C S and M Y v the Guardianship Tribunal and the

The hearing

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

What did the Tribunal have to decide?

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

• Is Mr BLC someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?
• Should the Tribunal make a guardianship order and if so, what order should be made?
• Who should be the guardian?
• How long should the order last?

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

1. Section 14 of the Guardianship Act 1987 (NSW) ('the Guardianship Act') provides that the Tribunal may make a guardianship order for a person if it is satisfied that he is "a person in need of a guardian". A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person" (s 3(1), of the Guardianship Act). A person with a disability is a person who is: 1. intellectually, physically, psychologically, or sensorily disabled; 2. of advanced age; 3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or 4. otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation (s 3(2), of the Guardianship Act).
2. Mr BLC attended the Tribunal hearing via videoconference. He was able to state his views in a clear and forthright manner. He said he was capable of looking after himself. When pressed he conceded he had been drinking too much following his marital breakdown and if anybody was to be appointed guardian he would prefer one or both of his daughters to be appointed. He further said that he had been sick for a time but his condition was rapidly recovering and he now had no need for a guardian.
3. The medical evidence before the Tribunal (which was reinforced by Dr Z during the hearing) was that Mr BLC had a severe impairment of memory with cognitive impairment and lack of insight. From a medical point of view this impairs his capacity to make decisions regarding his treatment, accommodation, and finances. Further, Dr Z said a coercive order was recommended as he is vulnerable to risk of harm through further drinking. Mr BLC had been treated with intravenous thiamine that had brought about some improvement in the Wernicke ataxia and vision problems. This explains why Mr BLC believes he is recovering.
4. However, Dr Z told the Tribunal that Mr BLC was unlikely to recover from the Korsakoff's syndrome which has brought about permanent brain damage. This included the cognitive impairment and lack of insight. Dr Z said Mr BLC was ready for discharge from hospital. The discharge was awaiting the outcome of this hearing.
5. Ms BWR, the applicant said she discussed the identified deficits with Mr BLC but he was not accepting and in fact became threatening towards her when the topic was raised. Mr BLC demonstrated similar behaviour during the hearing at a number of stages. Such behaviour tended to support the medical evidence of lack of insight and cognitive impairment.
6. Mr BLC's daughters, Ms QZC (age 25) and Ms KPC (age 20), both told the Tribunal that they had difficulty making a judgment about whether their father had cognitive impairment saying that his condition was variable.
7. Ms QZC told the Tribunal that Mr BLC had been divorced about a year ago. He was not accepting of the divorce and his former wife had to resort to an apprehended violence order to minimise contact with her.
8. Other medical evidence before the Tribunal indicated that Mr BLC required 24-hour supervision. Ms BWR said the family were unable to provide that level of care. She added that an occupational therapy assessment on 2 February 2016 had identified very poor skills in simple household tasks such as meal preparation.
9. Ms BWR also suggested a coercive power was necessary, given that Mr BLC had absconded from hospital on 20 January 2016. The circumstances were that he left the hospital and started drinking again. His daughter found him at a hotel but was unable to persuade him to return to hospital. The following day the police had more luck in persuading him to return to hospital.
10. The Tribunal is satisfied that Mr BLC has a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

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

1. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a guardianship order: 1. the views (if any) of: 1. the person, and 2. the person's spouse, and 3. the person's carer and 1. the importance of preserving the person's existing family relationships, and 2. the importance of preserving the person's particular cultural and linguistic environments, and 3. the practicability of services being provided to the person without the need for the making of such an order.
2. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2). When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).
3. Throughout the hearing Mr BLC repeatedly advised the Tribunal that he will not tolerate an order which restricted his freedom. He said he would move interstate or overseas to avoid the operation of the order. When saying this Mr BLC, at times, became aggressive and threatening in his manner including raising his voice and pointing his finger at the Tribunal bench.
4. Ms Lisa Shapiro who represented the Public Guardian attended the hearing in person. She submitted that Mr BLC did need a guardian.
5. In considering whether a guardianship order should be made, the Tribunal accepted the medical evidence that Mr BLC lacked insight. The Tribunal also accepted that his vigorous opposition to an order is, at least in part, due to his inability to appreciate his own disability. The Tribunal accepts that Mr BLC has a reasonably high level of permanent disability, despite his ability to speak clearly to the Tribunal during the hearing. The Tribunal also accepts the significant history of alcohol abuse and the risk that Mr BLC would return to drinking in the future with further damage to himself.
6. In all the circumstances the Tribunal decided a guardianship order should be made.

Functions

1. The Tribunal also accepted that given Mr BLC's stated intention not to comply with any order and his recent absconding from hospital, that it is his best interests that the guardian has a coercive power to authorise others to return him to appropriate accommodation.
2. Ms Lisa Shapiro who represented the Public Guardian submitted that Mr BLC's guardian would need powers of accommodation (including authorise others) and services.
3. The Tribunal formed the view that Mr BLC's guardian would need functions of accommodation (include authorise others) and services. Medical and dental consents were not needed since that was being adequately covered by a person responsible and there was no need for medical treatment at this stage. Mr BLC's physical health was otherwise good. The only medication he was on was high dose thiamine. The medical records show there is difficulty in engaging him in any drug and alcohol rehabilitation as yet.

Who should be the guardian?

1. There is a proposal that Ms QZC be appointed guardian for Mr BLC. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Guardianship Act. He must: 1. have a personality generally compatible with the personality of the person under guardianship; 2. have no undue conflict of interest (particularly financial) with those of the person; and 3. be able and willing to exercise the functions of the order.
2. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Guardianship Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court, Windeyer J, 29 November 1999 and Re B [2011] NSWSC 1075, at [66]).
3. In P v D1 & Ors [2011] NSWSC 257 the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.
4. The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed (s 15(3), Guardianship Act).
5. The Supreme Court has held that: the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).
6. Ms Lisa Shapiro who represented the Public Guardian, submitted that as a private guardian was available, that person should be appointed and not the Public Guardian.
7. Ms QZC said that she would be willing to be guardian saying that although her father was stubborn, she was confident decisions could be made in his best interests, particularly with the co-operation of her sister, Ms KPC. Ms KPC agreed with this assessment, saying she was also willing to be guardian.
8. The Tribunal decided that Ms QZC and Ms KPC both meet the requirements of s 17(1). They have personalities compatible with their father, they do not have any conflict of interest and they are able and willing to exercise the functions of guardian.
9. The Tribunal acknowledged the risk that family disputation could accelerate if a family member is appointed guardian but considered it in the best interests of Mr BLC for a family member to be guardian because of the family members' potential capacity to overcome his opposition to any particular proposal. In forming this view the Tribunal relied upon Mr BLC's statement that he is more likely to listen to his daughters than anybody else.
10. On the basis of this evidence, the Tribunal was satisfied that Ms QZC and Ms KPC both meet the requirements to be appointed as the private guardian for Mr BLC.
11. After discussion between the Tribunal and Ms QZC and Ms KPC about the form of the appropriate order, the Tribunal appointed Ms QZC as guardian and Ms KPC as alternate guardian.

How long should the order last?

1. An initial guardianship order can be made for a period of up to one year from the date on which it was made.
2. The Tribunal decided to make an order for 12 months because it will give time for the guardian to make decisions about accommodation and services and to see if the arrangements are workable.

What did the Tribunal have to decide?

1. The questions to be considered by the Tribunal are:

• Is Mr BLC incapable of managing his affairs?
• Is there a need for another person to manage Mr BLC's affairs and is it in his best interests for a financial management order to be made?
• If so, who should be appointed financial manager?

Is Mr BLC incapable of managing his affairs?

1. In Re D [2012] NSWSC 1006, White J assessed the history of case law in relation to financial management and noted that initially the issue of capability was approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Court now assesses the person's own capacity to do what they are proposing to do [58]. White J used a "rational appreciation" of assets test to determine a person's capability to manage his or her affairs. He adopts the reasoning of Barrett J in P v R [2003] NSWSC 819 who said that the task of the Court in these circumstances: …is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person's property…the requisite judgment is to be made in the light of objective physical facts concerning the relevant person's property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter [26].
2. In PB v BB [2013] NSWSC 1223, Lindsay J confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at [7]: Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack "mental capacity" or be "mentally ill"; or (b) particular reasons for an incapacity for self-management.
3. The test for determining a person's capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, at [307]-[308]): Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests? … [A] focus for attention is 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. In considering whether the person is "able" in this sense, consideration may be given to:

• past and present experience as a predictor of the future course of events;
• support systems available to the person; and
• 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: see Lindsay J in CJ v AKJ [2015] NSWSC 498, at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, at [309].

1. The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81, at [86]). See Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106, at [20]: Each case must, of course, be considered on its own facts, including not only actual facts presently known but also, so far as they can be known, prospective developments.
2. The Tribunal asked Mr BLC about his financial affairs. He had no accurate memory of the amount of investment and superannuation he held. He said he had an accountant who manages his superannuation fund. He last spoke with him about two months ago. Mr BLC was not aware whether he had any debts or how his rent had been paid. He had a key card account but was vague about many aspects of his income and savings.
3. The medical evidence detailed above that the Tribunal has already accepted indicates a high level of cognitive impairment and memory difficulties. Mr BLC's answers to the Tribunal questions about his finances were consistent with that evidence. The Tribunal finds that Mr BLC is incapable of managing his affairs.

Is there a need for a financial management order?

1. The Tribunal was satisfied that there is a need to appoint someone to manage Mr BLC's affairs because Mr BLC has significant assets and when combined with his lack of insight, makes him vulnerable to exploitation or self-mismanagement.

Is it in Mr BLC's best interest that a financial management order be made?

1. The Tribunal was satisfied that it is in the best interests of Mr BLC that a financial management order be made.

Who should be appointed as financial manager?

1. 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.
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. In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court's broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.
4. On the side of the then Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage.
5. The advantages of the appointment of a family member were more economic management of smaller estates (that is, less fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers.
6. In Application by AMAM; Re SAM [2011] NSWSC 503, Hallen AsJ stated: [34] It would be unwise to attempt any definition of the matters that may legitimately be enquired into to determine whether the applicant is suitable. Each case must depend on its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager's character, honesty and ability to manage, diligently, the managed person's property in the managed person's best interests.
7. The matters or "guidelines" that should be considered when determining who to appoint as financial manager, as established in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, are discussed and expanded upon by Lindsay J in M v M [2013] NSWSC 1495, at [50].
8. As to who is to be financial manager, the Tribunal had to balance the risk to family relations if one or more of his daughters were appointed versus the benefit of an independent financial manager, but at the cost of significant fees.
9. The Tribunal considered the advantage of family involvement in his financial affairs was to his significant benefit and outweighed the potential risks to family harmony and the potential advantages of an independent manager.
10. The Tribunal was satisfied that Ms QZC was a suitable person to be appointed as financial manager for Mr BLC subject to the authorities and directions of the NSW Trustee and Guardian.
11. Mr BLC's daughters were advised that if any aspects of the Tribunal orders are proving impracticable then a fresh application can be made to the Tribunal for variation.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2016