NVT [2015] NSWCATGD 37

Chronology of recent events

1. On 28 April 2014 Ms NVT made an enduring power of attorney and enduring guardian appointment (described as an enduring power of attorney) in Queensland which was accepted by the appointee, Mr TGT, on 28 April 2014.
2. On 27 October 2014 Ms NVT was diagnosed with a brain tumour after undergoing an MRI scan of the brain and was advised she may have only weeks to live.
3. On 21 November 2014 Ms NVT was seen by Dr Z, oncologist, who provided a report dated 25 November 2014.
4. In December 2014 she relocated to NSW. She was admitted to a nursing home and later has continued to reside in NSW with her daughter and family.
5. From 31 October 2014 to 8 January 2015 she was under the care of Dr Y, oncologist, who provided a report dated 20 April 2015.
6. On 9 July 2015 she was seen by Dr X, general practitioner, who provided reports dated 16 July 2015 and 31 March 2015.

Other proceedings

1. A number of legal proceedings have been commenced by Mr KDT in both Queensland and NSW jurisdictions:

• QCAT proceedings to appoint an administrator, appoint a guardian and an application for a declaration about Ms NVT's capacity. All three applications were apparently withdrawn with the consent of the Tribunal on 4 May 2015.
• Federal Circuit Court. These proceedings relate to the assets and property owned by the couple. The matter is listed for mediation in Brisbane on 7 September 2015 and for hearing on 22 October 2015.
• Supreme Court of NSW (Protective Division) which were dismissed by consent on 24 April 2015 before His Honour Justice Lindsay
• The current three applications before NCAT (Guardianship Division)

The Hearing

1. At the end of these Reasons for Decision are lists of the parties to the application, the witnesses who attended the hearing and a list of the documents considered by the Tribunal. [appendix removed for publication]

REVIEW OF THE ENDURING GUARDIAN APPOINTMENT

1. When reviewing an Enduring Guardianship appointment the Tribunal may revoke the appointment or confirm the appointment with or without varying the functions of the appointed enduring guardian.
2. The Tribunal must not revoke the appointment of an enduring guardian unless: 1. the enduring guardian requests the revocation; or 2. the Tribunal is satisfied it is in the best interests of Ms NVT that the appointment be revoked.

GUARDIANSHIP

1. The questions which had to be decided by the Tribunal in relation to guardianship were:

• Is Ms NVT 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?

FINANCIAL MANAGEMENT

1. The questions which had to be decided by the Tribunal in relation to financial management were:

• Is Ms NVT incapable of managing her affairs?
• Is there a need for another person to manage Ms NVT'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?

Preliminary matters

1. Mr KDT had made an application seeking to be legally represented at the hearing. As the application was lodged close to the hearing date, it was considered on the day of the hearing. Mr W submitted that it would be of assistance to the Tribunal if Mr KDT was legally represented as Mr W could keep Mr KDT focussed on the relevant matters for consideration by the Tribunal and ensure his answers were pertinent and addressed the issues. There were a number of complex legal issues. Ms NVT was legally represented. The application for representation was opposed by Mr V for Ms NVT and by Mr TGT, who was also a party. Mr V and Mr Smith did not object to Mr W remaining in the proceedings as a support person for Mr KDT which is known as a McKenzie friend. A support person in this role does not legally represent the party and is not entitled to advocate on the party's behalf.
2. After deliberation, the Tribunal granted leave to Mr KDT to be legally represented. The Tribunal accepted that the assistance of Mr W would ensure the Tribunal could focus on the questions to be decided. It was apparent that emotions ran high in the matter and Ms NVT had been very distressed at the prospect of a hearing involving Mr KDT. It transpired that Mr W was of great assistance to the Tribunal during the hearing. He had not had an opportunity to review all the material that had been lodged before the Tribunal. The Tribunal decided to take an adjournment to enable Mr W to review the material, in particular the medical evidence. Before the adjournment the Tribunal asked Mr W to specifically consider the medical evidence relating to Ms NVT's capacity to make decisions. There was a presumption that Ms NVT had capacity unless it was established to the contrary on the balance of probability. It was essential for the Tribunal to make a finding in relation to Ms NVT's lack of capacity if it was to proceed to consider making a guardianship order.
3. The other issue that the Tribunal asked Mr W to consider was whether the Tribunal lacked jurisdiction to hear an application to review an interstate enduring guardian document. The Tribunal's initial view was that it could recognise an interstate document if it conformed to the requirements of the state in which it was executed (in this case Queensland) but a NSW Tribunal could not review or vary its terms. Mr W was referred to a decision of NCAT QBL [2014] NSWCATGD 8 of 13 January 2014.

EVIDENCE

1. During the adjournment the Tribunal elected to interview Ms NVT separately but in the presence of her solicitor. Mr V did not answer any questions on behalf of his client. After providing her evidence Mr V asked if his client could be excused from the rest of the hearing as she found it too distressing to be in the presence of Mr KDT. Mr V remained in the hearing.
2. The Tribunal summarised Ms NVT's evidence for the parties on their return to the hearing.
3. The main points in Ms NVT's evidence were as follows:

• She had been unhappy in her relationship with Mr KDT for some time. He did not communicate with her. She thought to herself 'I'm not going to do this anymore.'
• It had put everything into perspective for her when she was diagnosed with cancer.
• She was unsure of timeframes but mentioned she had been diagnosed with breast cancer before her brain tumour.
• Her decision to make an enduring guardianship and power of attorney document was her idea. She was not influenced by family. She did not want Mr KDT appointed to manage her money or make decisions on her behalf.
• He had not been physically abusive but she found him unsupportive particularly after she had been diagnosed with cancer.
• She did not tell Mr KDT she was leaving him, she just left.
• At first she could not remember anything but after her treatment her memory was much better. She did not think she had any problems with the sequencing of events.
• She was asked about the various friends who had written letters saying that they had not been able to speak to her or visit her since she relocated to NSW. She recalled all the friends named. Some were closer friends than others. The gentleman named Mr U was really Mr KDT's friend. She thought she would probably like to see some of them or speak to them when she felt better. Also Mr KDT had kept her phone and charger so she did not know any of her friends' telephone numbers to contact them herself.
• She had requested the nursing home staff to stop Mr KDT contacting her as she did not wish to see Mr KDT. He had contacted her on one occasion at the nursing home by pretending to be someone else.
• She wanted to remain in NSW with her family. Ms TBT, her daughter, took her to appointments and made her do things.
• With respect to money matters she had made Mr TGT her attorney. He consulted her about any decisions.
• She was asked if she had found all the legal proceedings stressful and she replied 'a bit.'

1. The Tribunal received a number of medical reports lodged on behalf of Ms NVT. Mr KDT had submitted a report from Dr S, an MRI scan and a letter from social worker, Mrs T. He indicated that as he was no longer regarded as Ms NVT's next of kin he had been prevented from obtaining any reports regarding her capacity. The report of Dr S stated he had known Ms NVT since 1987 and Mr KDT since 1992. His report attached the MRI scan which disclosed a large lesion within the left frontal lobe which was compatible with a glioblastoma multiformae. His report did not comment on Ms NVT's condition or her capacity and stated that Mr KDT and Ms NVT were estranged by 'a set of circumstances beyond my comprehension' and he supported Mr KDT being able to visit Ms NVT at the nursing home.
2. The report served from Mrs T appeared to be [solely] based on information provided by Mr KDT. She had no contact with Ms NVT or other family members.
3. There were two reports from Dr X, GP, who had treated Ms NVT when she was admitted to the nursing home. He confirmed the diagnosis of glioblastoma multiformae, a brain tumour with a poor prognosis generally. Ms NVT had fortunately responded well to chemotherapy. After two months, she left the nursing home and returned to reside with her family. Ms NVT had not complained of confusion, headaches or irritability, only tiredness. When he reviewed her in early July, the follow up scan showed a shrinking of her tumour and her oncologist was pleased with her progress. Dr X specifically addressed the extent of Ms NVT's disability and its effects on her capacity to manage life decisions. She appeared to be very clear on about what she wanted. 'She was happy to live in Sydney with her daughter and was adamant that she did not want to have anything to do with her de facto, that she wanted a civilised property settlement and that she wanted her children to care for her.' She mentioned to Dr X that she had recently made a new Will. Dr X stated there was no indication of an impaired testamentary capacity. His report of 31 March 2015 stated that whilst she was under his care at the nursing home, his view was that she was of sound mind and capable of making decisions 'at this point of time.'
4. Dr Z, oncologist, noted that Ms NVT had apparently made a new Will on 31 October 2014. She was at that point about to undergo radiation and chemotherapy. 'It would be my professional opinion that Ms NVT had full capacity to understand the assets that she owned at the time of signing…that she had capacity to understand who she should consider providing for in her will and ultimately that she had capacity to enter into a Last Will and Testament.'
5. He considered all his interactions with Ms NVT had shown her 'questioning has been completely appropriate and it would appear she has not suffered any neurocognitive sequelae from her treatment this far.'
6. Dr Y, oncologist, also confirmed the diagnosis of glioblastoma multiformae. The treatment had affected her short-term memory but she had retained her long-term memory and was able to make sensible decisions about her living arrangements and treatment. 'I believe that Ms NVT was competent and was able to make any legal and financial decisions when she was under my care.'

Review of the Enduring guardianship

1. In QBL [2014] NSWCATGD 8, a decision of this Tribunal, also considered an enduring power of attorney document which was executed under the Powers of Attorney Act 1998 in Queensland and included the appointment of the attorneys for financial and personal/health matters as did the document in the current proceedings. The Tribunal in QBL had been requested to review both the enduring power of attorney section and the enduring guardian component of that document. The Tribunal noted that our jurisdiction was drawn from Part 2 of the Guardianship Act 1987 (NSW). Section 6 O(1)provides that an instrument appointing an enduring guardian is recognised and has effect in NSW as if it was an appointment made under, and in compliance with, the Guardianship Act. The Tribunal found there was no provision in the part to consider the 'guardian-like' appointment contained in the Queensland Enduring Power of Attorney document as there was no equivalent in NSW.
2. Mr KDT had asserted that Ms NVT was unduly influenced by family members to execute the document. The appropriate jurisdiction to ventilate that argument was the Queensland Tribunal (QCAT). The Tribunal notes that Mr KDT lodged three applications in the QCAT jurisdiction and they were all dismissed by QCAT in May 2015.
3. The Tribunal summarily dismissed the application to review the enduring guardianship as it was satisfied it lacked jurisdiction to entertain the application.

Guardianship

1. Before the Tribunal may make a guardianship order it must be satisfied that:

• Ms NVT is a person with a disability within the meaning of the Guardianship Act;
• because of that disability/those disabilities she is totally or partially incapable of managing her person;
• there is a need for a guardianship order to be made in relation to her

1. Section 3(1) of the Guardianship Act provides that 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; 5. 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 (section 3(2), Guardianship Act).
2. The Tribunal must also be guided by section 4 principles which are set out below: (a) the welfare and interests of such person should be given paramount consideration, (b) the freedom of decision and freedom of action of such person should be restricted as little as possible, (c) such person should be encouraged as far as possible to live a normal life in the community, (d) the views of such person 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 person, 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.
3. The Tribunal could not be satisfied that Ms NVT has a disability which affected her capacity to make important life decisions. There was strong medical evidence (Dr Z, Dr Y and Dr X) to the contrary. Despite her serious condition, even when she was undergoing chemotherapy and radiation, her medical team considered she was competent to make decisions about her medical treatment, finances and was clearly able to indicate what she wanted.
4. A person is presumed to have capacity to weigh up the pros and cons and the consequences of their decisions unless there is clear evidence to the contrary. Ms NVT was adamant in her view that the relationship with her de-facto partner was over and she did not want to see him. She maintained her view at this hearing which appears to have been her consistently expressed view since at least late 2014. There is evidence she has made the same statement to the nursing home staff; to Dr X; to family members, and to His Honour Justice Lindsay in the Supreme Court proceedings on 24 April 2015.
5. The Tribunal was satisfied that Mr TGT has been appointed as to make decisions about his mother's personal/health matters under a Queensland Enduring Power of Attorney document which would come into effect in the event Ms NVT, at some point later in time, is assessed as lacking capacity to 'understand the nature and foreseeing the effects of a decision and of communicating that decision.'
6. The main reason for the guardianship application and various submissions lodged by Mr KDT appears to enable him to have access to Ms NVT and also information about her healthcare. Ms NVT has clearly stated in both the Supreme Court proceedings and the NCAT hearing that she does not wish to see Mr KDT or have anything to do with him. Proceedings in the Guardianship Division, as in the Protective Division of the Supreme Court, and as commented by his Honour Justice Lindsay, are for the protection of persons who have a disability and not to resolve what is essentially a family law type dispute. The Tribunal took into account all of the section 4 principles into account, particularly (a) to (d). The Tribunal was satisfied that the guardianship application should be dismissed. There was no medical evidence to support a finding that Ms NVT lacked capacity to make decisions about her welfare. On the contrary Ms NVT had been consistently able to express her views about where she chose to live, her healthcare and medical treatment and about persons to whom she wished to have access.
7. Having decided the application should be dismissed on the basis that Ms NVT is not a person for whom the Tribunal could make a guardianship order, there was no need to address the other questions set out above.

Financial management

1. The test for determining a person's capability to manage their affairs is discussed in P v NSW Trustee and Guardian [2015] NSWSC 579

• Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a financial manager charged with a duty to protect his or her welfare and interests?
• Is the person able to make and implement decisions about his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation
• The informal mechanisms or support systems available need to be taken into account when assessing a person's 'ability' to manage their financial matters.

1. Ms NVT had been assessed by Dr Z and Dr Y as capable of making decisions about her financial affairs. She had executed an enduring power of attorney appointing her son, Mr TGT as her attorney in April 2014, some six months prior to her diagnosis.
2. She gave evidence that she recalled making the appointment. She was able to explain to the Tribunal why she had appointed her son and she indicated she trusted her son to act in her best interests.
3. Unfortunately Mr KDT appears to be unable to accept that his relationship with Ms NVT has ended. He has commenced a number of actions in Queensland and NSW. His Honour Justice Lindsay commented in relation to the proceedings brought in the Protective Division of the Supreme Court NSW 'these particular sort of proceedings are not a great vehicle to sort out what might be described as property matters. These particular proceedings focus on the protection of a person that needs protection.'
4. It appears the prime motivation for the commencement of a financial management application was to further a resolution of financial matters between the parties as Mr KDT had been unable to speak with Ms NVT directly regarding issues involving their business. Federal Court proceedings have been commenced in Brisbane and a date for a mediation and hearing have been appointed in the near future to resolve financial matters between the estranged couple under the de facto relationship legislation. This appears to be the appropriate jurisdiction to resolve the parties' financial issues. Mr KDT has apparently raised the issue of Ms NVT's capacity to provide instructions in that matter as the Federal Circuit Court Consent Order of 21 July 2015 notes that the mediation date can be deferred if there is no timely decision from NCAT as to the wife's capacity.
5. The Tribunal considers that this is not an appropriate use of its jurisdiction. In the event that Ms NVT is found to lack capacity to instruct solicitors then she has a validly appointed attorney to represent her or the Federal Circuit Court could appoint a Tutor in those proceedings. There is no evidence before this Tribunal to make a finding that Ms NVT lacks capacity to provide instructions to her legal counsel or that she cannot make decisions about her financial affairs. The Tribunal notes she has been legally represented in the Supreme Court of NSW and before NCAT without this issue being raised. Ms NVT also has solicitors on the record in the Federal Circuit Court proceedings.
6. The Tribunal was not satisfied that there was evidence to support a finding that Ms NVT lacked capacity to manage her finances. She had put mechanisms in place to support her including the instruction of legal counsel. She had also appointed an attorney to act on her behalf whom she indicated she trusted to act in accordance with her wishes and best interest.
7. The Tribunal was not satisfied there is a need to appoint someone to manage Ms NVT's affairs or that it is in her best interests that an order be made.
8. The application for financial management should also be dismissed.

Standing and costs

1. Mr V raised the issue that his client had been very distressed by all the legal proceedings undertaken by Mr KDT. Mr V was not seeking costs of these proceedings but sought an assurance that Mr KDT would now accept that he had exhausted all avenues by way of litigation without success and that costs should be used as a deterrent to the commencement of further proceedings.
2. Mr KDT has obviously found it difficult to accept that his partner does not seek to continue their relationship. She has strongly and consistently expressed her wish not to have any ongoing contact with Mr KDT. The dismissal of the QCAT proceedings, Supreme Court (Protective Division) proceedings and the NCAT proceedings demonstrate the lack of merit in the applications brought by Mr KDT in those jurisdictions. The Federal Circuit Court appears to be the appropriate jurisdiction for Mr KDT to resolve any outstanding issues with his former partner. The Tribunal considers that in the event Mr KDT commenced any further application in the Guardianship Division of NCAT for the same issues it should be regarded as vexatious and his standing to lodge a further application should be seriously questioned.
3. There is a non-exhaustive list of criteria in relation to standing set out in KTC [2011] NSWGT 23 (18 October 2011). The applicant:

• must have a genuine concern for the welfare of the person the subject of the application;
• is bringing a factual situation to the Tribunal which the subject person's best interests may call for intervention by the Tribunal;
• must be sincere;
• motivated by the desire to advance the welfare of the person-this must be the primary motivation even if there are other motives.

1. The Tribunal consider that the commencement of any further litigation in NCAT against a seriously ill woman could not be regarded as demonstrating genuine concern for advancing Ms NVT's welfare or be in Ms NVT's best interest .The proceedings in the Federal Circuit Court appear appropriate and should be capable of resolving any outstanding property issues between the de-facto couple.

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

Amendments 14 November 2016 - Parties names incorrect. Changed references to attorney from UAT to TGT. 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: 14 November 2016