Magjarraj v Asteron Life Ltd

Prior adjournment applications

1. On 12 December 2020, GZX brought an application for the adjournment of the hearing scheduled today.
2. She indicated that she had surgery booked on 23 December 2020.
3. The Tribunal heard and dismissed the application for an adjournment on 24 December 2020, at an interlocutory hearing in which GZX participated. The Tribunal, though, gave GZX a further opportunity to lodge evidence which she relied upon, despite the directions of 27 November 2020.
4. The application for an adjournment of the substantive hearing was renewed by GZX, and again rejected, on 8 January 2021. Again, the Tribunal's records indicate that GZX participated in that interlocutory hearing.
5. Whilst no reasons were requested or provided for that decision we note that in respect of each of the applications, the Tribunal made the following notation: "The Tribunal notes that the parties were advised today that the refusal of the adjournment does not prevent the application being renewed in the event that new information arises, particularly in the nature of evidence that [GZX] is required to attend medical treatment on 14 January 2021."
6. We infer that the issue of GZX needing medical treatment on 14 January 2021, which may prevent her from participating in the hearing, was raised in that interlocutory process.

The Hearing

1. At the end of these Reasons for Decision are lists of the parties and witnesses who attended the hearing.

A further adjournment application

1. On 12 January 2021, GZX sent an email to the Tribunal indicating that she would be unavailable for the hearing today. Her email states that "On 09 January 21, I attended my GP post operatively for pain relief, sleeplessness and increased temperature; the surgeon already contacted the surgery and outlined the treatment plan to her, including daily nurse attendance and radiotherapy for a month, she wrote the attached Medical Certificate; there was a discrepancy in report results being followed up for confirmation Monday 11 Jan and I have to return Tuesday 12 Jan for appointment and details."
2. Attached to that correspondence were two medical certificates, both from doctors at a medical centre. In the first certificate, dated 9 January 2021 and signed by [Dr X], it is noted that GZX is suffering from "medical condition" and "that in [the doctor's] opinion she will be unfit for normal work/study from 9/01/2021 to 6/02/21".
3. The second certificate, signed by Dr W and dated 12 January 2021, specifies that GZX is suffering from "breast cancer under therapy" the doctor opines that "… she will be unfit to attend a Guardianship Hearing for the next six weeks."
4. In response, UKT sent an email to the Tribunal. He said, in part, in objecting to any delay of the hearing that "the Applicant has sought adjournments twice previously, and was untruthful to the Tribunal about having a medical appointment on the 14 January (sic) at the time this hearing is scheduled. When asked directly by the Tribunal at a directions hearing on 8 January at 4pm, the Applicant was unable to confirm or to provide evidence for the existence of a medical appointment that would prevent her attending the hearing that is scheduled for 14 January."
5. At 9:25 am today, GZX acknowledged UKT's email and disputed that KNS was stressed by the process, but did not take issue with the other assertions made by UKT.
6. At 11:44 am today, prior to the commencement of the hearing, the Tribunal received another email from GZX attaching a report from a hearing testing centre, dated today which said, in part, "[GZX] was seen at [the hearing testing centre in Sydney] on 14th January, 2021 for evaluation of her Cochlear…implant as requested by her surgeon Dr V to confirm that her recent surgery did not affect her cochlear implant. This was the earliest possible appointment, and the only one available for several weeks."
7. The report went on to indicate that the implant was "working well".
8. GZX sent another email at 1:21 pm, confirming that she would be unable to attend the hearing.
9. GZX did not make herself available for the hearing today, despite us attempting to contact her on several occasions by telephone to seek either her participation or her submissions as to why the scheduled hearing should be adjourned. GZX did not answer her telephone.
10. On that basis, we had to consider whether, in light of the updated evidence provided by GZX, it would be procedurally unfair for us to proceed.
11. We were not satisfied that would be the case or that we should adjourn the hearing.
12. Firstly, adjournment of the hearing was objected to by UKT. He submitted that the ongoing stress and anxiety caused to the parties in this matter, continued by ongoing delays, would not promote the welfare and interests of KNS.
13. Secondly, KNS told us that she wanted the matter finished today and had previously said that she did not need a guardian. She was happy with UKT assisting with her finances.
14. Thirdly, nothing in the material which was before us, as we will come to, indicated there was, in fact, any reason to make a guardianship order or review the enduring power of attorney.
15. Given that the parties had been directed to lodge all of the evidence they relied upon, we were satisfied that we were properly positioned to assess the relevant issues, even in the absence of GZX.
16. Further, we were not satisfied the medical certificates provided by GZX were a proper basis for an adjournment of the hearing so that GZX could participate.
17. The certificate from Dr X of 9 January 2021 was entirely unhelpful. It was apt to be criticised as a statement of evidence on the basis set out in Magjarraj v Asteron Life Ltd [2009] NSWSC 1433, at [22].
18. Whilst the certificate by Dr W at least indicated the nature of the illness by which GZX was affected and was specific in indicating that she would be unfit to attend a guardianship hearing, it went no further in giving an explanation or basis for this. Nor does the certificate indicate that the doctor was aware that GZX would not need to attend the hearing in person and that it was being conducted by telephone. The bare assertion by the doctor in the report that GZX was unable to participate was also, in our view, inconsistent with GZX's ability to attend an audiology appointment on the morning of the hearing.
19. We were left with no proper explanation as to how it was that GZX could manage to leave her home and attend an audiology appointment but would be unable to participate in the hearing, at least to the extent of arguing for an adjournment.
20. As with all other decisions made in considering applications of this nature, our focus is on the welfare and interests of KNS. Whilst the Tribunal attempts to ensure that the preparation for and attendance at hearings by people about whom applications have been brought is not unduly burdensome, we have no hesitation in accepting that there is some almost inevitable level of anxiety which would be caused to a person preparing for a hearing during which their ability to make their own decisions will be questioned. This was now the second occasion upon which KNS had had to prepare for such a hearing in respect of these applications.
21. Finally, whilst GZX would be prevented from making submissions due to her non-attendance, we had her evidence and conduct our hearings in an inquisitorial fashion. We independently question witnesses and assess the relevant issues for determination.
22. Weighing all of the issues, and considering KNS's welfare and interests as paramount, we were not satisfied that the hearing should be adjourned. We proceeded in the absence of GZX.

The application for appointment of a guardian

1. In making any decision in applications of this nature, we must consider the principles set out in s 4 of the Guardianship Act 1987 (NSW) ("the Act").
2. Every person who is the subject of an application is presumed to have the capacity to make decisions for themselves, until the Tribunal receives sufficient evidence to rebut that presumption.
3. The threshold issue for the Tribunal, once someone makes a proper application, is whether the evidence establishes that KNS has a disability that renders her at least partially unable to manage her person and requiring support.
4. Even if that is established, the Tribunal has discretion about whether to make an order and what kind of order to make. We consider all relevant factors.

GUARDIANSHIP

1. The questions to be considered are:

• Is KNS someone for whom we could make a guardianship order?
• Should we make a guardianship order and if so, what order should we make?
• If we make a guardianship order, who should we appoint as guardian and how long should the order last?

Is KNS someone for whom the Tribunal could make a guardianship order?

1. Section 14(1) of the Act enables the Tribunal to make a guardianship order for KNS if we are satisfied that she is "a person in need of a guardian".
2. A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing their person": the Act, s 3(1). The disability must restrict her in one or more major life activities to the extent that she requires supervision or social habilitation (the Act, s 3(2)), that is, assistance to manage in society. Commonly, we consider the person's ability to make important personal, health and lifestyle decisions, which is a major life activity that impacts on the person's ability to manage in society.
3. At 94 years of age, with a diagnosis of Parkinson's disease and as a resident in a residential aged care facility where she is otherwise a high falls risk and requires 24-hour care to meet her day to day needs (as set out by Dr Z), there can be little doubt that KNS meets the legal definition of being a person in need of a guardian. We find that she is.
4. However, that does not automatically mean that a guardianship order should be made, particularly in the light of the uncontroverted medical evidence of Dr Z that KNS maintains her ability to make decisions with regards to her health care and accommodation.

Should we make a guardianship order and if so, what order should we make?

1. When considering making an order, we must have regard to KNS's views. KNS has no spouse, and there is no evidence to indicate that any person met the definition of carer for her, prior to her moving to residential aged care. In any event, though, we would also consider the views of GZX and UKT as her family, given that they both maintain an ongoing relationship with her.
2. We are also required to consider the importance of preserving KNS's existing family relationships and particular cultural and linguistic environments as well as the practicability of her being provided with services without the need for an order: the Act, s 14(2).
3. We must consider each of these matters, in no particular order. If we need to consider different or competing issues, we undertake a balancing exercise in our consideration. Of course, we also consider any other relevant evidence, guided by the principles set out in s 4 of the Act. Where relevant evidence of particular weight about these issues was available to us, or where different factors needed to be balanced, we refer to it below.

The importance of preserving KNS's particular cultural or linguistic environments

1. There was no evidence before us to suggest that making any particular order, or not making an order, would have any impact upon KNS's cultural or linguistic environments.

The importance of preserving KNS's existing family relationships

1. There was no evidence before us that would enable us to conclude that making, or not deciding to make, a guardianship order would have any impact upon the preservation of KNS's existing family relationships.
2. Whilst the relationship between GZX and UKT is clearly fractured, the available evidence indicates that KNS maintains a good relationship with each of them.
3. We could not be satisfied that either the appointment or non-appointment of a guardian would improve the relationship between GZX and UKT, and thereby promote KNS's wellbeing. In her guardianship application, GZX says that that "[UKT] controls [KNS] because of the imbalance of power - he does not perform POA promoting her personal and social wellbeing…" To the extent that this could be taken as a submission that appointing a guardian, presumably in the person of GZX, would improve the family dynamic, we reject it. In our view the appointment of GZX as guardian, where UKT retains financial decision-making authority as attorney, or the practical delegated authority to arrange KNS's finances at her behest, may increase family conflict. So much is apparent from their long-standing inability to work cooperatively together. The appointment of UKT as guardian may simply increase GZX's concerns, and do likewise. The appointment of the Public Guardian, even if a proper basis for the appointment of a substitute decision-maker could be identified, would have no apparent beneficial effect in this respect.

The views of KNS

1. KNS told us that she does not believe that she requires a guardian.

The views of UKT

1. UKT told us that he does not believe that KNS requires a guardian.

The views of GZX - are there decisions which need to be made by a guardian and what is the position in respect of the practicability of KNS being provided with services without the need for an order?

1. It is apparent, and seemingly uncontested in the material before us, that KNS is settled, comfortable and well supported in her current aged care facility. She has been there for several years and there is no proposal that she move.
2. The material lodged by GZX in respect of the guardianship application indicates that her concerns primarily revolve around whether UKT has taken adequate steps to engage in arranging medical treatment for KNS or ensured that issues she identified in respect of KNS's accommodation are resolved. This is consistent with material lodged by UKT and, in particular, copies of text messages passing back and forth between him and GZX.
3. In one such example, the following exchange occurred:

• GZX to UKT (attaching a photograph of a toilet) - "Toilet leaking again, the smell is awful, please address?"
• UKT to GZX - "Surely you can tell them can't you?"

1. In another such email, immediately following:

• GZX to UKT (attaching a photograph of KNS pulling down her bottom lip to expose an apparently broken tooth) - "And she has a broken tooth also, please organise."

1. Both of these examples, which are indicative of the concerns raised throughout GZX's material, are indicative of a fundamental misapprehension of the roles of guardians, attorneys and supportive family members of ageing members of our society who may require some assistance in managing their day to day needs.
2. Viewed in the context of UKT living remotely from KNS and GZX living nearby, it is not the role of an attorney to ask an aged care facility to fix a toilet, nor does it indicate a reason for a guardian to be appointed. It is not the role of an attorney to arrange a dental examination and the need for someone to do so does not indicate a reason for the appointment of a guardian unless, in the absence of such an appointment, there is a risk that KNS will be exposed to neglect, abuse or exploitation. Here, the material provided by the parties indicates that GZX assists KNS to arrange medical appointments informally, a role commonly undertaken by a caring family.
3. GZX's material, particularly in an email of 27 November 2020, indicates that KNS demonstrated some ambivalence or reluctance to engage with a specific recent medical examination. However, there is no evidence that she has, ultimately, had her welfare and interests jeopardised by doing so. Similarly, whilst it is clear that GZX infers that KNS's reluctance was caused by UKT, her basis for this inference rises no higher than that UKT called KNS the night before the scheduled appointment. We would not make the inferential leap made by GZX.
4. There is, in any event, no evidence that the person responsible regime set out in the Act would not adequately meet KNS's need for substitute decision-making about medical and dental consent if that arises in the future and no evidence that, at this time, any medical practitioner takes the view that KNS is unable to make her own decisions in this regard. Indeed, the only evidence before us, in the form of Dr Z's report, is to the contrary.
5. Nothing in the above indicates that we should make a guardianship order for KNS.
6. There is one other important consideration which should not be overlooked. There is no probative evidence before us to rebut the presumption that KNS retains the ability to make decisions for herself about important personal, health and lifestyle issues. Dr Z's unchallenged evidence merely crystallises this position.
7. Whilst that does not strictly prevent the making of an order, we would agree with what was expressed by a differently constituted Tribunal in NNX [2020] NSWCATGD 34, at [51 to [53] that: 51 … our finding that NNX retains decision-making capacity is relevant, as it lends weight to a conclusion that due consideration of the principles in s 4 of the Act that: the freedom of decision and freedom of action of NNX should be restricted as little as possible; she should be encouraged, as far as possible, to live a normal life in the community; her views in relation to the exercise of the Tribunal's functions should be taken into consideration; and she should be encouraged, as far as possible, to be self-reliant in matters relating to her personal, domestic and financial affairs means that her welfare and interests will best be promoted by dismissal of the application and that her prima facie right to self-determination does not need to be altered. 52 Declining to make an order, in those circumstances, may also generally encourage the community to apply and promote these principles. 53 Before we could reach such a conclusion, however, we must also consider and weigh the need to ensure that: the importance of preserving her family relationships and cultural and linguistic environments is recognised; she is protected from neglect, abuse and exploitation; and there is no other proper basis for us to make an order.
8. Here, as we have identified, none of the issues referred to by that Tribunal at [53] of its decision promote the making of a guardianship order for KNS. The Application should be dismissed.

Should we conduct a review of the enduring power of attorney?

1. The Tribunal's jurisdiction in relation to the review of the operation and effect of reviewable powers of attorney is set out in Div 4 of Pt 5 of the Powers of Attorney Act 2003 (NSW) (the "POA Act").
2. The Tribunal may, on the application of an interested person (a person with standing), decide whether to review the making of a reviewable power of attorney: POA Act, s 36(1).
3. In Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516, Slattery J stated [at 80]: On an application for s 36 review such as this the Court must first exercise a discretion under Powers of Attorney Act, s 36(1) to decide whether or not to conduct a s 36 review. In my view the Court does not have to conduct a full review of all documents associated with the operation of the subject power of attorney to do this. Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review. In the circumstances of this case the Court can glean sufficient information to exercise the s 36(1) discretion by undertaking a general survey of what [an attorney] has produced.
4. Even though those comments were made in the context of an application for an attorney to account, they are apposite to our task here.
5. On that basis, we conducted a thorough review of the material lodged by GZX in support of her application, and heard from the parties who were in attendance at the hearing.
6. Commencing with the application made by GZX, we note that there was little contained within it that would warrant a review of the enduring power of attorney. In response to a prompt in the application to indicate "Why do you think a review of the enduring power of attorney is needed?"; GZX responded: Background: With [KNS]'s best interest in mind, I thought the review in December, 2019 established that Audible books subscription was to be supported. However, [UKT] responded insisting that me or the staff can access the free library service [in West Sydney]. The range of books is not there, staff cannot access it, and the library service has ceased with COVID. Even though I continued to carry the cost, [KNS] was not using the books; asked why, is it the cost she replied no; asked is it because [UKT] and I are fighting, and she replied yes. This was important for stimulation before, but has increased with COVID restrictions and visitor limitations and activities etc. December to February was very difficult contacting [KNS] by phone, landline, there were issues at the Home, but also, her Parkinson's Disease had worsened. [UKT] adamant everything is fine, until a month later, April, texting that her phone line had been put out of action by a storm in February and he'd arranged a temporary phone through [telecommunication service]. Very frustrating and worrying in the absence of any open honest communication between us. Then COVID and restrictions, with a letter from CEO recommending facetiming and discouraging visits. [UKT] refused to consider any advanced technology. I purchased a tablet, and phone credit, with app [name of app], hoping to 1) avoid a shortage, 2) have staff trained, and 3) have [KNS] practised, before the inevitable rush. Instead of supporting this, [UKT] wrote that "I had a neck" and discouraged [KNS] from using it. I took the CEO letter to [KNS], proving that it was a recommendation, and she said sorry, and was happy to use it. I persisted with facetiming when I visited, and eventually [KNS] understood the concept of being real time, and started to wave and blow kisses to the family, especially the great grandson, she has looked forward to the times we booked so the staff can assist setting up. This came in handy in August, when [aged care facility] went into lockdown, no visitors. When I transported [KNS] to the skin clinic in July, the wailing (sic) room time was replaying videos of infant antics, always brings a smile. With the increased restriction of a total lockdown, I contacted physio to explore if there were any exercises to improve flexibility for the tablet use, and the TV remote, instead of TV staying on ABC, Teletubbies, mechanic programs; physio said [KNS] had stopped the walks in the last two weeks, because of Parkinson's, and I thought time for a medication review, as the last one was 2014, and a new pill has just been launched. I checked with [KNS], and she was pleased, and I made an appointment- by phone or in person- for November. I also looked at getting in touch with more of [KNS]'s contacts to advise of [name of app] and facetime, including a special friend, [person XY]. Couldn't find the contact anywhere, [KNS] said [UKT] would know, and called him. [KNS] asked for [person XY]'s phone number, he replied he'd find it. Over three phone calls, lasting two minutes, three minutes and two minutes, [KNS]'s speech was faint, her speech briefly froze from Parkinson's, and then she answered [UKT] yes, but in vain; I motioned to [KNS], would I take the call, she passed me the phone. I said hello, and asked for the phone number, and he hung up. He contacted the staff, gave the number of [person XY], but not to give it to me. He also called and texted my daughter asking about the [name of app] app, was she using it. Then, [UKT] organised the staff to call [KNS] using the tablet, facetimed her. I was anxious teaming this, because as with other instances, he could use undue influence on [KNS], and she would refuse to use this, not good for her or my family; alternatively, [UKT] could support this technology. Unfortunately, not, sent a picture of the ear buds/microphone required to compensate [KNS]'s speech, but no response.
7. Clearly, this indicates an attempt at re-agitation of the issues dealt with by the Tribunal on the earlier review and otherwise reflects little more than the ongoing friction between GZX and UKT.
8. We infer that this lack of probative information prompted the Tribunal to direct GZX, along with the other parties, to lodge her evidence which she relies upon prior to the hearing.
9. In response to the directions of the Tribunal, GZX lodged material in the form of various disjointed documents, with a distinct lack of explanation as to their relevance to the matters in issue.
10. She sent emails complaining of her ongoing inability to maintain civil relations with UKT; statements relating to an audiobook subscription for KNS which has been the source of an ongoing dispute between GZX and UKT; KNS's medication profile; an email complaining of UKT's inability to "see the 'big picture'"; an ophthalmology report in relation to KNS from 2015 with associated complaints regarding an alleged failure of ongoing follow up of investigation of KNS's vision on the part of UKT, and narrative and discursive emails as to the way in which GZX's health care appointments are arranged.
11. GZX's chronology of concerns as to financial matters, lodged in response to the directions made 27 November 2020, consisted of little more than a recent potted history of selected aspects of KNS's life, together with unexplained references, apparently to GZX's expenses (e.g. "01 November 20 [KNS] using [streaming service] $15.99 per month, '[television series]', '[documentary]' etc." and "9 December 20 parcel arrived from [telecommunications provider], on chair").
12. Of all that material, the only probative evidence was, in our view, an allegation that UKT had allowed KNS's private health insurance to lapse, supported by an email from [eye care centre] dated 23 November 2020. We will return to that issue, below.
13. In a further submission of 30 December 2020, in response to the directions on 24 December 2020, GZX reiterated her position that KNS authorised refunds of expenses she paid on KNS's behalf and her view that KNS should be given access to a debit card to conduct contactless transactions.
14. In addition to correspondence responsive to individual emails from GZX, UKT sent three substantive responses, dated 16 November 2020, 21 December 2020 and 6 January 2021. In those documents, UKT thoroughly responded to the issues he infers are raised by GZX. In particular, in response to the allegation that KNS's health care had been allowed to lapse, UKT appended a letter from the health care insurer, dated 27 November 2020, which confirmed that KNS's account was paid on a regular basis by direct debit. One such payment covered the period 25 August 2020 to 26 November 2020, encompassing the date of the email from the eye care centre. We were not satisfied that the insurance had been allowed to lapse, on that basis.
15. Nothing in the review of the material as a whole indicated that there was any reason for us to conduct a further review of the enduring power of attorney, particularly where the issues raised by GZX, where they can be identified, amount to nothing novel from the issues raised at the review conducted in December 2019.
16. We declined to review the enduring Power of attorney.

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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: 10 May 2021