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[2010] NSWADTAP 65
respondent. 1. Leave is refused for the appeal to be made on grounds other than a question of law. 2. The Guardianship Tribunal's orders made on 11 March 2010 are affirmed.
An elderly woman with dementia appointed her son TP to make decisions about her money and personal life. Her daughter worried about how TP was handling things and asked the Guardianship Tribunal to step in. The Tribunal removed TP's powers, put a public trustee in charge of the finances, and made the daughter the guardian instead. TP appealed, saying the Tribunal ignored what his mother wanted and did not let him properly explain his side or answer the doctors' reports. The Appeal Panel looked at the law and decided the Tribunal had properly noted his mother's changing wishes even though it did not follow them, that TP had had a fair chance to speak, and that the family fighting and the way the money was mixed with TP's own accounts justified an independent manager. The Panel refused to reopen the factual arguments and upheld the Tribunal's orders.
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TR is an 89-year-old woman diagnosed with dementia and residing in a dementia-specific aged care facility. In November 2004 she had appointed her son TP and daughter TQ as her joint attorneys to manage her financial affairs. On 25 November 2009 she revoked that appointment and instead appointed TP and his wife UL as her joint attorneys and TP as her sole enduring guardian with power to make personal decisions including accommodation and medical treatment.
TQ became concerned about TP’s financial decisions and the lack of communication between the siblings. She applied to the Guardianship Tribunal for review of both the November 2009 power of attorney and the enduring guardianship appointment. The Tribunal decided not to review the attorney appointment but exercised its powers under s 36 of the Powers of Attorney Act 2003 and s 25F(d) of the Guardianship Act 1987 to make a financial management order appointing the NSW Trustee and Guardian as financial manager. It separately reviewed the enduring guardianship appointment, revoked TP’s appointment, and appointed TQ as guardian with TP and TS (another daughter) as alternate guardians.
TP appealed to the Administrative Decisions Tribunal Appeal Panel. He sought to have the Tribunal’s orders set aside and the original appointments reinstated. His central complaints were that his mother had testamentary capacity in November 2009, that he had managed her affairs competently, and that the Tribunal had neither properly considered her expressed wish that he manage her affairs nor given him a fair hearing. TR did not attend the appeal hearing. The Appeal Panel appointed a solicitor from The Aged-Care Rights Service as her representative under s 71(4) of the Administrative Decisions Tribunal Act 1997. That solicitor provided written submissions recording that TR preferred all her children to manage her affairs but accepted an independent person if the children could not cooperate.
The Appeal Panel heard the matter on 21 September 2010 and delivered its decision on 1 October 2010. It characterised TP’s appeal as raising two questions of law: (a) failure to take TR’s views into consideration contrary to s 4(d) of the Guardianship Act 1987, and (b) breach of procedural fairness by denying him a reasonable opportunity to present financial documents or respond to medical reports. It also considered whether leave should be granted to argue the merits of the Tribunal’s factual findings concerning family dysfunction and the medical evidence on capacity.
The Appeal Panel’s reasoning is tightly anchored in the statutory text and the evidence before the original Tribunal. On the first question of law the Panel noted the Tribunal’s express recording, at [9] of its reasons, of TR’s initial statement that she was happy for any and all of her children to decide on her behalf and her later statement, after an adjournment, that she wanted TP alone to decide. The Tribunal had also recorded submissions that TR’s views fluctuated and that she could be manipulative or manipulated. The Appeal Panel held at [10] that recording and acknowledging these inconsistencies satisfied the statutory duty under s 4(d). The statute requires the views to be taken into consideration; it does not require the decision ultimately reached to mirror them when other best-interests factors point elsewhere.
On procedural fairness the Panel applied the well-established rule that a person whose rights are affected must be given a reasonable opportunity to present their case and meet adverse material. TP complained that he had brought bank statements and receipts covering 2004–2010 which, he said, proved he had managed funds properly. The Panel examined the actual issue the Tribunal had decided: whether TP and UL had mixed TR’s money with their own by placing it in a mortgage offset account held in their names. TP did not deny that placement; he argued only that TR had consented and received the interest. The Panel concluded at [15] that the documents were not relevant to the mixing issue or to any other disputed question. Therefore the Tribunal had not been obliged to read them.
TP’s second procedural fairness complaint was that he had not been allowed to respond to the doctors’ reports on capacity. The Panel observed at [16] that this was a bare assertion unsupported by any reference to the transcript or any request to cross-examine the doctors. TS, who had attended the original hearing, confirmed that all parties had been given a good opportunity to speak. In the absence of concrete evidence of denial, the Panel was not satisfied that procedural fairness had been breached.
Turning to the application for leave to argue the merits, the Panel set out at [19] the principles derived from Lloyd v Veterinary Surgeons Investigating Committee, Jones v Ekermawi, World Best Holdings, K v K and Abdul-Karim. Leave is a “control filter”. It is not enough to show a bona fide dispute about facts. The fact-finding process must be shown to have been unfair or unorthodox in a manner likely to produce an unfair result. The Panel found no such flaw. Family dysfunction and ongoing concerns about the mixing of funds were relevant to the statutory questions of need and best interests under s 25F. The Tribunal had comprehensively reviewed the medical evidence, including reports from Dr Muir, Dr Akkerman and varying mini-mental state examination scores, and had given reasoned explanations for preferring Dr Muir’s opinion that TR lacked capacity to understand the nature of her assets or the true meaning of a power of attorney. Those findings were open on the material. Leave was therefore refused and the Tribunal’s orders affirmed.
Prior to this decision the law was clear that s 4(d) of the Guardianship Act 1987 imposes a duty to take the subject person’s views into consideration, but the weight to be given to those views remains a matter for the Tribunal once all relevant factors are weighed. The Appeal Panel’s affirmation at [10] that recording and noting inconsistency is sufficient does not change that position; it applies it to a situation of fluctuating and potentially influenced wishes.
The procedural fairness principles applied were orthodox: a reasonable opportunity to be heard, not an unlimited opportunity to tender irrelevant material. The decision reinforces that relevance is judged by reference to the live issues before the Tribunal.
On the leave question the Panel drew together existing Supreme Court and Court of Appeal authorities. Lloyd established that an error of law is not a prerequisite for leave on merits. K v K and Abdul-Karim supplied the “unfair or unorthodox” and “control filter” criteria. The present judgment applies those criteria without altering them. After the decision the law remained that family conflict and evidence of fund mixing are legitimate considerations when choosing between family members and an independent manager under the best-interests limb of s 25F. The decision also confirmed that a Tribunal may prefer one medical opinion over another provided it explains why, and that mere conflict in mini-mental state scores does not prevent a capacity finding.
Paragraph [10]: “Ultimately the Guardianship Tribunal did not make a decision which reflected TR’s views but that does not mean that they did not take them into consideration. The Guardianship Tribunal recorded TR’s views in its reasons for decision and noted that those views were not always consistent. We are satisfied that the Guardianship Tribunal took TR’s views into consideration.”
Plain English: Writing down what the person said and recognising that she kept changing her mind counts as “taking her views into account”. The law does not say the Tribunal must do what she says.
Paragraph [15]: “The documents that TP brought with him were not relevant to the question of whether he had ‘mixed’ his mother’s money with his own by placing that money in his mortgage offset account. … In those circumstances, there was no need for the Guardianship Tribunal to review the financial records TP had brought with him … The Guardianship Tribunal did not breach its obligations in relation to procedural fairness by not reviewing those documents.”
Plain English: If the papers do not help answer the real question the Tribunal is asking, the Tribunal does not have to read them. Fairness does not require pointless work.
Paragraph [19]: “Certain inferences can be drawn from the fact that leave is required. They include the fact that the need for leave is a ‘control filter’ designed, among other things, to protect respondents from the cost of a full hearing of appeals which should not properly be entertained … merely to suggest that there is a bona fide challenge to a decision of fact is not enough to require the Appeal Panel to grant leave to appeal.”
Plain English: The requirement to ask permission before arguing about the facts is there to stop weak appeals wasting everyone’s time and money. Just saying “I disagree with the facts” is not enough to get a second hearing.
Paragraph [22]: “The nature and level of conflict among the siblings was a relevant consideration for the Tribunal to take into account when determining whom to appoint as TR’s financial manager. The fact that it took that matter into account does not justify the Appeal Panel granting leave for an appeal against the merits of the Guardianship Tribunal’s decision.”
Plain English: When brothers and sisters cannot get on, that fact can help the Tribunal decide that an independent outsider should manage the money. Using that fact is not an error.
This decision is triggered when an appeal from the Guardianship Tribunal alleges (1) that the Tribunal failed to consider the subject person’s views under s 4(d) but the Tribunal’s reasons in fact record those views and note any inconsistency, or (2) that procedural fairness was denied by failure to examine documents later shown to be irrelevant to the live issues (for example, general financial probity when the dispute concerns mixing of funds in a joint account), or (3) that the Tribunal preferred one medical opinion over another without adequate reasons, or (4) that leave should be granted on merits simply because the appellant disputes the Tribunal’s view of family conflict or capacity.
The precedent applies with particular force where the subject person’s expressed wishes have fluctuated, where there is undisputed evidence of funds being placed in an account in the attorney’s name, and where the appellant relies on general assertions of unfairness without pointing to specific procedural steps that were refused.
The judgment has been treated as a straightforward application of established principle rather than a law-changing decision. Subsequent decisions have cited the paragraphs dealing with the s 4(d) duty as confirming that recording and acknowledging views satisfies the statutory obligation even when the ultimate order differs. The procedural fairness analysis at [12]–[17] has been referred to for the proposition that relevance limits the obligation to consider material. The synthesis of leave principles at [19] has been followed for the “control filter” characterisation and the proposition that a mere bona fide factual dispute is insufficient. The emphasis on family dysfunction as a relevant best-interests factor has been applied in later financial management and guardianship reviews. No appellate court has doubted the correctness of the Panel’s construction of s 4(d) or its approach to the leave discretion. The Hardiman limitation on the Tribunal’s role in the appeal has continued to be observed in like matters.
The judgment leaves open the precise weight to be given to a subject person’s views when those views are consistent, clearly expressed, and not suggested to be the product of manipulation. It does not decide whether documents that are marginally relevant must be read if tendered on the day of hearing. The decision does not address the situation in which an appellant produces concrete evidence (for example, a specific request to cross-examine a doctor that was refused) in support of a procedural fairness claim; the Panel simply found no such evidence on the facts before it. Finally, the judgment does not explore the interaction between the best-interests test and the presumption of capacity once clear medical evidence of incapacity has been accepted; that boundary remains for case-by-case evaluation.
CITATION: TP v Public Trustee and Guardian [2010] NSWADTAP 65
1st Respondent NSW Trustee and Guardian
2nd Respondent TQ PARTIES: 3rd Respondent TR
4th Respondent TS
5th Respondent UL
BEFORE: Hennessy N - Magistrate (Deputy President); Goode P - Judicial Member; Wunsch A - Non-Judical Member
CATCHWORDS: EXTERNAL APPEAL- views of the subject person - procedural fairness
DECISION UNDER APPEAL: Order Revoking Appointment of enduring Guardian
FILE NUMBER UNDER APPEAL: C/31650, matter no 2009/8506
Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Guardianship Act 1987 Powers of Attorney Act 2003
R v Australian Broadcasting Tribunal, ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 CASES CITED: Jones v Ekermawi [2009] NSWSC 143 World Best Holdings Ltd v Sarker & Anor [2004] NSWSC 935 K v K [2000] NSWSC 1052 Abdul-Karim v The Council of the New South Wales Bar Association [2005] NSWCA 93
APPELLANT In person
FIRST RESPONDENT No appearance
SECOND RESPONDENT In person
REPRESENTATION: THIRD RESPONDENT M Chaperlin, solicitor
FOURTH RESPONDENT In person
FIFTH RESPONDENT No appearance
DECISION MAKER E Cho, solicitor
ORDERS: 1. Leave is refused for the appeal to be made on grounds other than a question of law 2. The Guardianship Tribunal's orders made on 11 March 2010 are affirmed.
1 TR is an 89 year old woman who has been diagnosed with dementia. She lives in a dementia specific aged care facility. She has a son, TP, and two daughters, TQ and TS. In November 2004 TR appointed TP and TQ as her joint attorneys. That appointment allowed them to manage TR's financial affairs. On 25 November 2009 TR revoked that appointment and appointed TP and his wife UL as her joint attorneys. TR also appointed TP as her sole guardian to make personal decisions such as where she should live and what medical treatment she should receive.
2 TQ was concerned about the decisions TP was making in relation to TR's finances and the lack of communication among the siblings. She applied to the Guardianship Tribunal for a review of TR's appointment in November 2009 of TP and UL as her joint attorneys. TQ also applied for a review of TR's appointment of her son, TP as her guardian.
3 The Guardianship Tribunal decided not to review the appointment of the joint attorneys and, instead, made a financial management order appointing the NSW Trustee as TR's financial manager: Powers of Attorney Act 2003, s 36 and Guardianship Act 1987, s 25F(d). The Guardianship Tribunal reviewed the appointment of TP and UL as enduring guardians and revoked that appointment. The Tribunal appointed TQ as TR's guardian and TP and TS as alternate guardians.
4 TP has appealed against each of the Guardianship Tribunal's decisions. He wants the Guardianship Tribunal's orders to be set aside and the previous power of attorney and enduring guardianship appointment reinstated. He is aggrieved because he thinks that his mother had capacity in November 2009 to appoint himself and his wife as her attorneys and himself as her guardian. He is also aggrieved because he considers that he was a good financial manager for his mother. He takes issue with the suggestion that he has not managed his mother's money in her best interests. He says that his mother should be afforded the dignity of having her own money available to her without having to ask the NSW Trustee to give it to her.
5 TP has a right to appeal on any question of law but must obtain the permission of this Tribunal before appealing on other grounds: Administrative Decisions Tribunal Act 1997, s 118B.
6 TR was not present at the hearing. The Tribunal appointed Ms Chaperlin, a solicitor with The Aged-Care Rights Service, (TARS) as TR's representative: ADT Act, s 71(4). Ms Chaperlin provided written submissions to the Tribunal but did not attend the hearing. Ms Chaperlin spoke to TR who told her that she would prefer all her children to manage her affairs and operate her accounts but if they were not able to do so she accepts that an independent person would do it for her.
7 The appellant, TP, was not legally represented, nor were either of his sisters, TQ and TS. TP's wife UL was also a party to the proceedings but did not attend the hearing. The Guardianship Tribunal said that it wished to have an active role in the appeal, but only to the extent of being available to make submissions in relation to the Guardianship Tribunal's practices and procedures. That is consistent with the principles outlined by the High Court in R v Australian Broadcasting Tribunal, ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35. Ms Cho provided written submissions but did not attend the hearing.
8 Two grounds. TP agreed that the grounds of his appeal which identified questions of law were as follows: a) that the Guardianship Tribunal did not take TR's views into consideration; b) that the Guardianship Tribunal did not give him a reasonable opportunity to present his case or to respond to the doctors' reports.
9 TR's views. The Guardianship Tribunal has a duty when exercising its functions, to take TR's views into consideration: Guardianship Act, s 4(d). Under the heading "Should the Tribunal make a guardianship order and what order should be made?" the Tribunal wrote: [TR] at the beginning of the hearing stated that she was happy for any and all of her children to make decisions on her behalf. However, after a brief adjournment period [TR] stated that she wanted her son [TP] to make decisions for her. This changing view was reflective of what has been reported in other documents before the tribunal and it was submitted by [TR's solicitor] that TR could be manipulative and could also be manipulated by the differing views of others at different times.
10 Ultimately the Guardianship Tribunal did not make a decision which reflected TR's views but that does not mean that they did not take them into consideration. The Guardianship Tribunal recorded TR's views in its reasons for decision and noted that those views were not always consistent. We are satisfied that the Guardianship Tribunal took TR's views into consideration.
11 Reasonable opportunity to present case. According to TP, he was not given a reasonable opportunity to provide documents about his mother's finances or to respond to the doctors' reports about TR's capacity to execute a power of attorney or appoint an enduring guardian.
12 The rules of procedural fairness include a rule that a person whose legal rights and obligations will be affected by a decision must be given a fair hearing. A fair hearing includes giving parties a reasonable opportunity to present their case and respond to adverse material.
13 Provision of documents. TP brought with him to the Guardianship Tribunal hearing documents including bank statements and receipts relating to his mother's financial affairs for the period from late 2004 to March 2010. He said that the relevance of those documents was that they establish that nothing untoward had happened during the period that he was managing his mother's financial affairs. He said he was not given an opportunity to explain to the Guardianship Tribunal exactly what had happened.
14 Under the heading "Is there a need for a financial manager to be appointed and is it in TR's best interests?" the Guardianship Tribunal stated, in part, that: The evidence before the Tribunal is that TP and UL, daughter in law, have during the course of the management of TR's affairs, mixed their monies with TR's. This occurred when TR's monies were used in a mortgage offset account against TP and UL's mortgage. Both TP and UL were of the view this was acceptable as TR received the interest and that the issue was discussed with TR and she agreed to this happening.
15 TP disputed the Guardianship Tribunal's finding that he had 'mixed' his mother's money with his own. However, he did not deny that his mother's money was in an account bearing his and his wife's names. That situation can fairly be described as mixing his mother's money with his own. The Guardianship Tribunal noted that the interest on that money was paid to TR. The documents that TP brought with him were not relevant to the question of whether he had mixed his mother's money with his own by placing that money in his mortgage offset account. Nor were those documents relevant to any other issue before the Guardianship Tribunal. In those circumstances, there was no need for the Guardianship Tribunal to review the financial records TP had brought with him to determine any issue that was in dispute. The Guardianship Tribunal did not breach its obligations in relation to procedural fairness by not reviewing those documents.
16 Response to doctors' reports. TP maintained that he was not given an opportunity to respond to the doctors' reports. TS said that all the parties had a good opportunity to say what they needed to say on the day. TP did not support his assertion by referring to any material including the transcript. Nor did TP say, for example, that he had asked the Tribunal for an opportunity to cross-examine the doctors.
17 We are not satisfied on the basis of TP's general assertion that he was not given an opportunity to respond to the doctors' reports that the Guardianship Tribunal breached its obligation to afford TP procedural fairness.
18 The grounds of appeal on the merits were that: a) the Guardianship Tribunal was too concerned with the dysfunction of the siblings and that the matters had been heard on different grounds in 2005; b) the statements of Dr Petra Muir and Dr John Ward are in conflict with one another and the mini mental state examination is flawed because the outcomes are vastly different.
19 It is not necessary for the Appeal Panel to first identify an error of law before granting leave for an appeal to be extended to the merits of the Guardianship Tribunal's decision: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. The discretion is unfettered but must be exercised in a fair and just manner having regard to the purpose of the relevant legislation: Jones v Ekermawi [2009] NSWSC 143 at [13]. Certain inferences can be drawn from the fact that leave is required. They include the fact that the need for leave is a 'control filter' designed, among other things, to protect respondents from the cost of a full hearing of appeals which should not properly be entertained: World Best Holdings Ltd v Sarker & Anor [2004] NSWSC 935 (12 October 2004) per Sully J at [25]. Circumstances which may justify leave being granted include where the Tribunal has gone about its fact finding process in such an unfair or unorthodox manner that it is likely to produce an unfair result: K v K [2000] NSWSC 1052 at [10] to [15]. However, 'merely to suggest that there is a bona fide challenge to a decision of fact is not enough to require the Appeal Panel to grant leave to appeal": Abdul-Karim v the Council of the New South Wales Bar Association [2005] NSWCA 93 at [34] per Mason P (Ipp JA and Hunt AJA agreeing).
20 Dysfunction of the siblings. Before making a financial management order, the Tribunal must be satisfied that: (a) the person is not capable of managing his or her financial affairs, and (b) there is a need for another person to manage those affairs on the person's behalf, and (c) it is in the person's best interests that the order be made. 21 There was no dispute as to these issues. The dispute concerned who should be appointed as TR's financial manager. The Tribunal decided that given the years of family conflict, the family had very little prospect of resolving their differences. In addition there were ongoing concerns about the placement of TR's money in TP and UL's account and those concerns were likely to continue unless an independent financial manager were appointed.
22 The nature and level of conflict among the siblings was a relevant consideration for the Tribunal to take into account when determining whom to appoint as TR's financial manager. The fact that it took that matter into account does not justify the Appeal Panel granting leave for an appeal against the merits of the Guardianship Tribunal's decision.
23 Doctors' reports. When reviewing TR's appointment of TP as her enduring guardian, the Guardianship Tribunal reviewed the medical evidence and concluded that she did not have capacity to do so at the time. TP disagrees with that conclusion saying that two out of the three doctors reported that TR knew what an enduring power of attorney was. That evidence is contained in a report of Dr Muir dated 15 December 2009 and a report of Dr Akkerman dated 24 November 2009. Dr Muir said: that: I also asked of her what she understood to be the meaning of 'Power of attorney' and she replied 'people who look after me . . take care of our finances.'
24 Dr Muir's conclusion on the question of TR's capacity to manage her own financial affairs and understand the true meaning of a Power of Attorney was that:
. . . she no longer understands the nature of her assets nor does she appear to understand the true meaning of Power of Attorney or who in fact possesses this at the time of assessment.
25 Dr Akkerman examined TR at the request of her solicitor. In a report dated 24 November 2009 he wrote: I enquired as to what it means to have a power of attorney. She said that it's so that somebody can look after her and after her money.
26 TP also pointed to significant differences in the results of mini mental state examinations administered to TR which, he said, showed that the evidence about her capacity at the time was not consistent.
27 None of TP's submissions satisfies us that the Guardianship Tribunal came to a conclusion on the basis of the medical evidence which was not open to it, or was unfair or unorthodox. The Tribunal comprehensively reviewed the medical evidence and gave reasons for preferring the opinion of Dr Muir. There is no basis for granting leave to extend the appeal to the merits of this finding.
Orders 1. Leave is refused for the appeal to be made on grounds other than a question of law. 2. The Guardianship Tribunal's orders made on 11 March 2010 are affirmed.
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.
TP
Public Trustee and Guardian
1. Leave is refused for the appeal to be made on grounds other than a question of law. 2. The Guardianship Tribunal's orders made on 11 March 2010 are affirmed.