P v R

The hearing 6At the end of these Reasons for Decision are lists of the parties to the application and witnesses at the hearing [Appendix removed for publication]. 7At the commencement of the hearing the Presiding Member explained the purpose and nature of the proceedings, the issues which the Tribunal would have to decide and the procedures which would be adopted for conducting the hearing. 8The Guardianship Act 1987 (NSW) requires that before the Tribunal makes a decision on any application, it must bring the parties to a settlement or use its best endeavours to do so. This is not required if the Tribunal considers that it is not possible, or appropriate, to attempt to bring the parties to a settlement. At the hearing the Tribunal used its best endeavours to ascertain the issues, if any, between the parties. There were clearly issues concerning the capacity and capability of Mr EAD and the need for either a guardianship or a financial management order. The Tribunal was unable to resolve the differences between the parties on these issues.

(a)Guardianship 9The questions which had to be decided by the Tribunal were:

• Is Mr EAD someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?
• Should the Tribunal make a guardianship order?
• If so, what order should be made? Specifically what functions should the guardian have?
• If a guardianship order is to be made, who should be the guardian?
• How long should the guardianship order last?

(b)Financial Management 10The questions which had to be decided by the Tribunal were:

• Is Mr EAD incapable of managing his affairs?
• Is there a need for another person to manage the affairs of Mr EAD and would it be in his best interests for a financial management order to be made?
• If an order is to be made on the basis of the answers to those questions, who should be appointed as financial manager?

Participation in the hearing by Mr EAD and his views 11Mr EAD participated actively in the hearing. He described how he and his partner Mrs KCD had been together for 35 years. He said that they had a pattern of travelling and using money and as a consequence he believed that they had, in his words, "gone down." He confirmed that there had been a gradual decline in his assets and his money. He said that he was trying very hard to adjust to life on the pension. 12Mr EAD was only able to give some details of his current bank accounts and then only upon prompting from Mrs KCD. He confirmed that he had recently made Mrs KCD his Centrelink nominee. When prompted and assisted by Mrs KCD, Mr EAD told the Tribunal that he was thinking of opening a bank account to assist with alleviating his debt. Mr EAD was unsure of his current bank balance but described how he previously had property at North-Western Sydney and in Tasmania, the North-Western Sydney property having been sold for $420,000 and the Tasmanian property for $15,000. The Presiding Member asked about Mr EAD's gambling habits and Mr EAD confirmed that he had lost some money gambling but said that gambling was the main form of relaxation for him and his wife: neither of them smoke or drink. 13Mr EAD also confirmed that he had lived in a monastery for two and a half to three years and that the head of the monastery had been very influential upon him but that during his time in the monastery he had accumulated substantial debts. When asked whether he was well looked after and settled he replied: "yes and no" he said that the low-care aged care facility "has some wonderful things" but he was disturbed by the number of younger people coming in to the residence. Mr EAD was quite clear that he and Mrs KCD wish to leave the low-care aged care facility and that once his home had been sold they would move to "some sort of home that we can own and have something for later on if things calm down."

THE TRIBUNAL'S ASSESSMENT OF THE EVIDENCE AND DETERMINATION OF THE ISSUES

Is Mr EAD someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions? 14The Tribunal considered a number of written medical and related professional reports concerning Mr EAD. These included an Aged Care Client Record ("ACCR") dated 28 May 2013, in which it is reported that Mr EAD has been diagnosed with bipolar disorder, cognitive deficits, including what appear to be deficits as a result of a stroke involving a frontal and parietal lobes infarction in 2005. His last Mini Mental State Examination ("MMSE") was last noted at 26/30. Mr EAD was observed to be vague and to become confused. 15A neuropsychological assessment of Mr EAD was undertaken on 26 November 2013 by Ms Z of the Department of Geriatric Medicine at the public hospital. Ms Z noted that a neuropsychological assessment conducted in July 2012 had found evidence of front-subclinical dysfunction. Mr EAD's MMSE results were noted at 28/30 in an assessment on 27 July 2012 but this had dropped to 22/30 at the November 2013 assessment. Ms Z concluded that there was evidence of significant cognitive impairment of Mr EAD, with evidence of further deterioration since his assessment a year previously. Her overall impression was that Mr EAD has deficits in attention, poor problem-solving and reasoning and displays disorganised thinking. In her view, his memory deficits conform to the pattern seen with frontal lobe impairments and she stated that her findings are consistent with a diagnosis of vascular dementia. 16Ms Z reported that there was evidence of a lack of consistency in Mr EAD's thinking over time and evidence of poor planning skills and an inability to engage in goal-directed behaviour, with unrealistic plans. She noted that he was also highly vulnerable to the influence of others. These findings as to Mr EAD's incapacity were largely supported by other professional reports including a psychogeriatric report dated 20 May 2014 and a report dated 16 June 2014 from Dr Y, Staff Specialist Geriatrician at the public hospital. The latter report also noted that Mr EAD was highly vulnerable to exploitation by others. 17There was no inconsistent or contradictory medical or other professional evidence. The Tribunal accepted the reports referred to above as reliable and persuasive and on that basis it was satisfied that Mr EAD is someone for whom it could make a guardianship order because he has disabilities which prevent him from making important life decisions.

Should the Tribunal make a guardianship order? 18The Tribunal explained that it could not make a guardianship order for Mr EAD unless it could be satisfied that there was a current need for decisions to be made on his behalf about his personal life matters, that there was no practicable alternative or informal means of making those decisions or of making services available to him, and that the appointment of a guardian would promote his welfare and interests.

The evidence 19In considering this issue the Tribunal gave particular weight to the findings reflected in the medical and professional reports as discussed under the previous heading. 20Mr EAD himself was opposed to the making of a guardianship order. However the Tribunal noted that his evidence was in many instances inconsistent, particularly when he was explaining his decision to leave the low-care aged care facility and to move in with his wife. 21The applicant, Mrs MBE, who is Care Manager at a community care centre, in her written report dated 13 June 2014 indicated that Mr EAD had been living at the low-care aged care facility since March 2013 and that initially his health improved, he put on weight and his mental health became more stable. Mrs KCD then came back into Mr EAD's life and suggested to him that he move out of the low-care aged care facility and that they had planned to live together. This proposal has been a factor in Mr EAD's life over the last year. At the hearing, Mrs MBE confirmed that Mr EAD had moved into a monastery when he had been left homeless by having to sell the unit in which he and his wife had previously owned, in order to settle certain gambling debts which Mrs MBE understands where incurred by Mrs KCD 22Mrs KCD gave a complex and, on the whole unconvincing account of how debts were incurred and insisted that when Mr EAD leaves the low-care aged care facility she will look after him and that she would ensure that he made appropriate and sensible decisions. 23The Tribunal found Mrs KCD's evidence to be inconsistent and unpersuasive. For example, Mrs KCD insisted that upon leaving the low-care aged care facility she and Mr EAD would be living "at [Sydney] in an assisted living unit". This was contradicted by Mrs MBE and by Mr HDI the General Manager of the low-care aged care facility who indicated that the unit which Mr and Mrs KCD had identified was not an independent living unit. At that point Mrs KCD interjected that the unit was attached to assisted living units, although it was not actually an independent unit. It seemed agreed that this would mean that Mr and Mrs KCD would have to pay for amenities and the Tribunal was not able to ascertain from the account given by Mr or Mrs KCD how this would be done. 24At the hearing Mrs MBE and Mr HDI emphasised their very substantial fears that Mr EAD's health would decline once again if he were removed from the low-care aged care facility. Mrs MBE confirmed that as applicant she was only seeking the appointment of a guardian with an accommodation function although services function might also be necessary if Mr EAD were to live in the community. She was convinced that Mr EAD could provide his own medical and dental consents.

The Tribunal's determination of this issue 25In reaching a conclusion on this important issue the Tribunal took into account the guiding principles set out in section 4 of the Guardianship Act. The principles which appeared to have primary relevance to this case were the need to protect Mr EAD from neglect and from exploitation, the need to take into account Mr EAD's family relationships and the need to encourage him, so far as possible, to lead a normal life in the community. The Tribunal also took into account the requirement of section 4 that in deciding whether to make an order and in formulating any order it should restrict Mr EAD's freedom of decision and freedom of action as little as possible. As subsection 4(a) of the Act requires, the Tribunal gave paramount consideration to Mr EAD's welfare and interests. 26The Tribunal also considered the factors prescribed by subsection 14(2) of the Guardianship Act. It was satisfied on the basis of the evidence that there was a current need for decisions on behalf of Mr EAD, particularly in relation to accommodation and services, to be made by a guardian. The Tribunal was satisfied that there was no practical alternative to the appointment of a guardian. In particular the Tribunal could not be persuaded that the proposal for Mr and Mrs KCD to live in the community without support would serve Mr EAD's welfare or interests and believed that this would leave him exposed to exploitation and neglect. Accordingly, the Tribunal was satisfied that there was a need for a guardian to be appointed for Mr EAD and that on the basis of the evidence such an appointment would be in his best interests.

If so, what order should be made? Specifically what functions should the guardian have? 27It followed from the discussion with Mrs MBE and Mr HDI as outlined above that any guardian for Mr EAD should have the authority to make decisions for him about his accommodation and services. The Tribunal could not be satisfied that there was a need for other decisions to be taken by a guardian, at least at this stage.

If a guardianship order is to be made, who should be the guardian? 28The Tribunal may appoint a private person or the Public Guardian as a guardian. The Tribunal will not appoint the Public Guardian if an order could be made appointing a suitable private person as guardian. So, wherever possible, the Tribunal appoints a family member or a friend to act as guardian. 29At the hearing Mrs KCD indicated that she was willing and able to be appointed as the guardian of Mr EAD. However, the Tribunal could not be satisfied that Mrs KCD was a suitable person to be appointed or that Mr EAD's welfare and interests would be protected or served by her appointment. With reference to the tests set out in section 17 of the Guardianship Act, the Tribunal could not be satisfied that Mrs KCD had a personality which was generally compatible with that of Mr EAD. The Tribunal accepted the accounts which indicated that Mrs KCD had a gambling problem and that it was a desire to make repayments of her gambling debts which had led to Mr EAD becoming homeless. It must be noted that the tests in section 17 are exclusionary and not facilitative. That is, section 17 specifies that a person shall not be appointed as the guardian unless the Tribunal are satisfied that the three tests in that section had been met. This section does not deprive the Tribunal of the ability to consider whether, apart from those tests the appointment of a particular person would be in the interests of the subject person or would further their welfare. 30No other private person was identified to the Tribunal as being willing and able to be appointed and on that basis the Tribunal was satisfied that there is no private person available to be appointed as guardian. The Tribunal appointed the Public Guardian as the guardian for Mr EAD.

How long should the guardianship order last? 31An initial guardianship order can be made for a period of up to one year from the date on which it was made. However, an order of up to three years can be made, if the person the subject of the order has permanent disabilities, and is unlikely to become capable of managing his or her person and there is the need for an order longer than one year. The Tribunal decided to make an order for one year on the basis that although some early decisions would be needed from the guardian, particularly in respect of Mr EAD's accommodation, there may well be an ongoing need for the guardian to be available to make decisions for him in respect of both the accommodation and services functions.

The legal principles 32The Supreme Court of New South Wales has provided guidance in several decisions as to how the Tribunal should assess a person's capability to manage his or her affairs. In earlier cases the Court had based its test predominantly on the ability of the subject person to conduct the everyday affairs of ordinary people. It was said that if by reason of a failure to do this the person would be disadvantaged or there would be a real risk that they would be disadvantaged or that their money or assets would be at risk of dissipation, then they would properly be treated as being incapable of managing their affairs. 33In three more recent Supreme Court decisions; P v R [2003] NSWSC 819, Re D [2012] NSWSC 1006, and PB v BB [2013] NSWSC 1223, it has been emphasised that the Tribunal should not be relying just on hypothetical notions such as "the ordinary affairs of people" but rather should focus on the capability of the particular person to deal with his or her actual assets and to do what he or she is proposing to do with them. In P v R, Justice Barrett said that the task of the Tribunal in these circumstances: ".... is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person's property. ...The requisite judgment is to be made in the light of objective physical facts concerning the relevant person's property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter." 34In PB v BB, Justice Lindsay confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at paragraph [7]: "Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack "mental capacity" or be "mentally ill"; or (b) particular reasons for an incapacity for self-management." 35So, as a result of these authorities, the Tribunal will look at the functionality of management capacity of the person concerned rather than their mental capacity or the particular reasons for their incapacity for self-management. It will look at the actual assets of the person concerned, how they are proposing to manage their ordinary affairs of living, whether they can look after their assets and what they are proposing to do with them. 36If the Tribunal finds that the person under consideration: (i)cannot manage their ordinary affairs of living; or (ii)does not have a reasonably sound understanding of what their assets, liabilities and sources of income are, or what needs to be done to preserve them, and for that reason is unlikely to be able to preserve their money or assets or is likely to be disadvantaged in their dealings; or (iii)does not have at least some basic understanding of the complications and risks of what is proposed to be done (by themselves or others) with their assets or money and it is unlikely that those proposals will be achieved or there is a substantial risk that they will result in the person's money or assets being dissipated or lost; or (iv)lacks the ability to identify situations where others may be attempting to benefit from the person's assets or money and consequently there is a real risk that the person will be disadvantaged or that their money or assets will be dissipated or lost; then the Tribunal can be satisfied that the person is incapable of managing their affairs.

Application of those principles in the present case 37The Presiding Member summarised and explained the legal tests applied by the Tribunal in deciding whether someone is capable of managing their affairs. The Tribunal relied on the medical and related professional reports referred to on page 4 above. The Tribunal's preliminary view based on those reports was that Mr EAD does have difficulty managing his ordinary affairs of living and that he lacks the ability to identify situations where other people may be attempting to exploit him. These views were supported at the hearing by Mrs MBE and by Mr HDI. They were strenuously opposed by Mrs KCD. For the reasons explained on page 7 above the Tribunal preferred the evidence of Mrs MBE and Mr HDI to that of Mrs KCD. On that basis the Tribunal was satisfied that Mr EAD is incapable of managing his affairs.

Is there a need for another person to manage the affairs of Mr EAD and would it be in his best interests for a financial management order to be made? 38In considering this issue the Tribunal relied principally on the medical evidence discussed above and the detailed evidence from Mrs MBE and Mr HDI. In particular, Mrs MBE was concerned that without the appointment of a financial manager Mr EAD will continue to incur debt and his current bills will remain unpaid. Mrs MBE asserted that Mr EAD becomes stressed and anxious because of his debt levels and this coincided with the Tribunal's own observations of Mr EAD when providing evidence about his current debts. For the reasons outlined on page 7 above, the Tribunal could not accept the suggestions from Mrs KCD or from Mr EAD himself that their debt situation would be resolved upon their moving out of the low-care aged care facility. Indeed no clear or persuasive plan for repayment of debts was evident. 39Additionally, Mr HDI told the Tribunal that a direct debit arrangement had been established for the payment of Mr EAD's accommodation and related fees to the low-care aged care facility but that over the last nine months or so the amount of the periodical debit had constantly been changed. Mr HDI said he had not understood how this had occurred or the reason for it. Significantly, later in the hearing, Mrs KCD conceded that she had arranged these adjustments, by way of a reduction to the regular repayment amount, in early 2014 40Mr HDI also confirmed that Mr EAD had a current debt of $10,800 to the low-care aged care facility but his placement is not at threat. 41The Tribunal accepted the evidence of Mrs MBE and Mr HDI as reliable and persuasive and, whenever it was inconsistent with the evidence of Mrs KCD, the Tribunal preferred their evidence to that of Mrs KCD. There was no evidence of any other informal arrangement being established for the management of Mr EAD's affairs. There was no indication that he had ever made a power of attorney. On the basis of this evidence and these findings the Tribunal was satisfied that there is a need for another person to manage the affairs of Mr EAD and that it would be in his interests for a financial management order to be made.

If an order is to be made on the basis of the answers to those questions, who should be appointed as financial manager? 42The Tribunal's practice has been to appoint a suitable person such as a family member or close friend as financial manager before considering the appointment of the NSW Trustee and Guardian where that is appropriate and it is in the best interests of the protected person for that to happen. That order of things was approved in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, where the President of the Court of Appeal, Justice Kirby, described it as: " a sensible hierarchy of choices." 43Before appointing a private person as a financial manager the Tribunal needs to be satisfied that the person is willing to act and that he or she is suitable to be appointed. Neither the Guardianship Act nor the NSW Trustee and Guardian Act 2009 (NSW) specify the criteria for establishing a person's suitability to be appointed. However, in determining person's suitability the Tribunal will normally wish to ensure that the nominated person has and will continue to have no conflict of interest in acting as manager, and that he or she is of sufficient age and has sufficient experience in business, or in record-keeping and decision-making to be suitable in all the circumstances. The Tribunal also normally ensures that there is no impediment to the appointment by way of the nominated person's criminal record or by reason of that person's bankruptcy. 44Mrs KCD indicated that she was willing and able to be appointed as the financial manager of Mr EAD. For the reasons outlined on page 7 and above on this page, particular the Tribunal's conclusions as to Mrs KCD's past gambling problem, the general unreliability of her evidence and her concession that she had altered the Centrepay instalment payments to the low-care aged care facility, the Tribunal concluded that she was not a suitable person to be appointed. This conclusion was also based on the Tribunal being unconvinced that Mrs KCD would liaise appropriately with NSW Trustee and Guardian. Despite a detailed explanation being given to Mrs KCD of the obligations of a private financial manager and the oversight and direction of NSW Trustee and Guardian, Mrs KCD was not able to persuade the Tribunal that she had a clear understanding of such a role or her obligations to NSW Trustee and Guardian. 45No other private person was identified to the Tribunal as being willing and able to be considered for appointment and on that basis the Tribunal decided to commit the management of the estate of Mr EAD to NSW Trustee and 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: 20 August 2014