EOK [2017] NSWCATGD 27

The Hearing

1. The matter was listed for hearing on Friday, 30 June 2017. At the end of these Reasons for Decision is a list of the witnesses who attended the hearing.

Standing

1. The applications for guardianship and financial management were made by the ISLHD under a guideline issued by the Ministry of Health, [1] which recommends that applications to this Tribunal for guardianship orders be made in the name of the Local Health District (LHD) or Specialty Network, rather than the name of an individual health professional.
2. Section 9(1)(d) of the Guardianship Act 1987 (NSW) (the Act) provides that an application for a guardianship order can be made by the person who is the subject of the application, the Public Guardian or 'any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person'. "Person" is defined in s 21 of the Interpretation Act 1987 (NSW) as including 'an individual, a corporation and a body corporate or politic'.
3. The Tribunal is satisfied that ISLHD is a 'person' for the purposes of s 9(1)(d) of the Act. The Tribunal is satisfied that statutory functions and purpose of a LHD provide a basis for the conclusion that the ISLHD is able to have a genuine concern for Mrs EOK. The Tribunal, therefore, is satisfied that ISLHD has standing to make a guardianship and financial management applications for Mrs EOK in this matter (see NEJ [2017] NSWCATGD 1).

Evidence

1. The evidence before the Tribunal included the following: 1. Applications for guardianship and financial management. With regard to guardianship, it was stated that Mrs EOK is faecally incontinent and unaware; she is unable to change soiled pads herself; she is non-compliant with medication and insulin, if unsupervised; and carers, transport officers, and hospital staff have had longstanding concerns about Mrs EOK's son's capacity to care for her at home. It was stated that Mrs EOK requires placement, but her son maintains that she should be discharged home. The application noted that, on 2 June 2017, when Mrs EOK was informed that a guardianship application would be lodged, Mr BOT indicated that he may try to take his mother home. 2. In relation to financial management, it was stated that Mr BOT is currently managing Mrs EOK's finances as her attorney. However, there are concerns that, if Mrs EOK were to be discharged to a residential aged care facility, Mr BOT would be unwilling to complete an Assets and Income Assessment Form for Centrelink. It is unclear whether the house Mr BOT resided in with his mother is in his name or hers. He has reported that all household bills are in his mother's name, but he pays them from either her account or his. 3. Appointment of Enduring Guardian, executed on 19 August 2016. Under the instrument, Mrs EOK has appointed Mr BOT as her enduring guardian. 4. Appointment of Enduring Power of Attorney, executed on 19 August 2016. Under the instrument, Mrs EOK has appointed Mr BOT as her attorney. 5. Copy of a MoCA administered on 7 June 2017, in which Mrs EOK scored 7/30. 6. Social Work Report by Ms W. Ms W referred to reports from a number of sources, including Mrs EOK's Care Coordinator with a service provider, her Non-Emergency Patient Transport (NEPT) manager, Nursing Unit Manager at Public Hospital A's Renal Unit, and staff at the Private Hospital relating to Mrs EOK's state of personal hygiene due to her incontinence. She reported that the issue is exacerbated by Mrs EOK's refusal to wear pads, her soiled clothing, her lack of insight into or awareness of her incontinence, her son's absences from home and his unavailability to assist his mother. Ms W noted that both Mrs EOK and her son have declined extra services at home and Mr BOT denies that Mrs EOK is faecally incontinent. She also referred to Mrs EOK's lack of compliance around medication and Mr BOT's lack of insight into Mrs EOK's medication. Ms W stated that patient transport services have reported that they will not be able to transport Mrs EOK for dialysis purposes in a van with other patients due to her being faecally soiled. She expressed concern that Mrs EOK's health will be further compromised if she were to be return home upon discharge. 7. Neuropsychological Assessment Report by Ms X, Clinical Neuropsychology Registrar, Medical and Rehabilitation Psychology Department of Public Hospital C, dated 1 June 2017. Ms X provided a detailed medical background in relation to Mrs EOK and noted that she has a complex medical situation. She is currently diagnosed with type-2 diabetes, hepatitis B, end renal failure (on a background of diabetic nephropathy and receiving dialysis three times per week), secondary hyperparathyroidism, cognitive impairment (particularly in short term memory), fatty liver disease, urinary and faecal incontinence, supraventricular tachycardia, metastatic breast cancer, and hypertension. Mrs EOK is regularly transported to hospital for dialysis. 8. It was stated that she was admitted to hospital in March 2017 after she was found by ambulance staff on the floor, short of breath and incontinent of faeces. She has been an inpatient at Public Hospital A, Public Hospital B, and the Private Hospital. She was admitted to the Private Hospital to await home modifications. However, during this admission, concerns about Mrs EOK's ability to manage at home with the current level of care provided by her son were raised. In particular, concerns were raised by Mrs EOK's geriatrician, Dr Y, in relation to her being faecally incontinent and not being aware of episodes of incontinence. In relation to her care at home, it has been reported that she is frequently soiled when attending dialysis, she has not received her medications, and she may be at risk of poor nutrition. Particular concerns include Mrs EOK being soiled of faeces when NEPT services arrive to collect her from home, and her son not being present at times to assist her with entering or exiting her home. Due to risk of harm, NEPT staff have ceased transporting her to and from the Renal Unit. Home modifications have been undertaken during Mrs EOK's current admission to improve access to the home. 9. Ms X assessed Mrs EOK as being unable to take in and retain new information; or to use information about her health and care needs to inform her accommodation decisions. Her desire to return home is not based on an accurate, current knowledge of her health needs. It was stated that, in view of Mrs EOK's cognition and stated knowledge of her care needs, she cannot be relied upon to make informed decisions in relation to her long term accommodation and care. 10. Letter from an Acting Nursing Unit Manager at the Private Hospital, dated 7 June 2017 where she stated that Mrs EOK is non-compliant with her renal diabetic diet and fluid restrictions. She consumes food products inconsistent with her diet, which are provided to her by her son. She is at times incontinent of urine and faeces and often unaware of or denying that she has been incontinent. She requires assistance with dressing and undressing, as well as with mobility. She also has no knowledge of the medications she is on. 11. Letter from a Nursing Unit Manager, Renal Unit, of Public Hospital A where she stated that Mrs EOK commenced dialysis sessions on 22 August 2011 and, from the outset, the renal nursing staff have had 'justifiable' concerns regarding her care at home, including personal hygiene, mobility, and medication management. In 2014, Mrs EOK had several hospital admissions due to falls and 'deconditioning'. At around this time, Mr BOT had undergone surgery for a partial amputation of his foot. Nursing staff began noticing Mrs EOK arriving in the same clothes for successive sessions and requesting food to take home. In 2015, Mrs EOK presentations to the emergency department with falls and hypoglycaemia increased. Nursing staff noticed Mrs EOK arriving in the same clothes, which were often soiled. Concerns were also raised by ambulance services. Despite increase in her care needs, Mrs EOK and her son refused care placement. As access to Mrs EOK's property was an issue, Mrs EOK was readmitted to hospital. She continued to arrive at dialysis with soiled clothes, despite being provided with new clothes by staff and other patients. The Nursing Unit Manager noted that Mrs EOK's health and physical condition have deteriorated on each occasion that she has been discharged home to the care of her son. 12. Occupational Therapy Report by Mr U, Occupational Therapist at the Private Hospital. Mr U stated that Mrs EOK lacks insight into her care needs, particularly around hygiene and faecal incontinence. She is unable to manage her own incontinence and her son has reported that he is unable to provide assistance in this area. She needs to be in a clean state for her regular transport to and from dialysis. Mr U also stated that Mrs EOK has complex medical issues and she is on a strict medication regime. Whilst Mrs EOK has indicated that her son supervises her insulin intake, Mr BOT has advised that he does not know her insulin routine and she administers the insulin it herself. She has poorly controlled insulin dependent diabetes which needs close monitoring. 13. Health Professional Report by Dr Z on behalf of Dr Y, geriatrician at the Private Hospital. Dr Z stated that Mrs EOK suffers from moderate to severe dementia, as well as a range of other ailments. He stated that Mrs EOK has significant cognitive impairment and complete lack of insight into the severity of her impairment, which make her unable to take in new information about complex medical conditions. She suffers from double incontinence and diabetes and her son does not clean her or manage her insulin intake. Mrs EOK denies that she is incontinent.

The Guardianship Application

1. The questions which had to be decided by the Tribunal were: 1. Is Mrs EOK someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions? 2. Should the Tribunal make a guardianship order and if so, what order should be made? 3. Who should be the guardian? 4. How long should the order last?

Is Mrs EOK someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

1. Section 14 of the Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/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), 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; 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), the Act).
2. The Tribunal found the medical evidence before it strong, consistent, and convincing. On the basis of this evidence the Tribunal was satisfied that Mrs EOK suffers from dementia and significant cognitive impairment. The Tribunal was satisfied that Mrs EOK lacks insight into her condition, circumstances and needs. This was consistent with Mrs EOK's evidence and presentation at the hearing. Mrs EOK repeatedly denied that she suffered from dementia or that she was incontinent. When asked why she was in hospital, she said she could not walk. However, she did not know the cause of her immobility or how long she had been in hospital.
3. On the basis of the above evidence, the Tribunal was satisfied that Mrs EOK has a disability which prevents her making important life decisions in an informed manner. She 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?

1. Ms W' evidence to the Tribunal was consistent with her detailed report. She told the Tribunal that Mrs EOK was admitted to Public Hospital A on 13 March 2017 and subsequently she was transferred to another Public Hospital and then to Private Hospital B. However, from the outset, hospital staff were concerned and became aware of longstanding issues in relation to the manner in which Mrs EOK was being cared for at her home in relation to her incontinence, management of her medication and her diet. She noted that there have been frequent episodes of double incontinence in hospital, but Mrs EOK was unaware of or denied having soiled herself.
2. Ms W stated that, as Mrs EOK's primary carer, Mr BOT, did not share the hospital's apprehensions and downplayed the concerns relating to Mrs EOK's incontinence, the manner in which her medication was being managed and her diet.
3. The Nursing Unit Manager, Renal Unit, of Public Hospital A also told the Tribunal that Mrs EOK's condition has deteriorated overtime. Her presentation demonstrated that she was not being cared for as well as she had been cared for previously. She had presented incontinent of urine and faces and required assistance by staff at the Renal Unit of Public Hospital A. There were also concerns about her diet at home, which had resulted in high blood sugar levels, particularly in view of her being a renal patient.
4. A Manager at the NEPT services told the Tribunal that he has been involved with transporting Mrs EOK from her home to the hospital for a number of years. He stated that the nurses involved with the service have reported that they frequently observe faeces on Mrs EOK's bed and the floor of her home. At times Mrs EOK had seemed unwell when being picked up due to poor diet or not having eaten.
5. A Registered Nurse at the Private Hospital stated that Mrs EOK has not experienced recent episodes of incontinence. She uses pads and the toilet. However, he noted that Mrs EOK requires assistance with transfer, including to the commode and shower.
6. In his evidence, Mr BOT acknowledged that there have been some episodes of incontinence, but stated that his mother cleans after herself. Mr BOT was also unaware of what medication his mother takes.
7. Mrs EOK told the Tribunal that she can manage with assistance from her son. However, other than the fact that she takes insulin and that she has blood pressure, she was unaware of what other medication she was on. She stated that she uses a Webster Pack. She also stated that she eats just enough as she is not a big eater. Mrs EOK expressed her opposition to the application and said that she did not need a guardian to make decisions for her.
8. The evidence referred to above indicates that Mrs EOK has appointed Mr BOT as her enduring guardian. Thus, prima facie, there is no need for a guardianship order. Any decisions that need to be made for Mrs EOK that she is unable to make herself can be made by the 'appointee' under the relevant instrument. Ordinarily, where a person has made a decision to appoint a guardian, the Tribunal would be reluctant to interfere with the operation of the appointment unless it is satisfied that the appointment was not validly made or is not operating in the best interests of the person. In this context, it is relevant to note the terms of s 6I of the Act, which provide that if a guardianship order is made, 'the order operates to suspend, for the duration of the order, all authority of the enduring guardian to exercise a function under the appointment.'
9. Having carefully considered the evidence before it, in the circumstances of this case, the Tribunal formed the view that the appointment of Mr BOT as enduring guardian was not operating in the best interests of Mrs EOK. Mr BOT's lack of insight into his mother's needs would hinder his ability to make decisions that are in her best interest. Giving Mrs EOK's welfare and interests paramount consideration, the Tribunal decided to make a guardianship order.
10. Relevantly, s 14(2) of the Act provides that, when considering whether or not to make a guardianship order, the Tribunal must have regard to: 1. The views (if any) of: 1. the person, and 2. the person's spouse, and 3. the person's carer and 1. The importance of preserving the person's existing family relationships, and 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.
11. 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).
12. The principles set out in s 4 of the Act provide, amongst other things, that the 'welfare and interests' of a person who has a disability should be given 'paramount consideration' and that 'the freedom of decision and freedom of action of such persons should be restricted as little as possible'.
13. It is therefore relevant to consider whether, having regard to these provisions, there are any important lifestyle decisions to be made about Mrs EOK that cannot otherwise be made informally, under the enduring guardianship.
14. The Public Guardian's view at the hearing was that there is a need for a guardian to be appointed to make decisions for Mrs EOK with respect to her accommodation, health care, medical and dental treatment and services. In the Public Guardian's view, the previous home arrangements have not worked well to the benefit of Mrs EOK and that the Public Guardian should be appointed as substitute decision maker.
15. With regard to the accommodation function, Ms W submitted that, if accommodation decisions were to be made by a guardian, there were concerns that Mrs EOK would not go to the designated accommodation willingly. She has consistently been opposed to being placed in a residential care facility and it is likely that she would be resistant to any attempt to convey her to such a facility. It was submitted that there may be a need for a substitute decision maker to have the power to authorise others to convey Mrs EOK to a residence. The Public Guardian also made a submission pointing out that, based on her observations and past experience, when a person has demonstrated resistance to being taken to a particular place, it would be necessary for the substitute decision-maker to have additional powers to authorise others to facilitate this.
16. Having regard to all the evidence before it, the Tribunal formed the view that it should make a guardianship order, appointing a guardian to carry out the functions of accommodation, health care, medical and dental treatment, and services. The Tribunal was also satisfied that there are sufficient grounds upon which to base a view that it would be necessary for the substitute decision-maker to have additional powers to authorise others to take Mrs EOK to a particular place.
17. Given the principles of s 4 of the Act, the Tribunal is generally loath to provide an appointed guardian with such authority. However, the Tribunal was satisfied, on the evidence, that such an authority is necessary in all of the circumstances, to ensure that Mrs EOK is adequately cared for.

Who should be the guardian?

1. 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 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.
2. 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 [2011] NSWSC 1075, [66]).
3. Section 15(3) of the Act provides that the Public Guardian should not be appointed 'in circumstances in which such an order can be made appointing some other person as the guardian of the person'. For the reasons outlined earlier, the Tribunal was not satisfied that Mr BOT is a suitable person to make important lifestyle decisions on behalf of his mother. In the absence of a suitable and independent private person who has been identified to make decisions in relation to Mrs EOK and having regard to the principles set out in s 4 of the Act, the Tribunal decided to appoint the Public Guardian.

How long should the order last?

1. 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 to ensure that the Public Guardian would be able to undertake important decisions on Mrs EOK's behalf with regard to the functions specified in the Tribunal's order.

Financial Management Application

1. The Tribunal is the Civil and Administrative Tribunal of New South Wales in its Guardianship Division. The Guardianship Division has been assigned the functions of the Tribunal in relation to the Act and some other specified Acts.
2. The making of a financial management order is a function under the Act and is governed by the legislative framework set out in that Act. It is the duty of everyone exercising functions under the Act, including the Tribunal, with respect to persons who have disabilities, to observe the principles set out in s 4 of that Act. A similar duty applies to appointed financial managers pursuant to s 39 of the NSW Trustee and Guardian Act 2009 (NSW).
3. These principles reflect the protective nature of the guardianship jurisdiction (which includes the financial management jurisdiction) but seek to strike a balance between providing necessary protection and promoting empowerment of persons with disabilities including by intruding no more than is necessary on their rights and liberties. Strictly speaking, the financial management regime under the Act, unlike the guardianship regime under that Act, focuses on incapability per se without the requirement to base that incapability on a person's disability. Nevertheless, it will usually be the case that the incapability is so based. In that case, the duty in s 4 is enlivened, including the principle that the welfare and interests of the person are to be given paramount consideration; taking into consideration the views of the person and the importance of preserving the family relationships and the cultural and linguistic environments of the person.
4. The questions to be considered by the Tribunal are: 1. Is Mrs EOK incapable of managing her affairs? 2. Is there a need for another person to manage Mrs EOK's affairs and is it in her best interests for a financial management order to be made? 3. If so, who should be appointed financial manager?

Is Mrs EOK incapable of managing her affairs?

1. The test for determining a person's capability to manage his or her affairs has been described as follows (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 a 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.
2. 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 judgments 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].

1. The medical evidence, detailed above and accepted by the Tribunal, indicated that Mrs EOK has significant cognitive impairment and limited insights. While Mrs EOK appeared to have some knowledge of her finances and assets at the hearing, she was unable to specify what bank account her Age Pension goes into. She also demonstrated confusion in relation to whether the ownership of the house she resided in was in her name or in her son's name. The Tribunal was satisfied that Mrs EOK was not reasonably able to manage her own affairs in a reasonably competent fashion, without the intervention of a financial manager. The Tribunal was satisfied that Mrs EOK is incapable of managing her affairs.

Is there a need for another person to manage Mrs EOK's affairs and is it in her best interests for a financial management order to be made?

1. On the basis of the evidence before it, the Tribunal was satisfied that Mrs EOK has assets to be managed. Her significant cognitive impairment and lack of insight make her vulnerable to self-mismanagement and exploitation.
2. Ms W stated that Mrs EOK's residential home ownership is a significant issue in the present matter and that Mrs EOK and Mr BOT have not been clear as to the ownership of the property. She expressed concern in relation to this uncertainty as an appraisal of Mrs EOK's income and assets would be critical to facilitating Mrs EOK's post discharge accommodation. Ms W noted that Mr BOT had shown reluctance to cooperate with regard to his mother's finances and he would not support any proposition that would be against his own or his mother's wishes.
3. Given that Mrs EOK has an enduring power of attorney, there is only a need for the making of a financial management order to be contemplated if the enduring power of attorney is not operating effectively. The Tribunal has not been asked to review the operation and effect of the enduring power of attorney made by Mrs EOK. However, the effectiveness of the enduring power of attorney is crucial in the Tribunal's determination as to whether or not a financial management order should be made for Mrs EOK.
4. An attorney appointed pursuant to an enduring power of attorney is in an important position of trust and must always make decisions and act in the principal's best interest. There are important life style decisions to be made for Mrs EOK and the effectiveness of the enduring power of attorney is critical in ensuring that Mrs EOK's financial affairs are managed in a manner that would facilitate and support the proper execution of these decisions. As already noted, in this case, Mr BOT lacks insight into his mother's situation and needs. It did not appear to the Tribunal that Mr BOT, at least in the interim, was making financial decisions that are in his mother's best interests.
5. The making of a financial management order suspends the operation of the enduring power of attorney for the duration of the financial management order. After considering the evidence, the Tribunal was satisfied that there is a need to appoint someone to manage Mrs EOK's affairs and it is in her best interests that an order be made.
6. On the face of the evidence, Mrs EOK's assets are not particularly significant. At present, it is critical that her income and finances are managed in a manner that would facilitate and support the execution of lifestyle decisions, particularly accommodation decisions. Having regard to the principles set out in s 4 of the Act, the Tribunal was satisfied that there was no need for an ongoing financial management order, as the matters that need to be addressed in relation to Mrs EOK's affairs can be dealt with within a limited period of time. In view of these circumstances, the Tribunal was minded to make a reviewable financial management order in respect of Mrs EOK for a period of nine months.

Who should be appointed as financial manager?

1. 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.
2. 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.
3. For the reasons outlined above, Mr BOT did not impress the Tribunal as a forthright person with the knowledge, insight and judgment required to manage Mrs EOK's financial affairs in the near future.
4. In the circumstances, in the absence of any other suitable private person being available and willing to be appointed as financial manager, the Tribunal appointed the NSW Trustee and Guardian as Mrs EOK's financial manager.

Endnote

1. Ministry of Health - System Relationships and Frameworks, The Guardianship Application Process for Adult Inpatients of NSW Health Facilities, (Guideline No GL2016_026, NSW Ministry of Health, 4 November 2016). 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: 12 January 2018