GXE [2018] NSWCATGD 17

NCAT Guardianship|2018-02-12

REASONS FOR DECISION

On 6 February 2018, 84-year-old Mrs GXE was admitted to a public hospital. The following day she self-discharged against medical advice. She was re-admitted on the same day as an involuntary patient under the Mental Health Act 2007 (NSW), on the ground that she was a "mentally disordered person".
On 9 February 2018, the South Eastern Sydney Local Health District (the Local Health District) made an urgent application to the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT) seeking guardianship and financial management orders in respect of Mrs GXE (the Application). A delegate of the Local Health District wrote that on admission, Mrs GXE was in a "neglected state" and members of the hospital's treating team were of the opinion that she is "no longer capable of making reasonable decisions with regard to her health and welfare". In the application for a financial management order, under the heading "Why are you asking for financial management order?", the applicant wrote: The effects of the Alzheimer's dementia upon [Mrs GXE]'s cognitive function, in concert with underlying psychotic delusions, leave [Mrs GXE]'s capacity to safely manage her financial affairs in question.
Mrs GXE is divorced and has no children. Prior to her hospital admission she was living independently at home.
For the reasons that follow we have decided to make reviewable guardianship and financial management orders in respect of Mrs GXE, each for a period of two months.

Can a guardianship order be made?

The power to make a guardianship order can only be made if we are satisfied that Mrs GXE is a "person in need of a guardian": s 14(1) of the Guardianship Act 1987 (NSW) (the Act). 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 defined to include a person who is physically and/or psychologically disabled, and/or of advanced age, and by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: s 3(2) of the Act.
The term "social habilitation" is not defined by 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.
The evidence reveals that when admitted to hospital in early February 2018, Mrs GXE presented with acute psychotic symptoms. At that point in time she was undoubtedly incapable of managing her person. Apparently those symptoms have now resolved. While it is clear that at the point of admission she met the statutory test of a "person in need of guardian", the more difficult question is whether she now satisfies the statutory test.
The weight of medical opinion is that Mrs GXE probably also suffers from Alzheimer's dementia and that this was a contributing factor to the acute symptoms displayed on admission in February this year and her presentation to hospital in December 2017. However, until such time as a comprehensive neuropsychological assessment is undertaken, a significant doubt hangs over the reliability of that diagnosis.
The real issue is not whether Mrs GXE suffers from Alzheimer's dementia but whether she has a disability, however described, which impairs her decision-making capacity to such an extent that she is at least partially unable to manage her affairs, and as a result, requires social habilitation or supervision. This raises the following issues to be addressed: the likelihood that the acute psychotic symptoms will remerge; whether their underlying cause can be treated, and; whether Mrs GXE's self-report of being high-functioning is reliable.
On the available evidence, it is not possible to reach a concluded view about these issues. Were it not for the series of hospital admissions within a relatively short period, where Mrs GXE presented with acute psychotic symptoms and, at that time, was plainly unable to manage her person, we would be inclined to the view that the available evidence does not support a finding that Mrs GXE is a person in need of guardian. However, that history, taken together with the opinion of Dr W and Dr Z that even those symptoms there is compelling evidence of significant cognitive impairment, leads us to find on the balance of probabilities that at this time and for the foreseeable future, Mrs GXE is a person in need of a guardian. A different view might be reached if a better understanding is reached of the cause of Mrs GXE's condition.

Reliability of history taken and need for neurological assessment

As set out below, we have decided to make a reviewable short-term guardianship order. At the hearing it became apparent that the history taken by Mr Y conflated the circumstances surrounding Mrs GXE's recent hospital admissions. On the available material, it is not possible to say whether those health practitioners who have been asked to assess Mrs GXE also provided their opinions on the basis of an inaccurate history. It is critical that this matter be corrected before the guardianship order comes before the Tribunal for review.
We note that the Local Health District undertook to provide the Tribunal with a report of a neuropsychological assessment prior to the next review hearing. We note the opinion of Dr V that without an assessment to determine whether there is a disparity between Mrs GXE's self-report of being high-functioning and reality, any neuropsychological assessment will be of limited utility. We request that a report of neuropsychological assessment be made available to the Tribunal in ample time for the review hearing.

Should a guardianship order be made?

In considering whether or not to make a guardianship order, s 14(2) of the Act instructs that we shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order.
In addition, in exercising the power to make a guardianship order, we are obliged to observe the statement of general principles listed in s 4 of the Act: 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles. See also Cl 5 of Sch 6 to the Civil and Administrative Tribunal Act 2013 (NSW)

The views of Mrs GXE

While Mrs GXE did not expressly state that she opposed the making of a guardianship order, the effect of her evidence was that a guardianship order was unnecessary and she was capable of making all necessary decisions in relation to the management of her person.

The views of Mrs GXE's former-husband

The available evidence indicates that Mrs GXE's relationship with her former husband is not close and continuing. Therefore it is not necessary to take his view into account, if indeed he holds one about whether a guardianship order should be made. It is unknown whether he is aware of Mrs GXE's current circumstances.

The importance of preserving Mrs GXE's existing family relationships

On the available material it is not possible to determine whether the making of a guardianship order would affect Mrs GXE's existing family relationships. Indeed apart from Mrs X, there is no information about Mrs GXE's existing family relationships.

Importance of preserving the person's particular cultural and linguistic environments

This factor does not appear to be relevant in this case.

Practicability of services being provided to the person without the need for the making of such an order

This factor favours the making of a guardianship order in so far as the history of Mrs GXE's presentations to hospital suggests that to remain living independently, it is likely that she will require additional services, including regular medical review. Her apparent failure to take steps to arrange such services to date suggests she lacks insight into her condition or lacks the capacity to arrange for services to be provided.

Findings and conclusions

In deciding whether to make, or not to make, a guardianship order, we must take into account the factors listed in s 14(2) of the Act. These factors, together with the statement of principles contained in s 4 of the Act, require us to balance a number of competing considerations. On the one hand, we must observe the principle that Mrs GXE must be protected from neglect, abuse, and exploitation. On the other hand, we must restrict her freedom of decision making and action as little as possible and encourage her, as far as possible, to live a normal life in the community. At all times, the paramount consideration is Mrs GXE's welfare and interests.
We have noted above our concerns about the paucity of evidence on which to base a decision to make a guardianship order. While this is not the most clear cut case, we have decided that the balance of factors favour the exercise of the discretion to make a guardianship order.
Given our concern about the limited evidence available to make a finding about whether Mrs GXE's presentation to hospital is representative of her ongoing functional capacity, we have decided to make a continuing guardianship order for a short period, namely two months.

Who should be appointed as Mrs GXE's guardian?

On the available material there does not appear to be any person who is willing and able to exercise the functions conferred under the guardianship order. It follows that the Public Guardian must be appointed.

What functions should the guardian(s) be given?

In the foreseeable future, it is possible, if not probable, that decisions in relation to accommodation, services and health care will need to be made on behalf of Mrs GXE. For that reason, we have decided to confer these functions on the Public Guardian.

Can a financial management order be made?

Section 25G of the Act provides that the Tribunal may make a financial management order in respect of Mrs GXE only if we have considered her capability to manage her own affairs and are satisfied, to the relevant civil standard, of three matters: 1. That Mrs GXE is not capable of managing her affairs. 2. That there is a need for a person to manage those affairs on behalf of Mrs GXE. 3. That it is in Mrs GXE's best interests that the order be made.

Is Mrs GXE not capable of managing her affairs?

In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J commented at [308] and [309] on the meaning of the phrase "capable of managing those [the subject person's] affairs" in s 25G(a) of the Act: [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. In considering whether the person is "able" in this sense, attention may be given to: (a) past and present experience as a predictor of the future course of events; (b) support systems available to the person; and (c) the extent to which the person, placed as he or she is, can be relied upon to make sound judgements about his or her welfare and interests: CJ v AKJ [2015] NSWSC 498 at [38].
As a first step in determining whether Mrs GXE is capable of managing her affairs, it is necessary to identify the nature of her "affairs". According to Mrs GXE, she owns her own home and a shop and both properties are mortgage free. It appears that she earns rental income from the shop. It is unclear whether she has any other source of income.
Mrs GXE's claim that she has competently managed her affairs to date is unsupported but not contradicted. However, a record of her admission (made in either December 2017 or February 2018, it is unclear from the available material) states that Mrs GXE presented to hospital carrying $3000 in cash, which she stated was to pay for a bill of $300.
Dr W and Dr Z are of the opinion that Mrs GXE is probably not capable of managing her affairs, even after her psychotic symptoms have fully settled.
While some doubt is raised given the absence of a neurological assessment, on the available evidence, we are satisfied that Mrs GXE probably is and will be for the foreseeable future, unable to manage her affairs in a reasonable, rational, and orderly way.

Is there a need for a person to manage her affairs on behalf of Mrs GXE and is it in Mrs GXE's best interests that a financial management order be made?

These two issues are intertwined. For broadly the same reasons we gave for making the guardianship order, we are of the view that there is a need for a person to manage Mrs GXE's affairs. In reaching this conclusion we note that Mrs GXE's affairs appear to some complexity, and are likely to require, among other things, auditing of rental income and oversight of lease arrangements.
In circumstances where Mrs GXE is unable to manage her affairs and there is a need for a person to manage her affairs, the protection of her estate requires a financial management order to be made.
For these reasons we are satisfied that it is in her best interests that a financial management order be made.

Should a financial management order be made?

As the pre-conditions to making a financial management order are satisfied, the power to make a financial management order can be exercised. In exercising that power we are obliged to have regard to the statement of principles contained in s 4 of the Act. As noted above, this requires a number of competing considerations to be balanced.
It will be a rare case where the pre-conditions to making a financial management order are satisfied, and nonetheless, factors weigh against the exercise of the discretion to make such order. This is not such a case. We have decided that the power to make a financial management order should be exercised.

Who should be appointed to manage Mrs GXE's estate?

There being no evidence of a suitable person who is able and willing to take on the role of manager of Mrs GXE's estate, we have no option but to commit the management of her estate to the NSW Trustee and Guardian.

Should the financial management order be reviewable?

For the reasons given for making a reviewable short-term guardian order, in our view it is appropriate that the financial management order be reviewable and be for a term of two months.

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: 21 December 2018

Trustee and Guardian Act 2009(NSW)

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