likely consequences and costs and benefits from different courses of action, modify his thinking with new information or changes in circumstances and make reasoned and sound decisions in relation to legal matters. I therefore consider that while BSC's wishes and opinions should be listened to and considered, his best interests would be served by the appointment of a tutor or next friend such as his mother to guide him in instructing his solicitor.
5. In relation to BSC's capacity to manage his financial affairs, the report goes on to note that: From the information available, currently BSC would appear to be managing his finances in a careful and sound manner. He is broadly aware of his assets, has taken steps to protect larger amounts of money, he does not spend money impulsively and he is able to budget with the limited funds that are available to him. In his current circumstances where he is living with his parents, there would appear to be little risk that his assets will be dissipated. However, his longer term plan is to move to [a regional town] to be closer to services and activities and live independently with supports as required. He is naturally hopeful of forming a new relationship. In my opinion, in this future living arrangement he would be vulnerable to being taken advantage of due to cognitive impairments in judgement, reasoning, mental flexibility and memory. There would be an increased risk of poorly reasoned decisions that might lead to his assets being dissipated, for example through a new relationship or friendship with someone who does not have his best interests in mind. I would therefore recommend that larger assets such as those from the divorce settlement be protected through external financial management, which should not involve his parents as that would impact negatively on their relationship.
6. At the hearing, we heard from each of BSC and his parents. Whilst BSC retains an understandable desire to maintain his independence to the greatest extent possible, he acknowledges that he has difficulties posed by the deficits in his memory and flexibility in thinking outlined by Dr X.
7. He felt that he was a person with a disability, being a traumatic brain injury which renders him at least partially incapable of managing his person in society. He supported the appointment of a guardian for him, on that basis.
8. The other witnesses at the hearing also believed BSC was unable to understand the nature and effect of some important personal decisions that he may need to make.
9. We were satisfied, based on that consistent evidence, that BSC has a disability, being an acquired brain injury. This causes him to have impaired decision-making capacity for some important personal, health and lifestyle decisions, such that he needs supervision or assistance to function in society and manage his person.

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

1. When considering making an order, we must have regard to BSC's views and those of the mother as his carer. We were also required to consider the importance of preserving BSC's existing family relationships and particular cultural and linguistic environments as well as the practicability of services being provided to his without the need for an order: s 14(2) of the Act.
2. These matters are in no particular order and each must be considered. Where there are different or competing issues to be considered, we undertake a balancing exercise in our consideration of these matters. Of course, we also consider any other relevant evidence, guided by the principles that are set out in s 4 of the Act. Where relevant evidence of particular weight about these issues was available to us, or where different factors needed to be balanced, it is referred to below.
3. The only area where a guardian was said to be required for BSC was in relation to him providing instructions to his lawyers and conducting mediation and/or court proceedings in relation to his family law issues. Given that those issues related to both his parental responsibilities and financial affairs, we asked the parties to consider whether they were satisfied that the guardianship order sought by the applicant would be satisfactory to meet BSC's need for substitute decision-making. Unfortunately, the applicant and BSC had very little information about that question and were, on that basis, unable to make extensive submissions on that issue.
4. On the day of the hearing, we received a letter from BSC's lawyers. In that letter they indicated that: We refer to the above matter and confirm our office has been assisting [the mother] in relation to her son's Family Law Matter. We confirm our office met with [BSC] for an initial consultation and we raised concerns regarding his capacity to instruct our office. Consequently, we requested a report from his treating Neurologist (sic). We confirm it is clear from the report dated 26 August 2019 (copy enclosed) that [BSC] does not have the capacity to instruct our office. Please note, in the event [the mother] is not granted guardianship over [BSC] our office will not be able to assist him in relation to his Family Law Matter as we do not have the confidence that he has the capacity to understand our advice or adequately instruct our office. Furthermore, it is highly likely that no other solicitor will take instructions from [BSC] and ultimately his Family Law Matter will not be resolved and he will not receive a property settlement and/or have access to his children in the future.
5. Notwithstanding the content of that letter, we were not clear that a guardianship order with, say, the legal services function, would be sufficient to ensure that BSC's need for substitute decision-making was met in a way that would allow the mediation or the family law proceedings to be conducted. We therefore decided to contact his family law solicitors from the hearing room, to try and obtain some submissions from them in that regard. Our concern was that whilst a guardianship order with the legal services function would provide authority for a guardian to instruct solicitors for BSC, it may not allow for the completion of any agreement and subsequent consent orders to be filed, should an agreement be reached at the mediation between BSC and his partner.
6. Whilst the Federal Circuit Court and Family Court have the ability to appoint a litigation guardian or case guardian, respectively, the rules of both of those Courts provide that a person who is appointed as a substitute decision-maker can, as of right, seek to be appointed to those roles. However, the nature of the appointment required is not clear.
7. We therefore contacted BSC's solicitors and spoke to Ms T, the solicitor with the conduct of the matter. Unfortunately, despite taking some time to consider the position and discuss the matter with her principal solicitor, Ms T was, in the end, unable to provide any submissions as to whether the appointment of a guardian would satisfactorily meet BSC's need for substitute decision-making. She submitted that it may be that the Tribunal needed to adjourn.
8. Given that the application for the appointment of a guardian was recommended by his family law solicitors, it is somewhat disappointing that they were not in a position to make meaningful submissions to the Tribunal as to the orders which may have been made in BSC's best interests. Notwithstanding that, we were not satisfied that there was a reason for us to adjourn the hearing.
9. We were satisfied, based on the consistent evidence and submissions of the parties at the hearing, that we should appoint a guardian with the function of making legal service decisions for BSC today. If another order, such as a financial management order, is required in the future in order for BSC to finalise his outstanding family law issues, then another application can be brought in relation to that at the time.

Who should be the guardian and how long should the order last?

1. The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can properly be appointed: s 15(3) of the Act.
2. The Supreme Court has held that: [T]he proper meaning to be given to [section 15(3)] 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]).
3. In deciding whether a person is able to undertake the role of guardian, we must consider whether they are able to exercise the functions in accordance with the principles set out in s 4 of the Act: CS and MY v The Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075 at [66].
4. We must also be satisfied that they have a personality which is generally compatible with that of BSC, that they have no undue conflict of interest and that they are willing and able to exercise the functions of the proposed order: s 17 of the Act.
5. The mother proposed that she be appointed as guardian for her son. Her appointment was supported by both BSC and the father. The affection between BSC and his mother and the support she provides to him was apparent at the hearing. We were satisfied that she was in all respects appropriate for appointment.
6. When considering the length of the order to be made, we were satisfied that the initial issues, at least, in relation to guardianship should be resolved within the next 12 months. In the event that legal proceedings are commenced and BSC needs a litigation or case guardian, then that issue may stand alone without the ongoing need for a guardian to be appointed with the legal services function. On that basis, we made an order for a period of 12 months. At the end of that time the Tribunal will review the order, and the need for it.

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: 15 January 2020