OYD [2019] NSWCATGD 35

OYD [2019] NSWCATGD 35 - NSWCATGD 2019 case summary — Zoe

[7]

Evidence regarding capacity

A letter from Dr Z of a medical centre dated 1 November 2018 was provided to the Tribunal. The letter is addressed to Dr Y of a public hospital and provides medical information for Dr Y regarding an upcoming consultation with OYD. The doctor writes, "[SXD] states he is trying to prevent appointing enduring guardianship for mum as he is concerned that the guardian will be able to rule over the power of attorney re: financial issues. I have asked him to discuss this with you. (Apparently [SXD] and [HBD] both have power of attorney for [OYD])."
An undated handwritten letter from Consultant Geriatrician, Dr Y was provided to the Tribunal and states, "OYD still has mental capacity therefore a Guardianship order would not be (acerted) at the moment". It is likely this letter was written on the day of the consultation on 2 November 2018.
A further letter addressed to the Guardianship Tribunal from Dr Y dated 12 December 2018 was provided. It states: "I have been involved in the care of [OYD] since August 2017, when she was one of my patients following an emergency admission at Blacktown hospital. I've subsequently seen her in the outpatient clinic. [OYD] was initially admitted to [a public hospital] due to cough and breathlessness and this was found to be due to an exacerbation of heart failure, rhinovirus infection with her admission was complicated by gout and Delerium. She made a slow recovery and was discharged home and review in the clinic in November 2017. At that stage it was noted that her cognition had not returned to her usual at her mini mental status examination score at that time was 24/30, suggesting some impairment. When seen in May 2018 in the outpatient clinic a repeat MMSE was 26/30. I reviewed her in person at the Blacktown outpatient on 2 November 2018 and was advised by SXD, her carer, that there were some dispute regarding OYD's mental capacity amongst her sons, so I performed a full capacity assessment and considered that she had capacity to make her own decisions regarding her health, placement and finances. She has mild cognitive impairment and had improved from the delirium associated with her acute illness two years ago. She is undoubtedly frail. I have arranged to review her in the first half of 2019."
In the report from Dr Y there was no further information or details of how the 'full capacity assessment' was carried out on OYD on the 2 November 2018.
SXD provided written submissions and oral evidence. He told the Tribunal that his mother was fully capable of managing her own finances and making her own decisions. He agreed with the opinion of Dr Y as stated in Dr Y's report of 12 December 2018.
NZD and HBD provided written submissions and gave oral evidence. They did not believe their mother had capacity to manage her finances and make important decisions. She had a very poor short-term memory and was not able to process information. In their view, because of these cognitive deficits she was very vulnerable to being exploited.
NZD "strongly disagreed" with the view of Dr Y. He believed Dr Y had allowed himself "to be swayed" by Dr Z's comment in her report that "[SXD] states he is trying to prevent appointing enduring guardianship for mum as he is concerned that the guardian will be able to rule over the power of attorney re: financial issues. I have asked him to discuss this with you".

[8]

Evidence of OYD

OYD gave oral evidence at the hearing on the 25 January 2019. She gave oral evidence again at the hearing on the 28 February 2019. At the hearing on the 28 February 2019, the Tribunal determined it was appropriate to take evidence from OYD in private and without the other parties and witnesses being present. The Tribunal summarised the substance of the evidence in the open hearing to ensure all parties were aware of this evidence and able to respond in their own evidence and submissions.
The Tribunal asked several questions to OYD about the power of attorney she signed and her financial situation. She gave short answers. Her answers demonstrated a very limited knowledge of her financial situation. She mostly said she could not remember. For example, she could not recall signing the power of attorney in March 2018 and asked the Tribunal, "which son turned up to sign?". She did recall banking at the Bank ZZ branch at West Sydney and that her current balance was about $77,000. She could not recall the amount of her pension but later recalled it was $250. She could not recall any details of the last bill that she paid. She was confused about how she paid her bills giving different answers. She did not recall the withdrawals of $65,000 and $66,000 made in August and September 2018. She stated that she found the withdrawals "surprising' but she also said she trusted all her sons. The Tribunal showed her the handwritten document revoking HBD's power-of-attorney dated 7 December 2018. She agreed the signature on the document was her signature. However, she could not recall the document and stated "I must've been mad at him."
During the private evidence on 28 February 2019, the Tribunal asked OYD if she could provide her bank book. OYD told the Tribunal that she thought her bank book was at home. She then checked her handbag and located them. She pulled out from her handbag two bank books. OYD showed the Tribunal the first bankbook being her Bank ZZ first account. The Tribunal asked OYD questions about the transaction entries in the bank book of the withdrawals of $66,000 and $67,000 in August and September 2018 and the subsequent transactions showing the return of these sums. OYD had no recollection of the withdrawals or why they may have occurred.
The Tribunal asked OYD questions about the second bank book being her Bank ZZ second account. The current balance of the account was recorded as $17,000. OYD had no knowledge of this second account and appeared completely unaware of its existence.

[9]

Consideration

The Tribunal has considered Dr Y's view expressed in his report that OYD had capacity to make her own decisions about her health, placement and finances. The Tribunal gives some weight to this view. Dr Y is a Consultant Specialist in Geriatric Medicine. He has reviewed OYD a number of times since April 2017. However, Dr Y provided no information or details as to how he made his assessment on 2 November 2018 and reached his conclusions. For example, did SXD provide his views during the consultation and did Dr Y consider these views in his assessment? It was noted that SXD holds strong views that his mother has full capacity and he accompanied his mother to the consultation with Dr Y. The assessment was also carried out on 2 November 2018, nearly three months ago.
The Tribunal also considered the oral evidence of OYD. The Tribunal found her amiable and open to questions. The Tribunal also determined that she was able to hear and comprehend the questions put to her. However, over the course of her evidence, OYD demonstrated very little knowledge or recall of her financial situation. For example, she could not recall signing the power of attorney in March 2018 or signing the revocation in December 2018. She estimated her regular pension to be about $250.00 being well below the correct sum. She could not recall any details of the last account she paid. She could not recall the substantial withdrawals made from her account in August and September 2018. Most troublingly, she could not recall and had no knowledge of a second bank account in her name that had a current balance of $17,000. The lack of recall and inability to answer basic questions about her financial situation was demonstrated over two separate days of giving evidence and this would therefore suggest her cognitive problems were more than a temporary condition.
Clearly, Dr Y's findings were not supported by the oral evidence of OYD. In the absence of other persuasive evidence or explanation, the Tribunal gives greater weight to the oral evidence of OYD and is satisfied that OYD does not have capacity to manage her financial affairs.

[11]

The views of the son and applicant, NZD

NZD is a registered accountant and tax agent. He and his brother, HBD, filed an application for financial management on 9 November 2018 regarding their mother's financial affairs. They were both concerned about their brother, SXD, unduly influencing their vulnerable mother and taking personal advantage of their mother's finances.
NZD told the Tribunal that for many years his brother, SXD, had lived with their mother and was her carer, receiving the Government Carer Allowance. NZD had little to do with his brother as they had a strained relationship but he did not have any problems with SXD living and caring for his mother.
In March 2018, without any consultation with his brothers, SXD attended a Court in West Sydney to arrange for his mother to appoint himself as sole power-of-attorney. However, the court officer was reported to have suggested the two other sons, HBD and NZD be added as powers of attorney and their mother agreed. All the brothers were then appointed powers of attorney, jointly and severally. SXD and HBD accepted the appointment. However, NZD never signed the appointment as SXD did not make the power-of-attorney available to him to sign.
On 2 October 2018, the bank manager of Bank ZZ at the West Sydney branch contacted HBD with concerns regarding two large suspicious transactions of $65,000 and $66,000 that had been withdrawn from their mother's bank account by SXD on 20 August and 17 September 2018. These funds were then replaced a few days later.
HBD and NZD met with the bank manager to discuss the suspicious transactions. The Manager also advised them that SXD had attended various Bank ZZ branches during the week ending 30 September 2018 and had attempted to close both of their mother's Bank ZZ accounts on four separate occasions with a request to transfer all her funds totalling $78,000 to Bank YY. They understood Bank YY was a bank without a branch and all engagement was by the internet. NZD believed his brother was changing to Bank YY as it could only be accessed online access and this would give him more control and greater access to the funds. That is, his mother does not use the Internet but she does travel to the West Sydney branch to do her banking. The matter was then referred to the fraud division of Bank ZZ. NZD was also informed by the bank manager that SXD had been issued with a warning because he had become aggressive and abusive to branch staff.
After the meeting between the bank manager and HBD and NZD, the manager agreed to place a $300 limit on withdrawals from their mother's account.
On 5 October 2018, NZD had a telephone conversation with SXD to find out why his brother had withdrawn the large sums of money from their mother's account in August and September 2018. SXD refused to provide him with an acceptable reason and SXD was very abusive on the telephone.
On 17 October 2018, NZD and HBD made an offer to SXD to put in place a new power-of-attorney that specified any two of the three brothers could authorise financial transactions on behalf of their mother. However, this offer was ignored by SXD.
NZD also told the Tribunal that SXD had mislead the Tribunal by minimising his criminal history in his written submissions. That is, in his first submission to the Tribunal he stated he served time in a correctional facility for a single drug offence. However, NZD provided a copy of a NSW Court of Criminal Appeal decision dated 4 July 2012 regarding the sentencing of SXD. The decision refers to him being sentenced for a further offence under the Crimes Act 1900 (NSW) being the offence of recruiting another to carry out a criminal activity. The offence was about SXD procuring another person to render the potential victim blind and deaf because the victim had provided information to the police that led SXD to being charged with the offence of manufacturing drugs. SXD received a custodial sentence for these offences.
NZD believes that SXD has unduly influenced their mother in responding to the applications. He highlighted a 12-page submission in the name of his mother. The submission concludes with the statement that the applicants fraudulently abused NCAT processes and requested that NCAT impose a custodial sentence on the applicants. NZD told the Tribunal that this submission is entirely the words of his brother, SXD. His mother would never say such words about her sons and such words were not consistent with her views or her personality.

[13]

The views of SXD

SXD has lived with and cared for his mother for several years. He receives a Centrelink carers allowance. He believes he has always put his mother's interests and welfare ahead of his own. He opposes the applications by his brothers and states that they are "frivolous and vexatious".
SXD believes that his mother has capacity to make her own decisions and he agreed with the view of Dr Y. He disagrees that he controls his mother's financial assets. He stated that his mother is the "principal and the boss". He only acts on her behalf and on her instructions. For example, he travels with her to the bank and withdraws money from her account on her instructions to pay for groceries. He may also attend the local chemist and purchase medication for her but always under her instructions. He does keep or retain receipts on behalf of his mother but he does not spend his mother's money on his own expenses.
SXD told the Tribunal that he did write his mother's submission but with his mother's knowledge, consent and approval. That is, before submitting the document his mother read it and he questioned her whether she required any deletions changes or additions to be made before it was sent.
SXD told the Tribunal that his brothers, NZD and HBD acted fraudulently and without their mother's knowledge in October 2018 when they obtained information from Bank ZZ which they were not entitled to. He and his mother filed a complaint and the Bank apologised and paid compensation for their mistake. He also made further allegations against his brothers regarding their improper conduct.
SXD agreed that he attended the Bank ZZ branch to transfer his mother's funds to Bank YY because Bank YY offered a much higher interest rate.
SXD told the Tribunal that there were no unexplained withdrawals from his mother's bank account. In August and September 2018, he did take a short-term loan from his mother with her full knowledge when he withdrew two large sums of $65,000 and $66,000 but both sums were quickly paid back into her account a few days later. He also told the Tribunal that he did not use his mother's funds to pay for his own expenses. He also told the Tribunal that he did not tell his brothers about the loans as he did not believe his mother was required to explain any withdrawals as it was her own money.
In relation to criminal history, SXD told the Tribunal that he had committed criminal offences in 2007 and 2009 and served a jail term. He stated that he did say some terrible things to the undercover police officer at the time of the offence in 2009 but the offence did not involve an actual victim. He also noted that after his jail term he attended a rehabilitation course. He also joined a local church and is now an active contributing member. He provided character references to the Tribunal who attested to his good character, that he was trusted and was providing good care of his mother.

[14]

Withdrawal of $65,000 and $66,000 in August and September 2018

The Tribunal asked questions of SXD about the circumstances and reasons for the large withdrawals from his mother's account. SXD told the Tribunal that on 20 August 2018 he withdrew the sum of $65,000 from his mother's Bank ZZ account and placed these funds on a horse bet in a horse race. The horse bet won and he used the winnings to return $65,000 to his mother's account on 29 August 2018. Again on the 17 September 2019, he withdrew $66,000 from his mother's Bank ZZ account and placed these funds on a horse bet. This horse bet also won and he used the winnings to return the $66,000 to his mother's account on the 19 September 2018.
SXD told the Tribunal that prior to him withdrawing the money, he had discussed with his mother about how he wanted to borrow these sums of money to bet on a horse race. He was very confident the horse would win. He told the Tribunal that his mother agreed. He also told the Tribunal that he did not put anything in writing in relation to the agreement with his mother but he always intended to repay his mother and he did repay the money. He also did not discuss the loans with his brothers or anyone else before he withdrew the sums from his mother's account.
The Tribunal asked SXD about his capacity to pay the funds back to his mother if the horse bets had not won. SXD told the Tribunal that he had a futures' bet in the sum of $120,000 on the same horse. He produced a copy of a receipt of $120,000 dated June 2018. This related to a horse bet on a horse race in six months' time but SXD agreed this plan relied on the same horse winning the race in six months' time. He told the Tribunal that his alternative plan to repay his mother was to use about $10,000 of his own funds and to take out a loan to repay the balance of the funds to his mother. The Tribunal queried SXD's about his capacity to qualify for a loan given he was on a carers payment. He agreed he was on a carer's pension. The Tribunal queried SXD further and SXD was not able to provide any further information about other income or assets he could use as collateral or security to qualify for a loan.

[15]

Consideration

The Tribunal heard evidence from OYD on two separate occasions. She is 92 years old and appeared frail. Throughout her evidence she clearly did her best to answer the Tribunal's questions. However, as found, she lacked capacity regarding financial matters and appeared to be heavily reliant on her son and carer, SXD, to assist her.
The Tribunal found the evidence of SXD to be unsatisfactory. Firstly, throughout the hearing, SXD told the Tribunal that his mother "was the boss" and she could make her own decisions. His view was irreconcilable with his mother's evidence before the Tribunal that was heard on two separate hearing days. That is, the Tribunal found her oral evidence demonstrated she had very limited recall and comprehension of her financial situation. However, SXD provided no explanation for her evidence and persisted in his view.
Secondly, the Tribunal is concerned about SXD's evidence that his mother provided him with a short-term loan of $65,000 and $66,000 to bet on a horse race. There is no written evidence of the agreement and there was no consultation with others. In her evidence, she had no recollection of the loans. She told the Tribunal she was not a gambler. It is also difficult to believe why OYD, who is a pensioner would agree to loan nearly all her Bank savings to be placed on a horse race with a possibility the horse bet would lose. The Tribunal was also not satisfied from the evidence of SXD that he could fully repay the significant sums to his mother in the event the horse bet lost. That is, it appeared from his evidence that he had not given much consideration about how he would repay the funds to his mother in the event the horse bet lost. All these factors indicate to the Tribunal that SXD was acting in his own best interests and not his mother's best interests. It also calls into account his credibility and gives rise to whether SXD was using his mother's vulnerability and susceptibility to the influence of others for his own personal advancement.
The Tribunal was satisfied that there is a need to appoint someone to manage OYD's financial affairs and it is in her best interests that an order be made. In making this order the Tribunal has considered the general principles of s 4 Guardianship Act 1987 (NSW) and that OYD should be protected from neglect, abuse and exploitation. The existence of an enduring power of attorney appointment is relevant to whether there is a need to appoint a financial manager. However, in the view of the Tribunal this consideration is outweighed by the evidence of SXD which suggested he has not in the past, acted in his mother's best interests. It is also outweighed by the paramount consideration of OYD's welfare and interests and the need to protect her.

[18]

Is OYD a person for whom the Tribunal could make an order because she has a disability which makes her totally or partially incapable of managing her person?

Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is "a person in need of a guardian". A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person": Guardianship Act, s 3(1). 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: Guardianship Act, s 3(2).
The term "social habilitation" is not defined by the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered the meaning in the context of s 3(2) of the Guardianship Act, at [303]; "The expression 'social habilitation' (in the context of references to 'disability', 'restricted', 'major life activities', and the word 'requires') may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others."
In the financial management application, the Tribunal considered the medical evidence from Dr Y but preferred the oral evidence of OYD in determining that OYD was incapable of managing her financial affairs. For the purposes of the guardianship application the Tribunal considered the same evidence to determine whether OYD was a person in need of a guardian.
OYD told the Tribunal that she believed she could make her own decisions and did not need a guardian.
SXD told the Tribunal that his mother could make her own decisions for herself and did not need a guardian.
NZD told the Tribunal that he believed his mother did not have capacity to make decisions. She had very poor short-term memory and lacked insight into her situation and her shortcomings. He stated that in November 2018 he met with his mother and she was unable to remember the names of any of her grandchildren. He also discussed the applications with his mother to seek her views and initially, she was not able to respond until he changed the topic of conversation. He then asked her views about the applications five minutes later and she agreed.
The Tribunal is satisfied for the same reasons set out in the financial management application, that OYD is a person in need of a guardian. That is, OYD demonstrated in her oral evidence over two separate days, very little knowledge or recall of her situation or circumstances. The Tribunal was satisfied that OYD had a disability, being a cognitive impairment that restricts her in a number of major life activities and she requires supervision and assistance. In addition, the evidence reveals that because of her disability OYD is now at least partially incapable of managing her person. It follows that the power to make a guardianship order can be exercised.

[20]

The views of the applicant and son, NZD

NZD made an application for guardianship with his brother, HBD but later they both filed a request to withdraw the application. He told the Tribunal that they had received advice that the guardianship application was unlikely to succeed because of the opinion expressed by Dr Y that their mother had capacity. He and his brother, HBD did not agree with this opinion but they decided not to waste the Tribunal's time and focus on the financial management order. However, upon further discussion and reflection, NZD told the Tribunal that he and HBD were seeking the appointment of an independent guardian to make decisions about access. That is, decisions about whom their mother visits and receives visits from and how those visits are to take place.
NZD agreed he had personal animosity towards his brother, SXD but he accepted his brother was providing good care to their mother and enabling her to remain in her home where she wished to live. He was aware that SXD was their mother's paid carer. He was aware their mother was receiving domestic services to her home. He was aware his mother was regularly reviewed by her general practitioner and geriatrician. For these reasons, he and HBD were not seeking a guardian in respect of decision-making functions other than access.
NZD told the Tribunal that he had been estranged from his brother, SXD, for over the last 25 years. He wrote in his submissions, "I have taken the approach that rather than suffer the abuse from [SXD], I would largely leave him alone, avoid contacting him and speak with my mother weekly by phone and catch up with mum in person at family birthdays, Mother's Days, Christmas functions and other functions where [SXD] was not present".
NZD told the Tribunal that since filing the applications, he and his brother, HBD, had received numerous emails and telephone calls from SXD that were abusive and threatening. He told the Tribunal that at the hearing on 25 January 2019, he attempted to speak to his mother in the Tribunal foyer area about the Australian Open tennis tournament as he and his mother had always been interested in tennis. However, his brother, SXD, intervened and told him it was not appropriate. When he questioned SXD about his intervention, SXD replied words to the effect, "you are just blowing smoke up mum's arse". He did not feel comfortable to speak to his mother after this incident, especially in the presence of his brother.
NZD told the Tribunal that he does not feel comfortable visiting his mother with SXD present or having to deal with his to arrange such visits. He would like an independent guardian to make decisions about access to enable him to see his mother more regularly and enjoy her company. He would also like to see her more regularly so he can check on her health and well-being.

At a glance

Court

Decision date

Source

Judgment (26 paragraphs)

Legislation Cited (5)

Cases Cited (4)