HZF [2019] NSWCATGD 10

Medical Evidence

1. In a letter, dated 27 December 2018, Dr X stated that HZF has advanced dementia, featuring long-term and short-term memory loss. Her dementia previously was associated with psychotic symptoms, such as auditory hallucinations and paranoia. HZF generally mobilises with a wheelchair and she is dependent on her family for all her activities.
2. On 31 January 2019, HZF was assessed by the Department's Medical Visa Services in relation to her daughter's Carer visa application. The assessment also relied on Dr X's letter. It was stated in the assessment that 'there is an extreme impact of the dementia on [HZF]'s brain and cognitive functioning.' HZF is unable to remember simple tasks, she doesn't recognise her family members and she is not orientated to 'time, place and person'. The assessment also noted that HZF's 'comprehension is minimal, and she has poor awareness of her own situation'.

The Hearing

1. The hearing was held on 3 May 2019. At the end of these Reasons for Decision is a list of the participants at the hearing.
2. The Tribunal accepted the evidence of BZF and her husband, GZB, that HZF was unable to participate in the proceedings and present her views due to the extent of her disabilities. The Tribunal did not attempt to seek HZF's views from her directly and did not consider that it would be in HZF's best interests for the Tribunal to attempt to speak with her about the applications before it.

THE GUARDIANSHIP APPLICATION

1. The questions which had to be decided by the Tribunal were: 1. Is HZF 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? 2. Should the Tribunal make a guardianship order and if so, what order should be made? 3. Who should be the guardian? 4. How long should the order last?

Is HZF 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?

1. Section 14 of the Guardianship Act 1987 (NSW) ("the Act") provides that the Tribunal may make a guardianship order for a person if it is satisfied that they are "a person in need of a guardian". A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing [their] person": s 3(1) of the Act. A person with a disability is a person who is: 1. intellectually, physically, psychologically or sensorily disabled; 2. of advanced age, 3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or 4. otherwise disabled;
2. and by virtue of that fact is restricted in one or more major life activities to such an extent that they require supervision or social habilitation: s 3(2) of the Act.
3. The Tribunal accepted the medical evidence before it, indicating that HZF has been diagnosed with advanced dementia and has significant cognitive impairment. She is dependent on her family for all her activities of daily living. BZF's account of her mother's condition and the level of care required by her was consistent with the medical evidence presented.
4. On the basis of this evidence, the Tribunal was satisfied that HZF's disability results in her being restricted in her major life activities to such an extent that she requires supervision and assistance and is thereby incapable of managing her own person. The Tribunal, therefore, was satisfied that a guardianship order could be made for HZF.

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

1. Before exercising its discretion to make a guardianship order the Tribunal must observe the principles contained in s 4 of the Act and consider the matters set out in s 14(2) of the Act.
2. Under s 4 of the Act, it is the duty of everyone exercising functions under the Act with respect to persons who have disabilities to observe the following principles: 1. the welfare and interests of such persons should be given paramount consideration; 2. the freedom of decision and freedom of action of such persons should be restricted as little as possible; 3. such persons should be encouraged, as far as possible, to live a normal life in the community; 4. the views of such persons in relation to the exercise of those functions should be taken into consideration; 5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised; 6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs; 7. such persons should be protected from neglect, abuse and exploitation; 8. the community should be encouraged to apply and promote these principles.
3. The words of s 4 of the Act make plain that it is mandatory, not merely exhortatory, for a person exercising functions under the Act, in this case the Tribunal, to take into account the principles listed in s 4 of that Act. As Lindsay J pointed out at P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]- [58], the obligation to have regard to those principles is reinforced by cl 5(1) of Sch 6 to the Civil and Administrative Tribunal Act 2013 (NSW), which provides that when exercising its "Division functions for the purposes of the Guardianship Act 1987", the Tribunal is under a duty to observe the principles set out in s 4 of the Act (see also ZBC v ZBD [2016] NSWCATAP 264 at [101], [105]).
4. Section 14(2) of the Act provides that in considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: 1. The views (if any) of: 1. the person; 2. the person's spouse; 3. the person's carer; and 1. The importance of preserving the person's existing family relationships; 2. The importance of preserving the person's particular cultural and linguistic environments; and 3. the practicability of services being provided to the person without the need for the making of such an order.
5. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).
6. The Tribunal accepted BZF's evidence at the hearing that she has been HZF's sole carer ever since she was diagnosed with dementia a number of years ago. The Tribunal accepted that HZF resides with her daughter and her daughter's family. Over the years, BZF has made all the necessary decisions in relation to her mother's accommodation, health care, services and medical and dental treatment informally, without difficulty and in the absence of a formal guardianship order.
7. In the circumstances of this case, the nature of HZF's decision-making disability is such that she is effectively unable to make decisions of significance on her own behalf. However, those decisions have been made and continue to be made informally on her behalf by her daughter in the absence of a guardianship order. In considering the matters in s 14(2), the Tribunal formed the view that HZF has the support of close and loving family members, namely BZF and her family, to achieve the care, medical attention and services that she requires. There was no persuasive evidence before the Tribunal to suggest that there are difficulties or challenges associated with decisions regarding HZF's accommodation or any services required by her, including in relation to health care, without a guardian. There was no persuasive evidence before the Tribunal to suggest that HZF's interests may be in conflict with those of BZF's, who is committed to promoting her welfare and interests.
8. Having regard to the mandatory considerations set out in s 14(2) of the Act and after weighing the principles contained in s 4 of the Act, the Tribunal was not satisfied, on the evidence, that there was a need to appoint a guardian to make decisions with respect to HZF's accommodation, health care, services and medical and dental treatment.
9. It was plainly evident to the Tribunal that the correspondence from the Department is the primary reason for prompting the applications lodged by BZF.
10. In their letter of 16 February 2019 to HZF, the Department wrote: It is very important that you, as sponsor, continue to retain the capacity to understand the obligations and undertakings of your sponsorship. These obligations include giving the visa applicant (and family members where relevant) support, accommodation and financial assistance for the first two years of their stay in Australia. Based on the medical evidence provided to the Department to date, it appears that you may not have the capacity to understand the requirements of the sponsorship undertaking. The department requires additional information to be satisfied that either you have the capacity to understand your undertaking or that there is an appropriate legal authority in place, held by another person (such as a guardian or attorney, depending on your state of residence in Australia) who can make health and lifestyle decisions, and financial decisions, on your behalf… Please contact the relevant authority for Guardianship and Administration in your state to clarify whether in light of your medical condition, you are required apply to that office for appointment of persons with appropriate legal authority to make health and lifestyle, and financial decisions, on your behalf. (emphasis added)
11. The Guardianship Division of NCAT, when exercising jurisdiction in relation to the making of a guardianship order, does not have any mandate to consider the competing interests of others or the requirements of the Department, which in this case appear to be based on an erroneous understanding of 'legal authority' within the scheme of the Act. Section 4 of that Act directs the Tribunal to have regard to the principle that the welfare and interests of such persons should be given paramount consideration and that the subject person's freedom of decision making and action should be restricted as little as possible. These, as well as the other general principles, have as their primary focus the individual concerned.
12. For the following reasons, the Tribunal considers the Department's requirements to be based on a flawed understanding of the NSW guardianship scheme and incompatible with the Tribunal's mandate.
13. First, the Department's views or requirements appear to be based on the assumption that, irrespective of whether there are reasons why the Tribunal should make an order, the Tribunal can confer upon the appointed guardian the function to make 'health and lifestyle' decisions. The Act (or indeed Acts governing guardianship laws in all other states and territories) do not use 'health and lifestyle' to describe any one specific function of a guardian. The term 'function' describes the legal authority or power that a guardian has to make certain decisions about a particular area of a person's life.
14. The Act does not specifically define or outline the types of functions which the Tribunal may give to a guardian. However, in exercising its jurisdiction, the Tribunal may consider it appropriate for an appointed guardian to make certain decisions with respect to a person's accommodation, health care, consent to medical and dental treatment and services. The Tribunal may also craft functions according to the relevant area of need for the person under guardianship and it is not limited to the functions referred to. As noted by an Appeal Panel of the NSW Administrative Decision Tribunal in HH v HI and Protective Commissioner [2009] NSWADTAP 41, the areas in which such decisions, actions, and consents can be given have not been exhaustively defined (see also MN v AN (1989) 16 NSWLR 525). The broad range of decisions covered by the functions that may be conferred by the Tribunal are collectively and generically referred to as lifestyle decisions. As a matter of practice, the Tribunal does not confer upon a guardian a 'lifestyle' function without specifying what particular decisions may be made.
15. It is important to stress the obvious point that, when functions are conferred upon an appointed guardian, the guardian makes decisions in relation to those matters for the person. For example, a guardian with an accommodation function may make decisions about where the person will live and not necessarily where a friend or a family member of the person lives. In this case, there are currently no decisions to be made with respect to HZF's accommodation. Her sponsorship obligations require her to provide accommodation for the visa applicant, BYF. It is the Tribunal's view that an appointed guardian with an accommodation function or a 'health' function would not have the legal authority to decide where BYF should live or to provide her with accommodation.
16. Second, it may be that the Department is operating on a conflation of concepts of guardianship and financial management and a misconstruction of the relevant NSW legislative scheme. Unfortunately, the Tribunal had no other evidence from the Department to clarify this issue.
17. When sponsoring her daughter, HZF had lodged with the Department a Form 40, relating to 'sponsorship for migration to Australia'. The relevant part of the Form (Your sponsorship undertaking) requires the sponsor to agree, amongst other things: to provide information and advice to help the applicants settle in Australia; to ensure that adequate accommodation is available for the applicants in Australia or, if necessary, to provide accommodation for up to two years from arrival in Australia; to provide financial assistance as required to meet their living needs for up to two years; to provide financial assistance as required to meet their health, medical and pharmaceutical needs; and to provide support as required for them to attend English language courses.
18. Apart from provision of information and advice in relation to re-settlement, the sponsorship obligations appear to require some form of financial undertaking or assistance (living and payment for health needs) or entering into a contractual agreement with a third party, such as a lease agreement. It is difficult to see how conferring upon a guardian the legal authority to make 'health and lifestyle' decisions for HZF would also confer the authority for decisions relating to these undertakings, which essentially relate to HZF's estate.
19. As noted in NVQ [2016] NSWCATGD 38 at [40]-[41]: [While] the type of functions that may be conferred on a guardian are broad in scope, they do not extend to matters relating to the management of the subject person's estate. That view, in our opinion, is consistent with the scheme of the Act which distinguishes between guardianship orders (Part 3) and financial management orders (Part 3A). Under Part 3A of the Act, the Tribunal may order that the estate of a person be subject to management under the NSW Trustee and Guardian Act 2009 (NSW): s 25E. The "estate" of a person is defined to mean the property and affairs of the person: s 38 of the NSW Trustee and Guardian Act. While not expressly stated in the Act, it is implicit that the class of functions that may be conferred on a guardian under s 21 of the Act does not include matters relating to the "estate" of the subject person.
20. The Tribunal is not satisfied that making a guardianship order for the primary purpose of adhering to the Department's view of legal authority in this context is consistent with the provisions of the Act and the mandate of this Tribunal to act with HZF's welfare and interests as the paramount consideration. Subject to the Tribunal's comments in [36] below, there would be no need to appoint a guardian with the legal authority to make any particular 'health and lifestyle decisions' for HZF in order for her sponsorship application to be processed. The Department's position, if the Tribunal has understood it correctly, is laying an unnecessarily prolonged and complex course for HZF and her family, who have been waiting the outcome of the visa application since 2015.
21. Whilst an argument might be put that it would be in HZF's best interests for the Tribunal to make a guardianship order remotely compatible with the views of the Department for the sole purpose of facilitating the processing of her sponsorship application, the Tribunal considers this course neither appropriate nor compatible with the requirements of s 14(2) of the Act and the principles set out under s 4 of that Act. More importantly, as the nature of the sponsor's obligations under r.1.20(2)(a) of the Migration Regulations is financial in nature and relate to HZF's estate, the Department's requirements can be addressed through a financial management order, as discussed further below.
22. Notwithstanding the above, the Tribunal is mindful of the fact that HZF's disability prevents her from communicating with the Department in relation to her sponsorship application. The Tribunal accepted BZF's evidence that she has been communicating with the Department on her mother's behalf. However, the Tribunal envisaged that, for the purposes of processing her sponsorship application, HZF may be required to receive further information from the Department, to supply the Department with further information or make other decisions in connection with the processing of her daughter's Carer visa application or her related sponsorship application. The Tribunal was not confident that BZF would be able or permitted to continue to undertake these tasks on her mother's behalf on an informal and consistent basis without her authority being challenged. In this context, the Tribunal decided to make a guardianship order.
23. The Tribunal considered it appropriate to confer upon the guardian the function of making all necessary decisions regarding visa related matters that would ordinarily be made by HZF. Section 21B of the Act provides further practical support to enforcement of the guardian's decisions or actions, allowing a guardian to sign relevant legal documents. As discussed elsewhere in these reasons, where the nature of the document requiring signature is financial or is an agreement or an undertaking with financial implications, authority on behalf of HZF can be exercised by an appointed financial manager.

Who should be the guardian?

1. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she must: 1. have a personality generally compatible with the personality of the person under guardianship; 2. have no undue conflict of interest (particularly financial) with those of the person; and 3. be able and willing to exercise the functions of the order.
2. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, 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, [66]).
3. BZF told the Tribunal that she is willing and able to act as her mother's guardian. She has cared for and supported her mother for many years and was clearly aware of her mother's disabilities, as well as her needs. More importantly, she has an intimate knowledge of her mother's sponsorship application. There was nothing apparent on the face of the evidence to suggest that there was any undue conflict of interest between her and her mother.
4. On the basis of this evidence, the Tribunal was satisfied that BZF meets the legislative requirements to be appointed as a private guardian for HZF. The Tribunal, therefore, appointed BZF as guardian.

How long should the order last?

1. An initial guardianship order is usually made for a maximum of one year from the date on which it was made. The Tribunal decided to make an order for 12 months to ensure that BZF would be able to undertake important decisions on HZF's behalf with regard to the functions specified in the Tribunal's order.

FINANCIAL MANAGEMENT APPLICATION

1. The questions to be considered by the Tribunal are: 1. Is HZF incapable of managing her affairs? 2. Is there a need for another person to manage HZF's affairs and is it in her best interests for a financial management order to be made? 3. If so, who should be appointed financial manager?

Is HZF incapable of managing her affairs?

1. The test for determining a person's capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]): 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.
2. In considering whether the person is 'able' in this sense, consideration may be given to:

• past and present experience as a predictor of the future course of events;
• support systems available to the person; and
• the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498, [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, [309].

1. The medical evidence, set out above and accepted by the Tribunal, indicated that HZF has advanced dementia and significant cognitive impairment. She is disoriented, unaware of her situation and lacks the capacity to make decisions in relation to her finances. The Tribunal finds that HZF is incapable of managing her affairs in a reasonably competent fashion.

Is there a need for another person to manage HZF's affairs and is it in her best interests for a financial management order to be made?

1. The Tribunal heard that HZF is a recipient of an Age Pension. She has no other income, assets or debts.
2. As already noted, BZF's application for financial management was prompted by the correspondence from the Department. In its discussion in relation to BZF's application for guardianship, the Tribunal concluded that the nature of the sponsor's obligations under r.1.20(2)(a) of the Migration Regulations is financial in nature and relate to HZF's estate. The Tribunal also considers the legal authority or the power to sign any legal document, such as application for sponsorship, the effect which is to undertake certain financial obligations or entering into a contractual agreement, is best characterised as a function or power relating to HZF's estate.
3. BZF also told the Tribunal that her mother's Medicare card has expired, and she has been informed by the Department of Human Services that legal authority is required for the relevant forms to be signed on behalf of HZF. Medicare funds access to health care and arrangements between the Department of Human Services and a patient for the provision of access to Medicare benefits can be characterised as being financial in nature. These arrangements would, therefore, relate to HZF's estate.
4. Having considered the evidence before it, the Tribunal was satisfied that there was a need to appoint a financial manager and that it was in the best interests of HZF that a financial management order be made.

Who should be appointed as financial manager?

1. In appointing a financial manager, as in making all other orders under the Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Act.
2. Section 25M of the Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian.
3. The Tribunal accepted BZF's oral evidence to the Tribunal that she is willing to act as HZF's financial manager under the supervision of the NSW Trustee and Guardian. The Tribunal has also taken into consideration the fact that BZF has been managing HZF's estate informally.
4. The Tribunal is satisfied that BZF is a suitable person to be appointed as financial manager for HZF subject to the authorities and directions of the NSW Trustee and Guardian.

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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: 31 July 2019