KDG [2018] NSWCATGD 13

NCAT Guardianship|2018-06-27

What the Tribunal decided

The Tribunal dismissed the application appointment of a guardian for KDG made by KBI because the applicant withdrew the application and the Tribunal consents.

Background

KDG is a 25-year-old man who lives in a house in southwest Sydney rented from Family and Community Services (FACS) Housing. KDG lives with his twin brother, LNG.
KDG's parents are his mother, KBI, and his father, TUI. KDG has two brothers, LNG, and SMK, and a sister, MSI.
On 29 March 2018, the Tribunal received an application for the appointment of a guardian for KDG. The applicant is his mother, KBI. The applicant asked the Tribunal to appoint herself and BMM, the wife of SMK, jointly as KDG's guardian.

Does KBI have standing to bring the application?

The Tribunal found that KBI has standing to make the application for a guardianship order because she is a person who, in the opinion of the Tribunal, has a genuine concern for the welfare of KDG.

Settlement

The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. There was no conflict in this matter.

What did the Tribunal have to decide?

The questions which had to be decided by the Tribunal were:

Is KDG 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?

Is KDG 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/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" (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; 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 (s 3(2) of the Act).
In a letter dated 15 May 2018, Dr Z from a medical centre says: This is to confirm that Mr [KDG] has significant physical and intellectual disability and is unable to make any decision in regard to his wellbeing. He requires a guardian in regard to any decision making process and his day to day living requirements.
In a report prepared by Mr Y, School Counsellor, dated 10/11/2000, Mr Y says: [KDG] has visual impairment, severe cerebral palsy and well controlled epilepsy. Dr [X[, from the Department of Perinatal Medicine at [a public hospital] (1996) also reports severe developmental delay and growth failure including microcephaly. The report concludes: [KDG] is a lovely boy who has multi-disabilities. This assessment places his current functioning in the range of a severe intellectual disability.
KDG was present during the hearing. He acknowledged and interacted with his family members and paid carer who were present. He did not interact with the Tribunal.
The Tribunal was satisfied by the evidence of Dr Z and Mr Y that KDG has a disability identified as an intellectual disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

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

When determining an application for appointment of a guardian the Tribunal must consider all of the matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order.
KDG was not able, because of the nature of his disability, to express a view as to whether the Tribunal should make a guardianship order. He does not have a spouse.
The role of "person responsible" is recognised in the Act. The hierarchy of person responsible is set out in s 33A(4) of the Act. Relevantly, the list in descending order ends with s 33A(4)(d) of the Act which identifies "a close friend or relative of the person" as person responsible for another person. The meaning of "close friend or relative" is contained in s 3E(1) of the Act which provides A person is a close friend or relative of another person for the purposes of this Act if the person maintains both a close personal relationship with another person through frequent personal contact and a personal interest in the other person's welfare. However, a person is not to be regarded as a close friend or relative if the person is receiving remuneration (whether from the other person or from some other source) for, or has a financial interest in, any services that he or she performs for the other person in relation to the person's care.
The Tribunal is satisfied that KBI is a person who without remuneration for or a financial interest in the services she provides for KDG, maintains a close and personal relationship with him through frequent personal contact. She has a personal interest in KDG's welfare. The Tribunal finds that she is person responsible for KDG. It is likely that other family members also come within the definition of person responsible for KDG.
The Tribunal is confident KBI will make decisions regarding the carrying out of medical and/or dental treatment for KDG in response to a request made to her in accordance with s 40 of the Act. There was no evidence before the Tribunal of any conflict within the family that might cause any difficulty or delay in a health professional obtaining consent from a person responsible for KDG. The Tribunal finds there is no need to appoint a guardian with a medical and/or dental consent function for KDG.
If KDG objected to any proposed treatment, an application can be made to the Tribunal for it to consider granting consent to the proposed treatment.
KBI gave evidence of the extensive National Disability Insurance Scheme (NDIS) package approved for KDG. He accesses the services approved through a self-managed fund which she co-ordinates. KDG has the close loving support of his family. He has paid carers who assist him. His mother primarily arranges his access to services. The Tribunal finds that services have been and more likely than not will continue to be provided for KDG without the need for a guardianship order.
KBI told the Tribunal that she made the application because an Officer from FACS Housing told her that she had to be appointed guardian for KDG so that she could sign a residential tenancy agreement to allow KDG and his brother, LNG, to continue to live in the property at southwest Sydney. Until a residential tenancy agreement is signed, the Department is charging market rent for the property.
The applicant gave evidence that there is no decision to be made in the immediate future about where KDG lives. However, his entitlement to live there has to be secured.
The Tribunal recognises the importance of KDG and his twin brother, LNG, who also has a disability, continuing to live in the same residence and the need to factor into its consideration the close familial bond which KDG enjoys with his parents, his siblings, and his sister-in-law.
Until recently KDG's brother, SMK, was the tenant. He has now married and moved out of the property. For that reason a residential tenancy agreement has to be signed to allow KDG and his brother, LNG, to continue to live in the property.
During the hearing the Tribunal telephoned Lance Young from FACS Housing. Mr Young told the Tribunal that the advice he had been given by his Legal Administration Section was that the applicant would have to apply for a guardianship order to be able to sign the residential tenancy agreement.
During the hearing the Tribunal also telephoned Ms Cassandra Doumit, a Legal Officer with FACS Housing. The Tribunal outlined the question, namely whether the applicant could sign a residential tenancy agreement if she were appointed guardian for KDG. Ms Doumit took the question on notice and said that she would contact the Tribunal again when she had an answer. Ms Doumit did not contact the Tribunal during the hearing and give evidence touching on the question of whether FACS Housing policy provided that a guardian could sign a residential tenancy agreement.
A guardian is defined in s 3 of the Act as follows: ""guardian" means a person who is, whether under this Act or any other Act or law, a guardian of the person of some other person (other than a child who is under the age of 16 years), and includes an enduring guardian". As commonly understood, a guardian is a decision maker empowered to make decisions for another person in accordance with the functions attached to a guardianship order.
The FACS Starting a Tenancy Policy is available online at and provides: Clients who lack decision making capacity due to illness or disability and have a legal guardian must have their legal guardian present at the sign up. The client's legal guardian is responsible for signing the Tenancy Agreement on behalf of the client.
The Tribunal therefore had to determine whether, if it decided to appoint a guardian for KDG, the order could include a function that would enable the guardian to sign a residential tenancy agreement as anticipated by the FACS policy stated above. This requires consideration of the type of functions that can be conferred under a guardianship order and the relationship between a guardianship order and a financial management order.
The Act distinguishes between guardianship orders (Part 3) and financial management orders (Part 3A).
An appeal panel of the NSW Administrative Decisions Tribunal in HH v HI and Protective Commissioner [2009] NSWADTAP 41, noted that 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 question for the Tribunal then is a determination of whether the functions that may be conferred on a guardian can include functions relating to the management of the subject person's estate.
The issue of the type of functions that may be conferred on a guardian was considered in NVQ [2016] NSWCATGD 38. The Tribunal in NVQ said at [41] "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."
"estate" is defined in s 3 of the Act as follows: ""estate" of a person means the property and affairs of the person". That definition is mirrored in s 38 of the NSW Trustee and Guardian Act 2009 (NSW).
Under Part 3A of the Act, which deals with the making of financial management orders, the Tribunal may in the exercise of its discretion order that the estate of a person be subject to management under the NSW Trustee and Guardian Act, s 25E.
Subject to any conditions specified in the order made by the Tribunal under Part 3 of the Act, a guardian has the power to make the decisions, take the actions and given the consents (in relation to the functions specified in the order) that could be made, taken or given by the person under guardianship if he or she had the requisite legal capacity: s 21(2A) of the Act.
A residential tenancy agreement is defined in the Residential Tenancies Act 2010 (NSW) as 13 Agreements that are residential tenancy agreements (1) A residential tenancy agreement is an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence. …
The Tribunal finds that a residential tenancy agreement is a matter relating to the management of the subject person's estate.
The Tribunal therefore finds that it cannot authorise a guardian appointed under Part 3 of the Act to sign a residential tenancy agreement on behalf of the subject person.
The Tribunal notes, but does not take into account in reaching this decision, that in MQH [2018] NSWCATGD 11 (8 March 2018) at [13], the Public Guardian gave evidence that signing what was identified in that matter as a residency agreement is a matter for a financial manager and not a guardian.
This view is reflected in the Information Sheet, "Managing Assets and Money" published by the Public Guardian which states: A guardian is not the same as a power of attorney or financial manager. Guardianship is about general health and lifestyle decision making. A financial manager is limited to financial, assets and property decision making.
There was no evidence otherwise to support a finding by the Tribunal that a guardian should be appointed for KDG.
The Applicant sought to withdraw her application and in the circumstances the Tribunal consented to the withdrawal of the application.

Oral financial management application

The applicant sought and the Tribunal granted leave for her to make an oral application for the appointment of a financial manager for KDG. The applicant sought the appointment of herself and BMM jointly and severally as a financial manager for KDG.
The prerequisite for making a financial management order with respect to KDG is satisfied there being current proceedings before the Tribunal under Part 3 of the Act (ss 25F(2)-(3) of the Act).

What the Tribunal decided

The Tribunal appointed KBI and BMM jointly and severally as KDG's financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian.

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.]

Settlement

The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. There was no conflict in this matter.

Does KBI have standing to bring this application?

The Tribunal found that KBI has standing to make the application for a financial management order because she is a person who, in the opinion of the Tribunal, has a genuine concern for the welfare of KDG.

What did the Tribunal have to decide?

The questions to be considered by the Tribunal are:

Is KDG incapable of managing his affairs?
Is there a need for another person to manage KDG's affairs and is it in his best interests for a financial management order to be made?
If so, who should be appointed financial manager?

Is KDG incapable of managing his affairs?

The Tribunal took into account the report dated 15 May 2018 from Dr Z and the report from the school counsellor both referred to above in relation to the hearing of the application for appointment of a guardian for KDG. The Tribunal observed from KDG's attendance at the hearing that whilst he was able to acknowledge the presence of the Tribunal and interact with his carer and family members who were present, he did not communicate with the Tribunal.
The Tribunal accepted the evidence given by the applicant that she is KDG's Centrelink nominee and has been informally managing his finances and those of his brother, LNG.
Based on the medical evidence, the evidence given by the applicant, and KDG's presentation before it, the Tribunal found that KDG is incapable of managing his affairs. The Tribunal acknowledges that KDG has significant and appropriate support available to him from the applicant but he is incapable of contributing to any financial decision and is totally reliant on her for management of his finances.

Is there a need for a financial management order?

The Tribunal was satisfied that there is a need to appoint someone to manage KDG's affairs for the following reasons.
Section 38 of the NSW Trustee and Guardian Act includes the following definitions: "manager" of an estate means the NSW Trustee, if management of the estate is committed to the NSW Trustee, or any person who is appointed as the manager of the estate of a managed person. "estate" of a person means the property and affairs of a person and, if only part of the estate of a person is under management under this Chapter, means only that part of the property and affairs of the person. "managed person" means a protected person, managed missing person or patient whose estate is subject to management under this Act. "protected person" means a person in respect of whom an order is in force under Part 4.2 or 4.3 or the Guardianship Act 1987 (NSW) that the whole or any part of the persons estate be subject to management under this Act.
If the Tribunal, in the exercise of its discretion under s 25E of the Act, makes a financial management order with respect to KDG, that order enlivens the NSW Trustee and Guardian Act.
Section 66 of the NSW Trustee and Guardian Act provides, relevantly, as follows: 66 NSW Trustee may authorise and direct functions of other managers (1) The NSW Trustee may, by order: (a) authorise a manager to have all, or any specified, functions necessary and incidental to the management and care of an estate and such other functions as the NSW Trustee may direct or authorise the manager to have or exercise, and (b) give a manager such directions in respect of the orders, authorities and directions authorised by this subsection as the NSW Trustee thinks fit. ...
Section 67 of the NSW Trustee and Guardian Act provides, relevantly, as follows: 67 Managers may execute documents (1) A manager may, in accordance with an order or direction of the Supreme Court, the NSW Trustee or the Civil and Administrative Tribunal (in the case of a person under guardianship), execute and sign any document and do any other thing in the name of and on behalf of the managed person. (2) An exercise of a function by a manager under this section: (a) is as effective as if it were exercised by the managed person, and (b) to the extent to which that person lacks capacity to exercise the function, is as effective as if the person did not lack of capacity. …
The applicant gave evidence that until a residential tenancy agreement is signed, FACS Housing will continue to charge market rent for KDG and his brother, LNG, to occupy their home. Neither KDG nor LNG is able to sign a residential tenancy agreement.
The applicant also gave evidence that if she enters into a residential tenancy agreement on behalf of KDG, his brother, LNG, will be able to live in the house with him.
The Tribunal finds that by the operation of s 67 of the NSW Trustee and Guardian Act, the NSW Trustee and Guardian can direct to the manager to sign a residential tenancy agreement with FACS Housing of behalf of KDG.
The Tribunal finds that whilst KDG's finances could continue to be managed informally as has been occurring to date, there is a need to appoint a financial manager to sign a residential tenancy agreement to ensure ongoing stability and the availability of appropriate accommodation for KDG.

Is it in KDG's best interest that a financial management order be made?

The Tribunal was satisfied that it is in the best interests of KDG that a financial management order be made.

Who should be appointed as financial manager?

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.
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.
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 then 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 then 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, reduced 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" that should 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].
During the hearing, the Tribunal made enquiries of KBI to ascertain whether she is a "suitable person", for the purposes of the Act, to be appointed as her son's financial manager. KBI confirmed that:

she is not, and has never been, bankrupt:
she has not been convicted of any offences involving dishonesty;
there is no intermingling of her own funds with those of her son; and
she is aware of, and accepts, the accounting and reporting requirements of the Office of the NSW Trustee and Guardian. The Tribunal had no difficulty in finding that KBI is a suitable person to be appointed as her son's private financial manager. She has a close relationship with her son, and has acted in his interests by managing his finances for his benefit to date including her role as his NDIS coordinator under a Self-Managed Support Plan.

During the hearing, the Tribunal made enquiries of BMM to ascertain whether she is a "suitable person", for the purposes of the Act, to be appointed as her brother-in-law's financial manager. BMM confirmed that:

she is not, and has never been, bankrupt;
she has not been convicted of any offences involving dishonesty;
there is no intermingling of her own funds with those of her brother-in-law; and
she is aware of, and accepts, the accounting and reporting requirements of the Office of the NSW Trustee and Guardian. The Tribunal had no difficulty in finding that BMM is a suitable person to be appointed as her brother-in-law's private financial manager. She clearly has a close relationship with her brother-in-law, and the Tribunal was left in no doubt that she would act always in the best interests of KDG.

The Tribunal was satisfied that KBI and BMM were suitable persons to be appointed jointly and severally as financial managers for KDG subject to the authorities and directions of the NSW Trustee and Guardian.

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: 17 August 2018

Trustee and Guardian Act 2009(NSW)

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