JYG [2020] NSWCATGD 54

Parties, participants and statutory provisions

1. The front-sheet identifies the parties to the review and Appendix A identifies the participants in the hearing [Appendix removed for publication.]. Appendix B sets out the text of the principal statutory provisions which I have referred to in these Reasons [Appendix removed for publication].

1. Absence of JYG
2. The Tribunal seeks to hold its hearings in a way which promotes the participation of the person who is the subject of the application or review and we do our best to obtain the views of the subject person whenever possible. Where we are able to obtain the subject person's views we take them into consideration in exercising our functions under the Guardianship Act 1987 (NSW).
3. At the opening of the hearing it was apparent that JYG was not a participant.
4. Both JYG's sons confirmed that her diagnosed disabilities and in particular her observed cognitive difficulties, which were ongoing, would prevent her from understanding the nature of these proceedings or the issues before the Tribunal and any attempt to seek her participation may cause her some upset and distress. I accepted those uncontroverted accounts as reliable and persuasive. In my view, in these circumstances it would impose unnecessary and unreasonable burden on JYG to be required to participate.
5. On that basis I excused JYG from further participation.

2. Late documentation from Mr Z
3. Shortly prior to the scheduled commencement time of the hearing a large bundle of papers, comprising approximately 90 pages, was delivered to the hearing room by Registry staff. This documentation had apparently been lodged quite recently by Mr Z. At the opening of the hearing I drew the attention of the participants to these papers and indicated that I would not have time to consider them and could only do so if the hearing were to be adjourned and that my initial view was that any adjournment would not be in the best interests of JYG.
4. The documents appeared to comprise some of the documentation made available for the previous hearing on 4 September 2019. Mr Z confirmed that that was so and explained that he had supplied them only as an "aide memoire" for the Tribunal. It appeared that a copy of the documents had not been made available to the other parties.
5. I had previously been supplied with copies of all of the Tribunal's previous orders and Reasons for Decision and had considered them but had not considered the documents from the previous hearing in the Tribunal's file. I noted that either Mr Z or SZG could, if they wished draw my attention to a particular document in this "late bundle", provided the other had due access to it. But it seemed to me that, subject to that, it would be procedurally unfair to take documents which appeared only in the late bundle into account in reaching my decision.
6. I told the participants of my view. Neither Mr Z nor SZG had any objection to it. Neither of them referred me to any of the documents in the late bundle and there was no application for an adjournment.

Statutory issues

1. The issues for determination in any review of a guardianship order are: 1. Whether the subject person is someone for whom a further guardianship order could be made, because they continue to have a disability which prevents them from being able to make important life decisions and whether the subject person is "a person in need of a guardian" for the purposes of the definition of that term in s 3 of the Guardianship Act. 2. Whether a further guardianship order should be made. 3. If it should, the nature of the order which should be made. Specifically, who should be appointed as guardian, the decision-making functions which should be granted to the guardian and what the duration of the order should be.

The real issues for determination

1. Under the "guiding principle" in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal, the parties to any proceedings and their legal representatives must facilitate the just, quick and cheap resolution of the real issues in the proceedings. As a result, the Tribunal in each case needs to take early steps to identify the real issues in the proceedings.
2. I considered the statutory issues by reference to the documentary material with which I had been provided, other than the documents which were included only in the "late bundle" referred to above. The documentation which I considered comprised a copy of the Tribunal's previous orders and Reasons for Decision, an Appointed Guardian Statement from SZG dated 23 July 2020, a copy of written submissions by Mr Z dated 31 August 2020 with attached text messages and a brief hearing report prepared for my attention by the Tribunal's case officer.
3. On the basis of my consideration of that documentation and my discussion with the participants, it was clear and was uncontested that: 1. JYG's diagnosis as described at [1] above was unchanged she remains cognitively impaired to the extent that she could not make some important life decisions and could not manage her person; 2. for those reasons JYG continues to be "a person in need of a guardian" for the purposes of the Guardianship Act (see the s 3 of the Guardianship Act definition of that term, as set out in Appendix B [appendix removed for publication]); 3. JYG is someone for whom a further guardianship order should be made. In reaching a conclusion as to that: 1. I gave consideration to all the factors set out in sub-s 14(2) of the Guardianship Act and, although JYG's views could not be obtained, I considered the views of her carer SZG, I was satisfied that a continuation of the order would preserve JYG's existing family relationships and her cultural and linguistic environment and that an order continues to be necessary as the only practicable way in which the services which JYG needs could be made available to her. 2. I was also satisfied that consideration of the principles in s 4 of the Guardianship Act justified the continuation of the order and, as a paramount consideration, that JYG's welfare and interests could only be preserved and protected by continuing the order. (For convenience of reference, ss 4 and 14 of the Guardianship Act are set out in Appendix B to these Reasons [appendix removed for publication).
4. I made findings corresponding with the conclusions above.

The real issues in these proceedings

1. It followed that the real issues in the proceedings which remained to be determined by me were: 1. who should be appointed as guardian; 2. whether there should be any variation of the decision-making functions the appointed guardian (which are presently the functions of accommodation with the coercive accommodation authority, health care, medical and dental consent and services); and 3. the appropriate duration of the order and whether it should be reviewed on its expiry.

The cases put by JYG's sons

1. It was evident and agreed between SZG and Mr Z that the first issue, the identity of the guardian, was central to the current proceedings.
2. It was clear that they held firm and opposed views on this issue.
3. Mr Z contended that he was suitable to be a guardian and that it was in his mother's interests for him to be added as a joint guardian. I did not understand Mr Z expressly to contest the suitability of his brother SZG to continue as a guardian for his mother. However Mr Z asserts that his brother SZG has failed to communicate adequately or properly with him as to their mother's health, care and needs.
4. SZG's case was that his brother Mr Z was not suitable to be appointed as the guardian and that he, SZG, wished to continue as his mother's guardian.
5. The real issues in relation to the identity of the guardian were clear. 1. Firstly, is Mr Z able to be appointed as guardian? 2. Secondly, does SZG continue to be suitable as his mother's guardian (either jointly with his brother or alone)? 3. Thirdly, if both the previous questions are answered in the affirmative, is it in the best interests of JYG and otherwise consistent with the s 4 principles of the Guardianship Act for both her sons to be appointed jointly?

Guardianship Act, ss 15(3) and 17: "Willing and able" to be guardian

1. The Tribunal can appoint a private person or the Public Guardian as guardian.
2. As required by s 15(3) of the Guardianship Act, when considering the making of a continuing guardianship order, the Tribunal cannot appoint the Public Guardian in circumstances where an order "can be made" appointing a suitable private person as guardian.
3. Subsection 17(1) of the Guardianship Act expressly prohibits the appointment of someone as guardian unless the Tribunal is satisfied that he or she: 1. has a personality generally compatible with the personality of the person under guardianship, 2. has no undue conflict of interest, particularly but not restricted to a financial conflict of interest, in respect of the person under guardianship; and 3. is willing and able to exercise the functions of the order. (Emphasis added).
4. It follows from that and from the phrase "willing and able" in s 17(1)(c) of the Guardianship Act, that I should balance the willingness expressed by a particular person to be the guardian against their willingness and their ability to act in accordance with the principles set out in the Guardianship Act (in particular those set out in s 4) and the likelihood that they will do so. See FGE (2) [2012] NSWGT 3 (16 March 2012) at [67] and [71]. In that decision the Guardianship Tribunal noted that the focus should be on the decision-making process and not simply on the substance of a particular decision.
5. In P v D1 & Ors [2011] NSWSC 257 the Supreme Court noted the importance of a proposed guardian being able to demonstrate that in that role they would act objectively and in the interests of the subject person without any conflict with their personal interests.

2. Section 4 Principles
3. The guiding principles set out in s 4 of the Guardianship Act are most relevant. For convenience of reference the principles are set out in Appendix B to these Reasons [appendix removed for publication].
4. Section 4 of the Guardianship Act requires that paramount consideration be given to the welfare and interests of the subject person, but other principles are relevant here, in particular, the principle that JYG's family relationships be preserved and that she be protected from neglect, abuse and exploitation.
5. In ZGB v ZGC [2018] NSWCATAP 58 at [64] and [65], the Appeal Panel of NCAT gave consideration to the relevant principles and in particular to the need for the Tribunal to be satisfied that a person who is nominated for appointment as private guardian could perform the role of guardian in accordance with the proposed order and in a manner consistent with s 4 of the Guardianship Act. The Appeal Panel concluded that none of the persons seeking appointment in that case could currently perform the role of guardian consistent with the duties imposed by s 4 of the Guardianship Act: "… such as ensuring (that the subject person's) welfare and interests were given paramount consideration whilst recognising the importance of preserving the family relationships."
6. It has been accepted that there may these situations where, although a person is "willing and able" to be guardian, the proper application of the principles in s 4 of the Guardianship Act makes it inappropriate to appoint that person. See CS and MY v The Guardianship Tribunal and The Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep).
7. Such a situation may arise where the appointment of the person who is otherwise willing and able might prejudice the subject person's family relationships, might leave them more open to neglect or abuse or exploitation or might (as a paramount consideration) ultimately not be consistent with their welfare and interests.

Is Mr Z suitable for appointment?

1. I considered Mr Z's written submissions and his oral submissions. I understood his central contention to be that the "only solution" consistent with his mother's welfare and interests was for him to be appointed as her guardian, to serve jointly with his brother SZG. As a son, he deserves to receive frequent and full reports about his condition, services and care. Mr Z sees his (joint) appointment as guardian as the only way in which this will occur.
2. I also considered what SZG has to say about this and I considered and gave particular weight to the Tribunal's findings and its Reasons for Decision from the hearing of 4 September 2019.
3. Ultimately I was unable to find that Mr Z is suitable to be appointed as a guardian, for the following reasons: 1. At its hearing on 4 September 2019 the Tribunal as then constituted, having considered all the documentary material and the views presented at that hearing found conclusively that Mr Z was unsuitable to be appointed as his mother's guardian. In particular this was because he did not satisfy s 17(1)(b) of the Guardianship Act as he had a financial conflict of interest. In particular, he had conceded at the hearing that an email produced to the hearing and known as "document 4 (e)" was an accurate description of events. It revealed that he had forged his mother's signature on various documents without her knowledge or consent. In document 4(e), Mr Z had admitted to obtaining the certificate of title for his mother's house at Eastern Sydney without her knowledge and consent, to forging her signature as well as forging the signature of the witnessing solicitor on legal documentation necessary to obtain further funds, that the lenders of those funds subsequently obtained a judgment and proceeded to exercise their power of sale over both JYG's house in Eastern Sydney and Mr Z's house in another Eastern Sydney suburb to recover the full debt of over $3 million. The Tribunal on 4 September 2019 found that: "On his own admission Mr Z has acted fraudulently by forging his mother's signature on various …documents." (Reasons for Decision at [43]). 1. That Tribunal Panel found that those facts constituted a financial conflict of interest. That decision was reached less than 12 months ago. There was nothing produced to me by any party, including Mr Z himself, to indicate that the Tribunal's findings at that time had been found to be incorrect, that contrary evidence was now available or that Mr Z had undertaken actions effectively to "clear his name". When I referred Mr Z to the Tribunal's findings and recounted them to him and asked for his reaction, he responded simply to the effect that the findings had "never been tested in a court of law". I find that there continues to be an undue conflict between Mr Z's interests, particularly his financial interests and those of his mother JYG, being the person under guardianship. 2. Even if I am mistaken in making that finding, I find that Mr Z is unsuitable because he is not "able" to exercise the functions of a guardian under the order under review, within the meaning of s 17(1)(c) of the Guardianship Act, as analysed in FGE (2) noted at [32] above. In light of his history of his dealing with his mother's estate and the matters referred to in "document 4(e)", I cannot be satisfied that he is "able" to perform the role of a guardian in accordance with the s 4 principles of the Guardianship Act and in particular, as my paramount consideration, that he cannot be relied upon to act in his mother's welfare and interests 3. Even if Mr Z could have established that in some way he is "willing and able" to be appointed as guardian, at least jointly with his brother, on the basis of the decision of the Supreme Court of NSW in CS and MY, as cited at [37] above, I am not satisfied that his appointment as guardian would be consistent with the need to protect JYG from financial abuse or exploitation.
4. It followed that Mr Z would not be appointed as a guardian.

Does SZG continue to be suitable for appointment?

1. I was satisfied on the basis of the documentation produced for the hearing, in particular SZG's Private Guardian's Statement and his answers to my questions and oral submissions, as well as the interposed testimony of Ms Y the Admissions and Respite Care Manager of the aged care facility, that he continues to be suitable for appointment as his mother's guardian. He continues to be willing and able to be appointed within the meaning of sub-s 17(1) of the Guardianship Act.

SZG's undertaking as to communications

1. Notwithstanding that finding, in light of Mr Z's assertions as to a lack of communication from his brother about his mother's health, services and care, following further discussion SZG undertook formally to the Tribunal and to SZG that upon being informed by his brother Mr Z of his contact details: 1. he would keep his brother informed on a regular basis, preferably by email, of their mother's progress and significant developments (positive or negative) concerning her health and welfare; and 2. would authorise the aged care facility to provide his brother with any requested updates as to their mother's health and welfare, her current condition and progress.

Conclusion and reappointment of SZG

1. No other private person had indicated the willingness to be considered for appointment as JYG's guardian.
2. It followed that SZG should be reappointed, as sole guardian.

GUARDIAN'S FUNCTIONS

1. It was clear from the evidence of Ms Y from the aged care facility that JYG was now a permanent resident of that facility, that she was well settled and appropriately accommodated there and received appropriate ongoing healthcare, services and general care at the aged care facility. I did not understand either Mr Z or SZG to dispute that.
2. That being the case, I indicated preliminary view that there appeared to be no current need for a guardian to be appointed for JYG with the accommodation function and also that there was no further need for the coercive accommodation authority. There was no contrary view. I found accordingly.
3. I was satisfied on the basis of the evidence of SZG, Mr Z and Ms Y that there remains an ongoing need for the other current functions namely healthcare, medical and dental consent and services, but that there is no current need for JYG's guardian to have any further functions.

Conclusion as to guardian's functions

1. It followed that as guardian for JYG, SZG should have the functions of health care, medical and dental consent and services.

DURATION AND REVIEWABILITY OF THE ORDER

1. Where the Tribunal decides to renew the guardianship order it can make a further order in the ordinary case for a maximum of 3 years. However, where it is satisfied that the subject person has permanent disabilities and it is unlikely that he or she will become capable of managing their person, the maximum duration is 5 years.
2. I decided to make an order for three years on the basis that although some early decisions would be needed from the guardian, particularly in respect of JYG's health care and perhaps substituted consent to her treatment there would be an ongoing need for a guardian to be available to make decisions for her in the exercise of each of the functions which had been granted in the order.
3. I could see no justification for making a non-reviewable order.
4. I ordered accordingly.

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: 28 May 2021