WPC [2020] NSWCATGD 83

REQUESTED REVIEW OF A GUARDIANSHIP ORDER; AND APPLICATION TO REVIEW OR REVOKE A FINANCIAL MANAGEMENT ORDER

WPC

1. WPC, aged 47 years, has been diagnosed with multiple sclerosis, with neurological side-effects which have been observed in the past to include some loss of cognition (which was characterised in a cognitive assessment in May 2020 as a mild impairment) and observed symptoms of depression. WPC is presently a resident in an aged care facility in South West Sydney ("the Care Facility").
2. WPC has relatives and friends who provide support to her. Her son is Mr Z. He lives in regional NSW. WPC has a supportive aunt, QZP, who lives in Canberra in the Australian Capital Territory (ACT).

Previous Tribunal proceedings and current orders

1. There have been 10 previous proceedings in the Tribunal concerning WPC since March 2014. For convenience, the proceedings and the Tribunal's orders made on each occasion are summarised in Appendix B to these Reasons [Appendix removed for publication].
2. Guardianship and financial management orders are currently in place for WPC as follows: 1. as a result of the most recent review of the guardianship order on 19 September 2019, the Public Guardian is appointed as her guardian for two years from that date and has the decision-making functions of accommodation and services; and 2. as a result of the most recent review of the financial management order on 28 February 2017, the management of WPC's estate is committed to NSW Trustee and Guardian ("NSW Trustee" or "the Trustee").
3. Recently the Tribunal has received from QZP two applications for review, being: 1. an application received on 20 August 2020 by which QZP sought the review or revocation of the financial management order for WPC made on 28 February 2017; and 2. an application received on 24 August 2020 by which QZP requested a further review of the guardianship order for WPC made on 19 September 2019.
4. The purpose of these proceedings was to conduct a hearing of both those applications for review. I sat as a Single Member in Sydney to conduct the reviews. The hearing was conducted by telephone and videoconference over two days: 20 October 2020 and 25 November 2020.
5. On 20 October 2020 I decided to hear the guardianship review first.
6. That hearing day was taken up with hearing most of the substantive issues in the guardianship review. It appeared that further evidence or submissions of relevance to the guardianship review might be introduced at any further hearing. For those reasons I decided to adjourn the further hearing of the guardianship review, part-heard. As there had been insufficient time allocated to enable me to commence the hearing of the financial management review, I also decided to adjourn that review. Both hearings were adjourned to a date to be advised by the Registry. The further hearing was subsequently set down for 25 November 2020.
7. I published reasons for my decision to adjourn on 20 October 2020 and they should be considered in conjunction with these Reasons.
8. The hearing on 25 November 2020 was taken up principally with the hearing of the financial management review although, as I had anticipated, on that day some items of evidence and submissions relevant to the guardianship review were presented.

Parties, participants, previous proceedings and statutory provisions

1. Appendix A to these Reasons identifies the parties to the respective reviews and the participants on each day of the hearing. [Appendix removed for publication.] Appendix B lists details of previous Tribunal proceedings concerning WPC [Appendix removed for publication]. Appendix C sets out the principal statutory provisions to which I have referred [Appendix removed for publication].

Preliminary issue: legal representation of WPC

1. Mr Ken Harkness, Solicitor applied to be the Legal Representative of WPC. Mr Harkness had submitted a letter setting out submissions to support his application. At the hearing he made additional oral submissions, in which he contended that it was unlikely that WPC would have the opportunity to participate meaningfully in the hearing without someone to speak her behalf, that she had limited education, but definite views on the issues before the Tribunal and that he had satisfied himself that she had capacity to instruct him in relation to this hearing.
2. There was no objection to Mr Harkness' application for representation.
3. I reminded Mr Harkness that, because WPC's estate was managed pursuant to the financial management order, he would need the consent of NSW Trustee and Guardian to ensure the payment of any fees and I asked for some indication of how his fees would be met. He informed me that the applicant QZP had offered to be primarily responsible for his fees.
4. I considered Mr Harkness' submissions in light of the Guardianship Division Guideline of August 2017, entitled "Representation" and was satisfied that his appointment as the Legal Representative of WPC would promote the principles in s 4 of the Guardianship Act 1987 (NSW) as well as the guiding principle in s 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW), that it was appropriate in light of the complex factual issues and some of the legal issues involved in these reviews and that in all the circumstances it would not be unfair to the other parties.
5. On that basis I granted Mr Harkness' application and recognised him as the Legal Representative of WPC.

Review of guardianship order

1. The 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. Is he or she "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, what order should be made? Specifically, what decision-making functions should the guardian have, who should be the guardian and how long should any further guardianship order last?

Review of financial management order

1. Under s 25P(1) of the Guardianship Act, when the Tribunal reviews a reviewable financial management order it must vary, revoke or confirm the order.
2. Under s 25P(2) of the Guardianship Act, it may revoke the order only if: 1. it is satisfied that the protected person is capable of managing his or her affairs, (this is sometimes referred to as "the regained capability ground"); or 2. it considers that it is in the best interests of the protected person that the order be revoked, even though the Tribunal is not satisfied that the protected person is capable of managing his or her own affairs, (this is sometimes referred to as "the best interests ground").
3. Accordingly, the issues which had to be decided by me were: 1. whether the financial management order for WPC should be revoked on either the regained capability ground or the best interests ground; and 2. if the order were not revoked, whether any variation should be made to it, including any change to the identity of the financial manager.

WPC's views

1. We seek to hold our 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.
2. WPC participated from the Care Facility by videoconference, accompanied by her aunts QZP (the applicant) and HAV, her Legal Representative Mr Harkness, Ms X the Care Manager of the Care Facility and her supporter previous caseworker Ms W. I indicated that I wished to put certain questions to WPC to assist me to understand her views. As WPC is very quietly spoken Mr Harkness offered to repeat my questions verbatim to WPC and to repeat her responses verbatim to me. There was no objection to that procedure.
3. WPC indicated in general terms that she preferred her aunt QZP to be the one to make significant decisions about her important life matters and that she trusted her to do so and to act in her interests. In answer to my further questions she indicated she trusted QZP to sign all documents and to make or arrange for payments necessary to change her accommodation.
4. She said that she owned no property but indicated that she had a bank account with the Commonwealth Bank at a branch in South West Sydney. She but indicated that she had not used the account much because she had had no opportunity to buy items. She also indicated awareness of other elements of her estate, including a gift under the Will of her late mother.
5. WPC urged me to appoint her aunt QZP and complete these proceedings as soon as possible, because she felt isolated in her current accommodation, had nothing to do with her time and, in her words, was "going mental".
6. I also took into account my brief discussion with WPC on the first day of hearing when her views were consistent with although somewhat briefer than those summarised above. In particular, at that hearing WPC emphasised that she was desperate to change her accommodation, particularly because she was the youngest resident at the Care Facility and that she wanted family support and to be closer to family members.

Documentation considered

1. I considered each item of the documentary material which had been made available for the hearing.
2. That included the following items: 1. the current applications to the Tribunal; 2. the Tribunal's orders and reasons from its hearings on 28 February 2016, 9 August 2016, 19 and 21 September 2017 and my own reasons of 22 October 2020; 3. all of QZP's correspondence which had been filed including her correspondence with the Public Guardian, with NSW Trustee, with the Tribunal Registry and with various service providers for WPC; 4. all attachments to the above correspondence including a National Disability Insurance Scheme ("NDIS") application and related correspondence, a relocation plan, a tendency Matching Service application and numerous other items; 5. written submissions from the parties including from QZP and NSW Trustee; 6. correspondence and documentation relating to the offer by a not-for-profit organisation to WPC of Supported Independent living ("SIL") accommodation in an apartment at a building in the ACT, subject to completion of construction and fit out and an execution page indicating acceptance of the offer by the Public Guardian on WPC's behalf; 7. all expert professional reports which had been received by the registry including reports from Dr Y dated 9 May 2020, Mrs V dated 15 May 2020 (attaching a Psychogeriatric Assessment Scale report), Ms U, Support Coordinator at a disability service provider (and Ms U's correspondence concerning the NDIS) and from Ms T, Occupational Therapist dated 17 September 2020 (attaching additional correspondence); 8. a letter from Capital Advisory to QZP dated 3 June 2016; an extract from the statements of WPC's Everyday Account with a financial institution; 9. a number of statements, most of which comprised personal references for QZP, from Mrs S, Ms W, Mrs R, Mr Q, Ms P, Ms O and Mr Z.

The "guiding principle"

1. The "guiding principle" and related requirements which are set out in s 36 of the Civil and Administrative Tribunal Act have the effect of requiring the Tribunal, the parties to the proceedings and their legal representatives to facilitate the just, quick and cheap resolution of the real issues in the proceedings. As a result, the Tribunal in each case should obviously take early steps to identify the real issues in the proceedings.

Documentation and testimony and views of participants

1. In order to do that, I took into account the documentation described above, WPC's views as summarised above and my discussions with the other participants.

Preliminary findings: Guardianship

1. As a result of my review of the matter described in the previous paragraph, the following matters relating to the guardianship review were clear and (except to the extent indicated below) undisputed and I made findings accordingly : 1. WPC's diagnosis as set out at [1] above was unchanged. She remains cognitively impaired to the extent that she could not make some important life decisions and could not manage her person. For those reasons she continues to be "a person in need of a guardian", as that phrase is defined in s 3(1) of the Guardianship Act. On the morning of the first day of hearing, when I put this proposed finding to the participants, WPC alone indicated some opposition to it. When I asked her to comment more detail she expressed simply that she was exasperated by her medical condition, her treatment for it and her accommodation. I did not understand WPC to object to a finding to the effect described above, provided that it resulted in an improvement in her treatment and accommodation. No other participant objected to the proposed finding. 2. The only private person who currently indicates a willingness to be considered for appointment as WPC' guardian is her aunt QZP.
2. I made findings as to each of those matters.

The real issues in the guardianship review

1. It followed that the real issues in the guardianship review which remained to be determined were: 1. should a further guardianship order be made for WPC; and 2. if a further order were to be made, then: 1. who should be WPC's guardian. Given that QZP was the only candidate for appointment as private guardian and that she objected to the re-appointment of the Public Guardian, the real issue was whether or not QZP should be appointed to replace the Public Guardian; 2. what decision-making functions the appointed guardian should have; and 3. what should the duration of the order be and should it be reviewed on its expiry or made "non-reviewable".

Relevant statutory provisions

1. When considering whether or not to review a guardianship order I am required to have regard to the factors which are set out in s 14(2) of the Guardianship Act. For convenience of reference the terms of s 14(2) of that Act are set out in Appendix C of these Reasons [Appendix removed for publication]. These factors have no hierarchy or weighting and each is a mandatory consideration, but the Tribunal must undertake a balancing exercise when considering these matters and when undertaking that task I may be guided by the important principles which are set out in s 4 of the Guardianship Act: see IF v IG [2004] NSWADTAP 3. The s 4 principles of that Act are also set out in Appendix C of these Reasons [Appendix removed for publication].
2. My conclusions as to the s 14(2) of the Guardianship Act factors relevant here are as follows: 1. Views of the subject person. I took into account WPC's views as expressed on each day of the hearing. Although WPC holds firm views about her current accommodation and expressed a preference for her aunt QZP to make decisions on her behalf, there was nothing in what she told me which indicated that she opposed the continuation of the guardianship order. Nothing said on her behalf by her Legal Representative Mr Harkness indicated any contrary view. 2. Views of the person, if any, who has care of the person. The phrase "person who has care of another person" has a particular meaning under s 3D of the Guardianship Act and no one has been recognised at any previous hearing as falling within that category. 3. At the importance of preserving the person's existing family relationships. As discussed elsewhere in these Reasons I was of the view that WPC's family relationships and her relationships with her friends and supporters are most important to her continued welfare and interests. In my view this factor has a neutral effect on the issue of whether the order should be renewed. 4. The applicability of services being provided to the person without the need for the making of an order. I gave substantial weight in particular to the evidence in the experts' written reports in particular those of WPC's Support Coordinator Ms U and her occupational Therapist Ms T and my understanding of the steps necessary to bring to fruition the proposal for WPC to move to SIL accommodation at a building in the ACT, at least some of which will require the formal acceptance or approval by a guardian. It was clear, for example from Ms T's report of 17 September 2020, that WPC does not possess skills in home management domestic tasks and remains dependent on one-to-one support to manage all domestic activities of daily living. On that basis I was satisfied the services which WPC will need in the reasonably near future cannot, as a practicable matter, be made available to her in the absence of her guardianship order.
3. I also considered the s 4 principles of the Guardianship Act which seemed to be relevant. On the basis of the available evidence, the views expressed in the expert reports the accounts provided by WPC herself, by Mr Harkness on her behalf and by QZP, I was satisfied that the continuation of the guardianship order would encourage WPC, so far as possible, to live a normal life in the community and to be self-reliant in matters relating to personal and domestic affairs, would assist to protect her from any neglect or abuse or exploitation and, as a paramount consideration would promote and preserve her welfare and interests.
4. In particular, I was satisfied that a formally-appointed decision-maker (that is, guardian), will need to be in place in order to coordinate provision of the most beneficial mix services for WPC, to oversee and as necessary coordinate and support an appropriate level of NDIS funding for her, to work cooperatively with services and support coordination professionals and, as a priority, to bring to fruition the proposal for WPC to take up the offer of SIL accommodation in Woden, or other similar suitable accommodation. It followed that the guardianship order for WPC should continue.

The present position

1. The Public Guardian is currently appointed as WPC's guardian for a term expiring on 19 September 2021, with the functions of accommodation and services. The Public Guardian was originally appointed in March 2014. Its appointment has been confirmed in review hearings held in September 2014, on 11 September 2015, 9 August 2016, 28 February 2017 and 19 September 2019.
2. By her application in these proceedings, QZP sought a further review of the guardianship order.
3. She made it clear that unless the order was revoked by the Tribunal, she sought appointment as guardian to replace the Public Guardian.

The statutory background and relevant case law

1. I may appoint a private person or the Public Guardian as guardian.
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/Our 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) of that Act 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, it is important that the Tribunal should be satisfied that the candidate for appointment is able to demonstrate insight into their decision-making role as a guardian in the particular circumstances of the case and that if appointed they will be able to act objectively and without perceived conflict of interest.

Possible barriers to the appointment of QZP

1. QZP demonstrated, from her extensive correspondence and documentary material and from her presentation on both days of the hearing a clear wish to be and to remain closely involved in her niece WPC's affairs and in the decisions to be made on WPC's behalf.
2. It must be said that some of QZP's correspondence and other documentary material and at times, her presentation at the hearing, created the impression that while she is admirably single-minded in representing her niece WPC's position and in pursuing what she sees as her niece's interests, she does on occasion have a personal style of presentation which, to say the least, is unduly and unhelpfully acrimonious and aggressive. On occasion she gives the impression that she has little tolerance of or respect for the person or organisation she is addressing.
3. For example in the course of NSW Trustee's officers' dealings with QZP, senior management at the Trustee felt obliged to adopt a "communication protocol" with her, which was designed to place some limits on, at least, the frequency with which and the times at which she could contact particular officers of the Trustee. (The protocol purports to be consistent with guidelines issued by the NSW Ombudsman for agencies experiencing difficulties in communicating with users of their services.) In NSW Trustee's hearing report dated 1 October 2020 it was reported that: "[QZP]'s correspondence contained comments that NSWTG considers to be offensive, condescending and insulting (sic) comments were directed at individual staff members. The safety and well-being of staff is a fundamental core value of NSWTG and derogatory comments directed at staff members will not be tolerated."
4. At the hearing Mr N, a Principal Client Service Officer of NSW Trustee, told me that the introduction of a "communications protocol" of this type is rare. I accepted the Trustee's hearing report and Mr N's observations in this regard.
5. I note that at the hearing on 9 August 2016 the Tribunal (as then constituted) reported an account from the Inclusion Support Officer of the Public Guardian to the effect that QZP had wrongly question the competency of the independent occupational therapist who had assessed WPC, that QZP "often deals with staff quite unnecessarily aggressively" and had wrongly accused staff of being incompetent: see Reasons for Decision, 9 August 2016 at [36]. On that occasion the Tribunal observed that being a guardian requires (amongst other things) "ability to coordinate services, careful planning and a dispassionate approach". It concluded that QZP lacked the level of objectivity required to properly undertake these functions. The Tribunal saw this as an indication that QZP was too emotionally intertwined and susceptible to WPC's pleadings to be able properly to undertake the role of a guardian and it refused to appoint her as guardian: see Reasons for Decision, 9 August 2016 at [49].
6. The question for me was whether these issues emerging from QZP's personal style of presentation prevented from being a suitable appointee as guardian.

QZP's testimony and submissions

1. I commence by noting that on the second day of the hearing in the course of her oral submissions QZP tendered an oral apology to NSW Trustee for the attitude which she had displayed to its staff on occasions and what I heard to say was her "rudeness at times". The apology indicates at least some level of insight by QZP as to the effect and general inappropriateness of her occasional style of presentation.
2. I was satisfied that QZP has demonstrated over time and continues to demonstrate a genuine ongoing concern for the welfare and interests of her niece WPC. It was evident throughout the hearing and in particular from what WPC told me that she relies upon the counsel and representation of her interests which QZP provides. She clearly trusts QZP to make important decisions for her.
3. That of course is not enough to persuade me to appoint QZP as guardian, given the judicial comments in the authorities cited at [42] above as to the extended meaning of a person needing to be "able" to be appointed as guardian. In particular, as was said in FGE (2), I must balance QZP's willingness to be guardian against her willingness and ability to act in accordance with the principles set out in the Guardianship Act (in particular the principle set out in s 4 of that Act) and the likelihood that she will do so. That was reinforced by the comments of the Supreme Court in P v D1 & Ors that the importance of a proposed guardian being able to demonstrate insight into the role of a guardian and to explain their plans as guardian.
4. The course of my discussions during the hearing on both days and the observations, explanations and proposals in QZP's documentary material persuaded me not only that she has a genuine concern for the welfare and interests of WPC, but that she has an improved and now satisfactory level of understanding of the role of the guardian and what she will need to do to perform that role under the proposed order. In particular, she revealed insight into and acceptance of the likely need for decisions with which WPC does not agree. Critically, she also satisfied me that she understands and is likely to consider, plan and implement courses of action which, on a proper objective assessment, are the ones most likely to further WPC's welfare and interests.
5. My last comment has particular relevance to what is recognized by all parties as the top priority for ensuring WPC's welfare: the change of her accommodation to appropriate SIL (or similar) accommodation closer to supporting members of her family. WPC demonstrated insight into that issue and as to the steps which are necessary and the possible impediments and delays which may be experienced.
6. It is obvious that in achieving that most important placement for WPC, as guardian QZP will have to continue to deal with professional service providers and care professionals.
7. Were it not for QZP's apology to NSW Trustee and her demonstration of at least partial insight into the effect of her style of presentation in the past, I would not have been persuaded that she could do that as guardian.
8. However, as things stand she has demonstrated insight into those matters, including through her apology to NSW Trustee and has demonstrated to my satisfaction her willingness to act in accordance with the principles in the Guardianship Act and the terms of the proposed guardianship order. Moreover it would be in accordance with WPC's clearly expressed views to appoint her aunt QZP as her guardian.
9. QZP is therefore suitable to be appointed as guardian. She is willing and able to exercise the functions to be imposed under the proposed order.

Other sources of support for WPC

1. In finalising my decision as to the identity of the guardian I took into account that WPC has a number of professional service providers and care providers. For example her Support Coordinator Ms U from a disability service provider was a persuasive witness and it is clear from her correspondence that she has been a moving force in seeking out the availability and assessing the suitability of the proposed SIL accommodation in the ACT.
2. WPC also appears to have ongoing support from other family members, including her aunt HAV and her son Mr Z and from Ms M, her advocate from a charitable organisation and as I understand it the likely ongoing involvement of Mr Harkness, Solicitor.
3. The likelihood of ongoing interest in WPC's welfare from those sources provides additional comfort in reaching a decision which will transfer guardianship responsibilities from a public body (the Public Guardian) to a family member.

Appointment of an alternative guardian

1. I was satisfied that the appointment of an alternative guardian would constitute necessary additional assurance as to the availability of a suitable person to make appropriate under the proposed terms of the guardianship order as renewed, in situations including but not be restricted to those where for some reason (including other business and family commitments or illness) QZP is not available to make a particular decision.
2. I was satisfied that HAV, QZP's sister and aunt of WPC, was an important source of ongoing support and assistance for WPC and appeared to be close to and generally to have a compatible relationship with her sister QZP.
3. HAV demonstrated a sensible appreciation of WPC's needs including the urgent need for a change of accommodation so to be closer to family support. She is firmly of the view that although her niece WPC is physically disabled she is mentally quite capable but needs particular physical support and general emotional support which can be provided by family members.
4. On that basis I found her to be suitable for appointment as alternative guardian.

Conclusion: guardianship appointments

1. It follows from my observations and conclusions above that: 1. QZP is suitable for appointment as guardian; and 2. HAV is suitable for appointment as alternative guardian.
2. I appointed each of them accordingly.

2(b) The guardian's functions

1. I was satisfied, particularly on the basis of the accounts from QZP and the professional service providers that it is of critical importance to WPC's welfare and interests that the necessary arrangements for the change of her accommodation from the Care Facility, preferably to the SIL accommodation in the ACT are pursued and completed as soon as practicable.
2. It is clear that there will be decisions in this process, culminating in the formal acceptance of the new accommodation, which need to be taken by a guardian. It is equally clear that there will be ongoing services decisions which and which will need to be taken on WPC's behalf by a guardian
3. For those reasons the accommodation and services functions should remain as part of the guardianship order.
4. There was nothing in the evidence or submissions which suggested a current need for WPC's guardian to have any other functions or any authorities. In particular it seems clear that WPC can continue to make important decisions about her health care and to give her own consent to medical and dental treatment informally. If for some reason substituted consent to treatment becomes necessary then it seems clear that one or more of QZP, HAV and Mr Z, as close relatives of WPC are within the "hierarchy" set out in s 33A of the Guardianship Act and as such should be recognised as being able to provide that substituted consent as "persons responsible".
5. It followed that WPC's guardian should have the ongoing functions of accommodation and services.

2(c) Duration and reviewability of the order

1. Where the Tribunal decides to renew the guardianship order it can make a further period in the ordinary case for a maximum of three years. However the Tribunal is satisfied that the person under guardianship has permanent disabilities and it is unlikely that he or she will become capable of managing their person it may make a further order not exceeding five years.
2. I decided to make an order for 12 months on the basis that although some early decisions would be needed from the guardian in respect of WPC's accommodation and services, there would be an ongoing need for the guardian to be available to make such decisions for her. It seemed to me be appropriate that the order be reviewed within a maximum of 12 months, noting that of course WPC herself or anyone with a genuine concern for her welfare is entitled to seek an earlier review.
3. I could see no justification for making a non-reviewable order.

Should the order be revoked on the "regained capability" ground?

1. As noted at [20], the initial issue on consideration of an application to review or revoke financial management order is whether the order should be revoked and there are two grounds only upon which that can be done; namely, that the Tribunal is satisfied that the protected person is now capable of managing his or her affairs ("the regained capability ground") or that the Tribunal considers that it is in the best interests of the protected person that the order be revoked, even though the Tribunal is not satisfied that he or she is capable of managing his or her affairs, ("the best interests ground").

Regained capability ground: legal principles and authorities

1. The Supreme Court of New South Wales has provided guidance in several decisions as to how the Tribunal should assess a person's capability to manage his or her affairs. In earlier cases the Court had based its test predominantly on the ability of the subject person to conduct "the ordinary everyday affairs of people". It was said that if by reason of a failure to do this there would be a real risk that they would be disadvantaged or that their money or assets would be at risk of dissipation, then they would properly be treated as being incapable of managing their affairs.
2. However, that approach has been revised in more recent cases in which it has been emphasised that the Tribunal should not be relying just on hypothetical notions such as "the ordinary everyday affairs of people" but rather should focus on the capability of the particular person to deal with his or her actual assets and to do what he or she is proposing to do with them. The new approach was signalled particularly in the Supreme Court case of Re R [2014] NSWSC 1810, in which Justice White expressed concern that the previous test, based on "the ordinary everyday affairs of people", did not appear to address the terms of the statute (here, the Guardianship Act, but in that case the corresponding provision in the NSW Trustee and Guardian Act 2009 (NSW)), which speak of the person being incapable or incapable of managing his or her affairs and which make no reference to "the ordinary everyday affairs of people": Re R, at [94].
3. In two cases in 2015, Justice Lindsay of the Supreme Court set out his preferred approach to this issue. They were CJ v AKJ [2015] NSWSC 498 and P v NSW Trustee and Guardian [2015] NSWSC 579 at [307]. Justice Lindsay suggested that: 1. the real question is whether the person under consideration is reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a manager who is charged with the duty to protect his or her welfare and interests; and 2. the focus should be on whether the person is able to deal with (make and implement 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. His Honour went on to say that in considering whether a person is "able" in this sense, the Court or Tribunal may give attention to: 1. past and present experience as a predictor of the future course of events; 2. support systems available to the person; and 3. 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.
5. The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of hearing but the reasonably foreseeable future: McD v McD (1983) 3 NSWLR 81 at 86; Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106 at [20].
6. Disability in the guardianship sense is not an element of the test for incapability for the purposes of considering a financial management application: GW v Protective Commissioner & Ors [2003] NSW ADTAP 51.

Family and other support systems

1. In the two leading cases cited at [78] above Justice Lindsay gave particular attention to the availability of family support. In CJ v AKJ at [54], His Honour framed the consideration in terms of determining whether the person under consideration is able: "..(w)ithin the community of his family, and with their ongoing support …to take care of himself his property and his finances."

The protective element

1. Many of the more recent Supreme Court cases have emphasised that consideration of the capability or otherwise of a person to manage their own affairs involves a protective element. In H v H [2015] NSW SC 837 at [27]-[29] Justice Lindsay spoke of the jurisdiction being exercised in such matters as being purposive and protective in nature. His Honour noted that the "welfare principle" embodied in s 39(a) of the NSW Trustee and Guardian Act, which is reflected in s 4(a) of the Guardianship Act (that is, that the welfare and interests of the subject person should be given paramount consideration) is consistent with the pre-eminence of that protective element. In H v H at [35] His Honour made it clear that a proper consideration of the protective nature of the jurisdiction requires the Court (or tribunal) to take into account, if not actively consult, the views of the subject person and those close to him or her.

WPC's case

1. The case put by Mr Harkness as Legal Representative for WPC was that she had regained the capability to manage her own affairs.
2. In useful and thorough oral submissions Mr Harkness contended, in summary, as follows: 1. in Re R, Justice White had granted the application to revoke the financial management order notwithstanding objections by NSW Trustee and Guardian and notwithstanding the difficulties which the subject person in that case had had, in the course of his examination by consulting clinical neuropsychologist and at the hearing, in explaining the extent of his estate or how he might invest his assets. As I understood Mr Harkness, he contended that that supports the proposition that such matters should be assessed objectively and that any difficulties which the subject person has in describing such matters (including in this case, disabilities arising from WPC's physical disabilities and the fact that she is now quite softly spoken) should not be regarded as conclusive. 2. A continuation of the financial management order and the consequent continued loss by WPC of control over her financial position would exacerbate the risk of her becoming institutionalised. I did not understand Mr Harkness, in putting it this way, to intend any disrespect to NSW Trustee, but rather to assert that that office's ongoing control as a government instrumentality exacerbated WPC's sense of alienation from her own property and money and that that should be weighed against the principles in s 4 of the Guardianship Act, in particular the paramount consideration of preserving her welfare and interests, but also the requirement that the Tribunal should do things which encourage WPC, so far as possible, to live a normal life in the community, to be self-reliant in matters relating to her financial affairs and to do things which restrict as little as possible her freedom of decision and freedom of action.

Family and other support

1. Mr Harkness further contended that I should take into account the substantial family support which is available to WPC. He contended that the family is a close and loving one and will assist WPC, in a proper manner, to manage her affairs.

Availability of an enduring power of attorney

1. Mr Harkness contended that compliance with the s 4 principles of the Guardianship Act would be more readily achievable and that WPC could be protected more effectively from the risk of any financial abuse or exploitation, if she executed an enduring power of attorney. He confirmed that he had canvassed that possibility with her and that she agreed to it. As I understood it, although he has only recently been instructed, Mr Harkness now acts and expects to continue to act as WPC's solicitor and although he does not yet have formal instructions from her to prepare and arrange execution of an enduring power of attorney, she has indicated that she would favour that course and Mr Harkness is arranging to contact her for an appointment to discuss this and to obtain formal instructions for the preparation of such an instrument.
2. As I explained the participants, if I were minded to revoke the financial management order, the existence of an enduring power of attorney given by WPC would have a protective advantage in that the actions of the appointed attorney and the operation and effect generally of the power of attorney could be reviewed by this Tribunal upon application by WPC herself, or any guardian appointed for her or any other person who in the opinion of the Tribunal has a proper interest in the proceedings or a genuine concern for her welfare: see Powers of Attorney Act 2003 (NSW), s 35(1).

WPC's views

1. In the course of her discussion with me, WPC was able to identify her current bank account and its current balance with substantial accuracy. She demonstrated an understanding that NSW Trustee has been managing her financial affairs for some time and that she understood there to be a substantial sum held for her on trust by the Trustee. That is indeed the case: the Trustee's hearing report confirms that there is a current balance in his trust account for WPC of just under $140,000. There is also an amount which is plenary legacy from the estate of WPC's mother of just under $13,000. The Trustee explained that its Legal Service Team had received legal advice on the interpretation of her mother's Will and on that basis had decided to take no further action to claim on behalf of WPC an additional entitlement from the estate.
2. WPC made it clear that she wanted the current level of control of her life by outside parties reduced immediately. I put it to her that an experienced public body like NSW Trustee could make objective decisions about her money on her behalf. Despite her communication difficulties, her response was as adamant as it was clear. She told me in clear terms that she wants to look after her own money and property and concluded: "I am not stupid, you know".

"Support mechanisms" for WPC

1. One of the important considerations identified by Justice Lindsay in CJ v AKJ and in P v NSW Trustee and Guardian in determining whether the protected person may have regained the capability of managing their own affairs is the availability of "support mechanisms", which if available may assist them to make sensible and prudent decisions about their estate.
2. WPC herself referred to the availability of assistance from her family and friends. Many of the family members and friends participated in some way in the hearing process, either by way of attending the hearing or by providing supporting statements. Mr Harkness contended that WPC has a close and loving family; in particular her two aunts, QZP and HAV and her son Mr Z, who he asserted to be of good character.
3. I have discussed the support mechanisms apparently available to WPC and of benefit to WPC in relation to the guardianship review, at [58] and [62]-[63] above.
4. I was satisfied that there is a strong probability that these family members and friends will provide ongoing support to WPC, as and when needed, in relation to the management of her financial affairs. Further support is also available. Ms M, Advocate told me that she could arrange assistance for WPC through the charitable organisation at any time.
5. The existence of this support to supplement that which is available from WPC's two aunts QZP and HAV, and possible additional support from her son Mr Z would appear to provide, a "protective ring" against likely sources of financial abuse or exploitation, if the financial management order is revoked.

The expert medical and related professional evidence

1. The expert medical and related evidence submitted for the hearings consisted only of the following: 1. a short report by Dr Y who I understand to be a visiting general practitioner at the Care Facility, dated 9 May 2020. The report observed that WPC "would have difficulties making decisions regarding her financial management". But that view appears to have formed the basis of occasional visits to WPC and may not have taken into account the support mechanisms available through family members and friends. The report does not appear to be based on any contemporaneous discussion with WPC and there is no indication that the observations are based on any recognised method of cognitive assessment; and 2. a brief report of an assessment by a Registered Nurse, Mrs V, apparently at the Care Facility on 15 May 2020, when Mrs V applied the Psychogeriatric Assessment Scale ("PAS"). The PAS appears to be a brief assessment of cognitive ability which is not as extensive or reliable as more recognised forms of cognitive assessment such as the Montréal Cognitive Assessment ("MoCA") or the Addenbrooke's Cognitive Assessment-Series ("ACE-III). Nevertheless, WPC achieved a total score of 6.63 which appears to be indicative only of a "mild impairment". Mrs V made no comment or observation about that result, in her report.
2. I am not persuaded by the existence of these two reports that WPC has not regained the capability to manage her own affairs.
3. A decision by the Tribunal to revoke a financial management order is often based on material medical or related professional evidence as to regained capability. However it is certainly not the case that a person's capability or incapability to manage his or her own affairs can only be established by means of medical or clinical evidence.
4. Significant observations about the acceptance of medical evidence were made by Justice Lindsay of the NSW Supreme Court in H v H [2015] NSWSC 837 at [36(d)] and [37], where he noted that although a decision about whether a person is or is not capable of managing his or her affairs may be powerfully informed by an expression of medical opinion which is based upon articulated observations of fact and accompanied by an exposition of technical medical terms,: "… a determination about capacity for self-management made upon an exercise of protective jurisdiction is not, in essence, the province of medical expertise but of independent judgment by the Court applying established criteria to particular facts… The Court may take comfort from an opinion, but it must look primarily to facts, especially in close-run cases in which opinions may fairly differ. If in doubt there is no substitute for a direct personal engagement with the person whose capacity for self-management is under consideration and those closely associated with him or her in daily living."
5. I have outlined above my "direct personal engagement" with WPC, by way of discussions in the course of both hearing days and that was supplemented by my reliance upon the evidence as to the support mechanisms available to her.
6. On that basis I was satisfied that, with the support mechanisms she has available to her, WPC is now and for the reasonably foreseeable future will be reasonably able to understand the nature and extent of her estate and to manage her own affairs in a reasonably rational and orderly way, with due regard to her present and prospective wants and needs, without undue risk of neglect, abuse or exploitation.

Conclusion as to capability

1. It follows that WPC is capable of managing her affairs

Order

1. It must follow that her financial management order should be revoked.

Application of the "best interests" ground

1. For completeness, I add that even if I had concluded that WPC had not regained the capability to manage her own affairs, on the basis of the evidence before me I would have found that it was in her best interests for the financial management order to be revoked.

Recommendation to WPC

1. Although I have found that WPC has regained the capability to manage her own affairs, given the nature of the financial decisions which she will need to make and the critical importance of some of them to the establishment of the proposed new accommodation in the ACT and given Mr Harkness' remarks concerning the availability of an enduring power of attorney, I decided to make the following formal recommendation to WPC.

RECOMMENDATION

1. The Tribunal recommends to WPC that she obtains early legal advice concerning the need to preserve her welfare and interests by executing, at an early date, an enduring power of attorney.
2. I ordered and recommended 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