TBU [2021] NSWCATGD 30

Background

1. TBU is a 71-year-old man of Serbian heritage who resides at an aged care facility (ACF) in north-east Sydney. TBU had a brother, Mr Z who was his carer, who passed away in 2019. The terms of Mr Z's Will from 2016 provide TBU with a life interest in his home at north-east Sydney.
2. TBU has a sister, HAU, who has recently come back into his life after a 20-year absence.
3. It is reported that TBU has an hypoxic brain injury (sustained in 1971) and spasticity.
4. On 11 March 2021 TBU appointed HAU as his attorney pursuant to an enduring power of attorney, with Ms Y, as substitute attorney.
5. On the same date, TBU appointed HAU to be his guardian pursuant to an appointment of enduring guardian, with Ms Y as the alternate enduring guardian.
6. Ms Y has not accepted her appointments.
7. These instruments were executed before Ms X of a law firm.
8. On 16 April 2021 the Tribunal received applications for the appointment of a guardian and financial manager for TBU from EZM, Manager of the ACF. EZM said that the ACF has concerns in regard to the conduct of HAU when she visits the ACF. The applicant advised that HAU can become abusive towards TBU and staff and does not appear to have a realistic understanding of the condition of TBU and his care needs. The ACF believes that HAU is attempting to financially exploit her brother.
9. On 23 June 2021 a Provisional Apprehended Domestic Violence Order (PADVO) was taken out by NSW Police to protect TBU from HAU following an alleged assault at the ACF. HAU was charged with both assault and actual bodily harm. The criminal charges were listed for hearing on 5 November 2021 at a Local Court.
10. On 16 July 2021 the guardianship and financial management applications were listed for hearing. On the day of the hearing TBU told the Tribunal that he had not been told about the hearing or provided with any of the evidence upon which the applicant relied. The Tribunal determined to adjourn the hearing to provide TBU with procedural fairness. The Tribunal ordered that TBU be separately represented at the adjourned hearing.

The hearing

1. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]
2. As the hearing was held during the COVID-19 Pandemic it was conducted by telephone.
3. Ms Krasa Bozinovska is the separate representative assisting TBU.
4. A Serbian interpreter assisted TBU and HAU.
5. The Tribunal officer preparing this matter wrote to Ms X requesting that she participate in the hearing as the witness to the execution of the enduring power of attorney and appointment of enduring guardian. Ms X wrote to the Tribunal declining to participate in the hearing. As we were not conducting a review of the enduring power of attorney or appointment of enduring guardian, we considered that we could proceed without the benefit of her evidence.
6. We had no contact details or means of communicating with the alternate guardian and substitute attorney. She did not participate in the hearing or provide a view. On the evidence before us it appears that she has not accepted her appointment. We were satisfied that we should proceed in her absence.

What did the Tribunal have to decide?

1. The questions to be considered by the Tribunal are:

• Is TBU 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?
• Should the Tribunal make a guardianship order and if so, what order should be made?
• Who should be the guardian?
• How long should the order last?

Is TBU 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?

1. Section 14 of the Guardianship Act 1987 (NSW) 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": Guardianship Act, s 3(1). 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: Guardianship Act, s 3(2).
2. The term "social habilitation" is not defined in the Act. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J considered its meaning in the context of s 3(2) of the Guardianship Act, at [303]: "The expression 'social habilitation' (in the context of references to 'disability', 'restricted', 'major life activities' and the word 'requires') may be taken to refer to a need for services to help a person to be, or become, able to function normally in the community with others."
3. We received a report from Dr W dated 12 July 2021 was before the Tribunal. Dr W reported that TBU suffered a hypoxic brain injury in 1971 and has known cognitive issues and spasticity with poor balance and mobility. TBU is wheelchair dependent and required admission to a high care ACF following the illness and death of his brother (and carer) in 2019.
4. We had the benefit of an My Aged Care Assessment Summary from 21 May 2019. At the time, TBU resided in his own home with his brother, Mr Z. TBU was found unconscious at the bottom of a swimming pool in 1971 and sustained a hypoxic brain injury. He is significantly disabled although he identifies his main issue as impaired balance. At the time of the assessment, Mr Z provided daily assistance to his brother and attended to all domestic and instrumental activities. Although TBU attended to his own personal care, he was at risk because of physical disability and impaired balance. Mr Z had been diagnosed with a brain tumour and was no longer able to provide the level of care and support that was required. Mr Z expressed his concerns at that time that TBU may be exploited by family members who were unlikely to be able to provide the necessary level of care.
5. The My Aged Care Assessment Summary considered that TBU lacked insight into the level of his disability and subsequent high care needs. Functionally he requires supervision as he is a significantly high falls risk. TBU was approved for high level care.
6. We received a report from Dr V, Geriatrician, dated 10 May 2021. Dr V reported that TBU received a score of 19/27 on a Mini-Mental State Examination (MMSE) which is a screening tool for cognitive impairment. Dr V's impression was one of mild vascular dementia with an impaired capacity to appoint an enduring guardian. TBU has some understanding of his care needs and financial situation and therefore should still be involved in decision making. Dr V expressed his support of the applications before the Tribunal given the concerns raised about HAU and TBU's impaired capacity.
7. We received a report dated 27 May 2021 from Dr U who has been TBU's GP since June 2019 when he was admitted to the ACF. Dr U considered that although TBU's cognition appears generally intact, there are concerns about his vulnerability due to the reappearance of his long lost sister in his life. All health professionals who deal with her have problems due to an overpowering personality, aggression and a lack of willingness to accept the views of others with respect to her brother's conditions.
8. A neurological report from Dr T from 12 June 2018 was also before the Tribunal. Dr T considered that TBU's increased difficulty with his gait is related to a combination of age and neurodegeneration on the background of longstanding hypoxic brain injury.
9. We were satisfied that although TBU is able to state his views, he has a disability that at least partially prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

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

1. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further 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.
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 Guardianship Act. When undertaking this task, the Tribunal must be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).
3. TBU was fixed in his view that he has the capacity to make his own decisions and that if did not have capacity then he would like his sister, HAU, to make decisions for him. He was adamant that his sister had never assaulted him (despite the observations of numerous independent eyewitnesses) and told us that he wanted to return to the home in north-east Sydney in which he has a life interest. He told us that HAU would care for him in his home. He was unable to tell us what he would do if HAU was away from the home for any reason and did not appear to appreciate his need for 24/7 care and supervision. TBU clearly lacked insight into his very high care needs and his vulnerability to exploitation. He denied all the allegations that HAU has physically and emotionally abused him. He denied that there was any risk of financial exploitation at the hands of HAU.
4. HAU participated in the hearing, however she was difficult to interrupt and her telephone repeatedly disconnected from the hearing. HAU told us that she had come back into contact with TBU in December 2020 after a 20-year absence. She told us that the reason for her absence was because TBU's carer, Mr Z, had raped her and was an alcoholic. HAU said that she was able to provide all the care that TBU would require in his own home. If she had to leave the house for any reason, she had several friends who could provide care to TBU. HAU told us that she had encouraged TBU to carry out physical exercises against the advice of the physiotherapist as she believed that it was the best way to improve her brother's mobility. She acknowledged that she was not a health professional or a physiotherapist. HAU told us that the allegation that she had slapped her brother was false and that the scratches and mark on his face that were consistent with being slapped, were as a result of exercises she was carrying out to help him.
5. It appeared to us that HAU lacked insight into her brother's care needs and his physical and cognitive impairment. It seemed that much of this may be due to her own difficulties. This was consistent with the report of Dr R dated 27 May 2021 (lodged at the Tribunal by HAU) that noted that HAU: "has a problem with communication. Please speak slowly and repeat if necessary. She needs replies in writing about what has taken place today. This is the only way she is able to cope and assimilate what has occurred. To help [HAU], put in writing your name, time, date and what took place today."
6. We accepted the submission of the separate representative that HAU's own impairments prevent her from carrying out the role of a carer, enduring guardian or enduring power of attorney. She has no insight into her brother's care needs or her own inability to meet his needs. She lacks insight into the impact that her communication methods with her brother and her physical demands upon him have upon his physical and mental state.
7. We were told that as a result of HAU's reappearance in her brother's life, other family members have withdrawn their involvement with him. He is totally dependent upon HAU and sees her as his only way to return to live in his home at north-east Sydney.
8. Reports from the physiotherapist at the aged care facility and the police reasons for seeking the APDVO protecting TBU from his sister are consistent with an email we were provided from Ms S, Dental Coordinator at a medical and dental centre dated 12 April 2021. Ms S wrote to EZM at the ACF to complain about HAU's treatment of her brother at the dental appointment. Ms S wrote "I do have an issue though with the way his sister was treating him in the waiting room, in the surgery and after the appointment…Behaviour was deplorable and not being considerate to the others in the waiting room after being advised to keep her voice down and not speak to him in that way. I'm just hoping this isn't a constant issue."
9. The Tribunal is obliged to observe the s 4 General principles in exercising functions under the Guardianship Act: 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles - (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.
10. The Tribunal is reluctant to interfere when a person, presumed to have capacity, has made their intentions clear by executing an appointment of enduring guardian or power of attorney. Although we were not asked to review the appointment of enduring guardian and enduring power of attorney, we found that TBU was incapable of executing those instruments due to the undue influence of his sister in addition to the cognitive incapacity as addressed by Dr V.
11. We considered that TBU needs to be protected from the neglect, abuse and exploitation of HAU. We accepted the submission of EZM and the separate representative that there is a need for an independent decision maker to make decisions about TBU's access to others, including HAU, and the conditions of such access.
12. We accepted the submission of the separate representative that it appears that TBU has a life interest in the home in which he resided with his brother, in accordance with the Will of Mr Z. It is unclear whether TBU may be able to pay for care in his own home. He is clearly fixated on returning to his home. There is a need for an independent guardian to make decisions about TBU's accommodation and the services that he may receive. TBU does not actively attempt to leave the ACF or resist his placement, so there is no need for a guardian to have the additional authority to call upon others to implement accommodation decisions.
13. EZM agreed with the submission of the separate representative that there is no need for the medical and dental consent or health care functions to be attached to an order. TBU is prescribed only minor medications and his health care needs are met. The written evidence indicated that TBU has been reluctant since the reappearance of his sister to undertake medical assessments (such as seeing a cardiologist) or to take his minor prescribed medications. It is likely that without the controlling influence of HAU in his life, he will become more willing and compliant with treatment. TBU's health care is generally good.
14. We accepted that a guardianship order is likely to impair the preservation of TBU's relationship with his sister, however the need to protect TBU from abuse and neglect outweighed this consideration. It may be that the guardianship order will have the effect of reuniting him with other family members who have kept away due to the presence of HAU.
15. We were satisfied that a guardianship order would not impair TBU's cultural and linguistic environment.
16. We decided to make a guardianship order with the functions of access, accommodation and services.

Who should be appointed as the guardian?

1. The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed: Guardianship Act, s 15(3). There is no suitable private person involved who could be appointed as a private guardian.
2. We therefore appointed the Public Guardian.

How long should the order last?

1. Initial guardianship orders may be made for a period of up to 12 months.
2. We were satisfied that it was in TBU's best interest to make the order for a period of 12 months.

What did the Tribunal have to decide?

1. The questions to be considered by the Tribunal are:

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

Is TBU incapable of managing his affairs?

1. 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]."
2. 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."
3. 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."
4. 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].

1. 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).
2. The evidence as set out above in relation to the guardianship application satisfied us that TBU is extremely vulnerable to financial exploitation. TBU's disabilities would prevent him from independently managing his financial affairs. We were told that TBU's home at north-east has been vacant since his brother passed away and TBU entered the ACF. We were told by HAU that when she has gone past the house there is a great deal of unopened mail including bills. There is no indication that bills such as rates or insurance have been paid for the property or that the property has been maintained.
3. It was evident that neither TBU nor his sister are capable of making informed decisions in relation to the property including paying bills. TBU's pension is paid directly to the ACF and his fees are deducted automatically. TBU is provided with funds to pay for comforts, medical needs and clothing from his account at the facility. HAU does not understand that the ACF receives TBU's pension in accordance with an arrangement established when he became a permanent resident and has accused the ACF of stealing TBU's pension.
4. We accepted that TBU is incapable of managing his financial affairs.

Is there a need for a financial management order and is it in TBU's best interests that a financial manager be appointed?

1. We accepted that as a result of his disabilities, TBU has been unable to make arrangements in respect of the property at north-east Sydney in which he has a life interest. It appears that the property is vacant and under the terms of Mr Z's Will cannot be sold during TBU's lifetime. It could however potentially be rented and generate income for TBU. TBU is incapable of making arrangements to best utilise this substantial asset without the involvement of a financial manager. TBU's attorney has demonstrated her own inability by telling the Tribunal that the property is vacant and unmaintained and that no one has taken any action to open bills or other mail and arrange for payment of bills.
2. Clearly, regardless of the question of whether TBU was capable of executing the enduring power of attorney, the power of attorney is not operating in TBU's best interests due to the incapacity of HAU to carry out her obligations. HAU's inability to appreciate that TBU's pension has been directed to the ACF to pay for his fees and comforts further demonstrates her rigid and paranoid beliefs.
3. We accepted the submission of the separate representative that TBU requires an independent financial manager to protect him from exploitation, to investigate his financial circumstances, make decisions with respect to the north-east Sydney property and to manage any outstanding and unpaid bills associated with the property.
4. The enduring power of attorney is not operating in TBU's best interests.
5. We were satisfied that there is a need for a financial manager to be appointed and that it is in TBU's best interests for a financial management order to be made.

Who should be appointed as financial manager?

1. In appointing a financial manager, as in making all other orders under 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 s 4 of the Guardianship Act.
2. Section 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.
3. There is no suitable private person involved in TBU's life who could be proposed as a private financial manager. We therefore appointed the NSW Trustee and Guardian.

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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: 05 August 2022