CJ v AKJ

CJ v AKJ - [2016] NSWCATGD 76 - NSWCATGD 2016 case summary — Zoe

[7]

Reports

The application was accompanied by a number of reports supporting the application.
The Tribunal had before it the report of Dr Z, consultant psychiatrist, dated 25 July 2016. The report stated that Mrs PNH had been referred to the community mental health service provider by police. The police had attended her home based on a report that there had been an intruder. The police referred Mrs PNH to the community mental health service provider for a mental health assessment. Dr Z had seen Mrs PNH on 30 May 2016, 6 June 2016, and 20 June 2016. Dr Z noted in his report that various facilities in Mrs PNH's household were not functioning properly - such as toilets, the doorbell and the telephone landline. In the refrigerator there were a number of containers of food with use by dates many months old and bags of partially decomposed vegetables in the crisper drawer. Mrs PNH had told him that a local real estate agent was a very nice woman who had assisted her by taking her to the Roads and Maritime Services (RMS) office to renew her driver's licence which she had lost. As a consequence, Mrs PNH told Dr Z that she felt obligated to sell her home through that agent. Dr Z noted that Mrs PNH had well systematised paranoid delusions that her brother had been illegally gaining entry to her home. He was either using a copy of the house key or, after she had locked the doors from inside that he climbed onto the roof, removed tiles and entered by the hatch to the roof cavity. He did this even though there was a bolt lock on the inside of the hatch. Mrs PNH had insisted that various household items that were not working had been sabotaged by her brother and that his motive was to obtain her money.
Dr Z noted that it is likely that there is some degree of nutritional compromise as Mrs PNH was not able to organise adequate meals for herself. Her medical issues are not being reliably treated due to her lack of regard for medications and her lack of recall of what they are for. Currently, her judgment is compromised by paranoia. Dr Z believes Mrs PNH's cognitive impairment is rendering her unable to manage independently with complex activities of daily living. Dr Z's primary diagnosis was that Mrs PNH had senile dementia with paranoia. Dr Z did not believe that Mrs PNH has the capacity to make competent decisions in the areas of finance and medical and dental consent and accommodation. He requested the appointment of a Public Guardian for the management of these matters. Dr Z considered that a guardianship order was necessary in order to consent to psychiatric medication for Mrs PNH's paranoia which had clearly emerged in the context of cognitive decline.
The Tribunal was satisfied from Dr Z's report that Mrs PNH is incapable of managing her person. She is a person for whom the Tribunal could make a guardianship order.

[9]

Views of the Applicant, Mr SQT

In his application, Mr SQT stated that Mrs PNH will require services to support her to meet her ADLs (activities of daily living), namely services to assist in meal preparation, shopping, and medication supervision. However, she expressed reluctance to accept services as she is not inclined to pay for them and she insists that she can manage on her own. Mr SQT considered that this was exposing Mrs PNH to harm as she is currently failing some of her ADLs.
Mrs PNH has limited fresh food in the fridge and displays difficulty preparing meals. She is failing to uphold basic maintenance of the house; all three toilets do not work, the doorbell is not working and she has taken no steps to repair them. She is known to City Council due to the poor state of her garden, and when her only phone broke, she did not attempt to fix it until prompted and assisted by Mr SQT and the MHSOP (Mental Health Services for Older People) team.
Mrs PNH is non-compliant with medication. Her medication Webster pack has pills removed in a haphazard sequence and she is no longer taking prednisolone nor the prescribed warfarin and digoxin as she "didn't feel like I needed it". She also refused to accept medication for her paranoia.
Mr SQT observed that it took almost 20 minutes for Mrs PNH to get ready to go grocery shopping and it appears that she was confused and unorganised. When I enquired if she had cash money to buy groceries, she said no, she would use credit card. She did not, however, remember her PIN for the credit card. While shopping it was apparent that Mrs PNH has some shopping skills, she mainly bought frozen food, fruit and milk; however, it appears as though she requires someone to prompt her to buy necessities and she requires assistance in planning and transporting grocery items.
Currently Mrs PNH has a driver's licence. Dr Z has written to the RMS requesting she have an assessment of her fitness to drive. Mrs PNH requires transportation services. On some occasions Mrs PNH is oriented to date/day/month/year and on other occasions she is not. Mrs PNH's home is disorderly with various piles of documents, broken utilities, and medication Webster packs around. Mrs PNH's cognitive decline makes her vulnerable to exploitation

[18]

Is Mrs PNH incapable of managing her affairs?

The test for determining a person's capability to manage his or her affairs has been described as follows. See P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]: Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with the duty to protect his or her welfare and interests? … [A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.
In considering whether the person is able in this sense, consideration may be given to:

past and present experience as a predictor of the future course of events
support systems available to the person, and
the extent to which the person, placed as he or she is, can be relied upon to make sound judgements about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498, [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, [309].

The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81at [86]). See Lindsay J in Re W and L (Parameters of protected estate management orders) [2014] NSW SC 1106 at [20]: Each case must of course, be considered on its own facts, including not only actual facts presently known but also, so far as they can be known, prospective developments.
The Tribunal had before it the report of Dr Z dated 26 July 2016 which stated that there was a very high risk of Mrs PNH being financially exploited. Dr Z did not believe that Mrs PNH has the capacity to make competent decisions in the areas of finance. Dr Z stated that she is clearly very vulnerable to suggestion and feeling obligated towards anyone who assists her. Because of her vulnerability to financial exploitation, Mrs PNH required the appointment of a financial guardian. The report also noted that Mrs PNH was deeply suspicious about her brother's actions and thought that he was trying to take her money.
The Tribunal was satisfied that Mrs PNH is unable to manage her financial affairs.

[22]

Views of Mrs PNH

Mrs PNH told the Tribunal that she did not know what her house would be worth. She says she has one bank account but does not know how much is in it. She pays her bills by credit card and then just pays the credit card bill at the end of the month. She was not sure what sort of bills she has. Mrs PNH told the Tribunal that she has shares and bank interest. She gets a small amount of superannuation from her late-husband's account. She gets a tax agent to do her tax return. Mrs PNH said she had paid the Council to fix the toilets but they were still leaking even though she paid an extra $30. Mrs PNH did not know who had got them in. She would usually pay by cheque. She banks with an Australian commercial bank and has a credit card. She has no other term deposits. There is no one else who co-signs on her account and there is only her brother that she would trust. She thought she would give her brother authority to operate her account if she became sick. She just had not got around to it.
The Tribunal had a number of concerns about Mrs PNH's financial situation. Mrs PNH had told Mr SQT she did not know her PIN but relied on her credit card to make purchases and pay bills. Mrs PNH was unaware of what her regular bills were. She was reluctant to spend money on services to assist her to live safely in her home. Mrs PNH did not appear to know the extent of funds available to her.
It appeared to the Tribunal that Mrs PNH's brother has been handling more major financial functions for her. At the same time Mr MSU was firm that his sister could make all of her own decisions for herself and was critical of the medical evidence before the Tribunal. The Tribunal had also heard that Mr MSU was subject of his sister's suspicions. The Tribunal was satisfied that Mrs PNH may be vulnerable to financial exploitation in the absence of a financial manager. The Tribunal was satisfied that there is a need to appoint someone to manage Mrs PNH's affairs and it is in her best interests that an order be made.

[23]

Who should be appointed financial manager?

In appointing a financial manager, as in making all other orders under the Guardianship Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Guardianship Act.
Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian.
In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court's broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the Protective Commissioner and a family member as the manager of an estate.
The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.
On the side of the Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise, and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage.
The advantages of the appointment of a family member were more economic management of smaller estates (that is, freedom from fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers.
The Tribunal had heard that Mrs PNH had been distrustful of her brother as a result of paranoia from her dementia. Mrs PNH had told the professionals who were seeing her that her brother was trying to sell her home and take her money. At the same time, at the hearing, Mrs PNH told the Tribunal that the only person that she would trust to operate her accounts was her brother. It appears that Mr MSU undertook the sale of Mrs PNH's property in Northwest Sydney and that a real estate agent has contacted him about selling Mrs PNH's current home. The Tribunal considered Mrs PNH's stated reluctance to pay for services although it appears that she has sufficient funds to afford them. Mr MSU thinks that there is nothing wrong with his sister and that she can make her own decisions including to reject services. In these circumstances the tribunal considers that Mr MSU would have difficulty with the concept of paying for services as the financial manager.
In the circumstances, the Tribunal did not consider that it was in Mrs PNH's best interests for her brother to be appointed as financial manager. No other family member offered themself in this role. The Tribunal was satisfied that there is no other friend or family member available to be appointed as financial manager. The Tribunal was satisfied that the estate of Mrs PNH should be committed to the NSW Trustee and Guardian.

At a glance

Court

Decision date

Source

Judgment (24 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)