MKT [2016] NSWCATGD 37

NCAT Guardianship|2016-11-10

What the Tribunal decided

The Tribunal revoked the appointment of enduring guardian and the enduring power of attorney made by Mr MKT appointing Mr GUD.
The Tribunal dismissed the application for a guardianship order.
The Tribunal appointed the NSW Trustee and Guardian as financial manager for Mr MKT with the order to be reviewed in one year. The Tribunal notes to the NSW Trustee and Guardian its recommendation at the end of these reasons.

Background

Mr MKT is a 65-year-old man who currently lives at an aged care facility in Regional NSW. In 2008, Mr MKT appointed his friend Mr GUD as enduring guardian and attorney. Mr MKT subsequently was diagnosed HIV-positive with a major decline in his physical and cognitive status. In 2014, he went to live at the aged care facility. With treatment, his condition has improved considerably but there was now contention about a range of issues in his life and there had been a deterioration in the relationship of Mr MKT and Mr GUD.
Mr MKT wanted to move from the aged care facility to live more independently. His access to the community was currently very restricted. Ms Z, care manager at the aged care facility, told the Tribunal that following discussions with Dr Y from the aged care assessment team, Mr MKT is only allowed out with supervision except for a short walk each day.

Review of appointment of enduring guardian

The Tribunal could revoke the appointment of enduring guardian if the guardian requested this or it was in the best interests of Mr MKT.
Mr GUD was clear that he did not wish to continue as Mr MKT's enduring guardian and there have been tensions between the two friends while Mr GUD has had this role. Mr MKT was asking the Tribunal to revoke the appointment.
The Tribunal accepted that it was in Mr MKT's interests that the Tribunal revoke the appointment. If Mr MKT needs a guardian, this could be provided through a guardianship order.

What did the Tribunal have to decide?

The Tribunal had to decide: 1. Does Mr MKT have a disability which prevents him from being able to make some important life decisions? 2. Should the Tribunal make a guardianship order and if so, what order should be made? 3. Who should be the guardian? 4. How long should the order last?
In deciding under (2) above whether to make a guardianship order, the Tribunal needed to take account of all relevant factors, including those listed in s 14(2) of the Guardianship Act 1987 (NSW). These relate to the views of Mr MKT, any spouse and unpaid carer, preserving family relationships, preserving cultural and linguistic environments and the practicability of services being provided without a guardianship order. The Tribunal could be guided by the principles in s 4 of the Guardianship Act which cover some of the same issues as s 14(2), but also emphasise minimum intrusion on a person's freedom, encouragement of self-reliance and a normal life in the community, protection from neglect, abuse and exploitation and the person's interests being paramount. The Tribunal ultimately has a broad discretion whether to make a guardianship order (IF v IG & Others [2004] NSWADTAP 3).

Guardianship - the evidence

In the hearing, Dr X, sexual health doctor from the Local Health District, told the Tribunal that Mr MKT had been found to be HIV positive in a very advanced stage with AIDS. This included significant neurocognitive problems. However, Mr MKT had been compliant with treatment and made a remarkable recovery so that physically he was getting back to normal. His neurocognition had also slowly improved but the assessment of Ms W, psychologist, showed ongoing problems. There remained a question about how best to support Mr MKT not to get into trouble due to his neurocognitive deficits. Dr X favoured providing Mr MKT with more independence whilst maintaining his treatment regime. Mr MKT may be obliged under the Public Health Act 2010 (NSW). to tell any sexual partners about his HIV status prior to intercourse. In view of Mr MKT's difficulties with retaining information, Dr X had concerns about his capacity to understand this obligation.
Ms W, from ADAHPS NSW HIV Integrated Care, carried out a neuropsychological assessment in March 2016. She reported that Mr MKT was requesting greater freedom to leave the aged care facility independently to visit friends and stay overnight with them. Mr MKT had improved since previous cognitive assessment. In various areas of cognitive function, he showed no deficits. However, he showed some impairments in sustained attention, cognitive processing speed, recall of structured and unstructured information, visual recall, confrontation naming ability, abstract visual reasoning, and verbal fluency. His lack of improvement in verbal learning and recall raised the possibility of another process unrelated to his HIV status such as small vessel disease or Alzheimer's disease.
Mr MKT's memory impairment was likely to continue impacting on his daily functioning and he would require ongoing close support and supervision to manage his activities of daily living and ensure safety. If he was to have increased independence with outings, strategies should be put in place to ensure his safety and good medication adherence, e.g. carrying a mobile phone. Ms W also recommended strategies to address Mr MKT's problems with memory and verbal difficulties including putting information in written form and maintaining a regular routine.
Ms W also reported that there had been one recent occasion where Mr MKT had left the aged care facility and gone to a supermarket where he had caused some trouble.
In the hearing, Ms Z, care manager at the aged care facility, told the Tribunal that she has known Mr MKT since he came to the facility. He now has low care needs. Mr MKT only needs minimal assistance with reminders for activities of daily living. Ms Z initially said that Mr MKT needs support with taking his medication at the right times but also acknowledged that he knows when his twice-daily medications are due and is very regimented about this.
Mr MKT was clear to the Tribunal that he feels capable to look after himself and make decisions about his lifestyle and where he goes. He wants to move to more independent living and is interested in moving to an over 55s facility that is being built next door to the aged care facility. His plan was that he could then go back and pays for lunches at the facility. He would keep the same doctors.
Ms Z said that, fi Mr MKT moved next door it may be feasible for him to come back for meals. She could arrange an aged care assessment in relation to the idea of Mr MKT moving out. She could then liaise with service providers to arrange services that may come out of the assessment.
Mrs TBE's opinion was that Mr MKT was being over managed leading to acrimony for him. His current accommodation was unsuitable. If he did move out, there would need to be a transition. Mr GUD assists him by taking him to appointments and Mr MKT was committed to maintaining appointments with Dr X.
Mr GUD said that, while he no longer wished to be guardian or attorney, he would continue to be there to assist Mr MKT. Mr MKT said that Mr GUD would continue to be a prime consulter for him.
Dr Y, psychiatrist from the aged care team, saw Mr MKT on 6 May 2016 and his notes said as follows. Dr Y was seeing Mr MKT in relation to whether he was cognitively able to live independently. Dr Y could not answer this in a single consultation. He referred to the assessment of Ms W. Mr MKT listed people who had been his sexual partners and said that he did not intend to notify them of his HIV status. Nor would he disclose this to any future partners. Facility staff reported that Mr MKT had been out on his own from the facility once. In view of the risk issues, Dr Y did not think that Mr MKT should be allowed to leave the facility. Given his views on not disclosing his HIV status, Mr MKT was a risk to the general public and fellow residents. Dr Y contacted Dr X but he was on leave. Dr Y saw a "coercion order" as required.
When the Tribunal spoke with Dr X, he said that his team was responsible for any action under the Public Health Act.
The Tribunal noted that the Public Health Act, s 79, makes it an offence for a person suffering from a sexually transmitted infection not to inform a sexual partner of this prior to intercourse. There is a defence if the defendant took reasonable precautions to prevent the transmission of the infection.
Under the Public Health Act, HIV is a "category 5 condition". The Public Health Act allows an authorised medical practitioner to make a public health order where a person has HIV and "the way the person behaves may, as a consequence of that condition, be a risk to public health". A public health order may require a person to refrain from specified conduct, undergo specified treatment, undergo counselling, submit to supervision or undergo specified treatment at a specified place. The order also may allow the person to be detained at a specified place. Such an order requires confirmation through a hearing of the Civil and Administrative Tribunal. It is an offence not to comply with a public health order. (Public Health Act, Part 4 Division 4, in particular ss 62 - 64 and 70)
Dr X said that he had spoken to the head of the relevant advisory panel and a public health order could be sought if necessary. However, there was no current need for this. If Mr MKT continues to maintain his HIV status where it is now, there is negligible risk.
So far as Dr X was aware, Mr MKT is not having intercourse at present. There is the s 79 obligation for a person with HIV to tell a sexual partner about this before having intercourse. There may be a defence if the person is using condoms or carrying a non-detrimental viral load.
In the hearing, Mr MKT denied that he currently had sexual partners and said that he had none in the last five years. He would disclose his HIV status to any sexual partner.
Mr GUD said that he had no concerns about Mr MKT now being a risk to other people.
A representative from the Public Guardian submitted that there was no need for a guardian at this stage. An application could be made again later if necessary.
He also noted that a disability advocate and service provider at regional NSW may be able to provide an advocate for Mr MKT. Mr MKT said that he is already in contact with that service.

Guardianship - decision

Clearly, despite his considerable recovery, Mr MKT still has a cognitive impairment, though the Tribunal was less clear about whether this impairment prevents him from being able to make important life decisions in the context of the supports that he has around him. The Tribunal ultimately did not make a decision on this issue as, in any event, it would not have been satisfied that it should make a guardianship order in the current circumstances.
Mr MKT has been leading a restricted lifestyle at the aged care facility and very much wants more freedom including to move out of the facility into much more independent living. Ms Z was clear that she could follow through on an aged care assessment in relation to this and the organising of any services that were recommended.
There have been concerns, in particular from Dr Y, in relation to the risk that Mr MKT might pose to sexual partners if he had more freedom. However, Dr Y formed his views without the benefit of being able to discuss the issues with Dr X. In light of the evidence of Dr X, the risk to any potential sexual partners is negligible so long as Mr MKT maintains his current HIV status. In any event, there is a regime under the Public Health Act to impose any necessary restrictions on Mr MKT to avoid risks of passing on HIV to sexual partners. Dr X was very conscious of this regime and had clearly been taking a thoughtful approach to whether it should be invoked.
Guardianship is not focused on the protection of the community. Guardianship is focused on the interests of the individual who is under guardianship. See the principles in s 4 of the Guardianship Act. Sometimes, guardianship is used to prevent a person causing harm to others and thereby getting into trouble themselves. Sometimes, guardianship is used to support a person to comply with conditions on bail or parole so as to avoid the person getting into trouble by breaching the conditions. However, the focus must remain on the interests of the person and any benefit to other people is an effect rather than the purpose of guardianship.
Here, there is a specific legislative regime for any necessary protection of other people and that should be the primary basis for meeting any risk to potential sexual partners of Mr MKT. In circumstances where Dr X has not seen the need to resort to that regime, the Tribunal was clear that guardianship was not needed as a way to ensure Mr MKT does not harm sexual partners.
In these circumstances, the Tribunal was not satisfied that it should interfere with Mr MKT's decision-making rights by making a guardianship order. Hopefully, decisions about giving Mr MKT more freedom, including through considering a move out of the aged care facility, can be made by Mr MKT based on the advice of the aged care team, Dr X, and his other health and care providers, plus advice from his friend Mr GUD.
If decisions cannot be worked through in Mr MKT's interests without guardianship, a fresh application can be made to the Tribunal.

What did the Tribunal have to decide?

The Tribunal had to decide: 1. Is Mr MKT incapable of managing his affairs? 2. Is there a need for another person to manage Mr MKT's affairs and is it in his best interests for a financial management order to be made? 3. If so, who should be appointed financial manager?
A person's capability to manage his or her affairs is considered in the context of the person's particular circumstances and the purpose of the Guardianship Act as reflected in the section 4 principles. The Tribunal looks at whether the person is "reasonably able to manage his or her own affairs in a reasonably competent fashion". A focus is whether the person is able to make and implement decisions about his or her 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". The availability of family or community support is relevant. The concept of capability focuses on the reasonably foreseeable future as well as the present time. A disability may underpin incapability but the focus of the Tribunal is the person's functional capacity to manage his or her affairs, not the disability. (P v NSW Trustee and Guardian [2015] NSWSC 579 at [301], [307]-[310]; Re X [2016] NSWSC 275 at [29])

Financial management - the evidence

In view of his cognitive impairment as outlined in the report of Ms W, it could be expected that Mr MKT would have some difficulties with managing his financial affairs. Dr X also expressed the opinion that Mr MKT would benefit from financial management.
Mr MKT has an accommodation bond of $400,000 held by a private healthcare company. He has an $80,000 term deposit and $10,000 in another account. He receives a Centrelink pension.
In the hearing, Mr MKT showed a good awareness of the basics of his assets and pension income and the kinds of expenses that he may have if living independently.
Mr MKT is keen to move and in particular has been focused on the over 55s facility next to his aged care facility. He told the Tribunal a $400,000 bond would be payable there, though Mrs TBE said that the bond would in fact be $450,000.
The Tribunal raised with Mr MKT what might happen if he subsequently moved out of the new home but he showed difficulty grappling with this question.
Mr MKT was strongly opposed to the idea of a financial management order.
Mr GUD said that if Mr MKT moved he would need furniture and would want to buy a car. Mr MKT spends about $200 a month on newspapers and has managed to obtain a credit card. He would be on a tight budget.
Mrs TBE said that Mr MKT's expenses were currently greater than his income and she had pointed out to him problems about being able to afford the newspapers and bills for services if he moved to more independent living. While she felt that Mr MKT could give her instructions in relation to property transactions, she saw a problem with any period of transition to a new home and financial arrangements. She felt that he was vulnerable.
Mr GUD raised an alternative possibility for paying for community-based accommodation. He said that a retirement fund related to Mr MKT's previous employment may be willing to contribute $300,000 towards purchase of a home on condition that Mr MKT also make a contribution of perhaps $100,000. However, the property and Mr MKT's contribution would then belong to the retirement fund. The fund would also then pay some outgoings and sustenance. Mr GUD could assist in pursuing this option.

Financial management - decision

Mr MKT wishes to pursue moving out of the aged care facility. If this occurs, there will be issues of a refund of his large accommodation bond and considering the financial arrangements for accommodation options, including those raised by Mr MKT and Mr GUD in the hearing. Wherever he is living, Mr MKT also needs to establish a budget. The continuing cognitive deficits identified by Ms W would impede Mr MKT in these areas of financial management. Ms W reported that Mr MKT showed impairments in sustained attention, cognitive processing speed, recall of structured and unstructured information, visual recall, confrontation naming ability, abstract visual reasoning, and verbal fluency.
Potential difficulties were well illustrated by the difficulty Mr MKT showed in the hearing in grappling with the idea that he may at some stage want to move on from a new home.
The Tribunal was satisfied that, in the context of his current financial circumstances, Mr MKT is incapable of managing his financial affairs and needs someone else to do so.
Mr MKT has had Mr GUD as his enduring attorney but that arrangement was now terminated. It was in Mr MKT's best interests to have a financial management order in particular to ensure that the potential changes to his accommodation and financial arrangements are worked through carefully.
The Tribunal explored with Mrs TBE, Mr MKT, and Mr GUD whether there was any alternative financial manager available other than the NSW Trustee and Guardian. The Tribunal accepted the evidence of Mrs TBE and Mr GUD that no one was available. The Tribunal appointed the NSW Trustee and Guardian.
The Tribunal recommends that the NSW Trustee and Guardian consult with Mr MKT, Mr GUD, Mrs TBE, and Ms Z in setting up a financial management system that balances protection against the intrusion Mr MKT will feel if he does not have major input to financial decisions and some control over his week to week spending.

Review of the financial management order

The Tribunal was very conscious of the unwanted intrusion of the order and that Mr MKT's financial affairs may be much more settled once any issues about a move have been resolved. Also, if he had to have a financial manager, Mr MKT very much wanted it to be someone other than the NSW Trustee and Guardian. In these circumstances, the Tribunal decided that it should review the order in one year.
Also, if Mr MKT can find someone in his life who is willing and able to act as financial manager, he can immediately ask the Tribunal to consider this.

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: 23 December 2016

At a glance

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Judgment (11 paragraphs)

Legislation Cited (3)

Cases Cited (2)