On 20 October 2017, we reserved our decision in respect of applications made by Mrs MAV for the appointment of a guardian and financial manager for her mother, Mrs NAD.
On 2 January 2018, we made a guardianship order for Mrs NAD appointing the Public Guardian for 12 months as Mrs NAD's guardian with the functions of access and services. This order will be reviewed in 12 months.
On 2 January 2018, we also made a financial management order for Mrs NAD committing the management of her estate to the NSW Trustee and Guardian.
These are our reasons for the orders made.
[2]
Background
Mrs NAD is an 84-year-old woman of Turkish heritage who has lived with her son and carer, Mr NZP, in a home in Regional NSW (A) since 2013. Mrs NAD's other children are: Mrs MAV, the applicant in these proceedings; Mr SYT; Mr TBD; Mr BXP; and Mr MCJ. Mr MCJ is Mrs NAD's son from her first marriage and he lives in Turkey. Mr BXP passed away approximately 20 years ago.
Mrs NAD and her former husband, Mr CWV, divorced many years ago.
Mrs MAV seeks the appointment of a guardian and financial manager for her mother.
In the application for guardianship, Mrs MAV raised concerns about her mother's safety and well-being. Mrs MAV asserted that Mr NZP prevents his mother from seeing other people and refuses to let anyone come to the home to see her. As a result, Mrs NAD is isolated and has virtually no contact with the outside world. The application also asserts that Mr NZP prevents contact between Mrs NAD and the applicant and her two brothers who live in Australia. Mrs MAV asserted that Mr NZP is "controlling, bullying and aggressive" towards her mother, neglects her mother and leaves her for long hours on her own in the home, and has no visitors or any help with her personal care.
In the initial application, Mrs MAV proposed that she should be appointed as the guardian for her mother. In a written submission provided in support of the initial application, Mrs MAV also suggested that her mother may need to move into residential care because of the extent of her care needs and concerns about the quality of the care provided by Mr NZP. However, by the time of this hearing, Mrs MAV no longer wished to be appointed as her mother's guardian and instead proposed that the Public Guardian be appointed in this role. Further, Mrs MAV does not believe that her mother should move into residential care as long as support services are allowed to enter into Mrs NAD's home and provide her with the additional support that Mrs MAV believes she requires.
Mrs MAV's application for a financial manager included assertions that Mr NZP has been dealing with Mrs NAD's assets for some years and has been spending her money and buying assets in his own name with her money. The application provided details about a number of property transactions that were said to disadvantage Mrs NAD. Further evidence was given about these matters at the hearing.
In the initial application, Mrs MAV proposed that she should be appointed as her mother's financial manager. However by the time of the hearing, Mrs MAV proposed that an independent financial manager should be appointed as her mother's financial manager.
[3]
Procedural history
On 11 August 2017, a differently constituted Tribunal appointed a separate representative for Mrs NAD. Mr Matthew Adam participated throughout the subsequent hearings as the separate representative.
The applications were first listed for hearing on 17 August 2017 at a location in regional NSW. On that date, a differently constituted Tribunal adjourned the hearing of both applications. The adjournment resulted from the late attendance of an interpreter in the Turkish language which significantly delayed the commencement of the hearing. At the suggestion of the separate representative and with the consent of other parties, it was agreed that an assessment of Mrs NAD's decision-making capacity should be undertaken in order to enable up-to-date evidence of her capacity to be available to the Tribunal. The separate representative indicated that funding could be sought from Legal Aid NSW to fund such an assessment and written report.
At a directions hearing conducted on 14 September 2017, directions were made concerning the timeframes for the provision of further evidence prior to the next hearing date. The hearing was listed in another location in regional NSW as this location was closer to where Mrs NAD lives in Regional NSW (A) and it would be easier for her to attend the hearing.
This hearing on 20 October 2017 took place in a location in regional NSW. Present at the hearing were Mrs NAD, Mr NZP, Mrs MAV, and three of Mrs NAD's grandchildren who are the children of Mrs MAV: Ms ZDV; Ms ZVV; and Mr EEV. Mr Matthew Adam was also in attendance.
A Level 3 NAATI-accredited interpreter in the Turkish language was also present.
[4]
Mrs NAD's views
We spoke with Mrs NAD in the presence of the separate representative and the interpreter but with all other parties and witnesses absent from the hearing room. We made the decision to speak with Mrs NAD in this manner on the basis that it would provide the best opportunity for us to obtain Mrs NAD's views without the influence of any other family member. We considered that this was important because of the allegations made by the applicant concerning the influence that Mr NZP has over his mother. We also decided that it was appropriate to do so as it would enable Mrs NAD to give evidence without being affected by the level of tension and conflict that was clearly present in the hearing room with all other parties and witnesses present.
When the other participants returned to the hearing room, we summarised the substance of Mrs NAD's evidence so that parties had an opportunity to comment if they wished to do so.
Mrs NAD, with the assistance of the interpreter, was able to confirm that she lived with her son but could not recall the address of her current residence. She told us that her son "helps me with these sorts of things". When we asked her if she knew today's date, Mrs NAD told us that she does not "have anything to do with the date". When we asked Mrs NAD if she knew the name of the town that she (and the Tribunal) were in, she told us that she thought that she was in Istanbul. When we asked Mrs NAD if she could recall the names of her children, Mrs NAD named her sons Mr NZP and Mr MCJ, and her daughter. However despite prompting from us, Mrs NAD could not recall the names of her other children. When we asked Mrs NAD if she could remember the names of friends of hers who live in Regional NSW (A) or elsewhere, some of whom have provided letters to the Tribunal concerning these applications, Mrs NAD was unable to provide their names.
In response to our questions, Mrs NAD also told us that her son is a very honest person, he does not drink alcohol, he does not go to clubs, and he helps her at home. According to Mrs NAD, her son asks her if she needs anything and if she does, he will go and get it. When we asked Mrs NAD whether she was happy, she responded that she was because her son looks after her very well.
When we explained to Mrs NAD that her daughter has made the application for guardianship because she is concerned that Mr NZP had isolated Mrs NAD from her other children and grandchildren, Mrs NAD told us that was not the case, her son was a very good person and she then proceeded to tell us again that her son does not drink or gamble.
Mrs NAD told us that she "would never go to a nursing home. I would break the head of the person who would force me out of my house using my stick".
In response to a question from us whether she was ever frightened, Mrs NAD responded by asking us, "what would I be frightened of?"
In response to a question from the separate representative about whether she would like to see her grandchildren, Mrs NAD responded, "of course". She told us that her "door was open for them".
When a similar question was put to Mrs NAD about whether or not she wished to see her daughter and her other children, Mrs NAD responded to the effect that her other children had never come to see her.
We also asked Mrs NAD questions in relation to her financial affairs.
A summary of the evidence provided by Mr NZP (which will be outlined in more detail later in these Reasons for Decision) was that:
prior to moving to Regional NSW (A), Mrs NAD was the sole owner of her property in Regional NSW (B). She had lived there for approximately seven years
the property in Regional NSW (A) in which Mrs NAD and Mr NZP currently live ("the Regional NSW (A) property") was purchased in approximately 2013
the Regional NSW (A) property was purchased for approximately $245,000 from the proceeds of the sale of Mrs NAD's Regional NSW (B) property
according to Mr NZP, Mrs NAD and Mr NZP own the Regional NSW (A) property as joint tenants
a property in Regional NSW (C) was also purchased in approximately 2013 ("the Regional NSW (C) property"); Mrs NAD contributed a sum of $160,000 to the purchase of the Regional NSW (C) property (the total purchase price was $365,000) but the title of the property is in Mr NZP's name alone
the Regional NSW (A) property has been placed on the market with the intention that Mrs NAD and Mr NZP will move to live permanently in the Regional NSW (C) property
According to Mr NZP, he and his mother have discussed the proposed sale of the Regional NSW (A) house and a move to Regional NSW (C) and are in agreement about the move to Regional NSW (C);
Mrs NAD owns a property in Turkey ("the Turkish property"), in which her son, Mr MCJ, and his family live
When we asked Mrs NAD about the home that she owned in Regional NSW (B), she could not recall that this was the case.
Mrs NAD described her home in Regional NSW (A) as a "madressa" (which we understood to be a reference to something on the nature of a religious school) and as a place that belongs to the government. When we asked whether the Regional NSW (A) property is owned by her or whether she shares ownership with someone else, Mrs NAD told us that she does not share the ownership of her home with anybody. When we asked Mrs NAD whether there were plans to sell the property and move to another place, Mrs NAD told us that this suggestion was "made up" and that she was not "thinking anything as such at the moment".
When we asked Mrs NAD whether she had given any money to Mr NZP to buy a home, Mrs NAD told us that she had not and that her son would not want that. She also told us that Mr NZP never asks anyone for money and "his money is just for him". In response to a question about whether she had given $160,000 to her son to buy a house in Regional NSW (C), Mrs NAD told us that she had not done so and questioned where she could "find that amount of money".
When we asked Mrs NAD whether she has any other property or home, she told us that she did not. Mrs NAD did not recall that she owns a property in Turkey.
Mrs NAD could not recall which financial institution she banked with. She was not responsive to a question about the source of her income and did not know whether she had any savings.
[5]
Separate representative's submissions
In relation to the guardianship application, after hearing the evidence and submissions of the parties, the separate representative submitted that a guardian should be appointed for Mrs NAD with the major issue being the need to maintain Mrs NAD's family relations.
The separate representative submitted that the evidence established a need for decision making in relation to access and services, but not in relation to accommodation, health care, or medical treatment decisions.
The separate representative also submitted that an independent guardian should be appointed and not Mr NZP on the basis, as we understood the submission, that given Mrs NAD's situation and current lack of contact with certain members of her family, it is unlikely that these issues would be addressed if Mr NZP were appointed as the guardian.
In relation to the financial management application, after hearing the evidence and submissions of the parties, the separate representative submitted that a financial management order could and should be made for Mrs NAD and that it was in her best interests for an order to be made.
In relation to the issue of who should be the manager, the separate representative submitted that given the close relationship between Mrs NAD and Mr NZP, Mr NZP should be appointed as her private financial manager, as long as he met all probity requirements, as he would be overseen by the NSW Trustee and Guardian. He submitted that the potential conflict of interest in relation to the Regional NSW (C) property could be addressed if, as suggested by Mr NZP, Mr NZP changes the title of the Regional NSW (C) property to reflect Mrs NAD's contribution. The separate representative did not address us on issues arising in relation to the Regional NSW (A) property.
[6]
Is Mrs NAD a person for whom the Tribunal could make a guardianship order?
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 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" (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 2007; 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).
In relation to the meaning of the term "social habilitation" in s 3(2) of the Act, Justice Lindsay in P v NSW Trustee and Guardian [2015] NSWSC 579 (at [303]) noted:
The expression "social habilitation"" (in the context of references to "disability", "restricted", "major life activities" and the word "requires") may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others.
As a result of these proceedings, Mrs NAD was assessed by Dr Z, Senior Staff Specialist Geriatrician with the Aged and Extended Care Service with a Local Health District in regional NSW on 12 September 2017. A report of that assessment was provided to the Tribunal and the parties.
In his written report, Dr Z noted the following:
1. Mrs NAD has a number of health conditions including a history of hypertension, obesity, osteoarthritis with reduced mobility (Mrs NAD mobilises using a walking stick and frame), and gastro-oesophageal reflux disease.
2. Mrs NAD clearly has a dementing illness which was first diagnosed in April 2014. Dr Z noted that the specialist who made the diagnosis of dementia in 2014 stated that Mrs NAD had a 12 to 18-month history consistent with cognitive impairment but also associated with visual hallucinations and vivid dreams.
3. Dr Z administered a modified mini-mental state examination (MMSE) and Mrs NAD scored 14 out of a possible 29. Mrs NAD had difficulty with orientation and time (0/5), orientation in place (1/5), calculation (0/5), and copying a diagram (0/1). According to Dr Z, Mrs NAD scored 3/3 on short-term recall and performed well on all other elements of the MMSE.
4. Dr Z noted that Mr NZP advised him that hallucinations that were present when Mrs NAD was first diagnosed with dementia in 2014 had ceased once oxybutynin was stopped. Dr Z expressed the view that it seems likely that Mrs NAD's dementing illness is related to cerebrovascular disease rather than to Lewy Body or some other progressive neurodegenerative disorder.
5. Dr Z expressed the view that Mrs NAD has a "well-established dementing illness which is moderately severe but stable and most likely due to her cerebrovascular disease". He noted that this would limit her decision-making capacity but felt that she "has a reasonable grasp of her current situation and could also have some input into her future care. For example today she clearly indicated to me (although in the presence of her son) that she wished to remain living with her son and did not wish to contemplate a move to residential care".
Criticism was made by the applicant of the manner in which this assessment was conducted by Dr Z as it was carried out in the presence of Mr NZP and Mr NZP acted as a translator throughout the consultation. The weight that we placed on the evidence given by Dr Z is addressed later in these Reasons for Decision. None of the parties nor the separate representative disputed, however, that the diagnosis made by Dr Z, namely that Mrs NAD has a well-established dementing illness which is moderately severe, is accurate.
The 2014 assessment referred to in Dr Z's report was conducted by Dr Y, Consultant Psychogeriatrician. We were provided with a copy of a report dated 10 April 2014 from Dr Y to Mrs NAD's general practitioner at the time, Dr X. Dr Y is a current member of the Guardianship Division of NCAT. He was not, however, a member of the Tribunal when he met with Mrs NAD in 2014 and nor did he take any role in these proceedings. None of the parties contested any aspect of Dr Y's report. Relevantly for these proceedings, Dr Y made the following comments:
1. Mrs NAD has (that is, at the date of the April 2014 assessment) a 12 to 18-month history which was consistent with cognitive impairment but also associated with probable visual hallucinations.
2. A CT scan showed significant evidence of microvascular subcortical pathology including diffuse white matter disease and three probable lacunes. There was some evidence during testing of a mild catastrophic reaction which would be particularly consistent with vascular cognitive change.
3. Mrs NAD had, at that time, paranoid ideas connected with probable hallucinations and also with loss of objects. She had a repetitive squirrelling behaviour that involved searching for objects and hiding them in odd places. She may also have had visual illusions and believed at times that people seen on the television were actually in the room.
4. Dr Y observed that the onset of some of these experiences may have coincided with Mrs NAD being put on oxybutynin for her incontinence which was 12 months prior. Dr Y noted that oxybutynin can trigger delirium, cognitive deterioration, and hallucinations.
5. Dr Y conducted a modified MMSE and Mrs NAD scored 12 out of a possible 29. A separate clock drawing test showed major difficulties.
6. Dr Y opined that it was very likely that Mrs NAD was suffering from dementia with Lewy Body but with mixed pathology.
7. Dr Y commenced Mrs NAD on a trial of donepezil (aricept) and recommended that Mrs NAD should cease taking oxybutynin.
[7]
Consideration
As previously noted, there was no dispute by any of the parties, other than by Mrs NAD, that Dr Z's conclusion as to the nature and extent of Mrs NAD's dementia was correct. Mrs NAD did not agree that she had any problems with her memory or any other health problems.
The applicant criticised the manner in which the assessment by Dr Z was conducted. As previously noted Mr NZP was present throughout the assessment and acted as an interpreter for his mother and Dr Z. In his report, Dr Z acknowledged the limitations of these arrangements but was of the view that it did not impact on his ability to accurately assess Mrs NAD. There was, however, no indication in his written report that Dr Z was made aware of the nature of the matters raised in the guardianship and financial management applications to the Tribunal and, in particular, allegations of neglect and elder abuse made against Mr NZP.
In relation to Dr Z's comments as to Mrs NAD's functional status and social situation, we placed limited weight on that evidence as it appears that the sole source of the information about those matters was Mr NZP.
However in relation to the conclusions drawn by Dr Z as to Mrs NAD's dementia and its severity in relation to which, as previously indicated, there was no contest by any of the parties, we accept his evidence in this regard given Dr Z's professional qualifications and expertise in the field. His conclusions were consistent with the assessment made approximately three and a half years earlier by Dr Y. We note that Dr Y's report indicated that Mrs NAD had a 12 to 18-month history consistent with cognitive impairment. Given that Dr Y's assessment took place in April 2014, the history of cognitive impairment to which he refers dates from approximately 2012. No-one, including Mr NZP and the separate representative, disputed this aspect of Dr Y's report.
Mrs NAD's evidence was consistent with the professional evidence. Mrs NAD struck the Tribunal as a dignified woman who tried to participate in the hearing and respond to our questions to the best of her ability. It was, however, evident from Mrs NAD's responses to our questions that she has significant memory difficulties and appeared unable to engage in any detailed way with many of the significant issues under consideration in these proceedings. Mrs NAD could not recall many significant aspects of her day-to-day life, including the date, the name of the town in which she lived, her own residential address, and the location of where she was on the day of the hearing. We find that the extent of Mrs NAD's cognitive impairment is such that she is unable to manage independently, she needs significant support to do so, and she is entirely reliant on others, in this case her son and carer, to manage.
Based on the evidence of her physical health conditions and the extent of her cognitive impairment, we were satisfied that Mrs NAD is restricted in important major life activities to such an extent that she requires supervision or social habilitation. She has a significant "need for services to help [her] function normally in community with others" (P v NSW Trustee and Guardian [2015] NSWSC 579, [303]).
We were satisfied that Mrs NAD is a person for whom we could make a guardianship order as she is a person who because of her disabilities, is incapable of managing her own person.
[8]
Should the Tribunal exercise the discretion to make an order for Mrs NAD?
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.
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).
In her written and oral evidence, Mrs MAV asserts, in summary, the following:
Through his actions in moving Mrs NAD from Regional NSW (B) to Regional NSW (A), Mr NZP removed his mother from her social circles in Regional NSW (B).
Mr NZP stops his mother from seeing anyone. As a result, Mrs NAD is very isolated and has virtually no contact with the outside world.
In particular, Mr NZP prevents Mrs MAV and members of her family from having contact with Mrs NAD. There is no landline in the Regional NSW (A) property. As a result, the only way that Mrs MAV and her family can try to speak with Mrs NAD is to call Mr NZP on his mobile telephone. Mr NZP will not allow contact between these family members and Mrs NAD.
Mrs NAD is being "severely neglected" and left for long hours on her own in the Regional NSW (A) home while Mr NZP travels to Sydney from Regional NSW (A). This is a five-hour drive one way so Mrs NAD is being left alone at home for a minimum of 12 hours at a time.
Mrs NAD requires significant support for her personal care needs. Mrs MAV bases this view on her observations of her mother in late-2014/early-2015 when Mrs NAD visited Mrs MAV in her home in the company of Mr NZP. Mrs MAV asserts that on this occasion, Mrs NAD was incapable of using the toilet without Mrs MAV's support in relation to every aspect of the toileting process. The evidence provided by Mrs MAV was that her mother was incontinent on this occasion and, as a result, Mrs MAV needed to change her mother's underwear and clothing. According to Mrs MAV, her mother could not manage her own personal care. Mrs NAD's hair was in knots and she required Mrs MAV's assistance to be washed, fed, and bathed.
Mr NZP disputed Mrs MAV's account of this event and also disputed that his mother requires any greater support than he is able to provide. He told us that he assists his mother approximately four times per night to go to the toilet. The only other assistance she requires is for him to prepare her clothes for the day and to put out a towel after she showers. Otherwise, according to Mr NZP, his mother attends to her own care needs.
Mr NZP denied all allegations of neglect.
In support of his position, Mr NZP submitted a report dated 28 July 2017 prepared by Mrs NAD's current general practitioner (GP), Dr W. Dr W relevantly notes the following:
He has been seeing Mr NZP and Mrs NAD as their regular GP for more than two years.
During the previous two years, Mr NZP has regularly brought his mother for any medical condition, for her repeat scripts, and for her regular blood check or health assessment.
Mrs NAD is up-to-date with her medication and her blood checks as well as with her health checks. Her most recent blood test was conducted in the week prior to the preparation of the report.
Dr W also states that "I never realised any suspicious (sic) of Mrs NAD been (sic) neglected or left without care or medical attention".
[9]
Consideration
We understand from the applicant that her allegation of neglect primarily relates to her allegation that Mr NZP leaves his mother for lengthy periods of time alone in their home in Regional NSW (A). We accept that Mrs NAD was left at home in recent years whilst Mr NZP left the home for periods of time. Mr NZP acknowledges that this was the case. There have been occasions on which she has been found outside of the home and unable to find her way back. However, Mr NZP also told us that he no longer leaves her at home for any considerable length of time because he realises that she should not be left alone for lengthy periods,
Mr NZP firmly denied any suggestion that he neglects his mother.
Although there seemed to be some suggestion in the written material provided by the applicant that Dr W is a friend of Mr NZP, this issue was not pursued by the applicant in the hearing and the content of Dr W's report was not challenged. Nor did the applicant seek to cross examine Dr W.
We placed weight on Dr W's evidence to the extent that he has been Mrs NAD's GP for over two years, regards her medical and health care as being regularly attended to, and has never been suspicious that Mrs NAD was being neglected.
We are unable to be satisfied, on the available evidence, that Mrs NAD is currently being left in her home for periods of time that place her at risk and is thereby being neglected.
There is a dispute in the evidence as to the extent of Mrs NAD's support needs. Mrs MAV bases her view that her mother requires significant support, beyond that which her brother can provide, based on her experience of her mother's needs on an occasion in late-2014/early-2015 when her mother stayed at Mrs MAV's home. Mrs MAV gave evidence in a cogent and detailed manner about her recollection of this occasion and we accept Mrs MAV's evidence as to what occurred.
It is therefore difficult to reconcile this event with Mr NZP's evidence as to his view about his mother's support needs which, in his view, appear to be minimal.
We return to this issue below.
It was not in dispute, and we accept, that Mrs NAD has not undergone any assessment through My Aged Care (or previously any aged care assessment) to assess her eligibility for additional support. Mr NZP does not believe that this has been necessary.
Nor was it in dispute that Mrs NAD is not in receipt of any community services.
Mrs MAV's assertions as to Mr NZP preventing his mother from having contact with anyone else is not consistent with the letters we received from various acquaintances and friends of Mr NZP and Mrs NAD. Some of these told us that they attended a number of social events at which Mr NZP brought his mother. The authors of these letters were not present at the hearing and were not cross examined. The content of this material was not challenged by the applicant and we accept that they indicate that Mrs NAD, in Mr NZP's company, has had social outings whilst living in Regional NSW (A).
In his statutory declaration, Mr NZP gives evidence that Mrs NAD has had contact in recent years with his children, one of whom lives in NSW and one who travels from New Zealand to visit. These members of Mr NZP's family provided letters to the Tribunal confirming these matters. We accept on the basis of this material that this contact takes place.
According to Mr NZP's statutory declaration, Mrs NAD also speaks regularly with her son in Turkey by telephone. There was no other evidence provided to corroborate this, but not much turns on this in any event.
The situation, however, is different in relation to contact between Mrs NAD and her daughter, her daughter's children, and Mrs NAD's other children.
For reasons that are not entirely clear to us but which appear to relate to conflict between Mr NZP and Mrs MAV that arose during 2015 concerning the care provided to their father, there has been a significant breakdown in the relationship between these siblings. This conflict, although denied by Mr NZP, was apparent to us at the hearing. Since that time, we accept the evidence that Mrs MAV has not had any contact with her mother. We were also told, and it was not disputed, that Mrs NAD's three grandchildren who were present at the hearing and gave evidence, have not had contact with their grandmother despite their strong wish to do so.
In a letter dated 10 August 2017 submitted to the Tribunal by Mr TBD, one of Mrs NAD's sons, he wrote:
At the present time, I don't speak with my mother because I have to go through my brother who makes it difficult. There is no landline available for me to contact my mother directly.
I would like the Tribunal to know that my wishes are for my mother to receive the best care available, to be in a safe and comfortable environment, be near her family, friends and community and finally, I would very much like to be in contact with my mother.
It was admitted in the statutory declaration and oral evidence given by Mr NZP that there is no landline in the home in which he and his mother lives in Regional NSW (A). As a result, the only way in which anyone can make contact with either Mr NZP or Mrs NAD is by way of his mobile telephone.
We accept that Mrs NAD has had no contact with these members of her family since sometime in 2015.
We also accept that those members of Mrs NAD's family who have not had contact with her in recent years are keen and anxious to have such contact but this contact has not occurred. The only way to contact Mrs NAD in her Regional NSW (A) home is by contacting Mr NZP first on his mobile telephone. Mrs NAD has no ability to instigate contact with these family members. The practical outcome is that Mr NZP controls the contact that his mother has with other people, including these family members, and no contact has taken place between Mrs NAD and those family members in the previous two years.
We had careful regard to Mr NZP's views that there is no such conflict and he indicated that should any member of Mrs NAD's family wish to have contact with her, then they are welcome to do so. He suggested that those family members could travel to Regional NSW (A), "knock on the front door", and he would let them in.
We preferred the evidence of Mrs MAV and her children that this proposal is unrealistic and that the practical reality is that there would be no guarantee that after travelling approximately 400km from Sydney to Regional NSW (A), that there would be any certainty of being able to see and speak with Mrs NAD freely in any meaningful way given the state of relations between Mr NZP and these family members. We prefer their evidence because it is consistent with the fact that contact has not occurred since sometime in 2015.
We find that Mr NZP prevents contact between his mother and her other children as well as her daughter's family by virtue of the control that he is able to exercise over his mother's activities. He is able to exercise this degree of control as a result of Mrs NAD's significant cognitive impairment, her physical frailty including mobility difficulties that we observed during the hearing, and the complete dependence she has on him.
As previously noted, we find that the extent of Mrs NAD's cognitive impairment is such that she is unable to manage independently, she needs significant support to do so, and she is entirely reliant on others, in this case her son and carer, to manage. We also find that as a result of these factors, Mrs NAD is heavily influenced by the actions and views of her son in relation to all aspects of her life. In particular, we find that she is unable because of her cognitive impairment and other health issues, to initiate her own contact or advocate for herself in relation to contact with certain family members.
We had careful regard to Mrs NAD's views as outlined previously. She expressed a desire and willingness to see her grandchildren saying that "she had an open door for them". She was more hesitant in relation to contact with her daughter and other sons and appeared to imply that she felt that these members of her family were motivated by financial gain in seeking to have contact with her. However, it was also clear in her evidence to us and the manner in which she conducted herself during the hearing that she defers to her son, Mr NZP, for virtually all decisions and opinions.
We heard from Mr NZP that it is his view that his siblings are motivated by financial gain in seeking to have contact with Mrs NAD. We formed the view that Mrs NAD was reflecting the views Mr NZP has about these matters rather than necessarily expressing her own, independent opinion. Mrs NAD's evidence also made it clear that she had no memory or understanding of the financial gain that Mr NZP has experienced as a result of the property transactions concerning the Regional NSW (A) and Regional NSW (C) properties or that these transactions have been to her financial detriment.
Mr NZP is very firmly of the view that there is no need for a guardian to be appointed for his mother on the basis that he is her primary carer and any decisions that need to be made can be made by him in consultation with his mother. The evidence before us certainly reflected that Mr NZP has been his mother's primary support and carer for a number of years and especially as her cognition has declined. We recognise that introducing the formal role of a guardian into Mrs NAD's life has the potential to create stress for their relationship. We considered that this was so in light of Mr NZP's objection to having a guardian appointed for his mother (unless the guardian were him) and, as we understood his evidence, the likely offence he would feel at having any interference in their life as he believes he is the best and only suitable carer and decision maker for his mother. Given the manner in which they have lived together for the previous 10 years, it was clear to us that we had to give careful consideration to any potentially adverse impact the appointment of a guardian may have on the relationship between Mrs NAD and her son.
We also had regard to the importance of preserving Mrs NAD's particular cultural and linguistic environment. Mr NZP told us that in Turkish culture, it is traditional for sons to take care of their mother in older age and for this reason a guardianship order should not be made (or if one is made, then he should be appointed), as he had the traditional responsibility for caring for his mother. We received no evidence about this issue other than from Mr NZP. Whilst we accept Mr NZP's evidence that he feels a strong and driving sense of responsibility for his mother, we are unable to accept that this extends to impeding or preventing contact with other significant people in his mother's family in circumstances where Mrs NAD is unable to exercise her own agency about this issue.
We also considered the principles set out in s 4 of the Act given the potential impact of the making of an order may have on Mrs NAD.
We had regard to the principle that Mrs NAD's freedom of decision and freedom of action should be restricted as little as possible (s 4(b) of the Act) and that she should be encouraged to be as self-reliant as possible (s 4(f) of the Act). We have found that Mrs NAD experiences significant cognitive impairment and as a result is unable to make her own decisions about important personal matters. We have found that she relies entirely on her son and carer to do so. Given these findings, we placed less weight on these principles than others in s 4 of the Act given that Mrs NAD's freedom of decision, action and self-reliance are already significantly diminished and the impact of the appointment of a guardian is lessened as a consequence.
We are also required to observe the principle that Mrs NAD should be encouraged, as far as possible, to live a normal life in the community (s 4(c) of the Act). We accept that this would requires us to carefully consider the informal decision-making arrangements that have been in place between Mrs NAD and her son for a number of years and that the making of a guardianship order would potentially disrupt these arrangements. As has been previously outlined, we have had careful regard to the trust Mrs NAD has in her son and the views she expressed that make clear the high regard in which she holds him.
We are also required to observe the importance of preserving family relationships (s 4(e) of the Act). We have discussed our consideration of the potential impact of an order on the relationship between Mrs NAD and Mr NZP in the context of s 14(2) of the Act. We have also considered the important relationship between Mrs NAD and her other children as well as her relationship with the children of Mrs MAV and find that these are deserving of preservation especially at this stage of Mrs NAD's life. It appeared on the evidence before us that Mrs NAD's family relationships are complex for a variety of reasons, a situation that is not unique to Mrs NAD and her family members. Mrs NAD is, however, now at a stage of her life where, given her physical and cognitive vulnerabilities, any past difficulties are likely to have less significance than the benefit to Mrs NAD in having a strong network of family to support her in the coming years. The appointment of a guardian that would enable contact to be re-established between Mrs NAD and other members of her family who share her cultural and linguistic background would also support the preservation of Mrs NAD's cultural and linguistic environment rather than diminish it.
We also took into account the principle, as it applies to Mrs NAD, that she should be protected from "neglect, abuse and exploitation" (s 4(g) of the Act).
In her application and oral evidence, Mrs MAV alleges that Mr NZP has neglected Mrs NAD and exhibits "controlling, bullying and aggressive behaviour towards" that amounts to elder abuse.
Despite Mrs MAV's allegations that Mr NZP has neglected his mother, as previously outlined we were unable to find to the requisite civil standard that these events occurred in the manner asserted by Mrs MAV. Nor have we found that allegations of bullying and aggressive behaviour were established to the requisite civil standard on the available evidence
We note that there is no definition of "abuse" in the Act. The term is commonly understood to refer to forms of physical violence against a person as well as emotional abuse. However, a more nuanced understanding of what may amount to abuse, particularly in relation to older people, is the subject of increasing study and commentary, most notably the recent Australian Law Reform Commission's Report on Elder Abuse - A National Legal Response (ALRC Report 131). In that report, the ALRC noted that "stopping an older person from seeing family and friends may also be psychological abuse or 'social abuse'" (at [2.4.9]). We have made findings as previously outlined that Mr NZP prevents contact between Mrs NAD and her other children as well as Mrs NAD's daughter's children by virtue of the control that he is able to exercise over his mother's activities as a result of her significant cognitive impairment and the complete dependence she has on him. The evidence before us was that Mr NZP is proposing to sell the Regional NSW (A) property so that he and Mrs NAD can live permanently in Regional NSW (C), a move that would increase even further the physical distance between Mrs NAD and Mrs MAV and Mrs MAV's children. We have given particular weight in this case to this principle in deciding to make an order with the specific functions set out below.
Having regard to the mandatory considerations set out in s 14(2) of the Act and after weighing the principles contained in s 4 of the Act, we were satisfied that a guardianship order should be made for Mrs NAD.
[10]
What decision making functions should be included in the order?
[11]
Access
We decided that a guardian should be appointed with an access function. In our view, this function is needed because we were satisfied that the only way for Mrs NAD to have any contact with her daughter, the children of her daughter, and family members other than Mr NZP's immediate family, will be through the appointment of a guardian. We were not satisfied that there was any other practicable way for this contact to occur. A guardian should be appointed to make decisions about the manner in which contact and access can take place between Mrs NAD and members of her family whether that occurs in Regional NSW (A) or in Mrs MAV's home. Given the reliance that Mrs NAD places on her son as a result of her cognitive impairment and the deference she has to his views, with the result that some of the views she expresses about family members are the result of adopting Mr NZP's views and are not the result of her own, independent view, it will be important for the appointed guardian to be proactive in making access arrangements so that Mrs NAD may benefit from contact with other important family members.
[12]
Services
We were also of the view that a services function should be included in the order. This will enable services to be engaged, if necessary, to facilitate contact between Mrs NAD and family members pursuant to the access function.
A services function is also needed to facilitate a My Aged Care referral and any necessary assessments associated with that referral. Whilst Mr NZP indicated that he would be open to such a referral occurring, we were not satisfied that this would occur without the appointment of a guardian to make this decision. We arrived at this view for the reason that Mr NZP has not arranged such assessments to date. In our view, Mr NZP's reporting of his mother's functioning to other health professionals, including Dr Z, did not accord with our own observations of Mrs NAD, namely in relation to her extensive cognitive limitations as well as her physical limitations. We were of the view that as a consequence, Mr NZP minimises his mother's impairments and does not believe that any further support services or assessment by a government agency is required. Given Mrs NAD's age and physical and cognitive limitations, in our view it is necessary and prudent for such assessments to occur.
[13]
No need for functions concerning health care, medical consent, or accommodation
We did not include functions in relation to Mrs NAD's health care or medical or dental treatment. The evidence before us, which we accepted, is that Mrs NAD is prescribed a number of minor medications as well as donepezil which is a major medication for the purposes of the Act. It appears on the evidence before us that Mrs NAD is taking this medication with the support of Mr NZP.
We accept Dr W's evidence, referred to previously, that Mrs NAD is brought to see him by Mr NZP for regular medical checks. It is clear that Mr NZP has been regarded as Mrs NAD's "person responsible" for a number of years and can continue to act in this role in relation to providing consent on Mrs NAD's behalf to her medical treatment.
Mrs MAV raised a concern in her evidence that approximately 10 years ago, Mrs NAD required cataract surgery but Mrs NAD refused such surgery. According to Mr NZP's evidence, his mother does not need cataract surgery and regularly sees an optometrist who has not raised any concerns about these matters.
We were unable to make a finding about whether or not Mrs NAD requires cataract surgery. On the evidence before us, we arrived at the view that Mrs NAD's health care and medical treatment needs appear to be met and are adequate at this point in time. On the evidence before us it would appear to be prudent for Mr NZP to make arrangements for his mother to have this issue investigated but we were not persuaded that a guardian needed to be appointed at this stage about this issue.
In relation to issues concerning Mrs NAD's accommodation, as we previously noted, in her original application, Mrs MAV asserted that her mother requires nursing home care. Mrs MAV had altered her view by the time of the hearing. Mrs MAV told us that she did not wish to "traumatise" her mother and that there may be no need for nursing home care if the level of care that she was provided with in her home was adequate.
We also had careful regard to Mrs NAD's clear view that she did not wish to enter into nursing home accommodation. This was also consistent with Mr NZP's views.
We were not satisfied that at this point in time an accommodation function is required.
We note, however, that apart from the issue of whether Mrs NAD requires residential care, Mr NZP plans to sell the Regional NSW (A) property and proposes that he and his mother move permanently to live in the Regional NSW (C) property. He described this in his evidence as a decision that he and his mother reached together but we are not persuaded that this was the case. The more likely scenario is that Mrs NAD has agreed to whatever proposal has been put to her by her son as a result of her reliance on him against the background of her cognitive impairment. Mrs NAD denied that any such plan existed in her evidence to us. Whether a permanent move to Regional NSW (C), which is an even greater distance from her family in Sydney than is her current home in Regional NSW (A), is in Mrs NAD's best interests from a financial perspective is a matter that will need to be determined by her appointed financial manager as is dealt with later in these Reasons. Depending on this decision, it remains to be seen whether this raises for consideration at another time a need for a guardian with an accommodation function.
[14]
Who should be the guardian?
Mrs MAV did not wish to be appointed as the guardian. She felt that it would create too much conflict between her and her brother. Mrs MAV proposed that the Public Guardian is appointed.
When we asked Mrs NAD about this matter, she confirmed that her son helps her with everything. It was not clear to us, however, that Mrs NAD understood the role of a guardian or the consequences of the appointment of a guardian. We were, however, cognisant of the fact of the reliance that she places on her son and the care that he provides to her.
Mr NZP wished to be appointed as his mother's guardian. His evidence was that he has been caring for his mother for many years and there is no other person more suitable than him to make any decisions that are needed.
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 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.
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]).
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.
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).
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]).
In considering Mr NZP's suitability to be appointed as a guardian, we were not satisfied that Mr NZP would be able to satisfy the requirement of s 17(1)(c) of the Act, namely that he would be able and willing to exercise the functions of the order. We arrived at this conclusion as we were not satisfied that Mr NZP would be able to perform this role having regard to the principles set out in s 4 of the Act and, in particular, the duty upon everyone exercising functions under the Act, including an appointed guardian, to observe the principle that recognises the importance of the preservation of family relationships. The inability of members of Mrs NAD's family to have contact with her was a significant issue that prompted the making of the application for a guardianship order and, for the reasons previously outlined, has formed the basis of our decision to make a guardianship order for Mrs NAD. Mrs NAD's current living arrangements do not enable her to have this contact. We were not satisfied that despite his evidence to the contrary, Mr NZP would facilitate contact between his mother and his sister, and his sister's family, if he were to be appointed as the guardian. We do not accept that appointing him as guardian with the function of access would enable this contact to occur, as this contact would have occurred had he been willing to facilitate it without being appointed as the guardian.
We were also not of the view that it was in Mrs NAD's interests to appoint different guardians for different functions (pursuant to s 16(3) of the Act), for example, giving the Public Guardian the access function and Mr NZP decision making authority about services. For the reasons outlined, we have included a services function in the order so that any access decisions can be supported and facilitated. We were not persuaded that were Mr NZP appointed as guardian with a services function, he would engage services for this purpose. We were also not satisfied that Mr NZP should be appointed as guardian with a services function to engage with My Aged Care services. We formed the view that were Mr NZP willing to have an assessment undertaken for support services for his mother in her home, he would have done so without the need for a guardianship order.
In these circumstances we appointed the Public Guardian for Mrs NAD.
[15]
How long should the order last?
An initial guardianship order can be made for a period of up to one year from the date on which it was made.
The Tribunal decided to make the order for 12 months on the basis that, decisions about access and services will need to be made during this time. The order will be reviewed at the end of this period.
[16]
What did the Tribunal have to decide?
The questions to be considered by the Tribunal were:
Is Mrs NAD incapable of managing her affairs?
Is there a need for another person to manage Mrs NAD's affairs?
Is it in Mrs NAD's best interests for a financial management order to be made?
If so, who should be appointed financial manager?
[17]
Overview of evidence
We were not provided with any objectively verifiable material in relation to Mrs NAD's financial affairs or the property transactions that have taken place in relation to the properties in Regional NSW (B), Regional NSW (A), or Regional NSW (C).
We find, based on her evidence as previously outlined, that Mrs NAD was unable to provide any reliable evidence about her financial affairs.
The main source of evidence about these matters was in the form of a statutory declaration made by Mr NZP on 14 August 2017 ("Statutory Declaration") that contained information about these transactions and the ownership of the Regional NSW (C) and Regional NSW (A) properties. We have made reference to paragraphs of the Statutory Declaration where relevant.
Oral evidence about these matters was also provided by the applicant.
Accordingly, the findings that we make rely largely on the evidence provided by Mr NZP and the applicant. It is likely that the appointed financial manager will need to undertake appropriate property searches and the like to confirm the status of Mrs NAD's financial circumstances.
The following matters, unless noted by us to be an assertion, were accepted by us as relevant facts established to the requisite civil standard.
[18]
Sale of Regional NSW (B) home and purchase of Regional NSW (A) property
The following matters did not appear to be in dispute.
In approximately 2005, Mrs NAD sold her home in South Sydney and purchased a home in Regional NSW (B). Both properties were held in Mrs NAD's name alone.
We were told by the applicant that Mrs NAD sold her home in South Sydney for approximately $500,000 and she purchased the Regional NSW (B) property for approximately $300,000.
Since approximately 2007, Mr NZP has lived with his mother. Mr NZP owned his own home in Regional NSW (D) and Mr NZP and Mrs NAD commuted between their homes in Regional NSW (B) and Regional NSW (D) for some time. Mr NZP did not work from around this time and was in receipt of a disability support pension. Mrs NAD was in receipt of an aged care pension.
In around 2013, Mrs NAD and Mr NZP sold their respective homes and the property in Regional NSW (A) was purchased (Statutory Declaration, [31]). Mrs NAD and Mr NZP have lived together in the Regional NSW (A) property since that time.
Mr NZP asserts that Mrs NAD sold her Regional NSW (B) property for approximately $450,000 and Mr NZP sold his home in regional NSW (D) for $200,000 (Statutory Declaration, [31]).
Mr NZP asserts that the Regional NSW (A) property was purchased for $245,000 (Statutory Declaration, [32]). This sum was paid solely from the proceeds of the sale of Mrs NAD's Regional NSW (B) property (Statutory Declaration, [32]).
Mrs NAD and Mr NZP hold the Regional NSW (A) property as joint tenants (Statutory Declaration, [33]).
Mr NZP asserts that he and his mother met with a solicitor in relation to the purchase of the Regional NSW (A) property and received advice from the solicitor about owning property as joint tenants (Statutory Declaration, [32]).
Mr NZP asserted in his evidence (Statutory Declaration, [32]-[33]) that:
Mrs NAD initially suggested that the Regional NSW (A) property should be placed in Mr NZP's name
after receiving legal advice, Mrs NAD requested that the property be held as joint tenants
at that time, Mr NZP had been living with Mrs NAD full time for approximately six years
he intended (and still does) to live with his mother for the rest of her life
he "did not consider it unreasonable that [he] would get his mother's house if she dies given that it would also be [his] primary place of residence"
holding the Regional NSW (A) property as joint tenants "was giving effect to mum's wishes"
[19]
Mrs NAD's contribution of $160,000 to the purchase of the Regional NSW (C) property
Mr NZP asserts that around the same time that the property in Regional NSW (A) was purchased, the Regional NSW (C) property was also purchased for $365,000 (Statutory Declaration, [35]). Mr NZP asserts that Mrs NAD contributed $160,000 to the purchase price and Mr NZP contributed $205,000 to the purchase price (Statutory Declaration, [35]).
The title of the Regional NSW (C) property is solely in Mr NZP's name.
We were not provided with any information as to whether Mrs NAD received legal advice concerning the purchase of the Regional NSW (C) property in circumstances where she contributed the sum of $160,000 to the purchase price but the title of the property is in Mr NZP's name alone.
Mr NZP asserted in his oral evidence that he informed Centrelink that the amount of $160,000 that his mother contributed to the purchase of the Regional NSW (C) property in 2013 was a loan from his mother to him.
In his statutory declaration made on 14 August 2017, Mr NZP states that
I am seeking legal advice in relation to changing the tenancy of the [Regional NSW (C)[ house to be held as joint tenants between Mum and I however I believe it will be necessary to obtain a formal valuation to do this and that there will stamp Duty and Capital Gains Tax implications.
At the hearing, Mr NZP told us that he had made enquiries and that making changes to the title of the Regional NSW (C) property would cost in the vicinity of $10,000 and that neither he nor his mother could afford this. Accordingly, he did not propose to proceed with changing the title of the Regional NSW (C) house.
At the hearing, Mrs NAD's grandson, Mr EEV, submitted that that if the Regional NSW (A) property were to be sold, then part of the funds from that sale could be used to pay for the change in the title of the Regional NSW (C) home. Mr NZP's evidence indicated that he had not previously given this option any consideration but he indicated that he would be willing to consider it.
[20]
Property in Turkey
It was not in dispute, and we accept, that Mrs NAD also owns a property in Turkey. Mrs NAD's son, Mr MCJ, and his family live in this property.
There was, however, dispute between Mr NZP and Mrs MAV as to when this property was purchased and the amount of the purchase price.
Mr NZP gave evidence that the property in Turkey was purchased by his mother in 2013 for approximately USD$50,000 and that the title of the house is solely in her name (Statutory Declaration, [44]). Further in 2014, on another trip to Turkey, Mrs NAD spent approximately "USD$20,000 or USD$30,000" to renovate the property (Statutory Declaration, [45]).
Mrs MAV disputed that the purchase of the property in Turkey took place at this time and told us that her mother purchased the property approximately 20 years ago. She disputed that any purchases of property in Turkey were made by her mother in 2013 or 2014.
In the absence of any corroborating documentary or other evidence about this particular property transaction, we were unable to arrive at a finding as to when it occurred. It was not ultimately necessary for us to do so given other findings that we have made as to Mrs NAD's financial circumstances. We did, however, accept that Mrs NAD owns a property in Turkey and that she does not receive any income from it.
[21]
Income and expenses
It was not in dispute that Mrs NAD is in receipt of a Centrelink pension of approximately $400 per week (Statutory Declaration, [49]).
Mr NZP told us that Mrs NAD banks with an Australian bank. Her pension income is paid directly into this account and the account has a current balance, according to Mr NZP, of $1,500. Mrs NAD has no other savings, investments, or other sources of income.
Mr NZP is a signatory to Mrs NAD's account (Statutory Declaration, [50]).
Mr NZP asserts that he and his mother share their living expenses. He accesses Mrs NAD's account with his authority as signatory to pay for some of their combined living expenses and Mrs NAD's personal expenses such as medication (Statutory Declaration, [50]). Mr NZP states in his statutory declaration (at [50]):
I do not use Mum's money for my own personal purchases but I estimate that we each pay approximately half our combined living expenses (such as food, bills such as house rates, petrol and holidays etc). We don't keep a record of who has paid for what, we have been living together and sharing our living expenses this way for about a decade.
Mr NZP is in receipt of the disability support pension. He has received the Carer's Allowance, amounting to approximately $60 per week, for the last four or five years (Statutory Declaration, [47]).
[22]
Other issues
The evidence provided to us concerning the sale and purchase of properties that involved Mrs NAD's funds since the sale of her South Sydney property in 2005 results in uncertainty as to how an estimated $115,000 of her funds were disposed of given her current savings of $1,500.
This figure of $115,000 arises from the written and oral evidence provided by Mr NZP concerning the property transactions outlined previously including his evidence that Mrs NAD purchased and renovated a property in Turkey in 2013/2014 (which, as previously noted, Mrs MAV disputes). Mr NZP told us that his mother had been on three holidays to Turkey since 2005 and had spent money on gold bracelets whilst she was in Turkey which may account for some of her expenses. He also told us that when his mother moved to Regional NSW (B) and shortly thereafter, she was managing her own financial affairs and he was unable to provide an explanation as to how the sum of $115,000 was spent by his mother other than the matters he outlined.
In the absence of any documentary evidence to corroborate the matters outlined by Mr NZP or any other material relating to Mrs NAD's banking records or financial dealings, we are unable to arrive at any findings to the requisite civil standard concerning the disposition of a sum in the vicinity of $115,000 since 2005. Since that time, Mrs NAD presumably managed her own finances until she required support to do so due to her cognitive decline. As is outlined in the health professional evidence referred to later in these Reasons for Decision, Mrs NAD was diagnosed with dementia in April 2014 and by that time, according to the evidence, had a 12 to 18-month history consistent with cognitive impairment. The relevance for the purposes of these proceedings is that there did not appear to be dispute between any of the parties that a significant sum of Mrs NAD's funds are unable to be accounted for.
[23]
Legal advice sought by Mr NZP and will executed on 11 August 2017
Mr NZP told us that as a result of the applications made by his sister, he sought legal advice. In his statutory declaration he states (at [36]):
After receiving advice from my solicitor recently however (in the context of these Proceedings), I have come to understand that if I were to pass away before Mum without making a Will, the house in [Regional NSW (C)] would probably go to my children and not to Mum. This was never my intention so I have recently made a Will leaving everything to Mum should she survive me.
A copy of the will made by Mr NZP on 11 August 2017 ("the August 2017 will") was annexed to his statutory declaration and makes Mrs NAD the sole beneficiary of his estate should Mr NZP pre-decease his mother.
We provided Mr NZP with the opportunity to respond to the suggestion that the August 2017 will, in which he made his mother the sole beneficiary of his estate, only provides Mrs NAD with limited protection in terms of her financial situation as he could change his will at any time and remove his mother as the beneficiary of his estate. In addition, the August 2017 will only has a direct bearing on Mrs NAD's financial situation upon Mr NZP's death, and only if Mr NZP pre-deceases his mother.
Mr NZP's responses to these matters, in summary, were:
He loves his mother and would never leave her homeless.
He is only trying to make things "happy" for his mother.
Nothing he has done in relation to his mother has been about greed. The making of the August 2017 will is a form of protection for his mother's wealth.
Mr NZP acknowledged that it was only as a result of the proceedings instituted by his sister that he made the will.
He described himself as having been "careless" by not making a will to protect his mother's interests at an earlier time.
He would never compromise his mother's future.
Once the Regional NSW (A) property is sold, Mr NZP intends to place the entirety of the net sale proceeds into his mother's bank account.
Mr NZP acknowledged that placing all of the potential sale proceeds of the Regional NSW (A) property into his mother's account could have an impact on his mother's Centrelink entitlement. He was not certain of what the impact would be.
[24]
Is Mrs NAD incapable of managing her affairs?
We were satisfied that Mrs NAD is incapable of managing her own financial affairs. This is based on Mrs NAD's evidence to us in which she was unable to recall virtually any aspect concerning her financial and property affairs. Her evidence was consistent with the professional evidence previously outlined provided by Dr Z concerning the extent and impact of Mrs NAD's dementia which he described as moderately severe. No one at the hearing, including Mr NZP or the separate representative, disputed that Mrs NAD is incapable of managing her affairs.
We were satisfied that Mrs NAD is unable to deal with her own affairs in a reasonable, rational, and orderly way with due regard to her present and prospective wants and needs and those of family and friends without undue risk of neglect, abuse, or exploitation (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]). The Tribunal was therefore satisfied that Mrs NAD is incapable of managing her own affairs.
[25]
Is there a need for a financial manager to be appointed?
The Tribunal was satisfied that there is a need to appoint a financial manager for Mrs NAD.
The separate representative agreed that this was the case.
[26]
Regional NSW (A) property
The evidence as to the purchase of the Regional NSW (A) property is set out above.
The only available evidence as to the reason why the Regional NSW (A) property is held by Mr NZP and Mrs NAD as joint tenants is that of Mr NZP. Mrs NAD, for the reasons previously outlined, is unable to recall or provide evidence about this transaction.
We accept that it is possible that Mrs NAD may have indicated her agreement to the purchase of the Regional NSW (A) property with Mr NZP as joint tenants. However, it is unclear that this was an informed decision by Mrs NAD.
Mrs NAD was, at the time, already dependent on her son for companionship and providing assistance with her day-to-day needs. According to the report of Dr Y dated 10 April 2014, by the time of his assessment, Mrs NAD had a "12 to 18 month history consistent with cognitive impairment but also associated with visual hallucinations and vivid dreams". This was attributed, in part, to medication that Mrs NAD was taking at that time but Dr Y also diagnosed Mrs NAD with dementia. The 12 to 18-month period referred to by Dr Y includes 2013 when the property transactions took place.
Mr NZP asserts that he and his mother met with a solicitor in relation to the purchase of the Regional NSW (A) property and received advice from the solicitor about owning property as joint tenants (Statutory Declaration, [32]). We were not, however, provided with any other information about the identity of the solicitor, the advice that was provided or whether Mrs NAD was separately or independently advised about the purchase of the property as joint tenants in circumstances where the entire purchase sum was provided by her. We find it unlikely that any separate or independent legal advice was provided to Mrs NAD.
We find that the purchase of the Regional NSW (A) property, and the outcome that Mrs NAD and Mr NZP hold the property as joint tenants despite Mrs NAD contributing the entirety of the purchase funds, occurred at a time when, on the available evidence, Mrs NAD was reliant on her son, was experiencing cognitive impairment, and possibly experiencing the adverse side effects of other medication, all of which would have increased her vulnerability. We were not satisfied on the available evidence that Mrs NAD had independent legal advice about the matter. The purchase of the Regional NSW (A) property on this basis is not serving Mrs NAD's interests given the other significant financial transaction relating to the purchase of the Regional NSW (C) property that we deal with below. The outcome of these transactions, both of which we are told occurred in 2003 in the circumstances outlined, have left Mrs NAD in a poor financial position whilst benefiting Mr NZP.
If any property transactions are to take place in relation to the Regional NSW (A) property, in relation to which Mrs NAD is a joint tenant, she is not capable on the basis of the evidence before us of undertaking any aspect of these transactions on her own behalf. There is no other form of substitute decision-making in place for Mrs NAD, such as an enduring power of attorney. A financial manager is therefore required if property transactions are to take place.
However, a more critical issue is whether in fact any property transaction should take place in relation to the Regional NSW (A) property. A financial manager is needed to consider whether any steps should be taken to reflect that the Regional NSW (A) property was purchased with Mrs NAD's funds. Whether the sale of the property, as proposed by Mr NZP, is in her best interests also requires careful consideration by a financial manager particularly given the impact such a sale may have on her Centrelink entitlements.
Such a decision and consideration is intimately related to considerations about the Regional NSW (C) property.
[27]
Regional NSW (C) property
The evidence as to the purchase of the Regional NSW (C) property is set out above.
We were not provided with any corroborating documentary or other evidence to support Mr NZP's assertion that the sum of $160,000 that Mrs NAD contributed to the purchase of the Regional NSW (C) property was a loan to him from his mother. There was no evidence before us of any steps that Mr NZP has taken to repay that amount.
Mr NZP's actions in relation to investigating a change in the title of the Regional NSW (C) property to reflect Mrs NAD's contribution of $160,000 towards the purchase price of the property is also, in our view, inconsistent with the amount being a loan.
For these reasons, we do not accept that this was a loan. We find, instead, that a significant contribution was made by Mrs NAD to the purchase price of the Regional NSW (C) property that is not reflected on the title of the property. We are unable to arrive at a firm finding about the precise amount contributed by Mrs NAD given that we were not provided with any corroborating documentary evidence about this transaction. This will no doubt be a matter for the appointed financial manager to determine.
We formed a view that a financial manager is needed to determine the most appropriate pathway for Mrs NAD in relation to these properties. Currently she has only a 50% share in the Regional NSW (A) property and has no legal title to the Regional NSW (C) property despite the undisputed contributions she has made to both. This clearly leaves her in a precarious financial situation particularly given the likelihood of her increasing care needs given her age and disabilities. In arriving at the view that a financial manager is needed to consider these complex matters, we took into account that Mr NZP, according to his statutory declaration at [36] and in his oral evidence, has sought legal advice following the making of these applications, his acknowledgment that he has been "careless" in relation to these matters and that he has executed a will that makes Mrs NAD his primary beneficiary should she survive him. Regardless of this, we were not of the view that the making of the August will is sufficient to address the financial circumstances in which Mrs NAD finds herself at this point in time. It is possible for Mr NZP to change the will at any time although he denies that he would do so. In any event, the terms of the will only have an impact on Mrs NAD's financial circumstances on Mr NZP's death and do not address her financial circumstances now. It is important in our view, given Mrs NAD's age, vulnerability, and likely future needs, to have a financial manager examine these matters and decide what is most appropriate and in her interests.
[28]
Is it in Mrs NAD's best interests for a financial management order to be made?
The Tribunal was satisfied that it was in Mrs NAD's best interests to make a financial management order. Given the current state of Mrs NAD's financial position, it is in her interests that consideration be given to all possible avenues to improve that position.
We also considered the principles set out in s 4 of the Act given the potential impact that the making of a financial management order may have on Mrs NAD in light of the evidence of the close and interwoven way her finances and that of her son have operated for many years. We undertook a consideration of the application of these principles in relation to the making of the guardianship order for Mrs NAD and we adopt the observations we made in that context to consideration of the financial management application. We recognise that the making of a financial management order may have the effect of disrupting the day-to-day running of the household. Nevertheless, our paramount consideration must be Mrs NAD's welfare and interests (s 4(a) of the Act) and that Mrs NAD should be protected from exploitation (s 4(g) of the Act). Given the findings we have made as the current state of Mrs NAD's financial circumstances, we have given greater weight to the need for such protection and formed the view that it is in Mrs NAD's interests to make an order.
[29]
Who should be appointed as financial manager?
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.
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.
In relation to the appointment of a family member as a private financial manager, in P9/2000 [2011] NSWSC 49, Hallen AsJ observed:
21 I accept that there are inherent advantages in A's estate being continued to be managed by a family member, with appropriate advice or expertise, rather than by a statutory body, particularly if the estate is of modest size, if there is no conflict of interest and duty, and where a relationship of love and affection between the respondent and the managed person is established.
22 I remind myself, also, that when exercising the discretion, the Court bears in mind that, ordinarily, members of the community consider that an outside manager is a measure of last resort: see Re M (1988) 2 VAR 213; Re R [2000] NSWSC 886 at [32].
23 In Re L [2000] NSWSC 721, at [7] and [12], Young J (as his Honour then was) recognised that a responsible family member will often be best placed to manage an incapable person's affairs provided there are minimal conflicts of interest or, if there are conflicts of interest, that they are properly dealt with.
24 In Holt v The Protective Commissioner (1993) 31 NSWLR 227, Kirby P (as his Honour then was), with whom Sheller JA and Windeyer AJA agreed, identified the advantages to a protected person of having a family member appointed as manager of his estate as including:
(b)
...
(ii) the capacity of the protected person, if disabled, to interact with his or her manager so that, so far as possible, within the disability which has led to the appointment, such person may remain in charge of, or at least able to influence, the broad directions of the management of the estate;
(iii) the ingredient of love and affection and unquestioning devotion to the protected person which an appropriate family member can add to the task of management. Whilst the office of manager is, by its definition, concerned with proprietary and financial matters and involves the prudent control of the property and like interests of the protected person, in the nature of things the manager of the estate of a protected person is more likely than a general trustee or receiver to become involved in decisions which affect the protected person's quality of life. A lifetime knowledge of the person and a devotion to his or her interest may contribute to that quality. It may more readily be secured by the appointment as manager of a family member with the requisite knowledge and motivation."
Later 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.
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].
Mrs MAV did not wish to be appointed as her mother's financial manager as she believed it would create too much conflict within the family. The Tribunal asked whether there was any other family member that may be willing to take on this role. Mrs MAV mentioned an aunt, a sister of Mrs NAD's husband. However, it did not appear that any enquiries had been made of this person and her willingness or suitability to be appointed as a financial manager and this was not pressed.
Mr NZP expressed a very firm view that, should a manager be appointed, then he should be appointed in that role.
We accept the evidence of the close relationship between Mrs NAD and Mr NZP, the trust and reliance she places on him, and his knowledge and day-to-day care for her. These are important factors that we weighed in favour of Mr NZP's wish to be appointed as his mother's financial manager.
In our view, however, Mr NZP was not a suitable person to be appointed as his mother's financial manager. We arrived at this finding on the basis that the conflict between the financial interests of Mrs NAD and Mr NZP is such that an independent manager needs to be appointed.
We took into account the evidence that Mr NZP has taken a number of steps since the making of the application for financial management to address some of the matters raised in the application. He has sought legal advice, he has acknowledged that his mother's financial situation in terms of the ownership of the two properties should be addressed, and he has made a will that makes his mother the beneficiary of his estate. However, the decisions that a financial manager will need to consider, such as whether the title of the Regional NSW (A) property should remain in its current form or whether it is in Mrs NAD's interests for the sale of the Regional NSW (A) property to proceed, are not decisions that we believe Mr NZP can make with his mother's best interests as the sole consideration because they directly impact on his interests in those properties. This creates a conflict of interest that we believe cannot be overcome, as appeared to be suggested by the separate representative, by the oversight provided by the NSW Trustee and Guardian. Similarly, we have found that a financial manager needs to consider carefully how to resolve issues around the legal ownership of the Regional NSW (C) property bearing in mind Mr NZP's assertion that the sum of $160,000 that Mrs NAD contributed to the purchase of the property was a loan from her to Mr NZP. We have earlier expressed our finding about this assertion and do not believe that he could make decisions giving primacy to his mother's interests given his interest in the Regional NSW (C) property.
We accept that Mr NZP sees these matters very differently. His very strongly expressed view to us throughout the hearing and in all of his written material was that he loves his mother and he intends to care for her for the rest of his life and he intends to do so by living with her and ensuring that she gets the best possible care. We accept that these are his intentions and we have carefully weighed the relevant principles in s 4 of the Act in arriving at the view that Mr NZP is not a suitable person to be appointed in this role. We have considered the principle that Mrs NAD should be entitled to live as normal a life in the community as possible with a supportive family member assisting her in the management of her affairs as opposed to a financial manager from outside the family. We have also had regard to the important family relationship between Mrs NAD and Mr NZP and the potential impact that a financial management order may have on this relationship. It is certainly foreseeable that given that their day-to-day finances are so entwined, that the making of an order with an independent manager for Mrs NAD may create difficulties and stresses for them. We have also had careful regard to Mrs NAD's views and the clear trust and reliance she places on her son. However, we could only give Mrs NAD's views limited weight, given that Mrs NAD had little, if any, memory of the properties that she owns, the transactions that have been undertaken, or the funds that she has provided towards the purchase of the Regional NSW (A) and Regional NSW (C) properties.
Having carefully weighed these considerations, we determined that Mrs NAD's interests are paramount, that these interests require the appointment of an independent financial manager and that it is in Mrs NAD's best interests to do so.
[30]
Recommendation
Having recognised the stress that a financial management order may place on the day-to-day living arrangements of Mrs NAD and Mr NZP, the NSW Trustee and Guardian may consider whether steps can be taken to alleviate any such difficulties. This may, for example, involve consideration of giving Mrs NAD and on her behalf, Mr NZP, access to part of her pension income to the extent that it does not impede any other actions that the NSW Trustee and Guardian may need to take on Mrs NAD's behalf in relation to the Regional NSW (A) and Regional NSW (C) properties.
[31]
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: 25 January 2018