P v R

P v R - [2014] NSWCATGD 13 - NSWCATGD 2014 case summary — Zoe

[9]

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.

[11]

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.

[16]

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.

[18]

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.

[19]

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.

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