CKN [2019] NSWCATGD 27

Background

1. It was not controversial that CKN has severe autism and that this is a lifelong condition.
2. Applications were made by MZN on 24 October 2019 for financial management and guardianship orders about her son, CKN.
3. The purpose of the proceedings on 13 December 2019 was to hear and determine both applications. The reasons for our decision are set out below. The reasons should be read as a whole.

The hearing

1. At the end of these reasons for decision is a list of the people who participated in the hearing. [Appendix removed for publication.]

The issues that we had to decide

1. We had to consider the following issues: 1. Could we make an order about CKN because he was a "person in need of a guardian"? 2. Should we make a guardianship order? 3. If we decided to make an order, what order should be made? 4. Who should be the guardian and how long should the guardianship order last?

Is CKN a person in need of a guardian?

1. We could only make a guardianship order about CKN if we were satisfied that he was "a person in need of a guardian": Guardianship Act 1987 (NSW) ("the Act"), s 14(1). A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person": s 3(1) of the Act. The disability must restrict them in one or more major life activities to such an extent that they require supervision or social habilitation: s 3(2) of the Act.
2. We read uncontroverted evidence about the extent of CKN's disability. Ms Z, psychologist, wrote a report for the purpose of the hearing, dated 6 November 2019. Ms Z wrote that CKN has a diagnosis of level three Autistic Spectrum Disorder (severe) and presents with severe global deficits in his ability to communicate and interact with others, make judgments, focus, plan and prioritise. Ms Z wrote that CKN has limited cognitive ability to assess any situation he is in and that he requires substantial support from his carers. CKN cannot orientate and has no basic concepts about life skills, except for basic level toileting and eating. MZN supervises CKN's dressing and she showers and shaves him. Ms Z wrote that CKN also experiences levels of anxiety that is typical of neurodevelopmental disorders and needs medication in heightened states. CKN's condition has been present across his lifespan. Ms Z wrote that CKN's prognosis is that he will never have the capacity to self-determine and manage his life situation. The level of support required as he ages will increase.
3. MZN gave us a hand-written document on the day of hearing that described the care and habilitation that she provides to her son. Her evidence reflected what was in the report by Ms Z, as did that of CKN's siblings, UNN and EBN.
4. Nothing about our interaction with CKN gave us any cause to doubt the evidence of either Ms Z or CKN's family. There was no contradictory evidence and we accepted that CKN has a particular condition, being autism. This disability causes CKN to be partially incapable of managing his person and to require habilitiation (the care of others). We were satisfied that CKN has a decision-making disability and, to use the words contained in the Act, is a person in need of a guardian. A guardianship order could therefore be made for CKN.

Should we exercise our discretion to make a guardianship order?

1. Having found that we could make a guardianship order, we then considered the second step of the decision-making process. This involves a discretion as to whether we should make an order.
2. Before exercising our discretion to make a guardianship order, we must observe the principles contained in s 4 of the Act. We must undertake a balancing exercise of all of the matters set out in s 14(2) of the Act. We have attached an extract of both ss 4 and 14 at the end of these reasons for decision. [Appendix removed for publication.]
3. We accepted Ms Z's uncontradicted statement that MZN provides loving, conscientious and involved care for son and that CKN is incorporated into family life.
4. CKN's decision-making disability is such that he is effectively unable to make decisions of significance on his own behalf. However, those decisions have been made and continue to be made on his behalf by his mother, in the absence of a guardianship order. In considering the matters in s 14(2) of the Act, we formed the view that CKN has the support of close and loving family members, namely MZN and family, to make decisions regarding CKN's accommodation and about any services required by him, without a guardian.
5. We accepted the uncontradicted evidence that MZN was CKN's person responsible. We heard evidence about MZN's decision making as a person responsible and formed the view that MZN acted as an appropriate decision maker for CKN in this regard, without being a statutorily (formally) appointed decision maker.
6. The person responsible regime is provided for under s 33A(4) of the Act and there is a Fact Sheet available on the NCAT Guardianship Division website. In summary, medical and dental practitioners have a legal and professional responsibility to get consent to treatments before treating a patient. If the patient is not capable of consenting to their own treatment, the practitioner should seek consent from the patient's person responsible. A person responsible has a right and a responsibility to know and understand what the proposed treatment is and what the risks and alternatives are. A person responsible can say "yes" or "no" to the proposed treatment or seek a second opinion. The practitioner has a responsibility to give the person responsible this information and seek consent before treating the patient.
7. MZN gave evidence about difficulties that she was encountering when acting as person responsible. She described how CKN objected to needles and as a result he has never had a blood test. MZN explained that she was diabetic and that it was in CKN's best interests that he be tested for indicators of diabetes, but that he would automatically refuse a blood test. MZN said that CKN has not been able to be immunised and that she was concerned in particular about his lack of immunisation to whooping cough.
8. MZN said that CKN was about to undergo dental surgery for a tooth infection. She explained how complex it was to arrange for someone with severe autism to undergo surgery and that there would be a lot of opportunities for CKN to say "no" before the surgery took place. If MZN were to be granted additional authority to override CKN's objections she was optimistic that CKN could have the blood tests and immunisations while under sedation for the dental surgery. This would minimise any discomfort or distress to CKN.
9. We formed the view that CKN should not miss out on treatment that was in his best interests because he has a decision-making disability. We were satisfied that his objections were as a result of his lack of understanding about the necessity of the treatment. We were persuaded that, despite MZN's appropriate actions as person responsible, that there was a need for her to have an additional authority to override CKN's objections to treatment: the Act, s 46A(1). With this authority the guardian's consent has effect, despite CKN's objections: s 46A(3) of the Act. The guardian can only exercise this authority if satisfied that the proposed treatment is manifestly in the best interests of CKN: s 46A(4) of the Act. We were confident that MZN would exercise this authority appropriately.

Identity of the guardian

1. We may appoint private people or the Public Guardian as guardians. As required by s 15(3) of the Act, we will not appoint the Public Guardian in circumstances where an order could be made appointing a suitable private person as guardian. Wherever possible and appropriate we will appoint a family member or a friend to act as guardian.
2. We were satisfied that MZN has a personality generally compatible with CKN. We observed warm interactions between her and her son during the hearing. There was no persuasive evidence of an undue conflict of interest. MZN satisfied us that she was both willing and able to exercise the functions of the order. There was support for, and no objection to, her appointment from any participant in the hearing. In our view, MZN is committed to promoting CKN's welfare and interests and is the appropriate person to appoint as his guardian. We ordered accordingly.

Duration of the order

1. We decided to make an order for 12 months as CKN is likely to require an order for this length of time to allow for the operation to take place on his teeth, for immunisations and for proposed blood tests. At the end of the 12 months the order will be reviewed by the Tribunal.

What we had to decide

1. The issues for determination in relation to the financial management application were: 1. Is CKN incapable of managing his affairs? 2. Is there a need for another person to manage CKN's affairs and would it be in his best interests for a financial management order to be made? 3. If an order is to be made on the basis of the answers to those questions, who should be appointed as the financial manager?

What we considered

1. The evidence, set out above and accepted by us, indicated that CKN has a diagnosis of level three, Autistic Spectrum Disorder (severe). In addition to what we considered in relation to guardianship we also took into account the following evidence. Ms Y, occupational therapist, wrote in a report dated 7 November 2019, that CKN has "no financial awareness". Ms Z, psychologist, wrote in a report dated 7 November 2019, that CKN has no awareness of money, spending, budgeting or shopping.
2. MZN wrote in a letter, handed to the Tribunal on the day of hearing, that CKN is not capable of going into a bank or entering a personal identification number into an automated teller machine. She said that CKN is not capable of communicating with a bank teller. MZN explained that she has always been responsible for all CKN's financial affairs.
3. Nothing about our observation of CKN during the hearing gave us any reason to doubt the evidence about his inability to manage his own financial affairs.
4. We were satisfied that CKN is incapable of managing his affairs in a reasonably competent fashion. Having so decided, we proceeded to consider whether CKN needed a Tribunal-appointed financial manager and whether we should exercise our discretion to appoint one.

Is there a need for another person to manage the affairs of CKN?

1. Even though we had decided that CKN was incapable of managing his own affairs, we had to decide whether there was a practical utility in burdening CKN's estate with the administrative infrastructure necessarily involved in protected estate management. We had to decide whether CKN's particular circumstances warranted an order being made. The test of "best interests" in s 25P(2)(b) of the Act combined with our duty to observe the general principles in s 4 of that Act, persuaded us that it was appropriate for us to do so.

What we considered

1. We accepted MZN's evidence that she has been managing CKN's finances for a long time. His finances consist of a disability pension in the amount of approximately $980 per fortnight and approximately $200 per fortnight in wages. We understood that CKN paid his mother a nominal amount of board, being $100 per fortnight.
2. MZN explained how, in the past, she was able to manage CKN's financial affairs without difficulty but, now that he is an adult, that this is no longer the case. She provided an example of how after the family moved to a different location, the bank would not allow her to change his address on their records. Another example she gave was her inability to provide CKN's employer with his superannuation member number because she was told she did not have sufficient authority to do so.
3. It was not controversial that CKN's financial situation has recently become much more complex due to his father, KXN, passing away in October 2019. KXN did not leave a will. There are decisions that need to be made by CKN in relation to the estate, including his father's real estate business, and his father's life insurance policy.

Our decision about this issue

1. We decided that CKN, as an incapable person, required a financial manager because there were decisions that needed to be made in relation to his late father's estate that could not be made without a manager being appointed. His day-to-day financial affairs were also unable to continue to be managed by his mother without the authority of an order. We were satisfied that it was in CKN's best interest that a financial management order be made.

The law about this issue

1. Section 25M of the Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian ("the Trustee").
2. Our practice, where this is appropriate, and it is in the best interests of the protected person, is to investigate whether there is a private person who is suitable for appointment as financial manager before we consider committing the management of the estate to the Trustee. That practice was approved in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 where this was described as "a sensible hierarchy of choices".
3. The test in relation to appointing a guardian in s 17(1)(b) of the Act should be applied to appointing a financial manager. That is, there should be "no undue conflict between the interests" of the financial manager and the protected person. The expression, "suitable person" in s 25M of the Act is sufficiently broad to encompass the possibility of appointing a person with minor conflicts of interest with the protected person that are not undue: The Husband v The Public Guardian [2016] NSWSC 1720 at [137]-[138].

The evidence

1. MZN sought to be appointed as her son's financial manager. MZN satisfied us that she was a suitable person to be appointed. We had no doubt that MZN was willing and able to take on the role. We considered the issue of any conflict of interest as follows.
2. We accepted MZN's submission that she was not making a claim on KXN's estate. We understood from an opinion written by Mr X, barrister, dated 10 December 2019, that, following her divorce from KXN in 2015 that property orders were made. Those orders dealt with the allocation of the matrimonial property as between KXN and MZN. We read that KXN had purchased a home for MZN, outright, on the basis that she, as the mother of his four children, should be provided with appropriate accommodation.
3. We were confident that MZN had her son's best interests at heart and were satisfied that there was no undue conflict of interest.
4. MZN's appointment was supported by CKN's siblings. There was no evidence of any person objecting to her appointment.

Our decision

1. We decided that MZN was suitable for appointment and we appointed her as CKN's financial manager.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 May 2020