KNT [2020] NSWCATGD 93

NCAT Guardianship|2020-08-28|Before: Windeyer J

Background

KNT is an 80-year-old widowed woman who was an inpatient at Public Hospital AB at the time of the hearing. She has been diagnosed with a cognitive impairment due to Alzheimer's dementia. KNT was previously living alone in her own home at a suburb in the Australian Capital Territory (ACT) and receiving services from an in-home care provider five days per week under a level 2 home care package. She has four children: DEB who lives in regional New South Wales (NSW); TMT who lives in Queensland; UJT who lives in the ACT; and Ms Z, who lives in Western Australia. There is significant conflict between KNT's children.
On 8 July 2107, KNT appointed her son, UJT, as her attorney under an enduring power of attorney in the ACT, with the functions of property matters (including financial matters), personal care matters and health care matters.
On 16 July 2020, DEB removed her mother from Public Hospital YZ in the ACT and drove her to NSW without the knowledge of her treating doctors. KNT was admitted to Public Hospital CD and then later transferred to Public Hospital AB.
On 16 July 2020, DEB lodged applications for guardianship and for review of the enduring power of attorney made by KNT on 8 July 2017.
On 17 August 2020, TMT also lodged an application for guardianship for her mother.
On 19 August 2020, TMT and DEB lodged separate applications for financial management for KNT.
On 18 August 2020, a Tribunal registry officer spoke with KNT to obtain her views. KNT said she did not know about the applications and did not want anyone making decisions for her. KNT said if orders were made, she would prefer that her daughter, Ms Z, be appointed.

What did the Tribunal have to decide?

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

Does the Tribunal have jurisdiction to make a guardianship order for KNT?
Is KNT 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?

Does the Tribunal have jurisdiction to make a guardianship order for KNT?

The Guardianship Act 1987 (NSW) ("the Act") does not specify that the person subject to the application must be in NSW at the time the application is made or that they must be a resident in or domiciled in NSW. However, there is a common law presumption against the extraterritorial operation of statutes enacted by state parliament (Jumbunna Coal Mine v Victorian Coal Miners' Association (1908) HCA 95). The presumption is that the provisions of a NSW Act of Parliament will apply only to a given person, thing or act where there is some clear connection or nexus between that person, thing or act and the State of NSW. Anything else will be regarded as "extraterritorial" and presumed that that Act was not intended to apply to it. Whilst the presumption can be rebutted, the Tribunal generally only has jurisdiction to make a guardianship order for someone who is: a resident of NSW; or physically present in NSW at the time of the hearing, even if not actually a resident. For instance, the fact that the person is a tourist visiting NSW would not, by itself, mean that the Tribunal lacked jurisdiction.
Although KNT usually lives in the ACT, we were satisfied that we had jurisdiction to make a guardianship order for KNT as she was physically present in NSW at the time of the hearing.

Is KNT 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 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).
The Tribunal was provided with a report by Dr W, general practitioner, dated 21 July 2020. He said KNT was last seen in February 2020. She has had cognitive impairment for some years, with a recent Public Hospital YZ admission for diabetes. KNT continues to smoke heavily. Dr W said KNT has been scheduled for monthly reviews, but this appears to have ceased in February 2020. KNT's other medical conditions include diabetes and hypertension.
Dr X told us KNT was admitted to the intensive care unit at Public Hospital YZ in the ACT in early-July due to diabetic ketoacidosis. KNT was later admitted to Public Hospital CD after her daughter removed her from Public Hospital YZ. KNT was in Public Hospital CD for 12 days and then transferred to Public Hospital AB. Dr X said a CT brain showed there has been some shrinkage of the brain. KNT scored 8/30 on a Montreal Cognitive Assessment (MoCA), indicating she has quite severe dementia. Dr X said KNT generally does not initiate conversation and is very passive. She remains in bed all day and requires assistance with meals. Her cognition is affected and she needs lifelong insulin three to four times per day. Dr X said KNT has advanced dementia and lacks capacity to make decisions. She is frequently disorientated on the ward.
We were satisfied on the basis of the uncontested medical evidence from Dr W and Dr X that KNT has a cognitive impairment due to advanced dementia. She is a person who, because of a disability, is totally incapable of managing her person and this prevents her from making important life decisions. KNT 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?

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).
We were unable to obtain KNT's views as she elected not to participate in the hearing. KNT advised a Tribunal registry officer beforehand that she does not require a guardian. We formed the view that appointing a guardian for KNT may impact upon her relationship with one or more of her children given the entrenched conflict between them about where KNT should live. DEB wants her mother to live with her in regional NSW and this plan is supported by TMT. UJT and Ms Z believe KNT requires placement in a residential aged care facility and consider she should be placed in a facility in the ACT as she has lived there for over 45 years. Cultural and linguistic factors were not relevant in KNT's case. The Tribunal also considered whether it was practicable to provide services to KNT in the absence of guardianship.
Mr Y provided a report to the Tribunal, dated 21 August 2020. He said KNT was initially admitted under the geriatric team at Public Hospital CD on 16 July 2020 when she presented with her daughter, DEB, still in a hospital gown and cannula in place after being removed, without consent or medical clearance, from Public Hospital YZ. DEB advised staff at Public Hospital YZ that she was going to take her mother to the hospital cafe for a coffee but never returned. At the time, KNT was still receiving a medical infusion of insulin and was in a hospital gown. A social worker at Public Hospital YZ advised Mr Y that DEB and TMT had approached the social worker and been very verbally aggressive and removed the hospital's copy of the enduring power of attorney from the hospital file without permission. The hospital reported KNT's removal to the Australian Federal Police.
There was consistent evidence before the Tribunal that KNT has not appointed an enduring guardian. Mr Y gave oral evidence at the hearing that guardianship is required as KNT is particularly vulnerable and easily persuaded due to her poor memory and cognition.
We placed most weight on the practicability of providing services to KNT without the appointment of a guardian and decided to exercise our discretion to make an order. KNT's children live in four different jurisdictions. There is a risk that she may be repeatedly removed from various jurisdictions due to the conflict between her children unless there is clarity about who is responsible for decision making.
The Tribunal concluded that the guardian requires authority to make decisions about KNT's accommodation. There is a difference of opinion within the family about where KNT should live and whether or not she should be placed in an aged care facility. The additional authority to take, keep or return KNT to a place is warranted given the evidence that she was removed from Public Hospital YZ without the consent or knowledge of her treating doctors. It is not clear to the Tribunal if KNT left willingly. This authority should be used sparingly and only as a last resort. Health care and medical and dental treatment functions are required as her children do not agree on who should be her person responsible. A services function is also warranted to ensure KNT has access to necessary services once discharged from hospital.

Who should be the guardian?

DEB and UJT both separately proposed that they be appointed as their mother's guardian.
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 Supreme Court has held: "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])."
TMT supported the appointment of DEB. UJT and Ms Z were strongly opposed. Ms Z said she would prefer the appointment of the Public Guardian rather than the appointment of either of her sisters. DEB told us she has extensive experience working in the disability sector and is able to provide her mother with full-time care. DEB and TMT were opposed to the appointment of their brother and preferred the Public Guardian if DEB was not appointed. They claimed UJT had shut them out of KNT's life for many years and failed to provide her with appropriate care. UJT told us he has been his mother's primary carer for many years and has always ensured her needs were met.
Mr Y expressed concern that DEB had removed her mother from Public Hospital YZ just two days after KNT was transferred to the ward from the intensive care unit. She was driven to NSW and then stopped at Public Hospital CD emergency department when KNT became unwell. Mr Y described the decision to remove KNT from Public Hospital YZ as rash. Mr Y said there is no evidence to support the concerns raised by DEB and TMT about their brother, UJT. The report from KNT's case manager at the in-home care provider indicates UJT has been acting appropriately. Mr Y said UJT has not attempted to remove his mother from hospital in NSW and has been actively seeking residential aged care facilities for her. Mr Y supported the appointment of UJT on the basis that he has acted in his mother's best interests and has no ulterior motives.
We had regard to the views expressed at the hearing, including by Mr Y, but were not persuaded that any of KNT's children should be appointed as her guardian. UJT and DEB certainly could not work together to make decisions on their mother's behalf. We concluded that an independent decision-maker was required. While the personalities of KNT's children appear to be compatible with hers, we were not convinced that the proposed guardians would be able to exercise the functions of the order in accordance with the principles of s 4 of the Act. In the Tribunal's view, the proposed guardians would have difficulty making rational and objective decisions in KNT's best interests given the level of antipathy within the family. We were troubled by DEB's evidence that she made a conscious decision to remove her mother from the ACT so she was in a different jurisdiction. There was consistent evidence before us that KNT had been transferred from the intensive care unit just two days previously and still had a cannula in place when she arrived at Public Hospital CD. DEB conceded she did not advise her mother's treating doctors at Public Hospital YZ that she intended to remove KNT or check whether this may be detrimental to her mother's health.
We were not confident UJT would communicate with all of his siblings if appointed as his mother's guardian. UJT acknowledged his relationship with DEB and TMT has essentially broken down and he no longer responds to their calls or texts. DEB and TMT alleged that their brother had disconnected their mother's telephone so they could not call her and accessed KNT's income and savings for his own benefit. We were provided with a large number of bank statements which show repeated withdrawals from clubs and a number of significant withdrawals from various bank branches in the ACT. While it was not clear whether KNT or someone else had made those transactions, the nature and pattern of the withdrawals was troubling.
While the Tribunal had no doubt that all of KNT's children love and care about her welfare, we concluded that it was in her interests for the Public Guardian to make decisions on her behalf. In our view, appointing an independent decision-maker will help ensure KNT's views are considered when a decision is made about her discharge destination. It will also help ensure KNT is able to have contact with all family members to the greatest extent practicable and that all of her children remain informed and consulted about her health care and medical treatment. It will also minimise conflict within the family and ensure there is clarity of decision making responsibility. The Tribunal, therefore, appointed the Public Guardian as KNT's guardian.

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 six months. KNT has been living in the ACT for many years and her children have lodged similar applications in that jurisdiction, with a hearing date set down in October 2020. KNT's circumstances may well change significantly within the period of the order. A review in six months' time will enable the Tribunal to determine whether KNT continues to require a guardian and, if so, whether there should be any changes to the functions of guardianship.

DOES THE TRIBUNAL HAVE JURISDICTION TO REVIEW THE ENDURING POWER OF ATTORNEY MADE BY KNT AND/OR MAKE A FINANCIAL MANAGEMENT ORDER?

KNT appointed her son as her attorney on 8 July 2017 in the ACT under the Powers of Attorney Act 2006 (ACT).
A differently constituted Tribunal considered an enduring power of attorney executed under the Powers of Attorney Act 1998 (Qld) in QBL [2014] NSWCATGD 8. The instrument in that case also included the appointment of the attorneys for financial, personal and health matters. The applications before the Tribunal were requests to review both the enduring guardianship and enduring powers of attorney components of the instrument.
The Tribunal in QBL noted that it drew its jurisdiction to review a power of attorney from the Powers of Attorney Act 2003 (NSW). While it was satisfied that sub-ss 25(1), 25(2) and 25(5) of that Act provide that an enduring power of attorney made under another jurisdiction has effect as if it were made under the Powers of Attorney Act of NSW, this is subject to any limitations under the law of the relevant jurisdiction in which it was made and does not give any power that would not be given under a power of attorney made under the NSW legislation. Section 3 of the Powers of Attorney Act of NSW provides that an enduring power of attorney is defined in s 19 of that Act as an instrument that creates an enduring power of attorney "for the purposes of this Act". The Tribunal found that the definition was not extended to an interstate enduring power of attorney which is defined separately in s 25 of the Powers of Attorney Act of NSW for the purposes of interstate recognition. As there is no provision in s 25 of the Powers of Attorney Act of NSW expressly extending interstate enduring powers of attorney into the Tribunal's powers under Pt 5 of the Powers of Attorney Act of NSW, the Tribunal concluded that a review of an enduring power of attorney made under the jurisdiction of another state would not come within its jurisdiction.
Similarly, Pt 2 of the Act enables the Tribunal to review the appointment of an enduring guardian. Section 6O(1) of the Act provides that an instrument appointing an enduring guardian is recognised and has effect in NSW as if it were an appointment made under, and in compliance with, the Act. However, the Tribunal found in QBL that there was no provision in the part to consider 'guardian-like' appointments contained in the Queensland instrument as there was no equivalent in NSW.
The reasoning in QBL was followed in NVT [2015] NSWCATGD 37, which also involved an instrument executed under the Powers of Attorney Act of Qld.
The facts in the current case are similar to those in QBL and NVT. The Tribunal agreed with the reasoning in QBL and concluded that it did not have jurisdiction to review the enduring power of attorney made by KNT on 8 July 2017 under the Powers of Attorney Act of the ACT. Accordingly, the Tribunal dismissed the application made by DEB to review that enduring power of attorney.
In relation to the financial management applications lodged by DEB and TMT, there was consistent and compelling evidence at the hearing that KNT has lived in the ACT for more than 45 years and does not own any property in NSW. While she has an account with a commercial bank, her branch is in the ACT. We note an application has been made under the relevant legislation to the ACT Civil and Administrative Tribunal. This may be a more appropriate forum given KNT's home is located in the ACT. Although KNT was physically present in NSW at the time of the hearing, we were satisfied that she lives in the ACT. The Tribunal therefore concluded that it did not have jurisdiction to make a financial management order for KNT. The applications made by DEB and TMT were dismissed by the Tribunal.

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 May 2022

ciation (1908) HCA 95 NVT [2015] NSWCATGD 37 P v D1 & Ors [2011] NSWSC 257 QBL [2014] NSWCATGD 8 Re B [2011] NSWSC 1075 Texts Cited: None cited. Category: Principal judgment Parties: 001: Review of an Enduring Power of Attorney

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