TBM [2020] NSWCATGD 43

NCAT Guardianship|2020-02-13|Before: Epstein-Frisch AM

TBM (the person) Nepean Blue Mountains Local Health District (applicant) BZG (carer) Public Guardian

TBM (the person) Nepean Blue Mountains Local Health District (applicant) BZG (carer) NSW Trustee and Guardian Representation: Nil File Number(s): NCAT 2020/00013017 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

GUARDIANSHIP APPLICATION; FINANCIAL MANAGEMENT APPLICATION

What was decided

The Public Guardian was appointed as guardian for TBM for 12 months with authority to make decisions about accommodation with full powers to authorise others to implement any decisions and services. The order was non-reviewable. AND
The management of the estate of TBM was committed to the NSW Trustee and Guardian.

The Background

TBM is a 79-year-old woman. It is reported TBM has cognitive impairment resulting from vascular dementia. TBM has two children, EM who lives in Queensland and a daughter, BZG, who lives in regional NSW.
The former home of TBM had recently been sold. Prior to her admission to hospital, TBM had been staying with her daughter BZG and her son-in-law HG. This was a temporary measure while they sought accommodation for TBM close to them.
TBM was admitted to Public Hospital A on 10 December 2019 following an episode of aggression and agitation in the community. She had later been transferred to Public Hospital B. At the time of this hearing she continued to be an inpatient in Public Hospital B.
An application for the appointment of both a guardian and a financial manager was made by the Nepean Blue Mountains Local Health District. It was claimed TBM was now ready for discharge, but could no longer be safely supported in the community. It was claimed she was not agreeable to moving into an aged care facility.
This was the hearing of the guardianship and financial management applications.

What did we have to decide?

The questions which had to be decided were:

Is TBM someone for whom we could make an order because she has a disability which prevents her from being able to make important life decisions?
Should we make a guardianship order and if so, what order should be made?
Who should be the guardian?
How long should the order last?

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

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.
At the time of this hearing, TBM was an inpatient in Public Hospital B. We were provided with a report prepared by Dr Z, a Staff Specialist Geriatrician at Public Hospital A. He wrote that TBM was admitted to Public Hospital A on 10 December 2019 under his care. TBM was brought in by her carers/family after an episode of physical aggression by her overnight, following which she had tried to walk to the Police Station to report her family. TBM was not able to provide a history and was not aware of recent events.
He wrote that TBM had been assessed previously by a Geriatrician in regional NSW and diagnosed with vascular dementia and psychological symptoms in May 2019. At that time her screening score was 12/30. He wrote that in the few months leading up to her admission, she was experiencing further decline in memory and mood with multiple admissions to the emergency department. She was assessed by the Older Persons Mental Health Unit.
In hospital, an acute confusional delirium was ruled out with the usual screening tests, monitoring and observations. Further assessment revealed a moderate dementia of probable vascular origin. TBM scored 10/30 on the Mini Mental State Examination (MMSE). There were significant deficits in all domains, but particularly short term memory recall, language and judgement. This affected her ability to manage her life in a safe manner. Dr Z wrote that consistent with this, she was observed to be profoundly forgetful and repetitive.
Dr Z is a treating Staff Specialist Geriatrician. There was no medical evidence or evidence from any other appropriately qualified health care practitioner which challenged the opinions expressed by him. We therefore accepted his evidence. Having regard to that evidence, we were satisfied TBM has significant cognitive impairment affecting her decision making capacity. We were satisfied her disability prevents her making important life decisions. We further find she is at least partially incapable of managing her person. She is a person for whom we could make a guardianship order.

Should we make a guardianship order and what order should be made?

We must consider all of the following matters set out in s 14(2) of the Act before exercising the discretion to make a guardianship order: 1. the views (if any) of: 1. the person; 2. the person's spouse; 3. the person's carer; and 1. the importance of preserving the person's existing family relationships; 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.
These matters have no hierarchy or weighting and each is a mandatory consideration. However, we must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task we may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).
We were provided with an Occupational Therapist's report, prepared by Ms Y. In summary, she assessed TBM to require 24-hour assistance with activities of daily living. She was unable to manage her self-care or her behaviours.
Ms X, a Social Worker from Public Hospital B provided a written report and participated in the hearing.
Ms X reported TBM's husband died in October 2012. She had previously lived in her own home with limited support in regional NSW. BZG was driving a 5-hour trip to visit TBM four days per week and to provide support with shopping and activities of daily living and support with finances. TBM had been frequently contacting emergency services.
TBM's home in regional NSW was sold. TBM was staying with BZG until alternate accommodation could be found. On 10 December 2019, TBM had been displaying aggression towards BZG. She attempted to walk to the Police Station to report her daughter. Her son-in-law found her and then stated she wanted to go to hospital. She was taken to the hospital.
Ms X told us TBM had been in hospital since before Christmas. She had tried to abscond from Public Hospital A. She was unable to return to live with her daughter. She would not agree that she required a higher level of care than could be provided in the community.
Ms X reported that providing care for TBM had a significant affect upon BZG's own cognitive/mental health. Ms X told us that TBM will occasionally be physically and verbally aggressive. She also told us that it would be difficult to transport her to any accommodation without the ability to call upon the assistance of Police or Ambulance.
BZG confirmed she could not provide any further care for TBM.
Ms X told us that as a consequence of the pressure of TBM's care, BZG had withdrawn from her care to give herself a break. They were unable to speak to BZG in relation to any necessary consents for medical treatment. She told us that there was a need for a guardian to make these decisions.
EM agreed that there was a need for a guardian to make a decision about TBM's accommodation. He said he just wanted her to be comfortable. He told us he was willing and able to make any necessary decisions about major medical or dental treatment as the "person responsible". He told us he worked in a remote location, but remained contactable. He said there would be less than 5% of the time when there were any reception difficulties.
Ms A, from the Office of the Public Guardian, participated in the hearing. In summary she submitted that there was a need for a guardian to make decisions about accommodation with the full authorities, because of the agitation and aggression and the history of absconding. She submitted there was a need for the authority to make decisions about services, so as to obtain an Aged Care Assessment Team (ACAT) assessment. She said that EM was available to act as the "person responsible". In the unlikely event he was unavailable, then consent could be sought directly from the Tribunal.
We had regard to the evidence in the context of the criteria referred to above and considered whether to make a guardianship order in the circumstances here. TBM participated in the hearing, but told us she wanted nothing to do with the hearing. Her spouse is deceased. BZG is her carer. She agreed there was a need to appoint a guardian in the terms recommended by Ms A.
There were no cultural issues raised. We find the appointment of a guardian would assist with the in relation to the issue of the preservation of TBM's family relationships. Due to carer stress, her relationship with BZG is quite strained. BZG has now withdrawn from involvement.
We considered whether services provided informally, without the appointment of a guardian. We had regard to the evidence. The real issue is TBM's accommodation. Her home has been sold and she cannot return to stay with her daughter. She does not agree she needs to live in an aged care facility. She has no accommodation on discharge and is unable to self-care.
Balancing all these factors, we decided there was a need to appoint a guardian to make decisions about TBM's accommodation with the full powers to authorise others to implement decisions. We accept there is a need to make decisions about services for the reason outlined by Ms A.
We therefore decided to appoint a guardian to make decisions about accommodation with the full powers to authorise others to implement decisions and services.

Who should be appointed as guardian?

There was no private person seeking to be appointed as the guardian. We therefore appointed the Public Guardian.

How long should the order last?

We decided to make an order for 12 months.

Should the order be reviewed?

The only issue identified was an accommodation decision. Once this issue has been resolved there will be no other decisions for a guardian to make. We therefore decided not to review the order.

FINANCIAL MANAGEMENT

The questions to be considered were :

Is TBM incapable of managing her affairs?
Is there a need for another person to manage her 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 TBM incapable of managing her affairs?

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 [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 (Parameters 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.
We had regard to the medical evidence above. We were satisfied due to the severity of her cognitive impairment, TBM is incapable of managing her financial affairs.

Is there a need for a financial management order?

BZG told us TBM receives an Aged Pension from Centrelink. In relation to TBM's former home BZG told us that they sold the home for TBM. She said that at that time, TBM was agreeable to sell her home and move closer to BZG. She told us TBM had signed the contracts for the sale of her home herself. The proceeds of sale, (about $240,000) were deposited into TBM's savings account after payment of a reverse mortgage of about $100,000 and other costs and disbursements.
Ms X told us there was a need to appoint a financial manager. She said TBM will require residential care. There will be a need to make arrangements for the payment of accommodation fees and any other charges such as the Refundable Accommodation Bond.
BZG told us that she had access to the bank account and could do this.
EM expressed the preference that a financial manager should be appointed. He told us that it was his belief that BZG was not in the right position to do what needed to be done to look after TBM's affairs at the current time. He told us he had spoken to HG about this and HG agreed.
HG, the husband of BZG, told us that while BZG had access to the banks account of TBM, he also believed there was a need for a formally appointed financial manager. He agreed with EM that it would be very difficult for BZG to do this at the moment. He also told us that it would be very difficult because TBM has savings in two bank accounts and BZG only has access to one of the bank accounts. BZG then agreed with this.
We were therefore satisfied there is a need to appoint a financial manager.

Is it in the best interests of TBM that a financial management order be made?

For the same reasons identified above, we were satisfied that it is in the best interests of TBM that a financial management order be made.

Who should be appointed as financial manager?

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.
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.
In the circumstances here, there was no private person seeking to be appointed. We were satisfied that the estate of TBM should be committed to the 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: 18 March 2021

Trustee and Guardian Act 2009(NSW)

At a glance

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Judgment (17 paragraphs)

Legislation Cited (4)

Cases Cited (7)