Holt v Protective Commissioner

NCAT Guardianship|2014-11-13|Before: Simpson J, Hodgson J

What the Tribunal decided

The Tribunal appointed the Public Guardian to make decisions for Mrs DGD about her accommodation, access to her, health and services issues. The Tribunal appointed the NSW Trustee and Guardian as Mrs DGD's financial manager. Both these orders will be reviewed in six months.

Background

Mrs DGD is a 55-year-old woman with dementia and dysphasia who is currently staying at the home of her daughter Ms UBI in Regional NSW. Mrs DGD also has three other adult children, Ms KDK, Mr MEM and Mr TFI. Her first husband died some years ago and in 2009 she married again to Mr CCX.
Soon after her second marriage, Mrs DGD was involved in establishing a family cafe business in which her sons worked. Disagreements developed and Mrs DGD appears to have had very limited contact with her children for a number of years until September 2014.
In 2014, Mrs DGD and Mr CCX purchased a house in the Northern Territory with a view to moving there from Sydney. In early September, Mrs DGD and Mr CCX drove back to New South Wales for a visit and Mr CCX left Mrs DGD to stay for a short period with her daughter Ms UBI.
Conflict quickly followed about whether Mr CCX should be allowed to take Mrs DGD back to the Northern Territory. Ms UBI and then Mr CCX each applied for guardianship and financial management orders.

GUARDIANSHIP

The questions which had to be decided by the Tribunal in relation to guardianship were:

Does Mrs DGD have 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?

Does Mrs DGD have a disability which prevents her from being able to make important life decisions?

Dr Z, geriatrician, reported on 11 November 2014 that Mrs DGD had persistent dysphasia and scored 6/30 on a mini mental state examination. She appeared to have an early onset Alzheimer's dementia. She had made a significant improvement since September and it was unclear if there was further potential for improvement.
In January, Mrs DGD has an appointment with Dr Y, neuropsychiatrist, for a second opinion. Dr X geriatrician had instigated this due to Mrs DGD's young age.
There was no dispute in the hearing that Mrs DGD has a disability that prevents her from being able to make important life decisions so that the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order?

There is a fundamental issue to be resolved about where Mrs DGD should live, in particular whether she should stay with her daughter Ms UBI or return to the Northern Territory with Mr CCX. There is also an issue about access. Ms UBI has been preventing Mr CCX from seeing Mrs DGD.
There was no dispute in the hearing that the Tribunal should make a guardianship order so that the issues in contention could be resolved. The Tribunal gave the guardian authority over access, accommodation and related health and services issues.

Who should be the guardian?

The Tribunal has to be satisfied that any person appointed as a private guardian:

has a personality generally compatible with the personality of the person under guardianship;
has no undue conflict of interest (particularly financial) with those of the person; and
is able and willing to exercise the functions of the order.

If there is no private person qualified to appoint as guardian or if the circumstances otherwise make it inappropriate to appoint a private person, the Tribunal can appoint the Public Guardian (sections 15(3) and 17(1), Guardianship Act 1987 (NSW))
Ms UBI proposed that the Public Guardian be appointed. Mr CCX said in the hearing that he was not necessarily opposed to this but felt that he was best qualified to be his wife's guardian.
The Tribunal ultimately saw difficulties with appointing Mr CCX as guardian in the current context.
First, while there was strong evidence of a very positive relationship between Mr CCX and Mrs DGD over time, Mrs DGD has been expressing negative views about Mr CCX in recent times. Ms Q, counsellor with Alzheimer's Australia, reported that Mrs DGD repeatedly stated to her, "not going back with him," which Ms Q understood to be referring to Mr CCX. In the hearing, Mrs DGD told the Tribunal that she did not like Mr CCX, that she did not trust him and did not want to talk to him. She did not recall that she was married to Mr CCX or that she had lived with another man since her first husband died.
Ms UBI also wrote in her application of Mrs DGD speaking negatively about Mr CCX. In the hearing, she told the Tribunal that her mother had not wanted to see Mr CCX and had spoken fearfully about him.
Mr CCX's response to all this was that his wife was acting under the influence of her family.
In contrast with her responses in relation to Mr CCX in the hearing, Mrs DGD told the Tribunal that she trusted Ms UBI very much, commenting that she was of good character. When asked whether she trusted her daughter Ms KDK, she said "yes of course she is my daughter." When asked about Mr W and Ms V, she described them as best friends.
The separate representative told the Tribunal that Mrs DGD liked the idea of having an independent guardian and financial manager.
There was also a concern raised about whether Mrs DGD may have been neglected or mistreated by Mr CCX. In the application, Ms UBI wrote that her mother was unkempt, anxious and very submissive when first staying with her in September. She told Ms UBI that Mr CCX put her down and threatened to leave her (which Ms UBI subsequently interpreted as leave by the roadside when Mrs DGD and Mr CCX were on a trip). In the hearing, Ms UBI added that her mother had told her that Mr CCX had left her alone in a shed with no fan. She had said she was scared for her life.
Ms Q reported on a major change in Mrs DGD's disposition between their first meeting on 8 October and the most recent on 5 November. On 8 October, she seemed traumatised or very fearful. By November, her fear appeared to have been relieved to some extent. She repeatedly said "not going back with him" which Ms Q saw as referring to Mr CCX.
Dr Z reported that, since Mrs DGD had been with her daughter, she had shown a remarkable improvement in her ability to interact with the world. She looked well. Her cognition had improved although he MMSE score was still very low.
Ms U is a registered nurse with considerable experience in dementia care. She told the Tribunal that she had first met Mrs DGD on 16 September and had seen her several times since then. In the beginning, she appeared extremely withdrawn, teary and frightened. Now, her appearance had changed. She was a lot more open to interaction and less withdrawn, teary and frightened. She has said that she does not want to be with Mr CCX. Ms U agreed that it was possible that Mrs DGD's initial presentation was related to her being in a different environment and away from her husband.
Ms T has been providing some respite care to Mrs DGD in Regional NSW. She said that Mrs DGD was apprehensive about the Tribunal process and the conflict between family members. With Ms UBI, she has a good quality of life, doing things she likes and having healthy food. Her communication has improved. She does need 24-hour support.
Mr CCX agreed that his wife needed a high level of care. He said that he retired at the end of 2012 and did not leave her alone. His wife had insisted on accompanying him on the visit he had to make to Sydney in September rather than staying with some people in the Northern Territory. It was a 4500 km drive to Regional NSW and Mrs DGD did become disorientated. She did shower and wash on the trip.
When Mrs DGD was first staying with Ms UBI, he would speak to her on the phone and she kept saying that she wanted to come home. He felt that things that his wife was now saying arose from her being instructed continuously about what to say. He felt that her state had deteriorated when first in Regional NSW because she had been abducted.
Mr CCX said that he saw that his wife's condition had deteriorated when her routine was broken with the move to the Northern Territory. He saw distinct confusion in her.
Ms KDK said that Mr CCX had not taken Mrs DGD to a doctor when her condition deteriorated. He had told Ms KDK that he was investigating who was the right doctor to go to.
By the time of the hearing, Mr CCX told the Tribunal that he has now fully explored support services in the Northern Territory and provided a letter from a the Northern Territory GP showing that on 12 September he had discussed his wife's condition with a view to appropriate investigations and management. Mr CCX said it had always been Mrs DGD's wish to live in the Northern Territory as she had before.
Ms KDK also alleged that, after the dispute about the cafe, phone calls with her mother were very controlled.
Mr CCX was supported in the hearing by his two sons and a number of other friends who spoke impressively and positively about him. For example, Ms V is experienced in aged care and said that she has been in close contact with Mrs DGD and Mr CCX over time. She has seen a loving, loyal relationship. She has seen people having traumatic reactions on entry to dementia units and felt that Mrs DGD being separated from Mr CCX may have led to trauma. Mr CCX is very highly regarded in the Bahai community (in which at least Mr CCX, Mrs DGD and Ms UBI are involved).
Mr R said that he is a friend of both Mr CCX and Mrs DGD. He was stunned by her deterioration since Mr CCX and Mrs DGD stayed with him in June and then July. Mr CCX was a lovely man and suggestions that he would have mistreated his wife were outrageous.
Mr CCX also provided a number of supportive references and letters supporting his case.
In a statement, Mr CCX alleged that Ms UBI's application was motivated by financial self-interest in relation to obtaining a larger public-housing property and Centrelink entitlements.
Mr TFI and Mr MEM were supportive of their sister's application.
A background issue of considerable contention related to the cafe business that Mrs DGD and her sons were involved in. Mr CCX provided a copy of a detailed letter from Mrs DGD to her daughter Ms KDK dated 24 November 2013 expressing disappointment about the family excluding her in recent years and not asking her about the truth of the events that caused the disunity. The letter made a range of allegations against Mr TFI in relation to the cafe. In the hearing, Ms UBI claimed that the allegations in the letter were untrue. The Tribunal asked Mr CCX about the circumstances of the letter being written. He said that Mrs DGD had handwritten the letter and he had typed it for her. It was all of her thoughts. He did not see her as having dementia at the time.
The hearing went for half a day. On the basis of the evidence that the Tribunal had at the end of that hearing, the Tribunal was in no position to make any reasonably confident finding about the concerns raised about Mr CCX's actions or about whether the negative statements recently made about him by Mrs DGD are informed and well based. As is often the case for the Tribunal, a key impediment to it making reasonably confident findings of fact was Mrs DGD's cognitive and communication impairments which considerably impeded her giving evidence and impeded the weight that the Tribunal could give to her evidence. For the Tribunal to make a reasonably confident finding on the concerns about Mr CCX and the quality of Mrs DGD's views, it would have needed at least a much longer hearing, better expert evidence and independent observations of interactions between Mrs DGD and Mr CCX on access situations. For the Tribunal to obtain this evidence would have involved a considerable delay without necessarily placing the Tribunal in a position to make reasonably confident findings. It was in Mrs DGD's interests that the issues of accommodation and access be immediately addressed by a guardian.
There was a strong body of positive evidence about Mr CCX and the Tribunal has not made any finding that he has acted inappropriately. However, with the evidence as it stands, the Tribunal was not in a position to positively find that the personalities of Mr CCX and Mrs DGD are generally compatible. Nor was the Tribunal in a position to positively find that Mr CCX was able to weigh up objectively the pros and cons of accommodation options and so exercise the functions imposed by the guardianship order. In these circumstances, it was not open to the Tribunal to appoint Mr CCX under the current guardianship order.
The Tribunal therefore appointed the Public Guardian. The appointment of the Public Guardian will also carry advantages of an independent and professional guardian who can weigh up the range of evidence and perspectives and make decisions about where Mrs DGD's best interests lie. An important first step in this might be for the Public Guardian to organise access between Mrs DGD and Mr CCX with observation of that access by an appropriate independent person who can report to the Public Guardian.

How long should the order last?

The Tribunal decided that the order should be six months on the basis that this will allow the Public Guardian to further clarify the relevant issues and make at least initial decisions. The Tribunal can then review the order and decide whether and what further guardianship order should be made.

FINANCIAL MANAGEMENT

The questions which had to be decided by the Tribunal in relation to financial management were:

Is Mrs DGD incapable of managing her affairs?
Is there a need for another person to manage Mrs DGD'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?

Should the Tribunal make a financial management order?

As with guardianship, there was no dispute in the hearing that Mrs DGD is incapable of managing her financial affairs and that the Tribunal should make a financial management order.
In view of the extent of her dementia and very limited awareness of her finances that she showed in the hearing, Mrs DGD's incapability was clear as was her need for someone else to manage her affairs.
Mrs DGD's estate includes a half interest in the home that she and Mr CCX purchased in the Northern Territory. Mr CCX wrote that this home was bought entirely from the proceeds of sale of a house that he had owned in Sydney. Mr CCX said that Mrs DGD also has approximately $190,000 invested with the Bahai church. Mrs DGD does not have a pension. Mr CCX said that he has been fully supporting his wife.
It was in Mrs DGD's best interests that the Tribunal make a financial management order so that appropriate financial arrangements can be made for her support wherever the guardian decides she should live. Also, it may be important for Mrs DGD to seek a disability support pension.

Who should be the financial manager?

The Tribunal needed to consider whether it could appoint a suitable person to the role of financial manager and otherwise needed to appoint the NSW Trustee and Guardian. This issue needed to be determined in accordance with Mrs DGD's best interests. The Tribunal has a broad discretion here. It needed to take into account all relevant circumstances and could be guided by the principles in section 4 of the Guardianship Act (see: section 25M, Guardianship Act; Holt v Protective Commissioner (1993) 31 NSWLR 227; SH v Protective Commissioner [2006] ADTAP 22; LA v Protective Commissioner [2004] NSWADTAP 39; M v M [2013] NSWSC 1495).
In Holt v Protective Commissioner, President Kirby of the Court of Appeal set out a checklist of considerations that "might be kept in mind" in deciding who should be financial manager. See also M v M [2013] NSWSC 1495 where the Justice Lindsay set out a checklist of factors that the Court might bear in mind.
While there is no absolute bar on appointing a financial manager who has a conflict of interest, it is an issue that the Court of Appeal has said should be approached carefully and that ordinarily a person with a conflict of interest would not be appointed. In some family situations, the conflict of interests flowing from inter-related property interests will be more apparent than real. (Holt v Protective Commissioner (1993) 31 NSWLR 227 at 242. See also H v H, Supreme Court Protective Division, unreported, Hodgson J, 31 March 1994, Re R [2000] NSWSC 886, Re L [2000] NSWSC 721 and M v M [2013] NSWSC 1495).
Similarly as with guardianship, Ms UBI asked the Tribunal to appoint the NSW Trustee and Guardian. Mr CCX was not opposed to this but felt that he was best placed to act as his wife's financial manager.
There was no suggestion that Mr CCX has financially exploited his wife. He has fully supported her and has just bought a house in joint names from the proceeds of his home. However, in view of the interplay between financial issues and decisions the guardian makes about accommodation, the Tribunal decided that it was in Mrs DGD's best interests to appoint the NSW Trustee and Guardian at this stage. The financial manager will need to act in collaboration with the guardian in making financial arrangements that may flow from the guardian's accommodation decisions. This could place Mr CCX in a problematic situation.
It may be that Mrs DGD will need a financial manager on an ongoing basis. However, this and the form of the order can be reviewed once Mrs DGD's accommodation future becomes clearer. The Tribunal decided to review the financial management order and the identity of the manager at the same time as the guardianship review in six months.

Recommendations to the NSW Trustee and Guardian

The Trustee should: 1. Clarify Mrs DGD's financial situation including in relation to cards from a number of banks, copies of which were produced at the hearing by Mr CCX. 2. Apply for a disability support pension for Mrs DGD if she is eligible.

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: 27 February 2015

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