CJ v AKJ

CJ v AKJ - [2016] NSWCATGD 16 - NSWCATGD 2016 case summary — Zoe

[9]

Participation in the hearing by Mr AWL and his views

Mr AWL participated actively in the hearing. With the assistance of a Croatian interpreter he told us that he did not need either a guardian or a financial manager. He admitted that he had been living off his funds, and in particular utilising credit cards, for the last three years. But he was able to describe his savings and future plans, at least in moderate detail. In particular, he said that he had cash investments of approximately $150,000, most of which, apart from some of approximately $2000-$4000, was invested in a term deposit with a bank which Mr AWL asserted was earning interest at 2.2% per annum.
Mr AWL provided some details of his employment and training. He was somewhat prevaricative when asked to describe his last job and appeared to indicate that he had a job some three weeks prior to the hearing. He was also prevaricative when asked what work he would like to do, but did eventually answer that he would like to be a forklift driver but could not do the manual lifting work usually associated with that job. He also indicated that his inexperience in dealing with information technology limited his job choices.
Mr AWL told us that he had given up alcohol for one period of approximately two to three months but did drink socially nearly every day between 1:30 PM and 5:00 PM. He denied that he had a gambling problem and said that he gambled small amounts "for fun".
Mr AWL initially told us that he was on no medication whatsoever. When asked whether he took antidepressants he replied that he did not.
A Tribunal Member read Mr AWL an extract from the report of Dr Z, Clinical Neuropsychologist dated 7 February 2014 including the following conclusions: Improvement in his thinking skills can be observed if he complies with an alcohol detoxification program…I would be concerned that more cognitive damage would be done if Mr AWL continues consuming alcohol at the current rate. Especially (sic) further reductions in his higher-level thinking skills might result in possible lack of insight and exacerbated rigid thinking in the future, making him vulnerable to poor lifestyle and financial decisions.
Mr AWL said that he disagreed with most of those conclusions and in particular that he had decision-making difficulties because of his alcohol consumption.

[13]

The evidence

Mr KRD, who is the applicant and Mr AWL's social worker at a public health centre, told us that in his view Mr KRD can manage some areas of his life reasonably well and others not well or not at all. In Mr KRD's opinion, Mr AWL's cognitive ability and his ability to manage personal decision-making was largely affected by his alcohol consumption. Mr KRD described a somewhat repetitive scenario involving six major treatment episodes over eight years. In each of these, Mr AWL had admitted himself to hospital and was then referred to the public health centre because of his distress and anxiety about his drinking. In each case he had been stabilised in hospital before being sent to the clinic for management. On each occasion there was evidence that Mr AWL had expressed profound disagreement with the opinions of his treating physicians. In Mr KRD's view, Mr AWL had demonstrated that he does not understand professional explanations about the nature and effects on him of his alcohol addiction.
In Mr KRD's view, a guardian could act as a "guiding keel" for the development of a treatment plan and could coordinate services and treatment and provide close case management for Mr AWL. Mr KRD's view was that these things could not be achieved without the appointment of a guardian. Mr KRD also asserted that there may be a need for consideration of the need for accommodation decisions for Mr AWL. He added that there was a history of Mr AWL not following through with treatment suggestions; for example Mr KRD and his colleagues had been unable to persuade Mr AWL to have an initial assessment for a detoxification program.
Mr KRD's views were supported by Ms Y, Social Worker, who also attended the hearing.
As related in paragraph 18 above, Mr AWL's cousin, Ms UVK, who is a general medical practitioner, confirmed her view that Mr AWL does have an alcohol problem and some difficulty in making lifestyle decisions. We understood Ms UVK's view to be that a guardian was needed, at least in respect of some of the decisions to be made for Mr KRD, particularly those directly relating to his alcohol problem. Ms UVK emphasised that Mr KRD had a supportive family and quite often followed the advice and suggestions of family members.
We also considered the written reports referred to above in relation to this issue. We accepted those reports and the evidence of Mr KRD, Ms Y, and Ms UVK as reliable and persuasive.

[14]

The Tribunal's determination of this issue

In reaching a conclusion on this important issue we considered each of the factors prescribed by s 14(2) of the Guardianship Act which appeared to be relevant. We also had regard to the general principles set out in s 4. In considering the s 14(2) factors, we considered Mr AWL's own views and the importance of preserving his family relationships. However, on the basis of the evidence as discussed above, we gave more substantial weight to the question of whether, as a practicable matter, the services which Mr AWL needs could be made available to him without the need for a guardianship order. On the basis of the strong and reliable evidence of Mr KRD and that contained in the medical and clinical reports, supported to some extent by that of Ms UVK, it was clear that these necessary services cannot be made available to Mr AWL in a practicable way without the appointment of a guardian.
We also had regard to the guiding principles set out in s 4 of the Guardianship Act. The principles, other than those already considered by reference to s 14(2), which appeared to have primary relevance to this case, were the need to minimise any restrictions to be imposed on Mr AWL's freedom of action and of decision, the need to encourage him, so far as possible, to be self-reliant and to live a normal life in the community, but also the need to protect Mr AWL from any neglect or abuse or exploitation. As s 4(a) of the Guardianship Act requires, we gave paramount consideration to Mr AWL's welfare and interests. Ultimately we were satisfied on the basis of the evidence as analysed above that Mr AWL's welfare and interests would best be preserved and protected by the making of an order.
It followed that there is a current need for decisions on behalf of Mr AWL, particularly decisions about his health care and services. We found a particular need for the healthcare function, under which the appointed guardian could arrange for Mr AWL's admission into the IDAPS program and implement detoxification strategies. Accordingly, a guardianship order should be made.

[18]

The legal principles and authorities

The Supreme Court of New South Wales has provided guidance in several decisions as to how the Tribunal should assess a person's capability to manage his or her affairs. In earlier cases the Court had based its test predominantly on the ability of the subject person to conduct the everyday affairs of ordinary people. It was said that if by reason of a failure to do this the person would be disadvantaged or there would be a real risk that they would be disadvantaged or that their money or assets would be at risk of dissipation, then they would properly be treated as being incapable of managing their affairs.
However, that approach has been reviewed and altered in more recent cases. In P v R [2003] NSWSC 819, Re D [2012] NSWSC 1006, and PB v BB [2013] NSWSC 1223, it has been emphasised that the Tribunal should not be relying just on hypothetical notions such as "the ordinary affairs of people" but rather should focus on the capability of the particular person to deal with his or her actual assets and to do what he or she is proposing to do with them.
Most recently, in CJ v AKJ [2015] NSWSC 498, Justice Lindsay said that a Court or Tribunal dealing with this issue should focus on whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital, and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.
His Honour went on to say that in considering whether a person is "able" in this sense, the Court or Tribunal may give attention to: 1. past and present experience as a predictor of the future course of events; 2. support systems available to the person; and 3. the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests.
The relevant time for considering whether a person is incapable of managing their affairs is not merely the day of the hearing, but includes the reasonably foreseeable future. That was confirmed by Justice Lindsay in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSW SC 1106, at [20].

[19]

Application of those principles in the present case

As noted in paragraphs 11 and 12 above, Mr AWL was able to describe his savings, his general financial position and his future plans in at least moderate detail. We accepted his evidence as accurate in terms of the substantial term deposit which he had and we accept that such a term deposit operates in Mr AWL's particular circumstances as some form of effective protection against his current spending habits, which he himself appeared to acknowledge as being unusual.
Although some concern was expressed in the applicant's report and other professional reports as to Mr AWL's possible vulnerability to exploitation, there was no specific source of exploitation identified. Ms UVK told us that her cousin Mr AWL was not in the habit of spending excessive sums of money and was at most a social gambler. We accepted her opinion as persuasive, given her close family tie with Mr AWL. Ms UVK supported Mr AWL's characterisation of his gambling activity as being "for fun".
Ms UVK emphasised that she disagreed with many of Mr AWL's lifestyle decisions including his drinking and gambling but emphasised the support mechanisms which were available through family members. In particular Ms UVK led us to understand that Mr AWL does take the advice of family members. It appeared from Ms UVK's account that on many occasions Mr AWL had accepted family advice to limit his drinking. Ms UVK emphasised that Mr AWL was an intelligent man who had attended university in Croatia but who had not graduated because of his excessive social activities.
In the recent decisions cited above; P v R [2003] NSWSC 819, Re D [2012] NSWSC 1006, and PB v BB [2013] NSWSC 1223, it has been emphasised that the Tribunal should focus on the capability of the particular person to deal with his or her actual assets and to do what he or she is proposing to do with them. We took those authorities into account in conjunction with the matters emphasised in recent cases by Justice Lindsay, most recently in the case of CJ v AKJ [2015] NSWSC 498, in which His Honour noted that it would be appropriate for a Tribunal in these circumstances to give weight to support systems available to the person under consideration.
It is true that Mr AWL demonstrated on neuropsychological testing that he had clear impairments to his executive functioning. However, we were satisfied on the basis of the evidence discussed above that Mr AWL has retained sufficient awareness of the current nature of his assets and of his spending habits that he can, with support and advice from family members, which is apparently available, be relied upon to make sound and rational judgements about his money and property.
For these reasons we could not be satisfied that Mr AWL either currently or for the foreseeable future is incapable of managing his affairs.
It followed that the financial management application would be dismissed.

At a glance

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Decision date

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Judgment (20 paragraphs)

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Legislation Cited (2)

Cases Cited (4)