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[2014] NSWCATGD 16
NCAT Guardianship
2014-01-24
Currie J
Original judgment source is linked above.
Review of Appointment of Enduring Guardian 1The Tribunal decided to revoke the enduring guardianship appointment made by Mrs NAU on 11 November 2013 when she purported to appoint Mr EBG as her enduring guardian.
Guardianship Order 2The Tribunal decided to make a guardianship order for Mrs NAU. The Public Guardian was appointed as her guardian for a period of one year with the authority to make decisions on her behalf about her accommodation, health care, medical and dental consents and services.
Review of Enduring Power of Attorney 3The Tribunal decided to conduct a review of the making and of the operation and effect of an enduring power of attorney made by Mrs NAU on 11 November 2013 ("the Enduring Power of Attorney") which appointed Mr EBG as her attorney. The Tribunal decided to order that Mrs NAU did not have the mental capacity to make a valid power of attorney when she purported to make the Enduring Power of Attorney and to order that the Enduring Power of Attorney is wholly invalid.
Financial Management Order 4The Tribunal decided to make a financial management order for Mrs NAU. The management of Mrs NAU's estate was committed to NSW Trustee & Guardian.
Background 5Mrs NAU is an 83-year-old woman of Serbian background who at the time of the hearing was an inpatient at a Sydney Hospital having been admitted to that hospital on 12 November 2013. Mrs NAU normally lives at her home in Sydney where she lives with a boarder, Mr EBG. It is reported that Mrs NAU has suffered at least two cerebrovascular accidents over recent months and that she has a diagnosis of vascular dementia secondary to the cerebrovascular accidents, resulting in profound deficits in her functional ability. 6On 11 November 2013 Mrs NAU executed two instruments of appointment. The first of these was an appointment of enduring guardian, ("the Appointment of Enduring Guardian") under which she appointed Mr EBG as her guardian with the authority to make decisions about her accommodation, health care, medical and dental consents and services. 7The second instrument was an enduring power of attorney ("the Enduring Power of Attorney") under which Mrs NAU appointed Mr EBG as her attorney and gave her attorney the additional authority to give reasonable gifts and to confer benefits on the attorney himself to meet his reasonable living and medical expenses, as provided by sections 11(2) and 12(2) respectively of the Powers of Attorney Act 2003 ('the Powers of Attorney Act'). The Enduring Power of Attorney was stated to operate upon the attorney accepting his appointment. Mr EBG signed a form of acceptance of the appointment on 11 November 2013. 8On 20 November 2013 the Guardianship Tribunal received from Ms LCE, Social Worker at the Hospital, applications seeking the Tribunal's review of the Appointment of Enduring Guardian and of the Enduring Power of Attorney. On 5 December 2013 the Guardianship Tribunal received from Ms LCE applications seeking the appointment of a guardian and a financial manager for Mrs NAU. Accordingly there were 4 applications received by the Tribunal in respect of Mrs NAU. Those 4 applications were the subject of the Tribunal's hearing on 24 January 2014.
The hearing 9The Guardianship Act 1987 (NSW) ('the Guardianship Act') requires that before the Tribunal makes a decision on any application, it must bring the parties to a settlement or use its best endeavours to do so. This is not required if the Tribunal considers that it is not possible, or appropriate, to attempt to bring the parties to a settlement. At the hearing the Tribunal used its best endeavours to identify any issues in dispute between the parties. There were, at least initially, issues between the applicant Ms LCE and Mr EBG. This appeared to have been largely resolved by the time the hearing concluded.
A. Review of appointment of enduring guardian 10Section 6J(1)(b) of the Guardianship Act requires the Tribunal to review the appointment or purported appointment of an enduring guardian on the request of any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the appointor. Sub-section 6K(1) of the Guardianship Act permits the Tribunal on reviewing the appointment of an enduring guardian: (a)to revoke the appointment; or (b)to confirm the appointment with or without varying the functions of the guardian under the appointment. 11However, under s 6K(2), the Tribunal must not revoke the appointment unless: (a)the enduring guardian requested the revocation; or (b)the Tribunal is satisfied that it is in the best interests of the appointor that the appointment be revoked. 12Sub-section 6K(3) permits the Tribunal, if it decides to revoke the appointment of enduring guardian, to proceed as if an application for guardianship, or for financial management, or for both had been made. 13Accordingly, the questions which had to be decided by the Tribunal were: (a)Does Ms LCE have standing to bring this application because she is a person who in the opinion of the Tribunal has a genuine concern for the welfare of Mrs NAU? (b)Is Mr EBG requesting that his appointment be revoked, or is it in the best interests of Mrs NAU that the Appointment of Enduring Guardian is revoked? (c)If the answer to question (b) is yes, should the Tribunal proceed as if an application for guardianship, or for financial management, or for both had been made? (d)If the answer to question (b) is no, should the Tribunal make any variations to the functions of the guardian under the appointment?
B. Guardianship 14The questions which had to be decided by the Tribunal in relation to the guardianship application were:
C. Review of enduring power of attorney 15There are 3 distinct stages in the Tribunal's hearing of an application for the review of an enduring power of attorney: (1)The application for review must be brought by an "interested person":
D. Financial management 19The questions which had to be decided by the Tribunal in relation to the financial management application were:
Participation in the hearing by Mrs NAU and her views 20At the commencement of the hearing the Presiding Member explained the role of the Tribunal and its obligations, the procedures which would be adopted for this hearing and the issues which the Tribunal had to determine at this hearing. Mrs NAU, participating through an interpreter, told the Tribunal that she remembered nothing about signing either the Appointment of Enduring Guardian or the Enduring Power of Attorney. However she said: "You have to sign something when they push you to do it." 21Members asked Mrs NAU whether she recalled that someone was applying pressure to her to sign some documents at about that time. She replied: "Certainly". She said that she did not know what to do. When asked to identify who had applied pressure to her to execute the instruments Mrs NAU said she did not know. When asked whether she would trust anyone to make decisions on her behalf about her ongoing health care Mrs NAU said she would trust her own doctor. When asked whether she would trust anyone to make decisions about and to manage her financial affairs Mrs NAU said she would trust no-one.
The Tribunal's assessment of the evidence and determination of the issues
Does Ms LCE have standing to bring this application? 22Having reviewed Ms LCE's applications and supporting documentation the Tribunal was satisfied that she is someone who has a genuine concern for the welfare of Mrs NAU. She therefore has standing to bring this application.
Mr EBG's request for the revocation of his appointment as enduring guardian. 23Having heard from Ms LCE, Dr Z, Mr ADE, solicitor and Mr EBG as to the circumstances in which the Appointment of Enduring Guardian and the Enduring Power of Attorney had been executed (as summarised in more detail in the section below dealing with the Enduring Power of Attorney), Mr EBG indicated that he had always told Mrs NAU that he would only be prepared to assist her as her guardian and attorney on a short term basis because of his own family responsibilities. 24Mr EBG told the Tribunal that he had come to the view that he could not and should not continue as the appointed the under either of those instruments and he therefore requested the revocation of his appointment as enduring guardian under the Appointment of Enduring Guardian. 25The Tribunal was satisfied from what it heard from these participants and from Mrs NAU herself that the revocation of Mr EBG's appointment would be in the interests of Mrs NAU and would further her welfare. Accordingly the Tribunal ordered that Mr EBG's appointment is revoked.
Should the Tribunal proceed as if an application for guardianship, or for financial management, or for both had been made? 26In light of the fact that the Tribunal would now move on to consider Ms LCE's application for the appointment of a guardian for Mrs NAU, there was no need for the Tribunal to treat the application for review of the appointment of Mr EBG as an application for guardianship or for financial management.
Is Mrs NAU 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? 27The Tribunal had received and considered two written medical reports concerning Mrs NAU. The first of these was a report dated 16 December 2013 from Dr Y, who has been Mrs NAU's treating general practitioner for 30 years. Dr Y confirmed his understanding that Mrs NAU was admitted on 12 November 2013 to the Hospital due to a fall and that she was subsequently diagnosed as having had a cerebrovascular accident (that is, a stroke). Dr Y does not include a detailed diagnosis in his report but raised what he called "a few points of concern" as to the capacity of Mrs NAU to have signed important legal appointments on 11 and November 2013. 28The second medical report was one dated 24 December 2013 from Dr Z, Geriatric Registrar at the Hospital. Dr Z was part of the treatment team for Mrs NAU at that hospital. His report confirmed that, following her admission to a hospital on 12 November 2013 (that is the day after she executed the Appointment of Enduring Guardian and the Enduring Power of Attorney), that he had seen her most days since 19 November at which time she was referred by another medical team for ongoing management of the stroke. 29Clinical and radiological assessments done in that period resulted in a diagnosis of vascular dementia secondary to stroke is offering in profound deficits in Mrs NAU's ability to function. A cognitive assessment was made with the assistance of an interpreter on 11 December 2013 and the findings on that date were similar to those of a prior assessment made on 9 December 2013. Her Roland Universal Dementia Assessment Scale ("RUDAS") score was similar on each occasion, namely 7 out of 30 and 5 out of 30. In particular Mrs NAU was found to lack short-term memory, visuospatial orientation and language skills. Mrs NAU could not recall any of the items of a short shopping list that she was asked to remember. She also scored poorly on questions assessing judgements such as when asked what she would do to ensure the safety cross a busy road. 30The doctor concluded that functionally Mrs NAU remains grossly incapacitated from her stroke with little capacity to understand or communicate financial concepts because of her assessed dementia. The concluding opinion is that Mrs NAU is incapable of managing her own affairs and lacks the capacity to make decisions regarding her medical treatment, because of the vascular dementia secondary to her recent cerebrovascular accident and it is not expected that she will make any significant recovery. 31Dr Y attended the hearing and Dr Z participated by telephone and they confirmed the conclusions made in their respective reports. Tribunal accepted the reports by Dr Y and Dr Z as reliable professional evidence of significant weight. On the basis of this uncontested professional evidence the Tribunal was satisfied that Mrs NAU is someone for whom the Tribunal could make a guardianship order because she has a disability which prevents her from making important life decisions.
Should the Tribunal make a guardianship order? 32The Tribunal explained that it could not make a guardianship order for Mrs NAU unless it could be satisfied that there was a current need for decisions to be made on her behalf about her personal life matters, that there was no practical alternative or informal means of making those decisions and that the appointment of a guardian would be in her interests and welfare. 33As indicated under the previous heading the Tribunal regarded the available medical evidence as having established clearly that Mrs NAU was unable to make her own decisions about many important matters including her accommodation, medical treatment and ongoing health care. The applicant Ms LCE confirmed at the hearing that it was unlikely that Mrs NAU would be able to return home and the next step so far as her accommodation was concerned was a high level nursing home placement. Ms LCE pointed out that an Aged Care Assessment Team ("ACAT") assessment needed to be completed and that would in the circumstances require the signature of a guardian. 34A neighbour of Mrs NAU, Dr CBM have provided a detailed letter to the Tribunal and also attended the hearing. The Tribunal found her to be a reliable and credible witness. Dr CBM expressed her grave concerns for Mrs NAU's well-being if no guardian were appointed, because of the vulnerability which she had displayed up to and including the time at which she had executed the Appointment of Enduring Guardian and the Enduring Power of Attorney. 35The Tribunal also took into account the letters which had been written to it by a friend of Mrs NAU, Ms FDD and Mrs NAU's relatives including her sister Mrs HRW and her nephew Mr SQH, both of whom live in Serbia. All expressed concern for Mrs NAU's vulnerability and the need for proper ongoing medical treatment and health care. Their letters were generally supportive of the appointment of a guardian for Mrs NAU. 36In reaching a conclusion on this important issue the Tribunal took into account the guiding principles set out in section 4 of the Guardianship Act. The principles which appeared to have primary relevance to this case were the need to protect Mrs NAU from neglect, abuse and exploitation, the importance of preserving Mrs NAU's family relationships and her cultural and linguistic environments, Mrs NAU's own views, the need to encourage Mrs NAU as far as possible to live a normal life in the community and the need to restrict her freedom of decision and freedom of action as little as possible. The Tribunal also had regard to the principle which section 4 requires the Tribunal to have as its paramount consideration; that is, the welfare and interests of Mrs NAU. 37The Tribunal also considered the factors prescribed by sub-section 14(2) of the Guardianship Act. It was satisfied on the basis of the evidence that there was a current need for decisions on behalf of Mrs NAU, particularly in relation to her accommodation, health care, medical and dental consents and services, to be made by a guardian. The Tribunal took into account the action that would be needed to preserve Mrs NAU's safety from neglect and exploitation and her ongoing health care, as well as the fact that Mrs NAU now lacked capacity to appoint a guardian herself. Based mainly on these factors, the Tribunal was satisfied that there was no practical alternative to the appointment of a guardian, that there was a need for a guardian to be appointed by this Tribunal for Mrs NAU and that such an appointment would be in her best interests.
If so, what order should be made? Specifically what functions should the guardian have? 38It followed from the Tribunal's consideration of the medical and related professional evidence, including that of Ms LCE, that Mrs NAU's guardian would need the authority to make decisions on her behalf about her accommodation, health care, medical and dental consents and services.
If a guardianship order is to be made, who should be the guardian? 39The Tribunal may appoint a private person or the Public Guardian as a guardian. The Tribunal will not appoint the Public Guardian if an order could be made appointing a suitable private person as guardian. So, wherever possible, the Tribunal appoints a family member or a friend to act as guardian. 40Section 17 of the Guardianship Act prohibits the Tribunal from appointing a person as guardian unless satisfied that the person meets the following requirements. The person must:
How long should the guardianship order last? 43An initial guardianship order can be made for a period of up to one year from the date on which it was made. However, an order of up to three years can be made if the person the subject of the order has permanent disabilities and is unlikely to become capable of managing his or her person and there is the need for an order longer than one year. 44The Tribunal decided to make an order for one year on the basis that although some early decisions would be needed from the guardian, there would be an ongoing need for the guardian to be available to make decisions for her under each of the functions granted. The Tribunal was satisfied on the basis of the evidence that it was consistent with Mrs NAU's interests and welfare for the order to be made for one year. It ordered accordingly.
Is Mrs NAU incapable of managing her affairs? 61The Supreme Court of New South Wales has provided guidance in several decisions as to how the Tribunal should assess a person's capability to manage his or her affairs. In earlier cases the Court had based its test predominantly on the ability of the subject person to conduct the everyday affairs of ordinary people. It was said that if by reason of a failure to do this the person would be disadvantaged or there would be a real risk that they would be disadvantaged or that their money or assets would be at risk of dissipation, then they would properly be treated as being incapable of managing their affairs. 62In three more recent Supreme Court decisions; P v R [2003] NSWSC 819, Re D [2012] NSWSC 1006, and PB v BB [2013] NSWSC 1223, it has been emphasised that the Tribunal should not be relying just on hypothetical notions such as "the ordinary affairs of people" but rather should focus on the capability of the particular person to deal with his or her actual assets and to do what he or she is proposing to do with them. In P v R, Justice Barrett said that the task of the Tribunal 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." 63In PB v BB, Justice Lindsay confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at paragraph [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." 64So, as a result of these authorities, the Tribunal will look at the functionality of management capacity of the person concerned rather than their mental capacity or the particular reasons for their incapacity for self-management. It will look at the actual assets of the person concerned, how they are proposing to manage their ordinary affairs of living, whether they can look after their assets and what they are proposing to do with them. 65If the Tribunal finds that the person under consideration: (1)cannot manage their ordinary affairs of living; or (2)does not have a reasonably sound understanding of what their assets, liabilities and sources of income are, or what needs to be done to preserve them, and for that reason is unlikely to be able to preserve their money or assets or is likely to be disadvantaged in their dealings; or (3)does not have at least some basic understanding of the complications and risks of what is proposed to be done (by themselves or others) with their assets or money and it is unlikely that those proposals will be achieved or there is a substantial risk that they will result in the person's money or assets being dissipated or lost; or (4)lacks the ability to identify situations where others may be attempting to benefit from the person's assets or money and consequently there is a real risk that the person will be disadvantaged or that their money or assets will be dissipated or lost; then the Tribunal can be satisfied that the person is incapable of managing their affairs.
Application of those principles in the present case 66There was consensus between Drs Z and Y, Ms LCE and the neighbours of Mrs NAU who participated in the hearing that at present Mrs NAU is quite incapable of managing her ordinary affairs of living or of understanding the nature and extent of what she owned or how to protect it. 67Such a conclusion also emerges from the medical evidence discussed in detail in relation to the guardianship application above. In particular it is clear from the medical reports that Mrs NAU's cognitive condition is, unfortunately, most unlikely to improve. On that basis the Tribunal was satisfied that Mrs NAU is incapable of managing her affairs.
Is there a need for another person to manage the affairs of Mrs NAU and is it in her best interests that a financial management order is made? 68The Tribunal was persuaded by the medical evidence and the views of the participants that a clear need for the appointment of a financial manager arises from the problem need to sell Mrs NAU's house to fund her admission into suitable nursing home accommodation and to pay her outstanding bills. 69Evidence was provided by Ms LCE as to recent movements in Mrs NAU's bank accounts. Although it was not possible for the Tribunal to determine whether monies had been withdrawn from Mrs NAU's account in the period leading up to or immediately after the execution of the Enduring Power of Attorney, it appears to the Tribunal justified for some further investigation of these matters to be considered by a financial manager. For these reasons the Tribunal was satisfied that there is a need for another person to manage the affairs of Mrs NAU and that it is in her best interests that a financial management order is made.
If an order is to be made on the basis of the answers to those questions, who should be appointed as financial manager? 70The Tribunal's practice has been to appoint a suitable person such as a family member or close friend as financial manager before considering the appointment of the NSW Trustee where that is appropriate and it is in the best interests of the protected person for that to happen. That order of things was approved in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, where the President of the Court of Appeal, Justice Kirby, described it as "a sensible hierarchy of choices." 71Before appointing a private person as a financial manager the Tribunal needs to be satisfied that the person is willing to act and that he or she is suitable to be appointed. 72Mrs TBD joined the hearing by telephone and indicated that she had had a letter from a sister of Mrs NAU who lives in Serbia, asking her to act for Mrs NAU, and she took this to include nominating herself as financial manager. However Mrs TBD told the Tribunal that she thought it was more appropriate for a government instrumentality to manage Mrs NAU's affairs and so she would support the appointment of NSW Trustee. 73It was apparent that no other family member and no other private person, firm or organisation had indicated a willingness to be considered as Mrs NAU's financial manager and in those circumstances the Tribunal was satisfied that there is no available or suitable private financial manager. 74On that basis the Tribunal committed the management of the estate of Mrs NAU to NSW Trustee & Guardian.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 October 2014
Holt & Anor
Protective Commissioner