BZR [2015] NSWCATGD 63

NCAT Guardianship|2015-04-22

istrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

INTRODUCTION

BZR is an 84-year-old-woman of Hungarian background who lives in Sydney's Lower North Shore in a home that she shares with her son, BPY, and his wife, Mrs TQI. BZR's husband of many years, Mr MGI, passed away on 9 August 2014. For a period of time in 2014, BZR stayed with BZQ in West Sydney along with BZQ's partner, Mr KPH.
By orders dated 21 January 2015, BPY successfully appealed (BPY v BZQ [2015] NSWCATAP 33) against orders made by a differently constituted Tribunal on 4 September 2014.
The current proceedings were the consequence of the matters remitted by the Internal Appeal Panel of the NSW Civil and Administrative Tribunal.
The outcome of the current proceedings may be summarised as follows:

INSTRUMENTS EXECUTED BY BZR

The following instruments were the subject of applications made to the Tribunal by BPY.
On 22 September 2009, BZR signed an enduring power of attorney appointing BPY as her attorney.
On 30 June 2014, BZR signed another enduring power of attorney appointing BZQ as her attorney.
On 3 September 2014, BZR signed a revocation of the 22 September 2009 enduring power of attorney.
On 25 June 2014, BZR signed an enduring guardianship document that appointed BZQ as her enduring guardian.

NCAT GUARDIANSHIP DIVISION PROCEEDINGS ON 4 SEPTEMBER 2014

On 4 September 2014, the Tribunal considered four applications made by BPY in relation to his mother:

An application for guardianship
An application for financial management
Review of the enduring power of attorney dated 30 June 2014 appointing BZQ as BZR's attorney
Review of BZR's appointment on 25 June 2004 of BZQ as her enduring guardian

On 4 September 2014, the Tribunal:

made a financial management order in relation to BZR and committed the management of her estate to the NSW Trustee and Guardian. That order was made reviewable in 12 months from the date of the order. The order excluded the following: Account in the name of Mr MGI and BZR with a commercial bank known as Bank Account A [Account details removed for publication.]
decided not to carry out a review of the power of attorney made on 30 June 2014 and dismissed that application
confirmed the appointment of BZQ as enduring guardian for BZR
dismissed the guardianship application

NCAT INTERNAL APPEAL PROCEEDINGS

As previously noted, BPY lodged appeal proceedings in relation to a number of aspects of the Tribunal's decision on 4 September 2014.
A Solicitor also lodged an appeal purportedly on behalf of BZR in relation to the Tribunal's decision to make a financial management order and to appoint the NSW Trustee and Guardian as the manager of her estate. The Reasons for Decision of the NCAT Internal Appeal Panel note that at the appeal hearing on 21 January 2015, BZR's appeal was withdrawn and dismissed (BPY v BZQ [2015] NSWCATAP 33, [1]).
On 21 January 2015, the Internal Appeal Panel made the following orders: In proceedings BZR v BPY (AP 14/51960) the appeal is dismissed. In proceedings BPY v BZQ (AP 14/51727) the following orders are made. Leave is granted to Mr Neil Jackson to represent Mr Stephen Stuart, guardian ad litem for BZR in the appeal proceedings. Leave is granted to Ms Jane Merkel to represent [BPY] in the appeal proceedings. The following orders of the Guardianship Division made on 4 September 2014 are set aside but not until the time that the Guardianship Tribunal re-determines [BPY]'s application for financial management and application for review of the making of the enduring power of attorney: The estate of [BZR] is subject to management under the NSW Trustee and Guardian Act 2009 (NSW); The management of the estate of [BZR] is committed to the NSW Trustee and Guardian; This order be reviewed by the Tribunal within 12 months. The following orders of the Guardianship Division made on 4 September 2014 are set aside: a. pursuant to section 25E(2) of the Guardianship Act 1987 (NSW) the account in the name of [Mr MGI and BZR] [known as Bank Account X] [account number removed for publication] is excluded from the estate for the purposes of the financial management order; b. not to carry out a review of the making of the enduring power of attorney made by [BZR] on 25 June 2014 which appointed [BZQ]; c. the application made by [BPY] for a review of the making of the abovementioned enduring power of attorney (Matter No 2014/7592) is dismissed; d. the application by [BPY] for a guardianship order to be made for [BZR] is dismissed; e. the application by [BPY] for a review of the enduring guardianship appointment made by [BZR] on 30 June 2014 appointing [BZQ] as her enduring guardian is dismissed. The following applications by [BPY] are remitted to the Guardianship Division for determination in accordance with law: the application for financial management; the application for a guardianship order; the application for review of the enduring guardianship appointment; and the application for review of the making of the enduring power of attorney. The Appeal Panel suspends the appointment of [BZQ] as the enduring guardian for [BZR] until the Guardianship Division determines [BPY]'s application for a review of the enduring guardianship appointment and the application for guardianship.

REMITTED PROCEEDINGS

As a consequence of the decision of the NCAT Internal Appeal Panel on 21 January 2015, the Guardianship Division convened an interlocutory hearing on 20 February 2015. Amongst other directions, the Tribunal appointed Mr Stephen Stuart as guardian ad litem for BZR and set a hearing date for 22 April 2015.
On 6 March 2015, BPY lodged an application to review the instrument signed by BZR on 3 September 2014 that purported to revoke the 22 September 2009 enduring power of attorney.
At a further interlocutory hearing on 8 April 2015, the Tribunal made directions in relation to summonsed material and extended the date by which documents were to be lodged and cross-served by parties.
At the hearing conducted on 22 April 2015, the following five applications were before the Tribunal for determination:

The application for the appointment of a guardian for BZR
The application for a financial management order in relation to BZR
The application for review of the enduring guardianship appointment
The application for review of the enduring power of attorney
The application for review of the revocation of the 22 September 2009 enduring power of attorney

At the hearing on 22 April 2015, BZR and BPY participated in person. Mr Stephen Stuart, guardian ad litem for BZR, also participated in person. The Tribunal granted leave for BPY to be legally represented.
Mrs TQI is regarded as carer for BZR given the evidence of the personal care and support she provides to BZR on a day to day basis. The Tribunal was informed by BPY that Mrs TQI did not wish to take part in the hearing. The Tribunal left a telephone message for Mrs TQI with the relevant contact details for the Tribunal in the event that she changed her mind about participating in the hearing. However, the Tribunal did not hear from Mrs TQI and proceeded in her absence.
BZQ participated in the hearing by telephone.
It became evident during the course of the hearing that BZQ had not previously been aware of a document that had been provided to the Tribunal, namely an email dated 21 April 2015 from NSW Police to BPY's solicitor that stated as follows: As requested I am confirming that there has been no further update regarding the [BZR] matter. Police anticipate in charging [BZQ] with disposing property offence on her return to Australia.
BPY's legal representative advised that this email related to allegations concerning BZQ's dealings with property owned by BZR.
In her evidence to the Tribunal, BZQ denied any such allegation. BZQ also advised that she had recently returned from overseas where she had undergone surgery on her jaw.
BZQ was not legally represented at the hearing and the Tribunal enquired whether she wished to seek an adjournment of the proceedings.
BZQ initially indicated that she did wish to seek an adjournment so that she could obtain legal representation. However, BZQ subsequently informed the Tribunal that she would only need an adjournment and have a solicitor represent her if issues concerning the charges mentioned in the email dated 21 April 2015 were to be raised in the hearing. BZQ indicated that she would not seek an adjournment if the hearing was concerned solely with the applications relating to BZR.
It is relevant to note that BPY through his legal representative, Mr Stephen Stuart as guardian ad litem and BZR each opposed an adjournment of the hearing.
Ultimately, BZQ did not press an application for an adjournment because it was not necessary for these proceedings to canvass the allegations as outlined in the email dated 21 April 2015. This was because there was broad agreement between the parties in relation to the applications before the Tribunal and the Tribunal was ultimately satisfied that the outcomes agreed upon were in BZR's best interests.

BZR'S VIEWS

BZR struck the Tribunal as a very dignified woman who participated in the entirety of the hearing to the best of her ability.
The evidence indicated that BZR returned to live with her son and daughter-in-law in January 2015. Various comments made by BZR during the hearing indicated that she was very content with this arrangement. The interaction between BZR and BPY during the course of the hearing also indicated a warm and supportive relationship between them.
Other aspects of BZR's evidence also indicated that she was unable to engage in any detailed way with the issues concerning her financial affairs. This was consistent with the medical evidence provided to the Tribunal (outlined in further detail below).
BZR also made comments on a number of occasions during the hearing that she did not wish for BZQ to have any further role in her life.

CONCILIATION

As previously noted, the Tribunal explored with the parties whether there was any scope for an agreed outcome in relation to the applications before the Tribunal.
BZQ informed the Tribunal that she no longer wished to be BZR's attorney or enduring guardian and wished to resign from each of these roles.
In relation to BZQ's proposal to resign as enduring guardian, BPY's legal representative submitted that the Tribunal needed to give consent to the resignation pursuant to s 6HB(1)(b) of the Guardianship Act 1987 (NSW) on the basis that BZR is a 'person in need of a guardian' within the meaning of that provision.
Given BZQ's desire to resign as BZR's attorney, there was also general agreement (and no objection by BZQ) that the 30 June 2014 enduring power of attorney should be revoked in its entirety.
BPY indicated an intention to withdraw his application for the appointment of a guardian for BZR on the basis that there is no need for a guardianship order. His view was that BZR receives support and care from BPY and Mrs TQI and all decisions about these matters can be made by them in consultation with BZR. According to BPY, his mother does not currently require the assistance of community services and there was no suggestion that she requires residential care. The only proposed accommodation change is for all three members of the family to move from the home at Sydney's Lower North Shore to a home that is more suitable for BZR's needs.
It was also submitted that a financial management should be made for BZR and that BPY should be appointed as her private financial manager. The Tribunal notes that BPY, through his Counsel, initially submitted that the enduring power of attorney signed by BZR on 30 June 2014 could be varied by the Tribunal to replace BZQ with BPY as the attorney. However, given the doubts raised in the evidence before the Tribunal as to BZR's capacity to have executed that instrument, the Tribunal indicated reservations about this proposal.
In relation to the proposal for the guardianship application to be withdrawn, BZQ indicated that she agreed with this proposal and that she was glad that BZR is living with her family.
In relation to the proposal that a financial management order is made that that appoints BPY as his mother's private financial manager, BZQ did not appear to support or oppose this proposal indicating that she 'did not have much to say' about it.
The guardian ad litem supported each of these proposals.

TRIBUNAL'S DECISION

Resignation of enduring guardian and withdrawal of guardianship application
In relation to BZQ's oral application to resign as enduring guardian, the Tribunal was required to give approval to this resignation pursuant to s 6HB(1)(b) of the Guardianship Act if it was satisfied that BZR is a person 'in need of a guardian' in accordance with the meaning of that term in s 3(1) of the Guardianship Act.
In this regard, the Tribunal considered the following evidence:

A report by Dr Z, Consultant Psychiatrist, dated 28 November 2014. In her report, Dr Z states that she reviewed BZR on 17 November 2014 for two and half hours and on 24 November 2014 for one and a half hours. Dr Z noted that BZR scored in the cognitively impaired range on all three tests for dementia (Addenbrooke's Cognitive Examination-Revised (ACE-R) 59/100; Mini Mental State Examination 22/30; Rowland Universal Dementia Assessment Scale 20/30). Dr Z noted that BZR has a putative diagnosis of dementia, a degenerative condition of declining cognition secondary to brain changes.
Dr Z also noted that the cognitive impairments adversely affect BZR's capacity to care for her own person. These impairments are exacerbated by BZR's deafness which has led to further difficulties comprehending information. As a result of these disabilities, in Dr Z's view, BZR does not have capacity to make independent decisions about her current accommodation and care needs and is not able to plan for her future needs. Dr Z noted that BZR is at risk of exploitation due to a lack of nuance in assessing people's character as she is of a trusting nature. As a result of the memory deficits, BZR has difficulty recalling past events and is likely to give more weight to a person's current behaviour.
Dr Z also expressed the view that the impairments found on cognitive testing and mental state examination impact on BZR's capacity to make decisions in regard to her financial and property matters. BZR's memory impairments impact on her ability to retain information which would affect her ability to plan for the future and recall past decisions and the ramifications of those decisions in order to make consistent plans. She demonstrated difficulties with problem-solving and insight into her impairments which would also impact on her day-to-day functioning.
A report by Dr Y, Geriatrician, Department of Geriatric Medicine of a public hospital, dated 9 February 2015. Dr Y's report notes that on that date, BZR scored 25/30 on the Rowland Universal Dementia Assessment Scale. Dr Y concluded that BZR has evidence of mild to moderate dementia of the Alzheimer's type. Dr Y expressed concern about BZR's ability to make complex financial decisions, such as buying or selling accommodation, and her risk of exploitation and recommended that appointment of decision makers to handle her medical, financial, and social decisions on her behalf and with her cooperation.
Email dated 31 August 2014 from Dr X. In her email, Dr X advises that she is a general practitioner of 30 years of experience and has been acquainted with BZR for at least 20 of those 30 years. Dr X gave a brief overview of BZR's history and noted that she began to exhibit behavioural characteristics consistent with dementia approximately three years prior. This behaviour included hoarding, accessing and appropriating personal belongings such as clothing for other family members as well as questionable practices of hygiene. According to Dr X, BZR's cognitive and physical decline was buffered by the consistency of the care and support she received from her husband and her son and daughter-in-law. Dr X's professional view was that BZR's mental ability and testamentary capacity is significantly impaired and she is not capable of making any legally binding decision.

The Tribunal accepted the unchallenged evidence before it contained in the reports provided by Dr Z and Dr Y. The Tribunal also accepted the evidence of Dr X (contained in her email dated 31 August 2014) based on her direct observations of BZR over a considerable period of time.
On the basis of this evidence, the Tribunal was satisfied, to the requisite civil standard, that BZR has a disability, namely mild to moderate dementia of the Alzheimer's type, and that as a result of this disability she is at least partially incapable of managing her own person and is unable to make important life decisions on her own behalf. The Tribunal was therefore satisfied that BZR was a 'person in need of a guardian' within the meaning of that term in ss 6HB(1)(b) and 3(1) of the Guardianship Act. The Tribunal was also satisfied that it was in BZR's best interests for BZQ's resignation as enduring guardian to be approved and accordingly, gave that approval.
In relation to the application made by BPY to withdraw his application for the appointment of a guardian for BZR, the Tribunal consented to this request pursuant to Cl 10 of Sch 6 to the Civil and Administrative Tribunal Act 2013 (NSW). In doing so, the Tribunal was satisfied that the withdrawal of this application was in BZR's best interests. The evidence satisfied the Tribunal that BZR is well cared for in the home that she shares with her son and daughter-in-law. The Tribunal was also satisfied on the evidence that any decisions of a personal nature that need to be made in relation to BZR can be made on an informal basis by her family members in consultation with her.
The result of the Tribunal accepting the withdrawal of the guardianship application and approving the resignation of BZQ's appointment as enduring guardian is that BZR does not have an appointed substitute decision-maker in relation to personal and lifestyle issues. However, for the reasons previously noted, the Tribunal was satisfied that this outcome was in BZR's best interests given that any such decisions may be made on her behalf by her son and daughter-in-law in consultation with BZR.

Review of enduring power of attorney dated 30 June 2014

In relation to the application made by BPY for review of the enduring power of attorney signed by BZR on 30 June 2014, the Tribunal may, on the application, of an interested person, decide to review the making or the operation and effect of a reviewable power of attorney, or not to carry out such a review: Powers of Attorney Act 2003 (NSW), s 36(1). As a consequence of reviewing the making or operation and effect of a reviewable power of attorney, the Tribunal may decide whether or not to make an order under s 36 of the Powers of Attorney Act: s 36(2).
In this matter, the Tribunal was satisfied the BPY had standing as an interested person to make the application for a review as he has a genuine concern for his mother's welfare: Powers of Attorney Act, s 35(1)(d).
Given BZQ's desire to no longer be appointed as BZR's attorney and the vacancy thereby created in the office of attorney, the Tribunal decided to review the operation and effect of the enduring power of attorney pursuant to s 36(1) of the Powers of Attorney Act and to make an order, pursuant to s 36(4)(f) of that Act, to revoke the power of attorney in its entirety.

Financial management order

The Tribunal also had before it an application by BPY for the appointment of a financial manager for his mother.
Before it could make a financial management order in relation to BZR, the Tribunal had to be satisfied of the following matters:

BZR is not capable of managing her affairs.
There is a need for another person to manage the affairs of BZR on her behalf.
It is in the best interests of BZR that a financial order be made.

Is BZR incapable of managing her own affairs?

The Tribunal was satisfied that BZR is incapable of managing her own affairs. This finding was based on the medical evidence provided to the Tribunal as outlined previously in the reports of Dr Z and Dr Y and the email correspondence from Dr X. BZR's evidence to the Tribunal, including the difficulty she appeared to experience in recalling details of her financial and property affairs, was consistent with the professional opinions contained in these reports.
No one at the hearing disputed that BZR is incapable of managing her own affairs.
Having regard to the objective facts concerning BZR's financial affairs, her vulnerability in respect of these affairs given the cognitive impairments she experiences as a result of dementia, the Tribunal was persuaded that BZR is incapable of managing her own affairs.

Is there a need for a financial manager to be appointed?

The Tribunal was also satisfied that there is a need to appoint a financial manager for BZR.
The evidence indicated that BZR has savings in at least three term-deposit accounts, two of which appear to have been in the name of BZR and the late Mr MGI and one in BZR's name alone. The evidence before the Tribunal indicated that the funds contained in these terms deposit accounts amounts to approximately $660,000. In addition, although there was no documentary evidence provided to the Tribunal concerning the previously excluded account (Bank Account X) the evidence also suggested that this account may hold funds that require management.
The evidence before the Tribunal also indicated that BZR appears to have signed a cheque for approximately $22,000 on 8 July 2014 that was made out to BZQ. The Tribunal did not have any documentary evidence of that cheque or the Bank Account Y from which the cheque was drawn. BZQ gave evidence that the cheque was paid in to Bank Account Z in BZQ's name which she opened at the time that she had authority to do so on behalf of BZR. At other points in her evidence, BZQ indicated that Bank Account Z in to which this cheque was paid was actually in BZR's name. Nevertheless, BZQ gave evidence that Bank Account Z is currently in existence that contains this sum of money in it and that she had returned a bank card that allows access to this account to the guardian ad litem. The guardian ad litem indicated in evidence at the hearing, however, that whilst a number of BZR's bank cards, a wallet and other identifying materials were given to him 16 January 2015, which he then passed back to BPY, he does not recall a Bank Account Z card being included with this material.
On the basis of this evidence, the Tribunal was satisfied that BZR has a significant estate that requires management both in relation to the funds contained in various accounts, a share portfolio and a half share in the home at Sydney's Lower North Shore home. A financial manager is also needed to determine what has occurred in relation to a sum of $22,000 that, according to oral evidence, was drawn from one of BZR's accounts on 8 July 2014 and was deposited in to a bank account, possibly in BZR's name but also possibly into an account in the name of BZQ.

Best interests

The Tribunal was satisfied that it was in BZR's best interests to make a financial management order. The evidence before the Tribunal indicated that the events over the previous months have caused considerable distress to BZR and that uncertainty about the management of her financial affairs and protection against the possibility of exploitation will assist in alleviating this distress.

Who should be appointed as financial manager?

In appointing a financial manager, as in making all other orders under the Guardianship 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 Guardianship Act.
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.
BPY sought to be appointed as his mother's financial manager. As previously noted, this proposal was supported by others at the hearing apart from BZQ who did not wish to express a view one way or the other.
The evidence satisfied the Tribunal that BPY has the personal and professional attributes that make him a suitable person to be appointed as his mother's private financial manager.
In a personal sense, BPY has lived with his mother and his late-father, since 2007. He and his wife have provided ongoing care and support to BZR and currently care for her in the home that they share in Sydney's Lower North Shore. The evidence before the Tribunal indicated that BPY has, at all times, acted in his mother's interests during some very challenging times and that he is well-placed to take into account her wishes if he is appointed as her private financial manager.
BPY is the sole beneficiary under his late-father's will. A report from the NSW Trustee and Guardian dated 17 April 2015 noted that that office has investigated whether BZR's interest in her husband's estate should be pursued pursuant to a family provisions type claim. However the report dated 17 April 2015 notes that BZR appears to be adequately provided for with proceeds of four joint-accounts totalling over $300,000 in financial assets. Additionally, she has the existing half-share of the property at Sydney's Lower North Shore together with the property she will own following the transfer of a property from the estate of her late mother to BZR.
On this basis, the Tribunal did not regard any potential financial conflict of interest between BPY and his mother, namely by way of BPY's status as sole beneficiary under his late-father's will, as being an impediment to his appointment as his mother's private financial manager. The NSW Trustee and Guardian has already formed a view that pursuing a claim in relation to BZR's entitlement under her late-husband's will is likely to be unnecessary given the content of her estate as it stands.
The Tribunal was also satisfied that BPY has the requisite professional skills to manage his mother's financial affairs. In his statutory declaration dated 8 April 2015, BPY advised that since 1990, he had worked as a software specialist with Company Z and then for many years with Company Y. In early 2014, his department was made redundant and he did not actively did not look for work in the first six months period of 2014 due to Mrs TQI's health issues. The issues concerning his mother since July 2014 have also affected his ability to actively look for work. Since his mother's return to the property at Sydney's Lower North Shore in early-January 2015, BPY indicated that he has spent most of his time caring for his mother and that his mother wishes to be with him constantly. BPY would like to find employment but indicated that he is currently unable to given his mother's current needs.
BPY also indicated that the property at Sydney's Lower North Shore is not appropriate for his mother's needs. In consultation with the NSW Trustee and Guardian, the property is currently being prepared for sale and will be put on the market. The NSW Trustee and Guardian has also consented to the purchase of alternate accommodation on the basis that the property will be held in BZR's name and BPY's name as tenants in common which is the current status quo.
BPY also noted that the NSW Trustee and Guardian had been depositing $200 per week in Bank Account X which was previously excluded from the financial management order made in September 2014. However, since the orders made by the NCAT Internal Appeal Panel on 21 January 2015, this account had been frozen and BZR had no access to her own funds. The report provided by the NSW Trustee and Guardian indicated that a payment of $1000 was made in early April 2015 into an account in the name of BPY and Mrs TQI so that BZR had access to funds. However, other than this amount, BPY, has met the balance of his mother's expenses from his own funds.
BPY indicated that if a financial management order was made appointing him as the private manager, he intended to consult with a reasonably-priced financial adviser in relation to the investment and management of her assets.
BPY also indicated knowledge of the requirements to report regularly to the NSW Trustee and Guardian and a willingness to do so.
The Tribunal accepted the uncontested evidence provided in relation to these matters and was satisfied that BPY is a suitable person to be appointed as his mother's private financial manager subject to the authority and directions of the NSW Trustee and Guardian.

Review of revocation of enduring power of attorney

As previously noted, on 3 September 2014 BZR signed a document that purportedly revoked BPY's appointment as her attorney on 22 September 2009. Ultimately, BPY sought to withdraw his application to review this purported revocation. This was on the basis that to proceed with this application would have required an adjournment of the hearing to a later date. BPY and the guardian ad litem both expressed concern about the impact of the adjournment of these proceedings on BZR.
Given this, BPY made what was in effect a pragmatic decision to seek to withdraw the application.
The Tribunal consented to the withdrawal of this application. In doing so, the Tribunal noted the circumstances in which the withdrawal request was made and acknowledged that this would not in any way prevent BPY from making a similar application in the future if he chose to do so.

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: 20 December 2018

Trustee and Guardian Act 2009(NSW)

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