EYN [2020] NSWCATGD 10

Does the Commissioner Ageing and Disability Commission have standing to bring the application?

Guardianship Act 1987 (NSW)

1. Section 9 of the Guardianship Act 1987 (NSW) ("the Act") provides that the following persons may apply to the Tribunal for a guardianship order: 1. the person who is the subject of the application; 2. the Public Guardian; or 3. any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.
2. Section 25I(1) of the Act provides that the following persons may apply to the Tribunal for a financial management order: 1. the NSW Trustee and Guardian; or 2. a person who is the subject of the application 3. any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.

Ageing and Disability Commissioner Act 2019 (NSW)

1. Section 4 of the Ageing and Disability Commissioner Act 2019 (NSW) ("the ADC Act") sets out the objects of the Act and principles which must be considered by the Commissioner or any other person when exercising functions under the Act. 4 Objects and principles of Act (1) The objects of this Act are - (a) to protect and promote the rights of adults with disability and older adults, and (b) to protect adults with disability and older adults from abuse, neglect and exploitation. (2) When exercising a function under this Act, the Commissioner or any other person must have regard to the objects of the Act and the following principles - (a) adults with disability and older adults have the right to respect for their worth and dignity as individuals and to live free from abuse, neglect and exploitation, (b) adults with disability and older adults have the right to respect for their cultural and linguistic diversity, age, gender, sexual orientation and religious beliefs, (c) adults with disability and older adults have the right to privacy and confidentiality, (d) adults with disability and older adults have the right to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports and services, (e) families, carers and other significant persons have a crucial role in the lives of adults with disability and older adults and it is important to respect and preserve those relationships.
2. Section 5 of the ADC Act provides that: 1. The Governor may appoint an Ageing and Disability Commissioner. 2. The Commissioner holds office for the term, not exceeding five years, specified in the instrument of appointment, but is eligible for re-appointment. 3. A person is not eligible to be appointed for more than two terms of office as Commissioner (whether or not consecutive terms). 4. The office of Commissioner is a full-time office and the holder of the office is required to hold it on that basis, except to the extent permitted by the Minister.
3. Section 6(3) of the ADC Act provides that the office of Commissioner is a statutory office.
4. Section 11 of the ADC Act provides that the Commissioner may delegate any of the Commissioner's functions to any member of the staff of the Commissioner.
5. The functions of the Commissioner are outlined in s 12 of the ADC Act, as follows: 12 Functions of Commissioner (1) The Commissioner has the following functions - (a) to deal with allegations of abuse, neglect and exploitation of adults with disability and older adults, whether on the basis of a report made to the Commissioner or at the Commissioner's own initiative, including by referring matters to appropriate persons or bodies and by conducting investigations, (b) to take further action, following an investigation into an allegation of abuse, neglect or exploitation of an adult with disability or older adult, that the Commissioner considers necessary to protect the adult from abuse, neglect and exploitation, including by making an application to a court or tribunal in respect of the adult, (c) to raise awareness and educate the public about matters relating to the abuse, neglect and exploitation of adults with disability and older adults, (d) to provide advice and general assistance to the public about matters relating to the abuse, neglect and exploitation of adults with disability and older adults, including referrals to independent advocacy services, where appropriate, (e) to inquire into and report on systemic issues relating to the protection and promotion of the rights of adults with disability and older adults or the abuse, neglect or exploitation of adults with disability or older adults, (f) to consult with the Board on matters relating to the abuse, neglect and exploitation of adults with disability and older adults that the Commissioner considers appropriate, (g) to advise, and make recommendations to, the Minister, at the Commissioner's own initiative or at the request of the Minister, on matters relating to the abuse, neglect and exploitation of adults with disability and older adults, (h) to monitor, assess and report on the New South Wales implementation of the National Disability Strategy (NDS). (2) The Commissioner has any other functions that are conferred or imposed on the Commissioner by or under this or any other Act. (3) The Commissioner is not subject to the control or direction of the Minister.

Interpretation Act 1987 (NSW)

1. Section 19(1) of the Interpretation Act 1987 (NSW) provides that: In any Act or instrument, a reference to a particular officer or to the holder of a particular office includes a reference to the person for the time being occupying or acting in the office concerned.
2. Section 21 of the Interpretation Act defines "person" as including "an individual, a corporation and a body corporate or politic".

THE COMMISSIONER'S SUBMISSION ON STANDING

1. In a submission dated 17 April 2020 the Commissioner submits the following regarding standing: 1. The Ageing and Disability Commission commenced operation on 1 July 2019 and its responsibilities include responding to reports of abuse, neglect and exploitation of adults with a disability and older people in NSW. 2. Section 12(b) of the ADC Act provides that a function of the Commission is to take action to protect the adult from abuse, neglect and exploitation, including by making an application to a court or tribunal in respect of the adult. 3. The Commissioner is a statutory officer pursuant to s 6(3) of the ADC Act and meets the definition of "person" under the Interpretation Act. 4. On the basis of information held by his office, the Commissioner holds a genuine concern for EYN's welfare. 5. Section 11 of the ADC Act provides that the Commissioner may delegate his functions and he has done so in respect of the application made on his behalf by Mr Munro.

CONSIDERATION OF THE FUNCTIONS AND RESPONSIBILITIES OF THE COMMISSIONER

1. The office of the Ageing and Disability Commissioner is a creature of the ADC Act and that office is held by a person who is empowered to delegate any of his functions to staff: s 11 of the ADC Act.
2. The ADC Act provides that the purpose of the Act includes investigation and protective functions in relation to older adults or those with disability: see s 12 of the ADC Act above. Subsection (1)(b) of that Act, in particular, provides as follows: to take further action, following an investigation into an allegation of abuse, neglect or exploitation of an adult with disability or older adult, that the Commissioner considers necessary to protect the adult from abuse, neglect and exploitation, including by making an application to a court or tribunal in respect of the adult
3. It is a presumption of statutory interpretation that a grant of power carries with it everything necessary for its exercise. In Herzfeld and Prince's Interpretation, the authors give the following commentary on the presumption (citations omitted): A grant of power carries with it everything necessary for its exercise. This is captured in the Latin maxim ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest. It is a long-established proposition. In this context, "necessary" does not mean "essential" but rather covers what is reasonably necessary for the accomplishment of what is expressly provided. The proposition that a grant of power carries with it everything necessary for its exercise is an aspect of the presumption that legislatures intend to enact legislation that is not futile. [1]
4. A similar presumption to this maxim is also discussed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at [71], where the plurality of the High Court made the following comments (citations omitted): (1) Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume, Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
5. Standing to bring an application in a court or tribunal is prima facie necessary to exercise the power to bring an application, though the power in s 12(1)(b) of the ADC Act does not specify which courts or tribunals the power can be exercised, or whether any are excluded.
6. Generally speaking, standing in any legal action is only available to legal persons. Indeed, a distinctive feature of legal personhood is the ability to bring actions in court (or a tribunal). To grant the function under s 12(1)(b) of the ADC Act to the Commissioner, without intending the Commissioner to be considered a "person", would therefore leave that function with very little, if any, work to do.
7. At a minimum, if the ADC Act was not intended to equip the Commissioner with legal personhood for the purposes of standing in the Guardianship Division, the function under s 12(1)(b) of that Act would be ineffectual to the extent that the Commissioner would lack standing to bring applications to the Division with jurisdiction to hear applications made on the basis of concerns for the welfare and best interests of people who are aged or who have a disability.
8. Taking into account the legislative provisions and legal principles set out above, we are satisfied that: 1. The office of the Commissioner is held by a person. As persons with a genuine interest in the welfare of the subject person have standing to make application to the Tribunal for guardianship and financial management orders, the Commissioner has standing to make an application if it is with a genuine interest in the welfare of the subject person. 2. Further, it is necessary that the Commissioner has legal personhood for the purposes of standing in the Guardianship Division to give effect to the ADC Act and its objects and principles. Consistently with the principle of statutory interpretation that a grant of power carries with it all that is necessary for its implementation and to give effect to the words of the statute, it is necessary for the Commissioner to be considered a person who has standing if bringing to the Tribunal a matter with a genuine interest in the welfare of the subject person.
9. The objects and functions of the ADC Act make clear that it is the role of the Commissioner to protect adults with disability and older adults from abuse and neglect and to have regard to the principles of the Act including the rights of older people. When exercising a function under the ADC Act, the Commissioner is required to have regard to those objects and other principles. In our view, the objects of the Act provide a basis for the Commissioner being a person who can have a genuine interest in the welfare of a person subject to an application.

Does the Ageing and Disability Commissioner have standing in this matter?

1. In accordance with the analysis above, we are satisfied that the Commissioner is able to bring an application to the Tribunal with a genuine concern for the welfare of the subject of the application.
2. In this matter, no-one opposed the standing of the Commissioner to bring the application and as EYN's separate representative, Ms Dudhee expressed the view that the Commissioner had standing in respect of the application.
3. The concerns of the Commissioner were expressed in the applications and other documents submitted on his behalf by Mr Munro. In respect of EYN these include that: 1. she had been diagnosed with dementia; 2. there were allegations that she might be being exploited by neighbours; 3. she had admitted to giving away money to people in the community; 4. her home might no longer be appropriate to her needs; 5. she had missed medical appointments and declined assessment for aged care services.
4. We are satisfied that the matters brought to the attention of the Tribunal by the Commissioner: 1. are ones that are within his statutory responsibility; and 2. are matters that could raise genuine concerns about EYN's welfare; and we are satisfied that the Commissioner has standing to make the application.

Preliminary Matter - identification of parties

1. FZJ and Ms Z submitted that they were EYN's carers.
2. Section 3F(2)(d) of the Act provides that the person who has the care of a person subject to an application is a party to a guardianship application and s 3F(5)(d) of that Act provides that such a person is a party to an application for financial management.
3. Section 3D of the Act provides that for the purposes of the Act, the circumstances in which a person is to be regarded ashaving the care of another person include where the person, otherwise than for remuneration, provides domestic services and support to the other person, or arranges for the person to be provided with such services and support.
4. As a preliminary matter we questioned Ms Z and FZJ as to their role in providing domestic services and support to EYN.
5. Ms Z said that she has helped EYN on a number of occasions including in the following ways: 1. Taking EYN to her doctors' appointments and going into medical consultations with her when invited. She indicated that she was invited into Dr Y's surgery when EYN saw Dr Y. 2. In January 2020, intervening when EYN's kitchen and bathroom flooded. She had also contacted NSW Housing maintenance staff regarding an electrical fault with the light in EYN's bathroom.
6. FZJ commented to the following effect in respect of his role in providing domestic services and support for EYN: 1. He has provided care for EYN on an unofficial basis for the past three years. Specifically: 1. he visits daily for coffee and on most days he and EYN go for a walk. He brings her dog to see her on a daily basis and takes her shopping. They lunch together on food prepared by EYN and watch television together. 2. he keeps Ms X and her daughter and Ms Z away from EYN. 3. he takes EYN to medical appointments with Dr W.
7. FZJ also provided a copy of a Centrelink application he had made to be considered EYN's carer which included the written endorsement of EYN. The details of FZJ's application are summarised below in the body of these Reasons. On a preliminary view, the Tribunal considered that the detail in that application was somewhat inconsistent with FZJ's other submissions regarding his role in respect of EYN's day-to-day lifestyle and EYN's evidence on this point and we did not consider it as evidence of the claims contained in it.
8. During the hearing, EYN said that FZJ assists her by driving her to the shops and visiting each day for coffee and to check on her, but that she does not consider him to be her carer.
9. Ms Dudhee noted that Ms Z had been considered EYN's carer by Dr Y, but was of the view that neither Ms Z nor FZJ should be considered by the Tribunal as people that had the care of EYN.
10. On the basis of the evidence and submissions of Ms Z and FZJ, and talking into account the views of EYN and the separate representative, we were of the view that Ms Z and FZJ have assisted EYN in practical everyday matters, as neighbours, but were not providing domestic services or support or arranging for those services and support. Accordingly we were not satisfied that they are persons who have the care of EYN.

Preliminary Matter - joinder

1. FZJ made an application to be joined as a party.
2. The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined: s 44(1) of the Civil and Administrative Tribunal Act 2013 (NSW). For proceedings in the Guardianship Division of the Tribunal, the Tribunal must be satisfied that the person should be joined (whether because of the person's concern for the welfare of the person the subject of proceedings or for any other reason): cl 7(1), Sch 6 of the Civil and Administrative Tribunal Act.
3. In his application to be joined as a party FZJ submits the following: 1. He is a "best friend" of EYN and they have coffee and go for walks together each day. They also occasionally share meals and watch television together. He has visited her daily for the past three years. 2. He has no concerns for EYN's welfare as she is able to "look after herself". 3. He has been EYN's "carer" for the past month.
4. As noted above, in the Hearing Report dated 22 April 2020 the Tribunal Officer advised that when contacted, after a short discussion EYN handed the telephone to FZJ and prior to doing so, EYN reported having received assistance from FZJ.
5. In a typed letter signed by EYN, FZJ is described as EYN's best friend.
6. Ms Dudhee opposed FZJ's application to be joined as a party to the hearing.
7. We were satisfied that FZJ has had frequent contact with EYN over some years and that EYN considers FZJ as a friend who is concerned for her welfare. On a preliminary view of the material we were satisfied that for these reasons he should be joined as a party to the hearing.

Evidence and submissions of Mr Munro on behalf of the Commissioner

1. In his written and oral submissions and evidence Mr Munro indicated that EYN was agreeable to the application being made. He raised a number of matters including the following: 1. EYN's GP has raised issues about her memory impairment and had suggested that applications be made to the Tribunal. 2. EYN has been diagnosed with dementia. 3. EYN has missed medical appointments and was not able to describe her medication regimen and had missed taking her medication for two days in a row. 4. EYN had declined assessment for aged care services. 5. EYN's three-storey home may not be suited to her current needs because she has difficulty negotiating the stairs. 6. There are concerns that FZJ has keys to EYN's home. He and another male have been visiting EYN's home frequently despite social distancing requirements implemented due to the COVID-19 virus. 7. Neighbours have raised concerns that EYN may be being financially exploited by FZJ or other male friends who take her to a service station and to the bank where she withdraws money. There are also concerns that FZJ tells her that she has debts that she does not have. 8. EYN has said that she had previously given money to people in the community. 9. Ms Z has helped EYN with attendance at medical appointments and to complete a form to request a change in her Department of Housing accommodation. At a medical centre, Ms Z is noted as EYN's carer. This appears to be an informal arrangement and Mr Munro is of the view that Ms Z would not be suited to being appointed as EYN's guardian due to complex social issues in the neighbourhood and her own responsibilities.
2. In a letter to the Tribunal dated 22 April 2020, Mr Munro advises the following: 1. He has had numerous telephone calls with EYN and has met her three times in the past two months, the most recent being two days prior to when she was contacted by the Registry officer whose report indicates that EYN did not recall who he was. 2. On 20 April 2020 he attended EYN's home and showed her the application to the Tribunal which he discussed with her. She remained agreeable to the application. He was accompanied on the visit by the Mr V with whom he left a copy of the documents for the hearing. 3. During the visit on 20 April 2020 EYN's knee was visibly swollen. He spoke to EYN about her health and medical matters and she responded to the following effect: 1. Her knee had been swollen for two years since a car accident and this was also affecting her left ankle. Recently Ms Z accompanied her when she had an X-ray in relation to this injury. She did not know if she had any follow up appointments resulting from the X-ray. She had not recalled other referrals to specialists that had been made by her GPs. 2. EYN said that she does not take any medications. When prompted she recalled that she has medication in a blister pack. Upon checking, she was prescribed one tablet every morning and she had not taken the tablets on two mornings. 3. When spoken to about the need for social distancing in response to the COVID-19 virus she said that she would not be going anywhere or having anyone in her home. She said that she had been out with "[FZJ]" in his car the previous day. 4. When asked about pets EYN said her dog had died. However Mr Munro later discovered that Ms X was caring for EYN's dog, which EYN had seen two days previously.
3. During the hearing Mr Munro said that he is concerned that EYN is being unduly influenced by FZJ. He was also of the view that EYN would not have had the capacity to write the typed letter purporting to be from her and dated 29 April 2020 and he submitted that it was written by FZJ.
4. Mr Munro said that he believes there is a need to appoint a guardian to make the following decisions for EYN: 1. To decide where she should live, because in his discussions with EYN she had indicated that she loves her current home but that she would like a smaller house. He said that when he climbed the stairs to the top (third) floor of the home with EYN, she was out of breath. 2. To decide about the services to assist her in her day-to-day life. He said that in March 2019 EYN had been assessed as eligible for services by the Aged Care Assessment Team (ACAT) but her file was marked "unable to provide services". He was not aware of the reason for that notation and requested a repeat ACAT assessment that was attempted in February 2020 at which time EYN had said that she did not need assistance and only needed a smaller house. 3. To make decisions about her access to others, because both FZJ and Ms Z have been involved in EYN's life but access is now denied to Ms Z. He had seen a video made on 22 January 2020, which recorded FZJ verbally abusing Ms Z when she attempted to enter EYN's home. FZJ threatened to call police to prevent Ms Z visiting EYN. Mr Munro thought that FZJ's behaviour was intimidating and threatening and in his view, such occurrences are not in EYN's best interests.
5. In respect of EYN's financial affairs, Mr Munro said that: 1. EYN had told him that no-one had stolen from her but she had given money away to local children. 2. he was concerned about allegations that EYN was being financially exploited; 3. noting that EYN still had a swollen knee resulting from a previous car accident it was possible that action could be taken on her behalf to secure some financial compensation for the injury.

Evidence and views of FZJ

1. FZJ provided numerous written documents to the Tribunal. In those documents he records his own opinions and allegations about Mr Munro and about Ms Z and other neighbours of EYN. He accuses Ms Z and other neighbours of dishonesty and illegal drug use. The Tribunal has no evidence regarding these allegations and we reach no conclusions about them.
2. FZJ commented to the following effect regarding EYN's financial affairs: 1. He denied that he has exploited her financially. 2. He said that EYN's PIN was written on a piece of paper which is missing, as was her debit card. On 30 April 2020, FZJ went to the bank with EYN to change the PIN in case Ms Z tried to use the missing bankcard. 3. FZJ provided the Tribunal with documentation regarding EYN's purchase of a leather lounge indicating that the purchase price was $1500. She had paid four instalments and had $598 to pay. FZJ notes that he had advised EYN not to make the final payment until the lounge was ready for delivery. 4. EYN had $1000 in her bank account and about $500 would be needed to replace the locks on her house because she had given keys to Ms Z and another neighbour who have since returned the keys, but may have copied them. 5. EYN gives her grandson $50 per month.
3. FZJ provided copies of emails that he had sent to Ms Z and other neighbours. 1. In an email written to Ms X on 28 April 2020 he indicates, on behalf of EYN, that "we are going to court to get a restraint order against all three of you women". He completes the email with his name "as [EYN]'s Carer". 2. In an email dated 28 April 2020 to Ms Z he states that he will call the police "every time any of you three women come to [EYN]'s home". He also states "As [EYN]'s carer I instruct you to stop calling ([EYN]) and stop harassing her at her home." 3. In other emails, FZJ accuses Ms Z and other neighbours of wanting to acquire EYN's Housing NSW home and accuses them of being known criminals and drug users.
4. FZJ provided a copy of a Centrelink Application for a Carer's Allowance for care provided to EYN. He indicates that he provides the following care: 1. One hour per week assisting with personal hygiene including assistance with bathing, teeth care or toileting. 2. Five hours per week assisting with mobility around the home including moving around the house, up and down stairs or supervising EYN to ensure that she does not fall. This category specifically excludes driving EYN to do her shopping or banking. 3. One hour per week assisting with eating and drinking including supervising eating and drinking, feeding or ensuring that EYN does not choke. 4. Seven hours per week assisting EYN to communicate her needs or assisting her to interpret or understand information because of her disability or medical condition including explaining or relaying information of assisting her to use equipment including a hearing aid. This category specifically excludes reading aloud to EYN, watching television with her or arranging special outings. 5. Two and a half hours per week assisting with care and treatment including helping EYN to take medication or have treatment or prompting or supervising medication. 6. Seven hours per week helping EYN with safety and behaviour including not letting her wander, removing her from dangerous situations, preventing injury to herself and damage to her property, monitoring behaviour, preventing inappropriate behaviour and reassuring or calming her if she were distressed.
5. The Centrelink application is countersigned by EYN with the comment: "Person for whom care is given agrees with the attached declaration".
6. FZJ said that he had been asked by police to be EYN's carer to protect her from others, including Ms Z. He said that police request was issued when he called the police to EYN's house when he wanted to prevent Ms Z from entering the house. He did not deny an account by Ms Z of FZJ's aggressive confrontation that she filmed on her telephone on 22 April 2020 and which Mr Munro referred to in his submissions.
7. FZJ was of the view that Ms Z had "tailgated" EYN into her consultation with Dr Y and also said that in his view, EYN had only seen Dr Y two or three times.
8. FZJ said that in his view EYN is able to cope in her home. She is easily able to reach the second floor and does not need to reach the third floor because that bedroom is for him. When asked further about his claim on the third floor bedroom FZJ said that his entitlement is based on his role as EYN's carer. In response to the Tribunal's request for further information on this matter he said that he provides care for another person and he had been advised by NSW Housing that he was entitled to stay in that person's home for four weeks at a time. He assumed that as EYN's carer he would be entitled to the same occupancy rights. He said that he had not yet stayed in the house on that basis.
9. When it was put to FZJ that some neighbours were of the view that he was isolating EYN from others, FZJ denied that this was the case and described Ms Z and others as "known villains".
10. FZJ proposed that if the Tribunal were to make a guardianship order he wished to be appointed as the guardian. He indicated the following in respect of how he might make decisions as the guardian: 1. To make a decision about accommodation he would ask EYN what she wanted to do and if he thought that she could not make the decision he would consult with Dr W. 2. When it was put to him that he could have a conflict of interest in making a decision about accommodation due to his claim that he had a right to occupy the bedroom on the third floor of her current home, he denied that there was a conflict on the basis that he had not yet used the room. 3. FZJ said that he would consult with Dr W if necessary about EYN's need for services but indicated that in his view she has a good circle of friends to assist her. 4. In respect of decisions about access he clearly indicated throughout the hearing his views that Ms Z and other neighbours should not have contact with EYN.

Evidence and views of Ms Z

1. During the hearing Ms Z said that, in addition to the tasks she outlined in response to the Tribunal's questioning in relation whether she was a person who provided care to EYN, she also assisted EYN in the following ways: 1. Receiving emails on behalf of EYN and advising her about appointments and other matters that were the subject of the emails. 2. Checking that her food was not past its use-by date.
2. Ms Z advised that on 22 April 2020 she made a video recording on her telephone of FZJ verbally abusing her when she visited EYN to remind her of a medical appointment, at which time she insisted to FZJ that EYN has a right to see whoever she wanted to see.
3. Ms Z indicated that in her view, FZJ isolates EYN, including by sending text messages to warn off people who have contact with EYN.

Views of health and medical practitioners

1. In a letter dated 21 March 2020 addressed to Mr Munro, Dr Y of the medical centre, states the following: 1. EYN attended the surgery on 18 March 2020 with "Janine" who she indicated was her preferred carer. 2. On 18 March 2020 EYN scored 20/30 on the Mini Mental State Examination (MMSE) which suggests "early Alzheimer's dementia". EYN acknowledged memory problems. 3. Dr Y considered it "prudent" to make applications to assist EYN manage her medical and financial affairs.
2. In a letter dated 22 April 2020 Mr U, a pharmacist at a chemist store in Sydney indicates that EYN had been his customer since March 2013 and is knowledgeable about her medications and pharmacy treatments. EYN had asked that he state that she is a competent person and from his "many dealings" with her, he believed her to be so.
3. In a letter dated 22 April 2020 addressed to Mr Munro, Dr Y indicates the following: 1. On the date of the letter EYN saw Dr T, whom she had not seem before. This was unusual as EYN usually saw Dr Y. 2. EYN apparently provided Dr T with a copy of a form apparently completed by FZJ requesting to be joined as a party to the NCAT hearing.
4. In a Health Professional Report Form dated 23 April 2020, Dr Y again refers to the score of 20/30 on the MMSE and indicates the following additional matters: 1. She has known EYN for 14 months and sees her every one to two months and most recently saw her on 18 March 2020. 2. In her view EYN has moderate dementia which she has had at least since early 2019. EYN's other medical conditions include a pacemaker inserted in November 2019 and bilateral knee replacements. 3. In her view EYN's condition affects her decision making ability in the following ways: 1. Her dementia affects her ability to make decisions about her living arrangements and care; 2. Her memory impairment and possible episodes of dizziness indicate a need to assess suitability of her accommodation; 3. She needs help to make and remember medical appointments and she forgets if she has taken her medication. She needs a Webster Pack for her medication; 4. Due to her cognitive impairment she is vulnerable to financial abuse.
5. In a Summary Health List dated 24 April 2020 Dr W indicates the following: 1. He has been EYN's GP since 2013 but he believes that she has been seeing another GP more frequently than she has seen him. 2. EYN sustained knee injuries in a motor vehicle accident and apart from some pain she has mostly recovered from those injuries. 3. On 17 January 2020 EYN was brought in by a friend who was concerned about EYN's memory impairment. On that occasion she scored 22/30 on the MMSE, which is indicative of mild cognitive impairment. She had been referred to Dr S whom she admitted not to have seen and he had now referred her to see Dr R, a psychogeriatrician. 4. In his view, EYN was "not doing too badly" and was "well supported" by her friends and if she were assessed as having a significant degree of cognitive impairment she could be supported at home with a community support package.
6. In a letter dated 28 April 2020, Associate Professor Q provides the following information: 1. Associate Professor Q is a Consultant Geriatrician and Head of Department at a public hospital and a consultant at a medical clinic in Sydney. He has 30 years of experience in the fields of geriatrics and psychogeriatrics. 2. Dr Y referred EYN to him for assessment. He has not seen EYN in person and his knowledge about her was based on telephone discussions with Mr Munro, FZJ, Ms Z, EYN, Dr Y and Dr P, a psychiatric registrar with Aged Care Psychiatry at another public hospital who had visited EYN. 3. EYN has recorded scores of 18/30, 20/30 and 23/30 on the Montreal Cognitive Assessment which is suggestive of mild to moderate cognitive impairment. 4. Based on his enquiries with Dr W, Dr P, Dr Y, Mr Munro and Ms Z and FZJ, it seems that all acknowledged that EYN has short-term memory loss. 5. In his view, there is no need for a further geriatric medical assessment, but he believes it essential that the Tribunal determines her ability to make decisions about her care and her financial affairs. 6. His discussions with others lead him to conclude that EYN is vulnerable and could become the victim of financial abuse. 7. He believes that EYN "is probably suffering from dementia" and he strongly suspects that she has impaired decision-making capacity in relation to financial matters.

Views of Mr O

1. A letter signed by "[Mr O]" was provided to the Tribunal and was marked Highly Confidential. In an email to the Tribunal the Registry officer notes that as Mr O could not be contacted, she spoke to FZJ who consented to the documents being provided to the parties.
2. The document: 1. indicates that Mr O has known EYN for 17 years; 2. indicates that in the writer's view, EYN has short-term memory loss but is able to manage her financial affairs and to make lifestyle decisions; 3. describes FZJ as "kind and generous" and as looking after EYN since 2017; 4. includes material critical of Ms Z and includes allegations of criminality regarding her and other neighbors; 5. claims that: 1. Ms Z "tailgated" EYN into her home and that EYN did not want Ms Z in her home; 2. EYN accepted a lift to a doctor's appointment with Ms Z who then "tailgated" her into a doctor's appointment and declared herself EYN's carer and asked for, and was given, confidential medical information about EYN.
3. Mr O was not in attendance at the hearing and we were not able to question him about his letter.
4. As noted above in respect of similar submission made by FZJ alleging criminality and drug use by Ms Z and other neighbours, the Tribunal has no evidence regarding those matters, and reached no conclusions about them

The views of Ms N

1. Ms N indicates that she is the General Manager of a charitable organisation. In a letter dated 29 April 2020 Ms N comments to the following effect: 1. Ms N has known EYN for about four years. EYN lives about ten houses from Ms N who sees her regularly to conduct "welfare checks" and to deliver food that her organisation delivers to people including the elderly. 2. In her view EYN does not need a guardian. She has Ms N's number and is able to call her at any time. 3. She believes that EYN is well supported by FZJ, whom she has known for five years and whom she considers to be a "good caring person". 4. She believes that EYN can manage her financial affairs.

Evidence and views of EYN

1. A typed letter of more than three pages signed EYN, dated 29 April indicates the following: 1. FZJ is her "only and best" friend and she wants him to be her "enduring guardian". 2. FZJ is her sole beneficiary of her "funeral policy" and she intends to write a will naming FZJ as her beneficiary. 3. Her local GP is Dr W but she has seen Dr Y in the past few months because she prefers a female doctor to discuss women's health issues. Dr Y was deceived by Ms Z and nominated Ms Z as EYN's carer and inappropriately provided her with confidential medical information. 4. She believes that Ms Z has stolen from her.
2. During the hearing EYN agreed that she has some short-term memory loss. She also said that she has been seeing Dr Y recently because she prefers to discuss women's health issues with a woman.
3. EYN said that she had given FZJ keys to her home in case she became unwell.
4. During the hearing EYN said that she was participating using FZJ's telephone and in his company because she had no credit on her telephone.
5. Upon questioning EYN about her affairs we were concerned that FZJ was speaking in the background and we asked him not to prompt EYN.
6. In response to the Tribunal's questions regarding her financial circumstances, EYN indicated the following: 1. She operated her bank account at an ATM using a PIN which no-one else knew. If she were to forget her PIN she would go the bank in person. 2. Her pension income is $700 after payment of her rent. She spends approximately $100 to $200 on groceries and her electricity costs approximately $400 per quarter. 3. She has minimal savings because she had nursed her grandson and paid for his funeral. 4. She had purchased her leather lounge suite herself. She had paid three instalments of $200 and had $500 left to pay. 5. When asked about the suggestions that she attends a service station with male friends and makes withdrawals from the ATM, EYN replied to the effect that she has a number of friends, most of whom are male. She denied giving money to others. 6. If anyone were appointed to manage her affairs she would like it to be FZJ.
7. We sought further information about the payment of the fees for the funeral of EYN's grandson. In his letter to the Tribunal Mr O states that EYN's grandson died in 2017 and during the hearing FZJ said that the funeral was paid for using compensation funds.

Letter to Mr V

1. In his application Mr Munro describes Mr V as the Rev Mr V and states that he is the manager of a community centre at Sydney and describes him as providing support to people in the neighbourhood. Mr Munro indicated that Mr V accompanied him when he provided EYN with the documents relating to the hearing.
2. Prior to the commencement of the hearing the Tribunal contacted Mr V to invite him to participate in the hearing by phoning into a 'virtual hearing room'. He indicated that he did not wish to participate in the hearing.
3. Mr Munro provided the Tribunal with a copy of a series of texts sent to him by Mr V who indicated that he had received the texts from FZJ. Amongst other matters the texts included the following: I will be taking legal action against Mr Mathew Munro for negligence and defamation. I will discuss with my lawyer joining you, [Ms X], [Ms L] and [Ms Z] to the case. I instruct you on [EYN]'s authority to never visit her home again and to never speak to [EYN] ever again. [EYN] and I respected you, we both now feel betrayed by you. You have been party to misinformation and have caused serious harm to [EYN] and I. You have worked with Devils for too long. I will review the case in detail and get advice from my lawyer to instigate criminal conspiracy charges. The thin veneer of concern for [EYN] is not consistent with your facilitation of what I believe may also constitute fraud. CONCLUSION I hope that Your superficial but clever excuse of "concern" for [EYN] will not provide you with a shield against the law pertaining to fraud, criminal conspiracy, defamation, failure in your duty of care and your intentional false and misleading statements and information to the NSW Civil and Administrative Tribunal. In my view the application has form but no substance. I will be providing a copy of my messages to you to NCAT.
4. We note that these texts were not provided by FZJ, and he was not asked about their authorship. However in our view they contain material that is consistent with other comments made by FZJ in written material that he supplied and in his oral submissions to the Tribunal and we are consider it is likely that they were sent by him.

Information and Submissions of the Separate Representative.

1. Ms Dudhee said that she had spoken with EYN by telephone. She had requested that FZJ not be with EYN during the hearing because she was concerned that she would be unable to give her evidence independently if she were in the company of FZJ during the hearing.
2. In her view, EYN is not able to make important lifestyle decisions or to manage her affairs and she endorsed the view of Associate Professor Q that it was prudent to apply to the Tribunal for orders.
3. In her view the Tribunal should make a guardianship order appointing the Public Guardian to make decisions for EYN, and a financial management order committing EYN's affairs to management by the NSW Trustee and Guardian.

What did the Tribunal have to decide?

1. The questions which had to be decided by the Tribunal were:

• Is EYN 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?
• Should the Tribunal make a guardianship order and if so, what order should be made?
• Who should be the guardian?
• How long should the order last?

Is EYN 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 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.
2. The term "social habilitation" is not defined in the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Act, at [303] The expression "social habilitation" (in the context of references to "disability", "restricted", "major life activities" and the word "requires") may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others.
3. In considering this matter we took into account EYN's view that she does not require assistance to function normally in the community and that she is able to make her own lifestyle decision. We also took into account the views of FZJ and Mr O in this respect. However, we placed more weight on the views of the health and medical practitioners.
4. In respect of the views expressed by Mr U, in our view, as a pharmacist who has known EYN for many years, Mr U is likely to be in a position to note any gross impairment in EYN's presentation. However we place less weight on his assessment of her capacity than we do on the medical practitioners.
5. We also took into account the views of Dr Y, Dr W and Associate Professor Q In respect of those views we reached the following conclusions: 1. Despite FZJ's comment that EYN has only seen Dr Y one or two times, we accept the evidence of Dr Y that she has been seeing EYN for about 14 months. This view is supported by Dr W's comment that whilst he has been EYN's GP since 2013 she has been seeing another GP more frequently than she has seen him. 2. Dr Y has treated EYN recently and has expressed a view that she has mild to moderate dementia that impacts on her decision-making ability and she needs to have a substitute decision-maker appointed. We placed weight on Dr Y's view as a practitioner with recent contact with EYN and an opportunity to form a view about her current level of functioning. 3. There is evidence that on three occasions EYN's scores on a cognitive assessment screening test indicate that she has at least a mild level of dementia. 4. Associate Professor Q did not see EYN and appears to have mistaken which screening test was utilised by other doctors to screen for dementia. However, he has had the opportunity of speaking by telephone to EYN and to the medical practitioners who have assessed her, including Dr P whose views were not provided to the Tribunal. 5. Associate Professor Q was also able to take into account the views of EYN's friends and neighbours. 6. Associate Professor Q is a specialist psychogeriatrician and had access to a broad range of information about EYN's presentation, including speaking to her by telephone. In our view, taking into account his professional qualification and the range of information to which he had access he was in a position to form a view of her functioning. Having done so, he concluded that EYN "is probably suffering from dementia" and he strongly suspects that she has impaired decision-making capacity in relation to financial matters and that the Tribunal should consider making the orders sought.
6. Whilst Dr W was of the view that EYN was coping, he considered that she had mild dementia and both Dr Y and Associate Professor Q were of the view that it was likely that her dementia affected her ability to make decisions. We were satisfied that taken together the evidence of medical practitioners was to the effect that EYN has a cognitive impairment that is likely to restrict her ability to manage her person at least partially and to hinder her ability to make major life decisions such that she requires some assistance to live safely in the community.
7. In our view the conclusion noted above is supported by the following additional information provided to the Tribunal: 1. Ms N indicated that she visits EYN regularly to check on her welfare. 2. Whilst FZJ said that he had no concerns about EYN's welfare and that he considers her to be able to look after herself, his evidence was to the effect that he provides care for her. 3. Whilst we consider FZJ's evidence regarding the extent of care provides to EYN to be inconsistent, in his application for a carer's allowance he indicates that he provides a total of 23.5 hours per week of direct care to EYN. In our view if FZJ's claims made in the application for a carer's allowance are true, then her ability to manage her own lifestyle would be quite severely restricted. As noted above, we place little weight on the claims made in that application. However, FZJ's evidence indicates that at a minimum he believes that EYN requires his assistance to protect her from others in the neighbourhood. If this is the case then she requires assistance to live a normal community life. 4. Mr Munro provided his evidence in a clear and restrained manner with apparent objectivity despite accusations made by FZJ that he was misled or that the application was inappropriate. We found Mr Munro to be a consistent and reliable witness. In respect of EYN's capacity we took into account the following evidence provided by Mr Munro: 1. Mr Munro said that he had visited EYN three times, the most recent time being two days before she is reported as telling the Tribunal officer that she did not remember Mr Munro. 2. In our view, in the context of deeply divided neighbours and allegations of EYN being isolated from friends and neighbours, her inability to recall important meetings with other people reflects difficulties for her to live safely in the community. 3. Mr Munro said that EYN required prompting to recall that she is prescribed medication and had missed two doses when checked by Mr Munro and had not recalled referrals to a specialist and was unaware of any follow-up after an X-ray of her injured leg. These matters were not challenged. In our view that evidence indicates that EYN has an impaired ability to manage her health and medical affairs. 4. Mr Munro said that EYN had agreed to the applications being made when he discussed the matter with her, both prior to submitting the application and again when he visited with Mr V. However, during the hearing EYN was opposed to the applications. We are of the view that this inconsistency is evidence of impaired decision-making. 5. The Hearing Report provided to the Tribunal indicated that EYN at first said she had received documents for the hearing and then said that she had not. We accept the evidence of Mr Munro that he provided her with documents related to the hearing in accordance with the Directions of the Tribunal and in the company of Mr V. In our view her ambivalence about this matter is suggestive of difficulty in managing her affairs and her lifestyle.
8. We are satisfied that despite views to the contrary, the evidence of medical practitioners and of others involved in EYN's day-to-day lifestyle taken together indicates on balance that EYN does have short-term memory impairment and a cognitive impairment that is at least a mild impairment. We are also satisfied that the evidence of EYN and others as outlined in the preceding paragraphs indicates that those conditions have resulted in occasions where her understanding of her current circumstances is impaired and where she needs assistance in managing her lifestyle. We are satisfied that her impairments restrict her ability to access, evaluate and recall important information for making decisions about her lifestyle and that she requires some assistance to live a normal life in the community. She is, therefore, 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. 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.
2. 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).
3. Section 4 of the Act provides that it is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: 1. the welfare and interests of such persons should be given paramount consideration; 2. the freedom of decision and freedom of action of such persons should be restricted as little as possible; 3. such persons should be encouraged, as far as possible, to live a normal life in the community; 4. the views of such persons in relation to the exercise of those functions should be taken into consideration; 5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised; 6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs; 7. such persons should be protected from neglect, abuse and exploitation; 8. the community should be encouraged to apply and promote these principles.
4. We were not confident during the hearing that we were able to elicit EYN's independent view about the matters under consideration.
5. In our view, EYN has come to be influenced by FZJ. In this respect we note: 1. We are satisfied that in the context of her memory impairment she is likely to be subject to influence by whomever she sees most often and most recently. FZJ visits to EYN daily and regularly assists with transport for shopping. In our view, under those circumstances she is likely to be influenced by his views. 2. FZJ has assumed the role of preventing or seeking to prevent others from accessing EYN in the context of acknowledged neighbourhood conflict. In our view, these circumstances are likely to encourage EYN to feel that she needs FZJ's assistance. 3. FZJ has taken on the role as EYN's spokesperson as is indicated in his texts to Mr V and to Ms Z and others. 4. FZJ was present with EYN during the hearing. EYN said this was because she had no credit on her telephone. During the hearing there were frequent delays before EYN responded to questions asked of her. Tribunal members could hear FZJ speaking to EYN before she responded to questions. The Tribunal was concerned that FZJ might have been prompting EYN regarding her responses and asked that he cease doing so. However he was heard to continue to be speaking in this manner.
6. Taking into account our view that EYN could be influenced by FZJ and the fact that she was participating in the hearing by telephone and in his company, we were not confident that her responses reflected her own views at which she had arrived independently.
7. In respect of FZJ's participation in the hearing we found that he was reluctant to be guided by the Tribunal regarding the matters to be considered and the evidence being sought and was determined to focus on his own views regarding Ms Z and other neighbours and Mr Munro. We found him to be combative and often disruptive. We also found some of his evidence to be contradictory and unconvincing, as is indicated in the body of these Reasons.

Accommodation

1. In respect of EYN's accommodation, we reached the following conclusions: 1. We accept the evidence of Mr Munro that EYN has told him that she would like a smaller house and that when he accompanied her up the stairs of the home she was breathless. 2. EYN appears ambivalent about her accommodation in that whilst she has told Mr Munro that she would like a smaller house, she has also said that she loves her home and wants to remain there. 3. We are advised that EYN has had an injured knee for two years since a car accident and has a swollen ankle. If these are chronic conditions there is a need to consider the appropriateness of a three-storey house, or even any home with stairs as she ages. 4. As noted above, we consider the evidence of FZJ about the extent to which he provides care to EYN to be inconsistent and we place little weight on his application for a carer's allowance as evidence of the matters referred to in it. However, whilst he has submitted that EYN is well able to manage in her current home, he also indicates in the application for a carer's allowance that he spends five hours per week assisting EYN with mobility issues. If EYN does require such assistance with mobility we are of the view that she would benefit from an assessment of the appropriateness of a three-storey house. 5. FZJ has expressed the view that Ms Z and others have brought matters to the attention of the Commissioner and sought the current applications because they wish to acquire EYN's home. In respect of this possibility: 1. There is no reason to believe that a guardian would make an unwarranted decision that EYN should relocate. If people in the neighbourhood have sought the making of an order for that reason, then in our view, it is in the best interests of EYN that a decision maker is clearly allocated responsibility for making a decision about EYN's accommodation thereby protecting her from personal pressure to relocate. 2. If others are not motivated by a desire to obtain EYN's house, in our view, it is best for EYN's welfare that a decision be made about the suitability of the home for her needs without the risk that she would be being influenced in her decision by a false claim about the motives of others. 1. It is not the role of this Tribunal to decide whether EYN should change her accommodation and we take into account her evidence to the Tribunal that she does not wish to do so. However, in our view the evidence indicates that: 1. There is a need for a decision to be made about where EYN should live, including whether she should remain in her current accommodation. 2. Due to EYN's memory impairment and some cognitive impairment as well as the conflicting claims of friends and neighbours, the decision about where EYN should live is not one that she can make objectively and cannot be made informally. 3. There is a need to appoint a decision maker to attempt to ascertain an independent and consistent view from EYN and to take that view into account. It is also necessary to take into account the objective facts regarding her needs and the suitability of her current accommodation and to make a decision about where she should live.

Services

1. In respect of EYN's access to services we reached the following conclusions: 1. EYN expressed views to the effect that she does not need the assistance of services and declined to undergo an assessment by the ACAT. 2. In our view, EYN's need for assistance in her everyday life is demonstrated in the testimony of others including the following: 1. Ms N indicated that she visits regularly to check on EYN's welfare. 2. As noted above, FZJ indicated that at a minimum he assists EYN by protecting her from certain neighbours and assisting her with shopping. He also asserts in the carer's application that he provides more than 20 hours of personal assistance. As noted above, we place little weight on that application as evidence of the matters claimed in it, but in our view the making of that claim and taking on the role of protecting EYN from certain neighbours, is inconsistent with a view that EYN does not need assistance in managing her life in the community. 3. Ms Z also indicated that she assists EYN regarding medical appointments and by contacting other organisations such as Housing NSW. 1. We are satisfied that EYN has been receiving assistance from community members and we are of the view that decisions about her access to services might be made informally if she had insight into her need for services and if there was some agreement amongst EYN and her informal support network about provision of assistance to her. However based on the evidence and views put to the Tribunal, we are of the view that: 1. In asserting that she is able to manage without help, EYN underestimates the assistance provided by neighbours. 2. Whilst Dr W opines that EYN is well cared for by a supportive group of friends, there is heated conflict amongst neighbours who seek to assist EYN and this has resulted in police being called to her home. 3. On current indications, EYN is now not receiving that assistance she previously received from Ms Z.
2. In our view there is a need for a decision maker to make an objective decision about services required to assist EYN, after establishing the extent to which her needs are met informally through the assistance of neighbours, seeking to determine her independent view about these matters, and taking into account the views of EYN and others.
3. In respect of EYN's medical/dental treatment are satisfied that there is a need to appoint a substitute decision-maker to make these decisions when EYN is not able to do so for the following reasons: 1. EYN has a number or health and medical conditions including the insertion of a pacemaker and knee and ankle injuries. 2. We are satisfied that EYN has some impairment in her ability to understand and remember important medical information based on the following evidence: 1. Dr Y indicated that EYN needs help regarding her medical appointments and medication and that in her view it was prudent to make applications to assist EYN manage her medical affairs. 2. Mr Munro advised that when he asked EYN about medications she needed prompting to recall that she was prescribed regular medication and that EYN was unaware of any follow up after her recent X-ray of her leg injury and had not recalled that she had been referred to a number of specialists for assessment . 1. Whilst a "carer" could provide consent to medical treatment when EYN is unable to do so, we were not satisfied that there was a person who should be considered EYN's carer. EYN denied that she needed a carer, whilst Ms Z is listed as her carer by Dr Y and FZJ asserts that he is EYN's carer and has submitted an application to be paid an allowance for that role. As noted, we place little weight on that application as evidence of the matters referred to in it. In our view given these conflicting claims, it is not in the best interests of EYN that any individual be considered her carer for the purposes of consenting to her medical and dental treatment. 2. A family member or close friend could be considered as EYN's 'person responsible' in the absence of a guardian and a carer. We were advised that EYN is in telephone contact with a grandson to whom she provides some money, but on the available evidence regarding their contact, we were not satisfied that he is in a position to form a view about her medical needs. 3. In respect of the possibility that a friend could consent to medical treatment for EYN: 1. FZJ claimed that Ms Z had "tailgated" EYN into the doctor's surgery. The letter signed by Mr O also claims that Ms Z "tailgated" EYN into the surgery of Dr Y. On the available evidence neither FZJ nor Mr O was present when EYN visited Dr Y and for this reason we place little weight on their evidence regarding the events around that consultation. However we are of the view that the claims submitted regarding this event reflect the significant conflict amongst EYN's friends and neighbours regarding who should assist her with her health and medical matters. 2. In respect of the role of Ms Z, we take into account that in EYN's presence, Dr Y shared her medical information with Ms Z and that EYN now claims that she did not authorise this information sharing. In respect of this event: 1. In our view it is unlikely that Dr Y would have shared medical information without EYN's consent or acquiescence and we consider it likely that EYN's recall of this event is impaired. 2. In the alternative, we are of the view that if EYN did not want Ms Z to receive information about her medical conditions, on this occasion she was ineffectual in objecting to the sharing of the information. 3. In our view, whichever explanation applies to the sharing of information with Ms Z, that event is an indication that EYN would benefit from a clear indication of who may consent to her medical treatment on her behalf and have access to information about her health status. 1. Ms Z has indicated that she has provided assistance to EYN in arranging medical appointments and advising her of appointments and other matters. In our view EYN's denial of assistance from Ms Z appears to have been relatively recent. 2. EYN has described FZJ as her best friend. However, as indicated above we are of the view that EYN may be susceptible to influence by FZJ. 3. Whilst we form no view about the conflicting claims of Ms Z and FZJ, it appears to us that EYN was previously accepting of assistance from Ms Z and it is not in her best interests that her medical decisions be made by FZJ whilst he is also so vehemently involved in preventing contact from a person whose assistance EYN appears to have previously accepted. 4. FZJ has asserted that Dr W is EYN's GP. However, EYN has recently been seen by three GPs and in our view the evidence of Dr W and Dr Y suggests that her most frequent recent contact has been with Dr Y. Additionally during the hearing EYN said that she prefers to see Dr Y about women's health issues. As EYN has expressed a wish for these matters to be considered by a female practitioner, we consider it inappropriate that FZJ, a male, be consulted about those matters. 1. We are satisfied that EYN has been assisted regarding health care and medical matters by friends and neighbours. However, taking into account the circumstances and our views as set out in the preceding sub-paragraphs, it is our view that under the current circumstances it is not in the best interests of EYN to rely on the 'person responsible' provisions to identify who should consent to her medical treatment when she is unable to do so. Therefore we are of the view that we need to appoint a substitute decision-maker regarding her medical and dental treatment.
4. EYN has a number of health conditions, has seen a number of GPs and has referrals to a number of specialist practitioners. The evidence suggests that EYN consulted a new medical practitioner regarding FZJ's application for joinder. In our view, the evidence establishes that she has not been able to recall or adequately describe her health conditions. Under those circumstances, including the involvement of a number of GPs, we are satisfied that there is a risk to her health from uncoordinated treatment and we consider that she requires a consistent substitute decision-maker to make health care decisions. For the reasons outlined above in the section of these Reasons dealing with consent to her medical and dental treatment, we are not satisfied that her current circumstances provide for consistency or objectivity and we are satisfied that to protect EYN's health and welfare there is a need to appoint a decision maker regarding her health care.

Access

1. In respect of EYN's access to others, we reached the following conclusions: 1. EYN has previously accepted the company and assistance of a number of neighbours, including Ms Z and FZJ. 2. There is now significant conflict between Ms Z and FZJ. 3. FZJ has called police to EYN's home to prevent Ms Z from entering the house and he has represented that as EYN's "carer" he is able to insist that Ms Z and others should cease contact with EYN. 4. EYN has indicated that she does not wish to have contact with Ms Z and others. However, Ms Z is of the view that FZJ is isolating EYN from others and concerns have been put to Mr Munro that EYN is vulnerable to exploitation by others. 5. It is not the role of this Tribunal to decide to whom EYN should have access. However, taking into account the matters put to us we are satisfied that: 1. There are conflicting views about the actions and motivations of neighbours who have, or who have had, access to EYN, including having the keys to her home. 2. EYN's memory impairment and cognitive impairment render her vulnerable to influence by whoever has the most frequent and most recent contact with her. 3. Under these circumstances it is not in EYN's best interests for decisions about her access to others to be made informally. 4. To protect EYN's welfare and best interests, there is a need for a decision maker to attempt to ascertain an independent and consistent view from EYN and to take that view into account as well as the objective facts and to make a decision her access to others who seek to have access to her, and about the conditions of that access.
2. In reaching the above conclusions we took into account that as far as possible EYN should be able to make her own decisions about her lifestyle and live as she pleases. These matters are difficult and finely weighted, particularly where, as in the case of EYN, the subject of the application is opposed to the appointment of a substitute decision-maker. However as indicated in d 4 of the Act, the Tribunal's paramount consideration must be EYN's welfare and best interests and on that basis, taking into account the matters set out in this section of these Reasons, we were satisfied, on balance, that there is a need to appoint a guardian to make the decisions outlined above.
3. In respect of EYN's family relationships, we were advised that she is in touch with a grandson and his partner, mainly by telephone. There was no indication that making the order would adversely affect her family relationships. We also took into consideration that EYN has an established place in her current neighbourhood and that making a guardianship order might affect some neighbourhood relationships. Taking into account the conflicting evidenced about EYN's neighbourhood relationships we were of the view that appointing an independent and authorised decision maker regarding these matters could assist to resolve some of these matters.
4. Taking into account the evidence and our conclusions as noted in the forgoing analysis, we determined to make a guardianship order appointing a guardian to make decisions for EYN about her accommodation, services, health care, medical and dental treatment and her access to others.

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. 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.
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 (No.1) [2011] NSWSC 1075, [66]).
3. 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.
4. 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.
5. The Supreme Court has held that: the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).
6. FZJ proposed that he be appointed as the guardian and EYN supported that proposal. We were not satisfied that FZJ meets the requirements to be appointed as the guardian for the following reasons: 1. We found FZJ to be an unreliable witness. In particular, as noted above, we found his evidence regarding the care that he provides to EYN as being inconsistent in that it ranged from submitting that she needed no assistance apart from his visiting with her and sharing meals and walks, through to his Centrelink application for a carer's allowance on the basis of providing more than 20 hours of close personal assistance per week. 2. We were of the view that during the hearing FZJ was attempting to prompt EYN in her responses to the Tribunal and on a number of occasions we asked him to cease doing so. We were not satisfied that he was willing to assist the Tribunal to reach a proper conclusion on the issues being considered. 3. We were concerned that FZJ has misunderstood or misrepresented his role in providing neighbourly assistance to EYN. We find it unlikely that FZJ is acting on a police request to protect EYN from neighbours and we are of the view that he was in error in claiming that as EYN's carer he was entitled to prevent others from having access to EYN. 4. As noted above, FZJ was outspoken during the hearing and made accusatory and derogatory comments about others, including Ms Z. He claimed to have been asked by police to intervene to protect EYN from Ms Z, but provided no evidence that the alleged theft by Ms Z from EYN had been investigated by police. In our view, his comments about Ms Z failed to provide any objective evidence regarding why she should be considered unsuitable to assist EYN by providing the assistance she had previously provided or about the effect on EYN of depriving her of the assistance and friendship she had previously received from Ms Z. 5. Whilst we make no decisions about the advisability of the contact prevented by FZJ, we are of the view that FZJ has acted in a peremptory and aggressive manner in his actions to prevent neighbours from visiting EYN. In our view that manner was in evidence during the hearing, in the texts forwarded by Mr V and in the account of the video-taped encounter on 22 April 2020, which was not denied by FZJ. 6. We are of the view that it is not in the best interests of EYN that a person acting on her behalf adopts the aggressive manner in respect of her dealings with neighbours and other community members and in our view, such an approach does not enhance EYN's ability to live a normal life in the community or to maintain her cultural ties in the community. 7. Taking into account EYN's memory and cognitive impairment we are of the view that FZJ is in a position to influence EYN. In our view his use of immoderate language, allegations of criminal acts and issuing of ultimatums does not assist EYN to formulate her own preferences regarding the matters to be determined by the guardian. 8. We are of the view that FZJ has demonstrated entrenched views about whether EYN might benefit from contact with certain neighbours and we are not satisfied that he has demonstrated that he is able to make decisions about EYN's access to others with insight and objectivity, or that he is able to interact appropriately with others on her behalf. 9. FZJ has asserted that he can occupy EYN's third floor bedroom for weeks at a time if he is considered to be her carer and he has submitted an application for a carer's allowance. Whilst he submits that his claim creates no conflict because he has not yet acted on it, in our view his assertion of a right to occupy the room as a carer places him in a conflict of interest in respect of decisions to be made about EYN's accommodation and also her access to services.
7. We note and take into account the views of Mr O and Ms N expressing support of FZJ and stressing his work for the betterment of the community. We also take into account FZJ's oral and written testimony regarding his commitment to community welfare and relationship with EYN. However in respect of these matters: 1. Mr O and Ms N did not participate in the hearing and we were unable to question them further on their views as to the qualities of FZJ in respect of his appropriateness to be appointed as the guardian. 2. Whilst a caring, compassionate and community focussed approach is likely to be of assistance to a guardian, in our view, the primary requirements, as set out in the precedent cases referred to above, are those related to insight, objectivity, lack of conflict of interests and ability to implement the principles set out in s 4 of the Act.
8. As noted above, these are difficult and finely balanced decisions and we accept that EYN and FZJ have a close relationship or friendship, and that EYN preferred the appointment of FZJ as the guardian.
9. However, for the reasons set out above, we are not satisfied that FZJ has demonstrated an ability to objectively analyse matters related to EYN's lifestyle and act in her best interests, assisting her to formulate her views whilst protecting her welfare. In our view, he has not demonstrated that in making decisions for EYN he has been able to interact appropriately with other members of her community, thereby assisting her to live a normal life in the community.
10. Taking into account all of the matters set out in the preceding paragraphs regarding the possibility of appointing FZJ as the guardian, we are not satisfied that FZJ is able to carry out the functions of the order with insight and objectivity, promoting the welfare and best interest of EYN and in accordance with the principles set out in s 4 of the Act.
11. There being no other private guardian nominated, we appointed 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. We made the order for 12 months because we were satisfied that it will take some time to review EYN's circumstances and to make, implement and evaluate the appropriateness and efficacy of decisions made by the guardian.

What did the Tribunal have to decide?

1. The questions to be considered by the Tribunal are:

• Is EYN incapable of managing her affairs?
• Is there a need for another person to manage EYN's affairs and is it in her best interests for a financial management order to be made?
• If so, who should be appointed financial manager?

Is EYN incapable of managing her affairs?

1. In Re D [2012] NSWSC 1006, White J assessed the history of case law in relation to financial management and noted that initially the issue of capability was approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Court now assesses the person's own capacity to do what they are proposing to do [58]. White J used a "rational appreciation" of assets test to determine a person's capability to manage his or her affairs. He adopts the reasoning of Barrett J in P v R [2003] NSWSC 819 who said that the task of the Court in these circumstances: … is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person's property…the requisite judgment is to be made in the light of objective physical facts concerning the relevant person's property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter [26].
2. In PB v BB [2013] NSWSC 1223, Justice Lindsay confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at [7]: Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack "mental capacity" or be "mentally ill"; or (b) particular reasons for an incapacity for self-management.
3. 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.
4. 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 at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579 at [309].

1. 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.
2. As can be seen in the section of these Reasons dealing with guardianship the Tribunal considered matters related to EYN's memory and cognitive functioning in the context of her ability to make lifestyle decisions. Those matters are relevant to her ability to manage her affairs and are considered, but are not reproduced, in this section of these Reasons. In respect of those matters, we are of the view that EYN's memory impairment and mild cognitive impairment could reasonably be thought to impede her ability to manage her day-to-day affairs, including safe custody of cash, bank books and documents recording PINs.
3. In addition to the material referred to in the preceding paragraph, we also took into account the following: 1. EYN told Mr Munro that no-one had stolen from her. However in a typed letter signed EYN she states that Ms Z had stolen $400 from her and during the hearing she repeated that allegation. She also stated that she believed that Ms Z had stolen her bankcard and PIN. 2. FZJ gave evidence that EYN's PIN was written on a piece of paper and the paper and her debit card were missing. He had accompanied her to the bank to create a new PIN. 3. EYN recently purchased a lounge. According to FZJ the cost was $1500 and EYN has approximately $1000 in savings. In our view the purchase of the lounge is a major financial undertaking in the context of EYN's resources. However, during the hearing she was confused about how much she had paid in regular payments for the lounge. 4. EYN had provided her house keys to Ms Z and other neighbours and to FZJ. FZJ was of the view that EYN's locks needed to be changed due to the risk that others might have made copies of the keys and that the cost of doing so would amount to approximately half of EYN's bank balance. In our view, providing house keys to a number of people is not consistent with a reasonable and rational approach to managing one's affairs, particularly where the relationship with those others is such that one of them is now accused of have stolen significant cash and documents. 5. EYN is ambivalent about whether she wishes to remain in her current home despite telling Mr Munro that she wants to move and despite the evidence that Ms Z has assisted EYN to complete an application to change her accommodation. In our view, EYN's inconsistency in respect of this matter exposes her to some risk of loss of rental property rights.
4. As noted in the section of these Reasons dealing with EYN's evidence, we were hampered in taking evidence from her because she was prompted by FZJ. FZJ has also corresponded with others purportedly on behalf of EYN. In our view the extent of FZJ's involvement indicates that to some extent he has taken it upon himself to intervene in EYN's affairs. The extent of his intervention results in EYN being relatively inactive in respect this aspect of her affairs.

Is there a need for a financial management order?

1. We consider that there is a need for a financial manager. We reached this conclusion on the basis of the following findings.
2. As indicated in the preceding section of these Reasons, allegations and counter allegations have been made amongst friends and neighbours of EYN regarding possible financial exploitation and theft. On the one part Ms Z has been accused of stealing from EYN and on the other part, it has been suggested that she might be being financially exploited by FZJ, who states that he accompanied her to the bank to renew her PIN. In the context of the mistrust and alleged financial wrongdoings, we are of the view that making a financial management order would protect EYN from the possibility of financial exploitation.
3. FZJ indicated that EYN's bank account balance is about $1000. We consider it a matter of concern that for a person of limited means EYN had $400 in cash in her home and that at least three sets of people had keys to her home, and that cash has been lost or stolen. If her estate were managed under an order there would be no need for her to have large amounts of cash as her essential outgoings could be paid on her behalf and she would need to access funds only for minor household expenditure.
4. Whilst we do not know what happened to EYN's cash, bank card and PIN we are of the view that the making of a financial management order would have the effect of protecting savings and limiting available cash to funds necessary for day-to-day expenses. Under those circumstances the loss or theft of important documents would not endanger her savings. As a result, EYN would benefit from a financial management order to protect her savings and to ensure that they are available to enhance her lifestyle.
5. Mr Munro has suggested that EYN may be able to make a claim in respect of motor vehicle accident. In our view the appointment of a financial manager would allow that matter to be considered and any appropriate action taken.
6. Should FZJ act upon his belief that he is entitled to occupy EYN's third bedroom, we are of the view that a financial manager could assist to determine any reasonable contribution that he should make to the household outgoings.

Is EYN's best interest that a financial management order be made?

1. We are satisfied that appointing a financial manager to ensure that EYN's essential debts are paid and to allocate funds for discretionary spending would be in EYN's best interests to protect against actual and alleged exploitation and would assist to reduce the conflict that has arisen from allegations of exploitation or other forms of dishonesty.
2. We were also of the view that the appointment of a financial manager would assist EYN to ensure that her limited funds are available to meet her essential needs. In this respect we took into account the following: 1. Whilst EYN did not provide evidence regarding her current bank balance, according to FZJ it is $1000. EYN said that her savings were low because she had cared for her grandson and had paid for his funeral. However as indicated above, we were advised that EYN's grandson died in 2017 and EYN had received compensation funds that were used to pay for the funeral. In our view the death and funeral of EYN's grandson in 2017 does not adequately explain her current low bank balance. 2. During the hearing EYN said that she was unable to telephone the Tribunal's 'virtual hearing room' because she had no credit on her telephone. We are satisfied that as an older person living alone it is in the best interests of EYN that she is able ensure that she has credit on her telephone for important calls. In our view, this need is demonstrated in the letter to the Tribunal in which Ms N expressed the view that EYN would be able to seek necessary support from her because she has Ms N's telephone number. In our view a financial management order would assist EYN to establish and maintain a budget plan to facilitate availability of essential facilities such as telephone credit.
3. We took into account that EYN is an independent woman who opposes the making of a financial management order and we considered whether an order would adversely affect her due to limiting her independence. However we consider that under an order, whilst her major outgoings would be paid by the financial manager, and her savings quarantined, funds would be available to her for her day-to-day expenditure from a bank account that she would continue to operate, thus retaining independence in respect of her day-to-day affairs.

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. 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 then 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.
4. There was no proposal that a family member be appointed as EYN's financial manager.
5. EYN indicated that if we were to make a financial management order she would like FZJ to manage her affairs and said that she trusted him. In relation to the possible appointment of FZJ we took into account the following: 1. As is indicated elsewhere in these Reasons, it was our view that during the hearing FZJ was prompting EYN in her answers to questions asked by the Tribunal even after being asked not to do so. We were of the view that FZJ was hindering the Tribunal's attempt to access direct evidence from EYN and we were not satisfied that he was committed to objective and reliable assessment of her circumstances. 2. FZJ has made a number of allegations against others, including EYN's neighbours and others involved in bringing this matter to the Tribunal. In our view he has not provided evidence of the allegations made and his approach to dealing with neighbourhood issues has been confrontational. In our view it is not in the best interests of EYN that her affairs be conducted in a confrontational manner. 3. FZJ has indicated an intention of seeking legal advice and commencing legal proceedings resulting from the bringing of the application. He has provided no evidence of assessment of the advantages and disadvantages of taking legal action on behalf of EYN or assessment of the costs involved, including the possibility of unsuccessful legal action. We consider that under these circumstances, if FZJ were appointed as the financial manager, EYN's estate could be exposed to costs for legal advice or legal action without proper evaluation. 4. On the available evidence we were unable to determine the truth of the allegations and counter allegations of exploitation of EYN. However, the role of this Tribunal is protective and our primary concern must be the welfare and best interests of EYN. In our view, taking into account our role, in the context of those allegations it is not appropriate to appoint one of the subjects of the allegations as the financial manager. 5. In our view, FZJ's claim that he has a right to temporarily occupy EYN's third floor bedroom creates a potential conflict of interest for him in making decisions about EYN's tenancy or relative contributions to costs if he acts on that claim. 6. We consider FZJ's submission of a Centrelink application indicating that he spends more than 20 hours per week providing personal care for EYN to be inconsistent with his evidence to the Tribunal about the duration and nature of his interactions with EYN. It is also inconsistent with EYN's comments during the hearing that she is able to care for herself and that whilst FZJ joined her from some activities, he was not her carer. It is also inconsistent with Dr Y's evidence that EYN indicated to her that Ms Z was her carer. Despite these matters, the Centrelink application includes certification by EYN that FZJ provides the claimed level of care for her. In our view it is inappropriate that EYN's financial manager be a person on whose behalf she appears to have made a statement to Centrelink that is not consistent with her view of the facts according to her evidence to the Tribunal.
6. Taking into account the matters outlined in the preceding sub-paragraphs, we were not satisfied that FZJ is suitable for appointment as EYN's financial manager.
7. There being no other private financial manager nominated, we committed the estate of EYN to management by the NSW Trustee and Guardian.

Endnote

1. Perry Herzfeld and Thomas Prince, Interpretation (2nd ed, 2020, Thomson Reuters) [9.210]. 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: 02 June 2020