CD v EF & Anor

Supreme Court of NSW|2018-04-27|Before: Slattery J

924, Steven & Sons Ltd) Category: Principal judgment Parties: Plaintiff: CD Second Plaintiff: GH First Defendant: EF Second Defendant: AB, by her tutor Jeremy Neil Glass Representation: Counsel: Plaintiffs: N. Kirby First Defendant: J. Van Aalst Second Defendant: H. Bennett

Solicitors: Plaintiffs: Anthea Mcintyre, Mcintyre Legal Pty Ltd First Defendant: John Hertz, John Hertz & Associates Second Defendant: Tamara Jayne Goodwin, Glass Goodwin Public Guardian: Ms B Williams (Acting Principal Guardian) New South Wales Trustee and Guardian: Ms R. Sawtell File Number(s): 2017/310133 Publication restriction: No

AB's Early Life

The story of AB's early life closely informs the issues for decision. Her family have faithfully and respectfully documented critical parts of AB's personal narrative which took place in Europe. It was available in evidence to the Court. Words are not adequate to convey what AB endured in those years. But its continuing effect upon her is painfully apparent, as these proceedings clearly show.

New Life and Migration from Europe to Australia - 1946 to 1995

AB married her husband, KB, in 1946. They had their first child, CD, soon after the marriage, and their second child, EF, a few years later. They migrated from Europe to Australia in late 1964-early 1965, and settled in Sydney. A wider family circle also grew in Australia. They developed a wide circle of friends, some of whom were emigres like themselves but many of whom were not.
And they were successful. KB and AB opened and conducted a prosperous and well-known business ("the Business"). When KB and AB retired, the Business remained a passive investment vehicle, receiving rent. By then it owned a mixed used three level unencumbered building from which they had conducted the Business. They remained its sole shareholders until KB's death in 2006, after which AB continued for many years as its sole shareholder.
KB and AB's own family grew. CD married and had two children (one of whom is, as previously mentioned, the second plaintiff), who are now both married with their own children, CD is described as "retired" but the evidence indicates an involvement in managing the family's assets.
EF also has two children. EF works in full-time employment. EF's long-term partner died in 2009 and EF is now in a personal relationship with NP, who features in part of the evidence.
This middle period does not have to be detailed further in these reasons, although parts of it are mentioned later in relation to the disputes that arose between CD and EF.

From the Power of Attorney to KB's Death - 1995 to 2006

On 2 April 1995, AB and her husband KB executed a Power of Attorney appointing EF as their sole attorney. But the Power of Attorney was not registered until 23 June 2014, well after the present hostility emerged between CD and EF.
EF has explained why they think KB and AB appointed them, rather than their older sibling, as their sole attorney. They say that their parents were concerned about CD's spouse, gaining influence over their financial affairs, because they did not trust the spouse. It is not necessary for the Court to decide the merits of this choice or whether there was any basis for EF's view on this question. But whatever KB and AB's reasons for appointing EF their sole attorney and not making the siblings joint attorneys, the decision led to a growing estrangement between them. Indeed, EF says that the decision "led to [CD] developing an enduring animosity towards me over the years". The Court accepts that KB and AB's decision about the Power of Attorney was at least one of the reasons for the estrangement between the two siblings. Whether or not it was the only reason is not necessary for the Court to decide in order to resolve the issues in these proceedings.
KB began to develop Alzheimer's-related dementia in about 2001. Initially, AB cared for her husband as at first she was alert and able to do so. But it became more difficult for her over the years. They both received increasing support from paid carers from about 2004. As their attorney, EF arranged for the retaining and payment of these carers.
But in 2005, AB was also diagnosed with Alzheimer's-related dementia. Since then, her dementia has continued to progress, shedding her more recently acquired memories and capacities but retaining those from her earlier life. She now has very limited mobility, is mostly non-verbal and requires full-time care. She has become more prone to urinary tract infections and has a history of reduced kidney function. When AB speaks now, her language has become more limited; English is no longer available to her and she reverts back to her mother tongue.
I accept EF's evidence that, from about 2002, EF gradually took over management of their parents' financial affairs. I accept that, from about this time, EF managed leases, collected rents, banked income and gave instructions for tax returns for both KB and AB as they became less mobile and their capacities weakened. That EF performed these functions is consistent with the decision their parents had made to appoint EF as attorney, rather than CD.
EF says that EF has neither sought nor claimed remuneration nor benefit for their time and effort in administering their parents' financial affairs. But whether or not this claim can be accepted must await until a full accounting takes place.
But despite their other differences, there was considerable co-operation between CD and EF about the administration of the Business's affairs. At EF's request, CD has over many years annually signed company accounts and company tax returns co-operatively. This is not an area of immediate dispute between the siblings. AB, CD and EF still continue as directors of the Business.

CD and EF Become Estranged - 2004

CD and EF's relationship is now extremely hostile. Although once close, and whilst surviving under increasing strain from 1995, the siblings' relationship broke down completely in around 2004, shortly before their father died.
In the course of their oral evidence, both siblings confirmed that their relationship had collapsed. EF says it has "irretrievably broken down". Neither of them foresees even the possibility of the relationship repairing. That breakdown means it is impossible to try and bridge consensually the differences they have in these proceedings. Mediation has been tried and failed.

From KB's Death to Entry into the Nursing Home - 2006 to 2017

KB died in 2006. His death was preceded by a traumatic event that yet further divided the two siblings. In early 2006, CD claims that EF reduced the number of hours which the carers worked. CD says that EF did this without consulting either AB or CD. CD says that AB's health had by then deteriorated significantly and that her dementia had progressed to the stage of becoming dangerous to her husband. CD also says that the reduction in the hours committed by the carers meant that an increasingly unbearable burden fell upon AB to care for KB.
In this context, a tragic incident occurred. In March 2006, AB gave KB a bath without testing the temperature of the water before he stepped in. The water was far too hot. KB suffered grave burns to much of his body. He was rushed to hospital. But he never returned home. At his age, the trauma of the burns appears to have overwhelmed him and contributed to his death. He passed away in hospital about a month later.
However bad the relationship was between CD and EF before this, this event strained it to breaking point. It is CD's declared belief, repeated more than once in these proceedings, that if EF had not reduced the number of hours worked by the carers then this incident would never have occurred and their father would not have died such a painful and tragic death. As will be seen below, GH was very effectively cross-examined by Mr Van Aalst about this event. GH's evidence about it inclined the Court not to appoint GH as AB's committee of the person.
KB's tragic death galvanised CD even further to ensure that AB received all the care and support she would need in her final years. From about the time KB died in April 2006, AB had private daytime and overnight carers. A carer named RS moved into AB's home to stay with her at night. RS has cared for AB for over 11 years every afternoon from 5pm until 9am the following morning.
CD and EF had different views about the carers; their qualities, and the number really required. The detail of these differences does not now much matter because they were largely managed to reduce family conflict by sibling largely avoiding sibling.
And both siblings focused on AB's growing needs. Principal among them is AB's undoubted fear of sleeping alone at night. The evidence of family members and the medical evidence all support the Court's conclusion that she holds this fear. She has made her profound fear of sleeping alone known to her children and grandchildren well prior to her starting to lose capacity in 2005. CD says, and I accept, that well before 2005, AB pleaded with her eldest child that "she never be left alone". AB expressed this wish in different ways to each of her children and grandchildren but the common theme was that her experiences in the War left her frightened of sleeping alone at night in her bed. The Court fully accepts that AB's War experiences have left her with this deep personal need for human comfort at night.
Between 2006 and 2017, AB's care at home was organised to meet this need. RS would sleep with AB in her king sized bed and hold her hand every night. Other carers would come in by day. I accept that partly because of this shared experience, AB and RS are very close.
I accept that over many years AB's relationships with her carers, particularly with RS, have become very close, almost as close as family. One of the issues between CD and EF is the importance of RS in AB's life. On this, the Court accepts the evidence of GH. The relationship between the two is "indescribable" and RS "considers [AB] her mother". RS "does all the hard stuff" and does so "with a smile". And she "loves her like she's her own mother" and "my grandmother knows... RS, she smiles for her...". AB "listens to whatever RS directs her to". GH concludes, "I would be saddened if she ever had to leave. I would think her experience is irreplaceable she knows my grandmother. She can pick up the first sign of when she is unwell, which will within a few hours it will turn into a delirium."
But one aspect of this evidence about RS is perhaps only part of the story. GH says that RS, "Can pick up instantly when she takes her nappy if there's a UTI". Whilst the Court accepts that RS may be reasonably alert about AB's infections, the Court also accepts the medical and other evidence that before AB went into the Nursing Home, she did have a higher incidence of UTls than she does now. The Court accepts the other medical evidence that AB would need qualified and skilled nursing care if she is to go back home, which should cure this problem.
AB chose RS and these other carers. They have been with her for over 11 years and they understand her. CD wants the same carers to continue, if they possibly can. EF points out that AB has the carers attend upon her at the Nursing Home in addition to the staff provided there.
As will be seen, such personal overnight care is arguably not readily available in a nursing home. This is the principal reason why CD now believes it would be in their mother's best interest to return to her home. CD wants RS and the other two carers to provide professional support during the day and right throughout the night at home.
But EF says that there were good reasons why AB had to enter a nursing home. EF gives a history of AB suffering a series of falls and fall-like incidents and says that a range of medical complications were increasing and risking serious accident for AB. AB's general practitioner supported the move to a nursing home.
A strong contest between EF and CD exists about the decision to place AB into institutional care, a series of events to which these reasons now turn.

The Transfer to the Nursing Home - September 2017

On 18 August 2017, an Aged Care Assessment Team ("ACAT") assessment was conducted on AB. The results of the ACAT assessment led to the decision to admit her to the Nursing Home.
On 12 September 2017, EF took control of events and transferred AB to the Nursing Home. Throughout the hearing, AB was at the Nursing Home, although, as will be seen, shortly after the hearing, the Public Guardian has proposed a trial period back at her home.
The pre-existing brittle relationship between CD and EF and their poor levels of prior communication made EF's decision to move AB into the Nursing Home and to take control of that process a time of heightened emotion. It had the potential for mistrust and misunderstanding on both sides, a potential that was realised.
EF presented the move to the Nursing Home to CD as one for respite care. EF's email of 7 September 2017, foreshadowing the move to CD, opened with the words, "[CD], I would like to inform you that I have commenced the process of potentially admitting mum to [the Nursing Home] …". The email proceeded: "I have made this decision as quite frequently it is becoming more and more difficult for one person to be able to look after mum properly and I am extremely concerned for her well being and safety. You are no doubt well aware of this. Only recently there have been several incidents when mum suddenly sits down on the ground or has had falls and the one carer who is with her cannot get her up alone. It's been lucky that I or [NP] have been available to help lift her off the ground. I fear for the time none of us are instantly contactable an available to attend to such an emergency. As you also known when Mum has been ill it is impossible for one person to dress, wash or even move her. Her doctor suggested and believes that mum would benefit from the environment at [the Nursing Home] despite the move and I sincerely think mum would be extremely happy in a place like the high care [the Nursing Home], especially as she could continue having the same carers as she has now visit her and look after her there."
EF evoked AB's wellbeing and safety as paramount, indicated that AB had been assessed as a suitable candidate for the Nursing Home, and then said, "I was waiting for the admissions person to come back to me when a room becomes available which has in fact happened today".
There was dispute about how long EF had in fact known about AB's proposed admission before this email was sent. On the evidence, it is likely that EF knew at least for a few days before this. EF concluded this email as follows: "I would propose trying mum out on respite for two to four weeks with the view of her staying if we all see she is well and happy. I hope in mum's best interest you can put all your feelings towards me aside and assist in this process. I would be happy to meet you with the lovely lady… who is the [the Nursing Home] accommodation manager."
CD replied the following day. CD indicated to EF that CD had met the accommodation manager and would transport AB to the Nursing Home for "respite admission". But CD suggested that the carers, including RS, would be necessary because the AlN to patient ratio at the Nursing Home was one to six.
But the same day, CD's lawyers, McIntyre Legal, also joined the correspondence. They wrote to EF's lawyer questioning the decision to place AB in the Nursing Home.
EF did not reply to that letter directly to CD until 21 September 2017. EF's email of 21 September 2017 made clear the possibility of AB becoming a permanent resident at the Nursing Home and said the following: "Since mum became unwell I have been her 'person responsible' under the Guardianship Act. In that role I have made all necessary decisions on mum's behalf regarding her accommodation, healthcare, medical treatment and the provision of services. Let's continue to fulfil the role of mum's wishes and in her best interests. You will always be mum's [child] and my [sibling] and as the person responsible I welcome any views you may have regarding mum's ongoing welfare. Until fairly recently I thought mum would always remain in her own home. As you know that is now a risk to mum and to her carers, and alternative arrangements need to be considered. My current plan is to monitor how mum is getting on at respite at [the Nursing Home], and if she settles in as comfortably as she has to date, then I would expect that placement to become permanent. [CD], in our mum's best interests and in the preservation of her dignity and wellbeing, I hope that we can develop and maintain a positive communication. Finally, our father and our mother always wanted nothing more than happiness, harmony and health for all their loved ones. […] I hope we can fulfil that wish and ensure our mum has a very good year and that we can see past our differences in mum's best interest."
EF was cross-examined to suggest that this was too gracious a letter to be genuinely representative of the kind of correspondence that had been passing between the siblings before this. It was suggested that this was a "lawyer's draft" in anticipation of litigation designed to present an acceptable face on EF's attitude to their sibling.
Whether or not that allegation is correct, there is certainly a basis for the Court by comparing the history of the correspondence between these siblings to conclude that there had been an improvement in the tone of correspondence from EF by this time. But more importantly the making of such recriminatory allegations shows just how poor the relationship between the two siblings has now become.
The move to the Nursing Home brought on this litigation. CD and EF disagree about the appropriate accommodation for their mother. They each have deeply held but different convictions about where she should live. CD wishes for her to return home with 24 hour care and support. EF believes that it is in their mother's best interests to remain at the Nursing Home. Their respective positions on the move to the Nursing Home and its consequences may be shortly summarised, followed by some findings about financial transactions that increased the background tension between the siblings.
EF's Position. EF believes that AB has now settled comfortably into the Nursing Home, and that she is flourishing there. EF says AB is "happier and healthier than she has been in a long time". In EF's opinion, AB has not had any urinary tract infections since she has moved into the Nursing Home. The medical evidence about the move is separately considered.
Looking beyond the issue of the move to the Nursing Home, EF believes that CD is actively hostile and mistrusting towards EF. EF says that, despite best efforts to be conciliatory, CD "continues to harass me about my exercise of powers as mum's attorney and warns of further proceedings regarding [the Business]". If litigation is any measure of hostility, EF's fears are justified.
CD's Position. CD's concerns about the move to the Nursing Home were more or less the mirror image of those of EF. CD says that AB's health and quality of life have deteriorated significantly since she moved into the Nursing Home. CD is concerned: that their mother is being left alone at night; that the Nursing Home only has single beds and residents are not permitted to have a carer sleep over; that the ratio of patients to nurses is not sufficient for high dependency dementia patients such as AB; that their mother remains for long periods of time in soiled nappies, something which CD says never happened at home; that their mother does not receive the same degree of care and attention at the Nursing Home she formerly received at home; and that her incidence of urinary tract infections has increased.
CD also complains about the overall institutional atmosphere at the Nursing Home. CD says that their mother is now less mobile; now rarely speaks; and has far less personal stimulus than she did at home. CD also says that their mother has reduced day-to-day physical comforts and is increasingly tired and falls asleep in her wheelchair during dinner.
CD contrasts the situation in the Nursing Home with AB's care in her own home where she was able to be toileted and showered by RS before she went to bed, and as a result, did not need to be woken during the night to have her nappy changed as occurs at the Nursing Home.
CD complains that their mother is left alone for long periods at the Nursing Home with the bedroom door closed and that she is not capable of pushing the emergency button in her room if she requires assistance.
CD complains that the nursing staff wake AB early in the morning and take her out of bed and place her in a wheelchair. In contrast, CD says that when AB was at home, RS or other carers were able to wake her in the morning in her own time and get her ready for the day at her own pace. CD's concern is that AB is now woken at different times of the day at a schedule driven by nursing rosters, with the result that AB looks exhausted when the family visit.
The Court does not ultimately have to decide these questions. And it is not easy to do so on the strength of the heavily partisan lay evidence. But these differences of view are recorded here as each party's outlook is integral to the Court's decision. The medical evidence, considered below, presents more of a consensus of view.
Three Observations on These Positions. Three observations can be made here. First, even during the period since October 2017, AB's capacities have probably declined to a degree as she suffers, what the medical evidence agrees, is a relentlessly progressing disease. That may account for some of what CD has observed as decline.
Second, there was a tendency on the part of both siblings to read much into AB's conduct. The evidence suggests to the Court that signs and words from AB about her need for comfort and her intentions were perhaps over-interpreted at times. The Court is not confident that any inferences of this kind can be as readily drawn as AB's children think they can.
The third observation is that, despite CD's concerns about the Nursing Home, both medical experts, Dr Caplan and Dr Peisah, praised it as a nursing home giving the highest quality care for its patients.
The expert witnesses agreed that the childrens' views were unlikely to soften toward a compromise on this issue. Everything the Court saw of them throughout their oral evidence confirms the experts are quite correct in this. They never engaged with one another in the Court room. Their mediation was unsuccessful. Their dispute must be treated as intractable.

Some Questioned Financial Transactions - 2015 and 2016

EF's lack of consultation with CD about AB's move into the Nursing Home raised wider suspicions in CD's mind. So CD began to look more closely at the financial transactions in which EF had been involved as AB's attorney. These transactions certainly raise questions that require answers or explanations.
EF says that EF has nothing to hide about these transactions. In submissions and evidence, EF says that they welcome further analysis of these transactions later in these proceedings. The Court does not have to inquire into them at this stage. But what investigations have occurred, what was found, and what explanations EF has given so far about these financial transactions shows what else divides these two siblings. The contest about these financial transactions strengthens the conclusion that the siblings are unlikely ever to be reconciled about any issue concerning their mother.
In October 2017, CD began to investigate information that EF had sold one of AB's properties (the apartment). It had been sold in December 2015 to EF's partner, NP. EF executed the Transfer for the sale using the Power of Attorney from AB. When CD discovered the sale, CD did not know many things. CD did not know: whether EF had charged commission on the sale; whether the sale was at proper market value; and why the sale took place without consulting CD when CD's understanding was that the apartment is the subject of a specific gift in AB's will. Moreover, CD says, and I accept, that CD does not know what happened to the proceeds of sale of this property. This is of particular concern to CD because the property had been providing AB with substantial rental income to assist in the payment of care and living expenses.
EF's explanations are set out below. But one thing is clear: CD was not informed about this sale before it took place. Relations between the siblings had become so poor by late 2015 that EF was using the Power of Attorney without consulting CD about transactions effected under it. A spike in mutual suspicion was inevitable when CD was informed about this and similar transactions.
After the sale of the apartment, AB was still the registered proprietor of two other apartments. Her shares in the Business, her other major asset, owns a block of seven apartments and a retail shop. The retail shop is leased for commercial purposes and the seven apartments are fully leased for residential purposes. All of these properties are unencumbered.
CD raises other transactions that CD did not understand and in respect of which CD seeks an account in these proceedings. In August 2008, EF cashed in a $200,000 term deposit in AB's name. CD does not understand what this was used for. And once these proceedings commenced, EF revealed that EF transferred $37,000 from AB's bank account to EF in instalments. CD questions the transaction and says that it only came to light because of the proceedings.
EF replies in detail. EF seeks to justify each of these financial transactions as AB's attorney and not obviously to avoid accountability for them. EF says that, in CD's affidavit of 13 October 2017, CD "has insinuated or alleged that I have misappropriated or mismanaged mum's assets and abused mum's trust in me as her attorney". EF denies those allegations and says that EF has at all times, "conducted mum's affairs honestly, transparently and to the best of my ability". EF does not object to a Court appointed audit of all the documents in EF's possession. Some practical steps until now be taken in this direction. These are referred to later in these reasons.
As to the closure of the $200,000 term deposit in 2018, EF explains that it was withdrawn from Commlnvest to re-deposit the funds in a fixed term deposit account with Westpac to provide AB with a higher interest rate, and that over time, those funds have been applied to defray AB's expenses and the day-to-day costs of her medical and nursing care and support at home.
As to the advance to EF of $37,000, EF says that EF advanced $26,000 and not $37,000 from AB's estate as had been estimated in EF's first affidavit. Through EF's lawyers, EF has written to the NSW TAG proposing to repay the monies and offering to enter into a deed of loan to formalise the repayment of those sums. By January 2018, CD had objected to this and asked for a wider accounting of EF's use of the Power of Attorney.
As to the sale the apartment, EF says that AB's expenses in recent years have amounted to about $200,000 per annum but that her net income has been about $100,000 per annum. Her cost of weekly care on a 24 hour per day basis is about $3,000 per week, which amounts to about $156,000 per annum. As a result, over the years, AB's cash funds have depleted. EF says that in 2015, EF increased EF's own mortgage facility to lend the estate money to meet all of AB's needs.
EF says that this was not sustainable. So EF says EF decided, after consultation with AB's accountants, that the best commercial decision was to sell the apartment. EF claims that it was appropriately advertised for auction, and that NP attended the auction and purchased the property transparently on the open market.
CD challenges many of EF's explanations. CD questions how AB's recurrent expenses could be so high. CD questions that the apartment was sold in an armslength sale.
GH has been enlisted into this dispute. GH was qualified to look at these financial transactions and has sworn an affidavit in the proceedings about these transactions. GH was admitted as a solicitor and spent approximately ten years working at a legal firm.
GH's affidavit of 9 March 2018 contains a review of the Business's available cheque account bank statements. GH concludes, according to the review, that EF has withdrawn cash sums from the Business's cheque account totalling more than $415,000 from the period January 2012 to January 2016. GH looked at the patterns of frequency and volume of EF's cash withdrawals made from business bank accounts apparently to pay for AB's carers. GH pointed to some alleged anomalies in those withdrawals, including the use of funds for gifts.
The matters GH raised for investigation have not as yet been resolved. Some of them may be easily answered. For example, gifts to carers such as RS, who give such personal support to AB, may be well justified.
The fact that GH has done the research for further investigation places GH close to the heart of this financial contest, a matter to be considered later in these reasons.

CD Commences Proceedings - October 2017

AB's move to the Nursing Home and the continuing stand-off between the siblings led to CD first commencing proceedings in the Guardianship Division of NCAT ("the NCAT proceedings") in early October 2017. On 16 October 2017, NCAT appointed the Public Guardian to make decisions on behalf of AB as to her accommodation and services. The NCAT proceedings were withdrawn at CD's request on 27 October 2017.
In October 2017, CD commenced these proceedings by Summons. The matter first came before the Court in the duty list on the day of commencement.
Three days later, the Court made orders and directions to put the proceedings into suitable order at least on an interim basis: by appointing a solicitor as AB's tutor; by appointing the Public Guardian as AB's interim committee of the person; and by ordering that AB's care arrangements at the Nursing Home continue until the Public Guardian had reached a decision about her future accommodation and services.
The following week, the Public Guardian requested that the respite period for AB at the Nursing Home be extended until 14 November. The Public Guardian later requested that respite care be extended until 5 December, and then again until 28 December.
Late in November, the Court made a declaration under the NSW Trustee and Guardian Act 2009, s 41 that AB is incapable of managing her affairs. And the Court appointed the NSW TAG as the receiver and manager of her estate.
On 13 December 2017, the Public Guardian reported on recommendations about AB's accommodation.
Following this, the Court appointed the Public Guardian as AB's committee of the person, with plenary authority in relation to her person. That same day, the Public Guardian made an interim decision consenting to AB becoming a permanent resident of the Nursing Home once the respite period on 28 December 2017 expired, and pending this Court making final orders.
The plaintiff was given leave to file in Court an Amended Summons in late March 2018. The prayers for relief in the Amended Summons sought principal relief: declaring that AB is incapable of managing her person; and orders appointing CD (or alternatively GH) as AB's committee of the person. The Amended Summons also sought an order joining GH as second plaintiff in these proceedings. No party objected to that course and the proceedings were conducted on that basis. A review of Justicelink has revealed that the Court's records do not yet formally record this position. And so, in the orders below, the Court will order that GH be joined as second plaintiff.
The Amended Summons also sought principal relief: declaring pursuant to NSW Trustee and Guardian Act, s 41(1)(a) that AB is incapable of managing her affairs; removing EF from the office as attorney; and appointing CD (or alternatively GH) as manager of AB's estate pursuant to NSW Trustee and Guardian Act, s 41(1)(b).
The Amended Summons also sought an account from EF for each of the financial years ended 2007 to 2018 inclusive in respect of AB's estate.

Agreement On An Advanced Care Plan

During the course of the hearing, at least some limited consensus was reached about one issue. In the course of the medical evidence of Professor Peisah and Professor Caplan, it emerged that AB did not have an agreed advanced care plan, a document indicating what course should be taken about medical treatment and resuscitation in the event her health unexpectedly and rapidly worsened. The medical personnel needed clear instructions about this before they were confronted with such an event.
In response to this being revealed, the Court indicated that it would be "highly desirable that both [siblings] ...agree upon this issue". As a result, and with the close and helpful assistance of Professors Caplan and Peisah drawing upon their experience in the preparation of, and issues arising in the settlement of such a document, a standard advanced care plan was produced to CD and EF. They received counselling and ultimately agreed upon a form of advanced care plan, the record of which became Exhibit F. This showed considerable co-operation between the siblings. In submissions, Mr Kirby pointed to this as an encouraging sign that harmonious exchanges and more open communication may be possible between the siblings in the future.
But in final submissions, Dr Bennett cautioned against too rapid deduction that this was a sign of future co-operation.
Dr Bennett's approach is the more persuasive. In my view, the relationship between CD and EF is, and continues to be, dysfunctional. The Court has no confidence about their capacity to communicate with one another, to heal their rifts, to reach out to another, and to try and see one another's points of view with respect to their mother's needs. This is discussed below in relation to CD's application to be appointed to the committee of the person for AB.

The Public Guardian's Post Hearing Decision - May 2018

On 21 May 2018, the Public Guardian communicated with the parties by a report in writing that it had made a further accommodation decision for AB on 14 May 2018 ("the 14 May decision report"). The 14 May decision report foreshadowed AB would have a trial in the community and outside the Nursing Home for a period of four weeks commencing on 28 May 2018. During the trial period, AB would receive 24 hour care and support, provided by her current carers, RS and another, and by one additional carer three times a day provided by a home services provider. In addition, case management services would be provided by the home services provider, together with ongoing weekly physiotherapy and massage. The Public Guardian communicated that the implementation of the 14 May decision report would be monitored throughout the trial and reviewed at the end of the four week period. That being said, the trial will be reviewed on 25 June 2018, after these reasons for decision will have been delivered.
The 14 May decision report was supplied to the Court after the hearing. AB's and CD's legal representatives consented to its tender. But EF's legal representatives opposed the tender. The Court indicated to the parties that it would decide in the course of preparing these reasons what it would do with the report. The Court has decided to admit it into evidence and it will become the plaintiffs' exhibit (Exhibit O). The 14 May decision report indicates to the Court what the Public Guardian has now decided concerning AB's short-term accommodation. It represents the most up-to-date position for the Court's information. There is no doubt about the authenticity of the document, which is issued under the name of Ms Beth Williams, the principal guardian for the Public Guardian, and should therefore be admitted.
The 14 May decision report says under the heading "Why we made this decision": "We made decision because we received a proposal from [CD] for [AB] to return to living in her own [home] […] with 24 hour support. There is a significant amount of conflict between [AB]'s family members regarding the appropriate place of accommodation for AB. As a result, the Public Guardian received a significant amount of conflicting evidence regarding [CD]'s proposal and whether it was feasible from a financial and care point of view. The Public Guardian understands that [AB] requires a significant level of care and is of the opinion that a trial at home, with the appropriate level of service provision, would provide evidence on whether returning home is an appropriate long term option for [AB]. Given the above information the Public Guardian appointed an independent case manager - [the home service provider] - to provide information on whether it was feasible from a care point of view for [AB] to have a trial in her home. [The home service provider] made the following recommendations regarding the services provision and equipment required if [AB] was to have a trial at home."
The 14 May decision report then foreshadows a review of the trial three to four weeks after AB has had time "to adjust and settle into a new routine and provide a true picture on how she is coping and whether the level of service provision and care is feasible on a longer term basis". The Public Guardian acknowledged that this trial would involve risks to AB, but acknowledged the ongoing support of her family as being a force for mitigation of those risks to an appropriate level.
The 14 May decision report concluded as follows: "Whilst the Public Guardian accepts evidence that [AB] is settled and happy in her current aged care facility, they also acknowledge that there is evidence to suggest that it was [AB's] wish prior to losing capacity to remain living in her home. The Public Guardian considers the above decision to be a holistic one which takes into account [AB's] significant care needs, her will and preference, her emotional and mental well-being, her financial situation and places her welfare and interests as the paramount consideration."
So far as the Court is aware, this trial has gone ahead and is underway at the time these reasons for decision are delivered. The NSW TAG has confirmed (Exhibit E) that home care of up to $315,000 per annum is affordable for AB should the trial be successful and AB remain in her home thereafter.

Statutory Framework and Legal Analysis - Financial Issues

This section deals with the applicable statutory framework and analysis in relation to the financial issues in these proceedings.

Applicable Legal Principles - Financial Issues

The applicable legal principles may be shortly stated. This Court has inherent protective jurisdiction relating to the management of the estates of persons incapable of managing their own affairs: IR v AR [2015] NSWSC 1187 at [106].
The relevant sources of jurisdiction include the legislation governing the NSW TAG, exercised through this Court and through NCAT, which are "sympathetically integrated and not operating in discord or tension": IR v AR [2015] NSWSC 1187 at [108] per Lindsay J.
It is not in contest in these proceedings that AB is a person incapable of managing her own affairs. All the medical evidence well supports that conclusion.
NSW Trustee and Guardian Act, s 39 can be regarded as a statutory embodiment of the jurisprudence that informs the Court's inherent jurisdiction over protected persons: M v M [2013] NSWSC 1495 at [43] per Lindsay J.
NSW Trustee and Guardian Act replicates the general principles that are also contained in Guardianship Act 1987, s 4 in so far as they apply to financial management. NSW Trustee and Guardian Act, s 39 provides as follows: "39 General principles applicable to Chapter It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation."
CD submits that principles (a), (c), (d) and (e) have particular relevance to these proceedings. In my opinion, that submission is correct. Those are the principles about which much of the contest between these parties revolved.
The Court's relevant statutory power to appoint a suitable person as manager of the estate of the person declared to be incapable of managing his or her affairs is provided for in NSW Trustee and Guardian Act, s 41 which is as follows: "41 Orders by Supreme Court for management of affairs (1) If the Supreme Court is satisfied that a person is incapable of managing his or her affairs, the Court may: (a) declare that the person is incapable of managing his or her affairs and order that the estate of the person be subject to management under this Act, and (b) by order appoint a suitable person as manager of the estate of the person or commit the management of the estate of the person to the NSW Trustee. (2) The Supreme Court may make an order on its own motion or on the application of any person having a sufficient interest in the matter. (3) For the purposes of this section: (a) evidence of a person's capability to manage his or her own affairs may be given to the Supreme Court in any form and in accordance with any procedures that the Court thinks fit, and (b) the Court may personally examine a person whose capability to manage his or her affairs is in question or dispense with any such examination, and (c) the Court may otherwise inform itself as to the person's capability to manage his or her own affairs as it thinks fit. (4) Subsection (3) also applies to an application arising out of the operation of section 37 (2) of the Powers of Attorney Act 2003 ".
Authority on the NSW Trustee and Guardian Act, s 41 and its predecessors (see for example the Protected Estates Act 1983, s 22) makes clear that the Court's primary task is to appoint a "suitable person" as manager of the estate of the protected person and only secondly that the management of the state should be committed to the NSW TAG: see for example Holt v Protective Commissioner (1993) 31 NSWLR 227 ("Holt') at 238-239 per Kirby P (as his Honour then was).
Mr Kirby has drawn the Court's attention to the very useful "framework of approach" that Kirby P set out in Holt (at 241-243), which sets out a series of relevant applicable considerations to be taken into account when the Court is considering either replacing the NSW TAG or appointing another person to manage the estate of a protected person. That "framework of approach" is not reproduced in these reasons, but it is referenced here and has been taken into account.
A variety of authorities of recent years emphasises that the NSW TAG should be regarded as the manager of last resort. It certainly sees itself in that light and in many cases, the appointment of the NSW TAG involves additional expense which need not be incurred: see for example W v G (2003) 59 NSWLR 220 at [29]. There has been a changing attitude to the management of protected estates in this State away from public to private management: M v M [2013] NSWSC 1495 at [24]-[40] per Lindsay J. And there can be inherent advantages in having an estate continued to be managed by a family member with appropriate knowledge of the family's history and family members, rather than by a statutory body, "particularly if the estate is a modest size, if there is no conflict of interest and duty and where a relationship of love and affection between the [person to be appointed] and the managed person is established": P9/2000 [2011] NSWSC 49 at [21] - [25] per Hallen J.
Finally, the Court has the advantage of being directed by counsel for CD to Lindsay J's "guidelines" that might be borne in mind when the Court is called upon to make a decision about the identity of the manager of a protected estate: M v M [2013] NSWSC 1495 at [50].

Financial Management of AB's Estate

The parties contest whether or not the NSW TAG should continue as AB's financial manager. EF contends that the NSW TAG should continue in this role. CD contends that a new financial manager should be appointed. CD offered either CD or GH for this role.
There is no serious disagreement about the size of AB's estate or about her income. The parties are in contest whether EF now owes any debt to AB. The financial assumptions about the size and nature of AB's estate are important to the Court in determining: (1) whether or not a new financial manager should be appointed to AB's estate and who that should be; and (2) what assumptions should be made about the availability of funding when the Court is dealing with the question of AB's accommodation needs and the appointment of her committee of the person.
The parties handed up an agreed schedule of AB's assets, which is reproduced in Table 1 below. AB has no significant liabilities to speak of, other than the ordinary recurrent liabilities associated with her ownership of real property.

Table 1 Current Assets of AB Estimated Value AB's home $1.8 million Other property $1.2 million The Business $10 million Amount held on trust for AB by the NSWTG $115,522.18 Combined total held in Westpac Bank accounts $2,126.60 Debts owed by EF to AB Yet to be verified TOTAL In excess of $13 million

Table 1 represents the financial position of the estate which the Court has used to consider the options about AB's accommodation needs. But Table 1 also gives background to the issue of AB's short-term financial management.
AB has a steady income. It substantially comes to her in the form of dividends to her from the Business. As a War survivor, she also receives pension payments from a foreign government. The principal components of AB's income appear below.

Table 2 Current Annual Income of AB Annual Income Rental income from property Taxable: $27,040 Dividends from the Business Fully franked: $112,000 Pension Tax-free: $20,000 TOTAL Approx $159,040 p.a.

But what should be done about what EF is said to owe to AB? This issue triggered some of the hostilities between the two siblings.
The Court managed this and related financial issues so they can be determined at a later date. The Court signalled to the parties early in the proceedings that it was neither essential, nor practical, to try and determine this question together with the other more pressing issues in the proceedings concerning AB's accommodation. The Court indicated that directions would be made for that issue to be dealt with at a later time. Directions are made at the conclusion of these reasons for that issue to be contested at a future date, either before myself or another judge.
These financial disputes may not be as great as the parties suspect. EF has been more quickly forthcoming about aspects of her financial management of AB's affairs than an attorney who is seeking to hide suspect transactions from scrutiny. That being said, much of EF's management of AB's financial affairs has long taken place without any external supervision. The lack of consultation between EF and CD heightens the opportunity for mismanagement of AB's estate. There may well be errors in what EF has done over time.
And as AB weakens, for the parties to commit even more of their legal resources and their personal energies to fighting out the financial aspect of this dispute would be a wasteful distraction from the attention that should be given to AB.
This situation prompts consideration of the possibility of resolution by a Court appointed expert or by mediation. But these mechanisms will only work if there has been complete transparency in the provision of information by EF to CD about EF's administration of the Power of Attorney. To that end, the Court will continue to manage this aspect of the case. The first step is for the Court to make specific directions for the provision of information by EF to CD. EF has already agreed to the making of such orders in an appropriate form. The Court will leave the drafting of the precise orders to achieve this objective to the parties.
It is desirable for the NSW TAG to undertake this investigation. Ms Sawtell has explained to the Court that the NSW TAG has the resources to do so. But all the relevant documents need to be provided to the NSW TAG. The Court will direct the NSW TAG to circulate appropriate draft orders for production by EF to the NSW TAG of documents concerning EF's past administration of AB's Powers of Attorney. The proceedings will be made returnable before me in approximately three weeks' time to allow the parties sufficient time to agree upon those orders. And if the parties cannot agree, the Court will make the necessary orders.

Appointment of a Financial Manager

CD submits that NSW TAG should not continue as AB's financial manager and that in its place, CD should be appointed as the financial manager.
CD submits that NSW TAG is the manager of last resort, and these days more takes on the role of monitoring the management of estates by private managers such as CD would be. CD points to the need to have close superintendence of an actively trading private company holding commercial property and numerous lease residential properties. CD points to the frustrations of communication, set out in CD's 9 March 2018 affidavit including Annexure C thereto, showing slow turnaround times in dealing with the NSW TAG, including at times delays in the payment of carers. CD says that the NSW TAG does not have the necessary resources to comprehensively investigate the past management of AB's affairs. And CD complains that, although the NSW TAG has been acting since appointment by Lindsay J for some four to five months as receiver and manager, it has not taken steps to secure the Business from being subjected to the alleged misapplication of funds by EF.
Further complaints that CD makes are that AB is a private person and should have her affairs managed privately if possible. CD complains about the NSW TAG not being sufficiently nimble and incurring unnecessary fees.
The course of the proceedings shows some of these submissions to have substance but others much less so. But for the reasons given here, the Court is of the view that the current regime should continue but that, in due course, over a targeted period of approximately three months some of the day-to-day management of AB's estate should be remitted to the family but not to CD, rather to GH. The Court's reasons for this conclusion are the following.
First, the criticisms of the NSW TAG's financial administration are not presently justified. It can be accepted that, from the correspondence, there was some initial delay in responding to financial requests and there was a problem in paying carers for a period. But most of these criticisms are to be accounted for by Lindsay J's appointment of the NSW TAG on 30 November 2017, late in the year, the intervention of a holiday period and the time for the NSW TAG becoming familiar with AB's estate, combined with the hostility that is evident in the correspondence between EF and CD which flowed over into the correspondence with the NSW TAG.
What, in contrast, is clear now, is that Ms Rachel Sawtell, who was present on behalf of the NSW TAG throughout much of the proceedings, has smoothed the way financially to provide funding from the estate for AB's trial accommodation at home to proceed. The Court fully accepts AB's deep need for comfort at night and the greater opportunity for that comfort to be afforded to her outside the nursing home environment and favours the course of the trial at home presently being taken that CD has pressed upon the Public Guardian and the NSW TAG. In my view, the NSW TAG, through Ms Sawtell, has been flexible and efficient in accommodating this change. That is the present situation, despite what may have been some slowness at the start.
Second, if there is a continuing concern about securing the Business and its bank accounts from alleged depredations by EF, then it is open under the liberty to apply which has been afforded by the Court for CD to seek further, more closely defined injunctive relief or to clarify more precisely the fuller transfer of financial administration to the NSW TAG. But EF made it quite clear through EF's counsel Mr Van Aalst that EF wished to relinquish control of AB's financial affairs so this should not be an issue in the future.
Third, the appointment of the NSW TAG will solve a fundamental communication and consultation problem that will exist if CD were appointed to replace EF immediately. CD complains about EF's lack of consultation with CD about many decisions, including the decision to place the apartment on the market and to have AB transferred into the Nursing Home. There is evidence of lack of consultation. But the Court is not at all confident that the consultation would be solved, at least in the short term, by appointing CD as the manager of AB's estate. Given CD's deep suspicions about EF's prior administration of the Power of Attorney the Court is not persuaded that CD would be consultative on financial matters with EF were CD to be immediately appointed as financial manager of AB's estate.
That is why the Court is now proposing a two-step process: for about three months the NSW TAG should continue in this role; and then someone in whom the Court has greater confidence would be actively consultative could be appointed. GH could apply to be appointed to deal with at least the day-to-day of AB's financial affairs.
Finally, to whom should the day-to-day affairs of the deceased's estate be ultimately delegated? In my view, that delegation of day-to-day matters should occur but, as indicated, not immediately, especially whilst the trial of AB's accommodation at home is proceeding.
CD points to CD's existing directorship of the Business, 44 years' experience in managing different residential and retail properties, business acumen, proven capacity to manage large sums of money, commitment to AB, a willingness to seek advice from professionals and advisers and a close personal interest in providing funding for even high levels of nursing care that may be required by AB were she to return to her home in the long term.
But in my view, largely for the reasons that are discussed below in relation to the suitability of CD for appointment as the committee of the person, the Court is far more confident to give this day-to-day role to GH than to CD and is prepared to do so in about three months. The Court has the capacity to devolve the day-to-day management of AB's estate to a family member. Were that to happen, in my view, GH, were GH to continue to be willing to do so, has the necessary objectivity and professional background to conduct such administration and to do so in a way which would open up lines of communication with EF in a way that the Court is not confident that CD would. The concerns that the Court has about GH acting as committee of the person do not apply to the appointment as day-to-day manager of AB's estate, a function involving mainly administrative tasks and little that will place heavy emotional demands on GH.
Moreover, the Court is concerned that, if the role is given to CD, tCD is so deeply and personally concerned about the pursuit of allegations of mismanagement of AB's estate whilst EF held the Power of Attorney, that CD keeping the boundaries around the role will be difficult. There will be tendency in my view on CD's part to engage in "mission creep" and for CD to want to investigate EF's past conduct, because of ill feeling about EF's past administration. This is an issue that will for now be firmly left in the hands of the NSW TAG. Opening another front of investigation by appointing CD is not a risk that the Court is prepared to take. But the Court's grant of liberty to apply will allow the parties to come back in three months to appoint GH to some estate management functions.

Statutory Framework and Legal Analysis - Committee of the Person Issues

This section deals with the applicable statutory framework and analysis in relation to the non-financial issues in these proceedings.

Applicable Legal Principles - Committee of the Person

The applicable legal principles may be shortly stated. The Court's inherent protective jurisdiction in relation to persons incapable of self-management has been well described in a number of recent authorities. The Court refers to Lindsay J's judgment in IR v AR [2015] NSWSC 1187 at [101]-[106]. The Court's inherent jurisdiction is derived from 19th century English law and practice upon its reception into this State through the Third Charter of Justice in 1823. The practice and procedure of the English Lord Chancellor at the time was that the Court could appoint a "committee of the person" to persons incapable of self-management. That office was then perceived to be the equivalent of what we would now describe as a tutor. The role was acquainted with that of "curator" under Roman law: Blackstone, Commentaries on the Laws of England (9th ed, 1783, Printed for Strahan, Cadell, & Prince). The "committee of the person" was also the historical title of the office of the guardian appointed by the Lord Chancellor in the exercise of the Equity Court's inherent protective jurisdiction: H. S. Theobald, The Law Relating to Lunacy (1924, Stevens & Sons Ltd); and see the discussion of the office by Lindsay J in IR v AR [2015] NSWSC 1187 at [55]-[57].
The Court's inherent jurisdiction is referred to and confirmed under the Guardianship Act 1987. Importantly, that Act does not limit the Court's inherent jurisdiction: Guardianship Act 1987, s 8. That jurisdiction is referred to in the Act as existing alongside the statutory powers of the Act, s 23: IR v AR [2015] NSWSC 1187 at [117]-[118].
Guardianship Act 1987, s 4 sets out the general principles which must be followed in the exercise of functions under the Act: "It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles."
Mr Kirby submits on behalf of CD that principles (a), (c), (d) and (e) are of particular relevance to these proceedings. The plaintiffs' emphasis on those provisions, is in my view, is correct.
Both the Guardianship Act 1987 and the policy of general law is that, when considering an appointment of someone to act as committee of the person, the appointment of the Public Guardian is an appointment of last resort. This is firstly provided for in Guardianship Act 1987, s 15(3), as follows: "A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person."
This aspect of the legislation reflects the policy at general law: "it has always been the policy to appoint a member of the family as committee or guardian of the person if that were possible" and "just because a decision is required about accommodation and there is some dispute about this does not mean that a close family member holding one view ought not be appointed": W v G (2003) 59 NSWLR 220 at [25]-[26]; see also Application of SG [2011] NSWSC 372 at [33]; EB v Guardianship Tribunal [2011] NSWSC 767 at [293]; and Re B (No. 1) [2011] NSWSC 1075.
The principle was articulated in different terms in Re B (No. 2) [2011] NSWSC 1264 at [3] per White J: "As there appears the question on the present application is whether the plaintiff can properly be appointed as his mother's guardian. If he can properly be so appointed, then the Public Guardian should not continue to exercise the functions of guardian. This is because of the policy reflected in s 15(3) of the Guardianship Act 1987 that, where possible, it is preferable to appoint as a guardian a family member or other person having a close personal relationship with the person in need of guardianship (W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [26])."
This became one of the central issues in these proceedings.

AB's Accommodation Needs

The principal question for the Court is the appointment of a suitable committee of the person for AB. But a subsidiary question is AB's accommodation needs. This subsidiary question is relevant to, but does not control, the principal question. The subsidiary question is relevant because the competing views of CD and GH about AB's accommodation at home are sufficiently strong that their appointment as her committee of the person will have a predictable long-term accommodation outcome for her. Whether or not that accommodation outcome is in AB's best interests becomes one of the factors in deciding whether CD or GH would be suitable appointments to be AB's committee of the person.
So AB's accommodation needs must be examined first. The following medical and allied professionals gave oral evidence about AB's medical and accommodation needs: Professor Caplan, Professor Peisah, Ms Browne and Mr Williamson. Dr Hybs, AB's general practitioner, did not give oral evidence. In the end, the evidence in this area of dispute became far less controversial than the way it began. And so it may be shortly discussed.
An underlying issue in dispute about AB's accommodation is whether or not she would be permitted to have a companion present sleeping with her overnight. This issue went backwards and forwards throughout the hearing. But the final position from the Nursing Home, reflected in Exhibit 8, an email of 8 May 2018 from the director of client and community relations at the Nursing Home makes the following clear: "Whilst it is not [the Nursing Home's] preferred option, if a resident requests an awake companion to be present overnight, we will agree for the companion to sit in the room but not to deliver nursing care to the resident or sleep on the [the Nursing Home] property".
For Occupational Health and Safety reasons, this policy makes good sense. The Court concludes from it that someone would be able to remain in the room with AB and to hold her hand at night at the Nursing Home but not to sleep with her. This means that, to the extent that AB's wish to have someone lie with her at night is to be honoured, it must be done at home. Otherwise, the second best option is for someone to be present at the Nursing Home and to hold her hand throughout the night.
The Court was much assisted by the medical evidence of Professor Caplan who favoured AB returning home and Professor Peisah who favoured the outcome of her remaining at the Nursing Home. But what is very clear from both of the Professors' excellent and informative evidence is they both have great confidence in the Nursing Home. As a result, the Court is not prepared to infer that the medical care that she would receive there is any less satisfactory than she would receive at home. The more difficult question is whether the medical and nursing care that could be provided at home would meet the same standard as the Nursing Home. That is what is now being tested in the trial and to a large extent the medical issues about comparative care therefore recede into the background.
But on the principal issue of contest between Professor Caplan and Professor Peisah, the Court finds Professor Caplan's evidence the more persuasive: that in order to maximise AB's quality of life, it is most important to try and "provide care in accordance with the person's wishes, it's as simple as that and if that can be done that is a very important step in maximising quality of life". Indeed, when pressed on this issue, Professor Peisah indicated that she was "deeply concerned by what would happen to [AB] at night". And she conceded she was worried that staff at the Nursing Home "may miss some significant periods of distress" at night unless there was someone with her. Professor Peisah said in response to the Court's questions on this issue "so the issue of sleeping with someone at night, another incredibly important issue, and particularly in the light of her own expressed will and preferences and fears an anxiety, and indeed her past, which would have been caused by her [War] experiences".
In the end, the medical evidence supports the proposition and general consensus at least, as Professor Caplan said, "let the family sort out its conflicts among itself' but her "quality of life would be maximised by going in accord with her preferences". In my view, the current trial by the Public Guardian is to be strongly supported for this reason. The Court heard evidence from Mr Williamson and Ms Browne on the practical side of accommodating AB comparatively at home or at the Nursing Home. Their evidence was highly informative but, in my view, the trial that is now taking place will be the best indicator of the comparative judgments in that area.
The Court has evidence of the provision of services by a range of carers and the cost of those services. It is not necessary to go into those costs as it is accepted on all sides of this case that AB has sufficient financial capability to engage carers at home on a 24 hour basis.

Who Should be Appointed AB's Committee of the Person?

The Court has several options for appointment as AB's committee of the person. CD and GH offer themselves as candidates for the role. Or the Court can continue Lindsay J's orders for the Public Guardian to act as AB's committee of the person.
CD. CD starts with many advantages, both factual and legal, in being appointed as AB's committee of the person. CD is AB's child. CD is religious and celebrates and honours all aspects of a religious family, community and religious life that AB so greatly values. CD has a close and loving relationship with AB. CD has assisted with AB's care since the onset of her dementia in 2005. CD is intimately aware of AB's medical history. CD is in a position to respond swiftly to issues that might arise in relation to the care of AB. CD has a determination to place at the forefront AB's clearly expressed wishes to be cared for at home and to have someone with her at all times, especially at night. CD also has the benefit of the legal policy that family members such as CD should be appointed over and above the Public Guardian.
But the Court is not prepared to appoint CD as committee of the person for several reasons. First, the Court does not have confidence that CD will be able to communicate with EF in a calm, objective manner about the management of AB's person. Nothing in CD's behaviour in the court room gave the Court confidence that CD was able to reach out to EF and overcome any animosity in order to engage directly in the necessary communication and consultation required to effectively manage AB's person. Although there has been correspondence between the two, the only non-hostile correspondence in recent times has been very much in the shadow of the court room.
Second, whilst CD's promise to AB that she not be left alone at night is in one sense a positive, it also has a very negative aspect for CD. The Court is not confident that CD would, despite professions to the contrary in evidence, take medical advice to reaccommodate AB in a nursing home if care for her at home became too difficult. As Dr Bennett pointed out in her final submissions, CD's evidence was hedged in a number of ways to maintain the primacy of honouring AB's wish to have someone sleep with her at night. The evidence is that is not possible in the Nursing Home. The Court doubts that CD could ever in CD's heart reconcile to sending AB back to the Nursing Home, even if the medical evidence was unanimously in favour of that outcome.
In my view, CD's incapacity to respond to objective evidence and medical opinion that would contradict the promise made to AB is the ultimate and decisive reason why, in my view, CD should not be appointed committee of the person. The deep conflict that would occur within CD if medical advice were to contradict the promise made to AB, in my view, means it is more likely that CD's sense of honour to AB's wishes would win the day. Whilst in one sense this most admirable, in another it makes CD unfit, in my view, to be committee of the person. It means that AB's best interests (in physical health and physical welfare) may well be sacrificed to another objective.
Third, CD's and EF's relationship is still thoroughly dysfunctional. CD agreed that their relationship has "totally broken down". CD also agreed that it is "correct to say that [they] both find it difficult to talk to each other". CD agreed with the proposition that, "whether or not the topic is for the best interests of your mother, in respect of that issue, you find it difficult to agree with each other".
And EF says, "my relations with [CD] has deteriorated to such an extent that it is now affecting the time which I am able to spend with mum". Professor Peisah saw no prospect of a reconciliation either.
This dysfunctional relationship has existed in its current open hostility for well over a decade. These proceedings are far more likely to inflame that hostility than to alleviate it. This has another deeper consequence. The positions the siblings have taken in these proceedings have become doubly entrenched because of this very litigation. As a result, the Court is not confident that CD could ever step back from the position taken about AB's care at home and compromise on that issue in the future, were it necessary in AB's best interest to do so.
GH. The Court came close to appointing GH as the committee of the person for AB. GH was an impressive witness. GH's sincerity in offering to take on the role of committee of the person for AB could not be doubted. GH's offer would have overcome many of the shortcomings of appointing CD. GH would have discharged the role with committed dedication to the best interests of AB.
Objectively speaking, GH was well-qualified in most ways. A combination of GH's professional background as a solicitor, a balanced approach to the issues that had perplexed the family, and the current role in business and bringing up four children of GH's own gave GH ample capacity to discharge the role as volunteered.
GH's qualifications indeed went further. GH had reached out in the past beyond CD to EF. GH had endeavoured to meet with EF to try and bridge the differences that existed between them. Moreover, in answer to questions in the witness box, GH showed many intuitive judgments that showed GH well understood the primary importance of AB's interests. And GH mostly transcended the differences between the parties in evidence and answers.
But in the end, despite the fact GH was a family member, and despite the fact that the Court should always closely consider such an appointment, the Court has decided against GH's appointment. The Court decided that the Public Guardian was the best option in the circumstances. The Court reached this conclusion for several reasons.
First, GH has heavy commitments to family. GH is a busy parent of four children. GH assists in GH's spouse's business. Perhaps the primary question is whether GH could manage the task of acting as AB's committee of the person on top of the other demands in GH's life. GH explained the immediate issues of managing four children and working for GH's spouse's company. GH said that the arrangements of the company were "quite flexible" but "as long as it gets done" was still an overall requirement for some of the compliance work that GH has to do. But GH also has to manage four children as well. GH said "with four kids I guess with - at different schools you use your time and especially becoming a [parent] far more efficiently and effectively, so I think I have done that quite well".
The evidence demonstrates that GH already has a very full schedule which GH presently juggles quite effectively. But the Court doubts that the functions of AB's committee of the person can be satisfactorily added to the existing schedule. Exhibit C, the email traffic with the Public Guardian, shows just how intense and time-consuming communications with all members of the family may become. Despite GH's depth of commitment to AB, the Court has considerable doubts as to whether GH can manage the intensity of this function if taken on by a family member. And in my view, it is inevitable that a family member, although familiar with all other family members and therefore having an advantage in the role, also brings additional burdens that will make the crisp, professional, and time effective management of decision-making about issues such as AB's accommodation, far more difficult.
Dr Bennett submitted to considerable effect in closing that GH should not be appointed as the committee of the person because of her lack of capacity to appreciate the difference between the role of the committee of the person and that of case manager. Dr Bennett makes her submission good with a number of examples, including from Exhibit K.
From as early as February 2018, the Public Guardian had made clear that AB had been allocated an independent case manager. Ms Browne had reported before the hearing that co-ordinating the level of care that would be required for AB at home "is a hugely time-consuming task". So much so that, in her view, "this would be an impossible to do well in the home environment and would be detrimental to AB's end-of-life needs". Mr Williamson in his evidence emphasised the importance of the role of the case manager in setting an independent timetable coordinating the involvement of all family members and our medical and ancillary staff so that AB's needs were responded to at all times in an effective and timely manner. In contrast, the role of committee the person involves higher level decision-making about issues such as AB's accommodation. The distinction between the two roles was evident in the Exhibit C correspondence between the Public Guardian and family members and in the evidence of Mr Williamson, Ms Brown and Ms Williams.
In my view, Dr Bennett's point is well taken. Parts of GH's evidence do seem either to conflate the role of committee of the person and the role of a case manager for AB, or to show a lack of full understanding of the latter role. But GH certainly said that the involvement of a case manager "was a given" and GH praised AB's case manager and the home service provider. However, GH did show a fairly elementary (though flexible) level of understanding of the case manager's role: "I guess however often we would want her to come" and "Maybe given the family conflict it may be wise to get her in more often" and yet again about the case manager, "I would have to find out about that". Dr Bennett's submission, in substance, was that this would always be a problem were GH to be appointed as AB's committee of the person.
But Dr Bennett's point is not an effective long-term argument against GH's appointment. The production of Exhibit K and GH's evidence on the issue is largely the product of a dynamic hearing in late April-early May, during which GH and others perceived a need to produce documents that showed that they understood the depth of the decision-making that was required for AB. The result (Exhibit K - the Plaintiffs' proposed care arrangements for AB) showed how comprehensively CD and GH did appreciate what had to be done. The document that GH produced, and GH's answers to Dr Bennett's probing cross-examination on the issue, did show an inadequate understanding of this distinction and some confusion about these two respective roles and the need to acquire more information. But if this were the only argument against GH's appointment, I would not regard it as decisive. This is because GH has a sufficiently deep professional background and personal insight into the differences between the two functions that, in my view, GH would have little difficulty in operating to keep the two roles distinct and then indeed taking advantage of that distinction so as to reduce the overall workload by shedding some of the case manager work to make GH's own life more manageable.
But GH's request for appointment as AB's committee of the person faces deeper obstacles. GH declared that GH was not seeking an account from EF as to EF's management of the financial affairs of AB in the past. GH said in answer to Mr Van Aalst's suggestions GH was seeking an accounting from EF, "No,. we're not. I'm focused on what is in my grandmother's best interests from this day going forward for what she has for the remainder of her life." The Court accepts that GH is not personally pursuing an account for EF's past use of her Power of Attorney from AB. GH does not need to seek such relief. The Court has already made clear that it will direct such an accounting.
But it is not easy to unwind the perceptions that have been created by GH's role in the financial issues in these proceedings. GH swore an affidavit seeking to detail apparently suspicious past financial transactions in which EF had engaged as attorney, which transactions would support a deeper investigation of EF's performance in that role. GH thereby committed, at least temporarily, to the role of an investigator of EF's performance as AB's attorney. GH was well qualified to do so. Whilst the Court accepts GH's account of the good relationship between GH and EF and one of EF's children, in the past, the role that GH has already taken in these proceedings is one as an active proponent of financial evidence against EF. This makes it almost impossible for GH now to take up an independent role as a neutral committee of the person bridging both sides to this dispute. The Court does not doubt GH's sincerity in advancing themself in this neutral role. But the perception of a lack of neutrality because of GH having propounded this evidence against EF makes any future conduct of an independent role almost impossible: not because GH's approach to the discharge of that role is not sincere or adequate, but more because EF is unlikely now ever to accept that GH will discharge the role independently.
The Court must judge how suitable (and therefore how workable) the appointment of a particular person as the committee of the person will be from both directions. The independence and neutrality of the person appointed is only one part of the equation. For GH's performance of the role as AB's committee of the person to be successful in this case, GH's independence and neutrality must also be accepted by those with whom GH must deal.
Despite GH's obvious competence and professionalism, Mr Van Aalst's cross-examination of GH exposed that GH harbours some deep feelings that the Court cannot but suspect would be adversely influential in decision-making, were GH to be appointed to the role of AB's committee of the person.
When Mr Van Aalst put to GH that GH would take CD's side "in the dispute that [CD] has with [EF]", GH responded with diplomatic finesse, "I agree with [CD's] concerns and what's in my grandmother's best interest at this point in time, yes". In this answer, GH was only prepared to concede that GH presently agreed with CD's position about AB's accommodation. And later GH said, "Yes, I am loyal to CD which is what I said yesterday but I am also loyal to my family unit, my grandmother is the most important thing to me, so any decision would be in her interests." GH has always maintained in answer to the Court's questions that they would be prepared to disagree with CD about the issue of AB's accommodation.
When Mr Van Aalst pressed the issue, GH honestly revealed GH's own deeply entrenched attitude that EF's mismanagement had caused tragic events in the past, attitudes that expressed themselves in GH's perfectly natural but nevertheless florid emotional courtroom response to Mr Van Aalst's questions.
Mr Van Aalst asked GH about KB's death. As these reasons have earlier mentioned, he died in the Hospital within a month of being placed by AB, whose own mental state and judgment had by then declined, in a bath that was too hot for him. When GH was asked "Do you blame [EF] [for this]?" GH said, "I don't place blame but I believe that in, this could have been prevented." GH explained that the available carer came "an hour after" when GH's grandfather was kept cool "until the ambulance could come". GH's response revealed GH's highly rational attempt to distance themself from a blame response for an event which GH nevertheless at least associates with EF's financial management: "No, I have put that aside, you cannot harbour that, you need to move on with your life, my focus now is my grandmother. She is alive, I want to spend as much time with her, my kids asked to see her every day."
But in the midst of this evidence, GH broke down, clearly because of the distress that the events surrounding the grandfather's death were still causing. This short, highly charged momentary response was enough to reveal to the Court the intense difficulty GH would face in dealing with EF as AB's committee of the person. GH's experience has, at the least, engendered deep feelings of regret about EF's past financial management. That GH holds these feelings, that EF is aware of them, that the feelings are unlikely to change, and that they would be influential in ways that perhaps not even EF or GH can predict or understand, would all make GH's administration of the role of the committee of AB's person extremely difficult.
In my view, GH is the most realistic candidate from the family for appointment as AB's committee of the person. But the merits or otherwise of GH's appointment to this role have now been closely analysed and, notwithstanding the provisions of Guardianship Act 1987, s 15(3) and the general law principles that it has always been the policy to appoint a member of the family if that were possible and could properly be done (W v G (2003) 59 NSWLR 220), the Court has decided that GH should not be appointed.
But GH's evidence also points to a solution. GH confirms a determination, one way or another, that AB's wish not to be alone at night will be honoured. GH was confronted with the hypothesis that if the medical advice was that AB had to go back to the Nursing Home, and that she would not be able to have someone sleep with her in the same bed at night, GH would be prepared to make a decision to not give preference to that wish of AB. GH accepted, "If the doctor told me she had to go back to [the Nursing Home], she would go back to [the Nursing Home]."
GH explained that they would find a solution no matter what. And the Court accepts that GH would. This is what GH said: "If the point came, yes, I have no hesitation to be by my grandmother's side every night. I have done it with EF's child in hospital. I would do it for my grandmother." GH was making clear that GH would find some way to have family be with AB at night, even if she had to go back to the Nursing Home.
In my view, that is the reality: the family will, if it has to, find some way compatible with the Nursing Home's rules to give AB some company at night. The family's determination to do this can be no better expressed than in GH's own words: "What she [AB] survived is unheard of in this day and age and I think that is getting forgotten here. I would do anything for my grandmother, I would spend every waking hour devoted to her." The other consequence of this important evidence, and of what the Court knows of the Nursing Home's rules, in my view, is that if AB does have to go back to the Nursing Home, the family will make the best of the situation and somehow ensure that a family member or carer is with her at night to provide her with the comfort of human touch, even though the family member or carer may not actually be able to sleep in the same bed as her. GH is representative of the whole family in this. The Court judges this to be a shared determination.
Whatever situation the Public Guardian faces, if the trial period back at AB's home were to fail, or if it succeeds and if in the future AB's situation simply declines and the Nursing Home is the only option, the Court is confident through such evidence as GH's, that the family will somehow see their way to ensuring that AB's wishes are honoured.
The NSW TAG. The Public Guardian was criticised in CD's case for its lack of flexibility, for delay, and for being out of touch with the day-to day needs of AB. This criticism was deployed in the plaintiffs' case to reinforce the law's preference for someone other than the Public Guardian to be appointed as AB's committee of the person.
But a review of Exhibit C and the more recent history of these proceedings does not support the view that these criticisms are presently warranted. It can be accepted that it took a little while for the Public Guardian to get "up to speed after Lindsay J's appointment". There were some initial delays.
But the medium term picture is different. The Public Guardian was appointed shortly before the holiday period and needed time to obtain familiarity with the issues in this matter. But once that was done and familiarity was achieved, in the Court's judgment the Public Guardian and its principal relevant officer, Mrs Beth Williams, have managed the situation of AB with efficiency, flexibility, diplomacy, objectivity and sound judgment. Ms Williams has shown herself in correspondence, and she gave the same impression in her oral evidence in Court, to be highly committed and attentive to achieving the best accommodation outcome for AB.
This is readily demonstrated. CD pressed upon Ms Williams the desirability of a trial being conducted of having AB return back to her home. Notwithstanding the Public Guardian's earlier decision to approve AB's admission to the Nursing Home on a permanent basis, Ms Williams has fully supported the trial at home which is now taking place. This shows the Public Guardian's flexibility and openness to all options and capacity to follow through, including liaising with the NSW TAG to ensure that the funds were put in place for the trial to proceed as has happened.
The Court regards the trial as a most appropriate response by the Public Guardian to accommodate AB's specific needs and especially for giving her close personal touch and comfort at night. The conduct of the trial is a powerful answer to CD's criticisms of the Public Guardian.

Costs

What order for costs should be made? Although neither of the plaintiffs, CD and GH, have succeeded in attaining appointment either as a committee of the person for AB or as managers of her estate, the Court, having heard the evidence, has nevertheless expressed the desirability of achieving the practical outcome that they wanted in the proceedings, namely for AB to return home to live in her home if that were feasible. On that important objective they have succeeded.
The issue of costs as between the plaintiffs and the defendant should first be discussed. If the issue cannot be resolved, the parties can put submissions on costs in due course. But in cases such as this in the Protective List, there may be a wider interest in each party bearing their own costs. But the matter is open for debate.
It would ordinarily be appropriate for the costs and disbursements of Mr Glass acting as tutor for AB to be paid out of AB's estate. The conduct of these proceedings by Mr Glass and Dr Bennett has greatly assisted the Court. There is no reason not to make the usual order in their favour immediately. The Court will so order.

A Final Note

The outcome the Court has reached will not satisfy all members of this divided family. The Court doubts that it is possible for any Court imposed outcome to achieve that. But the family can nevertheless be reassured about three matters.
First, a striking feature of these proceedings is that, despite the differences between CD and EF, the Court fully accepts the commitment of each to their mother's comfort, security and welfare. That commitment is without question. Their different perspectives on this common objective, in part, explain the passion with which this case has been fought.
Second, AB lived her teenage years in a world of chaos. But the way that CD and EF have chosen to resolve their dispute is the opposite of that. They have sought and obtained orders under the law, which can now be implemented in an orderly way.
Third, Ms Beth Williams said in the course of her evidence that the arrangements that would be put in place with the Public Guardian would allow the family to do the important thing that the family can do best, and indeed only the family can do: loving and supporting AB which can become the focus now.

Conclusions and Orders

Accordingly, the Court makes the following orders and directions: 1. Order that the orders made by Lindsay J on 15 December 2017 appointing the Public Guardian as the committee of the person for the second defendant be continued; 2. Order that the orders made by Lindsay J on 30 November 2017 appointing the NSW TAG as the manager of the second defendant's estate be continued, 3. Order that GH be joined as second plaintiff in these proceedings; 4. Adjourn the proceedings for mention to 9:30 am on 9 July 2018, or such other date convenient to the parties arranged with my Associate, before me for the making of orders in relation to the remaining disputes between the parties concerning: (a) the first defendant's past management of the financial affairs of the second defendant under a Power of Attorney dated 2 April 1995; (b) the appropriate order for costs upon the outcome of these proceedings as between the plaintiffs and the first defendant; and (c) plans for the longer term (over about three months) transfer to the second plaintiff of the day-to-day management of the second defendant's estate; 5. Direct the NSW TAG within 7 days to circulate draft orders to facilitate the making of orders that the NSW TAG can analyse documents relating to issue (3)(a) above; 6. Order that the costs of the second defendant's tutor and legal representatives of and incidental to these proceedings shall be paid out of the second defendant's estate; 7. Direct the parties to consult about how this judgment can be published with pseudonyms; 8. Grant liberty to apply in relation to the implementation of these orders or to deal with any issue left open for future consideration in these reasons, or to make further orders formally disposing of these proceedings; and 9. Order that these reasons may only be published to the parties to these proceedings and their immediate families.

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: 05 December 2018

At a glance

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Judgment (29 paragraphs)

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Cases Cited (10)

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