SQM [2015] NSWCATGD 41

SQM [2015] NSWCATGD 41 | Case summary | Zoe

[5]

Is the Californian Court Order recognised in NSW?

Part 5A of the Guardianship Act 1987 (NSW) deals with reciprocal arrangements in respect of guardians and managers appointed under corresponding law.
Section 48A of the Guardianship Act provides: In this Part, corresponding law means a law in force in another State, a Territory, another country or part of another country that is declared by the regulations to be a corresponding law for the purposes of this Part.
Section 48B of the Guardianship Act provides in part, as follows: (1) A person who, under a corresponding law, is appointed as: (a) the guardian of another person, or (b) the manager of the estate of another person, may apply to the Tribunal for recognition of his or her status as such. (2) The Tribunal must recognise the applicant if satisfied that the applicant has been so appointed. (3) On recognition, the applicant is taken to be appointed under this Act as guardian or manager of the estate (as the case may be) of the other person. (4) However, the applicant: (a) is not to exercise a function under this Act unless it is a function of a kind authorised by the terms of his or her appointment under the corresponding law, and (b) is not to exercise a function authorised by the terms of his or her appointment under the corresponding law unless it is a function authorised by this Act. (5) The applicant's recognition may be reviewed, varied and revoked as if it were an appointment under this Act.
The Guardianship Regulation 2010 (NSW) provides at clause 16: For the purposes of the definition of corresponding law in section 48A of the Act, the following laws are declared to be corresponding laws: (a) Guardianship and Administration Act 1986 of Victoria, (b) Guardianship and Administration Act 1993 of South Australia, (c) Adult Guardianship Act of the Northern Territory, (d) Aged and Infirm Persons' Property Act of the Northern Territory, (e) Guardianship and Administration Act 1990 of Western Australia, (f) Guardianship and Administration Act 1995 of Tasmania, (g) Guardianship and Management of Property Act 1991 of the Australian Capital Territory, (h) Guardianship and Administration Act 2000 of Queensland, (i) Protection of Personal and Property Rights Act 1988 of New Zealand.
It follows that by virtue of the provisions of clause 16 of the Guardianship Regulation, the Californian Court Order appointing Ms EGE as Mr SQM's conservator would not be recognised in NSW.

[7]

Should leave be granted to Ms NBF to represent Mr SQM at the hearing?

Ms NBF is a Californian lawyer who sought leave to represent Mr SQM at the hearing.
The Tribunal noted the provisions set out in section 45 of the Civil and Administrative Tribunal Act. Section 45(1) provides that: (1) A party to proceedings in the Tribunal: (a) has the carriage of the party's own case and is not entitled to be represented by any person, and (b) may be represented by another person only if the Tribunal grants leave: (i) for that person to represent the party, or (ii) in the case of representation by an Australian legal practitioner-for a particular or any Australian legal practitioner to represent the party.
Section 45(3) provides that: (3) The Tribunal may at its discretion: (a) grant or refuse leave under subsection (1)(b), and (b) revoke any leave that it has granted.
In addition to the matters set out above in section 45 a procedural direction (Procedural Direction No 2: Representation) ("Direction") has been issued by the Guardianship Division of the NSW Civil and Administrative Tribunal. At paragraph 24 of the Direction the following considerations that may be relevant to a determination to grant leave are noted, namely: Whether representation will promote the principles in section 4 of the Guardianship Act 1987, in particular the paramount concern being the interests of the subject person; The guiding principle set out in section 36(1) of the Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings; Any disability or other factor that impedes the party's capacity to fully participate in the hearing; The nature and seriousness of the interests of the party that are affected by the proceedings; Whether the party's interests and point of view conflict with those of other parties; Whether the proceedings involve complex legal or factual issues; Fairness between the parties. It may be unfair if one party is represented but another is not, particularly if the subject person is unrepresented or the parties are in conflict; Whether representation may assist a party to focus on the relevant issues and may promote a conciliatory approach in the proceedings.
It should be noted that the above list is not exhaustive and paragraph 25 of the Direction provides that the Guardianship Division may take into account any other factors which are relevant in the particular circumstances of the subject person.
In deciding to grant leave to Ms NBF to represent Mr SQM the Tribunal took into account the fact that the legal and factual issues of the proceedings before it were complex, Ms NBF had been appointed by the Californian Superior Court to represent Mr SQM in proceedings before the Court in relation to Mr SQM's conservatorship and such proceedings had not as yet been completed, Ms NBF had had regular contact with Mr SQM over the past couple of months, Ms NBF had developed a rapport with Mr SQM and had received instructions from him. The Tribunal was also conscious of the fact that the hearing was being conducted by way of telephone and it was the experience of the Tribunal members that it is often the case that persons with dementia find some difficulty in adequately expressing themselves over the telephone due to the inherent difficulties they have communicating as a consequence of their diagnosis.
Accordingly, Ms NBF was granted leave to represent Mr SQM at the hearing.

[9]

Where is Mr SQM's domicile?

It is important to note that the Guardianship Act does not make reference to the domicile or residence of a person the subject of an application for either a guardianship order or a financial management order.
The issue of a person's domicile in respect of applications before the Tribunal has been addressed in earlier decisions before the then Guardianship Tribunal of New South Wales (see JAK [2007] NSWGT 23 (31 October 2007), KDT [2010] NSWGT 5 (20 January 2010), and NGM [2011] NSWGT 7 (11 March 2011)).
However, each of the above cited cases provide a different factual matrix to that presented at this hearing.
NGM involved the review of a guardianship order which was allowed to lapse following the subject person moving from NSW to Western Australia and in circumstances where the person was no longer psychotic and where an application could be made for a guardianship order in Western Australia.
KDT was a matter involving a 30-year-old woman who was an involuntary patient of a psychiatric facility overseas and as with NGM involved a review of an earlier guardianship order. The subject person had a disability associated with paranoid schizophrenia. The Tribunal determined to renew and vary the order to provide for the Public Guardian to continue as the subject person's guardian.
JAK was a matter where the guardians of a 68-year-old man suffering from Multiple Sclerosis and Alzheimer's disease moved him from NSW to a nursing home in South Australia to be close to his sister who subsequently was appointed the subject person's guardian in South Australia. An application was then made for guardianship of the subject person in NSW. Ultimately the Tribunal determined that it did not have jurisdiction to deal with the NSW application.
The purpose of the above three paragraphs was to do nothing more than give an extremely brief glimpse of some of the facts of the cases to which reference is made. The Tribunal makes reference to them for no other reason other than to highlight that those cases in terms of their factual matrix are different to the facts of the matter before the Tribunal.
In addition to the above cited cases the Domicile Act 1979 (NSW) provides assistance to the Tribunal in terms of determining the domicile of a person. Section 7 of that Act provides: 1. A person is capable of having an independent domicile if: 1. the person has attained the age of 18 years, or 2. the person is, or has at any time being, married, and not otherwise. 1. Subsection (1) does not apply to a person, who, under the rules of law relating to domicile, is incapable of acquiring a domicile by reason of mental incapacity.
There was no opposition from those present at the hearing to the contention that Mr SQM's domicile was NSW. Ms NBF informed the Tribunal that Mr SQM regards his home in Sydney as his "home" and that he wishes to return "home" to Australia.
The Tribunal notes that Mr SQM's diagnosis of dementia would inevitably lead to doubts being raised about his ability to acquire a domicile away from NSW; however, for the purposes of this hearing those doubts are irrelevant given all present at the hearing deemed Mr SQM's domicile as NSW.
The Tribunal proceeded on the basis that Mr SQM's domicile is NSW.

[10]

Does the Tribunal have jurisdiction to hear the applications given Mr SQM is presently in San Francisco and is subject to the Californian Court Order?

There are two applications each raising different jurisdictional questions. The issue of jurisdiction is a threshold question.
In respect of the guardianship application, the Tribunal noted the following:

Mr SQM is domiciled in NSW and considered NSW his "home;"
Mr SQM was visiting the United States and residing in his boat in San Francisco, California when on 20 June 2015 he was admitted to hospital in California for "memory problems;"
while in hospital a neurologist examined Mr SQM and reported that he was suffering from "memory problems, confusion, and altered mental status;"
despite a number of tests being conducted on Mr SQM the etiology of Mr SQM's diagnosis was uncertain;
on 25 August 2015, a Judge sitting in the Superior Court of California appointed Ms EGE as Mr SQM's temporary conservator of the person and estate of Mr SQM (the equivalent NSW orders being a guardianship and financial management order);
among other things the orders made by the Superior Court authorised the temporary conservator to "change the residence of the conservatee to Australia;"
Ms EGE considered that it was necessary for appropriate consultation and plans to be made in NSW to ensure the safe return of Mr SQM from California to NSW;
through her representative, Ms EGE does not question Mr SQM's desire to return to NSW, however she does not want the process to be rushed as this is not in his best interests.

In EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501, His Honour Justice Young considering whether the Guardianship Act applied to persons physically outside of NSW noted that the Guardianship Act does not define the persons who are subject to its operation. However, His Honour did not determine conclusively the question.
The Tribunal was conscious though of the common law presumption against the extraterritorial operation of State legislation (see Jumbunna Coal Mine v Victorian Coal Miners' Association (1908) 6 CLR 309 per O'Connor J at p363. See also section 12 Interpretation Act 1987 (NSW)). However, the presumption is rebuttable.
In Mobil Oil Australia Pty Limited v Victoria (2002) 211 CLR 1, Gaudron, Gummow, and Hayne JJ stated at footnote 145: "it is clear that legislation of a state parliament should not be held invalid if there is any real connection - even a remote or general connection - between the subject matter of the legislation and the state."
In that same case, Chief Justice Gleeson at page 26 stated "the idea that all transactions and relationships giving rise to legal consequences can be located "in" one particular state or territory is unrealistic."
As was pointed out in JAK [2007] NSWGT 23 (31 October 2007) at [35], the Tribunal: "decides applications in relation to particular people and, in doing so, must act in accord with its establishing legislation. Only a court can determine the meaning of legislation authoritatively."
The Tribunal was conscious of the fact that its paramount consideration in exercising any functions under the Guardianship Act is the welfare and interests of Mr SQM as a person with a disability (see section 4 Guardianship Act).
The Tribunal took into account the matters set out in paragraph 42 above of these Reasons for Decision and determined that there was a very "real connection" between the subject matter of the Guardianship Act (to benefit and promote the welfare and best interests of people with disabilities) and the situation that Mr SQM finds himself in.
In Statutory Interpretation in Australia, (4th ed, 1996, Butterworths), the authors, Professors Pearce and Geddes, when discussing the presumption against the extraterritorial operation of statutes state at page 132 "the presumption against legislation having extraterritorial operation can be fairly readily rebutted if circumstances so demand." In the Tribunal's view the circumstances which Mr SQM finds himself so demand for the Guardianship Act to operate extraterritorially.
Accordingly, the Tribunal concluded that in relation to the situation of Mr SQM the presumption that the Guardianship Act does not apply extraterritoriality is rebutted. The Tribunal determined that it does have jurisdiction to deal with the guardianship application filed by Ms DMT.
In relation to the financial management application, the evidence before the Tribunal of which more will be stated below included that;

Mr SQM has significant assets in NSW;
despite Ms EGE's order from the Californian Superior Court she has not been able to gain access to Mr SQM's funds in NSW;
since being hospitalised in California Mr SQM has amassed debts of over US$250,000;
it will be necessary for funds to be made available for Mr SQM to travel back to his home in NSW and to ensure that when he arrives back home he will have appropriate resources available for him to meet his needs.

In light of the matters referred to above the Tribunal considered that there is an overwhelming need and it would be in Mr SQM's best interests for the Tribunal to deal with the financial management application. It is thus appropriate for the Tribunal to consider that in relation to the financial management application the Guardianship Act applies to Mr SQM given his circumstances and notwithstanding the fact that he resides in the United States.

[12]

Is Mr SQM 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?

Section 14 of the Guardianship Act 1987 (NSW) ('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" (section 3(1), Guardianship 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 (section 3(2), Guardianship Act).
The Tribunal had before it two speech-language evaluations performed by Ms Z on 21 June 2015 on 9 July 2015 together with a sampling of medical assessments of Mr SQM made by Dr Y, Dr X, Dr W, and Dr V. Each of these reports were made while Mr SQM was a patient at a hospital in California.
The reports paint a picture of Mr SQM suffering from acute dementia of unclear etiology. Mr SQM's treating physicians were unable to determine if Mr SQM's acute confusion was really an acute condition or a more chronic condition. While in hospital Mr SQM was confused, deemed to be unsafe and had memory problems.
Both Dr Y and Dr W considered that Mr SQM required some form of conservatorship.
Ultimately, an application was filed in the Superior Court in a County in California seeking a court order that a conservator be appointed for Mr SQM both in respect of his person and estate. As part of those proceedings Dr V filed a Capacity Declaration with the Superior Court. The declaration was made on 10 July 2015 and notes that Mr SQM lacks capacity and in the opinion of Dr V, Mr SQM has dementia as defined in the current edition of Diagnostic and Statistical Manual of Mental Disorders.
Both Ms DMT and Ms KPX were of the view that Mr SQM continues to have a disability, namely dementia. Ms NBF informed the Tribunal that "Mr SQM does recognise he has some limitation."
In light of the material referred to above the Tribunal is satisfied that Mr SQM has a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

[21]

Determination on whether the Tribunal should appoint a guardian

Mr SQM finds himself in the very unfortunate situation of being away from his home and having been hospitalised in a foreign country as a result of an acute dementia episode of unknown etiology.
The concerns of Mr SQM's treating physicians in California about his diagnosis and the impact it would have on him if he was discharged into the community led to the Californian Superior Court making an order that Mr SQM be placed under the conservatorship of Ms EGE. The Tribunal did not doubt that Ms EGE, in undertaking her role as Mr SQM's conservator, would act in what she considered would be Mr SQM's best interests subject to any order or direction of the Court.
However, it was common ground that Mr SQM would return to Australia. The exact timing of Mr SQM's return to Australia was not a matter that the Tribunal could determine appreciating that it would be a matter for the Californian Superior Court and/or Ms EGE to ultimately decide. What was certain though is that Mr SQM would eventually return to home to Australia.
Given the uncertainty surrounding the etiology of Mr SQM's dementia diagnosis the Tribunal considered that it would be in Mr SQM's best interests for a guardian to be appointed to ensure that immediately upon his return to NSW he received appropriate health care, services, and was accommodated appropriately to meet his needs. In addition, the Tribunal was of the view that the appointment of a guardian in NSW would ultimately assist Ms EGE and the Superior Court in making ongoing decisions about Mr SQM's return to NSW from California.
The Tribunal also considered that an order made by the Tribunal would assist Ms EGE inasmuch as she would be able to liaise with the appointed guardian in NSW to ensure Mr SQM's return to NSW was undertaken in a planned and coordinated fashion. Further, a guardianship order made by Mr SQM's home jurisdiction may give comfort to Ms EGE and to the Californian Superior Court that the best interests of Mr SQM will be maintained notwithstanding his departure from their jurisdiction.
Mr SQM has no real family to assist him in his time of need. He has not appointed an enduring guardian. While Mr SQM does have friends who have genuine concern for him such as the applicant, Ms DMT, the burden imposed on Mr SQM's friends may be too great given what the Tribunal believes will be Mr SQM's considerable needs when he returns to NSW.
In exercising any functions under the Guardianship Act the Tribunal is under a duty to observe the various principles set out in section 4 of that Act. The first principle enunciated in section 4 is that the welfare and interests of persons with disabilities should be given paramount consideration. The Tribunal took into account the factual matrix presented at the hearing involving Mr SQM and which has been set out earlier in these Reasons for Decision and determined that the welfare and interests of Mr SQM would be best served by making a guardianship order.
Having determined that a guardianship order should be made the Tribunal next set about the task of deciding what decision making functions a guardian for Mr SQM should have. The Tribunal considered that there was sufficient evidence before it to warrant a guardian having the following functions

accommodation - that is, allowing a guardian to make decisions about matters such as where Mr SQM should reside or stay on a long term or temporary basis, where and for how long Mr SQM should go on holidays or visits, and whether Mr SQM should be taken to stay in a hospital or other facility whether as a resident or for some temporary purpose;
health care - which would enable Mr SQM's appointed guardian to make decisions about appropriate health care and health services such as whether Mr SQM should consult a specialist medical practitioner, consenting to health care interventions and therapies, requesting health care and/or medical information relating to Mr SQM and deciding whether surgical or nonsurgical care should be given;
consenting to medical and dental treatment - this function would allow the guardian to consent to medical and dental treatment in circumstances where Mr SQM was not able to give consent himself;
services - deciding what services should be provided to Mr SQM;
legal services function - this function would enable the appointed guardian to seek advice or information from a lawyer, make a referral to a lawyer or refer a complaint to a governmental authority, and liaise with a legal practitioner on behalf of Mr SQM;
advocacy - this function would enable the appointed guardian to advocate on behalf of Mr SQM.

It should be noted that the appointment of a guardian for Mr SQM in NSW will not enable the guardian to interfere with the normal course of the Californian Superior Court conservatorship appointment of Ms EGE. It would be hoped however that Ms EGE and the appointed guardian in NSW would interact with one another in the best interests of Mr SQM to enable an appropriate plan to be put in place to repatriate him from California to NSW.

[25]

Is Mr SQM incapable of managing his affairs?

As a consequence of his present diagnosis Mr SQM did not answer questions concerning his financial affairs at the hearing.
The Tribunal noted the evidence referred to earlier in these Reasons for Decision. Dr V notes in two reports filed with the Tribunal that Mr SQM requires supervision with "money and financial management" and lacks "any kind of capacity to manage his affairs." Dr Y states in his report that Mr SQM will need "help with his finances."
In Re D [2012] NSWSC 1006, White J assessed the history of case law in relation to financial management and noted that initially the issue of capability was approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Court now assesses the person's own capacity to do what they are proposing to do [58]. White J used a "rational appreciation" of assets test to determine a person's capability to manage his or her affairs. He adopts the reasoning of Barrett J in P v R [2003] NSWSC 819 who said that the task of the Court 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 [26].
In PB v BB [2013] NSWSC 1223, 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.
The test for determining a person's capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]): Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests? … [A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.
In considering whether the person is "able" in this sense, consideration may be given to:

past and present experience as a predictor of the future course of events;
support systems available to the person; and
the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498 at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579 at [309].

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]). See Lindsay J in Re W and L (Para meters of Protected Estate Management Orders) [2014] NSWSC 1106 at [20]:
Each case must, of course, be considered on its own facts, including not only actual facts presently known but also, so far as they can be known, prospective developments.
It was reported by Ms DMT that Mr SQM has assets in NSW comprising three term deposits of $250,000 each, two boats with a value of approximately $40,000 and superannuation interests in the amount of approximately $900,000. Mr SQM also has a car and a boat in the United States with an estimated value of between US$30-$40,000.
In light of Mr SQM's diagnosis of dementia and the reports of Dr V and Dr Y, Mr SQM's own inability to discuss his financial affairs and the nature and extent of his assets, the Tribunal considered that Mr SQM did not have sufficient functionality of management capacity to deal with his own financial affairs.

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Judgment (29 paragraphs)

Legislation Cited (6)

Cases Cited (10)