QZE [2019] NSWCATGD 20

Is QZE someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

1. Section 14 of the Guardianship Act 1987 (NSW) ("the 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": s 3(1) of the Act. 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: s 3(2) of the Act.
2. We were provided with a number of written reports from care providers and support services in relation to QZE.
3. The retirement village manager, Ms Z, provided a letter dated 15 October 2018 in which she advised that QZE had been displaying escalating unsafe behaviours for over a year. Staff of the retirement village had been contacted by staff of the local pharmacy at West Sydney who had observed QZE in a disoriented state. The staff at the pharmacy also discovered QZE carrying a large sum of money in her handbag. Ms Z observed that QZE had lost a substantial amount of weight despite receiving services from a community service provider. Ms Z also noted that it had been reported to her that QZE had been walking through parts of the retirement village with no shoes on and wearing her clothes backwards. On one occasion she was seen walking naked.
4. Approximately one year ago QZE's children arranged for an ACAT assessment and support services to be provided. In a report provided from My Aged Care dated 15 October 2008, QZE was approved for permanent residential care and residential respite care at a high level.
5. Since June 2019, QZE has been in receipt of personal support services from an aged care service provider. In a letter dated 7 August 2017 (but presumably meant to be 2019), Ms Y, care adviser, wrote that at that point in time, the aged care service provider was providing QZE with one hour of personal care support, six mornings a week and an additional hour of support every second Monday morning. The personal care workers had reported to Ms Y that QZE required assistance to get out of bed each day and prompting with all of her activities of daily living such as showering, brushing, dressing and general tidying up of her house. QZE was also assisted with her morning breakfast before staff left.
6. The written and oral evidence provide by each of QZE's children was consistent with the observations of these service providers. GBT gave evidence that her mother's ability to meet her own care needs has been declining. For example, QZE was no longer able to cook her own meals, struggles with meeting her personal hygiene needs, spends a lot of time in her bed and tends to only leave her bed when people came to the door.
7. GBT also gave evidence that in a recent report from the care workers employed by the aged care service provider, on a recent visit to QZE's home, they found her covered in blood as a result of a fall. It does not appear that QZE had sought medical attention.
8. The Tribunal was provided with a report from Dr X, consultant psychiatrist, dated 11 October 2018. This report noted that QZE had a diagnosis of dementia. The report also confirmed that at that time QZE's mental health was stable.
9. The Tribunal was also provided with a brief written report from Dr W dated 13 September 2019 who described QZE as having schizophrenia and "significant mental impairment, that meant she was incapable of providing a valid informed consent or to manage her finances".

Consideration

1. The authors of the reports outlined above were consistent in their description of the decline in functioning that QZE appears to have experienced over the past year and a half or so. This evidence was uncontested by QZE's family.
2. On the basis of the evidence contained in the reports outlined, which we accept, the evidence of QZE's family and our own observation of QZE, we were satisfied that QZE has a disability namely dementia that has resulted in QZE experiencing a significant decline in functioning. We accept the evidence that, as a result of her cognitive decline, QZE is unable to independently meet her day to day personal needs and is also at risk of physical injury.
3. We are therefore satisfied that QZE is restricted in one or more major life activities to such an extent that she requires supervision or social habilitation and she is a person for whom a guardian could be appointed.

Should the Tribunal make a guardianship order and what order should be made?

1. We were required to consider all of the following matters set out in s 14(2) of the Act before exercising our discretion to make a guardianship order: 1. the views (if any) of: 1. the person, and 2. the person's spouse, and 3. the person's carer and 1. the importance of preserving the person's existing family relationships, and 2. the importance of preserving the person's particular cultural and linguistic environments, and 3. the practicability of services being provided to the person without the need for the making of such an order.
2. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).
3. QZE told us during the hearing, and we accepted had previously expressed to her children, that she would prefer to stay living in her current home.
4. GBT gave evidence that in her view her mother requires a higher level of support than she currently receives and that would mean living in an aged care facility. GBT noted that the retirement village has residential aged care on site which is a possibility for their mother. However the first preference for GBT and her brothers would be for their mother to live in a Catholic residential aged care facility if that were possible. She also noted that QZE's sister lives in West Sydney at another aged care facility which could be another option. Both of GBT's brothers agreed with these views including that their mother requires more support in her living arrangements.
5. UKE told us that he recently took his mother to a doctor's appointment with her GP. QZE has skin lesions that are likely to need treatment and they were advised by the GP that QZE needs to see a skin specialist. UKE said that whilst his mother was agreeable to being taken to the doctor they have put any treatment on hold until their mother feels ready to proceed.
6. BAE told us that QZE is provided with meals by a community service provider but frequently refuses the service and tries to cancel the contract with the community service provider. When this occurs, that organisation contacts BAE who has instructed them to continue providing the service to their mother.

Consideration

1. We were satisfied that a guardianship order should be made for QZE for the following reasons.
2. We were satisfied on the evidence that other accommodation options need to be explored for QZE. We were satisfied on the evidence that her current form of accommodation no longer suits QZE's care needs and that a guardian with an accommodation function should be appointed.
3. During the period in which other accommodation options are explored, QZE will need to continue to receive the services that she currently receives from the community service provider and aged care service provider. We also accepted the evidence provided by BAE that QZE has on a number of occasions sought to cancel the community service provider. In these circumstances we also provided the guardian with a services function to ensure that this important service is maintained during this interim period.
4. We also accepted the evidence that QZE has medical needs and is likely to need treatment from a skin specialist in the near future. Longer term health planning may also be required particularly once new accommodation is provided for QZE. In these circumstances, we formed the view that the guardian should also be provided with authority to make decisions about QZE's health care and to provide substitute consent for her medical and dental treatment.
5. In making this order we had regard to what we understood to be QZE's views that she wishes to remain living where she is. However we also formed the view that due to the increased levels of confusion that QZE is experiencing, she does not have the insight in to her current care needs and therefore place less weight on her views in relation to these matters. We also formed the view that given what is clearly a close and supportive relationship between QZE and her three children, and also between each of her three children, that the making of a guardianship order, and particularly with the appointment of two of QZE's children as her guardians as will be outlined later, would support the preservation of these important family relationships. We also formed the view that the making of an order with the appointment of these family members as the guardians would allow particular consideration to be given to QZE's religious and cultural views.
6. Given the evidence about QZE's lack of insight in to her current level of care needs and her attempts to cancel various services, we were also satisfied that it is not currently practicable for decisions to be made without the making of a guardianship order.

Who should be the guardian?

1. During the hearing it was proposed that GBT be appointed as QZE's guardian with UKE as the alternative guardian. We have to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she must: 1. have a personality generally compatible with the personality of the person under guardianship; 2. have no undue conflict of interest (particularly financial) with those of the person; and 3. be able and willing to exercise the functions of the order.
2. In deciding whether a person is able to undertake the role of guardian, we must also consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, [66])).
3. In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.
4. The evidence provided by both GBT and UKE persuaded us that they each met the requirements of s 17(1) of the Act.
5. GBT is an experienced professional working for [removed for publication] in the area of complex support needs. We were satisfied that she has a close relationship with her mother and we were satisfied that their personalities are compatible. We were satisfied that there is no conflict of interest between the interest of QZE and GBT. The evidence as will be outlined in more detail below clearly showed that GBT, as well as her brothers, have met many of her mother's financial needs over the previous year and a half or so but that has not led to any financial conflict of interest between them.
6. We were also satisfied on the basis of her evidence that GBT would be able to perform the role of guardian in accordance with the principle set out in s 4 of the Act and, importantly, giving paramount concern to her mother's welfare and interests.
7. UKE's evidence satisfied us that he has the necessary skill and experience in making decision on his mother's behalf if necessary as an alternative guardian. We were satisfied that UKE also has a very close relationship with his mother and their personalities are compatible. We were satisfied that there was no conflict of interest between the interests of QZE and UKE. As was the case with GBT, it appears that UKE and his wife have met a number of QZE's financial needs over the last year or so but again, we were not persuaded on the evidence that this led to any financial conflict of interest. We were also persuaded that UKE was willing and able to perform the role as guardian in accordance with principles set out in s 4 of the Act.
8. We therefore appointed at their request, GBT as her mother's guardian with UKE as the alternative guardian.

How long should the order last and should a non-reviewable order be made?

1. An initial guardianship order can be made for a period of up to one year from the date on which it was made.
2. We decided to make a 12-month order for QZE. We accepted that evidence that it is likely that significant decisions about QZE's accommodation are likely to be made well within that 12-month period and as well as other important health and medical care decisions. On the basis, in our view, that it is unlikely that a guardianship order will be required after this time, we decided to make the order on a non-reviewable basis.

FINANCIAL MANAGEMENT APPLICATION

1. We have previously referred to the evidence provided by the retirement village manager, Ms Z, at the retirement village, service providers at the aged care service provider and the health care professionals, Dr W and Dr X in relation to QZE's decline in functioning and increased confusion over the last year and a half or so.
2. We were also provided with evidence by QZE's children that QZE has not accessed her only bank account at a commercial bank for approximately one year. We were provided with a statement which showed a balance at 14 November 2018 of approximately $124,000. According to QZE's children, they have not been able to obtain any further statements because no one other than QZE has the authority to operate her account. They have been unable to locate a bank book or a key card in order to assist her in accessing her account.
3. When we asked QZE about her knowledge of her savings she indicated that she did not know the balance of her account. When we informed QZE of the balance as of approximately one year ago, it is fair to say that she was extremely surprised by this information.
4. We were informed by QZE's children that her accommodation fees at the retirement village have been paid by way of automatic deduction and that this arrangement was entered into when QZE entered the retirement village.
5. QZE's children gave evidence that QZE has not taken any steps in the last year or so in relation to managing her financial affairs more broadly. For example, QZE's Medicare card has expired and they are unable to take any steps to assist their mother is obtaining a replacement card without the authority to do so.
6. QZE was unable to provide any further explanation or insight in to the management of her financial affairs.

What did the Tribunal have to decide?

1. The questions that we had to consider were:

• Is QZE incapable of managing her affairs?
• Is there a need for another person to manage QZE's affairs and is it in her best interests for a financial management order to be made?
• If so, who should be appointed financial manager?

Is QZE incapable of managing her affairs?

1. The evidence indicated, which we accepted, that QZE has not taken any steps in relationship to the management of her affairs over the last year or so. There has been no activity in relation to her bank account and QZE was unable to inform us of the balance of her account or what had occurred in relation to it. QZE has been unable to take any proactive steps in relation to important documents and cards that enable her to seek access to medical care under Medicare or access to her bank account.
2. On the basis of this evidence, and the evidence of the health care and service providers that we have previously discussed and accepted, we were satisfied that QZE is incapable of managing her affairs.

Is there a need for a financial management order?

1. We were satisfied that there is a need for a financial management order to be made. The extent of QZE's current savings needs to be ascertained and arrangements will need to be made for the ongoing payment of the services she receives.
2. As previously noted, QZE's children have for the last year or so paid from their own finances all of QZE's costs apart from her accommodation fees and they may justifiably wish to seek reimbursement.
3. A financial manager is also needed to ensure that other aspects of QZE's affairs are attended to such as obtaining a new Medicare card and ensuring that her pension is in order.
4. In addition, a financial manager will need to take all necessary steps including entering into a residential care agreement and providing information to Centrelink once new appropriate accommodation is obtained for QZE.

Is it in QZE's best interest that a financial management order be made?

1. We were satisfied that it is in QZE's best interests to make a financial management order. We accepted the evidence of QZE's children that QZE has been an independent person. However given the evidence, which we accepted, of her higher care needs and the support of her family members, we were satisfied that it is now in her interests for a substitute decision-maker to be appointed.

Who should be appointed as financial manager?

1. In appointing a financial manager, as in making all other orders under the 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 s 4 of the Act.
2. Section 25M of the 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.
3. GBT's evidence satisfied us that she has the necessary experience, both professionally and in her personal life to manage her mother's financial affairs and to take all of the steps that will be necessary to place her mother's affairs in order.
4. We were also satisfied that UKE is a suitable person to act as a financial manager. He has considerable finance experience in his professional life as well as in his personal life.
5. Importantly, these appointments had the support of BAE and QZE.
6. Having regard to all of these matters we were satisfied that GBT and UKE should be appointed as their mother's financial managers on a joint and several basis. This will provide maximum flexibility so that they may each address their mother's financial needs either jointly or, when necessary, separately. We also accepted that they will take these steps in consultation with their mother and BAE.

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: 14 January 2020