KCO [2021] NSWCATGD 29

NCAT Guardianship|2021-07-26|Before: Windeyer J

Background

KCO is an 88-year-old woman who lives in her own home at regional NSW. Her son, BYP, moved in to live with KCO in April 2020. KCO has two other children: TAN who lives in regional NSW and OZO who also lives in regional NSW.
On 10 November 2020 KCO appointed BYP as her attorney and OZO and TAN as substitute attorneys pursuant to an enduring power of attorney. On the same date, KCO appointed BYP as her enduring guardian and TAN and OZO as substitute enduring guardians. TAN and OZO were not aware of the instruments until shortly before the hearing and have not accepted their appointments.
On 23 June 2021 the Tribunal received a guardianship application in respect of KCO from TAN and OZO.
On 19 July 2021 the Tribunal received a financial management application from TAN and OZO in respect of their mother.
On 22 July 2021 the Tribunal received a request from the NSW Ageing and Disability Commissioner to be joined as a party to the proceedings.

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.]
As the hearing was held during the COVID-19 Pandemic it was conducted by telephone and videoconference.

Joinder of the NSW Ageing and Disability Commission

At the commencement of the hearing we considered the request of the NSW Ageing and Disability Commission (ADC) to be joined as a party to the proceedings. Ms Z is the investigating officer of the ADC with respect to KCO.
The ADC receives and responds to reports of abuse, neglect and exploitation of adults with disability and older adults. In November 2020, the ADC received a report of concern relating to the alleged neglect of KCO by her son, BYP. The ADC commenced inquiries into the reported concerns and at the time of hearing, the investigation about KCO remained open. KCO is the subject of a report to the ADC that raises concerns about her welfare, including her health, mobility, isolation and well-being.
We were told that the ADC holds information about KCO's circumstances that is considered relevant for the consideration by the Tribunal.
There was no objection to the NSW Ageing and Disability Commission being joined as party to the proceedings. We were satisfied that the ADC has a genuine interest in the welfare of KCO and accordingly joined the ADC as a party to the proceedings.

What did the Tribunal have to decide?

The questions to be considered by the Tribunal are:

Is KCO 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?
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?

Is KCO 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?

Section 14 of the Guardianship Act 1987 (NSW) 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": Guardianship Act, 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: Guardianship Act, s 3(2).
The term "social habilitation" is not defined in the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Act, at [303]: "The expression 'social habilitation' (in the context of references to 'disability', 'restricted', 'major life activities' and the word 'requires') may be taken to refer to a need for services to help a person to be, or become, able to function normally in the community with others."
We received a health professional report from Dr Y, GP, dated 20 July 2021. Dr Y reported that KCO has progressive moderate dementia. On a Mini-Mental Examination conducted on 23 February 2021, KCO received a score of 18/30 indicating significant cognitive impairment. Dr Y reported that KCO has suffered from a moderate mental illness, depression, for several years complicated by bereavement following the death of her husband in April 2020. KCO has declined psychological intervention or antidepressant treatment. Dr Y said that KCO also has severe osteoarthritis and impaired gait. KCO is a very high falls risk and is unable to stand or walk unaided. She is incontinent of urine and her home is reported to be in an unhygienic state. KCO is of advanced age. Dr Y reported that as a result of cognitive impairment, KCO is unable to make important life decisions.
We received reports from Dr X, Geriatrician, from March 2020 and March 2021 that indicated that he had not had the opportunity to conduct a comprehensive geriatric assessment upon KCO as she declined to attend appointments with him. Dr X noted that from the material he received KCO is potentially increasingly frail and cognition is an issue.
BYP told us that his mother is able to make her own decisions and only requires assistance for showering and toileting.
We preferred the professional report from Dr Y which was consistent with KCO's participation in the hearing.
We were satisfied that KCO has cognitive impairment associated with moderate dementia and depression. She is frail and of advanced age. We were satisfied that KCO requires supervision and habilitation for her own safety. We were satisfied that KCO has a disability, cognitive impairment, that prevents her making important life decisions. She is a person for whom the Tribunal could make a guardianship order.

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

The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further 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 Guardianship Act. When undertaking this task, the Tribunal must be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).
The Tribunal is always reluctant to interfere with decision-making arrangements made by a person at a time that they are presumed to have the capacity to decide who should be their guardian or attorney. We did not receive requests to review the appointment of enduring guardian or the enduring power of attorney and therefore cannot comment on KCO's capacity to execute those instruments. A guardianship order made by the Tribunal suspends an enduring guardianship appointment during the term of the order.
KCO was vigorously opposed to a guardianship order. She said that she does not want anyone interfering in her affairs. KCO told us that she was very happy with BYP living with and caring for her. KCO was angered by the application.
BYP was also opposed to the application. He told us that KCO is able to make her own decisions. If she is unable to make her own decisions, then the enduring guardianship appointment would be activated.
BYP told us that KCO sees her cardiologist as required. We did receive a report from KCO's cardiologist, Dr W, dated 13 May 2021 that noted the deterioration in KCO's health over the last few years with poor mobility on a background of frailty syndrome and cognitive decline. We noted that KCO attended the consultation with her son, presumably BYP.
BYP said that although it would not hurt KCO to see a geriatrician, it be a pointless exercise as it would not achieve anything. He denied refusing services to support KCO in the home instead blaming distance for the lack of services. He said that service providers and Meals on Wheels were unwilling to travel to the home as it is in a remote location.
BYP denied that the house was cluttered and unhygienic. He told us that he assists KCO with toileting and showering. He said that after breakfast he leaves the home to work on the property, which is an avocado orchard, and stays out all day other than returning for lunch. BYP said that there was no risk of his mother falling during his absence as she will not get out of her chair. BYP did not acknowledge that his mother's incontinence aids would have to be changed more regularly.
BYP said that there was no need for a change in accommodation as he could provide KCO with all the care that she needs. He told us that he cooks for his mother as Meals on Wheels will not come to regional NSW. He acknowledged that services might be available at Laurieton where his mother owns a property, however said that KCO would refuse to move. He told us that his siblings did nothing for their mother. It was evident that there was significant acrimony between BYP and his siblings.
TAN and OZO provided us with photographic evidence of the clutter and rubbish around the home. We accepted the independent evidence of Dr Y and the ADC that the house was messy and unhygienic, with dirty dishes and rubbish everywhere. They told us that they are concerned about KCO's health due to the unsanitary conditions in which she lives. They stated that BYP will not allow cleaners or carers into the house.
We were able to observe the condition of the home as KCO and BYP participated by videoconference. The condition of the home was consistent with the reports of TAN, OZO, Ms Z and Dr Y. It was also evident from her appearance that KCO is a very frail person.
TAN and OZO in their application described an incident where BYP dropped two slices of a buttered fruit bun on the filthy floor. He is reported to have picked the slices up off the floor and eaten his own. OZO told his mother not to eat the bun from the floor and BYP replied "I am eating it, you eat it", so she did. We were provided with examples of overbearing and bullying behaviour by BYP, particularly towards TAN. BYP's participation in the hearing was consistent with the reports we received.
We were told that KCO refuses to keep doctor's appointments. This is consistent with the reports from Dr X referred to above. OZO and TAN arranged for Dr Y to visit their mother at the home. We were told that KCO has atrial fibrillation which requires monitoring. Webster packs have been arranged by TAN however we were told that BYP does not use them correctly. The conditions in which KCO are living in are not suitable for her well-being and mental health. TAN said that she would like KCO to remain in her home, as this is her wish, but in a safe and healthy environment with dignity. When visited by family, KCO's bed is unmade and wet with urine. There are times that she is only wearing a t-shirt under a dressing gown, with bare feet, sitting in a dark room alone.
We were told that TAN is afraid to visit her mother in the presence of BYP due to his unpredictable and threatening behaviour. TAN told us that KCO owns a home in regional NSW where she could live. Renovations are required so that the property meets KCO's needs. We were told that KCO has refused to have an occupational therapy assessment conducted due to the costs involved, despite this being necessary to determine what renovations are required. TAN said that another problem is that KCO is unlikely to agree to move to regional NSW unless BYP moves with her. Due to the family conflict, this is not a viable option. TAN said that the reality is that KCO requires 24-hour care in an aged care facility, however, she would adamantly refuse to enter a facility.
Ms Z told us that the ADC became involved following a report received on 19 November 2020. The ADC was advised that BYP was failing to provide KCO with her basic needs and that she was living in very poor hygienic conditions. The ADC made inquiries which indicated that BYP was preventing KCO from accessing services and reviews by a geriatrician.
The ADC was concerned that KCO is socially isolated and left alone in a chair while BYP goes to work on the property. This is a serious risk due to KCO's very high falls risk and lack of a working vital call. At a home visit conducted in February 2021 the ADC found the house unhygienic. KCO was observed to be unkempt and unable to mobilise. The poor state of the house was observed with evidence of KCO's incontinence, clutter and very poor hygiene.
The ADC told us that following mediation, BYP arranged for a private carer to attend for a period of two months, however ceased this when it became evident that she required two carers. Because of KCO's extensive assets, KCO is required to pay for home care as a private client. We were told that BYP was reluctant to arrange for his mother to pay for services. On another occasion, a service provider arranged a time to visit KCO however this was declined as the time of the appointment did not suit BYP.
Since becoming involved, the ADC arranged for an urgent review of KCO's ACAT package which at the time was approval for a Level 1 homecare package. As a result of the review, KCO is now approved for a Level 3 homecare package, however, BYP refused to pay for the extra home care services that KCO requires above her Level 3 plan. The ADC also contacted community nurses in regional NSW to arrange for a home visit, however, KCO and BYP originally declined until the ADC convinced them to accept the referral.
The ADC considered that there is a need for a guardian to make decisions about accommodation (with the authority to call upon others to implement accommodation decisions), medical and dental treatment, health care and services as the enduring guardian appears to be depriving his mother of appropriate care.
We were satisfied that KCO cannot practicably receive services without an order at this time.
We were satisfied that a guardianship order would not impair family relationships. There were no cultural or linguistic considerations relevant to KCO's circumstances.
We decided to make a guardianship order with the functions of accommodation (including the authority to call upon others to implement accommodation decisions), medical and dental treatment, health care, and services.

Who should be appointed as the guardian?

TAN and OZO proposed that they be appointed guardian for KCO. 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 Guardianship 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 Guardianship 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: Guardianship Act, s 15(3).
The Supreme Court has held that: "the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25])."
We accepted that TAN and OZO care deeply for their mother and would make decisions in her best interests. We were, however, satisfied that the acrimony between them and BYP, the enduring guardian and carer, would prevent them from making decisions objectively taking into account his views.
Due to the findings we made about BYP, we could not find him suitable to be appointed as KCO's guardian. He lacks insight into the care needs of KCO and we found that he has deprived his mother of care and treatment. As will be outlined below, BYP has a financial conflict of interest that would prevent him making decisions objectively and in her best interests.
We therefore appointed the Public Guardian.

How long should the order last?

Initial guardianship orders may be made for a period of up to 12 months.
We were satisfied that it was in KCO's best interest to make the order for a period of 12 months.

What did the Tribunal have to decide?

The questions to be considered by the Tribunal are:

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

Is KCO incapable of managing her affairs?

In Re D [2012] NSWSC 1006, White J assessed the history of case law in relation to financial management and noted that initially the issue of capability was approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Court now assesses the person's own capacity to do what they are proposing to do [58]. White J used a "rational appreciation" of assets test to determine a person's capability to manage his or her affairs. He adopts the reasoning of Barrett J in P v R [2003] NSWSC 819 who said that the task of the Court in these circumstances: "… is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person's property…the requisite judgment is to be made in the light of objective physical facts concerning the relevant person's property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter [26]."
In PB v BB [2013] NSWSC 1223, Justice Lindsay confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at [7]: "Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack 'mental capacity' or be 'mentally ill'; or (b) particular reasons for an incapacity for self-management."
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."
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, at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, at [309].

The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86).
The health professional report of Dr Y referred to above reports that as a result of cognitive impairment associated with moderate dementia and mental illness, KCO is incapable of managing her affairs. We were told that KCO does not know what money she has in her accounts and when asked by TAN and OZO, tells them to ask BYP.
We were told that KCO's cheque book has no more cheques in it so that TAN is unable to be repaid for the medical supplies she purchases on her mother's behalf. The bank will not re-order a cheque book without KCO attending a bank which is not possible due to distance and mobility difficulties.
We were told that KCO is totally dependent upon BYP to manage her affairs. Not only does she have cognitive impairment that prevents her from managing her affairs, she is physically incapable of doing so.
The enduring power of attorney dated 10 November 2020 operated as soon as the attorney, BYP accepted his appointment. BYP have told us that he only activated the enduring power of attorney the previous week when he registered the enduring power of attorney.
We were satisfied that KCO is incapable of managing her affairs.

Is there a need for a financial management order and is it in KCO's best interests that a financial manager be appointed?

As noted above, ordinarily the Tribunal would be reluctant to intervene in a situation where a person presumed to have capacity has appointed an attorney. We were not invited to review the appointment of enduring power of attorney and cannot comment on KCO's capacity to execute the instrument. If we make a financial management order the enduring power of attorney is suspended.
To make a financial management order in circumstances where a person has an enduring power of attorney in place, the Tribunal would have to be satisfied that the instrument is not operating in KCO's best interests. Otherwise there would be no need for a financial management order.
KCO's financial affairs are extremely complex. It appears that KCO and her late husband owned significant property as joint tenants. Two properties at least have 250 acres of avocado orchards. Other properties have 100 acres of avocado orchards. There are two more properties in regional NSW. We were told that KCO's properties are estimated to be between $10 million to $12 million. There is a family trust that also owns properties. Everyone in the trust, including KCO and her three children, are beneficiaries of the trust. KCO is the sole director and secretary of the company. We were told that all monies earned by the family company farm are being handled by BYP without reporting to the rest of the family. We were also told that the account KCO uses is in the name of the family company and this has been frozen due to probate identification requirements because of the passing of her husband.
We were told that KCO and BYP refuse to pay for home care services or cleaners. When TAN arranged a home care package for KCO, BYP refused to provide his mother's bank account details so the package could not proceed. When TAN and OZO tried to arrange another home care package and occupational therapy assessment to determine modifications that would be required if KCO moved to a property in regional NSW, BYP also refused to pay for their services.
We were told that KCO's council rates are significantly in arrears (five overdue payments), however, BYP told us that he pays the accounts annually to accord with the end of financial year. We were also told that the electricity and vital call accounts are in arrears. TAN said that she has found mail eaten by snails as it has been in the letter box so long.
We were told that BYP has recently purchased two more properties in his own name, and it is unclear how this has occurred. TAN and OZO are concerned that he may be mortgaging his mother's properties or property held by the family trust in order to fund his own purchases. We considered that there is a serious risk that KCO is being financially exploited by BYP. She is clearly a vulnerable person and her income and assets are not being used in her best interests.
We were satisfied that there is a need for a financial manager to be appointed to ascertain the exact nature and extent of KCO's estate, to protect her from exploitation, to pay for services or if necessary to complete a Centrelink income and assets assessment to enable entry to aged care. KCO lacks the capacity to enter into a contract with a residential aged care facility and it is clear that her attorney would be unwilling to do so, particularly given his reluctance to arrange for his mother to pay for services to support her in her own home.
We were satisfied that there is a need for a financial manager to be appointed and that it is in KCO's best interests for a financial management order to be made. We accepted that the enduring power of attorney is not operating in her best interests.

Who should be appointed as financial manager?

In appointing a financial manager, as in making all other orders under the Guardianship 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 Guardianship Act.
Section 25M of the Guardianship 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.
In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court's broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.
On the side of the Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage.
The advantages of the appointment of a family member were more economic management of smaller estates (that is, lesser fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers.
The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be "more apparent than real," should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family.
In Application by AMAM; Re SAM [2011] NSWSC 503, Hallen ASJ stated: "[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."
The matters or "guidelines" which a Tribunal should consider when determining who to appoint as a financial manager are discussed by Lindsay J in M v M [2013] NSWSC 1495 at [50].
OZO and TAN proposed that they be appointed as financial managers for their mother. We acknowledged their suitability, knowledge of their mother's estate and willingness to comply with the supervision of the NSW Trustee and Guardian.
We also accepted that TAN and OZO are unable to communicate with the carer, BYP. We considered KCO's staunch opposition to any orders. We also considered that to appoint TAN and OZO would place further stress upon the already fragile family relationships.
For these reasons we appointed the NSW Trustee and Guardian.

Should the order be reviewable?

We decided to make the order reviewable within 12 months. This will enable an independent financial manager to obtain an understanding of KCO's financial affairs at a time that important lifestyle decisions are being made by an independent guardian. When the order is reviewed, it may be appropriate to consider whether a private financial manager could be appointed.

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: 05 August 2022

Trustee and Guardian Act 2009(NSW)

Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 25M Cases Cited: Application by AMAM; Re SAM [2011] NSWSC 503 C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep CJ v AKJ [2015] NSWSC 498 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 IF v IG [2004] NSWADTAP 3 M v M [2013] NSWSC 1495 McD v McD (1983) 3 NSWLR 81 P v D1 & Ors [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re B [2011] NSWSC 1075 Re D [2012] NSWSC 1006 Texts Cited: None cited. Category: Principal judgment Parties: 001: Guardianship Application

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Legislation Cited (4)

Cases Cited (12)