NSM [2019] NSWCATGD 33

Findings and conclusions

1. The available medical evidence reveals that NSM has a "Major Neurocognitive Disorder". She is unable to undertake most activities of daily living. She is now heavily dependent on care and support provided by others. As a consequence of that condition, NSM currently requires supervision and/or social habilitation (support to live in the community) to undertake most major life activities. It follows that NSM is a "person with a disability" within the meaning of s 3(2) of the Act.
2. The weight of medical opinion is that NSM is currently unable to manage her person and her ability to do so is likely to continue to deteriorate.
3. We find that because of her disability, UAM is currently incapable of managing her person. It follows that NSM is a "person in need of a guardian" and the power to make a guardianship order can be exercised.

Should a guardianship order be made?

1. In considering whether or not to make a guardianship order, we must take into account the matters listed in s 14(2) of the Act, relevantly the views of NSM, the importance of preserving NSM's existing family relationships and cultural and linguistic environments, and the practicability of services being provided to NSM without the need for the making of a guardianship order.

The views of NSM

1. Due to the severity of her cognitive condition, NSM was unable to express a view about whether a guardianship order should be made in respect of herself or her husband. Nonetheless, it is apparent that she wishes to remain living with her husband.

The views of UAM

1. Since his admission to hospital, UAM has consistently expressed the view that he wishes to return home to live with and care for his wife. He repeated that view to us during the closed session. This tends to suggest that UAM opposes the making of a guardianship order given the possibility that an appointed guardian might not give effect to UAM's expressed preference.
2. On the other hand, the detailed reports contained in Dr U's report of 3 June 2019 of the interviews conducted with UAM on 16 May 2019, 27 May 2019 and 28 May 2019, indicate that at times UAM has expressed conflicting views about the appointment of a substitute decision-maker for both himself and his wife. For example, when told during the interview on 28 May 2019 that the opinion of his medical team is that he and his wife should move into a residential aged care facility, UAM replied "the children will have to decide and see what I'm doing". When asked if he wanted his children to decide whether he should move into a residential aged care facility or not, he replied, "I will decide".
3. During the closed session with UAM and NSM, UAM gave conflicting and at times non-responsive answers to questions about his ability to make decisions about accommodation, health care, etc. Based on the responses he gave to questions asked in that session, together with the expert reports provided in support of the Local Health District's applications, we conclude that currently UAM probably lacks the capacity to comprehend the concept of substitute decision-making and the practical consequences of being subject to a guardianship order. In reaching that conclusion, we note that during the interview with Dr U on 28 May 2019, despite being given an explanation of the term "enduring guardian", five minutes later he was unable to recall the information he had been provided.
4. Despite the difficulties of discerning UAM's views about whether a guardianship order should, or should not, be made, in relation to him and his wife, we have decided that his repeated wish to return to live in his apartment in Southwest Sydney and to care for his wife indicates a preference that both he and his wife not be subject to a guardianship order. This factor favours not exercising the power to make a guardianship order.

The views of the separate representative

1. Ms Kaiti supports the making of a guardianship order, submitting that NSM is at risk without an order.

The views of the brothers

1. The brothers agree that there is a need for a guardianship order to be made in respect of their mother and support the making of the order.

The importance of preserving NSM's existing family relationships

1. Apart from her husband and two sons, there is no available material about other members of NSM's family and their relationship with NSM. As noted, there is a history of deep-seated animosity between the brothers. Making or not making a guardianship order is unlikely to have any material impact on the relationship between the brothers, the relationship between NSM and her sons, or the relationship between NSM and her husband.
2. This factor neither favours nor weighs against the making of a guardianship order.

The importance of preserving NSM's particular cultural and linguistic environments

1. NSM's first language is Greek. Apparently, she migrated from Greece to Australia with her family in 1984. On the available material, it is not known whether prior to her admission NSM was able to communicate effectively in English.
2. We think it unlikely that making or not making a guardianship order will materially affect the preservation of NSM's Greek cultural and linguistic environments.

The practicability of services being provided to NSM without the need for the making of such an order

1. Before their current admission to hospital, neither NSM nor her husband received any services provided by third parties. Nor had they been assessed by an Aged Care Assessment Team (ACAT) for their eligibility to receive Home Care packages or other services provided by the Commonwealth Government through My Aged Care.
2. Given NSM's level of cognitive impairment, without the making of a guardianship order we find it would be impracticable for services to be provided to NSM. This favours the exercise of the power to make a guardianship order.

Findings and conclusions

1. In deciding whether to exercise the power to make, or not to make, a guardianship order, we must consider the factors listed in s 14(2) of the Act, together with the statement of principles contained in s 4 of that Act. This exercise requires us to balance a number of competing considerations. On the one hand, we must observe the principle that NSM must be protected from neglect, abuse and exploitation. On the other hand, we must restrict her freedom of decision making and action as little as possible. At all times, the paramount consideration is NSM's welfare and interests.
2. Weighing heavily in favour of a guardianship order is NSM's evident inability to make any decisions of significance in relation to her person. Also favouring the making of a guardianship order is our finding that it would be impracticable for services to be provided to NSM without an order. Without the provision of significant services to both UAM and NSM, the available accommodation options will invariably be limited to some form of residential care. An additional factor favouring the making of a guardianship order is the animosity between the brothers, which makes it improbable that considered decisions of significance will be able to be made on behalf of NSM on an informal basis. Given these circumstances, it is necessary and appropriate to exercise the power to make a guardianship order, notwithstanding her husband's clearly expressed preference to retain the freedom to return to live in Southwest Sydney.

What functions should the guardian(s) be given?

1. Given the severity of NSM's disability and her inability to make decisions about significant matters relating to her person, the guardian requires the following functions: accommodation, services and health function and the power to consent to minor and major dental and medical treatment.
2. In addition, given the extreme conflict between the brothers and the history of conflict with the hospital about access to UAM and NSM, we have decided that it is necessary and appropriate that the guardian be given an "access" function, to enable decisions to be made about who can contact and visit NSM and the associated arrangements.

What should be the term of the order?

1. We have decided to make the guardianship order for a term of 12 months, the maximum permissible period for an initial guardianship order (see s 18 of the Act). Several significant decisions, including accommodation are likely to be required to be made on behalf of NSM in the foreseeable future. In the short term those decisions are likely to need to be evaluated and reviewed. A period of 12 months will enable the guardian to make, implement and evaluate those decisions.

Who should be appointed as NSM's guardian?

1. BYM nominated himself to act as the guardian of each of his parents. The Local Health District, LZM and the separate representative Ms Currie oppose that proposed appointment. In addition, the separate representative for NSM opposes BYM's appointment as NSM's guardian.
2. Where, as in this case, the Tribunal decides to make a continuing, as opposed to a temporary, guardianship order, s 15(3) of the Act instructs that the Tribunal must not appoint the Public Guardian where another person can be appointed as the guardian. Before appointing a person to act as the guardian of the person under guardianship, the Tribunal must satisfy itself that the proposed guardian satisfies each of the three matters listed in s 17(1) of the Act: 17 Guardians (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.
3. Section 4 of the Act imposes a duty on anyone exercising functions under that Act, including the Tribunal and any appointed guardian, to observe the principles in s 4 of that Act.

Procedural history

1. On 11 July 2019, the Tribunal made directions requiring the parties to file and serve any material on which they rely by 22 July 2019 and any material in reply by 29 July 2019.
2. On 24 July 2019, the Tribunal made further directions requiring any party seeking to be appointed as the guardian or financial manager of NSM to give to the Tribunal, by close of business 30 July 2019, a statement setting out their view and any supporting material, about their ability to undertake the role of guardian and/or financial manager. The Tribunal directed that the statement include: "1. A detailed description of any conflict, real or perceived, between their interests (for example, property, assets) and those of [NSM] and/or [UAM]. 2. Details of any loan (or similar dealings) made by them to [NSM] and/or [UAM]. 3. Details of any loan (or similar dealings) made by [NSM] and/or [UAM], to them. 4. Their history of any charges or convictions for offences, criminal or civil. 5. Their knowledge of the estate of [NSM] and/or [UAM], including but not limited to any real property, assets, income, debts and liabilities."
3. BYM did not file any material in answer to these directions until 4 pm on the eve of the hearing. That material (Exhibit R2) included a statement prepared by BYM, a series of photographs of his current place of residence, certificates attesting to his professional qualifications as a motor mechanic, certificates awarded by a multinational company for excellence in customer service delivery and a number of character references, the most recent dated 11 April 1999.
4. At the hearing, BYM claimed that he did not receive a copy of the directions made on 24 July 2019. We find that claim implausible for these reasons. First, NCAT's electronic case management system contains an entry made 24 July 2019 stating that the directions were emailed to BYM at the email address he provided to NCAT that he used to communicate with registry officers throughout these proceedings. Second, in an email he sent to a member of NCAT's registry on 25 July 2019 (Exhibit A3), BYM wrote: "Today I have received a further request from the Registrar in in which are based on the 'Unfounded, Unsupported and Untruth Allegations made by LZM as Senior Counsel agreed that some of the items requested by the Registrar are irrelevant to this application and Senior Counsel has done many NCAT Hearings and they have never seen such requests, so the Member by her Inappropriate Statements has caused these 'Irrelevant Requests' to be requested."
5. Read in context, it is plain that the "request from the Registrar" referred by BYM in the email on 25 July 2019, were the directions made on 24 July 2019.

Material filed by BYM in support of his nomination

1. In the application lodged with NCAT seeking a financial management application in relation to his father, BYM wrote: "I have and am the only one who been my mothers and father's carer and financial manager for the last 20 years, I have and am the only one who organised all my mothers and fathers' loans in the past 30 years. I have and am the only one who has attended with my father and mother, my mothers and fathers financial institutions for the last 30 years. I have and am the only one who has restructured and negotiated my mothers and fathers loans for over 30 years saving them thousands off their principle and saving them years of the times to repay their loans. I have and am the only guarantor in• the past for my mothers and fathers loans in the many years My father has worked for me for the last 32 years. I am the only person who has knowledge of all my fathers and mothers debts, and financial needs. I am the only person who has my mothers and fathers best interest in mind. I am the only one who has financially supported my mother and father over the last 36 years. I am the only logical choice to be appointed the financial manager for my mother and father."
2. In the statement provided in support of his nomination to act as his parents' guardian and financial manager, BYM wrote that he had been asked by his "family and very close friends of his parents" to become the guardian and financial manager to his parents. He wrote: "1. My father was working for me for nearly 32 years when I had purchased my first business in 1985. 2. I have a very close Bond with my father and mother. 3. I am the ONLY Logical and Commence sense Choice. 4. I am a successful business man and have had my own business from the age of 18 5. I am the eldest son of [UAM] and [NSM] who has cared for my parents for nearly 32 years. 6. I have been a carer for my parents for over 8 years (2006 to 2014). 7. I moved in with my parents to look after them from October 2018 to March 2019. 8. I have and have only been the one who has managed their finances, organised their loans, went Guarantor for my parents for over 30 years. 9. I am the only one that can house them comfortably on my 25-acre farm at [Southwest Sydney]. 10. They will be surrounded Lush Green Grass and Gorgeous Green Paddocks Surrounded by 52 x Pickle Pear Trees, 2 x Fig Trees, 1 x Lemon Tree, 1 x Orange Tree, 1 x Orange and Lemon Tree Mix, 3 x Chestnut Trees, 4 Gorgeous Horse, 6 Pet Dwarf Pigs, (Home Trained) 2 Cattle Dogs, 6 Pet Rabbits, 2 Baby Goats (Still on Bottle Feed) and 2 Baby Piglets (Still on Bottle Feed)."
3. In his statement, BYM went on to extoll the virtues of "my 25-acre farm at [Southwest Sydney]", described in point 10 in the paragraph above. He stated that, if appointed, to be his parents' guardian he planned that they would live with him at the farm. He stated that they would be cared for by himself and his partner. He claims that when he took his parents to see it, they fell in love with the property.
4. BYM stated in these proceedings that he had achieved many things in his life, owning his first business at age 18, making his first million at age 19, building a $6 million business at age of 26 and now owning a business with a turnover in excess of $10 million. He claimed that he had decided to take 12 months off to look after his parents despite having a $250 million approval to build the "biggest marina in the Mediterranean".
5. BYM stated that his father worked "for him", or more correctly "with him" between 1987 until he retired in 2006. He stated that during that period he had not paid his father a wage but rather paid his father's bills and expenses, until his divorce hit in 2006.
6. When questioned by the Tribunal about whether he was involved in any legal proceedings in respect of the Southwest Sydney farm, BYM disclosed that the "head leasee" had commenced legal proceedings in NCAT and tried to evict him after he made improvements to the property. He stated that the owner subsequently evicted the head leasee and gave him a "six-year agreement with an option to purchase". He claimed that he was not required to pay rent under that agreement for a period of two years.
7. On questioning, he admitted that he and his mother were co-tenants under a residential tenancy agreement in respect of the farm entered into in February 2019. He agreed that the agreement was written in English and that his mother could not read English. He claimed that the terms of the agreement were explained to her in Greek. BYM claimed that the real estate agent was aware that his mother had Alzheimer's disease when she entered into the residential tenancy agreement. He stated that his mother's condition has basically been the same for the past four years.
8. Later, when questioned about his failure to disclose to the Tribunal information about the contractual arrangements relating to his continued occupation of the Southwest Sydney farm, he stated he did not believe it to be relevant.
9. When asked by the Tribunal whether he had any charges or convictions for offences, criminal or civil, BYM stated that he had one conviction for the offence of "larceny as bailee". He claimed that the offence related to the retention of a car owned by a customer who had refused to pay a bill. He claimed it did not involve fraud. He asserted that had he informed the court that a motor mechanic is entitled to exercise a lien over property, he would not have been convicted. When questioned by the separate representative for NSM about the fact that his CV did not go beyond 2014, he admitted he did disclose in these proceedings that he had been in custody between 2014 and 2018. He claimed that the charges were withdrawn on the first day of the hearing. When questioned why he had not disclosed that information to the Tribunal, he claimed he was only asked about his convictions. He stated he was in the process of suing the State of NSW and he would be receiving a significant sum in compensation. He stated that he was bound by a confidentiality undertaking and was unable to disclose the details of that settlement.
10. When asked by the Tribunal about whether he had any loan or similar dealings with his parents, he claimed he had never borrowed money from his parents. He stated that they had borrowed money from him and, in addition he had guaranteed a number of loans taken out by his father. He claimed that his father had made several bad decisions in relation to residential property and he had stepped in to arrange bridging finance. He claimed that he had no intention of seeking to recover any money lent to his parents.
11. When asked about his plans for the Southwest Sydney apartment if he were to be appointed financial manager, he claimed that his brother wanted to sell the apartment and he disagreed. He said he had arranged for three real estate agents to look at the apartment and they estimated the weekly rental income to be about $600. He stated that consistent with his father's instructions, he intended to split the balance of the rental income from the Southwest Sydney apartment between himself and his brother, after using that income to pay for the mortgage on the apartment and any care fees.
12. When asked by the Tribunal about his plans for facilitating contact between his brother and his parents if they were to live with him at the Southwest Sydney farm, he stated he would not allow his brother onto the property and that his brother would need to engage a lawyer if he wished to arrange contact with his parents. He stated that his brother could pick up his parents outside the property. He claimed that his partner refused to deal with his brother and is fearful of him. He stated the reason for the conflict with his brother was because his brother owed him $250,000. In final submissions, he stated that he acknowledged that both he and his brother should be able to visits their parents.
13. When asked about the power of attorney purportedly made by his parents in November 2018 and witnessed by him, BYM stated that he arranged for his parents to execute the document so he could organise their finances and act for them. He claimed that the only actions taken in his role of attorney was to set up "internet banking" to arrange for the payment of the mortgage on the Southwest Sydney property. When brought to his attention that the agreement was not a "prescribed power of attorney" for the purpose of the Powers of Attorney Act 2003 (NSW), he stated that he was unaware of that legislation.
14. BYM claimed that his parents' only source of income was the Aged pension and their only assets were the Southwest Sydney apartment and two cars, one of which he had been driving since October 2018. In evidence, he claimed that they had no debts apart from a mortgage over their apartment in the sum of $47,500. He stated that when he last checked his parents' joint account held with an Australian bank on 7 May 2019, there was $950 in that account. He stated he has subsequently been told by the bank that the mortgage is now in arrears. He claimed that following a notification to the bank made by the Local Health District, he had no access to their bank account. He stated that he understood that their pension was now being paid to the public hospital.
15. When asked in these proceedings whether he had any knowledge of the $8,000 found on his father's person when he was admitted to hospital, BYM stated that the money was intended to pay "a woman who was holding six containers of his property from a previous automobile business". It was unclear from BYM's evidence how long the property had been held, whether his father had any interest in the property, and whether the claimed $8,000 was his money or his father's money.
16. In closing submissions, he claimed that his father had been acting as a caretaker of the Southwest Sydney apartment block where he was living, for a fortnightly fee. He stated that he had commenced legal proceedings in his father's name to recover unpaid fees for his work as caretaker. He stated that the strata manager had rejected a proposal to waive outstanding strata fees owed by his parents. He claimed that on 9 May 2019, the Consumer and Commercial Division of NCAT ordered his father to pay $17,000 and he was not given leave to represent his father on the ground that his father "lacked capacity".
17. In answer to a question asked by Ms Kaiti, BYM admitted that he had been declared bankrupt. He claimed it was annulled in 2004. He agreed with the proposition put by Ms Kaiti that he had not produced any documents in these proceedings to verify his claims about his finances or his parents' finances despite, on his account, having managed their finances for over 30 years.
18. In closing submissions, BYM gave a number of additional explanations for his failure to produce any material to verify the claims he made about his suitability to be appointed as his parents' guardian and financial manager: 1. He only decided to put himself forward as his parents' guardian and financial manager "at the last minute" and did not have time to obtain documents. 2. He was told by an NCAT registry officer he didn't need to provide any documents. 3. NCAT refused to provide him with the contact details of his parents' separate representatives. 4. The documents should have been subpoenaed by the separate representatives.

LZM' views about his brother's nomination

1. LZM strongly opposes the appointment of his brother as his parents' guardian and/or manager. He disputed most of the claims made by BYM in these proceedings, including that he had acted as his parents' carer for over 30 years, pointing out that his brother was only released from custody in October 2018 after serving a four and a half-year custodial sentence. LZM claimed that his parents had not spoken to his brother for over four years after he allegedly forged loan documents, which resulted in them losing their house. He claimed that throughout his life, his brother had subjected his parents and himself to bullying and verbal abuse. He claimed that his brother had threatened him about attending the hearing.
2. LZM disputed his brother's claim to have cared for his parents throughout the six-month period he lived with them in 2018/2019. He said that throughout that period, on three occasions his father threw his brother out of the house. He asserted that residents of the Southwest Sydney apartment complex were so concerned about his parents' welfare that they rang the Elder Abuse Hotline. He said it had been difficult seeing his parents throughout that period. He claimed that during this they changed, they were "crying and became overloaded and depressed".
3. LZM disputed his brother's claim to be wealthy and claimed he was on a "Centrelink pension for mental disability".
4. He asserted that it would be impossible for him to have contact with his parents if his brother were to act as guardian. He stated there would be "zip chance" of his brother communicating with him about decisions relating to his parents if his brother was appointed guardian or financial manager.
5. BYM denied the allegations made by his brother in these proceedings.

Separate Representative's views about BYM's nomination

1. Ms Currie opposes the appointment of BYM as NSM's guardian and/or manager. She contends that even if it were accepted that BYM did not receive the directions made by the Tribunal on 24 July, it is troubling that until questioned in these proceedings he failed to disclose any information about his criminal history, bankruptcy and the tenancy arrangement in relation to the Southwest Sydney farm. Further, she pointed out that BYM provided no material to substantiate the many claims he made in the course of these proceedings about his history of acting as his parents' financial manager, his own circumstances, his financial position, the bases for his continued residency at the Southwest Sydney farm and his personal attributes and qualities which make him a suitable person to act as guardian and financial manager.

Can we be satisfied that BYM is able to exercise the functions conferred or imposed by the guardianship order?

1. It is uncontroversial that BYM is willing to undertake the role of his mother's guardian. The issue in dispute is whether he is "able" to exercise the functions conferred under the guardianship order. As noted by the Appeal Panel in ZKF v ZKG [2019] NSWCATAP 64 at [31], s 17(1)(c) of the Act requires an evaluative judgment about whether BYM is "able" to exercise the function conferred under the guardianship order. This requires consideration not only of whether he possesses the necessary skill and experience to be able to exercise the functions conferred under the guardianship order but also whether he has the personal attributes, such as judgment and integrity, required to exercise those functions. In addition, we must consider whether he is able to make those decisions in a manner consistent with the statutory duty imposed by s 4 of the Act: ZKF v ZKG at [31]; W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25] (per Windeyer J); IR v AR [2015] NSWSC 1187 at [36] (per Lindsay J).
2. A difficulty in deciding whether BYM is able to exercise the functions conferred under the guardianship order, is the lack of any supporting evidence to evaluate his claim of being able to do so. Added to this difficulty, as pointed out by both Separate Representatives, is his failure to disclose information which might be considered adverse to him, until questioned in these proceedings. For example, having been declared bankrupt, having a criminal history and the threatened termination of his continued residency at the Southwest Sydney farm. A further difficulty is the inconsistent evidence BYM gave in these proceedings. For example, when questioned by the Tribunal, he claimed that his parents had no debts apart from the mortgage over their Southwest Sydney apartment. In the closing minutes of the hearing, he revealed that in February 2019 his parents' strata levies were in arrears and in May 2019 NCAT had made an order requiring his father to pay $17,000.
3. The difficulty posed by this failure to disclose is illustrated by the example of the Southwest Sydney farm. In the extensive material filed about "my farm", BYM made no mention of his mother being a co-tenant under a residential tenancy agreement entered into in February 2019, or that proceedings had been commenced to terminate that tenancy. BYM only provided that information when directly questioned in these proceedings. Coupled with the failure to provide any material to support his claim that he subsequently entered into an agreement with the owner of the property and as a consequence, his ongoing occupation of the property is assured, makes it difficult if not impossible, to reach a reliable finding about that claim. The relevance of BYM's failure to disclose is twofold. First, it raises serious concerns about his credibility. The inescapable conclusion is that he has not been candid with the Tribunal in these proceedings and has withheld information he perceives might be adverse to his application to be appointed as his parents' guardian and financial manager. Second, it makes the task posed by s 17(1)(c) of the Act, difficult if not impossible to undertake. For example, BYM is apparently of the opinion that the Southwest Sydney farm offers the best post-discharge accommodation option for both parents. If there is a legal impediment to his ongoing residency, deciding to move his parents to live with him might tend to suggest recklessness, poor judgment and a failure to give effect to the statutory obligation to give paramount consideration to the welfare and interests of UAM and NSM. On the other hand, if there is no impediment to his ongoing residency at the Southwest Sydney farm, it may tend to suggest that he is able to make reasoned and rational decisions about his parents' accommodation in a manner which seeks to give paramount consideration to their interests. Absent some cogent evidence about the claims made by BYM in respect of the Southwest Sydney farm we are unable to evaluate whether the proposal to move his parents to live with him at the farm demonstrates that BYM is able to discharge the accommodation function.
4. The evidence about his criminal history provides a further example. Allegations that BYM had a criminal history, including convictions for fraud, were squarely raised by his brother in the directions hearing on 11 July 2019. As discussed, we find it implausible that BYM did not receive the directions made on 24 July 2019. In any event, when questioned by the Tribunal about whether he had any convictions, the only information he volunteered was that his sole conviction was for the offence of "larceny as bailee". It was only when questioned about 2014 being the last entry in his curriculum vitae, that BYM admitted that he had been in custody for four and half years.
5. It may be, as BYM claims, that the charges which led him to serve a four and a half-year custodial sentence were ultimately dropped. However, his failure to volunteer information about those charges together with his failure to produce any material to substantiate that claim, again makes determining where the truth lies difficult, if not impossible.
6. Having a criminal history does not of itself mean that a person is unable to discharge the functions conferred under a guardianship order. Whether it does will depend on several factors, including the nature of the offence(s), the likelihood that they will be repeated, the passage of time since the offence(s) and whether the offence(s) tends to indicate a defect of character which is incompatible with the personal attributes necessary to the proper discharge of the role of guardian. On the available material it is not possible to evaluate whether BYM's conviction for larceny as a bailee is the sole offence for which he has been convicted, or if it is, whether it tends to indicate that he lacks the personal qualities such as integrity, necessary to enable him to properly discharge the role of guardian.
7. A further factor which raises concerns about BYM's ability to exercise the functions conferred under a guardianship order is his action in arranging for his mother to be made a signatory to the residential tenancy agreement in respect of the Southwest Sydney farm, entered into in February 2019. The evidence about his mother's health is detailed in our reasons for making a guardianship order in respect of NSM. Suffice to say she has been diagnosed with a Major Neurological Disorder and the condition is longstanding. She was apparently first diagnosed with dementia in 2015. She now lacks the capacity to understand the implications of entering into a residential tenancy agreement. Given the severity and longevity of her condition, the inescapable conclusion is that she lacked capacity to enter into that agreement a month or so before her admission to hospital. BYM's actions in arranging for his mother to enter into a residential tenancy agreement at a time when she was demonstrably unable to comprehend that agreement demonstrate at best an appalling lack of judgment.
8. In addition, we are not satisfied that BYM would be able to discharge the functions conferred under the guardianship order because of the demonstrated deep-seated animosity held towards his brother. Section 4 of the Act requires a person appointed as guardian to, among other things, observe the principle of recognising the importance of preserving the family relationships of the person who is the subject of a guardianship order. In a series of emails sent to LZM on 22 July 2019, BYM called his brother a "DOG" and "Fucken Podophile" (sic) and threatened to distribute details of his alleged criminal history to his former clients, unless he withdrew his application to be made guardian and financial manager for their parents. The statement that he made in final submissions that he believed his parents should have access to both children in our view was self-serving and disingenuous, particularly given the earlier statements he made in evidence that his brother would need to engage a solicitor if he wanted to see his parents and he would not be permitted onto the Southwest Sydney farm. The unedifying spectacle of the brothers being escorted away by security officers, following the altercation outside their parents' ward, is further evidence of BYM's inability to work with his brother in a manner which gives paramount consideration to his parents' interests.
9. Finally, we are not satisfied that BYM would be able to work with health practitioners charged with the care of his parents in a way which furthers their interests. We note that he did not raise the proposal to move his parents to the Southwest Sydney farm with any members of his parents' treating team at the public hospital despite their strong recommendation that NSM requires residential care. In addition, we note that despite initially claiming in these proceedings to have canvassed the views of 12 medical practitioners about the Southwest Sydney farm proposal, he later conceded he had not raised this proposal with any medical practitioners, only service providers.
10. On the available material we cannot be satisfied that BYM possesses the personal attributes of sound judgment and integrity required to exercise the functions conferred under the guardianship order. In addition, we cannot be satisfied that he would be likely to exercise those functions in a manner consistent with the statutory duty imposed by s 4 of the Act.

Can we be satisfied that there is no undue conflict between the interests (particularly, the financial interests) of BYM and his mother?

1. Unless satisfied that there is no undue conflict between the interests (particularly, the financial interests) of BYM and his mother, the power to appoint BYM as his mother's guardian cannot be exercised: the Act, s 17(1)(b). In IR v AR [2015] NSWSC 1187 at [35] Lindsay J explained that a "conflict of interest" will be "undue" within the meaning of s 17(1)(b) of the Act if it is reasonably likely, to an unacceptable degree, to impede the proposed guardian's performance of the duties of a guardian in the particular case.
2. LZM claimed in these proceedings that BYM's decision to move his parents to the Southwest Sydney farm is motivated by self-interest and financial gain. BYM strenuously denies that allegation. Their respective claims are unsupported.
3. On the available material we are unable to determine whether, as claimed by BYM, there is no conflict between his interests (particularly, the financial interests) and those of his mother. As pointed out by Ms Kaiti, despite claiming to have managed his parents' finances for over 30 years BYM produced no documents to substantiate the many claims he made about his own financial affairs or those of his parents. In addition, he has not provided any particulars about the legal proceedings he claims to have commenced on behalf of his father to recover fees alleged to be owed by the property manager of the Southwest Sydney apartment complex. Nor has he provided any material to support his claim that over the years he has made numerous loans to his parents, which have not been repaid and which he does not intend to recover.
4. On the available material it is not possible to determine whether there is a conflict between BYM's interests and those of his mother, and if so whether that conflict is undue. It follows, we cannot be satisfied that there is no undue conflict between the interests (particularly, the financial interests) of BYM and his mother.

Consideration

1. For the reasons given, we are not satisfied that BYM satisfies the requirements in paragraphs (b) and (c) of s 17(1) of the Act. Given this finding, it is not necessary to address whether as required by s 17(1)(a) of the Act, BYM has a personality generally compatible with that of his mother.
2. Not being satisfied that BYM satisfies each of the requirements of s 17(1) of the Act, the power to appoint him to be his mother's guardian cannot be exercised. It follows that the Public Guardian must be appointed as NSM's guardian.

Financial management applications

1. Section 25G of the Act provides that we may make a financial management order in respect of NSM only if we have considered her capability to manage her own affairs and are satisfied, to the relevant civil standard, of three matters: 1. that NSM is not capable of managing her affairs; 2. that there is a need for a person to manage those affairs on behalf of NSM; and 3. that it is in NSM's best interests that the order be made.

Is NSM not capable of managing her affairs?

1. As a first step in determining whether NSM is capable of managing her affairs, it is necessary to identify the nature of her affairs, namely her income and assets. The available material indicates that NSM receives the Age Pension and has no assets apart from the Southwest Sydney apartment and a motor vehicle.
2. The weight of medical evidence is that NSM is unable to manage even simple financial matters. Even if accepted, as claimed by BYM that NSM's only asset of note is the Southwest Sydney apartment and that the management of her affairs would be a relatively simple task, the available evidence indicates that NSM is no longer capable of managing her affairs.

Is there a need for a person to manage her affairs on behalf of NSM and is it in NSM's best interests that a financial management order be made?

1. Apparently, the Australian bank has decided to freeze UAM and NSM's bank account. BYM claims that the mortgage over the Southwest Sydney property is in arrears. In addition, on his account NCAT recently ordered UAM to pay $17,000 and the strata title fees on the Southwest Sydney apartment are in arrears.
2. The available evidence reveals that there is an urgent need for steps to be taken in relation to the management of NSM's estate. Decisions will need to be made about the Southwest Sydney property if, as appears likely, UAM and NSM do not return there when discharged from hospital. In addition, arrangements will need to be made in respect of the payment of the mortgage and other debts. Even were it not for these pressing issues, there would be a need for a person to manage NSM's financial affairs because of her level of cognitive impairment.
3. The question of whether it is in her best interests that a financial management order be made and whether there is need for a person to manage NSM's affairs are intertwined. It would be a rare case where it would not be in the best interests of a person for a financial management order to be made in circumstances where it is found that they are unable to manage their affairs and there is a need for a person to manage their affairs. This is not such a case. In our view it is demonstrably in NSM's best interests that a financial management order be made.

Should a financial management order be made?

1. As the pre-conditions to making a financial management order are satisfied, the power to make a financial management order can be exercised. Having regard to the statement of principles contained in s 4 of the Act which require that we observe, among other things, the principle that NSM must be protected from neglect, abuse, and exploitation, we have decided that it is appropriate to exercise the power to make a financial management order.

Who should be appointed to manage NSM's estate?

1. 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 Trustee. BYM is the only person to nominate to act as the manager of NSM's estate.
2. In Application by AMAM; Re SAM [2011] NSWSC 503, commenting on the matters that may be relevant in determining whether a person is suitable to act as a manager of a protected person's estate, Hallen AsJ stated at [34]: "Each case must depend on its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager's character, honesty and ability to manage, diligently, the managed person's property in the managed person's best interests." (See also the "non-exhaustive guidelines" listed by Lindsay J in M v M [2013] NSWSC 1495 at [50]).
3. For the following reasons we are not satisfied that BYM is a suitable person to act as his mother's financial manager.
4. First, his decision to arrange for his mother to sign a power of attorney and enter into a residential tenancy agreement, at a time where she demonstrably lacked the capacity to comprehend the ramifications of her actions. At best this demonstrates an appalling lack of judgment. If, as BYM now apparently claims, he was unaware that a person who lacks mental capacity cannot lawfully make a power of attorney, or enter into a binding contract, it demonstrates a lack of understanding of the most basic legal principles designed to protect a person who lacks mental capacity.
5. Second, BYM's claim to have commenced legal proceedings in the name of his father. Leaving to one side his eleventh hour disclosure of that fact, and his failure to particularise the nature of the claims said to being prosecuted or defended, there is no evidence to indicate that he has sought advice about the prospects of the success of those proceedings, or has the skills and experience to enable him to make a considered assessment. As a consequence, the decision to prosecute that claim may potentially put UAM's estate at risk.
6. Third, if as claimed, BYM has been managing his parents' finances for 30 years, the available material tends to suggest that he has not done a particularly good job. On his own evidence, his elderly parents' mortgage and strata title fees are now in arrears and, in addition his father owes $17,000.
7. Fourth, despite, on his account, having managed his parents' finances for over 30 years, BYM failed to produce a single document about their finances. If appointed manager, we could not be satisfied that he would be willing and able to maintain proper records.
8. Fifth, his proposal to split the balance of any rental income on the Southwest Sydney property with his brother, tends to suggest that he does not appreciate the nature of the fiduciary duty owed by a manager to a protected person.
9. Sixth, for the reasons discussed above, on the available material we could not be positively satisfied that BYM has the personal qualities, necessary to properly undertake the role of financial manager.
10. Not being satisfied that BYM is a suitable person to manage his mother's affairs, we must commit the management of NSM's estate to the Trustee.

Is BYM a "person who has the care of" NSM?

1. At the directions hearing on 11 July 2019, BYM was joined as a party to the proceedings then on foot, which had been initiated by the separate applications made by his brother and the Local Health District seeking guardianship and financial management orders to be made in respect of UAM and NSM. Self-evidently, he was automatically made a party to the Applications he later made seeking guardianship and financial management orders in respect of his parents.
2. Given that BYM is a party to each Application, the question of whether he is a party as a consequence of his status as a "person who has the care of" NSM has little relevance for the purpose of these proceedings. However, that issue must be determined because it will be relevant to the identification of the parties in the review of the guardianship order, required to be conducted under s 25 of the Act.
3. Section 3D of the Act provides: 3D Circumstances in which a person "has the care of another person" (1) For the purposes of this Act, the circumstances in which a person is to be regarded as "having the care of another person" include (but are not limited to) the case where the person, otherwise than for remuneration (whether from the other person or any other source), on a regular basis: (a) provides domestic services and support to the other person, or (b) arranges for the other person to be provided with such services and support. (2) A person who resides in an institution (such as a hospital, nursing home, group home, boarding-house or hostel) at which he or she is cared for by some other person is not, merely because of that fact, to be regarded as being in the care of that other person, and remains in the care of the person in whose care he or she was immediately before residing in the institution. (3) In this section, "remuneration" does not include a carer's pension.
4. In these proceedings BYM claimed that during the period he lived with his parents in Southwest Sydney, 4 October 2018 to 1 March 2019, he did "everything" for them: cooking, cleaning, shopping and driving them to medical appointments. That claim is unsubstantiated and disputed by his brother.
5. But in any event on the available material we could not be satisfied that in the period immediately before his parents were admitted to hospital, BYM provided, on a regular basis, domestic services and support to either parent. It follows that he is not a person who is to be regarded as "having the care of" UAM within the meaning of the Act

Confidential documents

1. On 22 July 2019, a decision was made by the Tribunal (Principal Member Britton) prohibiting the disclosure of eight documents that had been filed in these proceedings, except to the separate representative of UAM and NSM. Written reasons were given for that decision. We decided not to have regard to six of those documents because they were ultimately not relevant to the issues that fell to be determined, either because they were irrelevant to, or peripheral to those issues (see documents 4, 5, 6, 17) or the information in those documents had been disclosed and commented in the course of proceedings (documents 3 and 14). We had regard to documents 1 and 12. In the hearing we put the substance of the allegations in those documents to the relevant party.

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: 08 November 2021