CZS [2020] NSWCATGD 36

NCAT Guardianship|2020-03-11|Before: Windeyer J

Background

CZS is a 69-year-old divorced man. He lives in a unit at a retirement village in regional NSW. He has two adult children, BYS and CXM.
On 14 February 2020 KAT, social worker with local health service provider lodged applications seeking the appointment of a guardian and financial manager for CZS. In her applications, KAT stated CZS had cognitive impairment due to alcohol abuse. Despite many attempts by family and health professionals and the Drug and Alcohol team, CZS was incapable of taking on information, making decisions or engaging with support services. He had 15 emergency presentations and 14 inpatient admissions during 2019. His health and welfare was at risk as well as his tenancy at the retirement village. His children had endeavoured to manage his finances informally to ensure he did not spend all his income on alcohol but this had not been successful.

The hearing

At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

Overview of the evidence

The Tribunal received the following documents for its consideration: 1. Discharge summaries from Public Hospital A dated 23/01/19, 29/01/19, 18/02/19, 03/03/19, 23/05/19, 13/09/19, 10/12/19, 24/09/19, 31/05/19, 20/07/19, 17/8/19 and 01/10/19; 2. Social work report from KAT dated 14/02/20; 3. Addenbrooke (ACE III) assessment dated 26/02/19; 4. Report from Ms Z, RN, dated 21/05/19; 5. Aged Care Assessment Team (ACAT) assessment dated 26/08/19; 6. D & A cognitive screening dated 11/04/19; 7. Mental health clinical handover notes dated 03/03/19 and 04/10/19; 8. D & A clinical notes dated 17/12/19; 9. Email from Ms Y, Village manager of the retirement village dated 17/02/20.
KAT provided a history of recent events. CZS had retired from his position with the NSW public sector about 10 years previously. His marriage dissolved several years ago and he moved to reside with his mother, Mrs ES. Approximately 12 months ago as the result of an AVO being taken out, he was no longer able to reside with his mother. He then had a series of temporary stays in motel accommodation in regional NSW with many presentations to the emergency department of Public Hospital A. CZS was ultimately banned from accessing any further emergency motel accommodation as a result of his inability to manage his alcohol intake. After "significant intervention, advocacy and negotiation", KAT and the team were able to secure rental accommodation at the retirement village which was an independent living retirement village. Since he relocated to the retirement village (about six months ago), his room had required two intensive cleans, repainting and new furniture and carpet due to CZS's inability to manage his daily activities and alcohol consumption. His tenancy was in jeopardy and there were no alternate accommodation options other than becoming homeless or moving to residential care. KAT recorded attempts by his sister, Ms X, and children, BYS and CXM to assist him, his Catholic Minister's attempts and the Drug and Alcohol team's numerous attempts at intervention without success. CZS had been scheduled on 17 August 2019 as being a mentally disordered person. The Addenbrooke and MOCA assessments had been undertaken in hospital during admissions when CZS was sober. Despite his children's efforts together with the assistance of the treating team to arrange exclusion from alcohol outlets, it had not been possible to exclude all outlets in regional NSW. CZS had become quite creative in accessing alcohol. Although his SIM card had been removed from his phone to prevent him calling a taxi and also his eftpos card being removed, he would get staff at the retirement village to call a taxi for him, attend a bank to withdraw money for the taxi and purchase alcohol at a drive through outlet. After staff of the retirement village stopped his phone access, he would call on neighbours asking to use their phone. As applicant, KAT supported the need for a guardian to make decisions about CZS's accommodation (including any admissions for alcohol detox and rehabilitation). The guardian would need coercive powers. CZS was not capable of making rational decisions about his health care, medical treatment and refused to engage with support services. He required someone to formally manage his finances to ensure his essential expenses were met and that he used his money to purchase food and services rather than spending it just on alcohol.
The discharge summaries from 2019 demonstrated that his various admissions were due to alcohol related events. His primary diagnoses were usually acute ETOH intoxication, hyponatremia, malnutrition and depression. He had an admission to Public Hospital A in June 2019 after undergoing craniotomy at Public Hospital B and evacuation of a subdural haematoma. Most of his subsequent admissions were due to falls or misadventure. His alcohol consumption was described as consumption of 31 wines or three to four litres per day. He had a fractured humerus on one admission and in January 2019 had been discovered by neighbours having apparently spent the night hanging upside down from a window at his mother's home with his head in a pot plant.
The ACAT assessment noted that CZS scored 77/100 on Addenbrooke undertaken by Dr W. CZS was noted to be doubly incontinent and unable to self-care particular when intoxicated. Although meals were available in the dining room at the retirement village he chose not to eat and only drink. He was reliant on his sister, Ms X to assist with all activities such as medication management, domestic care, toileting and to pay his bills and manage his money. He was assessed as eligible for high level respite and permanent residential care. CZS would need a level-4 home care package for personal care, toileting, care coordination, meal monitoring and financial management if he remained living in the community.
Mr V's service had been involved with CZS since 2003. He had chronic daily alcohol use which had escalated since the breakdown of his marriage. CZS had undergone testing by Dr U in 2017 which noted memory, concentration deficits and frontal lobe impairment although he had been able to perform quite well on MOCA. When CZS was 'dry' he could engage with services and appointments but since 2018 post the breakup of his marriage, he was unable to engage as he was frequently intoxicated and angry. Mr V had serious doubts that CZS had capacity to manage in the community and displayed no insight into his deteriorating health and function. CZS had been very surprised when told he had at least 14 admissions to hospital during 2019. He had walked out of a community service centre admission for rehabilitation in late-2018. He would appear to be willing to accept help but was not capable of consenting to any further rehabilitation programs. He would benefit from at least a six-month detox program. The community service centre was too open as he could leave as he had done in the past. He would be at high risk of seizures which would need to be managed as part of alcohol withdrawal.
CZS did not attend the videoconference. His son, BYS, had attempted to arrange his attendance and he was aware that the hearing was listed. However, CZS was constantly intoxicated and therefore not capable of attending the hearing or providing a view.
Ms Y's email indicated that CZS's alcohol abuse was impacting on staff and other residents at the retirement village. He was often dishevelled and smelt of urine and vomit. He would become irritable if staff refused to call a taxi for him. It was quite frightening for other residents if he knocked on their doors in his drunken and dishevelled state. There had been several calls made to ambulance and police. Ms Y considered it was quite degrading for CZS to be observed by other residents being taken away. He would be welcome to remain at the retirement village if he remained sober and his behaviour did not impact on other residents.
BYS and CXM agreed with all the medical evidence and the oral evidence of KAT and Mr V. Both considered that CZS was incapable of making any decisions because he was constantly intoxicated and therefore not ever in a condition to make any rational decisions. He had never developed financial skills. They had endeavoured to set up financial arrangements to prevent him using all his money on alcohol. They had set up direct debits for his rental at the retirement village and paid as many bills by direct debit. Someone had always been managing his finances informally. Firstly their mother had managed his finances during their marriage, then his sister, Ms X and more recently, BYS and CXM. They supported the need for a formal financial manager and that it be an independent party such as the NSW Trustee and Guardian. They had endeavoured to support their father over many years. Both BYS and CXM supported the appointment of an independent guardian to make decisions regarding their father's accommodation including any inpatient rehab program and support services. When the term 'coercive powers' was explained, they agreed that the guardian would need the authority to call on others (use coercive powers) to keep CZS in his accommodation or return him to his accommodation if he was to leave. They were prepared to be jointly appointed to make health care and medical and dental decisions and had been heavily involved with the hospital team and the D & A team to support their father informally to date.

Is CZS someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

Section 14 of the Guardianship Act 1987 (NSW) ("the Act") provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is "a person in need of a guardian". A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person": s 3(1) of the Act. A person with a disability is a person who is: 1. intellectually physically, psychologically or sensorily disabled; 2. of advanced age; 3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or 4. otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: s 3(2) of the Act).
The Tribunal is satisfied on the basis of the medical evidence and the oral evidence of KAT and Mr V that CZS has a cognitive disability due to chronic alcohol abuse which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order and what order should be made?

The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order: 1. the views (if any) of: 1. the person; 2. the person's spouse; 3. the person's carer; and 1. the importance of preserving the person's existing family relationships; 2. the importance of preserving the person's particular cultural and linguistic environments; and 3. the practicability of services being provided to the person without the need for the making of such an order.
These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).
There was consensus that CZS would require a formal guardian to make decisions on his behalf. All attempts by family members to support him informally to date had been unsuccessful. If CZS was able to undergo alcohol detox successfully it would require a long-term inpatient admission. A guardian would need to have the ability to authorise him being kept in any inpatient admission and prevent his discharge against medical advice despite CZS's wishes. He would also need a decision maker about his health care and medical and dental treatment and to consent to services he could access.
The Tribunal decided on the basis of all of the consistent evidence that a guardianship order should be made with a guardian appointed to make decisions regarding CZS's accommodation with the ability to authorise others to implement any accommodation decision, health care, provide medical and dental consents and consent to services.

Who should be the guardian?

The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she must: 1. have a personality generally compatible with the personality of the person under guardianship; 2. have no undue conflict of interest (particularly financial) with those of the person; and 3. be able and willing to exercise the functions of the order.
In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep and Re B (No.1) [2011] NSWSC 1075, [66]).
In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.
The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed: s 15(3) of the Act.
BYS and CXM were prepared to continue to support their father with health care and medical decision-making and continue to liaise with his treating doctors, therapists and D & A counsellors. However they considered the difficult decision of accommodation, particularly if CZS required admission for inpatient detox or admission to an aged care facility, would impact on already strained family relations if they were to be appointed. They supported the Public Guardian being appointed to make accommodation decisions with the ability to use coercive powers as a last resort and to consent to services CZS could access. They were prepared to be appointed jointly to make health care and medical decisions.
They had the support of the applicant, KAT on behalf of the hospital team and Mr V in being appointed with health care and medical and dental decision making. The applicant supported the appointment of the Public Guardian for the more challenging decisions of accommodation including the use of coercive powers and to provide consent to services.
The Tribunal was satisfied that both BYS and CXM meet the requirements to be appointed jointly as private guardians for CZS to make health care, medical and dental decisions on his behalf.
The Tribunal was also satisfied that it was appropriate in all the circumstances to appoint the Public Guardian with the decision-making functions of accommodation, coercive powers to implement any accommodation decisions and services that CZS can access.

How long should the order last?

An initial guardianship order can be made for a period of up to one year from the date on which it was made. The Tribunal decided to make an order for 12 months.

Is CZS incapable of managing his financial affairs?

The test for determining a person's capability to manage his or her affairs has been described in P v NSW Trustee and Guardian [2015] NSWSC 579.
In considering whether the person is capable of managing their affairs, 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 judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498 at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579 at [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 81 at 86). See Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 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 was satisfied on the evidence in the guardianship application that CZS lacks capacity to manage his day to day expenses and meet his essential financial needs without considerable support and is not capable of making more complex decisions.

Is there a need for a financial management order and is it in CZS's best interest that a financial management order be made?

All attempts to assist CZS informally had been unsuccessful. Whilst his adult children had been able to ensure some of his ongoing expenses such as rent were paid by direct debit they had been unable to ensure CZS would use his income to purchase food, medications and other essential needs in preference to spending it on alcohol.
He would not be capable of terminating his lease and signing any legal documents if he is required to leave the retirement village or arranging a redirection of his income to pay his ongoing expenses.
The Tribunal was satisfied that there is a need to appoint someone to manage CZS's affairs and that it is in the best interests of CZS that a financial management order be made.

Who should be appointed as financial manager?

In appointing a financial manager, as in making all other orders under the Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Act.
Section 25M of the Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian.
There was no private person willing and able to act as private manager. The Tribunal was satisfied that the estate of CZS should be committed to the NSW Trustee and Guardian.

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: 16 February 2021

Trustee and Guardian Act 2009(NSW)

3 NSWLR 81 P v D1 & Ors [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 Re B (No.1) [2011] NSWSC 1075 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 Supreme Court (NSW), Windeyer J, 29 November 1999, unrep Category: Principal judgment Parties: 001: Guardianship Application

At a glance

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