KZD [2020] NSWCATGD 18

Statutory Review of Guardianship Order

1. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.
2. The questions to be considered by the Tribunal are: 1. Is KZD someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions? 2. Should the Tribunal make a further guardianship order and if so, what order should be made? 3. Who should be the guardian? 4. How long should the order last?

Is KZD someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

1. 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': s 3(1) of the Act. A person with a disability is a person who is: 1. (a) intellectually, physically, psychologically or sensorily disabled; 2. (b) of advanced age; 3. (c) a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or 4. (d) 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.
2. When the previous order was made, the Tribunal found that KZD had a disability, being longstanding dementia, and was unable to make important life decisions.
3. On 13 February 2020, the aged care facility forwarded to the Tribunal a medical report in relation to KZD, authored by Dr Z, Geriatric Medicine Advanced Trainee at a public hospital. In her report Dr Z noted that KZD has 'advanced dementia with significant neuropsychiatric symptoms including wandering with exit seeking and hoarding behaviours as well as irritability and resistiveness to care.' She stated: In the context of advanced dementia [KZD] is unable to appreciate information pertaining to her medical, accommodation and lifestyle needs. She is unable to appreciate the options available to her and unable to express a consistent and informed decision. As such she lacks independent decision-making capacity.
4. On the basis of the evidence before us, we were satisfied that KZD continues to have a disability, and that as a result of this disability, she is incapable of managing her own person and is unable to make important life decisions on her own behalf. She is a person for whom the Tribunal could make a further guardianship order.

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

1. 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.
2. 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).
3. The application for guardianship was essentially prompted by DYD's genuine concern for his mother's welfare should she remain at her own house. He was of the view that KZD's requires continuous care and supervision and that a residential care facility would be a more appropriate accommodation option.
4. In a letter provided to the Tribunal prior to the previous hearing, LWC had expressed her opposition to the application. LWC provided a detailed account of her close relationship with KZD and the care she and her son, XEC, have been providing to her over the past five years. In her letter, LWC expressed the view that KZD should either be cared for at her own home or reside with LWC at her house.
5. After being appointed as KZD's guardian, LWC decided that KZD should continue to reside at the aged care facility pending the outcome of the present hearing, 'as it would be best to not confuse her with too many changes at this stage.' She stated that since being appointed guardian, she has started making arrangements for KZD to come and reside with her at her house in east Sydney.
6. In her report of 13 February 2020, Dr Z stated that due to her advanced dementia, her significant cognitive and functional impairment, her wandering behaviour and disorientation, combined with her need for assistance with toileting, KZD requires 24-hour care and that she is currently settled and well cared for at the aged care facility. Dr Z stated that she has discussed these matters with LWC and she understands that her aunt requires high level care. She also understands that if a different facility is chosen and KZD is moved from the aged care facility, there is likely to be a period of increased agitation as she settles into her new surroundings.
7. At the hearing, LWC reiterated the views she expressed to Dr Z. She told us that KZD appears to be settled at the aged care facility, has made friends with everyone, including other residents and staff and she feels 'safe' at the facility.
8. XEC gave evidence that he and his mother were providing care for KZD prior to the respite arrangements. Their plan previously was to bring KZD into their care at their home. However, whilst this remains their preferred option, they have now formed the view that it would not be in KZD's best interests to disturb her current living arrangements and to cause her disruption. He said having access to KZD and being able to take her on outings has been very beneficial to all. XEC stressed that he and his mother no longer consider KZD's return to her own home to be an option.
9. In response to Mr De Dassel's question of whether the option of moving KZD to a different facility for cultural or other reasons was being actively considered, XEC stated that the family would consider this option if it was in KZD's best interest. However, the option of moving KZD is not currently under active consideration.
10. Ms Evans, on behalf of DYD, told us that, contrary to what had been stated in written statements provided to the Tribunal previously, DYD had been regular contact with his mother in the past. He had made the application for guardianship due to concerns for his mother's safety. KZD's wandering had prompted her neighbours to contact him to warn that they would take action and that the police had been called on several occasions in the past. We were told that DYD believes that his mother requires high level of care, which can be provided at a high care facility. His position is that his mother should continue to reside at the aged care facility.
11. With regard to medication, Dr Z had noted in her report that KZD's intake of Risperidone was successfully weaned and ceased completely on 27 January and 'the staff have not noticed any escalation in behaviour'. KZD was also successfully weaned off the Targin following her humerus fracture.
12. LWC's evidence indicated that, initially, she had been very concerned in relation to the impact of medication on KZD, including drowsiness and agitation. She has observed improvements following the recent cessation of the medication. KZD is calm and 'normal' when she is with her. LWC said that she has had no difficulty communicating with the medical staff, who have been cooperative with her requests, including medication reviews.
13. XEC stated that KZD's condition has improved, and she has been more alert since the cessation of the medication. He has spoken to the medical staff at the aged care facility and remains open to any medical advice that would be in her best interests.
14. Evidence provided by the aged care facility appeared to contradict Dr Z's opinion and the observations made by LWC and XEC. Ms Y, Social Worker at the aged care facility stated that the staff at the facility have noticed a marked difference in KZD's behaviour, including increased agitation and aggression, since being weaned off her medication. Ms X, Deputy Care Manager, added that KZD was seen by Dr Z on 5 February and that her behaviour changes have heightened since being weaned off Risperidone. KZD's behaviour changes include exit seeking, shouting at other residents and staff, entering other residents' rooms and taking belongings. Mr De Dassel referred to Dr Z's report in stating that the staff had not noticed any escalation in KZD's behaviour. He asked, if there has been a change in KZD's behaviour, why it had not been reported to Dr Z. Ms X said she did not know why this was the case.
15. We questioned whether accurate data was being collected by the facility. We also asked whether KZD's family in Sydney would be open to small amounts of Risperidone being prescribed should any behaviour changes require management. XEC stated that they would be open to medical advice and, in view of what has been observed, they may also seek independent expert's advice to make an assessment.
16. Having carefully considered the evidence before us, we decided that a further guardianship order should be made.
17. The evidence presented indicated that there is now agreement amongst KZD's family members that she should remain at the aged care facility. However, we were cognisant that KZD has been residing in the aged care facility on respite and that there are decisions that are required to be made with respect to her transition into permanent care. Moreover, whilst we accepted XEC's evidence that there are currently no plans to move KZD to a different high care facility, we acknowledged that placing KZD at a more culturally and religiously compatible environment may become a consideration that could give rise to decisions regarding her accommodation. Accommodation decisions would require careful consideration of KZD's state of health, evaluation of the relevant clinical opinion(s) and the impact of any move on her wellbeing.
18. We also decided that there are ongoing decisions that are required to be made regarding KZD's health care and medical treatment. There appear to be differing observations regarding KZD's behaviour and conflicting views in relation to the management of her medication, requiring ongoing review and assessment. We were not satisfied, however, that there is a need for the services function to remain in place as it was not apparent to us, on the evidence, that KZD currently requires additional services.
19. Having regard to the mandatory considerations set out in s 14(2) of the Act and after weighing the principles contained in s 4 of the Act, we were satisfied that a further guardianship order should be made. We, therefore, decided to renew the guardianship order. We also decided to vary the order by removing services from the functions of the appointed guardian. We formed the view that it was appropriate for a guardian to have the functions of accommodation, health care, and medical and dental consent.

Who should be the guardian?

1. LWC was appointed as KZD's guardian on the last occasion. LWC expressed the view that she continues to be willing and able to act as KZD's guardian. XEC also indicated that he would be willing to be appointed as KZD's guardian.
2. Ms Evans told us that DYD would now like the Public Guardian to be appointed as KZD's guardian, which would still enable the family in Sydney to attend to her and take her on outings without difficulty. In reference to XEC's evidence, Ms Evans questioned whether seeking independent advice regarding medication may suggest lack of openness if the medical staff at the facility are of the view that KZD should be given certain medication. Ms Evans also questioned whether the emotions felt by LWC and XEC towards KZD and their attachment to her could cloud their judgement in making decisions that are in her best interests. Ms Evans, however, told us that should LWC be appointed as guardian, DYD would like to be consulted in relation to the decisions that will be made for his mother.
3. Mr De Dassel submitted that KZD has told him that she trusts and feels totally supported by LWC and XEC. He referred, however, to the tensions between DYD and the rest of the family, speculating a foreseeable conflict in relation to where KZD will ultimate reside. He submitted that the Public Guardian will be free to make decisions regarding accommodation without influence of emotions.
4. XEC rejected the proposition that the influence of emotions would prevent him or his mother from making decisions that are in KZD's best interests. He reiterated the view that it is in KZD's best interest to remain in the aged care facility, but the family would be open to other options should the circumstances permit different decisions being made. He told us that the conflict that previously arose was due to the Sydney family not being able to freely access KZD at the aged care facility prior to the last hearing and that he did not feel that there is currently a conflict.
5. We were cognisant that 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: s 15(3) of the Act. We were also mindful that in deciding whether a person is able to undertake the role of guardian, we 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 (No. 1) [2011] NSWSC 1075, [66]).
6. In making our decision, we carefully considered the different views presented to us. We also took into account the written submissions previously submitted by other family members. More importantly, we considered KZD's own views as expressed to us at the hearing. Referring to LWC and XEC, KZD stated 'if I did not have these two people I would be dead years ago'. She also referred to XEC as 'a good man' and 'a good bloke'.
7. Whilst LWC's previous appointment as guardian has not given rise to any concerns regarding her ability or willingness to continue to act as guardian, we found XEC's evidence to demonstrate a high degree of insight and openness to options that would give priority to KZD's welfare and interests. He was able to explain plans for how to act as guardian objectively and without conflict of interest. We did not form the view that any underlying tensions or conflict between DYD and other family members or the close nature of XEC's relationship with KZD would prevent him from exercising the functions of a guardian. He also expressed his willingness to consult DYD if any significant decisions were to be made in relation to KZD.
8. On the basis of this evidence, we were satisfied that XEC meets the requirements to be appointed as the private guardian for KZD. We, therefore, decided to vary the order and appoint XEC as KZD's guardian with authority to make decisions for her about accommodation, health care and medical and dental treatment.

How long should the order last?

1. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. In view of the evidence before it, we decided to make an order for six months. We were satisfied that, in the circumstances of this case, this was an appropriate period to enable the appointed guardian to undertake the important decisions on KZD's behalf with regard to the functions specified in the Tribunal's order.

Withdrawal Request

1. On 3 February 2020, the Tribunal received a letter from Ms Evans, enclosing a signed request for withdrawal of DYD's application for financial management.
2. As it was explained to the parties at the hearing, applications cannot be withdrawn in the Guardianship Division without the consent of the Tribunal: cl 10, Sch 6 of the Civil and Administrative Tribunal Act 2013 (NSW).
3. The evidence before us indicated that KZD had validly appointed her son as her attorney under an instrument of General Power of Attorney, executed on 20 December 2004. The instrument expressly states that the power of attorney is given with the intention that it will continue to be effective 'if I lack capacity through loss of mental capacity after execution'.
4. In the absence of a financial management order, DYD will continue to remain as his mother's attorney. However, as noted by Ms Evans, DYD had never previously exercised his authority as attorney and has had no involvement in any of his mother's financial affairs. This is highlighted by DYD's application for financial management, in which he initially requested to be appointed as financial manager. In her correspondence to the Tribunal in relation to DYD's request for withdrawal of the application, Ms Evans stated that DYD had given her instructions that he would prefer for the NSW Trustee and Guardian to be appointed as financial manager for his mother. At the hearing, Ms Evans proposed a further change in DYD's position by stating that he would be prepared to continue to act as his mother's attorney now that he has more clarity in relation to his role.
5. The evidence before us indicated that the enduring power of attorney has not operated effectively in the past and we were not persuaded, on the basis of the information presented, that it will operate effectively should there be no change to the status quo. In reaching this view, we were also cognisant of potentially complicating factors, such as the fact that, over the past few years, LWC has been assisting KZD with managing her affairs on an informal basis and she had been authorised by her to access her bank accounts.
6. For these reasons and having had regard to the principles in s 4 of the Act, including giving paramount consideration to the welfare and interests of KZD, we decided to proceed to consider the application for financial management and not to give consent to its withdrawal.

Financial Management

1. The questions to be considered by the Tribunal are: 1. Is KZD incapable of managing her affairs? 2. Is there a need for another person to manage KZD's affairs and is it in her best interests for a financial management order to be made? 3. If so, who should be appointed financial manager?

Is KZD incapable of managing her affairs?

1. 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.
2. 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].

1. The medical evidence, set out above and accepted by the Tribunal, indicated that KZD has advanced dementia and significant cognitive and functional impairment. We were satisfied that KZD is unable to deal with her own affairs in a reasonable, rational, and orderly way with due regard to her present and prospective wants and needs and those of family and friends without undue risk of neglect, abuse, or exploitation. We were satisfied that KZD is incapable of managing her own affairs.

Is there a need for another person to manage KZD's affairs and is it in her best interests for a financial management order to be made?

1. The evidence before us indicated that KZD is a recipient of the Age Pension (paid by the Department of Veterans' Affairs). She owns her own house in south-eastern Sydney, with an estimated value of $1.3 million. KZD has three separate bank accounts, holding a total of approximately $300,000. LWC is currently authorised to access the accounts. KZD has ongoing expenditure relating to the maintenance of her property and expenditure relating to her present accommodation.
2. We were satisfied that there are important financial decisions that are required to be made in relation to KZD's assets to ensure, amongst other things, that the costs associated with KZD's placement are prudently managed. As Ms Evans noted at the hearing, these decisions may involve selling KZD's house to make a payment towards her refundable accommodation deposit.
3. We have not been asked to review the operation and effect of the enduring power of attorney made by KZD and the application before us is an application for financial management made by DYD. However, as already discussed, the effectiveness of the enduring power of attorney is critical to the Tribunal's determination as to whether or not a financial management order should be made for KZD.
4. For the reasons already provided and after considering the totality of the evidence, we were satisfied that there is a need to appoint someone to manage KZD' affairs. We were satisfied that it is in KZD' best interests to make a financial management order. We note that the making of a financial management order only suspends the operation of the enduring power of attorney for the duration of the financial management order.

Who should be appointed as financial manager?

1. 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.
2. 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.
3. 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.
4. 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.
5. The advantages of the appointment of a family member were more economic management of smaller estates 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.
6. Ms Evans told the Tribunal that LWC had not been forthcoming in sharing information with DYD in relation to his mother's finances. She submitted that, in the interests of transparency, DYD would prefer the NSW Trustee and Guardian to be appointed as KZD's financial manager. Ms Evans added that it had been insinuated in the past that DYD wanted access to information in relation to his mother's finances for his own reasons and not for his mother's benefit. This is incorrect and this 'slant' had led DYD to change his mind and form the view that the NSW Trustee and Guardian should be the manager. With total transparency and his mother's finances being managed by the NSW Trustee and Guardian, he cannot be accused of anything. She said all DYD is asking for is that his mother is comfortable, happy and can afford where she is residing.
7. XEC stated that he agreed with the requirement for transparency. LWC, with his assistance, has been managing KZD's finances on an informal basis. KZD has a healthy financial situation and a financial management order would enable him and his mother to continue to manage KZD's finances.
8. Mr De Dassel referred to KZD's trust in LWC and XEC and submitted that it would be KZD's bests interests for either or both being appointed as financial manager.
9. We acknowledged DYD's preference for the appointment of the NSW Trustee and Guardian in the interests of transparency. However, the evidence before us suggested that DYD's proposal had been informed, at least partly, by the hurt caused to him through perceived insinuations that his desire to seek information in relation to his mother's finances was personally motivated. Whilst we had no doubt that DYD had only acted out of genuine concern for his mother's welfare over the past few months, we did not find the evidence in favour of appointing the NSW Trustee and Guardian persuasive.
10. We accepted that LWC and XEC have been managing aspects of KZD's finances informally over the past 5 years. As the appointed guardian, XEC has been given authority to make accommodation decisions for KZD. These decisions may involve transitioning KZD into permanent care, which require careful consideration of her financial position and available options. His love and affection for KZD was apparent to us at the hearing. He has a profound knowledge of KZD and, like his mother, clearly cares for her quality of life. His knowledge of KZD's assets and his ability to interact with KZD should also be given weight. XEC told us that he is an assurance manager at a large corporation and has experience managing his own properties and wealth portfolio. Whilst we had little doubt that LWC is willing and able to act as financial manager, having carefully balanced the various considerations, we decided that XEC would be in a better position to formally transition into the role of financial manager for KZD.
11. We were satisfied that XEC is a suitable person to be appointed as financial manager for KZD. As we explained to DYD, XEC will be subject to the authorities and directions of the NSW Trustee and Guardian. The Tribunal may determine that a financial management order should be reviewed within a specified time. Once again, observing the principles set out in s 4 of the Act, as well as considering the nature of the decisions that are required to be made for KZD and the particular circumstances of the case, we decided that the financial management order should be reviewed within six months.

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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: 09 July 2020