MZU [2020] NSWCATGD 14

NCAT Guardianship|2020-01-24

Background

MZU is an 89-year-old man who is currently an inpatient at a public hospital. It is reported that he moved from Southeast Asia to Australia in 1970. It is reported that MZU has provided a number of addresses and it is unclear where he usually resides. It is reported that he has a carer, VUU, and lives with her between five and six days a week. VUU lives in a Housing NSW Property which is due to be sold.
It is reported that MZU has no family in Australia but has children in Southeast Asia.
On 9 January 2020, the Tribunal received applications for guardianship and financial management for MZU from South Western Sydney Local Health District (SWSLHD).

The hearing

At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]
At the commencement of the hearing it became evident that although MZU was able to understand the proceedings with the benefit of the Cantonese interpreter who had been ordered for him, VUU required a Southeast Asian language interpreter. We were able to obtain a telephone interpreter at short notice to assist VUU.

Does SWSLHD have standing to bring the application?

Section 9 of the Guardianship Act 1987 (NSW) ("the Act") provides that a person has standing to bring a guardianship application if he or she is: 1. The person who is the subject of the application; 2. The Public Guardian; or 3. Any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.
Section 25I of the Act provides the same criteria for the application for a financial management order except that the Public Guardian is replaced by the NSW Trustee and Guardian.
In the case of NEJ [2017] NSWCATGD 1 this Tribunal considered the standing of a local health district (LHD) to make an application for guardianship for a person who was an inpatient in hospital.
In NEJ, the Tribunal was satisfied that the protective nature of the guardianship jurisdiction and the statutory functions and purpose of a LHD provided a basis to conclude that the SWSLHD is able to have a genuine interest in NEJ's welfare. In coming to this view, the Tribunal particularly noted the Health Services Act 1997 (NSW) provisions which refer to the LHD's role to provide relief to sick and injured persons through the provision of care, and generally to promote, protect, and maintain the health of the residents of its area.
As set out below, MZU's situation is complex, and he will be exposed to significant disadvantage if his social and domestic affairs are not resolved. The purpose of these applications is to determine whether a guardian and financial manager is needed to ensure that his interests are preserved. In the Tribunal's view, whilst the SWSLHD primary interest is to address MZU's health, a genuine interest in his welfare can reasonably extend to ensuring that he is not disadvantaged socially and domestically.
On this basis, the Tribunal found that the SWSLHD has standing to make the applications for guardianship and financial management.

What did we have to decide?

The questions which had to be decided by were:

Is MZU someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?
Should the Tribunal make a guardianship order and if so, what order should be made?
Who should be the guardian?
How long should the order last?

Is MZU someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

Section 14 of the Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is "a person in need of a guardian". A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person": s 3(1) of the Act. A person with a disability is a person who is: 1. intellectually, physically, psychologically or sensorily disabled; 2. of advanced age; 3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or 4. otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: s 3(2) of the Act.
We received a neuropsychology report from Dr Z in which he detailed findings from assessments conducted on 23 December 2019, 30 December 2019 and 8 January 2020. Dr Z reported that MZU was admitted to hospital on 1 December 2019 having been found lying in a bathtub, likely for hours, by his flatmate. He was admitted with an upper gastrointestinal bleed. This admission followed an admission from 15 November 2019 to 22 November 2019 for the management of an upper gastroenterological bleed secondary to a duodenal ulcer. During that admission concerns were raised about MZU's cognition and ability to care for himself.
Dr Z said that current cognitive assessments demonstrated widespread impairments across most domains consistent with vascular dementia. Dr Z said that MZU's cognitive impairment impairs his ability to make informed decisions about his accommodation, lifestyle needs and financial affairs.
Ms Y, occupational therapist, provided a report to the Tribunal on 23 January 2020. Ms Y reported that MZU requires ongoing prompting from all staff for appropriately attending to his toileting and personal care. This was also observed during the course of the hearing. He requires supervision with mobility and transfers and demonstrated a rigidity of thinking in problem solving tasks. Ms Y said that MZU's high level of care needs require 24-hour supervision and care.
We received a health professional report from Dr X dated 2 January 2020 which reported that as a result of moderate dementia MZU is incapable of making informed decisions about his accommodation, health care, medical and dental treatment, services and finances. This was consistent with the evidence at the hearing of Dr W, who said that as a result of cognitive impairment, MZU lacks insight and is unable to manage his health care and other needs.
We were satisfied that MZU has a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

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

The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order: 1. the views (if any) of: 1. the person; 2. the person's spouse; 3. the person's carer; and 1. the importance of preserving the person's existing family relationships; 2. the importance of preserving the person's particular cultural and linguistic environments; and 3. the practicability of services being provided to the person without the need for the making of such an order.
These matters have no hierarchy or weighting, and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

The views of MZU

MZU was primarily concerned about where he would live upon discharge. He said that he already has a carer but needs accommodation. He does not want to be placed in an aged care facility. He said that he would refuse accommodation in such a place.

The views of the carer

VUU told us that MZU looked ok to her. She said that the major problem is where he will live as her home is about to be sold and she needs to find her own accommodation. She was concerned that if a guardian was appointed that she would be dismissed from her role as carer. She agreed that a decision is needed about where MZU will be placed upon discharge and said that he would definitely refuse to enter residential aged care.

The views of the treating team

Ms V, social worker, represented the treating team at the hearing and provided a written report prior to the hearing. Ms V said that MZU has three different addresses listed with the hospital and it is unclear where he actually resides. VUU receives a carers allowance and cares for him five to six days a week. She supports him with shopping, domestic tasks and meals. He pays her $100 a week in rent.
Ms V said that MZU is a high falls risk and lacks insight into toileting concerns. He wets the floor, pants and socks and returns to bed in soiled clothing. On his last discharge a referral was made for community services to support MZU with personal care and domestic tasks, however, MZU declined the services. MZU is adamant that he will not enter residential aged care despite needing a high-level of care and supervision and being homeless. He told Ms V that he believed people "pinched" residents in aged care.
Ms V said that a guardian needs to make decisions about accommodation and health care. MZU has been admitted to hospital with two serious gastrointestinal bleeds within a short period of time and needs someone to make decisions about his medical treatment. As he has declined services in the past, a guardian will need a services function if he is placed in the community. MZU is considered a high absconding risk and the guardian is likely to need the authority to call upon others to implement accommodation decisions.

Can services practicably be received without an order?

We were satisfied that services cannot practicably be received without an order in MZU's circumstances.

Will an order impact the preservation of MZU's family relationships?

This was not relevant to MZU's circumstances.

Will an order impact MZU's cultural and linguistic environment?

We were not satisfied that MZU's cultural and linguistic environment would be impacted by an order.

What order should be made?

We decided to make a guardianship order with the functions of accommodation (including the authority to call upon others), medical and dental treatment, healthcare and services.

Who should be the guardian?

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.
As there is no private person available and willing to be appointed as guardian, the Tribunal appointed the Public Guardian.

How long should the order last?

An initial guardianship order can be made for a period of up to one year from the date on which it was made. We made the order for twelve months.

What did the Tribunal have to decide?

The questions to be considered by the Tribunal are:

Is MZU incapable of managing his affairs?
Is there a need for another person to manage MZU's affairs and is it in his best interests for a financial management order to be made?
If so, who should be appointed financial manager?

Is MZU incapable of managing his affairs?

In Re D [2012] NSWSC 1006, White J assessed the history of case law in relation to financial management and noted that initially the issue of capability was approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Court now assesses the person's own capacity to do what they are proposing to do [58]. White J used a "rational appreciation" of assets test to determine a person's capability to manage his or her affairs. He adopts the reasoning of Barrett J in P v R [2003] NSWSC 819 who said that the task of the Court in these circumstances: … is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person's property…the requisite judgment is to be made in the light of objective physical facts concerning the relevant person's property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter [26].
In PB v BB [2013] NSWSC 1223, Justice Lindsay confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at [7]: Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack "mental capacity" or be "mentally ill"; or (b) particular reasons for an incapacity for self-management.
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.
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].

The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86).
The medical, neuropsychological and occupational therapy reports referred to above all provided professional evidence that as a result of cognitive impairment associated with dementia, MZU is incapable of managing his affairs. Ms V told us that MZU had not been able to liaise with Centrelink since his hospital admission and had not been able to arrange a replacement for a lost key card.
MZU said that he receives a pension and believes that he is capable of managing his affairs and paying rent. He said that he does not go into the bank and does not know how to use an ATM machine. He said that he generally asks a friend at a coffee shop to withdraw money for him. VUU told us that MZU spends whatever money that he has so there is nothing to manage. She said that since he had been hospitalised no one had been able to access MZU's accounts and he has lost his keycard.
Ms Y reported in her occupational therapy that MZU said that he gives people $220 at times and retorted "you're being stingy, it's not so much" when questioned. He was unable to provide a reason as to why he had given money away.
We were also satisfied that as a result of cognitive impairment MZU would be unable to complete an income and assets assessment form and would be incapable of entering into an accommodation agreement with an aged care facility or any alternate accommodation provider. He is incapable of arranging a replacement key card or putting money aside so that bills can be paid.
We were satisfied that MZU is incapable of managing his financial affairs.

Is there a need for a financial management order and is it in MZU's best interests for a financial manager to be appointed?

It was clear that there is a need for a financial manager to be appointed. MZU lacks permanent accommodation and there is a need for a financial manager to either complete the income and assets forms and enter into an agreement with an aged care facility, or to enter into a residential tenancy agreement. If MZU does return to independent living in the community a financial manager will have to arrange payment for support services, particularly as MZU has declined services in the past.
Since he has been in hospital MZU has been unable to access his bank accounts. He has been unable to liaise with Centrelink or banking institutions to gain access to funds.
It is evident that MZU is vulnerable to exploitation. He told us that he does not know how to do his own banking and generally depends upon a friend from a coffee shop to withdraw money on his behalf. He thought nothing of giving $220 to others although his only income is a disability support pension and he has his own costs (including rent) to pay. Ms V told us that MZU has reported that he has withdrawn large sums of money ($3000) to give to his friend's wife to drive him to cataract surgery - he could not identify the person and MZU has not had cataract surgery. Ms V told us that MZU has offered $50 to nursing staff at the public hospital to lay down in bed with him.
We were satisfied that there is a need to appoint someone to manage MZU's affairs and that it is in his best interests for a financial management order to be made.

Who should be appointed as financial manager?

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.
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.
There was no private person proposed to manage MZU's affairs.
The Tribunal was satisfied that the estate of MZU should be committed to the NSW Trustee and Guardian.

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: 12 June 2020

Trustee and Guardian Act 2009(NSW)

McD v McD (1983) 3 NSWLR 81 NEJ [2017] NSWCATGD 1 P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re D [2012] NSWSC 1006 Category: Principal judgment Parties: 001: Guardianship Application

At a glance

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Judgment (20 paragraphs)

Legislation Cited (5)

Cases Cited (7)