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[2014] NSWCATGD 26
NCAT Guardianship
2014-07-11
Young J
Original judgment source is linked above.
What the Tribunal decided 1The Tribunal appointed Mr NHM as Mr CFM's guardian for a period of six months to make decisions on his behalf about his accommodation, services, health care and medical and dental treatment as set out in the Tribunal's Order. 2The Tribunal also appointed Mr KGM as Mr CFM's financial manager, to be reviewed at the expiry of six months, subject to the authorities and directions ordered by the NSW Trustee and Guardian.
Background 3Mr CFM is aged 75. He is Swedish, but has lived in Australia for many decades, and his command of English is excellent. He lives in an independent living unit in a retirement village north west of Sydney. He has two sons, Mr KGM, who is the Applicant and seeks to be appointed as his father's financial manager, and Mr NHM, whose appointment as his father's guardian is sought by the Applicant.
The Hearing 4As a preliminary matter, the Tribunal considered whether Mr KGM had a genuine concern for Mr CFM's welfare, as required of a private third-party applicant under s 9(1)(d) and s 25I(1)(b) of the Guardianship Act 1987 (NSW) ('the Guardianship Act'). The Tribunal was so satisfied.
GUARDIANSHIP 5The questions which had to be decided by the Tribunal in relation to guardianship were: (1)Is Mr CFM 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? (2)Should the Tribunal make a guardianship order and if so, what order should be made? (3)Who should be the guardian? (4)How long should the order last?
Is Mr CFM 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? 6Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/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" (s 3(1), Guardianship Act). A person with a disability is a person who is: (a)intellectually, physically, psychologically or sensorily disabled; (b)of advanced age; (c)a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or (d)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 (s 3(2), Guardianship Act). 7The Applicant indicated that Mr CFM has a long history of mental illness, which despite treatment continues. The illness particularly manifests itself in the form of delusions, currently to the effect that Ms Z, a former radio presenter, has implanted a device in his body by means of which she controls Mr CFM's actions. 8The Applicant provided to the Tribunal copies of:
Should the Tribunal make a guardianship order and what order should be made?
The views of Mr CFM 11Mr CFM was able to provide his views to the Tribunal. He was articulate, well-dressed and well-groomed, and made his observations to the Tribunal from a page of notes which he had prepared. His views, in summary, were that he had no need of a guardian, and was perfectly capable of making all relevant decisions himself. He was happy in his current accommodation, and received assistance form the retirement village staff in relation to matters such as medication. He was able to make all relevant decisions as to medical matters. The issue with his sons was a misunderstanding; they thought that he was ill, whereas he was in fact being influenced through the devices which Ms Z had implanted in his body. What his sons took for symptoms were, in fact, the consequences of Ms Z's manipulations. When he was in fact ill rather than manipulated - and he could tell the difference between illness and the results of manipulation - he readily obtained medical advice. If, however, a guardian were to be appointed, he had no issue with Mr NHM undertaking the role.
The views of family members 12The application by Mr KGM was supported by his brother, Mr NHM and his sister, Ms LXM. Mr NHM attended the hearing, and Ms LXM provided her views by email. All three children are generally consistent in their concerns, which in summary are as follows:
The effect of an order on Mr CFM's family relationships/cultural or linguistic environment 13While Mr CFM opposes the making of an order, he is in the Tribunal's observation on manifestly good terms with his two sons. It appeared unlikely that these relationships would be affected by an order.
Are there decisions which need to be made by a guardian? 14The retirement village's decision to cease providing informal support with medication and services to Mr CFM while he remains in the accommodation clearly means that decisions as to his accommodation and/or services will need to be made. Mr CFM does not, however, recognise this need. Equally, his reluctance to recognise his illnesses in turn means that decisions as to health care and medical treatment which Mr CFM is unwilling or unable to make are likely to be required. 15The Tribunal decided on the basis of all of this evidence that a guardianship order should be made.
What decision making functions should be included in the order? 16In view of:
Who should be the guardian? 17The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed. There is a proposal that Mr NHM be appointed guardian for Mr CFM. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with section 17 of the Guardianship Act. He/she must: (a)have a personality generally compatible with the personality of the person under guardianship; (b)have no undue conflict of interest (particularly financial) with those of the person; and (c)be able and willing to exercise the functions of the order. 18Mr NHM confirmed to the Tribunal that he had no relevant conflict of interest in acting as his father's guardian, and that he was willing to undertake the responsibilities of guardianship. Moreover, it appeared to the Tribunal, form observation of the relationship between Mr CFM and his sons, that Mr NHM would be a personally compatible guardian for Mr CFM. 19The Tribunal is satisfied that Mr NHM meets the requirements to be a guardian for Mr CFM and he should be appointed.
How long should the order last? 20An initial guardianship order can be made for a period of up to one year from the date on which it was made. The Tribunal formed the view, based on Mr CFM's circumstances and the information supplied by his sons, that most issues to which guardianship related were likely to be resolved within the next few months, and accordingly decided to make an order for a six-month guardianship only. Should there still be a need for guardianship at that time, the appointment can be extended by the Tribunal.
Should conditions placed on the order? 21The Tribunal was of the view that only the usual conditions as to consultation and information should be imposed.
FINANCIAL MANAGEMENT 22The questions which had to be decided by the Tribunal in relation to financial management were: (1)Is Mr CFM incapable of managing his affairs? (2)Is there a need for another person to manage Mr CFM's affairs and is it in his best interests for a financial management order to be made? (3)If so, who should be appointed financial manager? (4)Is Mr CFM incapable of managing his affairs? 23A person's capability to manage his or her affairs was considered by Campbell J in the NSW Supreme Court in Re GHI (a protected person) [2005] NSWSC 581. Campbell J affirmed the approach enunciated in PY v RJS [1982] 2 NSWLR 700 by Powell J, at paragraph 7: "It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears: that he or she is incapable of dealing, in a reasonably competent fashion with the ordinary routine affairs of man; and that by reason of that lack of competence there is shown to be a real risk that either he or she may be disadvantaged in the conduct of such affairs; or that such moneys or property that he or she may possess may be dissipated or lost ... it is not sufficient in my view merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner..." 24Young J in H v H (unreported) NSW Supreme Court 20 March 2000, in dealing with the capacity test as it has been enunciated in NSW, said that dealing with the "ordinary affairs of man" does not simply mean being able to go to the bank and draw out housekeeping money. Most people's affairs, his Honour said, "are more complicated than that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one's family and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills." 25It should be noted that the relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86). 26Mr CFM's finances are relatively straightforward. His assets are his home unit, currently worth between $250,000 and $300,000, and cash deposits with Bank A of approximately $100,000. His income is approximately $900 per fortnight, derived as to two thirds from an Australian pension, and as to one third from a Swedish pension. It appears to be common ground as between the Applicant and Mr CFM that Mr CFM is efficient in handling his day to day cash needs and bill payments. Two issues arise as to his wider finances: first, significant changes will need to be made to his arrangements with the retirement village if his accommodation changes, and Mr CFM indicated an intention to frustrate any decisions made by his guardian by refusing to give effect to the necessary financial arrangements; and, secondly, Mr CFM appeared to have a shaky grasp of his wider finances, persisting in the erroneous view that he had cash deposits of $230,000. 27The Tribunal was satisfied that Mr CFM is incapable of managing his financial affairs.
Is there a need for another person to manage Mr CFM's affairs and is it in his best interests for a financial management order to be made? 28If only in order to facilitate the implementation of the financial and property dealings which are the necessary corollary of decisions made by his guardian, the Tribunal was satisfied that there is a need to appoint someone to manage Mr CFM's affairs and it is in his best interests that an order be made.
Who should be appointed financial manager? 29In appointing a financial manager, as in making all other orders under the the Guardianship Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in section 4 of the Guardianship Act. 30Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian. 31Mr KGM indicated that:
Order with a Specified Review Period 35Because the financial management order was essentially ancillary to the guardianship order, the Tribunal ordered that it be reviewed after six months, simultaneously with the guardianship order.
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: 29 October 2014
PY
RJS
(1983) 3 NSWLR 81