BZE v NSW Public Guardian

Background concerning Mrs ROV

1. Mrs ROV is a 41-year old woman who currently resides in a nursing home at South Sydney. On or about 24 September 2015, Mrs ROV suffered a profound hypoxic brain injury while undergoing a routine day surgery procedure at a public hospital. That acquired brain injury (ABI) has left Mrs ROV unable to breathe, speak, eat or move independently. Mrs ROV has a tracheotomy and uses a ventilator to breathe. She is fed through a PEG tube. The ABI has also significantly impaired her decision-making ability.
2. Mrs ROV has two children, a son, Mr UNX, and a daughter, Ms FPY. Mr UNX has completed his university studies and has recently commenced employment in his chosen field. Ms FPY is completing her Higher School Certificate this year. Mrs ROV's former husband, and father of her children, Mr JKD, has taken an active interest in Mrs ROV's welfare. He has been supported by a disability peak body.
3. On 1 June 2016, the Tribunal received applications for the appointment of a guardian for Mrs ROV and a financial management order in respect of her estate from Mr JKD. The hearing of the applications has been expedited.

The hearing

1. At the end of these Reasons for Decision are lists of the parties to the applications and the witnesses who attended the hearing of the applications on 15 June 2016. [Appendix removed for publication.] The hearing was conducted in person and by telephone. Due to her condition, Mrs ROV did not attend or participate in the hearing.
2. The Tribunal did not consider it appropriate in the circumstances of these proceedings to use resolution processes other than those inherently available to it during its informal hearing process. During the hearing the Tribunal endeavoured to draw out agreement from the parties in respect of the issues or, otherwise, to narrow those issues.

The legislative framework governing the Tribunal's power

1. It is helpful as an aid to understanding the Tribunal's decision to set out the legislative framework within which it is acting in deciding whether to make a guardianship order or a financial management order.
2. The Tribunal is the Civil and Administrative Tribunal of New South Wales in its Guardianship Division. The Guardianship Division has been assigned the functions of the Tribunal in relation to the Guardianship Act 1987 (NSW) and some other specified Acts.
3. The making of guardianship orders and financial management orders are functions under the Guardianship Act and are governed by the legislative framework set out in that Act.
4. It is the duty of everyone exercising functions under the Guardianship Act, including the Tribunal, but also including appointed guardians, with respect to persons who have disabilities, to observe the following principles set out in s 4 of the Guardianship Act: 1. the welfare and interests of such persons should be given paramount consideration, 2. the freedom of decision and freedom of action of such persons should be restricted as little as possible, 3. such persons should be encouraged, as far as possible, to live a normal life in the community, 4. the views of such persons in relation to the exercise of those functions should be taken into consideration, 5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, 6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, 7. such persons should be protected from neglect, abuse and exploitation, 8. the community should be encouraged to apply and promote these principles. 1. A similar duty applies to appointed financial managers pursuant to s 39 of the NSW Trustee and Guardian Act 2009 (NSW).
5. These principles reflect the protective nature of the guardianship jurisdiction (which includes the financial management jurisdiction) but seek to strike a balance between providing necessary protection and promoting empowerment of persons with disabilities, including by intruding no more than is necessary on their rights and liberties. Strictly speaking, the financial management regime under the Guardianship Act, unlike the guardianship regime under that Act, focuses on incapability per se without the requirement to base that incapability on a person's disability. Nevertheless, it will usually be the case that the incapability is so based. In that case, the principles in s 4 are enlivened, including that the welfare and interests of the person are to be given paramount consideration.
6. Section 14 of the Guardianship Act gives the Tribunal power to make a guardianship order. Before considering whether to make such an order the Tribunal must find as a fact that the person is a "person in need of a guardian".
7. The term "a person in need of a guardian" is defined in s 3(1) as "a person who, because of a disability, is totally or partially incapable of managing his or her person". In s 3(2), a "person who has a disability" is defined as a person: 1. who is intellectually, physically, psychologically or sensorily disabled, 2. who is of advanced age, 3. who is a mentally ill person within the meaning of Chapter 3 of the Mental Health Act (Forensic Provisions) 1990 (NSW), or 4. who is otherwise disabled, 5. and who, 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.
8. Section 14 of the Guardianship Act states that: 14 Tribunal may make guardianship orders (1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person. (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and the practicability of services being provided to the person without the need for the making of such an order.
9. If the Tribunal finds that the person is "a person in need of a guardian" it must then determine whether or not a guardianship order should be made. The considerations listed in s 14(2) are mandatory considerations that the Tribunal is bound to take into account. However, the paramount consideration remains the welfare and interests of the person, as assessed by the Tribunal. Where there is a conflict between the welfare and interests of the person and any of the other principles or considerations listed in s 4 and s 14(2), those other principles and considerations must give way. The Tribunal's task is to take into account and weigh all the relevant considerations and principles, both for and against making a guardianship order, and then determine whether on balance the welfare and interests of the person are best protected or advanced by making, or refusing to make, such an order. (See BZE v NSW Public Guardian [2015] NSWCATAP 64.) If, for example, the physical well-being of a person cannot be reasonably assured or protected in the circumstances except by the appointment of a guardian then a guardian should be appointed with the minimum functions necessary to provide that assurance or protection. That is, the Tribunal seeks the least restrictive option consistent with the protection of the person's welfare and interests.
10. In respect of financial management orders, s 25G of the Guardianship Act provides that: 1. The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that: 2. the person is not capable of managing those affairs, and 3. there is a need for another person to manage those affairs on the person's behalf, and 4. it is in the person's best interests that the order be made.

Evidence before the Tribunal

1. The Tribunal had before it two letters from medical practitioners certifying that Mrs ROV had suffered an hypoxic brain injury that had left her severely physically and cognitively impaired. One was from Dr Z and dated 19 March 2016, and the other from Dr Y and dated 23 May 2016. Dr Y stated that Mrs ROV had no capacity for making decisions and was 100% dependent.
2. Mr JKD's application noted that; The nursing home cannot manage [Mrs ROV]'s acute care needs within the funding and resource limitations it has. [Mrs ROV] is at very clear risk of choking while she remains in this residential aged care service without staff with expert competency in tracheostomy care and without staffing levels to deliver the regular attention her acute needs require. For example, because her tracheostomy tube had not been suctioned regularly, her family have found [Mrs ROV] choking when they have visited her. Because she cannot move independently, [Mrs ROV] requires repositioning every two hours to avoid the development of pressure ulcers. The low staffing levels commonly found in residential aged care, means staff will struggle to provide this service and [Mrs ROV] is at very high risk of developing pressure ulcers as a result. Recently, the nursing home attempted to remove [Mrs ROV]'s tracheostomy tube to see if she could breathe by herself. This sort of procedure can be fatal unless it is carried out by experts in an acute hospital setting. The nursing home did not consult [Mrs ROV]'s family about undertaking this activity. [Mrs ROV]'s family did not give the nursing home permission to undertake this course of action and have been extremely worried at the thought of [Mrs ROV] being placed in a situation that would have caused her enormous distress and could have been fatal. [Mrs ROV] could not breathe independently and the tracheostomy tube has been left in place as a result. As these examples indicate, the nursing home does not have the resources or the trained staff to manage [Mrs ROV]'s acute care needs. [Mrs ROV] needs a guardian appointed as a matter of urgency to ensure her health, welfare and safety is maintained and must be transferred to the Liverpool Acquired Brain Injury Unit to receive the rehabilitation and specialist care she requires.
3. At the hearing, Mr JKD told the Tribunal that he attends the nursing home everyday and has hardly missed one. He said he is there most of the time. He said that Mrs ROV has improved slowly and that she knows when he talks to her - she blinks when he asks her to. When he speaks to her about Ms FPY and Mr UNX, she cries. On a good day, she can laugh. While she can't talk, she understands and is aware of what is being said in English or Vietnamese. He would like her to go to rehabilitation or a brain injury recovery unit. He said that as her former husband, he gets pushed aside as having no decision-making authority on her behalf. When he asks the nursing home for updates, there is some reluctance to engage with him. He would like to help share the responsibility with his children of caring for Mrs ROV and making decisions. He would like authority to be able to try to bring Mrs ROV back into the NSW Health system for rehabilitation.
4. Mr UNX told the Tribunal that the medical people have denied his mother rehabilitation because they do not think her improvement is fast enough. He said presumptions were being made against her and her capacity to improve. He added that the medical authorities say both that you don't have authority to make decisions for her but also that she is not appropriate for rehabilitation. He said that they do not give them proper options. He said that it would assist him to have decisions going to his father as, in his new job, he cannot always answer his phone. He supported his father as his mother's guardian and said he has seen the support he has given her from day one. He noted that his sister had been very traumatised and that having his father there with his mother had eased things. He also noted that he, Ms FPY and his father were now living together.
5. Dr X, National Director of the disability peak body, told the Tribunal that Mr JKD had been a tremendous advocate and support for Mrs ROV and would be a tremendous guardian. She said that trying to get Mrs ROV back into the NSW Health system was where guardianship would be very helpful. She noted also that they were in the process of getting Mrs ROV registered with ADHC (the Division of Ageing, Disability and Home Care within the Department of Family and Community Services). She also mentioned the NDIS (National Disability Insurance Scheme) and noted that one of its aims was to offer young people like Mrs ROV the opportunity to live in the community.
6. The Tribunal asked Mr JKD whether he had spoken to Mrs ROV about the guardianship application and the proposal for his appointment as guardian. He said that he had and that she had blinked and looked at him hard. He took her reaction in the circumstances as support for the application and his appointment.
7. In relation to financial management, Mr JKD told the Tribunal that he wanted Mr UNX to look after Mrs ROV's finances as he had been trying to do. He said that Mrs ROV's DSP (Disability Support Pension) went to Mr UNX and that Mr UNX pays her bills. Mr UNX confirmed that the DSP went into his bank account and that the nursing home took its fees from his account monthly. The amount taken usually equated with the DSP income but sometimes exceeded it. He noted that Centrelink accepted him as his mother's nominee. He also noted that his mother had some debts, including on credit cards with David Jones and a commercial bank and in respect of a personal loan of $3,000 taken out to buy a car. He said that the credit card debts added up to about $10,000. He said that he had tried to inform the bank of his mother's situation but they hadn't taken any notice. He would like to be his mother's financial manager to sort out things with the bank, and to make inquiries whether she has any superannuation. She does not own a home or have other significant assets. Before her injury she was doing part-time, casual work. The family is also considering whether a compensation claim could be brought for his mother's injury.

What did the Tribunal have to decide?

1. The questions which the Tribunal had to decide were:

• Is Mrs ROV in need of a guardian? In other words, is Mrs ROV someone for whom the Tribunal could make an order because she has a disability in consequence of which she is totally or partially incapable of managing her person, for example, in the sense of making important decisions about her life?
• Should the Tribunal make a guardianship order and, if so, what order should be made?
• Who should be the guardian?

Is Mrs ROV someone for whom the Tribunal could make an order because she has a disability that prevents her from being able to make important decisions about her life?

1. On the basis of the evidence before it, the Tribunal was satisfied that Mrs ROV is physically and cognitively disabled as a result of an acquired brain injury, in consequence of which she is incapable of making important decisions about her life in an informed way. She 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?

1. The Tribunal was also satisfied that Mrs ROV's welfare and interests required that it make a guardianship order. Mrs ROV's accommodation, in particular, needed to be reviewed. The nursing home did not appear suitable for her acute care needs, nor did it provide intensive rehabilitative services to promote her recovery. Depending on the accommodation decision, decisions about services were also likely to be required. Mrs ROV's health and medication regime would also require ongoing monitoring and management in her interests. Most of all, however, at this point, Mrs ROV required an advocate for her interests - someone to bring her plight to light and to push against and through systemic indifference. An advocate with the standing of a guardian would provide the best hope for the proper promotion of her welfare and interests.
2. In reaching its decision on the guardianship application, the Tribunal had regard to each of the matters in s 14(2) of the Guardianship Act.
3. Mrs ROV's views had been surmised by Mr JKD as set out in [24] above. Mr JKD was compelling in his account.
4. In relation to the other matters specified in s 14(2) of the Guardianship Act: 1. The possible appointment of a guardian, particularly from within Mrs ROV's extended family (including her former husband), was unlikely to have any negative impact on her existing family relationships. Those relationships appeared caring, supportive and strong; 2. There was no evidence before the Tribunal to suggest that the making of an order would have any impact on Mrs ROV's particular cultural or linguistic environments; and 3. In the Tribunal's view, the appointment of a guardian would better, or more likely, facilitate the provision to Mrs ROV of the services she required.

Who should be the guardian?

1. Mr JKD proposed himself as guardian. He was supported by his son, Mr UNX, and Dr X. Since her injury, he had demonstrated a deep commitment to Mrs ROV's wellbeing and interests. The Tribunal was satisfied that Mr JKD was suitable for appointment as guardian as required by s 17(1) of the Guardianship Act. It appointed him accordingly with the functions discussed in [28] and set out in [2].

What did the Tribunal have to decide?

1. The questions considered by the Tribunal were:

• Is Mrs ROV incapable of managing her affairs?
• Is there a need for another person to manage Mrs ROV'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 Mrs ROV incapable of managing her affairs?

1. The evidence before the Tribunal satisfied it that Mrs ROV was incapable of managing her financial affairs.

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

1. The Tribunal was also satisfied that there was a need to appoint someone to manage Mrs ROV's affairs and that it was in her interests for a financial management order to be made. On the evidence, there were a number of matters that needed to be managed or investigated including Mrs ROV's debts, the possible compensation claim in respect of her injury and whether she has any superannuation that might be able to be used to assist her. There was also the possibility that Mrs ROV's accommodation arrangements would change in the future necessitating significant action of a financial nature in that regard. The Tribunal was satisfied that Mrs ROV would be unable to take that action personally in her present state and that that action would not otherwise be able to be taken unless another person was given the authority to take it (see EB and Ors v Guardianship Tribunal and Ors [2011] NSWSC 767 at [134]). There was no dispute about this at the hearing. The Tribunal was satisfied that it would be in Mrs ROV's best interests for a financial management order to be made to those ends.

Who should be appointed as financial manager?

1. In appointing a financial manager, as in making all other orders under the Guardianship Act in respect of a person with a disability, the Tribunal must act with the welfare and 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.
2. Section 25M of the Guardianship 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.
3. Mrs ROV's estate was not large or complicated. Her son, Mr UNX, was proposed as financial manager. Mr JKD and Dr X supported the appointment. Mr UNX had been managing Mrs ROV's affairs since her injury, and had done what he had been able to do with limited authority. The Tribunal was satisfied that Mr UNX was suitable for appointment in the circumstances based on its questioning of him as to his experience and background. It appointed him accordingly, subject to the supervision of 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: 23 December 2016