Geoff (a pseudonym) [2024] NSWCATGD 19

Geoff (a pseudonym) [2024] NSWCATGD 19 - NSWCATGD 2024 case summary — Zoe

[6]

Consideration

In exercising the power to grant an adjournment we must have regard to the guiding principles of the Civil and Administrative Tribunal Act 2013 (NSW). Those principles require that we facilitate the just, quick and cheap resolution of the real issues in the proceedings. In addition, we must have regard to the principles in the Guardianship Act 1987 (NSW) (the section 4 principles), which require, among other things, that we give paramount consideration to Geoff's welfare and interests and have regard to his views.
Undoubtedly, exercising the discretion to grant an adjournment would not promote the quick and cheap resolution of the real issues in the proceedings. However, would it give effect to the just resolution of those issues? In answering that question, we considered the following factors to be relevant.
First, there was no medical evidence and nothing in his presentation to suggest that Geoff was unwell, or, that his ability to participate in the proceedings was impeded because of COVID-19. Nor did Geoff make that claim. In Dr Balendran's opinion, Geoff was asymptomatic of COVID-19.
Second, while because of COVID-19, Geoff was unable to travel to Sydney to participate in the hearing in person, nonetheless he was able to participate in the hearing remotely by audio visual link. The only person who participated in the hearing in person was Catherine. Geoff's responses to our questions together with his presentation throughout the hearing, did not tend to suggest that he was unable to participate in the hearing, or was disadvantaged as a result of participating remotely. In reaching that conclusion we note that Geoff is hard of hearing. Nonetheless, at the commencement of the hearing after adjustments were made to the sound, it was apparent that Geoff was able to hear what was said.
Third, Geoff had adequate notice of the hearing. He was sent a notice of hearing on 11 November 2024. We accept as certified by the Hospital Social Worker in the Application, that she gave Geoff a copy of the Application on or before 4 November 2024.
Fourth, despite saying that one of the reasons he wanted an adjournment was to obtain legal advice, by the time of the hearing he had taken no steps to do so and had no plans to do so. We concluded that if an adjournment was granted it was unlikely that Geoff would seek to obtain legal advice.
Fifth, Geoff did not identify any material he considered relevant that had not been provided to the Tribunal.
Sixth, on the available evidence we could not be satisfied as apprehended by Dr Balendran, that Geoff had been coerced to sign documents which he does not understand. Nonetheless, we accept that Geoff's impaired cognition together with his confusion surrounding his financial affairs, favours the Application being determined expeditiously. We note that the Guardianship Division's hearing schedule indicates that if the hearing were adjourned, it could not be listed for hearing within the next 28 days.
We are not persuaded that if we were to refuse to grant the application for an adjournment Geoff would be denied a reasonable opportunity to be heard in these proceedings. Nor are we persuaded that to proceed to determine the Application would be unjust.
For these reasons we decided to refuse to grant Geoff's application for an adjournment.

[8]

Medical evidence

Geoff has been under the care of the Hospital's general registrar, Dr Mei Teng Toh, since he was admitted to hospital on 19 September 2024. In a report prepared for these proceedings dated 29 October 2024, Dr Toh wrote that on 8 October 2024 Geoff scored 16/30 on a Montreal Cognitive Assessment (the MoCA test) and the results revealed impairment affecting a majority of domains (visual spatial/executive 2/5; naming 3/3; attention 3/6; abstraction 2/2; delayed recall 3/5; orientation 3/6). In Dr Toh's opinion these results indicated a moderate cognitive impairment.
Dr Toh recorded that the cellulitis and lower leg swelling Geoff presented with on admission was likely the result of uncontrolled diabetes, dependent oedema, and fluid retention.
Dr Toh reported that Geoff's treating team were concerned about his ability to function at home alone. While in hospital Geoff's mobility improved, in Dr Toh's opinion it remains "limited by his cognition". Dr Toh noted Geoff had been assessed by physiotherapists who identified a "new baseline" which indicated that he required a four-wheel walker (4WW) and 24-hour supervision, because he was a high falls risk "secondary to impaired cognition".
Commenting on the photographs of Geoff's home tended in these proceedings by Marina, which showed objects strewn over the floor and stacked up (the tendered photographs), Dr Toh said that the state of the home posed a safety risk to Geoff.
Dr Toh recorded that an occupational therapy assessment revealed that Geoff failed to understand his care requirements and how he would manage at home, including paying bills, making meals and maintaining his own hygiene and that of his home. Dr Toh concluded that Geoff lacks insight into his personal care needs and this impacts on his capacity to make informed decisions about accommodation, medical treatment and finances.
Dr Balendran said that that Geoff appears to have vascular dementia although no formal diagnosis has been made. Dr Balendran considered it significant that the results of testing on MOCA revealed global impairment across all domains. When questioned about the reliability of those tests given Geoff's co-morbidities, Dr Balendran said that when the initial test was undertaken Geoff's pneumonia and delirium had resolved. The results of a more recent test were consistent with the results of the initial test.

[15]

Geoff's views

In a hearing report dated 21 November 2024, an NCAT officer recorded the following account of their discussion with Geoff about the Application: "Views of [Geoff]: On 21 November 2024 this officer spoke to [Geoff] over the phone. When this officer explain[ed] the nature of the applications, [Geoff] expressed that he could manage his own affairs and disagrees with the recommendation of aged care. [Geoff] continued to explain that he would like [Catherine], his carer, to move in with him to support him at home once the house is fixed up. During the conversation [Geoff] was able to express his views and answer this officers questions adequately. This officer confirmed the hearing date and time and advised [Geoff] he could participate via video link from the hospital where he could provide his views further."
Geoff said that he does not need a guardian to make decisions for him. He said that he was able to manage his personal and financial affairs and to care for himself. He said that when he returned home he would be assisted by Catherine who he described as his "carer".
Geoff was questioned in these proceedings about the statutory declaration dated 18 October 2024 which he apparently filed in these proceedings. In that document Geoff declared and affirmed: "[Catherine] has permission to live at my address at [address removed for publication] to clean or maintenance to my home to clean inside and outside to be safe for my return [ineligible] move or sell any cars after discussion with me. Change locks and keys to [Lewis] [4] , myself [Geoff] and [Catherine] to act on my behalf for all of my affairs. [Catherine] to be my carer."
When questioned in these proceedings about that statutory declaration, Geoff said: Member: So do you recall preparing a statutory declaration saying that about a month ago? [Geoff]: Ah, that's, yeah, that's, yeah about a month and a half ago or something, yeah I did sign something with [Catherine]. That she'll be my carer. Yeah, yup. Member: And why did you sign that document? Why did you prepare this document? [Geoff]: Why did I prepare? Well of course that's the most sensible thing to do. If you're in the right frame of mind. Member: And why was it the most sensible thing to do? [Geoff]: Well [INAUDIBLE] the right thing and the sensible thing and she promised to be truthful. Member: And do you recall where you were when you made this statutory declaration? [Geoff]: Where was I? Member: Yes. [Geoff]: Yeah. Yeah, I do. Member: Where were you? [Geoff]: I was having a coffee and buying dinner, lunch, yes. [INAUDIBLE] to sign something and do something for your own good because [INAUDIBLE] down on me. Member: And who said to you, you have to sign something for your own good? [Geoff]: Well that's what you do. You only sign it for your own good. Member: But who suggested? You said you had coffee and dinner with someone and you signed it. Who were you with when you signed it? [Geoff]: Ah well it would have been with [Catherine] and [Lewis], no doubt. Member: If you think about it, can you remember or are you just assuming you're with [Lewis] and [Catherine]? [Geoff]: No. I remember everything. And I see her many times a week. I remember everything, what she does for me because she's an honest helper and good neighbour. And [Lewis] I've known him for 40 odd years, 50 years. And he's a good man.
Catherine explained that she had been Geoff's neighbour for about eight years. She said that she was at the hospital when Geoff prepared the statutory declaration. She said she understood the reason he prepared that document was so that she "would not get into trouble with the ex-wife".
Catherine said that she had agreed to act as Geoff's carer. She described him as a good friend who had helped her out over the years. When asked whether in her opinion Geoff was forgetful, she replied "no … he is about the same". She said that he was a bit slack around the hygiene. She said the house was currently unliveable and when it was fixed she was prepared to live in it and to care for Geoff.

[22]

Findings and conclusions

The task of deciding whether to exercise the discretion to make, or not to make, a guardianship order, requires that we balance several considerations. On the one hand, we must observe the principle that Geoff must be protected from neglect, abuse, and exploitation. On the other hand, we must restrict Geoff's freedom of decision-making and action as little as possible and take into consideration his views. At all times, the paramount consideration is Geoff's welfare and interests.
Weighing against the exercise of the discretion to make a guardianship order is Geoff's strong opposition to the proposed order, his firmly held belief that he is capable of managing his personal affairs together with the fact that a guardianship order will undoubtedly operate to restrict Geoff's freedom of decision-making and action. The making of a guardianship order, and decisions made by the guardian with which he disagrees, is likely to cause Geoff significant distress. These factors weigh heavily against the making of a guardianship order.
Weighing against those considerations is the evidence that Geoff now lacks capacity to decide where he is to live on discharge from hospital, and, if he were to return home, the supports and services which will enable him to do so. The evidence reveals that Geoff lacks insight into the extent of his impaired functional capacity and current care needs. The objective evidence indicates that Geoff's pre-admission and current functional capacity is significantly lower than his self-assessment. By way of example, the social work report cites a report given by Lisa of when her father visited her home several months before his admission. Geoff was unable to get off the couch to go to the toilet, refused her assistance, crawled to the toilet and was incontinent.
In assessing the expert evidence about Geoff's capacity to make decisions about where he is to live and the services he is to receive on discharge, we have taken into account, as observed by Dr Lloyd, that Geoff has led an unorthodox lifestyle and made lifestyle choices with which many people may disagree. It is possible that that those choices may have influenced, consciously or otherwise, the opinions expressed by those health practitioners who gave evidence in these proceedings about Geoff's capacity to make decisions about his personal affairs.
Geoff's solution to the difficulties the experts have identified to him returning home to live is simple. Catherine will move into his home and care for him. He has failed to identify what this will entail, for example, whether Catherine will be required to be available 24/7, the type of care she will provide, whether she will be paid for her services. In addition, Geoff appears not to have turned his mind to the possibility that the proposed arrangement might not work out, and, if so, the available alternatives.
The Hospital Social Worker and the hospital team who have been caring for Geoff have concerns about Catherine's motivation for agreeing to act as Geoff's carer. That concern is shared by Marina and her daughter. The Hospital Social Worker reports for example that Catherine has been squatting in Geoff's home and asking for his keycard. She points to the statutory declaration made by Geoff as evidence that Catherine has sought to take advantage of Geoff and to cement her residence in his home. Catherine on the other hand gives an innocent account of the circumstances surrounding the signing of that document and claims it was initiated by Geoff to protect her from Marina. She claims that her sole motivation is a genuine desire to assist an old friend, who has assisted her in the past. The allegations made about Catherine are based on untested hearsay accounts. On the available evidence it is not possible to make a reliable finding about those allegations. Nonetheless, it is apparent that Geoff now lacks the capacity to evaluate any risks posed by the proposed arrangement and to make and implement decisions if that arrangement does not work out.
While the considerations are finely balanced, we have decided to make a guardianship order in respect of Geoff. That decision gives paramount consideration to Geoff's welfare and interests.

[28]

Willing and able to exercise to act as guardian

At the hearing, Lisa said that she acknowledged that at times it would be difficult to perform the role of guardian, especially if she were to make a decision that her father opposed. Nonetheless, she said she was willing to take on that role.
In addition to being satisfied that Lisa is willing to act as guardian, we must be satisfied that she is "able" to exercise the functions conferred under the guardianship order. Section 17(1)(c) of the Guardianship Act requires us to make an evaluative judgment about whether Lisa is "able" to exercise the functions conferred under the guardianship order. This requires consideration not only of whether she possesses the necessary skill and experience to be able to exercise those functions, but also whether she has the personal attributes, such as judgment and integrity, required to exercise those functions. In addition, we must consider whether she is able to make those decisions in a manner consistent with the section 4 principles: ZKF v ZKG [2019] NSWCATAP 64 at [31].
We accept Lisa's claim that she has the technical competence to make and implement decisions on behalf of her father. She is employed in the Army and impressed us as an intelligent young woman who had a genuine concern for her father's interests and welfare.
In considering whether Lisa is able to act as guardian we considered whether as required by the section 4 principles, she would endeavour to exercise the functions conferred by the guardianship order in a way that gave effect to her father's wishes and impeded his freedom of decision making and action as little as possible. Her answer to questions in these proceedings persuaded us that she understood that as guardian she was obliged to not only make decisions that promoted her father's welfare and interests but was obliged to take into account his views and, as far as practicable, promote his autonomy.
We find that Lisa is willing and able to exercise the functions conferred under the guardianship order.

[31]

Is Geoff not capable of managing his affairs?

In P v NSW Trustee and Guardian [2015] NSWSC 579 commenting on one of the preconditions to making a financial management order - that the Tribunal is satisfied that the person is not capable of managing their affairs (s 25G(a) of the Guardianship Act) - Lindsay J said at [307]-[308] that the question posed was: "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."
Whether Geoff is not capable of managing his finances requires consideration of the nature of his estate.
The available evidence indicates that Geoff receives the Age Pension. He owns his home jointly with Marina.
Marina says that shortly after Geoff was admitted to hospital she visited the home and found multiple unpaid bills - $2365 (water rates), hospital$1500 (Council rates), $1082 (gas) - which she has now paid. When questioned in these proceedings about that claim Geoff said: "My understanding is and I've told them that and I've told the authorities, the gas and all that people … that if you're over three weeks, they cut everything off, water gas, whatever, and four days before I came to hospital, I went I cleared everything and I didn't owe everybody a cent. So that's all …"
When admitted to hospital Geoff had debts totalling about $5000 owed to the Local Council and utility providers. It is evident given the size of those debts that they have been outstanding for some time.
When questioned about his income and expenditure Geoff said that he received the "normal pension" and had sufficient money to buy "proper food". When pressed he was unable to provide further particulars.
Lisa said when her father was admitted to hospital and concerns were raised about him giving his bankcard to other people, at her request his bank put a 15-day "duty of care" hold on her father's account. She claimed that the bank refused to extend that claim.
Geoff's failure to acknowledge the extent of his indebtedness and his inability to explain how he would deal with his debts, indicates that notwithstanding the relatively simple nature of his financial affairs, Geoff is not able to manage those affairs in a reasonably prudent fashion.

At a glance

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Judgment (35 paragraphs)

Legislation Cited (3)

Cases Cited (2)