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

Conduct of the hearing

1. The hearing was conducted in regional NSW and was attended by Mrs WZB, Ms LND, Mr KAB, Mr OZB, a social worker from SMHOP, Ms Z, case manager from SMHOP, and Ms Y, Care manager from the aged care facility. Ms Kensey Brydson from the Public Guardian participated by telephone. The Tribunal was assisted by a Greek language interpreter.
2. At the end of these Reasons for Decision are lists of the parties to the application. [Appendix removed for publication.]

What did the Tribunal have to decide?

1. The questions which had to be decided by the Tribunal in relation to the guardianship application were:

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

1. The questions to be considered by the Tribunal in relation to the financial management application were:

• Is Mrs WZB incapable of managing her affairs?
• Is there a need for another person to manage Mrs WZB'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 WZB someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

1. Section 14 of the Guardianship Act 1987 (NSW) ('the Act') provides that the Tribunal may make a guardianship order for a person if it is satisfied that she is "a person in need of a guardian". A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person" (s 3(1) of the 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; 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 Act).
2. The Tribunal considered a number of reports which address the issue of Mrs WZB's capacity to make decisions on her own behalf. These were: a letter dated 18 November 2015 from Ms LND; a letter date 17 November 2015 from Ms Z; an aged care client assessment dated 25 August 2015; and an occupational therapy living skills report dated 7 December 2015 by Ms X. These provide a consistent picture that Mrs WZB has a history of depression and paranoia. She also has persistent psychotic symptoms, characterised by persecutory delusions (that family neighbours and health staff are trying to exploit her) and hallucinations (she sees a small man who lives under her pillow and injects her with frozen water). She was admitted to hospital in November 2015, with worsening ability to care for herself and concerns that she had not been taking medications, either deliberately or because of forgetfulness. She achieved a RUDAS score of 17/30 in hospital, 20/30 in August 2015 as assessed by the ACAT assessor. In early 2014 her result was 24/30. She has poor memory and a history of conflict with her family, as well as history of cancelling services.
3. At the hearing the Tribunal heard that since Mrs WZB's hospital admission, there has been an improvement in her mood and she is rational more often. However, her memory is still a problem and she is still somewhat paranoid and has hallucinations which make her very fearful. Her memory and her persistent delusions impair her ability to make decisions on her own behalf.
4. Mrs WZB agreed that she has problems with her memory and that she changes her mind a lot. She confirmed that the "person" who has been in her house for a year and a half is still there. She said that he has done nothing to her but then said that he has stolen everything she has. Her presentation was generally consistent with the reports.
5. Mr KAB and Mr OZB did not dispute the evidence regarding the extent of their mother's psychological and cognitive problems.
6. Based on the above evidence, the Tribunal is satisfied that Mrs WZB has a disability which prevents her making important life decisions. She is 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?

1. The Tribunal must consider all of the following matters set out in s 14(2) of the 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) of the Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).
3. The Tribunal heard that there is a need for a guardian to make a decision about where Mrs WZB should live. There was general agreement that she is not safe living at home without assistance and there is a history of difficulties in providing the necessary assistance. Mrs WZB said that she likes where she is now, in the aged care facility, as she likes being looked after. However, the Tribunal heard that Mrs WZB has expressed this previously but she is not consistent, and her views about a move to aged care vacillate. Ms Y said that Mrs WZB is settling in well and that they are in a position to offer her a permanent placement in a different, but equivalent room.
4. The Tribunal also heard that a new ACAT would be needed to make a permanent move to the aged care facility. This has been arranged on a number of occasions, but Mrs WZB has repeatedly refused to sign the consent form, although she is willing to engage with the assessor. She is generally reluctant to sign any documentation because of her paranoia.
5. The Tribunal also heard that there are ongoing decisions regarding Mrs WZB's health which need to be made. She has been "signed up" with a psychiatrist now she has been discharged from hospital, and the view of the psychiatrists whilst in hospital was that Mrs WZB lacked cognitive capacity to consent to treatment. As Mr OZB is not involved with her, and Mr KAB lives a long way away, the Tribunal was concerned that treating practitioners would not recognise either of them as person responsible for their mother. For this reason, the Tribunal considered it preferable to appoint a guardian with the authority to provide consent to treatment.
6. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made and the guardian given authority to make decisions regarding Mrs WZB accommodation, services, healthcare, and to consent on her behalf to medical and dental treatment.

Who should be the guardian?

1. There is a proposal that Mr KAB and Mr OZB be appointed as joint guardians for Mrs WZB. 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 Act. He/she 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 Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, [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) of the Act).
5. The Tribunal heard that Mr OZB has been estranged from his mother for around five years. Mrs WZB expressed some distrust of him, although he maintained that despite their differences he wants what is best for his mother and would make decisions consistent with this. Despite his assertion, Mr OZB did not demonstrate to the Tribunal that he would be able to make decisions for his mother. He argued with her at the very start of the hearing. He stormed out of the hearing prior to it finishing because he took exception to Ms Y stating that there had been no contact from her sons to enquire about her or see whether she needed anything although she had been at the aged care facility for three weeks. Prior to leaving Mr OZB said that he had called Ms Y once but that his staff must have forgotten to pass the message on. He was extremely angry and insulting and his conduct gave the Tribunal no assurance that he would be able to communicate effectively with his mother's carers to make decisions on her behalf. The Tribunal was not satisfied Mr OZB meets the requirements to be appointed guardian for Mrs WZB.
6. The Tribunal noted that Ms LND had suggested Mr KAB as guardian for his mother. Ms LND and Ms Z said that they have found him receptive and responsive in relation to their contact regarding Mrs WZB.
7. Mrs WZB said that she trusted Mr KAB to make decisions for her. Mr KAB said that he was able to make decisions for his mother in her best interests, and that he would consult with his brother and his mother about any decisions, as well as her carers and treating practitioners. Although he lives a long way from his mother he gave examples of how responsive he is to contact about her and how willing he is to travel to regional NSW if necessary. Initially Mr KAB said that he was only willing to be appointed as guardian if he was jointly appointed with his brother, but on closer questioning, he confirmed that he was willing to be appointed as a sole guardian, but that he would include his brother in decisions.
8. On the basis of this evidence, the Tribunal was satisfied that Mr KAB meets the requirements to be appointed as the private guardian for Mrs WZB.

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 this should provide sufficient time for necessary decisions to be made regarding Mrs WZB's accommodation and services, and to establish a relationship between Mr KAB and his mother's treating practitioners. At the end of this period there may be no further need for an order.

Is Mrs WZB incapable of managing her affairs?

1. 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, [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.
2. 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, [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, [309].

1. The evidence regarding Mrs WZB's cognitive impairment and paranoia is referred to earlier and is relevant to this issue. At the hearing Mr KAB said that prior to going to hospital; his mother was able to pay her own bills if he took her to the bank. However, when he was in the bank with his mother a few months ago, he was approached by the receptionist and then the bank manager who both told him that his mother had made large withdrawals from her account in recent times. He said that it was her money so he did nothing about it, but when he has looked at her bankbook he sees that about $30,000 has been withdrawn in a number of lump sums over the last 12 months. He and his brother share the concern that Mrs WZB has been giving this money to her grandson (Mr OZB's son) who is not a trustworthy person.
2. Asked about the large withdrawals, Mrs WZB indicated that she could not recall, but suggested that if there was money missing it was because the bank was stealing from her. It was unclear to the Tribunal whether Mrs WZB had gifted money to her grandson, or he had taken it from her, or there was some other explanation for the large withdrawals. What was apparent was that Mrs WZB was vulnerable to being financially exploited because of her memory impairment and her fluctuating affections.
3. The Tribunal was satisfied from the evidence that Mrs WZB is not capable of managing her financial affairs and that a financial management order could be made if necessary and in her best interests.

Is there a need for a financial management order and is it in Mrs WZB's best interest that a financial management order be made?

1. The Tribunal heard that Mrs WZB owns her own house, and receives the age pension. She has at least one bank account and no one else is able to sign on her account(s). She has around $70,000 to $80,000 invested. Her sons are currently paying her bills. No one is able to liaise with Centrelink on her behalf and presuming that the decision will be made for her to make a permanent move to aged care, it is likely that there will be a refundable accommodation deposit (RAD) to be paid. Ms Y said that the RAD will be around $400,000, and that if the RAD is paid, her ongoing fees after this will be 85% of her pension as well as any other amount assessed by Centrelink. If the RAD is not paid the fees will be substantially higher because of interest on the unpaid RAD.
2. The Tribunal noted that it is likely that Mrs WZB's house will need to be sold to pay the RAD, or at least rented out. Currently, no one has the authority to enter into contracts on her behalf, and this is not something which can be managed informally. There is also a need for someone to be authorised to operate on her bank account to ensure that her money can be accessed to meet her needs.
3. Bearing in mind these matters, the Tribunal was satisfied that there is a need to appoint someone to manage Mrs WZB's affairs and that it is in her best interests 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 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 Act.
2. Section 25M of the 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 (NSW TAG)
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 TAG 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, freedom from 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. The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be "more apparent than real", should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family.
7. Mr OZB and Mr KAB were proposed as joint financial managers. Mrs WZB said that she might prefer the government to manage her money as she was not sure she trusts her sons.
8. The Tribunal was not satisfied that it would be possible to appoint Mr OZB as financial manager for essentially the same reasons that he was not a suitable person to be appointed guardian.
9. Mr KAB said that he only wanted to be appointed as financial manager if he was jointly appointed with his brother. He confirmed that he had never been bankrupt, not convicted of offences of dishonesty, and that he had no intermingling of financial affairs with his mother. He was willing to comply with the requirements of the NSW TAG. He has experience in managing his own finances and is generally good with money. He confirmed he would be willing to travel to regional NSW to sign documents if necessary.
10. Despite this, the Tribunal considered that it would be in Mrs WZB's best interests to appoint the NSW TAG rather than Mr KAB as he indicated his opposition to the prospect that her house may need to be sold to cover her RAD, stating that this is not what his mother would want. Whilst it is important that financial manager take into account the views of the person whose affairs they are managing, they must ultimately use their own judgement about what is in the person's best interests financially. A financial manager must be willing to consider all of the options and the Tribunal was not satisfied that Mr KAB would do this.
11. In coming to the view that the NSW TAG should be appointed, the Tribunal also had regard to the amount of work which was likely to be involved initially at least in managing Mrs WZB's affairs, and considered that it was preferable for her to have an organisation experienced in the necessary tasks appointed as manager. The Tribunal also had regard to Mrs WZB's views. The Tribunal also noted Mrs WZB's ongoing paranoid beliefs about financial matters, and considered that appointment of an independent manager would avoid the possible damage to her relationship if she blamed her son for financial decisions which she did not like.
12. On balance, the Tribunal was satisfied that the estate of for Mrs WZB should be committed to the NSW TAG.

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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: 20 December 2018