NDF [2017] NSWCATGD 34

Background

1. Mrs NDF is an 86-year-old woman who has been diagnosed with advanced Alzheimer's disease with some indications of fronto-temporal dementia. Mrs NDF is a permanent resident at an aged care facility in southern Queensland. Prior to her admission to that facility, Mrs NDF lived in her own home in the care of her daughter, Mrs SKC, and her family. Mrs NDF has two other daughters, Mrs BZT and Ms DGF.
2. This was the fifth hearing in approximately 16 months concerning Mrs NDF. Previous hearings were as follows: 1. At its hearing on 4 April 2016, the Tribunal made a guardianship order for Mrs NDF, under which the Public Guardian was appointed for one year with the access function. On that date, the Tribunal adjourned an application for a financial management order for Mrs NDF and an application for review of her power of attorney. 2. On 6 June 2016, the Tribunal decided to conduct a review of the operation and effect of an enduring power of attorney made by Mrs NDF dated 2 April 2013, under which Mrs BZT and Mrs SKC were appointed jointly and severally as her attorneys. The Tribunal ordered that the appointment be changed to a joint appointment of the attorneys. 3. On 23 September 2016, the Tribunal heard a further application from Ms DGF and Mrs BZT and made a financial management order for Mrs NDF, under which the management of her estate was committed to the NSW Trustee and Guardian. 4. On 7 December 2016, the Tribunal heard a request for review of the guardianship order made on 4 April 2016, that request having been made by Ms DGF. It also brought forward the end-of-term statutory review of the guardianship order which was due to occur on or before 4 April 2017. The Tribunal renewed and varied the guardianship order for a further period of one year expiring on 7 December 2017. It reappointed the Public Guardian as guardian and added the accommodation function, so that the Public Guardian was authorised to make decisions about Mrs NDF's access to others and the terms of that access and decisions about where she should reside.
3. On 18 May 2017, the Tribunal received from Mrs BZT and Ms DGF an application requesting a further review of the guardianship order.
4. At the commencement of this hearing, on 21 August 2017, I indicated to the parties that it was appropriate for the end-of-term review of the guardianship order, due prior to 7 December 2017, to be brought forward to this hearing. There was no objection to that course of action. I ordered accordingly.
5. It follows that the purpose of the hearing at Sydney on 21 August 2017 was to conduct the statutory end-of-term review of the guardianship order last made on 7 December 2016 and to hear the further request made by Mrs BZT and Mrs DGF for review of that guardianship order.

Parties and witnesses

1. The Appendix to these Reasons for Decision identifies the parties to the application and the witnesses who participated in the hearing. [Appendix removed for publication.]

Issues for determination by the Tribunal

1. The issues for determination by the Tribunal in relation to the end-of-term review were: 1. Is Mrs NDF someone for whom the Tribunal could make a further guardianship order because she continues to have a disability which prevents her from being able to make important life decisions? Is she "a person in need of a guardian" for the purposes of the Guardianship Act? 2. Should the Tribunal make a further guardianship order? 3. If so what order should be made? Specifically, what decision-making functions should the guardian have, who should be the guardian and how long should any further guardianship order last?
2. The issues for determination by the Tribunal in relation to the requested review were: 1. Should the review be conducted, or should the Tribunal exercise its discretion available under ss 25A(a) and (b) of the Guardianship Act to refuse to conduct the requested review? 2. If the Tribunal decided to conduct the review, the same issues as set out in [10] above.

Absence of Mrs NDF

1. Mrs NDF was not present in person or by telephone in the hearing began. The Tribunal Officer had reported to the effect that Mrs NDF had been made aware of the hearing and that Mrs NDF was expected to participate. However, I noted that Mrs NDF had not participated in the hearing on 7 December 2016 or the two previous hearings. There seemed to be consensus amongst the family members of Mrs NDF and it seemed clear from the accepted professional evidence that she would not understand the purpose of the hearing or the issues which needed to be decided and may for that reason become unsettled and anxious if required to participate. On that basis, I decided to proceed with the hearing in the absence of Mrs NDF because that appeared to be the course which best served her welfare and interests.

ASSESSMENT OF THE EVIDENCE AND DETERMINATION OF THE ISSUES IN RELATION TO THE END-OF-TERM REVIEW

Is Mrs NDF someone for whom the Tribunal could make a further guardianship order because she continues to have a disability which prevents her from being able to make important life decisions? Is she "a person in need of a guardian" for the purposes of the Guardianship Act?

1. The Tribunal may make a further guardianship order for a person if it is satisfied that he or she is a person in need of a guardian. That phrase is defined in s 3 of the Guardianship Act as "a person who because of a disability, is totally or partially incapable of managing his or her person". A person with a disability is someone who is intellectually, physically, psychologically or sensorily disabled, is of advanced age, is a mentally ill person under the Mental Health Act 2007 (NSW), or is 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.
2. At the hearing on 7 December 2017, the Tribunal found that this important threshold issue was satisfied on the basis of previous findings and reports including more recent reports from Dr Z, Consultant Geriatrician, and from Ms Y, Director of Nursing at the aged care facility. There was nothing before me to indicate that there had been any improvement in Mrs NDF's cognitive capacity or mental health generally. There was consensus amongst participants, including each of Mrs NDF's daughters, that she continues to have a disability which prevents her from being able to make important life decisions and on the basis of those uncontroverted views I found that this was so.

Legal basis for determination of this question

1. I have discretion as to whether or not to make a further guardianship order, even where I have concluded that the subject person is prevented by a disability from making important life decisions. Not all people with a disability who are incapable of making life decisions should be regarded as being in need of a further order and there are important principles in the Guardianship Act, particularly in ss 14(2) and 4 of that Act, which I must consider in deciding whether we should make a further order. Essentially, I am directed to consider whether the subject person's life circumstances, their needs and the protection of their rights justify the appointment of a legally empowered substitute decision-maker (a guardian) or alternatively whether their need for appropriate decision-making can be achieved in a less formal way.

Consensus amongst the parties

1. The parties to the reviews and indeed the participants generally appeared to be in consensus that there was a need for a further guardianship order to be made. Ms Sharni Kondrat, a Principal Guardian of the Office of the Public Guardian, confirmed that this was the Public Guardian's view.

Assessment and conclusions on this issue

1. I noted the consensus of the parties and found their views on this issue and particularly those of the Public Guardian persuasive.
2. In finalising my decision, I considered the factors prescribed by s 14(2) of the Guardianship Act. I gave due regard to the importance of preserving Mrs NDF's existing family relationships. It was clear that the most substantial weight should be given to the question of whether the services which Mrs NDF needs could, as a practicable matter, be made available to her without the need for a further order. It was clear that there remained substantial discord between family members as to the appropriateness of Mrs NDF's current accommodation and arrangements for her access to others. There was no readily apparent informal means of resolving the discord or of making issues on these important subjects.
3. I also took into account the guiding principles set out in s 4 of the Guardianship Act. The principles there which had primary relevance to this case were the need to protect Mrs NDF from any neglect, abuse or exploitation and the need to encourage her, so far as possible, to live a normal life in the community. As I am required to do by s 4(a) of that Act, I gave paramount consideration to Mrs NDF's welfare and interests.
4. On that basis I was satisfied that there continues to be a current need for decisions on behalf of Mrs NDF in particular, decisions about her access and accommodation, to be made by a guardian. A further guardianship order should be made.

What functions should the guardian have?

1. Again, it was recommended by the Public Guardian and there appeared to be consensus between the parties who were participating that there was a continuing need for Mrs NDF's guardian to have the authority to make decisions about her accommodation and her access to others. I was satisfied on the basis of the evidence that this was appropriate.

IDENTITY OF THE GUARDIAN

1. This was the central issue in the proceedings and the real issue between the daughters of Mrs NDF. In the application requesting a review, Mrs BZT and Ms DGF proposed that they should be appointed as their mother's guardians. However in the course of the hearing, they submitted that they and Mrs SKC (that is, the three daughters of Mrs NDF) should be jointly appointed with a binding decision being able to be made by any two of them. Mrs SKC rejected that proposal. She did not seek appointment herself as guardian and supported the continuation in office of the Public Guardian. The Public Guardian was firmly of the view that it should continue in office.

Legal issues relevant to the choice of a guardian

1. There are a number of important legal considerations governing the Tribunal's choice of guardian, They arise from the Guardianship Act itself and as the result of relevant Supreme Court decisions. 1. Firstly, as required by s 15(3) of the Guardianship Act, when considering the making of a continuing guardianship order the Tribunal will not appoint the Public Guardian in circumstances where an order "can be made" appointing a suitable private person as guardian. 2. However, s 16(1) of the Guardianship Act requires that any guardian be aged at least 18 years and s 17 of that Act expressly prohibits the appointment of someone as guardian unless the Tribunal is satisfied that the person has a personality generally compatible with the personality of the person under guardianship, has no undue conflict of interest, particularly but not restricted to a financial conflict of interest, in respect of the person under guardianship; and that he or she is willing and able to exercise the functions of the order. 3. In W v G [2003] NSWSC 1170, Justice Windeyer of the Supreme Court of NSW analysed the interaction between ss 15(3), 16, and 17 of the Guardianship Act. He held that s 15(3) must be read as requiring that the Public Guardian should not be appointed in circumstances in which an order can "properly" be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Guardianship Act being given effect. The question is not whether the proposed guardian will make a particular decision in the subject person's best interests, but rather whether he or she is willing and able to exercise their decision-making authority in accordance with the principles set out in the Guardianship Act. 4. The guiding principles set out in s 4 of the Guardianship Act are most relevant here. Section 4 of that Act requires that paramount consideration be given to the welfare and interests of the subject person. 5. It follows that I should balance the willingness expressed by a particular person to be the guardian against their understanding of the principles set out in the Guardianship Act, in particular those set out in s 4. I must focus on the proposed guardian's awareness of the principles and their process of reaching a decision rather than the substance of any particular decision. 6. Finally, as emphasised in the NSW Supreme Court case of P v D1 & Others [2011] NSWSC 257, it is important for the candidate for appointment to be able to demonstrate to the Tribunal their insight into their decision-making role and to explain their plans for acting as guardian and that we should be satisfied that if appointed they can act objectively and without perceived conflict of interest. See also: CS and MY v The Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and FGE (2) [2012] NSWGT 3 (16 March 2012).

Late written submissions by Mrs BZT and Ms DGF

1. As a preliminary matter I note that a large bundle of documentation, which was identified by Ms DGF as representing written submissions by her sister, Mrs BZT, and herself, was received immediately prior to the commencement of the hearing. Neither I as the Tribunal Member nor any of the other parties had any reasonable opportunity to read or consider this documentation.
2. Under s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act"), I am required to give effect to the "guiding principle" when I exercise any power under that Act or the procedural rules or I interpret any provision of them. The guiding principle is that I must facilitate the just, quick, and cheap resolution of the real issues in the parties. Sub-section 36(4) of the CAT Act provides that the practice and procedure of the Tribunal should be implemented so as to facilitate resolution of the issues in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings and s 38(1) of the CAT Act confirms that the Tribunal may determine its own procedure in relation to any matter which the Act or the procedural rules do not otherwise make provision. Significantly, I am required by s 38(5) of the CAT Act to: "…ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings" and by s 38(6) of the CAT Act to ensure that all relevant material is disclosed to the Tribunal to enable it to determine all the relevant facts in issue in any proceedings.
3. Any adjournment of the hearing for the purpose of copying and making available to the other parties these written submissions lodged immediately prior to the hearing would have prolonged the hearing process. I note that this is the fifth hearing in a little over 16 months in relation to Mrs NDF's affairs. If this hearing were to be adjourned additional costs would have to be incurred by all parties.
4. There is a clear need to promote the welfare and interests of Mrs NDF by ensuring stability of decision-making arrangements in respect of her accommodation and access. I am of course required to ensure that Ms DGF and Mrs BZT are accorded procedural fairness.
5. In order to satisfy these various requirements including the preservation of procedural fairness I decided and ordered as follows: 1. the written submissions of Ms DGF and Mrs BZT would not formally be received by the Tribunal and need not be distributed to the other parties; but 2. Ms DGF and Mrs BZT would be given adequate opportunity at this hearing to make oral submissions and in the course of those submissions they could refer to and read out any sections of their written submissions which they deemed to be relevant.
6. In order to ensure so far as possible that the submissions of each party could be heard and determined on this day, with a view to reaching a decision on the matter as soon as possible, I decided to exercise the power which I am given under s 36(6)(c) of the CAT Act to limit the time for each party's submissions to a period reasonably necessary for the fair and adequate presentation of their respective cases.

The submissions of Ms DGF and Mrs BZT

1. Ms DGF made oral submissions with which Mrs BZT indicated that she agreed. Her principal submissions were as follows: 1. There had initially been a mistaken belief by Ms DGF and Mrs BZT that the appointment of enduring guardian made by Mrs NDF (under which Ms DGF and Mrs SKC had been appointed) continued notwithstanding the making of the guardianship order. I understood Ms DGF to contend that for some time she had believed that she continued to hold the office of guardian. That mistaken belief would explain the attempted intervention by Ms DGF in certain accommodation decisions late in 2016 when she informed staff at the aged care facility that she proposed to remove Mrs NDF from the facility. Ms DGF and Mrs BZT now accept that the appointments of enduring guardian are suspended during the term of the guardianship order. 2. Ms DGF asserted that it is prejudicial to Mrs NDF to have a State government body such as the Public Guardian making important decisions which should properly be made by a family member or members. I understood her to contend that this is particularly the case because Mrs NDF is a Christian woman and would object to someone outside the family making decisions for her. There was no evidence of any actual expression of such views by Mrs NDF. 3. Ms DGF further asserted that her sister, Mrs SKC, had failed to communicate with her sisters concerning their mother's condition. She asserted as an example that in mid to late-December 2016, Mrs NDF had become unwell and neither of the nursing home nor Mrs SKC had advised Ms DGF or Mrs BZT of that fact. Ms DGF asserts that she was told that Mrs SKC had used her appointment as enduring guardian and as attorney of their mother to ensure that only she (Mrs SKC) and the Public Guardian were recorded by the facility as "prime contact points". I understood to be asserted that at that time there was a misunderstanding as to the proper place of treatment for Mrs NDF. 4. Ms DGF also asserted that her sister, Mrs SKC, intended to go on a protracted holiday on a yacht with her family and her absence would have a negative impact on their mother, Mrs NDF. I understood her generally to contend that Mrs SKC did not have the degree of involvement in their mother's care that she asserted. She added that Mrs SKC and her husband lived in what she described as "holiday accommodation" and have been itinerant over recent years so that their place of residence should be considered as "fluid". 5. Ms DGF did indicate that there should be concession on all sides that mistakes have been made and that she wished the conflict between the sisters to be at an end, but she asserted that the key to this was better communication from Mrs SKC. 6. In answers to further questions from me, Ms DGF asserted her confidence in the proposal for all three sisters to share the guardianship of their mother. She insisted that she would never deny her sister, Mrs SKC, access to their mother. She also indicated that she would never seek to change her mother's accommodation without independent advice.

The submissions of Mrs SKC

1. Mrs SKC opened by reasserting that nothing that she had heard at the hearing from her sisters persuaded her that they could work together in the interests of their mother and that she regarded many of the remarks made at the hearing by them as offensive. She made the following further submissions: 1. The continued appointment of the Public Guardian was necessary in order to ensure that objective and sensible decisions were made in respect of her mother's accommodation and access to others. 2. Her sisters, Ms DGF and Mrs BZT, did not have an adequate understanding of their mother's needs or of the suitability of her present accommodation. She, Mrs SKC, had been the daughter who had spent most time with their mother. 3. Mrs NDF's current accommodation at the facility is excellent. The staff provide close attention to her mother's needs. It could not be issued that equivalent services and attention would be available elsewhere but her sisters seemed intent on arranging a change of accommodation. 4. She denied that she had arranged for only herself and the Public Guardian to be noted as contact points for the facility and indicated her understanding that the facility had the contact details of all three daughters of Mrs NDF. Mrs SKC denied that she had ever requested the facility to ensure that she was the first person to be called, but she conceded that she was probably regarded as the "main" person responsible for her mother. She confirmed, however, that she was quite prepared to have her two sisters equally involved as persons responsible, if they were available to do so. 5. Mrs SKC denied that she and her family undertook frequent holidays or had the intention to be absent from the area in which her mother lives for long periods. She conceded that at the end of the current school year, they propose to take their children for a two-month overseas holiday. She emphasised that her children had a close relationship with their grandmother, Mrs NDF. 6. Mrs SKC was firmly of the view that the proposal for her and her two sisters to be appointed jointly as guardians was completely unworkable and it would result in her being denied access by her two sisters. In her words: "I would be totally blocked from any real involvement with my mother." That view was supported by Mrs SKC's daughter, the granddaughter of Mrs NDF.

The views of the Public Guardian

1. Ms Sharni Kondrat indicated that the Public Guardian's view was that it needs to remain appointed as guardian for Mrs NDF and to remain authorised to make decisions on her behalf about her accommodation and access arrangements. Ms Kondrat confirmed that the Public Guardian remained of the view that Mrs NDF's current accommodation was suitable and acceptable, that she was comfortable and happy in her accommodation and received an appropriate level of care and that any change of accommodation would, in light of her disabilities, be disruptive and unsettling to her and would not be in her best interests.
2. Ms Kondrat indicated that past proposals from Mrs BZT and Ms DGF as to alternate accommodation for their mother were not appropriately "evidence-based".
3. She confirmed that the Public Guardian's view was that there remained substantial and extensive conflict within the family and in particular between the three daughters of Mrs NDF, particularly in relation to accommodation decisions. She observed that despite the fact that the Public Guardian had only had one intervention concerning access, there was probably a need for continuing an access function and that access arrangements could not be made in a way which was in Mrs NDF's best interests without the intervention of a neutral third party.

Analysis and conclusions as to the identity of the guardian

1. I reserved my decision in relation to this matter, particularly because I wished to have further time to consider the accounts of the parties in relation to this issue. Ultimately, I concluded that the appointment of the Public Guardian as Mrs NDF's guardian should be renewed, with the existing functions of accommodation and access. I reached that decision for the following reasons. 1. I was satisfied that the existing arrangements for decision making about Mrs NDF's accommodation and access were working in a satisfactory manner and in a way which was consistent with her welfare and interests. It is obvious that the underlying discord between the three daughters of Mrs NDF (Ms DGF and Mrs BZT being on one side and Mrs SKC on the other) runs deep. Based on the written and oral submissions made to me, I have no confidence that relations between them will improve in the near future. 2. I am satisfied that the Public Guardian has, in the course of undertaking its office as guardian, complied with the principles set out in s 4 of the Guardianship Act in relation to decisions it has made concerning Mrs NDF's accommodation and access. In particular, its decisions seem to have been based on Mrs NDF's welfare and interests as its paramount concern and with a view to maintaining (so far as possible) Mrs NDF's family relationships. 3. I gave careful consideration to the scheme proposed by Ms DGF and agreed to by Mrs BZT, for guardianship to be shared between the three sisters with a decision by any two of them to be binding. Although at first glance this proposal has the vestige of sharing involvement in decision making for Mrs NDF, I find it to be an unsatisfactory and unworkable proposal, because: 1. the s 4 principles are not directed at involvement in decision making of itself. The relevant principle requires the Tribunal to make a decision on the basis of recognising the importance of preserving Mrs NDF's existing family relationships. I cannot see that it is a likely consequence of the adoption of the proposal that Mrs NDF's family relationships will be preserved. Indeed I think the more likely result is that they will be further damaged; and 2. given the atmosphere of conflict and mutual suspicion underlying the present relationship between Ms DGF and Mrs BZT of the one part and Mrs SKC of the other, the most likely result in the short to medium-term of the adoption of the proposal is that Ms DGF and Mrs BZT will effectively control the role of guardian. 1. Neither Ms DGF nor Mrs BZT demonstrated a clear understanding of the s 4 principles or the way in which those principles should be applied in making decisions on behalf of their mother as guardians. In particular, I could not see how Mrs NDF's family relationships would be preserved by their appointment and they did not appear to address that issue clearly at all. Nor have they presented a practical fair and workable proposal for decision making for their mother's benefit. I cannot be satisfied on the basis of their submissions and the evidence that their appointment (whether or not it is made in conjunction with that of Mrs SKC) would be the course which best preserves the welfare and interests of Mrs NDF. 2. I conclude that neither of them is a suitable person to be appointed as guardian.

Duration of the order

1. The Tribunal can in the ordinary case renew a guardianship order for a maximum of three years. However, where it is satisfied that the subject person has permanent disabilities and it is unlikely that he or she will become capable of managing their person the maximum term is five years.
2. Mrs NDF has been the subject of five hearings in a little over 16 months. It cannot be consistent with her ongoing welfare and interests for arrangements concerning her accommodation and access to remain unsettled and the subject of substantial disputation and proceedings between her daughters. The ongoing nature and quality of her family relationships depends upon some stability being introduced into the making of these important decisions. As a professional care matter, there is a clear need for certainty and stability in relation to accommodation and access arrangements, in order to ensure that Mrs NDF receives ongoing and appropriate care. There is an obvious need for stability in her life and in the decisions to be made for her.
3. All of those factors provide support to the Public Guardian's strong contention that this guardianship order should be renewed for a substantial term. There was nothing put to me which justified the making of a short-term order.
4. In all the circumstances I found that Mrs NDF's welfare and interests would best be served by a renewal of the order for three years. I ordered accordingly.

TREATMENT OF THE REQUESTED REVIEW

1. Section 25A of the Guardianship Act allows me to refuse a request to review a guardianship order if the Tribunal has previously reviewed the order.
2. The guardianship order for Mrs NDF was reviewed on 7 December 2016. Additionally, because I brought forward the end-of-term review to this hearing, it has been reviewed as reflected in the Reasons above.
3. As a practical matter, a review has been conducted and nothing is to be gained by entertaining the application for review. In the circumstances of this case, and given that there have now been two reviews within the last eight months, the appropriate order is that I refuse to conduct the requested review because the Tribunal has previously reviewed the guardianship order.

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 April 2018