NQC [2019] NSWCATGD 24

NCAT Guardianship|2019-12-03|Before: Windeyer J

Background

NQC is an 83-year-old woman who, since 1 October 2019, has been an inpatient at a public hospital. Prior to this hospital admission, NQC lived by herself on her rural property in Southwest Sydney. NQC has one remaining living child, LZC. NQC has no other relatives apart from a brother with whom, we were told by LZC, she has no contact.
Applications for the appointment of a guardian and financial manager were made to the Tribunal by the South Western Sydney Local Health District. At the hearing, DYZ, social worker, represented the applicant and spoke to the applications.
The application for guardianship was made because, according to the applicant, NQC is medically ready to be discharged. However, NQC's treating team believed that due to her cognitive decline and care needs, it is not safe for NQC to return to live alone on her property in Southwest Sydney. The treating team believed that NQC requires supported accommodation in a residential care facility. As will be outlined further below, whilst she has been in hospital, NQC has undergone a number of tests in relation to her cognition and functioning and the results of these tests indicate that NQC's ability to manage her own care needs has declined and that she requires high level care.
The application for a financial manager was made because of the information provided both by NQC and her daughter to hospital staff that NQC appears to have been taken advantage of financially by a third party, namely a real estate agent. The allegation is that Mr TT has persuaded NQC to provide him with approximately $35,000 to renovate an investment property that she owns in Southwest Sydney. However it is unclear what these funds have been spent on. According to NQC's daughter, that property is now gutted and is in an unliveable and unsaleable state.
In addition according to LZC, on reviewing her mother's personal effects at her property in Southwest Sydney since her hospitalisation including bank accounts, it appears that her mother has withdrawn approximately $174,000 from her bank account over the previous year without any indication of how that money has been utilised. LZC told us that these matters have been reported to police and the Department of Fair Trading. Whilst her mother currently has a solicitor, Mr Z, LZC believes that she needs to seek fresh legal advice about these matters and needs to be appointed as her mother's financial manager in order to do so. LZC has also told us that she has faced some difficulties in taking even these steps without the legal authority to act on her mother's behalf.

NQC's views

During the course of the hearing we were able to speak with NQC with the assistance of a Croatian interpreter to seek her views about these matters. It appeared to us that NQC answered our questions to the best of her abilities. It was clear that NQC had a very strong desire to leave the hospital, she felt that it was making her more unwell and uncomfortable and she wished to return to live at her home in Southwest Sydney. NQC told us that she did not need to move to any other place and would not do so but that she would like someone to check on her when she was living in Southwest Sydney.
During the course of the hearing, NQC returned repeatedly to concerns for her daughter. We understood that NQC was expressing general concern for her daughter's welfare. It also appeared to us that NQC had an awareness that there were some issues in relation to her finances that needed attention and she expressed concern that some of her money had gone missing. However, NQC suggested to us that her solicitor would be the best person to deal with these matters.
In response to a question from one of the Tribunal members as to whether she trusted her daughter, NQC told us that she did but it was unclear to us whether NQC had a clear understanding of what the appointment of a guardian and financial manager would entail. We therefore understood that she was close to her daughter but her ability to give her views was otherwise limited.

Clinical evidence

The Tribunal was provided with a number of clinical reports in relation to NQC.
In reports of assessments undertaken on 25 October 2019 and 31 October 2019, Ms Y, clinical neuropsychologist, and Ms X, provisional psychologist, outlined the nature of the testing that they undertook of NQC on both dates to determine her capacity to make decisions regarding accommodation, driving and financial management. These reports concluded that NQC demonstrated marked executive dysfunction, reduced abstract reasoning and problem solving abilities and problems with planning and organisation. Her degree of neurocognitive impairment was described as being widespread in nature.
The authors concluded that NQC's capacity to make informed decisions about accommodation is impeded. She may be able to manage routine tasks and activities and articulate socially acceptable responses. However, cognitively her capacity to follow through on these plans of actions and adapt under non-routine circumstances would be severely impaired.
In relation to testing NQC's ability in relation to financial matters and to making informed decisions regarding her finances, the authors noted that NQC demonstrates an awareness of issues relating to being taken advantage of financially noting that she said that she would contact the police and her solicitor if she believed she was being extorted. Her ability to complete basic calculations was intact and the authors noted that whilst simple routine calculations and financial transactions are within NQC's capacity such as basic shopping, her impairments in complex reasoning, problem solving, planning, self-monitoring and overall memory and executive difficulties indicate that she would be likely to be unable to make complex decisions regarding financial management and is highly susceptible to being taken advantage of and she is easily coerced.
The authors also concluded that NQC's cognitive difficulties would make it difficult for her to manage and monitor her medication independently and suggest that she requires high levels of supervision.
In a report prepared on 18 November 2019, Dr W, locum staff specialist geriatrician at the public hospital, outlined that she looked after NQC as a patient for approximately one month at the public hospital. Dr W described NQC as having dementia due to cerebrovascular disease and previous excessive alcohol consumption. She described NQC's capacity to make decisions regarding complex financial decisions and accommodation as impaired. Dr W referred to testing that excluded other causes for NQC's memory difficulties. It was also noted that an MRI brain scan was performed following NQC's admission that showed chronic microvascular ischaemic white matter disease. NQC scored 16/30 in the Roland Universal Dementia Assessment Scale during the admission and was found to be rigid in her thinking which suggests executive impairment.
Dr V, a registrar with the geriatric team, gave oral evidence at the hearing which confirmed the views expressed by Dr W. Dr V advised that when NQC was initially admitted she showed features of depression and was administered anti-depressant medication. NQC's mental health is currently stable and signs of cognitive impairment and executive dysfunction remain evident and, according to Dr V, are permanent.
These views were also confirmed in an occupational therapy report prepared by Ms U, occupational therapist with the aged care team at the public hospital. As part of the multi-disciplinary team involved with NQC, the testing undertaken by Ms U indicates that NQC's cognitive impairments and lack of social supports indicate that she would not be able to manage independently in her home environment. During her admission, according to Ms U's report, NQC has consistently demonstrated poor insight into her ability to cope at home alone. Further, NQC's difficulty with short-term memory has meant that she has been unable to retain information or learn new tasks including consistently requesting her medications on the ward.
The content of these reports was summarised during the course of the hearing and NQC was invited to express a view about the conclusions reached in the reports. NQC told us that she "can still think" but it was unclear to us whether NQC was able to appreciate the content of those reports and the evidence given to the Tribunal.
LZC did not disagree with the contents of the reports as outlined above.

What did the Tribunal have to decide?

The questions which had to be decided by the Tribunal were:

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

Section 14 of the Guardianship Act 1987 (NSW) ("the Act") provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/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.
The authors of the clinical reports outlined above were consistent in their description of the impact that NQC's cognitive decline has on her functioning both in a hospital setting and in relation to concerns about her ability to function safely at home if she returned to her Southwest Sydney property. We had careful regard to NQC's views as we understood them, namely, that she is able to think clearly and make decisions for herself. However, we accepted the evidence given in the clinical reports outlined given the expertise of each of these clinicians, the period of time over which a number of the clinicians had treated and observed NQC and the consistency between the reports as to the observations and conclusions reached by the clinicians concerning NQC's level of functioning. There was no other evidence challenging the evidence provided in those reports.
Based on the evidence of the extent of her cognitive impairment contained in the clinical reports outlined, which we accept, we were satisfied that NQC is restricted in important major life activities to such an extent that she requires supervision or social habilitation. She has a significant "need for services to help [her] function normally in community with others" (P v NSW Trustee and Guardian [2015] NSWSC 579, [303]).
We were satisfied that NQC is a person for whom we could make a guardianship order as she is a person who because of her disability, namely dementia, is incapable of managing her own person.

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; 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 principles contained in s 4 of the Act are as follows: 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.
We were satisfied that a guardianship order should be made for NQC for the following reasons.
We were satisfied on the evidence that accommodation options need to be explored for NQC and that this function should be included in the order.
We were also asked by the applicant to include additional functions that would enable the appointed guardian to authorise police and/or ambulance services to facilitate any accommodation decision that is made by the guardian. We note that in the decision of NIQ [2014] NSWCATGD 28 the Tribunal stated: [51]…the Tribunal is loath to authorise the use of force by a guardian to enforce a substitute decision which is made by the guardian but not supported by the person themselves. Only in circumstances whereby a person's decision making incapacity is such that it results in them making decisions which expose them to neglect, abuse or exploitation (or they are incapable of making important decisions and others make decisions on their behalf which cause neglect, abuse or exploitation) does the Tribunal contemplate the application of coercive authority… [52] In examining the need for coercive powers of guardianship to provide services to a person, the Tribunal must conduct such examination being mindful of the principles provided in s 4 of the Guardianship Act.
We were satisfied that this additional authority was necessary and in NQC's interests given her clearly stated desire to return to live in her home and her objection to living anywhere else despite the views of the health professionals at the public hospital that it may no longer be safe for her do so. We were persuaded on the evidence that there is a real risk of self-neglect on NQC's part if she were to return to live on her isolated rural property given her lack of insight into the risk involved to her health and welfare and her care needs. We gave greater weight to the Tribunal's requirement to protect NQC from neglect (the Act, s 4(g)) when compared to the Tribunal's duty to: restrict as little as possible NQC's freedom of action and freedom or decision (the Act, s 4(b)); take account of NQC's views (the Act, s 4 (d)); and to encourage, as far as possible, NQC to be self-reliant in matters relating to their personal, domestic and financial affairs (the Act, s 4(f)).
As a result of her lack of insight into her care needs as a result of her cognitive difficulties, we were also satisfied that NQC will not seek out health care or other support services on her own behalf and that a guardian is necessary for this to occur. An example of this is the need for an ACAT assessment which has yet to occur.
We were also satisfied that a guardian should be given the authority to consent to medical and dental treatment on NQC's behalf. LZC has been performing this role as her mother's "person responsible" since NQC's admission to hospital. We formed the view, however, that it would provide greater certainty and consistency in respect of NQC's care if this function were added to an order.
In deciding to make a guardianship order we had regard to NQC's views as summarised previously and the evidence from her daughter that NQC has led a very independent life and that the making of an order will clearly impact on this. Nevertheless we placed greater weight on the need to ensure that decision making takes place in a manner that gives paramount consideration to her safety and welfare.
We also decided that the making of a guardianship order with the appointment of her daughter as guardian for the reasons set out below will ensure that significant weight is given to NQC's cultural background. We were also satisfied that it would support the important family relationship between NQC and her daughter.

Who should be the guardian?

LZC wished to be appointed as her mother's guardian. This was supported by the applicant.
We have to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she must: 1. have a personality generally compatible with the personality of the person under guardianship; 2. have no undue conflict of interest (particularly financial) with those of the person; and 3. be able and willing to exercise the functions of the order.
In deciding whether a person is able to undertake the role of guardian, we must also consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep and Re B [2011] NSWSC 1075, [66])).
In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.
The evidence provided by LZC persuaded us that she meets the requirements of s 17(1) of the Act.
In particular, LZC's written and oral evidence persuaded us that she is close to her mother, feels a strong sense of responsibility for her welfare and has intimate knowledge of her mother's likely wishes, preferences and more generally her personality as is evident in the description provided of her mother's background, mental health issues and grief resulting from the death of NQC's son in 2003. We were satisfied on the basis of her responses to our questions that LZC is willing and able to take into account professional evidence as to her mother's care and support needs and will be able to balance this against her mother's wishes in a manner that will give paramount concern to her mother's welfare and interests.

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 decided to make a 12-month order for NQC. We accepted that evidence that it is likely that significant decisions about NQC's accommodation are likely to be made well within that 12-month period and as well as other important health and medical care decisions. On the basis, in our view, that it is unlikely that a guardianship order will be required after this time, we decided to make the order on a non-reviewable basis.

FINANCIAL MANAGEMENT APPLICATION

We refer previously to the evidence provided in the clinical reports of the health professionals that have treated NQC whilst she has been a patient at the public hospital. In particular we note the views expressed in the reports of: 1. Ms Y, clinical neuropsychologist, and Ms X, provisional psychologist that NQC's impairments in complex reasoning, problem solving, planning, self-monitoring and overall memory and executive difficulties indicate that she would be likely to be unable to make complex decisions regarding financial management and is highly susceptible to being taken advantage of and easily coerced; 2. Dr W, locum staff specialist geriatrician, confirming NQC's diagnosis of dementia, her demonstrated rigidity of thinking which is suggestive of executive impairment, and her impaired capacity to make decisions regarding complex financial decisions ; 3. Ms U, occupational therapist, confirming NQC's difficulty with short term memory resulting in inability to retain information or learn new tasks.
As noted previously, as a result of becoming aware of the alleged actions of Mr TT and the withdrawal of significant sums of money from her mother's bank account, LZC has reported these matters to the police. She was also able to persuade her mother's bank to place an alert on NQC's accounts approximately seven weeks ago to prevent any further dissipation of her funds.
LZC also expressed concern about the actions of her mother's solicitor, Mr Z, who, according to LZC, informed her that he had prepared four to five contracts of sale for her mother's two properties with the last one being prepared two weeks prior to NQC's hospitalisation. LZC is concerned that Mr Z took these steps without having an interpreter present and also, according to LZC, took direction from a friend of her mother, identified as Ms S, about some of these matters. LZC had no prior knowledge of Ms S or any of these transactions.
We note that Mr Z did not take part in the hearing before us and did not therefore have the opportunity to respond to these matters.
When we asked NQC about these matters she was unable to provide any information other than indicating an awareness, as previously noted, that some of her money had gone missing.
NQC was unable to provide any further explanation or insight in to the management of her financial affairs.

What did the Tribunal have to decide?

The questions that we had to consider were:

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

Is NQC incapable of managing her affairs?

For the reasons previously noted, we accept the evidence of the health professionals who have assessed NQC's decision-making capacity in relation to her financial affairs given the expertise of each of these clinicians, the period of time over which they treated and observed NQC and the consistency in the conclusions reached in each of those reports.
NQC's evidence about her financial and legal situation was consistent with these reports and she was unable to provide any detailed information about them. We accept that as a result of her cognitive decline, NQC has been heavily reliant on others, such as her solicitor and a person named Ms S, to assist her but without the ability to take any proactive steps to protect her own interests.
No one at the hearing disputed that NQC is incapable of managing her affairs.
We were satisfied that NQC is unable to deal with her own affairs in a reasonable, rational, and orderly way with due regard to her present and prospective wants and needs and those of family and friends without undue risk of neglect, abuse, or exploitation (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]). We were therefore satisfied that NQC is incapable of managing her own affairs.

Is there a need for a financial management order?

We were satisfied that there is a need for a financial management order to be made. Steps need to be taken to taken to secure NQC's accounts, to ascertain the full extent of suspicious transactions on these accounts and take any other necessary action.
Action may also need to be taken on NQC's behalf in relation to the alleged action of Mr TT concerning her investment property at Southwest Sydney. This may include taking legal action on NQC's behalf.
Whilst the evidence indicated that LZC has been actively engaged in trying to address these issues on her mother's behalf, she has been restricted in doing so without the legal authority to act on NQC's behalf. The appointment of a financial manager will ensure that NQC is protected from any future exploitation and that her future care and accommodation costs are met.

Is it in NQC's best interests that a financial management order be made?

We were satisfied that it is in NQC's best interests to make a financial management order. We accepted the evidence that NQC has led a very independent life. However given the evidence, which we accepted, of her vulnerability to exploitation we were satisfied that it is now in her interests for a substitute decision-maker to be appointed.

Who should be appointed as financial manager?

LZC wished to be appointed as her mother's 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.
We accepted the evidence provided by LZC and the applicant as to the proactive steps that LZC has already taken to protect her mother's interests. As previously noted, despite not having the formal legal authority to do so, LZC has alerted her mother's financial institution to possible financial exploitation and has reported the actions of Mr TT to police. Whilst her mother has been hospitalised, LZC has been to her mother's home at Southwest Sydney and has taken steps to secure the property and her mother's personal effects.
LZC told us that she wishes to be appointed as her mother's financial manager so that she may continue to protect her mother's interests and seek fresh legal advice in order to do so. LZC indicated her willingness to have her actions overseen by the NSW Trustee and Guardian.
We had to weigh these considerations against LZC's admission that she has been declared bankrupt approximately 20 years ago. LZC told us that this occurred at a particular time of her life when she was out of work for approximately three months and could not meet her debts. LZC told us that she took advice at the time to apply for bankruptcy which she subsequently regretted as she had not been aware of the long-term consequences of that declaration.
LZC told us that since that time she has had secure employment and her personal finances have been stable for a lengthy period.
After hearing this evidence from LZC, DYZ, on behalf of the applicant, still supported the appointment of LZC as her mother's financial manager. DYZ's view was that LZC was the best person to advocate on NQC's behalf, that she had demonstrated that her priority was her mother's welfare and that the LZC's bankruptcy approximately 20 years prior should not concern the Tribunal as it occurred at a different stage in LZC's life.
We carefully considered the evidence and submissions about this issue and ultimately decided to appointment LZC as her mother's private financial manager and were satisfied that in doing so, NQC's welfare and interests were being given paramount concern: the Act, s 4(a). We placed greater weight on LZC's recent efforts and actions in seeking to protect her mother's interests than on her bankruptcy approximately 20 years ago. The mandatory reporting obligations to the NSW Trustee and Guardian that will be required of LZC also provides an additional level of protection for NQC, as it does for anyone subject to a financial management 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: 25 February 2020

Trustee and Guardian Act 2009(NSW)

Court (NSW), Windeyer J, 29 November 1999, unrep IF v IG [2004] NSWADTAP 3 NIQ [2014] NSWCATGD 28 P v D1 & Ors [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 Re B [2011] NSWSC 1075 Texts Cited: Nil Category: Principal judgment Parties: 001: Guardianship Application

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