BTD v NSW Trustee and Guardian

Parties and witnesses

1. The Appendix to these Reasons identifies the parties to the applications and the witnesses and other people who attended the hearing. [Appendix removed for publication.]

Guardianship

1. The questions which had to be decided by the Tribunal were: 1. Is Ms NFM "a person in need of a guardian"? That is, is she someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions? 2. If question (a) is answered in the affirmative, should the Tribunal make a guardianship order? 3. If an order is to be made, who should be the guardian and what functions and authorities should the guardian have? 4. If an order is to be made, how long should it last?

Financial Management

1. The questions which had to be decided by the Tribunal were:

• Is Ms NFM incapable of managing her affairs?
• If Ms NFM is so incapable, is there a need for another person to manage her affairs and would it be in her best interests for a financial management order to be made?
• If an order is to be made on the basis of the answers to those questions, who should be appointed as financial manager?

Procedural application by Ms DZT to be joined as a party

1. On 12 October 2015, the Tribunal received from Ms DZT, Ms NFM's daughter, a request to be joined as a party to both applications. This was application number 2015/9448.
2. At the opening of the hearing on 15 October 2015, the Tribunal heard this procedural application. Ms DZT based her application on her close relationship with her mother and a "financial interest" which Ms DZT described as her mother's "ability to have her financial matters looked after". Ms DZT asserted that she had concern for her mother's safety. The application was strenuously opposed by Mr Watkins, the Legal Representative for Ms NFM. Mr Watkins submitted that, apart from the application being extremely late, Ms DZT did not have a genuine concern for her mother, evidenced by allegations of her deception in relation to a property dispute in 2006. He contended that all the evidence pointed to Ms DZT's interests being opposed to and in some cases hostile to those of Ms NFM. The application was not opposed by Mr Liew, the Legal Representative for the applicant, Mrs NAQ.
3. Ultimately the Tribunal was not persuaded that Ms DZT had sufficient interest in the proceedings to be joined as a party or that such concern as she had for the interests of her mother Ms NFM justified a joinder. The Tribunal noted that there would be no strategic disadvantage to Ms DZT by reason of the refusal of her application, other than the potential for cross-examining other witnesses. The Tribunal could not be satisfied that Ms DZT would be unfairly prejudiced by removal of this opportunity to cross-examine. The Tribunal is under an obligation under the "guiding principle" stated in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings; so cross-examination by any party might well be restricted, given the nature of the case. Ms DZT was reminded that she could participate in the hearing, that the Tribunal would be seeking her views and that she could seek a copy of the orders and Reasons for Decision. The Tribunal refused the request to be joined.

Procedural applications by Mr TXT and Mr BDT to be removed as parties to the financial management application

1. Mr TXT and Mr BDT had been joined as parties on the basis that they were the attorneys appointed under the First Power of Attorney. By letter to the Registrar dated 12 October 2015, Mr BDT requested on behalf of himself and Mr TXT that they be removed as parties, given that they had no direct interest, particularly in light of the fact that Ms NFM had now made the Second Power of Attorney. They also sought to be excused from participation in hearing.
2. The Tribunal did not understand any of the other parties to object to the removal of Mr TXT and Mr BDT as parties in these circumstances. Issues relating to the making of the First Power of Attorney and its operation and effect were not directly before the Tribunal: it would consider only the applications for appointment of a guardian and a financial manager. As a preliminary view, on the face of things, the Second Power of Attorney appeared to be valid and enforceable and its creation appeared to be intended to revoke the First Power of Attorney. Accordingly, the appointees under the second instrument were the parties joined automatically by operation of s 3F(e) of the Guardianship Act 1987 (NSW), not the appointees under the First Power of Attorney: Mr TXT and Mr BDT. Even if that preliminary analysis is mistaken, the Tribunal could not see that anything was to be gained by retaining these gentlemen as parties. On this basis, the Tribunal ordered that Mr TXT and Mr BDT be removed as parties. It saw no need to excuse them formally from participation.

Ms NFM's participation in the hearing and her views

1. The Tribunal had received and considered no fewer than 15 statements from the principal parties and other family members relating to the applications under consideration. Some of these were quite detailed. Many of them contained annexures. It was apparent from these statements that there was a substantial and long-standing rift between members of the family of Ms NFM. The principal underlying issue appeared to be the influence which had been or could in future be exercised over Ms NFM. There existed (and had existed for some time) sharply differing views as to where Ms NFM should live, how her money and assets should be disposed of and managed, how she should be cared for, who should provide that care and the circumstances and conditions under which various family members should have access to her. Allegations and counter-allegations of undue pressure and undue influence abounded.
2. In these circumstances it was apparent that Ms NFM might be reluctant to give her views in detail at the hearing in the presence of the family members who were present. Sub-section 4(d) of the Guardianship Act sets out clearly the Tribunal's duty to obtain the views of people in Ms NFM's position in relation to how the Tribunal should exercise its power to decide the applications. The clear and unpressured expression of Ms NFM's own views would therefore be of considerable significance and importance to the Tribunal in reaching its decisions. Again the guiding principle in s 36 of the Civil and Administrative Tribunal Act, which imposes an obligation on the Tribunal to facilitate the just, quick, and cheap resolution of the real issues in the proceedings, was relevant to the Tribunal's consideration of this issue. Finally, given the relatively informal manner in which proceedings of this Division are usually conducted, the Division's practice is to ensure that the subject person is as comfortable as possible and that the Tribunal does what it can to ensure that the subject person can give their views in an environment which is as free from external pressure and stress as the circumstances permit.
3. For all these reasons the Tribunal concluded that in order to obtain a frank and clear statement by Ms NFM of her views it would be necessary for the Tribunal to speak to her, in the presence of her Legal Representative only; that is, in the absence of the other parties and participants. The Tribunal was satisfied that Ms NFM's welfare and interests would be furthered by adopting this procedure.
4. In a Supreme Court decision: in the matter of Re SU (Supreme Court (NSW) Windeyer J, 17 September 2001, unrep), it was held that it is not a breach of the rules of procedural fairness for the Tribunal to take evidence or to hear a statement from the subject person in the absence of all other participants in the hearing. However, if the Tribunal does hear from the subject person alone it is appropriate that once the hearing is resumed in the presence of the other participants, the Tribunal should summarise the substance of the subject person's views in open hearing. This ensures that other parties have an opportunity to comment on any of that evidence which may be adverse to their case. The efficacy of this procedure and the need to ensure that the other participants receive an adequate summary of the subject person's views was noted in the recent case of BTD v NSW Trustee and Guardian [2015] NSWCATAP 87, [18]-[19], a decision of the Tribunal's Appeal Panel on 8 May 2015.
5. The procedure described above was adopted in the present case. The Tribunal explained to Ms NFM that she could speak frankly with the Tribunal Members and that a summary of her answers to Members' questions and views would be provided to the other participants upon resumption of the full hearing. That was done.
6. In the presence of her Legal Representative, but the absence of the other participants, Ms NFM provided a statement of her views. In summary, it was as follows: 1. Ms NFM gave a reasonably accurate and detailed description of the history and details of the purchase of her current home at South Sydney and the reasons for leaving the long-term family shop and home at Inner West Sydney and arranging for their sale. Ms NFM identified accurately the purchase price for the South Sydney property, the date of completion of the sale, and the solicitor who had acted. 2. Ms NFM denied the suggestion that she had been unduly influenced by her daughters, Mrs EYO and Ms BCW, to live closer to them. She said that she had made her own views clear and that was that she would be happier living next to those daughters. She emphasised that she knows her own mind and wishes to make her own decisions. 3. Ms NFM described her relationship with her daughter, Mrs NAQ, the applicant in these matters. She said that their relationship had "started off good" but had deteriorated. She told the Tribunal that the relationship was: "not good now and I don't want to see her and she should go back to America..." 4. The Tribunal referred Ms NFM to the fact that two of her daughters, Mrs EYO and Ms BCW, were the registered owners of the South Sydney property. The Presiding Member asked Ms NFM to describe her understanding of how her right to continue living there was legally protected. Ms NFM answered that she was the "real owner" and she understood that papers had been signed to ensure that she could live there as long as she liked. She was satisfied that her interests had been properly protected and she trusted Mrs EYO and Ms BCW to do the right thing by her. 5. In answer to questions from Members, Ms NFM said that she was happy that Mrs EYO and Ms BCW had been appointed as her enduring guardians and attorneys. She reiterated that she trusted them. 6. Ms NFM said that she was extremely happy to be living in South Sydney. She described in some detail the amenities and shops in the area which were conveniently located to her new home. 7. When asked what she would see as the best result of the hearing, Ms NFM said words to the effect: "Get rid of the applications. I don't want [Mrs NAQ] or [Ms DZT] near me. They are upsetting me all the time."

THE TRIBUNAL'S ASSESSMENT OF THE EVIDENCE AND DETERMINATION OF THE ISSUES

Is Ms NFM "a person in need of a guardian"? Is she someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

The legal requirements

1. Section 14 of the Guardianship 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 that 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; 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 Guardianship Act.
2. Significantly then, the existence of a disability as the concept is widely defined in sub-paras (a)-(d) above, is not sufficient of itself to ground the making of a guardianship order. Not everyone who has a disability is prevented by their disability from making important decisions. So, it is also essential, in order for the Tribunal to have any power to consider a guardianship order, that it be established that the disability restricts the subject person in one or more major life activities to such an extent that he or she requires supervision or social habitation. (See for example: IF v IG & Ors [2004] NSWADTAP 3 (13 February 2004). This additional step is sometimes referred to as the "capacity" test".
3. The capacity test is commonly applied as at the date of the hearing
4. The Tribunal must find that the person meets the statutory definition of person in need of a guardian as a pre-condition to engaging in the second step of the process; i.e. deciding whether a guardianship order should be made in the particular case, including consideration of the factors in s 14(2) of the Guardianship Act: IF v IG & Ors [2004] NSWADTAP 3 (13 February 2004), [25]). So, if the subject person is found not to be "a person in need of a guardian" then the guardianship application must be dismissed.

Medical and clinical evidence

1. The Tribunal received and considered a number of written medical and clinical reports concerning Ms NFM.
2. Among these was a report dated 25 August 2015 from Dr Z, Senior Staff Specialist Geriatrician at a public hospital. Dr Z treated Ms NFM at the public hospital following a fracture of her left hip following a fall. Significantly, Dr Z assessed Ms NFM from what he describes as "the aged care perspective" and was of the view that there is evidence of a mild dementia, which was confirmed on neuropsychological assessment by Dr Y. Routine pathology was also done and that indicated some evidence of primary hyperparathyroidism which in the doctor's view was inconsequential at this stage.
3. Dr Y's report was also dated 25 August 2015. Dr Y assessed Ms NFM on 21 August 2015. Ms NFM was found to be well oriented to time and place. She stated her correct age and date of birth. Her immediate auditory attention span and basic working memory were good. She had no difficulty performing over learned tasks, such as counting backwards, and reciting the alphabet. Her arithmetic skills were good. Her new learning and retention of geometric shapes was adequate, as were her elementary perceptual skills and she was able to partly extract the 3-D aspect of a cube. Her clock drawing was good and tests of higher-level language skills were within normal limits.
4. However, Ms NFM's new learning of highly-organised verbal information was found to be poor with only adequate or borderline retention of this information over time. Dr Y notes that she was overwhelmed by the amount of information contained in a short story and could not absorb it. She also performed a more complex task of psychomotor speed very slowly. In Dr Y's opinion, these latter results suggest mild vascular-based sub cortical changes. However, his overall view was that Ms NFM performs within the normal limits on the tests of auditory attention, basic working memory, arithmetic, rote verbal and visual learning, semantic memory, initiation, verbal and non-verbal memory, basic visuospatial skills, and flexibility of thinking.
5. In reaching his views, Dr Z had received the results of a magnetic resonance imaging ("MRI") performed on 17 August 2015 on Ms NFM which showed a moderate degree of small vessel ischaemic change in the cerebral white-matter and mild-pontine ischaemia with significant hippocampal atrophy and moderate cortical atrophy.
6. Significantly, Dr Z concluded that from his own examination and the basis of the neuropsychological assessment: [Ms NFM] has the cognitive capacity to make appropriate decisions with regards to residential, financial and medical matters. In the aged care assessment there was no clinical evidence of any mistreatment, abuse or neglect…... In summary, I am not clinically concerned at the moment with regards to [Ms NFM]'s mild vascular dementia. I do not think she requires any cognitive enhancing agents…She has the capacity to make appropriate decisions with regards to financial residential and medical issues.
7. There were three written reports from general practitioners for Ms NFM. Dr X was Ms NFM's general practitioner at Inner West Sydney. In a report dated 10 August 2015, the doctor confirmed that a test at another public hospital in May 2014 concluded that Ms NFM had "evidence of mild cognitive impairment amnesic sub-type (but) currently no functional impairment and little evidence of progression over the previous 12 to 24 months". In a Mini Mental State Examination ("MMSE") conducted at that time, Ms NFM scored 28/30. On 6 August 2015, she again scored 28/30 on a MMSE. The doctor concluded that these stable results show no evidence of cognitive decline by Ms NFM over the previous 15 months.
8. There are also two brief reports from Dr W, Ms NFM's General Practitioner at South Sydney. Ms NFM is reported to have been a patient of Dr W for two years. The first of these reports is dated 10 August 2015 and it confirms that in a recent MMSE applied by Dr W, Ms NFM scored 29/30. The second report is dated 1 October 2015, and records that Ms NFM appears to have all she needs to be comfortable and safe in her new home. The doctor describes Ms NFM as being "in a very sound mind. She is medically capable of looking after herself."
9. There is a further written report, dated 12 August 2015 from Ms W, registered nurse of a health service provider. That organisation apparently provides community nursing services and Ms NFM came under their care in late-May 2015, specifically for treatment and care relating to her broken left hip. Ms W reported that at the time of the initial engagement, Ms NFM "showed competency and good understanding of her medications…She was…able to attend to her own hygiene needs." She participated in an abbreviated MMSE in which she scored 10 out of 10. An environmental risk assessment of the South Sydney home showed no indication of obstruction, clutter, poor hygiene, or other matters requiring attention. This was confirmed by Ms W's two more recent visits to the home.

Submissions as to disability and capacity by Mr Liew on behalf of Mrs NAQ

1. Mr Liew, as the Legal Representative of the applicant, Mrs NAQ, addressed the Tribunal in relation to this issue. Mr Liew asserted that Ms NFM clearly had a disability. When asked by the Presiding Member to particularise the alleged disability or disabilities, after some consideration Mr Liew contended that Ms NFM's disability was her vulnerability to influence, persuasion and exploitation. As the Tribunal understood it, Mr Liew's contention was that this disability results in Ms NFM making decisions, the source of which is not her own cognition but rather the views of others.
2. On that basis, the Tribunal understood the characterisation of the alleged disability as being, in short, the disabling effect of the influence of others.
3. Mr Liew pointed to anecdotal evidence of such a disability in the statements of Ms DZT and Mrs NAQ. In Mr Liew's contention, the decisions which were affected by Ms NFM's disability were those concerning her daily activities of living, including cleaning and hygiene and by extension decisions about her accommodation and the level of assistance which she needed. Mr Liew also called into question Ms NFM's capacity to care about her own health and to consent validly to medical and dental procedures as well as her capacity to make decisions about the access others should have to her.
4. In his closing submissions hearing, Mr Liew said there was some question of lack of impartiality in the medical evidence. It was said that some of the opinions came from professionals who have some association with Mrs EYO. This was denied by Mrs EYO. The Tribunal noted that Mrs EYO had been present at least each time on which Ms NFM had seen her general practitioner, Dr X. The Doctor had noted her presence and stated her belief that Mrs EYO was present as the carer for Ms NFM. None of the other medical and clinical professionals commented as to Mrs EYO's presence or any influence she might have had on their assessments or opinions.
5. Mr Liew did not adduce any further evidence or seek the right to cross-examine any of the medical and clinical professionals who provided the reports relied on by the Tribunal. In the absence of any substantial evidence on this point, the Tribunal found that the applicant had not made out a case that the weight given to the medical evidence or any part of it should be reduced by reason of any lack of impartiality.

The views of Mrs NAQ, the applicant (daughter)

1. Mrs NAQ said that she adopted the contentions made by Mr Liew. She said that in particular her mother's disability caused her to make unwise and uninformed decisions about the access which she had to others and that this had caused damage to family relationships. Mrs NAQ asserted that the views which Ms NFM had expressed to the Tribunal in the absence of other participants were the result of sustained influence of others. Mrs NAQ asserted that Ms NFM had told her that she wanted her to be the guardian. Mrs NAQ asserted that her mother "wavers" in her views and opinions, depending on who she has been speaking to in the recent past and that she is very often confused by differing views.

The views of Ms DZT, daughter

1. Ms DZT asserted that Ms NFM does have a disability which she described as a disability "to her cognitive function" with memory loss. When asked to describe the type of decision which that disability prevented her mother from making, Ms DZT asserted that the disability affected Ms NFM's decisions which had the effect of preventing some family members, including herself from having access to her. Ms DZT gave examples of her sisters, Mrs EYO and Ms BCW, threatening her in circumstances when she was seeking access to her mother Ms NFM.
2. Ms DZT, supported by Mrs NAQ, asserted that her sisters Mrs EYO and Ms BCW continually acted in a way which was contrary to the welfare and interests of their mother in denying access to other members of the family, specifically to Ms DZT and Mrs NAQ, and in failing to pass on information to those family members about their mother's condition.

Submissions by Mr Watkins, Legal Representative of Ms NFM

1. Mr Watkins contended that the Tribunal should find that Ms NFM had no disability within the meaning of the Guardianship Act or, if a disability was found to exist, that the Tribunal should be satisfied that it was not such as to render Ms NFM incapable of managing her own person. Mr Watkins asserted that the medical evidence was quite clear on the latter point, and that the evidence showed that Ms NFM was well capable of making the sort of life decisions which she needed to make, considering the nature of her life and activities.
2. Mr Watkins added that as and when Ms NFM needed a substituted decision-maker (which he contended she did not, currently) then the appointments of Mrs EYO and Ms BCW under the Appointment of Enduring Guardians provided a sufficient and proper course for that substituted decision-making.

The views of Ms NFM herself

1. Ms NFM added to her earlier evidence by stating that the only disability which she regarded herself as having was a difficulty in walking because of her earlier hip injury. She asserted that even though she asks for advice, she regards herself as being quite capable of making all her own decisions.

The views of Mrs EYO and Ms BCW, daughters

1. Mrs EYO asserted that her mother Ms NFM was not under any disability, that she had a very strong mind, valued her independence, and always made her own decisions. Mrs EYO asserted that it was her mother who initiated the plan for a move from Inner West Sydney to South Sydney.
2. Mrs EYO told the Tribunal that she regarded her role in providing care assistance to her mother as being undertaken in her capacity as a daughter rather than as an appointed guardian. She saw no need for a guardian, either one appointed by Ms NFM or one appointed under a guardianship order, at this stage.
3. Mrs EYO also asserted that it would be entirely up to her mother to decide the circumstances and conditions under which her sisters Mrs NAQ and Ms DZT would have access to her. Ms BCW's view was that her mother did not have a disability and had no loss of memory.

The weight given to the medical and clinical evidence

1. In deciding this important threshold issue of whether Ms NFM is a "person in need of a guardian" within the meaning of s 3(1) of the Guardianship Act, the Tribunal gave particular weight to the substantial medical and clinical evidence discussed at [29]-[37] above. That evidence was accepted by the Tribunal as reliable and persuasive. The medical reports and particularly those of Dr Z, Dr Y, and Dr X, were given most substantial weight, principally because of their objectivity and their reasoned analysis and because they convey opinions based on relatively recent assessments of Ms NFM.
2. In cases, such as this, which are heard against a background of substantial family discord and acrimony and in which contradictory lay evidence is offered by various parties (normally representing the respective feuding family factions); the value of objective independent professional assessment of the subject person's cognitive condition and capacity is obvious. In most such cases, all other things being equal, the Tribunal will be justified in ascribing additional persuasive force and weight to the professional evidence, especially if, as here, it is not successfully challenged.
3. The conclusions which the Tribunal drew from the professional reports and which the Tribunal found not to be displaced by other evidence were as follows: 1. Ms NFM has a mild form of dementia. This was the view of Dr Z, a specialist geriatrician and it was confirmed on neuropsychological assessment by Dr Y. 2. There is some evidence that Ms NFM has early neurological issues. The MRI referred to at [33] above indicated this. The Tribunal accepts that this is so. 3. We accept these findings as establishing that Ms NFM is "disabled" within the restricted meaning given in sub-paras (a)-(d) of s 3(2) of the Guardianship Act. 4. But it is also established to the Tribunal's satisfaction, on the basis of the accepted medical and clinical evidence, that these disabilities do not restrict Ms NFM in any of her major life activities to the extent that she requires supervision or social habitation. 5. Dr Y, Neuropsychologist, concluded that Ms NFM performs within the normal limits on the tests of auditory attention, basic working memory, arithmetic, rote verbal and visual learning, semantic memory, initiation, verbal and non-verbal memory, basic visuospatial skills, basic psycho matters speed, and flexibility of thinking. 6. Even more significantly, Dr Z, a specialist Geriatrician, concluded that he was not clinically concerned at present concerning Ms NFM's mild vascular dementia. He did not think she required any cognitive enhancing agents. He was firmly of the view that: She has the capacity to make appropriate decisions with regards to financial residential and medical issues.
4. The views of Ms NFM's two general practitioners and the report from the registered nurse at the health service provider are generally supportive of these conclusions.

Analysis of the applicant's evidence and submissions on this issue

1. The Tribunal acknowledges that the applicant in this case, Mrs NAQ, was in a position of comparative forensic disadvantage if, as she alleged, she was being deprived of access to the subject person: her mother Ms NFM. The disadvantage arises from the fact that Mrs NAQ would find it difficult or impossible in those circumstances to arrange for her mother to attend professional assessment appointments. The written submissions which accompanied the guardianship application contained in [5] an acknowledgment that this was so.
2. The Tribunal has taken this forensic difficulty into account in making its findings. No professional reports were provided by the applicant, Mrs NAQ.
3. At the hearing Mrs NAQ and her Legal Representative, Mr Liew, did not rely on Ms NFM's mild dementia or her neurological issues as constituting her disability. Instead Mr Liew characterised Ms NFM's disability as her vulnerability to influence, persuasion and exploitation. Mr Liew's contention was that this disability results in Ms NFM making decisions, the source of which is not her own cognition, but rather the views of others. It would therefore be in the nature of a cognitive malfunction (although that was not the term used by Mr Liew).
4. Without making a definitive finding that a condition described in these terms properly constitutes a "disability" for the purposes of sub-paras 3 (2)(a)-(d) of the Guardianship Act, the Tribunal is prepared to assume for the purposes of these Reasons that it does. (It might perhaps be regarded as within the phrases "psychologically disabled" in sub-para (a) of that Act or "otherwise disabled" in sub-para (d) of that Act). But, even assuming that the applicant's description of Ms NFM's disability is within that statutory boundary, it has not been established by the evidence that Ms NFM currently has such a disability. Such a finding would be inconsistent with the substantial medical and clinical evidence and with the evidence of Ms NFM herself, particularly her assertions of capacity and independence.

The lack of a nexus between any disability and Ms NFM's need for supervision or social habitation

1. On the basis of the accepted medical and clinical evidence and the analysis in [56]-[59] above, the Tribunal accepts that Ms NFM has mild dementia and some indications of neurological issues, but cannot be satisfied that the necessary nexus between these disabilities and Ms NFM's need for supervision or social habitation had been made out by the applicant.
2. The available medical and clinical opinion, which is accepted as reliable, demonstrates that currently Ms NFM is capable of undertaking most of her activities of daily living and capable of making all decisions on the life matters relevant to her without the need for a substitute decision-maker.

The s 4 factors of the Guardianship Act

1. In reaching this decision the Tribunal has relied principally on the medical and clinical evidence summarised in [29]-[37] and analysed at [52]-[58]. It has also had regard to the important factors set out in s 4 of the Guardianship Act and in particular to the views of Ms NFM herself.
2. The other s 4 factors which appear relevant to the Tribunal's decision in this case are the requirement that Ms NFM's freedom of decision and freedom of action should be restricted as little as possible and that she should be encouraged, as far as possible, to live a normal life in the community and to be self-reliant in matters relating to her personal and domestic affairs.
3. Additionally, sub-para 4(e) of the Guardianship Act requires the Tribunal to have regard to the importance of preserving Ms NFM's family relationships. The Tribunal gave this factor substantial weight. The "family relationships" referred to would appear to be those existing at the time of the hearing, for otherwise there would be an impracticable conflict with the provisions of s 14(b) of the Guardianship Act in cases where the Tribunal is required to take that provision into account. Ms NFM made it clear in expressing her views to the Tribunal that she currently has a stronger relationship with two of her daughters, namely Mrs EYO and Ms BCW, than she does with the applicant Mrs NAQ or with Ms DZT. If the correct interpretation of the paragraph is that all family relationships (including past and potential ones) should be taken into account, the Tribunal concludes on the basis of Ms NFM's own firmly stated views that the sub-para (e) (of s 4 of the Guardianship Act) factor should in those circumstances be given lesser weight and correspondingly greater weight should be given to the views of Ms NFM herself and the other factors discussed above.
4. As required by s 4(a) of the Guardianship Act, the Tribunal gave paramount consideration to Ms NFM's welfare and interests.
5. These factors led the Tribunal to conclude that the applicant has not made out that Ms NFM is a person in need of a guardian. The Tribunal is satisfied that she is not such a person.

Dismissal of the guardianship application

1. It follows from the Tribunal's conclusions that the application must be dismissed. The Tribunal ordered accordingly.

The legal principles and authorities

1. The Supreme Court of New South Wales has provided guidance in several decisions as to how the Tribunal should assess a person's capability to manage his or her affairs. In earlier cases the Court had based its test predominantly on the ability of the subject person to conduct the everyday affairs of ordinary people. It was said that if by reason of a failure to do this the person would be disadvantaged or there would be a real risk that they would be disadvantaged or that their money or assets would be at risk of dissipation, then they would properly be treated as being incapable of managing their affairs.
2. However, that approach has been reviewed and altered in more recent cases. In P v R [2003] NSWSC 819, Re D [2012] NSWSC 1006, and PB v BB [2013] NSWSC 1223, it has been emphasised that the Tribunal should not be relying just on hypothetical notions such as "the ordinary affairs of people" but rather should focus on the capability of the particular person to deal with his or her actual assets and to do what he or she is proposing to do with them.
3. Most recently, in CJ v AKJ [2015] NSWSC 498, Justice Lindsay said that a Court or Tribunal dealing with this issue should focus on whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital, and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse, or exploitation.
4. His Honour went on to say that in considering whether a person is "able" in this sense, the Court or Tribunal may give attention to: (i) past and present experience as a predictor of the future course of events; (ii) support systems available to the person; and (iii) 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.

Application of those principles in the present case

The medical and clinical evidence

1. For the reasons outlined in relation to the guardianship application, particularly at [52]-[54] above, the Tribunal gave substantial weight to the written medical and clinical reports.
2. The reports which were of the greatest relevance to the Tribunal's analysis of Ms NFM's capability of managing her affairs were the report dated 25 August 2015 from Dr Z, Senior Staff Specialist Geriatrician, the report of the same date from Dr Y, Clinical Psychologist and, to a lesser extent the report dated 10 August 2015 from Dr X, General Practitioner.
3. The most significant conclusion was that of Dr Z who reported that: both from my perspective, and that of the neuropsych assessment (sic), [Ms NFM] has the cognitive capacity to make appropriate decisions with regards to …financial…matters.
4. In reaching that conclusion Dr Z relied on the neuropsychological assessment carried out four days earlier by Dr Y, Clinical Neuropsychologist, the contents of which are discussed more fully at [31] and [32] above. Dr Y concluded that the test scores which were satisfactory or in which Ms NFM was found to be at normal levels or above: …indicate essentially intact higher-cortical functioning sufficient for her to engage in a decision-making procedure involving for partial consideration of alternative options.
5. Dr X's report of 10 August 2015 provides evidence of repetitive high scores on the MMSE, the latest assessment of that nature, apparently having been undertaken on 6 August 2015.
6. The Tribunal accepts this professional evidence as highly reliable and persuasive as to the issue of Ms NFM's current capability.

The applicant's submissions

1. The applicant Mrs NAQ, principally through her Legal Representative, Mr Liew, asked the Tribunal to give substantial weight to the statements provided by Mrs NAQ and Ms DZT as indicating a pattern of overt pressure and influence being brought to bear on Ms NFM in relation to key financial transactions by her daughters, Mrs EYO and Ms BCW.
2. Mr Liew submitted that the Tribunal should not regard Ms NFM's affairs as simple or uncomplicated, or as being restricted to her relatively quiet local and family life at South Sydney, which she had described in some detail to the Tribunal.
3. Mr Liew contended that Ms NFM's affairs were more complex than that. There had been a number of significant and relatively complex financial and property transactions affecting her estate and her overall financial position. These included the disposition of Mr and Ms NFM's business, the sale of the Ms NFM's two properties at Inner West Sdyney, the finance and purchasing of the South Sydney property, taxation and stamp duty considerations, and the considerations relevant to protection of Ms NFM's right of occupancy in the South Sydney home.
4. Mr Liew's contention in this regard was essentially that because of her vulnerability to persuasion and undue influence, these transactions had resulted in Ms NFM's overall estate being substantially depleted.
5. Mr Liew also contended that the steps taken to secure Ms NFM's personal rights to occupy the South Sydney property as a life tenant, which included the execution of a deed of arrangement which created a life interest in the property for her and the lodgement of caveat on the title to the property to protect that interest, had been taken very late in the day, and after the commencement of current proceedings. It was Mr Liew's contention that these "protective" measures should be regarded as artificial and as an ex post facto attempt to improve the appearance and acceptability of the overall transaction, which in fact had resulted in a windfall to Mrs EYO and Ms BCW at the expense of Ms NFM's estate.

Response by the Legal Representative for Ms NFM, and by Mrs EYO and Ms BCW

1. Mr Watkins, the Legal Representative for Ms NFM asserted that she had had the benefit of legal, accounting and taxation advice throughout the course of the transactions; that the primary aim of the transactions was protect Ms NFM's estate from potential claims, particularly those anticipated from her daughter Ms DZT. Mrs EYO. Ms BCW and Mr Watkins each asserted that Ms NFM had requested that whatever transactions were necessary should be undertaken to achieve this aim. Mrs EYO and Ms BCW strenuously denied that they had been the moving parties behind the transactions, that they had unduly influenced their mother or that they would do anything contrary to her best interests.
2. Mr Watkins contended that Ms NFM was entitled to make these basic decisions as to the disposition of her estate at this stage of her life and was competent to do so. He said that his instructions were that each step of the transactions was explained to Ms NFM by her professional advisers. He submitted that the Tribunal should not, by making a financial management order, interfere with her choices in this regard, or restrict her freedoms of decision and action. He pointed out that the transaction was transparent and in particular that Ms NFM's rights were protected by the deed creating the life estate and by the caveat. He said that the finalisation of the transactions and in particular of the life estate deed and the caveat was delayed by reason of the absence overseas of Mr BDT, Ms NFM's legal adviser on these matters.
3. The Tribunal noted that Mr BDT, Ms NFM's solicitor, provided the Tribunal with a detailed statement dated 7 September 2015, which outlined his role in the transactions including the way in which he had obtained instructions from Ms NFM about her intentions. In particular, in [8] of his statement, Mr BDT indicates that he had what appears to be a reasonably detailed discussion with Ms NFM in private conference as to the person or persons in whose name the South Sydney property was to be purchased. Paragraph 9 of Mr BDT's statement asserts that in that conference Ms NFM had indicated that after careful consideration, she had decided that she was going to make a number of distributions of her assets to her three daughters, Mrs EYO, Ms BCW, and Mrs NAQ, and at that time he advised her that if the property were to be purchased in the names of Mrs EYO and Ms BCW, it would be prudent for her to have a life estate in the property at South Sydney.
4. The Tribunal also received a copy of Mr BDT's letter dated 17 October 2013 to Ms NFM. That was a detailed four-page advice concerning estate planning matters, including the disposition by Ms NFM of her real estate properties. It includes, in [4] and [5], an outline of Mr BDT's understanding that Ms NFM had apparently made a gift to her daughter Ms DZT in excess of $1 million to enable her to purchase a property at another Inner West Sydney suburb and additional money to refurbish that property, which was subsequently sold with Ms DZT allegedly retaining the proceeds of sale.
5. Paragraph 5 of the letter goes on to recite that in the circumstances, Ms NFM's instructions are that she would like her three other daughters (that is, Mrs NAQ, Mrs EYO, and Ms BCW) to be the beneficiaries of her estate and that she wishes to disinherit Ms DZT. Paragraph 13, which is the concluding paragraph of the letter, contains a strong recommendation that Counsel practising in the area of wills, probate, Family Provision Act 1982 (NSW) claims, and estate planning be consulted to further advice and documentation.
6. The Tribunal understood Mr Liew, on behalf of Mrs NAQ, to suggest that the transactions contemplated and the contents of the letter itself were directed or at least influenced by Mrs EYO. However, there was no substantiation of that allegation. For her part Mrs EYO denied in general terms the suggestion that she had exercised undue influence over her mother and by extension over her solicitor. In the circumstances, Tribunal is prepared to rely on that letter as establishing that these estate planning and property matters were the subject of consideration by Mr BDT and Ms NFM as early as October 2013 and that it was recommended at that stage that further specialist advice be obtained.
7. Mr TXT, Ms NFM's long-term accountant, provided a shorter statement that to that of Mr BDT of 7 September 2015, but in it he confirmed that Ms NFM had been a businesswoman when younger, that she had herself delivered what he describes as "her books and supporting documentation" each year at his office for the preparation of tax returns. Mr TXT's view is that Ms NFM remains capable of looking after her own affairs and managing herself financially. He concludes that when he last saw [her] approximately two months before making his statement (that would be in early July 2015): "mentally, she was as good as she always has been".
8. Much hangs on the authenticity and reliability of the statements by Mr BDT and Mr TXT. They are both professional practitioners. While it cannot be suggested that they are completely independent in this matter, each of them has professional obligations to tell the truth to the Tribunal about their dealings. In the case of Mr BDT a particularly strong obligation is imposed because he is a solicitor, with clear duties to courts and tribunals which in circumstances such as these override his obligation to his client.
9. Mr BDT's statement was detailed and touches directly on Ms NFM's awareness of and capability of understanding the various transactions. His account of the matter in his statement is supported by the evidence (both written and oral) from Mrs EYO and Ms BCW as well as by his earlier letter of 17 October 2013. The applicant was made aware of the fact that the statements by these gentlemen had been put into evidence. No objection was made on behalf of the applicant Mrs NAQ to the Tribunal's removal of Mr BDT and Mr TXT as parties. No request was made for Mr BDT or Mr TXT to be telephoned during the hearing to be cross-examined about these matters or their statements.
10. The Tribunal accepts the statements by Mr BDT and Mr TXT as reliable evidence to which it attaches substantial weight. The contentions by Mr Liew on behalf of the applicant, and in particular his assertion that there was an ongoing course designed to impose undue influence on Ms NFM, suffers by comparison. Neither Mrs NAQ nor Ms DZT was present during meetings by Ms NFM with her financial and legal advisers. In particular, neither of them was present when Mr TXT took detailed instructions from Ms NFM, as deposed in his statement. The applicant's assertions and allegations concerning the transaction are, to that extent, uncorroborated. For that reason the Tribunal gave them little weight.

Is Ms NFM able to make decisions without undue risk of neglect, abuse, or exploitation?

1. It is not the role of the Guardianship Division of this Tribunal to make orders which effectively declare that particular property or financial transactions are tainted by undue influence and therefore invalid or void. In determining the financial management application the issue for the Tribunal is simply this: does the course of dealings in relation to Ms NFM's estate as referred to above indicate that she is incapable of managing her affairs. As Justice Lindsay put it in CJ v AKJ as cited in [72] above, this Tribunal must focus on whether Ms NFM is able to deal with (making and implementing decisions about) her own affairs (person and property, capital, and income) in a reasonable, rational and orderly way, with due regard to her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse, or exploitation. (Emphasis added.)
2. Significantly, in that case Justice Lindsay stated that the Tribunal may have regard to support systems available to the person under consideration, here, Ms NFM.
3. In Re GHI (a protected person) [2005] 221 ALR 589, Justice Campbell offered two further factors that are relevant when determining whether a person is incapable of managing his or her affairs: 1. Whether or not the person is willing to seek and take appropriate advice. In general, taking advice can remove the risk that the lack of ability will cause the person to be disadvantaged in the conduct of his or her affairs. 2. Whether the person has the ability to identify and deal appropriately with those who may be attempting to benefit from his or her assets through unfair dealing. The lack of this skill might create a real risk that the person may be disadvantaged, or that his or her estate might be dissipated or lost.
4. The evidence establishes to the Tribunal's satisfaction that Ms NFM was willing to seek and take advice of professional people in relation to her various property transactions. As to the factor cited in para (b) above, the Tribunal cannot be satisfied on the basis of the evidence, as analysed in previous paragraphs, that Ms NFM lacks the ability to identify and deal with those who may be attempting to benefit from her estate. The assertion that that is the case runs into the difficulty that Ms NFM herself appears to have initiated moves to protect her estate from claims by one of her daughters (Ms DZT).
5. Ms NFM's own evidence, including in particular her statements to Tribunal Members in the early stages of the hearing, indicated to the Tribunal's satisfaction that she has a reasonable grasp of the major components of her estate. In her discussions with Tribunal Members, she was certainly able to outline the major steps involved in the sale of the two Inner West Sydney properties and the purchase of the South Sydney property, including correctly identifying the purchase price, the date of settlement and the solicitor acting. That is also reflected in her written statement; although the statement in the Tribunal's opinion bears the strong marks of having been prepared by her legal advisers rather than reflecting Ms NFM's own words and for that reason the Tribunal gives this lesser weight. (In saying this, the Tribunal accepts that such characteristics of statements are normal in litigation: it means no criticism of the legal advisers for Ms NFM.)

The Tribunal's conclusions as to Ms NFM's capability

1. On the basis of the evidence and the analysis above, the Tribunal was satisfied that Ms NFM satisfies the tests outlined in CJ v A KJ as cited in [70] and [71] above. The Tribunal was satisfied that with the additional assistance of what His Honour in that case called the "support systems" available to her and further legal and financial advice Ms NFM can be relied upon to make sound judgments about her welfare and interests in a reasonable, rational and orderly way, with due regard to her present and prospective wants and needs, and those of family and friends.
2. On that basis the Tribunal was satisfied that Ms NFM is not incapable of managing her affairs.

Dismissal of the financial management application

1. It follows from the Tribunal's finding that Ms NFM is not incapable of managing her affairs that the financial management application must be dismissed. The Tribunal ordered accordingly.

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

Amendments 20 December 2018 - CATCHWORDS: "balance between procedure fairness" to "balance between procedural fairness" 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: 20 December 2018