In November 2017, esteemed mathematician Mr MKQ was diagnosed with glioblastoma multiforme, an aggressive and incurable brain tumour. He is 53 years of age. Since his admission to a cancer treatment centre at a public hospital on 14 January 2018, Mr MKQ's condition and mental function has rapidly deteriorated.
Mr MKQ is single. Prior to his admission he was living alone in Sydney's inner city. He has a close circle of friends, which include Ms EZL, the applicant in these proceedings.
On 9 January 2018, Ms EZL made an application to the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT) seeking guardianship and financial management orders in respect of Mr MKQ (the Application). The Application was supported by friends of Mr MKQ. The Public Guardian opposed the making of a guardianship order, contending need for an order is not established.
For the reasons that follow we have decided to make a guardianship and financial management orders in respect of Mr MKQ and to appoint Ms EZL as Mr MKQ's guardian and manager.
[2]
Can a guardianship order be made?
All parties to these proceedings, together with the cancer treatment centre's health practitioners who currently have care of Mr MKQ, agree that Mr MKQ is a "person in need of a guardian": s 3(1) of the Guardianship Act 1987 (NSW) (the Act).
Ms EZL and a friend of Mr MKQ who attended the hearing, Mr Z, stated that they have observed Mr MKQ's mental function decline rapidly since diagnosis of his condition. On their account the decline has been especially pronounced in the weeks before the hearing.
Those observations are consistent with the opinion expressed by trainee oncologist, Dr Y. She reported to the Tribunal that for about two weeks from 20 December 2017, Mr MKQ was in a stable condition, his main problem being short-term memory loss and impaired decision-making capacity. However, she stated that in the past week Mr MKQ's physical condition has declined rapidly. She reported that on the morning of the hearing when she assessed Mr MKQ, his speech was minimal, he was unresponsive and he had no decision-making capacity. She stated that Mr MKQ's condition is incurable and his condition will deteriorate further.
There is no evidence to contradict the available medical evidence and the reported observations of Mr MKQ's friends. We are satisfied that Mr MKQ is a "person in need of a guardian". Having made that finding, the key issues that remain to be determined are whether a guardianship order should be made, and if so, which functions should be conferred under that order and who should be appointed as Mr MKQ's guardian(s).
[3]
Should a guardianship order be made?
In considering whether or not to make a guardianship order, s 14(2) of the Act instructs that we shall have regard to:
14 Tribunal may make guardianship orders
(1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person.
(2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to:
(a) the views (if any) of:
(i) the person, and
(ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and
(iii) the person, if any, who has care of the person,
(b) the importance of preserving the person's existing family relationships,
(c) the importance of preserving the person's particular cultural and linguistic environments, and
(d) the practicability of services being provided to the person without the need for the making of such an order.
In addition, in exercising the power conferred by s 14(1) of the Act to make a guardianship order, we must observe the statement of general principles listed in s 4 of the Act.
Mr MKQ's views on whether a guardian should be appointed are unknown. He does not have a spouse or carer, as those terms are defined by the Act. He migrated to Australia as a young man and his only known family members are two cousins who apparently live overseas.
In the immediate future, a number of decisions are likely to be required to be made on behalf of Mr MKQ. They include the selection of an appropriate residential care facility, and the making of health care plans, including palliative care.
Ms Shapiro for the Public Guardian opposes the making of a guardianship order. First, she points out that Mr MKQ enjoys the support of friends, and there appears to be no dispute among them that Ms EZL is the person best placed to make decisions on his behalf. Second, she asserts that all decisions that need to be made on behalf of Mr MKQ have been made, importantly that he move from the cancer treatment centre to a residential care facility. She asserts that therefore a guardianship order cannot be made as need for an order has not been established. She points out that if consent to medical or dental treatment is required, as permitted by pt 5 of the Act, consent could be given by Ms EZL, a close friend of Mr MKQ acting as "person responsible", as permitted by pt 5 of the Act. Third, she points out that if in the future a decision needs to be made on behalf of Mr MKQ which could not be made on an informal basis, it would be open to Ms EZL, or anyone with a genuine concern for the welfare of Mr MKQ, to make a further application for a guardianship order. Fourth, Ms Shapiro asserts that, declining to make a guardianship order is consistent with the principles contained in s 4 of the Act, specifically the principle that Mr MKQ's freedom of decision-making and action should be restricted as little as possible.
[4]
Consideration
For the following reasons we are unable to agree with the submissions made for the Public Guardian.
First, the Act does not require, as the Public Guardian suggests it does, that "need" for an order be established before the power to make a guardianship order can be exercised. This would be to interpolate an additional step, for which there is no warrant in the legislation, in the process of making a guardianship order. Once it is established that the subject person is a "person in need of a guardian", as that term is defined by the Act, the only constraint on the exercise of the power to make a guardianship order is that the Tribunal must have regard to the matters listed in s 14(2) of the Act and observe the principles contained in s 4 of that Act. The Act defines a "person in need of guardian" to mean a "person who, because of a disability, is totally or partially incapable of managing his or her person": The term is something of a misnomer because its focus is on whether the subject person has capacity to manage their person because of a disability, not whether there is a need for the appointment of a guardian.
Second, in the circumstances of this case, the Public Guardian's argument that declining to make a guardianship order is consistent with the "least restrictive option" cannot be accepted. As the Public Guardian points out, the Act instructs that it is the duty of everyone exercising functions under the Act with respect to persons who have disabilities, to observe, among other things, the principle that "the freedom of decision and freedom of action of [persons who have disabilities] should be restricted as little as possible": s 4(b). The flaw in the argument advanced by the Public Guardian is that it assumes that if the status quo continues and a guardian is not appointed, Mr MKQ's decision-making autonomy will be preserved. The argument fails to acknowledge that, given the nature and severity of Mr MKQ's decision-making disability, he is not capable of making decisions of significance on his own behalf and his condition will not improve. Without a guardianship order, decisions will continue to be made on his behalf. The issue is not whether those decisions will be made by another person but whether will be made by a person appointed as a guardian under the Act.
Third, the contention that, because there is agreement that a move to residential care is appropriate, it is unlikely that any decisions of note will need to be made on behalf of Mr MKQ in the foreseeable future, cannot be accepted. The evidence reveals that, in the immediate future, a series of decisions are likely to be required to be made on behalf of Mr MKQ. These include the selection of a residential care facility and the approval of health care plans, including consideration of palliative care options.
Fourth, we disagree with the contention that if decisions need to be made on behalf of Mr MKQ, they will be able to be made on an informal basis by Mr MKQ's friends. Whether that proves to be the case will depend upon the position taken by the relevant accommodation and/or service provider. There is strong anecdotal evidence that many accommodation providers are now unwilling to deal with substitute decision-makers unless they hold some form of formal appointment.
The balance of factors listed in s 14 of the Act favour the making of a guardianship order. In our view, it is in Mr MKQ's best interests, that there be clarity surrounding the status of his substitute decision maker(s), so that any decision that might need to be made can be made in a timely fashion. Facing the final stages of his life, it is in Mr MKQ's interests that any necessary decisions can be made promptly and without the risk that the decision-making process is delayed. A decision to make a guardianship order is consistent with the statutory instruction that in exercising our powers under the Act, the welfare and interests of Mr MKQ should be given paramount consideration: s 4(a) of the Act. For these reasons we have decided to make a guardianship order.
[5]
Who should be appointed as Mr MKQ's guardian?
Section 17 of the Act states:
17 Guardians
(1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that:
(a) the personality of the proposed guardian is generally compatible with that of the person under guardianship,
(b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and
(c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.
…
Ms EZL proposes that she act as Mr MKQ's guardian. She and Mr MKQ have been close friends for over three decades.
Mr MKQ's friends who attended the hearing support the appointment of Ms EZL. Mr Z claimed that Ms EZL has done a great job in getting Mr MKQ's affairs in order. Another friend, Ms X, who describes Mr MKQ as like a "big brother", said she had every confidence in Ms EZL's ability to act as guardian for Mr MKQ. She argues that this is what Mr MKQ would have wanted, pointing out that on admission to hospital, Mr MKQ nominated Ms EZL as his next-of-kin.
We are satisfied that the matters listed in paras (a), (b), and (c) of s 17(1) of the Act are established. In addition, we are satisfied that Ms EZL is an appropriate person to discharge the important role of guardian and it is in Mr MKQ's interests that this appointment be made.
[6]
What functions should the guardian(s) be given?
In the foreseeable future, it is possible, if not probable, that decisions in relation to accommodation, services, health care, and medical and dental treatment will need to be made on behalf of Mr MKQ. We have decided to confer these functions on Ms EZL.
At the hearing, Ms EZL stated that Mr MKQ has consistently stated that he would like to donate his body to medical science. It may be that because he now lacks decision-making capacity, that wish cannot be realised. We are unable to express a view on this issue and Ms EZL may need to obtain legal advice.
[7]
What should be the term of the order?
We have decided to make a guardianship order for a period of 12 months. The order is not reviewable at the end of this period.
[8]
Can a financial management order be made?
Section 25G of the Act provides that the Tribunal may make a financial management order in respect of Mr MKQ only if we have considered his capability to manage his own affairs and are satisfied, to the relevant civil standard, of three matters:
1. That Mr MKQ is not capable of managing his affairs.
2. That there is a need for a person to manage those affairs on behalf of Mr MKQ.
3. That it is in Mr MKQ's best interests that the order be made.
[9]
Is Mr MKQ not capable of managing his affairs?
In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J commented at [308] and 309] on the meaning of the phrase "capable of managing those [the subject person's] affairs" in s 25G(a) of the Act:
[A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.
In considering whether the person is "able" in this sense, attention may be given to: (a) past and present experience as a predictor of the future course of events; (b) support systems available to the person; and (c) the extent to which the person, placed as he or she is, can be relied upon to make sound judgements about his or her welfare and interests: CJ v AKJ [2015] NSWSC 498 at [38].
It is not in dispute that Mr MKQ is now unable to make any decisions relating to the management of his estate.
[10]
Is there a need for a person to manage his affairs on behalf of Mr MKQ and is it in Mr MKQ's best interests that a financial management order be made?
These two issues are intertwined. As Mr MKQ did not put in place any arrangements for the management of his estate prior to losing decision-making capacity and his loss of capacity was sudden and unexpected, there is now a need for another person to put his affairs in order. It is likely that a number of steps in relation to the management of Mr MKQ's estate will need to be taken in the short-term, including applying for social service benefits or some other form of income support and making arrangements in relation to his residential property, including the payment of accounts.
Unless a person is appointed to manage Mr MKQ's estate, there is a risk that his accommodation options will be limited. It is in his best interests that his available funds can be used to make the remaining stages of his life as comfortable as possible. We find that that there is a need for a person to manage Mr MKQ's estate and that it is in Mr MKQ's best interests that a financial management order be made.
[11]
Should a financial management order be made?
As the pre-conditions to making a financial management order are satisfied, the power to make a financial management order can be exercised. It will be a rare case where the pre-conditions to making a financial management order are satisfied, the making of the order is not opposed by the subject person and nonetheless, the balance of factors weigh against the exercise of the discretion to make a financial management order. This is not such a case. We have decided that the power to make a financial management order should be exercised.
[12]
Who should be appointed to manage Mr MKQ's estate?
Ms EZL proposes that she be appointed as Mr MKQ's manager. Her appointment is supported by the friends of Mr MKQ who attended the hearing. For broadly the same reasons as discussed above in relation to Ms EZL's appointment as guardian, we have decided to appoint her to act as manager of Mr MKQ's estate.
[13]
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
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Decision last updated: 23 April 2018