TDG [2020] NSWCATGD 81

Parties, participants and statutory provisions

1. Appendix A identifies the parties to the review and the participants in the hearing. [Appendix removed for publication.] Appendix B sets out the text of the principal statutory provisions which I have referred to in these Reasons [Appendix removed for publication].

TDG's views

1. The Tribunal seeks to hold its hearings in a way which promotes the participation of the person who is the subject of the application or review and we do our best to obtain the views of the subject person whenever possible. Where we are able to obtain the subject person's views we take them into consideration in exercising our functions under the Guardianship Act 1987 (NSW).
2. TDG participated by telephone from the care facility in the presence the Director of Nursing that facility, Ms Y and QAX.
3. At my request QAX absented herself from TDG's presence during my discussion with TDG. The other participants remained on the line.
4. TDG participated actively in the hearing. During QAX's absence TDG expressed her views by way of responses to my questions which, in summary, were to the following effect: 1. She indicated that she was "extremely happy" with way in which QAX acted as her guardian and made decisions on her behalf. She told me that she had known QAX for approximately four to five years and regarded her as a friend and as someone she could rely upon. 2. When I asked whether TDG thought that QAX was a person who could be relied upon to make important decisions for her, TDG responded in the affirmative. When I asked whether TDG trusted QAX she again replied in the affirmative. 3. When I asked whether anyone else should be appointed in addition or in substitution for QAX, TDG responded in the negative. 4. When I asked whether there was anything which QAX had not done which TDG thought she might have done or might have done differently, TDG again responded in the negative. 5. TDG could not recall the name of the Care Facility without prompting, but she told me that she would rather return home than continue to live there. 6. TDG told me that she knew CZT as a tenant and that he had been quite friendly to her. However when I asked whether she thought that CZT would have her best interests at heart, she responded that she did not think that was the case and that CZT would give priority to his own interests and those of his family. 7. I asked TDG whether QAX would have sufficient information to make informed decisions about whether or not she, TDG, should remain facility or go home, TDG replied in the affirmative. I then asked what TDG's reaction would be if QAX as guardian recommended that she should either stay at the Care Facility or move to a new one. TDG replied that she would not be in favour of either result and would prefer to go home where "everything is in place".

CZT's objection to QAX's presence

1. For completeness I note that at the conclusion of the hearing CZT indicated that QAX should not have been allowed to have been present with TDG during the hearing because, as I understood the contention, that gave QAX the opportunity to influence TDG's testimony. CZT asked that at a minimum I should reduce the weight that I gave to TDG's views, for that reason.
2. I explained to CZT firstly that it was inevitable in hearings of this sort in the Guardianship Division, particularly telephone hearings, that other participants would often be present at the same venue as the subject person. Additionally there had been no indication of any muting of the telephone line or any attempt by QAX to influence what TDG had said during this hearing. Finally, as is usual and reasonable, I had asked QAX to vacate the room occupied for the hearing during TDG's testimony, as noted above. There was no support for CZT's contention and there was nothing before me to indicate that QAX had attempted to influence anything said by TDG during this hearing. For those reasons I made no reduction in the weight which I had given to TDG's testimony and which I had found to be persuasive.
3. The statutory issues for determination in any review of a guardianship order are: 1. Whether the subject person is someone for whom a further guardianship order could be made, because he or she continues to have a disability which prevents them from being able to make important life decisions and whether he or she is "a person in need of a guardian" for the purposes of the Guardianship Act. 2. Whether a further guardianship order should be made. 3. If it should, the nature of the order which should be made. Specifically, who should be appointed as guardian, the decision-making functions which should be granted to the guardian and what the duration of the order should be.

The real issues for determination

1. Under the "guiding principle" set out in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal, the parties to the proceedings and their legal representatives must facilitate the just, quick and cheap resolution of the real issues in the proceedings. As a result, the Tribunal in each case needs to take early steps to identify the real issues in the proceedings.
2. In determining the real issues and making preliminary findings to assist that determination I relied partially on the documentary material with which I had been provided. That comprised a copy of the Tribunal's previous orders and reasons for decision, a hearing report from NSW Trustee, a copy of CZT's application which attached his earlier application to review or revoke the financial management order, CZT's statements, submissions and correspondence with the Tribunal's case officer, a joinder application by RZY, the last Will of Mr Z, a Supreme Court of NSW probate search dated 3 September 2020, a professional report from Ms X, Social Worker dated 25 July 2019, written submissions from QAX, Mr W, RZY and Ms V, and a brief hearing report prepared for my attention by the Tribunal's case officer.
3. On the basis of my consideration of that documentation and my discussion with the participants, it was clear and appeared to be uncontested that: 1. TDG's diagnoses as described at [1] above were unchanged. 2. She remains cognitively impaired to the extent that she could not make some important life decisions and could not manage her person. 3. For those reasons TDG continues to be a person in need of a guardian for the purposes of the Guardianship Act: see the relevant definition from s 3 of that Act set out in Appendix B below [Appendix removed for publication]. 4. A further guardianship order should be made for TDG. In reaching a conclusion as to that, I gave consideration to the factors set out in s 14(2) of the Guardianship Act and was satisfied that a continuation of the order: 1. would not be contrary to TDG's views, in that she appeared to recognise the need for someone make at least some important decisions on her behalf; 2. would not adversely affect TDG's existing family relationships; 3. would not adversely affect her cultural and linguistic environments; 4. appeared to be necessary as the only practicable way in which the services which TDG needs could be made available to her; and 5. would be consistent with the application of the principles set out in s 4 of the Guardianship Act (specifically in order to protect her adequately from abuse or exploitation and to enable her so far as possible to live a normal life in the community) and, as a paramount consideration, that TDG's welfare and interests could only be preserved and protected by continuing the order. (For convenience of reference, ss 4 and 14 of the Guardianship Act are set out in Appendix B to these Reasons [Appendix removed for publication]).
4. I made findings corresponding with each of my conclusions at [23].

The real issues in these proceedings

1. It followed that the real issues in the proceedings which remained to be determined by me were: 1. who should be appointed as guardian; 2. what decision-making functions the guardian should have; and 3. the appropriate duration of the order and whether it should be reviewed on its expiry.
2. I explained to the participants my view that the central issues were the identity of guardian and in particular whether QAX's appointment as guardian should be revoked and if it were revoked who should be the guardian. There was no objection to that analysis of the issues.

The relevant law

1. I may appoint a private person or the Public Guardian as guardian. I cannot appoint the Public Guardian under a continuing order where an order "can be made" appointing a private person as guardian. As to the circumstances in which such an order "can be made", see further at [28(3)] and [28(5)-(7)] below.
2. There are a number of matters which I must consider in deciding who to appoint as guardian. They arise from the Guardianship Act itself and as the result of relevant Court and Tribunal decisions. 1. As required by s 15(3) of the Guardianship Act, when considering the making of a continuing guardianship order, the Tribunal cannot appoint the Public Guardian in circumstances where an order "can be made" appointing a suitable private person as guardian. 2. Subsection 17(1) of the Guardianship Act expressly prohibits the appointment of someone as guardian unless the Tribunal is satisfied that he or she; 1. has a personality generally compatible with the personality of the person under guardianship, 2. has no undue conflict of interest, particularly but not restricted to a financial conflict of interest, in respect of the person under guardianship; and 3. is willing and able to exercise the functions of the order. (My emphasis). 1. In W v G [2003] NSWSC 1170 Justice Windeyer of the Supreme Court of NSW analysed the interaction between ss 15(3) and 17 of the Guardianship Act. He held that s 15 (3) must be read as requiring that the Public Guardian should not be appointed in circumstances in which an order can "properly" be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set out in that Act being given effect. The question for the Tribunal is not whether the proposed guardian will make a particular decision in the subject person's best interests, but rather whether he or she is able to exercise their decision-making authority in accordance with the principles set out in that Act. 2. The guiding principles set out in s 4 of the Guardianship Act are most relevant here. Section 4 of that Act requires that paramount consideration be given to the welfare and interests of the subject person. 3. It follows from that and from the phrase "willing and able" in s 17(1)(c) of the Guardianship Act, that I should balance the willingness expressed by a particular person to be the guardian against their willingness and their ability to act in accordance with the principles set out in the Guardianship Act (in particular those set out in s 4 of that Act) and the likelihood that they will do so. See FGE (2) [2012] NSWGT 3 (16 March 2012) at [67] and [71]. In that decision the Guardianship Tribunal noted that the focus should be on the decision-making process and not simply on the substance of a particular decision. 4. In P v D1 & Ors [2011] NSWSC 257 the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight into their proposed role, to explain their plans as guardian if so appointed and to demonstrate that in that role they would act objectively and in the interests of the subject person without any conflict with their personal interests. 5. More recently, in ZGB v ZGC [2018] NSWCATAP 58 at [64]-[65], the Appeal Panel of NCAT gave consideration to the relevant principles and in particular to the need for the Tribunal to be satisfied that a person who is nominated for appointment as private guardian could perform the role of guardian in accordance with the proposed order and in a manner consistent with s 4 of the Guardianship Act. The Appeal Panel concluded that none of the persons seeking appointment in that case could currently perform the role of guardian consistent with the duties imposed by s 4 of that Act: "… such as ensuring (that the subject person's) welfare and interests were given paramount consideration whilst recognising the importance of preserving the family relationships." 1. Finally, on the basis of the decided cases it is clear that what is important is that the Tribunal be satisfied that the candidate for appointment can demonstrate: 1. their insight into their decision-making role as a guardian in the particular circumstances of the case; and 2. that if appointed they will be able to act objectively and without perceived conflict of interest.

The forensic onus

1. It is also clear from the authorities that in circumstances where the purpose of an application is to displace the appointed decision-maker, in practice the applicant bears at least a forensic onus to establish the case for a change: see M v M [2013] NSWSC 1495 at [50(l)], Holt v The Protective Commissioner (1993) 31 NSWLR 227 at [237(F)] and [238(B)-(F)]; KW v The Protective Commissioner and Anor [2008] NSWADTAT 5 at [12]-[13].
2. Prior to the commencement of CZT's case I advised him that he would bear this forensic onus and would need to persuade me either that QAX was unsuitable as guardian or that TDG's welfare and interests would be better served by appointing someone else.

CZT's case

1. In his application CZT sought to be appointed as guardian, to replace QAX. However at the hearing he advised that he no longer sought to be appointed as guardian, but rather sought the appointment of the Public Guardian to replace QAX.
2. CZT opened by confirming that it was not his intention to discredit QAX, whom he regarded as well-intentioned. He said that his focus was purely on the appointment of a guardian who would best serve TDG's welfare and interests. I understood him to concede that QAX does provide support to TDG but did so as a supporter and friend rather than as guardian.
3. CZT's case was presented in his written submissions and orally at the hearing. In summary, his case for the revocation of QAX's appointment's guardian was made on the following grounds: 1. He had concerns about QAX's understanding of the role of guardian. He relied partially on the fact that QAX appeared not to have reduced to writing any plan as to how she would act as guardian. CZT appeared to place substantial weight on his concern about QAX's understanding of the restrictions on her role. In particular, he emphasised his view that QAX had given insufficient weight to TDG's own views and wishes. In his written submissions he stated: "My concern is that [QAX] does not understand the restrictions of her role in moving ([TDG]) against her will, which is likely to lead to further delays of ([TDG]) moving to a better accommodation or even to ([TDG]'s) clear preference of being cared for in her own home." 1. Secondly, as I understood it CZT suggested that because QAX was giving insufficient weight to TDG's own views, she was making decisions as guardian which were not conducive to TDG's welfare and interests. As I understood it, he based that concern on what he termed the "disconnect" between QAX's plans to move TDG into a better care facility on the one hand and TDG's own strong desire to move back home, on the other. CZT contended that TDG's wishes had not been sufficiently taken into account by QAX and that TDG had expressed an ongoing objection to living in a nursing home. In his view QAX had not given sufficient consideration or weight to the possibility of TDG being supported at home and that option, so far as he was aware, had not even been investigated. In his written submissions he said: "I decided to apply for a review as I have seen ([TDG]) is (sic) rapidly deteriorating condition over the past weeks and felt that I am unable to give her the adequate support in improving her quality of life in relation to her accommodation which is her most pressing need." 1. CZT also suggested in his oral submissions that as guardian QAX is not addressing what he termed "bigger issues" relating to TDG's welfare and interests, such as her need for a neuropsychological assessment and physiotherapy. CZT's assertion was that QAX had "shied away" from the harder decisions on matters which were perceived to be difficult. 2. In his oral submissions CZT asserted that QAX has used her role as guardian to influence TDG. I understood him to assert that in fact, TDG trusts him more than she trusts QAX.

QAX's case

1. QAX opened her written submissions by confirming that she is a Registered Nurse who has worked in the New South Wales public health system for over 30 years and that she understands that as guardian she has, in her words: "..a moral, ethical and legal responsibility combined with a duty of care to protect TDG and prevent her from coming to harm."
2. In her written submissions QAX confirmed that she had sought a review by the Tribunal of TDG's financial management order (that application having been heard on 14 September 2020) because of a concern that CZT, who had been appointed as financial manager for both Mr Z and TDG, had a conflict between his personal interests and his duties and obligations as financial manager.
3. In particular, QAX asserted that CZT had disclosed to her by telephone on 1 September 2020 that he was a beneficiary of Mr Z's last Will dated 5 December 2018 and had later disclosed that he, CZT, had been appointed as Mr Z's executor and that no solicitor had been involved in preparing or witnessing the execution of the Will.
4. QAX asserted that TDG's understanding of her late husband's Will was that his Will and hers were reciprocal, so her discovery by TDG of the terms of the Will of 5 December 2018 (which I understood to have occurred after Mr Z's death) had shocked and upset TDG.
5. I reviewed a copy of a Will of Mr Z dated 5 December 2018. Under that Will CZT is appointed executor and he is given title to Mr Z's houses, being the two residences which had been occupied separately by Mr Z and TGD and CZT. I understood the land on which the two residences stood to be contained in one title deed. The Will goes on to purport to grant TDG "a lifetime right of residence", which is described in general terms and gives the residue of the estate to TDG unless she fails to survive Mr Z by 30 days, in which case the residue goes to CZT.
6. QAX's written submissions described TDG's current accommodation in the Care Facility and justified the choice of that accommodation on the basis that the facility is clean and comfortable and the staff caring and amendable to TDG's requests. However she goes on to describe the overall environment as "not aesthetically pleasing", the rooms as small and the facility generally as being "dated".
7. Significantly, QAX confirmed that since Mr Z's death in July 2020 she had made enquiries of two other residential aged care facilities, one of which appeared to provide a more modern and homely environment with a higher level of services and that on 16 September 2020 TDG's general practitioner had approved her proposed move to that facility.
8. In her written submissions QAX described in detail the medical and services assistance which she had arranged for TDG since her appointment. She asserted that she has arranged an Aged Care Assessment Team (ACAT) assessment, on three occasions she has identified that TDG may have a urinary tract infection which has resulted in medication being prescribed by her general practitioner, she has arranged and overseen End-of-Life Planning and more recently, since the partial lifting of the COVID-19 restrictions, she has arranged dentist and optometrist appointments for TDG.
9. QAX asserts that she has arranged services for TDG during her time as guardian, including private physiotherapy including use of an exercise physiologist, personal grooming including hairdressing and podiatry. She asserted that she has attempted to ensure that TDG has new winter clothes and, in order to supplement TDG's diet, she shops each week or fortnight for food and often provides her with pre-prepared meals.
10. In relation to the prospect of TDG returning to live at home, QAX contended that this would require an occupational therapy assessment of the home, major modifications and decluttering, completion of architectural plan to modify the downstairs to ensure TDG's safety and to create an open plan environment, as well as the work and cost involved in Council development application approval and engagement of the builder to complete the required modifications. QAX observed that, even with such modifications: "The current level of care that TDG requires would be required to be replicated at home by the provision of live-in carers. The cost of providing this care is currently approximately $1800 per day plus utilities and this fee does not include extra services such as physiotherapy. The option of returning home for TDG…is not supported by TDG's GP."
11. In her oral submissions QAX provided a summary of what she sees as her role and responsibilities as guardian. That appeared to be an accurate and appropriate summary.
12. QAX clearly wishes to continue as guardian.

Mr W's view

1. Although Mr W had acted as Separate Representative at an earlier hearing, he emphasised at the opening of this hearing that he did not appear in that capacity nor has a Legal Representative of any party, but believed that his independent view might be useful. There was no objection to Mr W's participation. He had provided brief written submissions, which I took into account.
2. Mr W emphasised that in the course of his visit to TDG at the Care Facility on 4 February 2020 and subsequently TDG had emphasised her wish that QAX continue as her guardian. In Mr W's contention there was no evidence which CZT could point to of any conflict of interest by QAX. In his view QAX was appropriate to continue as guardian and it was in TDG's interests for there to be some continuity in her decision-making.

Views of the Director of Nursing, Ms Y

1. Ms Y is the Director of Nursing at the Care Facility. She confirmed that the facility was a high care one and that she and her staff had done their best to meet TDG's needs, but that she respected TDG's right to seek alternative accommodation. Ms Y noted that the adjustment to supported accommodation had been particularly difficult for TDG but, in Ms Y's own words: "([TDG]'s) one steady constant source of support has been [QAX]."
2. Ms Y confirmed that QAX had made frequent visits and phone calls and had expressed ongoing care and support for TDG and acted as what Ms Y described as "a steadying influence".
3. Ms Y supported retention of QAX as TDG's guardian.

Other views

1. RZY has been a long-term neighbour of TDG and is reported to have provided support to her and to Mr Z during his life. RZY applied to be joined as a party to these proceedings but that joinder application was refused by a separately constituted Tribunal on 14 September 2020. However, in written submissions made in support of the joinder application RZY contended that QAX as a health professional had the relevant skills, qualities, professional and personal attributes to provide the ongoing support that TDG requires. He noted that TDG in his view was vulnerable, in declining health and susceptible to undue influence and was in need of a responsible person with integrity to act as her guardian. In his view QAX was that person.
2. RZY also provided a written statement dated 23 September 2020 which supported the reappointment of QAX as guardian. In particular in that statement he asserted that QAX: "… is honest, reliable and is a caring and compassionate person who has demonstrated strong advocacy skills during ([TDG]'s) hospital admissions and while she has been a resident at (the Care Facility)".
3. At the hearing RZY confirmed his support for QAX.
4. Ms U described herself as a long-standing friend of TDG and asserted that she had visited her regularly in the Care Facility. She told me that TDG does not appear to be happy at the Care Facility and that she does not know QAX very well, but she indicated no objection to QAX continuation as TDG's guardian.
5. Ms V, who described herself as a friend and neighbour of TDG for eight years, provided two references dated 10 and 20 September 2020 which supported the reappointment of QAX as guardian. In her reference of 20 September 2020 Ms V described QAX's exercise of the role of guardian as being compassionate and level-headed and she saw QAX's background in nursing as providing her with natural caretaking skills. She emphasised that there was close personal bond between TDG and QAX.

Consideration and appointment

1. On the basis of a thorough review of the testimony and submission of these parties and of the supporting participants I could not be satisfied that CZT had established that QAX was unsuitable to remain as guardian for TDG. He had not satisfied the "forensic onus" referred to in the cases cited at [29].
2. I gave particular weight to views and observations of TDG herself and to the independent observations of Mr W. QAX's account of her understanding of the duties and obligations of a guardian was accurate and complete and in my observation was genuine. Her account of her actions and the basis for her decisions on TDG's behalf were thorough and logical and were largely corroborated by the other participants and in particular by the independent observations of Mr W.
3. I found CZT's grounds for contending that QAX was unsuitable as guardian not to be persuasive in light of the testimony and written references given in support of QAX and her own detailed and persuasive submissions. That material provided a credible and persuasive answer to CZT's assertions concerning QAX's suitability.
4. I accepted QAX as a witness of truth. I found her submissions to be thoughtful, logical and persuasive. I was satisfied on that basis that she fulfilled all the requirements and in particular those of s 17(1) of the Guardianship Act (including those expounded upon in the authorities cited at [26] above) for continuation of her appointment as guardian.
5. It follows that guardianship order for TDG can be made appointing a person other than the Public Guardian. By operation of s 15(3) of the Guardianship Act, in those circumstances the Public Guardian cannot be appointed.
6. I record for completeness that no other private person, including CZT, had indicated a willingness to be considered for appointment.
7. It followed that QAX's appointment as guardian would not be revoked.

2. Guardian's decision-making functions
3. QAX contended that the guardianship order should continue with the existing functions and that there was an ongoing need for decisions to be made about TDG's accommodation, health care, medical and dental consent and services. There was no contention to the contrary and nothing before me to indicate that any of those functions should be revoked.
4. However, following discussion with the participants it appeared necessary for QAX as guardian to have the additional function of legal services. That is because it is clear that TDG should have the benefit of legal advice and, if necessary, representation in relation to her rights in respect of Mr Z's Will of 5 December 2018. I was given to understand that an application has been made to the Supreme Court for a grant of probate of that Will. It may therefore be prudent for TDG to have the benefit of early legal advice.
5. It followed that under the order as renewed and varied QAX should have the functions of accommodation, health care, medical and dental consent, services and legal services. I ordered accordingly.

3. Duration and reviewability of the order
4. In my view there is a clear need for stability in decision-making on TDG's behalf. That decision-making process needs to remain stable over a reasonable period, to enable any proposed change of TDG's accommodation to be implemented and to allow for her to become settled in any new accommodation. I am also satisfied that there is an ongoing need for decisions in relation to TDG's health care generally, her services and the provision of substituted consent for her medical and dental treatment. TDG's need for stability in these matters justifies the making of an order of a substantial term.
5. In determining the duration of the order I also took into account the need to restrict TDG's freedom of action and freedom of decision as little as possible.
6. On the basis of those considerations I decided to make an order for two years from the date of these orders. I could see no justification for making a non-reviewable order.
7. I ordered accordingly.

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: 01 November 2021