HXZ [2020] NSWCATGD 65

Background

1. HXZ is 82 years old and lives at an aged care facility. She has been diagnosed with dementia, and her cognition has severely declined over the last few months. Until recently, she lived at home with her husband, OBC. Her accommodation at the aged care facility is now permanent and OBC has recently moved there as well.
2. HXZ has two daughters, KZO and SYC, and a son, LTC. She has another son who is estranged from the family.
3. On 1 June 2020, the Tribunal received applications from KZO for guardianship and financial management orders in respect of HXZ. KZO proposed that she be jointly appointed with her sister, SYC.
4. At a hearing on 2 July 2020, the evidence before the Tribunal supported the conclusion that it could make guardianship and financial management orders in respect of HXZ. However, HXZ was adamant that she did not want her daughters, or any member of her immediate family, appointed. She and OBC insisted they wanted her brother-in-law, BKC appointed.
5. LTC, KZO and SYC said they were all taken by surprise because, right up until the hearing, their father had supported the joint appointments of KZO and SYC. They all said they were not opposed to BKC's appointment and spoke highly of him.
6. HXZ and her husband had expected that BKC would attend the hearing. As set out in our previous Reasons for Decision, it turned out that he had gone to the aged care facility for the hearing but he was not allowed to enter without a formal appointment. When we spoke to him by telephone, he said he needed time to consider being appointed guardian and financial manager. We therefore adjourned the hearing to 17 July 2020.

The resumed hearing

1. The resumed hearing was conducted by telephone. A list of the parties to the application and those who attended is at the end of these Reasons for Decision. [Appendix removed for publication.]
2. HXZ's husband, OBC, did not attend the hearing. HXZ was evidently confused by our call but, when we reminded her about the previous hearing, she said she recalled it. She did not know where her husband was or why he was not present. KZO confirmed that he had received the papers for the hearing. She said she was surprised he was not there but there are concerns he might have dementia as well, and that might explain why he was not present.
3. OBC was present at the previous hearing when the evidence concerning HXZ's capacity to make personal and financial decisions was discussed and he made it clear that he supported BKC's appointments. As that was the main question to be determined at the resumed hearing, we were satisfied it was appropriate to proceed in his absence.
4. HXZ become upset towards the end of the hearing. As she had made her views known about who she would want appointed, we agreed that she should leave and that we could conclude the hearing in her absence.

THE GUARDIANSHIP APPLICATION

1. The Tribunal may make a guardianship order in respect of a person if, after conducting a hearing, it is satisfied that he or she is a person in need of a guardian: s 14(1) of the Guardianship Act 1987 (NSW) ("the Act").
2. A person is "in need of a guardian" if, because of a disability, he or she is totally or partially incapable of managing his or her person: the Act, s 3(1).
3. A "person who has a disability" includes a person who is intellectually, physically, psychologically or sensorily disabled and who, because of his or her disability, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: the Act, s 3(2).
4. We have to decide:

• Is HXZ someone for whom the Tribunal can make a guardianship order because she is a person "in need of a guardian"?
• If so, should the Tribunal make a guardianship order and, if so, what order should be made?
• If an order should be made, who should be the guardian and how long should the order last?

1. In making any decision under the Act, we must observe the principles in s 4 of the Act. They include that HXZ's welfare and interests should be given paramount consideration, her freedom of decision and action should be restricted as little as possible, her views should be taken into consideration, the importance of preserving her family relationships should be recognised, and she should be protected from neglect, abuse and exploitation.

Is HXZ someone for whom the Tribunal can make a guardianship order?

1. Every person who is the subject of an application is presumed to have capacity to make their own decisions unless there is sufficient evidence to rebut that presumption.
2. An Aged Care Support Plan dated 5 May 2020 shows that HXZ was referred for a comprehensive assessment of residential options. The assessment summary shows that she mobilised independently without aid. She was dependent on others for transport, cooking and other daily tasks, and financial matters. Her husband stated she required prompting with meal times and, when out of the family home or her normal routine, she would become confused and disorientated. Her husband and daughter, SYC, helped her with all her daily tasks. She lacked insight into her deficits and felt she could manage at home with her husband's and SYC's help. Her family, including OBC, were concerned about how they would manage given his declining health.
3. There was no evidence from a treating or other health professional at the first hearing. HXZ's children undertook to obtain a report from her general practitioner, Dr Z, for the resumed hearing.
4. We have received Dr Z's report and clinical records from a public hospital where HXZ was admitted recently. Dr Z reports that he sees her monthly. She has had moderately severe dementia for the past year which affects her capacity to make decisions about her accommodation, health care and financial affairs.
5. HXZ's children agree with Dr Z's assessment.
6. We accept the evidence from Dr Z and HXZ's children and are satisfied that, as a result of dementia, HXZ is unable to make important life decisions for herself. We are satisfied that she is a person for whom we can make an order.

Should the Tribunal make a guardianship order and, if so, what order should be made?

1. Even though satisfied that HXZ is someone for whom a guardianship order can be made, we must still decide whether an order should be made. In doing so, we must observe the principles in s 4 of the Act.
2. HXZ is now in permanent care. Her children agree that the person responsible regime in the Act enables them to consent to medical and dental treatment on her behalf, and she receives the services and health care she needs.
3. Although HXZ is now in permanent care, her children remain concerned that their father, who is in respite care, might decide to return home. If that happens, he would probably try to take her with him and it is likely she would want to go with him. As she is still settling into permanent care, they are concerned that would be disruptive and upsetting for her. They think it in her best interests that a guardian be able to enforce an accommodation decision. We accept their evidence.
4. The power to authorise others to take, keep, or return, a person to a particular place may only be exercised by an appointed guardian. We are satisfied that we should make a guardianship order for HXZ and appoint a guardian with authority to make decisions concerning her accommodation with powers to authorise others.

Who should be appointed and for how long?

1. In deciding whether a person is able to undertake the role of guardian, we must consider whether she or he able 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 [2011] NSWSC 1075 at [66].
2. We must also be satisfied that the proposed guardian has a personality which is generally compatible with that of the person for whom she or he will be guardian, that she or he has no undue conflict of interest and is willing and able to exercise the functions of the proposed order: s 17 of the Act. We must also have regard to HXZ's wishes.
3. HXZ told us at the resumed hearing that BKC would be her preference but that, if he wanted back up, she would want her son, LTC, appointed. BKC told us that he thinks it best that one or more of HXZ's children be appointed guardian. We agree.
4. LTC and KZO are agreeable to a joint appointment. SYC supports their appointment. They all say they have discussed the matter with their other brother and he agrees as well.
5. We are satisfied that LTC and KZO are suitable persons to be appointed guardians for HXZ and that they will act in her best interests.
6. An initial order can be made for such period not exceeding one year from the date it is made: s 18(1) of the Act. In this case, there will be a continuing order for 12 months. Given the limited nature of the order and that it is likely HXZ will be settled at the end of the time, the order will be non-reviewable.

THE FINANCIAL MANAGEMENT APPLICATION

1. Section 25G of the Act provides that the Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that: 1. the person is not capable of managing those affairs; 2. there is a need for another person to manage those affairs on the person's behalf; and 3. it is in the person's best interests that the order be made.

Is HXZ capable of managing her own affairs?

1. The test for determining whether a person is incapable of managing their own affairs was described in P v NSW Trustee and Guardian [2015] NSWSC 579 at [307]-[308] as follows: "Is the person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a protected estate 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."
2. OBC told us at the previous hearing that he does not believe HXZ can manage her own affairs. HXZ agreed and said she is not confident doing so and she does not want to make mistakes. Her children agree.
3. One of the matters to be managed will be the sale of Mr and HXZ's home. Considering all the evidence including from Dr Z, we are satisfied that HXZ is incapable of managing her affairs.

Is there a need for another person to manage HXZ's affairs on her behalf and is it in her best interests for an order to be made?

1. HXZ receives an age pension. She is joint owner, with her husband, of their home, and they have a joint bank account with a current balance of approximately $137,000. They have a joint term deposit of $140,000 and she has an account in her own name with a balance of approximately $1700.
2. A number of matters need attending to on HXZ's behalf including the sale of the family home and management of the proceeds, management of her share of the bank accounts, access to accounts, and dealing with Centrelink in order to determine, and then pay, her accommodation and care fees. We are satisfied that managing those matters will need formal authority.
3. We are satisfied that there is a need for another person to manage HXZ's affairs on her behalf and that it is in her best interests that an order be made.

Who should be appointed?

1. If the Tribunal makes a financial management order, it may appoint a suitable person as manager of the estate or may commit the management of the estate to the NSW Trustee and Guardian: s 25M(1) of the Act.
2. In Application by AMAM; Re SAM [2011] NSWSC 503, Hallen AsJ said at [34]: "It would be unwise to attempt any definition of the matters that may legitimately be enquired into to determine whether the applicant is suitable. Each case must depend on its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager's character, honesty and ability to manage, diligently, the managed person's property in the managed person's best interests."
3. The matters to be considered when determining who to appoint as financial manager, as established in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, are discussed and expanded upon by Lindsay J in M v M [2013] NSWSC 1495 at [50].
4. HXZ has expressed her strong preference for BKC to be appointed, either alone or jointly with LTC. Both are willing to be appointed and to act together. BKC would prefer to be appointed with LTC given the matters that need to be managed on HXZ's behalf. LTC has worked in the finance industry for over 40 years including for a national bank and he is now the lending manager for a credit union. KZO and SYC support their appointments.
5. We are satisfied that BKC and LTC are suitable persons to be appointed financial managers of HXZ's estate and that they act in her best interests. As they live some distance from each other, the appointment will be joint and several for greatest flexibility.

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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: 30 August 2021