OZD [2022] NSWCATGD 3

Powers on review of the 2021 order

1. On review of a guardianship order, the Tribunal may renew, renew and vary that order, or determine that order is to lapse: Guardianship Act 1987 (NSW), s 25C(c). Before considering which of these orders is appropriate, I must first decide whether OZD remains "a person in need of a guardian": Guardianship Act, s 14.

Is OZD a person in need of a guardian?

1. 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 who has a disability is defined to include a person who is physically, psychologically disabled, and/or is of advanced age 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).
2. None of the participants in these proceedings provided current medical reports in relation to OZD. In its reasons for making the 2020 Order, at [16], the Tribunal noted that previous Tribunals had found OZD has a "cognitive impairment that restricts her in a number of major life activities".
3. In reasons given for renewing the original guardianship order (29 August 2019), the Tribunal referred to a report prepared by Mr Z, Professor of Geriatric Medicine, dated 26 April 2019. In that report Mr Z stated: 1. that OZD had several medical conditions, including Type II diabetes, congestive cardiac failure and low blood pressure 2. that OZD "remains very frail overall" 3. that he performed a capacity assessment and OZD was able to tell him some of the risks that older people are likely to face at home 4. that he believes OZD still has capacity for financial decision making but "recognised with her frailty and mild cognitive impairment this is borderline".
4. OZD attended the hearing in person with the assistance of SAD. She appeared to be very frail and mobilised slowly with the aid of a walking frame. She receives Level 4 home care services from community service provider. In addition, she receives care and support from SAD.
5. In an email sent to the Registrar on 19 March 2022, SAD stated that he had "very important, disturbing, irrefutable evidence about the first Tribunal's finding that [OZD] has a cognitive impairment affecting her ability of daily functioning". He did not provide any documentary evidence in support of that claim.
6. SAD said a recent infection had left OZD in a weakened state and that she "is better than she now appears".
7. He asserted that with his assistance OZD was able to make significant decisions. However, he agreed that she may have difficulties implementing those decisions.
8. It is more probable than not that given that Mr Z's assessment was conducted over three years ago that OZD's cognition has deteriorated since that time. That is consistent with the nature of age-related cognitive impairment, together with my observations of OZD throughout the hearing. Her responses to several questions indicated significant memory loss. For example, she struggled to answer questions about the type of medication she took and the stated reason her doctor had prescribed that medication. Tellingly, the interview conducted a few days before the hearing by the separate representative appointed for OZD, Ms Marla Dudhee, indicates that OZD's cognitive impairment is probably no longer "borderline".
9. The combination of advanced age and cognitive impairment has resulted in OZD requiring social habilitation (support to live in the community) to undertake several major life activities, including managing finances, meal preparation and aspects of self-care. It follows that OZD is a "person with a disability" within the meaning of the Guardianship Act, s 3(2). I find that because of her disability, OZD is currently partially incapable of managing her person. It follows that OZD is a "person in need of a guardian" and the power to renew, or renew and vary the 2020 Order, can be exercised.

Should the 2020 order be renewed, renewed and varied, or allow to lapse?

1. In deciding whether to renew, renew and vary, or to allow the 2020 Order to lapse, I will adopt the approach consistently taken by NCAT and one of its predecessor tribunals, the Guardianship Tribunal of NSW, that in conducting an end-of-term review of a guardianship order, the Tribunal must: 1. consider the matters listed in s 14 of the Guardianship Act 2. observe the "general principles" listed in s 4 of that Act.

Section 14 considerations

1. Section 14(2) of the Guardianship Act, requires that I consider: the views of OZD, the views of her carer, SAD, the importance of preserving OZD's existing family relationships and cultural and linguistic environments, and the practicability of services being provided to OZD without the need for the making of a guardianship order.

Views of OZD

1. At the hearing OZD said that she was happy living in her home, that she was well cared for and that she loved and wanted to see each of her sons.
2. On 19 March 2022, a few days before the hearing, Ms Dudhee met with OZD and sought her views about the making of the guardianship order. In the hearing, Ms Dudhee read out the notes she took during that meeting of OZD's responses to questions asked. Ms Dudhee stated that the notes were not a verbatim transcript but her view they represent a reasonably accurate record of what OZD said during that meeting.
3. The notes are relevant to several issues raised in these proceedings and for that reason, I set them out in full: "The Guardianship Order does not worry me. It's about somebody checking on me. That's alright. I am 95 now. The Public Guardian has not been in touch with me. I don't know about any decisions has been made on my behalf. I don't need someone to make decisions for me. I can make my own decision. Maybe if I have a relative I will be alright. I have got 3 sons. Re accommodation I like Brisbane. I went to school there. I would like to go back to Queensland. My father will help me. He is still there. The house will be left to my 3 sons. I have not friends here and none of my sons like [West Sydney]. [SAD] is still living with me. The other 2 live in Sydney. I do see them. I don't remember when I last saw the other 2 sons. They phone me sometimes. They used to see me every Sunday. [SAD] looks after me and he is a good cook. I don't belong to any clubs. I don't go to RSL. Services They come on Wednesday. I can't remember who come. They clean up the house. I could not tell you who they work for. I look after myself. I can drive myself to the hairdresser. I sold my car. [SAD] takes me to the hairdresser. I am trying to think who does the shopping. I did it myself last time. I can't remember when was there last time. Medical & Dental consent Health Care I can make my own decision about how well I am. If I need a doctor I will go to a doctor. I was just trying to think whether my mother is still alive. I don't know the name of my doctor. I don't get sick. At the moment I don't have a doctor. I am pretty alright at the moment. Access My two sons are welcome to come home. An access function does not bother me Re conflict Somebody does not like somebody. I might move back to Brisbane. I am just trying to think what happened to my dad. I love all my sons. We all get along. We are not fighting"

Views of SAD

1. SAD said that in his opinion there is no need for a guardianship order, and that with his assistance, his mother is capable of making reasoned decisions.

The importance of preserving OZD's existing family relationships

1. A review of the reasons given by previous Tribunals indicates that there is a long history of conflict between SAD and his two brothers, over matters relating to their mother. SAD claims that his brothers have shown no real interest in their mother and that they have unfairly criticised him in circumstances where he has been caring and supporting their mother over a long period.
2. NYD claims that SAD: 1. has attempted to socially isolate and control their mother 2. is guilty of elder abuse 3. on several occasions, has been physically aggressive towards him and their brother, HBD 4. by his intimidating behaviour has made it unsafe for him, HBD and his mother's grandchildren and great grandchildren to visit their mother 5. on several occasions when he went to collect his mother for an outing authorised by the Public Guardian, he was subjected to physical and verbal intimidation by SAD, who among other things charged at him and spat on his window screen. On the last occasion he visited his mother in July 2020, the Public Guardian arranged for the visit to take place when a carer was present, because of "prior abuse". He claimed that his mother was dressed and ready to go and SAD physically stopped her from leaving. He claimed that in a recording he made of that incident, his mother can be heard pleading with SAD to permit her to leave. He claimed that SAD "charged out the door" and pushed "his face in my face". It was "far from pleasant". His daughter and brother HBD were present. His daughter was so concerned that she was about to ring the police. 6. when his mother was hospitalised in December 2021, she was unable to stand and was carried to the car by a neighbour. He claims that SAD did not inform HBD, the Public Guardian or himself about that admission.
3. HBD supported those claims.
4. SAD agreed that he tried to prevent this mother going on an outing with his brothers in July 2020. He said that it was at the peak of the COVID-19 pandemic, and he understood that his brothers were planning to take their mother to Western Sydney, a "COVID hotspot". He agreed that he spat on his brother's car windscreen but claimed this incident occurred many years ago.

Findings

1. The relationship between the three brothers is toxic and has a long history. Even if the benign account given by SAD of his interaction with his brothers is accepted, it reveals that because of their dysfunctional relationship, OZD is unable to enjoy the company of all of her sons. Whether, as SAD asserts it is her preference to remain living at home in his care, is not to the point. She has continuously expressed a view that she wishes to see all her sons. Given her age, cognitive impairment, and evident frailty she is unable to implement that wish.
2. The importance of preserving OZD's relationships with HBD and NYD favours the making of a guardianship order.

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

1. I think it unlikely that making or not making a guardianship order will affect the preservation of OZD's cultural and linguistic environments.

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

1. Because of her advanced age and cognitive impairment, I find that OZD is unable to make and implement decisions in relation to services. The Public Guardian does not hold a services function and it would appear that decisions surrounding the delivery of services provided by the community service provider have been made and implemented by SAD. SAD claims that the services provided are adequate. There is no evidence to support or refute that claim. Given the evidence that a home care package is in place it could not be said it would be impracticable for services to be provided to OZD without a guardianship order.

Separate representative

1. Ms Dudhee submits that the evidence reveals that OZD continues to lack capacity to make informed and rational decisions. She urges the Tribunal to make a guardianship order.

Public Guardian

1. The Public Guardian agrees with Ms Dudhee.

NYD and HBD

1. NYD and HBD urge the Tribunal to make a guardianship order. They argue that their mother is unable to make decisions on her own behalf and that she is vulnerable on account of SAD's "erratic behaviour".

Findings and conclusions

1. The task of deciding whether to renew, renew and vary, or to allow the 2020 Order to lapse, requires me to balance several arguably competing considerations. On the one hand, I must observe the principle that OZD must be protected from neglect, abuse and exploitation. On the other hand, I must restrict her freedom of decision making and action as little as possible. At all times, the paramount consideration is OZD's welfare and interests.
2. For the reasons given above in my view OZD is unable to make and implement significant decisions on her behalf. SAD was the only participant in these proceedings to express a contrary view. He was prepared to concede that his mother "possibly" would struggle to implement decisions made. The record of interview made by Ms Dudhee suggests that OZD's memory problems are much more significant than claimed by SAD. Her statement that her father is still alive and that an option would be for her to join him to live in Brisbane, is telling.
3. As observed by the Public Guardian in its report dated 21 March 2022, given OZD's age it is likely that her care needs will increase. In addition, it is likely that, in the near future a series of decisions will need to be made about additional care, respite care and accommodation.
4. The history to this review makes clear that SAD is effectively the decision maker in respect of those functions that fall outside the scope of the 2020 guardianship order. The real issue to be determined is whether those decisions should continue to be made informally by SAD. Because this is likely to further erode OZD's existing family relationships and because as I explain below in my view SAD is unable to act as guardian, I have decided that it is necessary and appropriate to renew and vary the 2020 order. That decision best gives effect to the paramount consideration, OZD's welfare and interests.

Functions and term of order

1. In the foreseeable future decisions may need to be made about OZD's additional services. I have decided to add a services function to the 2020 Order.
2. In addition, I have decided to make the renewed order for a period of two years.

Who should be the guardian?

1. SAD submitted that if the Tribunal decided to renew the 2020 Order, he should be appointed guardian, arguing that he had been caring for his mother for a long period and was the person who knows his mother best. In the alternative, he submitted that the Tribunal should appoint the Public Guardian with an access function and give him the balance of the functions given under the renewed guardianship order. On the other hand, HBD and NYD, the separate representative and the Public Guardian, urge the Tribunal to reappoint the Public Guardian. HBD and NYD assert that if appointed guardian, SAD would further isolate and continue to prevent them from seeing, their mother. In addition, they claim that SAD in seeking appointment as their mother's guardian is motivated by self-interest. If their mother moved to residential care, he would be left without a place to live having lived with their mother most of his life. SAD argues that he is giving effect to his mother's wishes, who has repeatedly stated that she wishes to remain living in her own home.
2. Where, as in this case, the Tribunal decides to make a continuing, as opposed to a temporary guardianship order, the Guardianship 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 guardian, the Tribunal must satisfy itself that the proposed guardian satisfies each of the three matters listed in s 17(1) of the Guardianship 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 Guardianship Act requires that anyone exercising functions under that Act, including a guardian, must observe the principles in s 4 of that Act.

Is SAD able to exercise the functions conferred by the guardianship order?

1. SAD is undoubtedly willing to undertake the role of his mother's guardian. The issue to be determined is whether he is also "able" to undertake that role. As noted by the Appeal Panel in ZKF v ZKG [2019] NSWCATAP 64 at [31], s 17(1)(c) of the Guardianship Act requires an evaluative judgment to be made about whether SAD is "able" to exercise the functions conferred under the guardianship order. This requires consideration not only of whether he possesses the necessary skill and experience to be able to exercise those functions but also whether he has the personal attributes, such as judgment and integrity, required to exercise those functions. In addition, it requires consideration of whether he is able to, make those decisions in a manner consistent with the duty imposed by s 4 of the Guardianship 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. My observations of SAD's interactions with his mother throughout the course of the hearing, supports his claim that he is an attentive carer. While as discussed above OZD's memory is impaired, her report to Ms Dudhee of "SAD looks after me and he is a good cook", is consistent with that observation. Nonetheless, I note the concerns raised by previous Tribunals about several decisions made by SAD on behalf of his mother, including the alleged decision to discharge OZD from hospital against medical advice (see Reasons for Decision, 29 August 2019 at [47]).
3. With respect to decisions concerning access, I could not be satisfied that SAD is able to make those decisions in a manner consistent with the obligations of a guardian imposed by the Guardianship Act, specifically, s 4(f), which requires that in making decisions a guardian must observe the principle of the "importance of preserving the family relationships". Whether SAD's account, or that given by his brothers about SAD's interactions with his brothers in relation to visits to their mother, is accepted, it points to a long history of high-level conflict, resulting in OZD being deprived the opportunity to see all her sons.
4. Nor am I satisfied that SAD is able to make decisions in relation to the balance of the functions conferred by the guardianship order, in a manner consistent with the obligations of a guardian imposed by the Guardianship Act. First, I could not be satisfied that he would do so in a manner which is consistent with the obligation to preserve family relationships. SAD's conduct indicates that he is either unwilling to inform, less still consult, with his brothers about key decisions relating to their mother. His acknowledged failure to inform his brothers about their mother's admission to hospital in August 2019, is one of many examples. Second, I could not be satisfied that he would be able to make decisions, especially those relating to his mother's accommodation, with the necessary objectivity, judgment and emotional detachment. SAD repeatedly stated throughout the hearing that his mother should remain living in her own home, claiming that she had consistency expressed that wish. He may be correct and remaining at home may well be the best option for OZD at this point in time. However I am not satisfied that SAD is able to bring to the task of making that decision, the necessary judgment, objectivity and emotional detachment to assess, and to re-assess the suitability of his mother's accommodation and care needs, as her health declines. In reaching that finding I note that SAD's strong opposition to the residential aged care option, appears to be fuelled at least in part by his brothers' support for that option. In addition, his personal circumstances, namely his ability to remain living in his mother's house is dependent upon his mother remaining living there. Therefore, there is a risk that consciously or otherwise he will undertake the task of making decisions about his mother's accommodation without the necessary objectivity. My comments should not be taken to suggest that in my view residential aged care is the best opinion for OZD at this point in time, or in the future. Rather, my comments relate solely to my assessment of SAD's ability to bring to decisions about his mother's care needs and accommodation, with the necessary qualities of judgment and objectivity.
5. For the reasons given, I am not satisfied that SAD satisfies the requirements in paragraphs (c) of s 17(1) of the Guardianship Act. Given this finding, it is not necessary to address whether as required by s 17(1) of the Guardianship Act, SAD has a personality generally compatible with that of his mother, and whether, there is no undue conflict between his interests and those of his mother.
6. Not being satisfied that SAD is "able" to exercise the functions conferred under the guardianship order, the power to appoint him as his mother's guardian cannot be exercised. It follows that the Public Guardian must be appointed as OZD's guardian.

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: 15 July 2022