C S and M Y v the Guardianship Tribunal and the Public Guardian

Conduct of the Hearing 8The hearing was listed for hearing urgently because of concerns about possible financial exploitation. It was originally scheduled to be heard at 2pm on 23 January 2014 by telephone from Hospital A. However during the course of the morning, it became apparent that the Tribunal panel would be in a position to travel to Hospital A and thereby speak to the participants in person rather than by telephone. The Tribunal confirmed this change of plan with Ms MEC who was coordinating the participants at the hospital. 9Although Mr BEB had not indicated that he was planning to attend or participate in the hearing, the Tribunal endeavoured to make contact with him to advise him of the change of venue. The Tribunal first called and spoke to Ms NOG, who had earlier provided the Tribunal with a document on Mr BEB's behalf. Although this was not stated, the Tribunal considered that Ms NOG may have been Mr BEB's legal representative. Ms NOG undertook to try and get a message to Mr BEB about the change of venue. The Tribunal then found a contact number for Mr BEB and called him directly. He was told the details of the changed venue and was asked if he was planning to attend the hearing or otherwise participate. He said that he was not sure. The Tribunal did not contact Mr BEB during the hearing as he had been advised of the time and place and had not indicated that he wished to participate even if he could not attend. He had also provided a written submission a few days prior to the hearing expressing his position. After the hearing was completed, the Tribunal received a phone message from Ms NOG advising that she had been unable to contact Mr BEB to pass on the message because he was involved in exams that day. Mr BEB had not indicated to the Tribunal that he was involved in exams and therefore unable to participate. 10The people who did attend the hearing were Mr HAP, Ms MEC, Ms SUC, Ms LOX, and Ms NAD, Occupational Therapist. Mrs FAP had developed sepsis and was, sadly, too unwell to participate. The Tribunal was assisted by a Hungarian speaking interpreter. 11At the end of these Reasons for Decision are lists of the parties to the application. [Appendix removed for publication]

Guardianship 12The questions which had to be decided by the Tribunal in relation to guardianship were:

• Is Mr HAP 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 HAP 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? 13Section 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/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" (section 3(1), Guardianship Act). A person with a disability is a person who is: (a)intellectually , physically, psychologically or sensorily disabled (b)of advanced age, (c)a mentally ill person within the meaning of the Mental Health Act 2007 or (d)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 (section 3(2), Guardianship Act). 14The Tribunal considered a report from Dr Z, Staff Specialist in Aged Care Medicine at Hospital A dated 18 January 2014 which was prepared particularly in relation to this hearing. Dr Z reports that Mr HAP was admitted to Hospital A in early January 2014 with worsening confusion and poor mobility. She states that Mr HAP has vascular dementia with progressive cognitive impairment. He also has type II diabetes, hypertension and high cholesterol. Dr Z reports that Mr HAP has difficulties across a number of cognitive domains, in particular short term and working memory and poor attention skills leading to frequent loss of focus during conversation and task completion. She concludes that Mr HAP is likely to be significantly impaired in his ability to manage his financial affairs, and that he was unlikely to have the capacity to understand the documents he signed appointing Mr BEB as his enduring guardian and attorney. 15At the hearing, the Tribunal encouraged Mr HAP to speak as freely as he was able to about his circumstances. He impressed as a very intelligent and considered man, who was struggling with memory and attention difficulties. He began his account of events quite confidently and clearly, but then lost concentration and had difficulty moving beyond a certain point. He had poor recollection of details, noting that his wife would be more likely to recall these. His presentation was consistent with the conclusions in Dr Z's report. 16Mr HAP explained that Mr BEB had been their neighbour for many years, and had been a good neighbour. He said that Mr BEB has some medical background and knowledge which was helpful. He said that Mr BEB told him and his wife that he would look after them if they gave him some money. He could not recall how much money this was (but suggested his wife might recall this). They agreed to this and he was looking after them before they came to hospital. He was unclear on the details of this arrangement. 17On questioning, Mr HAP could not recall seeing a lawyer with Mr BEB to sign documents but after some time did recall signing three documents. However he could not recall what they were. He said that he would need to study the documents to understand what they were for. 18In response to questions about his and his wife's current situation, Mr HAP indicated that it might not be possible for them to return home to live. However, although he clearly tried to think through and express their options from this point, he was not really able to grasp or express what these might be. He indicated that he would be willing for someone he trusted to make these decisions on his behalf. He thought that if he tried very hard he could probably do it, but that he was very tired, and would like someone to do it for them. 19Based on the evidence from Dr Z, and Mr HAP, the Tribunal is satisfied that Mr HAP has a vascular dementia which at least partially prevents him from making important life decisions. Mr HAP is therefore a person for whom the Tribunal could make a guardianship order if necessary.

Should the Tribunal make a guardianship order and what order should be made? 20In considering whether to make a guardianship order, the Tribunal must consider the views of the person who is the subject of the application, the person's spouse and carer. The Tribunal must take into account the principles set out in section 4 of the Guardianship Act 1987, which include the principle that the welfare and interests of the person should be given paramount consideration. 21The Tribunal must also have regard to the practicability of services being provided to the person without the need for a guardianship order. 22Ms MEC's application was made because of concerns initially raised by Ms MOP, Manager of Community Services Provider B. A detailed account of Ms MOP's concerns is contained in a letter to Ms MEC dated 13 January 2013. In summary Ms MOP reports that staff attended Mr HAP and Mrs FAP's unit for their usual visit on 30 December 2013, and were met by Mr BEB, who told them that he was now looking after them, and that staff were to leave. On 6 January 2014 Mr BEB left a message on the answering machine at Community Services Provider B cancelling the service. When Ms MOP contacted him about this, he said that he held enduring power of attorney and enduring guardianship for them both. Ms MOP was concerned about this as Ms LOX was the emergency contact person on their records, and neither she nor the staff who attended to Mr and Mrs FAP had met Mr BEB previously. 23In a detailed report dated 13 January 2014, Ms MEC explains that she became involved after Mr HAP's admission to Hospital A on 4 January 2014. She reports that an occupational therapy visit to Mr HAP's home, and meeting with Mr BEB did not indicate concerns about the quality of the care he was providing to them. On 9 January 2014 Ms MEC and other staff met with Ms SUC and Mr BEB. Ms SUC and Mr BEB also met separately. She identified concerns that Mr BEB indicated that he had been providing "all the care" to Mr HAP for four years, which was not consistent with the experience of the Community Services Provider B. Ms MEC was also concerned that Mr BEB advised Ms SUC that Mr HAP had given him $200,000 for "the work he had done" and that Mrs FAP had given him $400,000, and the apartment. He apparently indicated that he would be prepared to give the $200,000 to Ms SUC but that he intended to keep the money and the apartment from Mrs FAP. Ms MEC spoke to Mr BEB about her intention to make applications to the Tribunal, and recommended that he put the money back into their accounts, which he agreed to do. 24Ms MEC also expressed concern that Ms SUC said that she tried to visit Mrs FAP at home, but that Mr BEB prevented her from seeing Mrs FAP. The building manager was reported to have said that he could not let her into the unit as Mr BEB had to approve her visit. She also expressed concern that Mr HAP would not have had the necessary understanding to appoint Mr BEB as his enduring guardian or attorney, calling into question the validity of these instruments. 25At the hearing Ms MEC explained that Mr HAP's health is such that he probably needs nursing home care, rather than hostel care and so it is unlikely to be possible for him to be discharged home, even with support. She said that before she became acutely unwell Mrs FAP had said that she liked the idea of Nursing Home C which is a Hungarian nursing home in Sydney. Ms MEC indicated there are currently no vacancies at this nursing home. In addition to finding a place which is culturally comfortable for Mr HAP and Mrs FAP, in her view it was essential that they not be separated unless this was absolutely unavoidable. Ms MEC considered that it was necessary to appoint a guardian to make the necessary decisions, because although Mr HAP sometimes demonstrates an understanding of his situation, he can also be inconsistent about this. 26As stated earlier Mr HAP spoke to the Tribunal and expressed his views to the best of his ability. He certainly recognised that he has difficulties managing living at home, hence the arrangement he thought that he and his wife had made with Mr BEB. However, beyond this arrangement, which he now understood was not workable (but for which he was at pains not to blame Mr BEB), he was not able to understand his options sufficiently well to make a decision on his own behalf. 27Although the Tribunal did not have the opportunity to speak with Mr BEB during the hearing, he provided a written submission on 24 January 2014 in which he outlines his view. In summary he says that he has been their neighbour for 30 years, and that they asked him to take on the role of their guardian. He says that as they have become frailer, they have called on his help a number of times, such as when Mr HAP has had falls. He said that he initiated their admissions to hospital in recent weeks because of their deteriorating health. He strongly denies that he is misusing their finances, stating that Mr HAP and Mrs FAP insisted on depositing money in his account to "facilitate the payment of bills, and any other situation which might arise because of medical emergencies". He says that this money has now been returned to their accounts. He says that on their request he has organised funerals for them both. He has also looked into aged care in the likely event that they are unable to return home from hospital, suggesting Nursing Home D in Sydney. He states that they have a trusting relationship and that their welfare is his priority. He does not make reference to the amount of money deposited into his account. Nor does he make reference to the enduring powers of attorney and guardianship, or how and why these were executed. 28Mr HAP has been an inpatient in hospital since early January 2014, apparently (based on Dr Z's report) because of a general decline in his health due to his dementia rather than any acute condition. Nonetheless the Tribunal noted that Mr HAP does have a number of chronic medical conditions, which require ongoing treatment. If he is placed in an aged care facility, then it is in his best interests that it be abundantly clear who is authorised to make decisions regarding his health care. For this reason the Tribunal is concerned that this will be insufficiently clear if it is left to the aged care facility and any treating doctor to determine for themselves who might be his person responsible. 29In coming to this view, the Tribunal notes that Mr BEB appears to have been appointed as Enduring Guardian for Mr HAP however Dr Z's evidence puts the validity of this appointment in doubt. There is also evidence arising from the transfer of large sums of money from Mr HAP to Mr BEB, which raises reasonable concerns about Mr BEB's motivations in assisting Mr HAP, and whether Mr HAP's best interests were his primary concern. Give these concerns the Tribunal was satisfied that it was in Mr HAP's best interests to make a guardianship order. This effectively nullifies the enduring guardianship appointment and clarifies who has the authority to make decisions on Mr HAP's behalf. 30The Tribunal was satisfied that given Mr HAP's current circumstances, the guardian needs to be given authority to make decisions regarding his accommodation, healthcare, to consent or withhold consent on his part to medical and dental treatment. The guardian is also authorised to decide what services Mr HAP might benefit from, whether he returns home, with assistance, or moves to an aged care facility

Who should be the guardian? 31The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed. 32At the hearing it was proposed that Ms SUC be appointed guardian for Mr HAP. A secondary proposal was made that Ms LOX also be appointed, jointly with her daughter. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with section 17 of the Guardianship Act. They must:

• have a personality generally compatible with the personality of the person under guardianship,
• have no undue conflict of interest (particularly financial) with those of the person and
• be able and willing to exercise the functions of the order. 33In 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 section 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). 34Ms SUC said that she understands that decisions need to be made for her grandfather, in particular about where he might live after he leaves hospital. She explained that she has a good relationship with him and feels she understands what is important to him. She said that she would discuss any decision with him, and Mrs FAP as well as her mother before making it, and feels she would have no difficulty with this. She repeatedly observed that he has worked hard all his life to provide for a comfortable retirement, and that this is what he should now have. 35Ms LOX did not press strongly to be jointly appointed as guardian. She indicated that she would be satisfied to be involved in the decisions that her daughter made. There was some acknowledgement and discussion about some difficulties in the relationship between her and her step mother in the past, and that this might complicate her appointment as guardian for Mrs FAP, which was also proposed. Mr HAP said he trusts both his granddaughter and daughter to make decisions on his behalf about his lifestyle. 36The Tribunal is satisfied that Ms SUC meets the requirements to be a guardian for Mr HAP and she should be appointed. On the basis that the Tribunal is satisfied that Ms SUC would involve her mother in decisions she made as guardian, the Tribunal decided that it was preferable to appoint her on her own as the appointment of joint guardians can present practical problems at times. It would not be in Mr HAP's best interests if there was delay or confusion about who needed to be contacted in regards to a decision which needed to be made on his behalf.

How long should the order last? 37An initial guardianship order can be made for a period of up to one year from the date on which it was made. However, an order of up to three years can be made, if the person who is the subject of the order has permanent disabilities, is unlikely to become capable of managing his or her person and there is the need for an order longer than one year. The Tribunal decided to make an order for 12 months because this is the maximum term which can be given in this case.

Financial management 38The questions which had to be decided by the Tribunal in relation to financial management were:

• Is Mr HAP incapable of managing his affairs?
• Is there a need for another person to manage Mr HAP'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 HAP incapable of managing his affairs? 39A person's capability to manage his or her affairs was considered by Campbell J in the NSW Supreme Court in Re GHI (a protected person) [2005] NSWSC 581. Campbell J affirmed the approach enunciated in PY v RJS [1982] 2 NSWLR 700 by Powell J, at paragraph 7: "It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears: (a) that he or she is incapable of dealing, in a reasonably competent fashion with the ordinary routine affairs of man; and (b) that by reason of that lack of competence there is shown to be a real risk that either (i) he or she may be disadvantaged in the conduct of such affairs; or (ii) that such moneys or property that he or she may possess may be dissipated or lost ... it is not sufficient in my view merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner..." 40Young J in H v H (unreported) NSW Supreme Court 20 March 2000, in dealing with the capacity test as it has been enunciated in NSW, said that dealing with the "ordinary affairs of man" does not simply mean being able to go to the bank and draw out housekeeping money. Most people's affairs, his Honour said, "are more complicated than that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one's family and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills." 41It should be noted that 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). 42The Tribunal has already referred above to the evidence from Dr Z regarding the extent of Mr HAP's dementia and the effect that this has on his capability to manage his own financial affairs. The Tribunal has also referred above to Mr HAP's own evidence that he could not recall the details of how much money he and his wife had agreed to pay Mr BEB to care for them. He indicated surprise that it may have been as much as $200,000. He could not recall what bank accounts they had, referring to Bank A and a credit union, but he was not able to say which one. He could not recall how much money they might have. 43On the basis of this evidence the Tribunal was satisfied that Mr HAP is incapable of managing his financial affairs.

Is there a need for another person to manage Mr HAP's affairs and is it in his best interests for a financial management order to be made? 44The evidence regarding Mr HAP's overall financial situation is not clear. It appears that he and his wife are self funded retirees, and hold significant cash investments. The total of these investments is not apparent from the evidence, but a bank statement for a Bank A savings account in Mrs FAP's name gives a balance of $527,317 on 13 January 2014. On the same date a Bank A savings account in Mr HAP's name shows a balance of $216,753. 45Some of the evidence which is relevant to the question of a need for a financial manager has been detailed earlier, and relates to the issue of possible financial exploitation by Mr BEB. In addition to this evidence, the Tribunal notes a report from Ms MEC in support of the applications for Mrs FAP, also dated 13 January 2014. In this, Mrs MEC reports that she spoke to Mrs FAP about the arrangement with Mr BEB on 14 January 2014. She reports that Mrs FAP recalled signing paperwork, but did not know what it was for, that Mr BEB was her carer and helped her with things including paying bills. She usually gave him a cheque for this but was unable to recall if this was just for the amount of the bills or more, although she stated that it was "definitely not more than $10,000, but maybe a couple of thousand". She said that she had not given Mr BEB permission to move her money into his bank account, and that she had not given him a large sum of money ($400,000). However she did say that she had given him permission to have money from term deposits in Bank B when they matured, in a year or so, although she did not know how much money this was. She also said that she wanted to give him the apartment. 46The Tribunal notes copies in the hearing papers of a number of Bank statements showing transactions between Mr HAP and Mrs FAP's accounts and Mr BEB's accounts with Bank A. [Table removed for publication] 47It is not known if this is the full extent of the money transferred by Mr HAP and Mrs FAP to Mr BEB. These statements do not show how much was withdrawn from Mrs FAP's account, or when this occurred - they just show what Mr BEB deposited into her account on 13 January 2014. They do show that Mr BEB did not repay all of the money that was withdrawn from Mr HAP's account ($223,065 withdrawn and $216,753 repaid). 48In addition to these large sums, the statement for Mrs FAP's personal savings account also shows four cash withdrawals of $400 each, two on 8 January 2014 and two on 11 January 2014 - a total of $1,600 cash withdrawn in 4 days. Mrs FAP was admitted to Hospital A on 13 January 2014. Mrs FAP is reported to have told Ms MEC that there were term deposits in the Bank B. There is no other evidence which assists the Tribunal to know if this is the case, or if this was an error of recollection on Mrs FAP's part, and that she was referring to the Bank A. 49Ms MEC advised that Mr BEB had said that he had put Mr HAP's keycard and wallet with their possessions in the hospital, however she said that this was not correct and she suspected that he still had this, as well as Mrs FAP's keycard. It was not clear what other accounts or credit cards Mr HAP might have. Mr BEB was also thought to have the only key to Mr HAP's unit. 50The Tribunal was at a significant disadvantage in Mr BEB not making himself available for the hearing. However the Tribunal considered his account of events as set out in his statement referred to earlier. He asserts that Mr HAP and Mrs FAP asked him to put money into his account to facilitate the payment of bills and any situation which might arise because of medical emergencies. He makes reference to money being needed for a nursing home. 51Based on the Bank A statements referred to above, the money, totalling just under $400,000, was withdrawn early from term deposits, incurring penalty fees, and deposited in October 2013, into term deposits in Mr BEB's name. In any terms $400,000 is clearly well in excess of the kind of money which might be needed to pay bills on someone's behalf or even deal with most emergency situations. Investing the money in term deposits also indicates that this was not money that was being kept accessible to facilitate payments that might be needed in emergencies. These deposits were made well before the enduring power of attorney instruments were executed. 52Other witnesses (Ms MEC and Ms SUC) refer to Mr BEB asserting that he had been given the money by Mr HAP and Mrs FAP, and not that he was simply holding it for them on trust. This is also consistent with Mr HAP's understanding of the situation that Mr BEB agreed to look after him and his wife in exchange for a sum of money. Mrs FAP's evidence (as reported by Ms MEC) was that she had given Mr BEB a few thousand dollars to help pay bills, but not that he had been given $400,000 to hold on trust for them or as a gift or payment for services. It is very difficult to establish the truth given the disparity in the evidence. 53However if the money was truly being held by Mr BEB on trust, once he was appointed as attorney, he could and probably should, have established accounts in Mr HAP and Mrs FAP's names on which he could sign. This would have clearly shown that the money was still theirs but was entrusted to him to provide for their needs. Even before he was attorney, if he believed that Mr HAP and Mrs FAP had the capacity to understand what they were doing, he could have taken them to the bank and they could have authorised him to be an additional signatory on their account/s, which would have meant that he could access their money to pay bills or to deal with emergencies. These would both have been strategies consistent with the money being held by him in trust. Depositing the money into accounts in his name alone suggests more strongly that he regarded this money as his own, which is more consistent with the evidence from Ms MEC and Ms SUC and Mr HAP. Whether the money was a gift or a payment for services, the Tribunal was not satisfied from the evidence that Mr BEB was simply holding this money on Mr HAP and Mrs FAP's behalf. This calls his credibility into significant doubt. 54The Tribunal was also concerned about Mr HAP's recollection that he had signed three documents with Mr BEB - clearly the enduring power of attorney and enduring guardian instruments were two of these. The nature of the third document is unknown, and the Tribunal notes that it may have been a transfer of title to Mr HAP's unit, given Ms SUC's evidence that Mr BEB said that he had been given the apartment. It is important that this third document be followed up to ensure that Mr HAP's assets are protected. 55In summary, quite apart from the usual day to day financial affairs which Mr HAP is unable to undertake for himself, a financial manager is needed to identify and secure his assets, to ensure that they are used for his benefit. Given the evidence that his keycard and house keys are not in his possession, his accounts and his property need to be secured. Given the incomplete evidence about the extent of his financial situation, the manager will need to be able to undertake investigations with financial institutions, and approach the solicitor who witnessed the enduring guardian and enduring power of attorney instruments to clarify any other documents he may have signed. The financial manager will also need to consider whether there is any need to pursue recovery action on Mr HAP's behalf if it appears that his assets have been misappropriated. 56The Tribunal was satisfied that there is a need to appoint someone to manage Mr HAP's affairs and it is in his best interests that an order be made.

Who should be appointed financial manager? 57In 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 section 4 of the Guardianship Act. 58Section 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. 59In 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 Protective Commissioner and a family member as the manager of an estate. 60The NSW Trustee and Guardian now exercises the role of the Protective Commissioner. 61Ms SUC indicated that she would like to be appointed financial manager. The Tribunal did not doubt that in making this offer, she had Mr HAP's best interests at heart. However given the nature of some of the work that is going to be required from the financial manager, the Tribunal considered that it would be in Mr HAP's best interests to appoint the NSW Trustee, because of that organisation's expertise in more complex functions associated with financial management. 62The Tribunal was satisfied that the estate of Mr HAP should be committed to 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: 10 April 2014