KBZ is 84. He is reported to have been married three times and has eight children. He is estranged from his three wives, two brothers and six of his children. His son, KAM, and daughter, SZM, are the only family members who maintain contact.
On 29 July 2020, SZM lodged an urgent guardianship application seeking to have a guardian appointed for KBZ. In the application it was stated that KBZ had been assessed with mild cognitive impairment in October 2019. Since then he had continued to decline and lacked capacity to make good decisions around his welfare and safety. He had been at fault in a motor vehicle accident when he was unlicensed. He was subsequently admitted to a public hospital. He would not listen to police, the medical team or his children.
The matter proceeded to an urgent After Hours hearing on the evening of 29 July 2020. The Tribunal was advised by the hospital team that KBZ had absconded from hospital earlier but had been coaxed back and was currently on the ward. They supported the need for the urgent appointment of a guardian for KBZ to ensure he could be kept in hospital for assessment and treatment.
[2]
The hearing
At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]
The medical team who participated in the hearing (Dr Z, geriatrician and Ms Y, social worker) advised against KBZ participating in the hearing as he was currently settled but had been very agitated and quite paranoid and had required security. They were concerned that his behaviour would escalate rapidly if he participated and this would place KBZ, staff and other patients at risk.
SZM advised she had the support of her brother, KAM in bringing the application but he had not wanted to participate in the hearing.
[3]
What did the Tribunal have to decide?
The questions which had to be decided by the Tribunal were:
Is KBZ someone for whom the Tribunal could make an order because he has a disability which prevents him 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?
[4]
Is KBZ someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?
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 he or she is "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 his or her person": the Act, s 3(1). 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;
and by virtue of that fact 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).
Dr Z gave oral evidence regarding KBZ's current condition and SZM lodged a detailed submission with her application. Dr Z had seen KBZ for an hour the previous day when he was admitted and saw him again when he returned to the ward. He was too agitated to formally assess but her impression from her interviews and the history provided by KAM and SZM was that KBZ had a progressive mixed dementia with mainly frontal impairment affecting his executive function. He had a history of significant decline over the past six months which appeared to be exacerbated by losing his home in the bushfires earlier in the year. He was currently homeless and talked about moving to Europe. His admission to hospital was precipitated by the motor vehicle accident. He displayed poor decision making and no insight into the fact he should not have been driving when he was unlicensed and his vehicle was unregistered. There was no acute damage shown on MRI. He was refusing to eat as he believed the food may be poisoned. He required security and was being specialled due to his agitation.
SZM agreed with the medical evidence and her statement referred to her observations of her father's cognitive decline over the previous 12 months with a rapid deterioration around new year. Her brother, KAM, had provided care and support in his home to his father for a number of weeks recently after he had lost his previous accommodation and he had noted his father's unusual behaviours including auditory and visual hallucinations and confusion.
The Tribunal was satisfied on the oral evidence of Dr Z and SZM that KBZ has a cognitive disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.
[5]
Should the Tribunal make a guardianship order and what order should be made?
The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order:
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.
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).
KBZ was effectively homeless. SZM's statement outlined various accommodation arrangements which had been made for KBZ since October 2019. When SZM visited her father in his rented accommodation at a granny flat on a property in regional NSW she found it to be in poor condition with rotting food and it was apparent that her father was not coping. His GP had suspended his licence due to concerns about KBZ's ability to drive. KBZ was given notice to quit the property due to the strained relationship with the owner. He was supported by a charitable ogranisation to find accommodation in another suburb in regional NSW and KBZ agreed for SZM to become his My Aged Care representative so she could coordinate some support services. He lost his home in the bushfires and did not want to stay in that area in regional NSW and moved to KAM's home. He then had an offer from a church member to become his flatmate but this also broke down after a couple of months. KBZ's most recently moved to a motel room on a long-term basis until 27 July 2020 when he was involved in the motor vehicle accident and admitted to hospital. SZM outlined the efforts she and her brother KAM had undertaken in an effort to support their father obtain alternate accommodation, support services and medical assessment. They had been unable to reason with him and he had continued to drive despite having lost his licence on medical grounds. He was refusing medical assessment, treatment other than for his physical conditions of diabetes and his heart condition and was refusing support services. SZM supported a need for a substitute decision-maker for all important lifestyle decisions. He would need stable accommodation and support services, formal assessment by a geriatrician and possibly ongoing medical treatment and medications. He was a Jehovah Witness which would need to be taken into account by a decision maker especially in relation to any medical treatment. Her discussions with the police indicated that, although KBZ was at fault for the accident and was driving whilst disqualified and unlicensed, they were unlikely to lay charges against him due to his medical condition. An ACAT assessment had been undertaken in the past but KBZ had previously refused respite and support services.
Dr Z supported the need for a formal decision-maker regarding KBZ's accommodation, including the ability to use coercive powers so he could be kept in hospital for assessment and treatment. He would also need a decision maker regarding discharge and more permanent accommodation in due course. KBZ might need to be discharged to a secure facility in the short term. His agitation and behaviours would need to be managed by 1:1 special nursing and security and he might require medication such as Haloperidol and Midazolam. SZM and KAM had been accepted as KBZ's "person responsible" but given KBZ's changeable views, Dr Z supported a need for a formal decision-maker regarding his medical treatment with ability to override his objection to treatment as a last resort.
The representative of the Public Guardian, after listening to the evidence, supported the need for a guardianship order with all the decision-making functions outlined by SZM and Dr Z including the ability to 'authorise others' in relation to accommodation decisions and s 46A (of the Act) in relation to overriding KBZ's objection to treatment. As there was likely to be a need for many assessments and decisions to be made in all areas, she supported a 12 month order.
The Tribunal decided on the basis of the evidence that a guardianship order should be made. The guardian was appointed to make decisions about KBZ's accommodation and support services he can access. The guardian was provided with the ability to authorise others to implement any accommodation decisions which includes being able to authorise KBZ to remain in hospital in accordance with medical advice even if he objects, and to call on others to return him to hospital if he was to leave against medical advice or refuse to move to alternate accommodation on discharge. The guardian was appointed to organise health care assessments and provide medical and dental consents on KBZ's behalf with the authority to override his objection to treatment as a last resort.
[6]
Who should be the guardian?
There is a proposal that SZM be appointed guardian for KBZ. 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.
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]).
In P v D1 & Ors [2011] NSWSC 257 the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.
The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed: the Act, s 15(3).
The Tribunal was satisfied that SZM demonstrated she had her father's best interests as her focus. She and her brother had been their father's main supports but had not had formal authority to act on his behalf given his resistance and strong views. SZM was aware of her father's views and would act in accordance with his Jehovah Witness' beliefs. She was willing and able to undertake the role and met all the criteria under s 17(1) of the Act.
On the basis of the evidence, the Tribunal was satisfied that SZM meets the requirements to be appointed as the private guardian for KBZ. She was advised about the private guardian support unit attached to the Public Guardian's office which offers advice and support for persons acting as private guardians or 'person responsible'.
[7]
How long should the order last?
An initial guardianship order can be made for a period of up to one year from the date on which it was made. The Tribunal decided to make an order for 12 months.
[8]
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: 03 September 2021