WZA [2020] NSWCATGD 52

The Hearing

1. The hearing was held on Friday, 8 May 2020. At the end of these Reasons for Decision is a list of the participants at the hearing. Given the effect of COVID-19, the hearing was conducted entirely by telephone.

Review of Guardianship Order

1. On reviewing the current guardianship order the Tribunal may confirm, vary, suspend, revoke, renew or renew and vary the order.
2. The questions to be considered by the Tribunal are: 1. Is WZA someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions? 2. Should the Tribunal make a further guardianship order and if so, what order should be made? 3. Who should be the guardian? 4. How long should the order last?

Is WZA someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

1. Section 14 of the Guardianship Act 1987 (NSW) ("the Act") provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is 'a person in need of a guardian'. A person in need of a guardian is 'a person who because of a disability is totally or partially incapable of managing his or her person': s 3(1) of the Act. A person with a disability is a person who is: 1. (a) intellectually, physically, psychologically or sensorily disabled; 2. (b) of advanced age; 3. (c) a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or 4. (d) otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: s 3(2) of the Act.
2. When the previous order was made, the Tribunal, on the basis of the medical evidence before it, found that WZA has severe dementia. There is no new evidence before us in relation to this issue.
3. We were satisfied that WZA continues to have a disability, and that as a result of this disability, she is incapable of managing her own person and is unable to make important life decisions on her own behalf. She is a person for whom the Tribunal could make a further guardianship order.

Should the Tribunal make a further guardianship order and what order should be made?

1. Before exercising its discretion to make guardianship orders, the Tribunal must observe the principles contained in s 4 of that Act and consider the matters set out in s 14(2) of that Act.
2. Under s 4 of the Act, it is the duty of everyone exercising functions under the Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.
3. The words of s 4 of the Act make plain that it is mandatory, not merely exhortatory, for a person exercising functions under the Act, in this case the Tribunal, to take into account the principles listed in s 4 of that Act. As Lindsay J pointed out at P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]- [58], the obligation to have regard to those principles is reinforced by cl 5(1) of Sch 6 to the Civil and Administrative Tribunal Act 2013 (NSW), which provides that when exercising its 'Division functions for the purposes of the Guardianship Act 1987', the Tribunal is under a duty to observe the principles set out in s 4 of the Act (see also, ZBC v ZBD [2016] NSWCATAP 264 at [101], [105]).
4. Section 14(2) of the Act provides that in considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: 1. The views (if any) of: 1. the person; 2. the person's spouse; 3. the person's carer; and 1. The importance of preserving the person's existing family relationships; 2. The importance of preserving the person's particular cultural and linguistic environments; and 3. the practicability of services being provided to the person without the need for the making of such an order.
5. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).
6. The evidence before us, which we accepted, indicated that WZA's close family members have been providing care for her ever since she was diagnosed with dementia. We accepted that WZA currently resides in accommodation provided by the community housing provider in west Sydney and there are no plans to relocate her elsewhere. We accepted that HYM has travelled to Australia to assist her sister and provide care for their mother. We accepted that WZA's daughters have made all the necessary decisions required in relation to WZA's accommodation, health care, services and medical and dental treatment informally and without difficulty.
7. In the circumstances of this case and consistently with the findings of the previous Tribunal, the nature of WZA's decision-making disability is such that she is effectively unable to make decisions of significance on her own behalf. However, those decisions have been made and continue to be made informally on her behalf by her family members in the absence of a guardianship order. In considering the matters in s 14(2) of the Act, we formed the view that WZA has the support of close and loving family members to achieve the care, medical attention and services that she requires. There was no persuasive evidence before us to suggest that there are difficulties or challenges associated with decisions regarding WZA's accommodation or any services required by her, including in relation to health care, without a guardian. There was no persuasive evidence before us to suggest that WZA's interests may be in conflict with those of any of her family members involved in decision making on her behalf and who are committed to promoting her welfare and interests.
8. It is clear that GAM's application requesting to review a guardianship order was prompted by the correspondence from the Department, dated 1 April 2020.
9. As noted above, the letter outlined the Department's 'position' that sponsorship for a Carer visa involves matters relating to a sponsor's health and lifestyle and that the orders previously made by the Tribunal do not mean that the appointed guardian can make 'all decisions' for WZA or 'to empower her to make decisions in regards to an application for a Carer visa or health and lifestyle decisions on behalf of [WZA]'.
10. With respect, we consider the Department's position, at least partially, to be based on a flawed understanding of the NSW guardianship scheme and incompatible with the Tribunal's mandate. The assumption that the appointed guardian can or should make all decisions for a person under a guardianship order has no basis in law.
11. The Department's position appears to be based on the assumption that, irrespective of whether there are reasons why the Tribunal should make an order, the Tribunal can confer upon the appointed guardian the function to make 'health and lifestyle' decisions. The Act (or indeed Acts governing guardianship laws in all other states and territories) do not use 'health and lifestyle' to describe any one specific function of a guardian. The term 'function' describes the legal authority or power that a guardian has to make certain decisions about a particular area of a person's life.
12. The Act does not specifically define or outline the types of functions which the Tribunal may give to a guardian. As noted in GZK [2020] NSWCATGD 5: The functions of guardianship are not defined by legislation. Rather, over the years since the commencement of the Act, the Tribunal (and its predecessor, the Guardianship Tribunal) has issued orders appointing guardians with specific functions to make substitute decisions in certain domains of the person's life. These functions stem from the foundational parens patriae jurisdiction, which originally gave plenary authority, and have been appropriately adapted for modern needs. For example, decisions about where the person should live (the accommodation function), decisions about what services they should receive (the services function), and decisions about what health care they should receive (the health care function), to name but a few.
13. The broad range of decisions covered by the functions that may be conferred by the Tribunal are collectively and generically referred to as lifestyle decisions. As a matter of practice, the Tribunal does not confer upon a guardian a 'lifestyle' function without specifying what particular decisions may be made. However, in exercising its jurisdiction, the Tribunal may also craft functions according to the relevant area of need for the person under guardianship and it is not limited to the functions referred to. As noted by an Appeal Panel of the NSW Administrative Decision Tribunal in HH v HI and Protective Commissioner [2009] NSWADTAP 41, the areas in which such decisions, actions, and consents can be given have not been exhaustively defined (see also MN v AN (1989) 16 NSWLR 525).
14. It must be stressed that when functions are conferred upon an appointed guardian, the guardian makes decisions in relation to those matters for the person who is the subject of the guardianship order. For example, a guardian with an accommodation function may make decisions about where the person will live and not necessarily where a friend or a family member of the person lives. In this case, there are currently no decisions that are required to be made with respect to WZA's health care. Her sponsorship obligations require her to provide accommodation for the visa applicant, HYM. It is our view that an appointed guardian with an accommodation function or a 'health' function would not have the legal authority to decide where HYM should live or to cover the cost related to her health care.
15. The Department's Form 40, relating to 'sponsorship for migration to Australia' states: 'sponsors of applicants for permanent visas are obliged to assist the applicant with accommodation and financial assistance.' [1] The Form also states that the sponsor must provide financial assistance as required to meet the visa applicant's health, medical and pharmaceutical needs; and to provide support as required for them to attend English language courses.
16. The sponsorship obligations appear to require some form of financial undertaking or assistance (living and payment for health needs) by the sponsor or entering into a contractual agreement with a third party, such as a lease agreement. It is difficult to see why appointing a guardian to make decisions relating to 'health and lifestyle' on behalf of WZA would also confer the authority for decisions to be made relating to WZA's sponsorship undertakings, which essentially relate to her estate.
17. Subject to our comments further below, we are not satisfied that there is a need to appoint a guardian with the legal authority to make any particular 'health and lifestyle decisions' for WZA in order for her sponsorship application to be processed. The Department's position, if we have understood it correctly, is laying an unnecessarily prolonged and complex course for WZA and her family.
18. Whilst an argument might be put that it would be in WZA's best interests for the Tribunal to make a guardianship order remotely compatible with the views of the Department for the sole purpose of facilitating the processing of her sponsorship application, we consider this course neither appropriate nor compatible with the requirements of s 14(2) of the Act and the principles set out under s 4 of that Act. More importantly, as the nature of the sponsor's obligations under reg 1.20(2)(a) of the Migration Regulations is financial in nature and relate to WZA's estate, the Department's requirements can be addressed through a financial management order, as discussed further below.
19. However, we agree with the Department's position that there may be a need for the appointed guardian to make decisions on behalf of WZA in regards to the application for a Carer visa or other visa related matters. We are mindful of the fact that WZA's disability prevents her from communicating with the Department in relation to her sponsorship application. We envisaged that, for the purposes of processing her sponsorship application, WZA may be required to receive further information from the Department, to supply the Department with further information or make other decisions in connection with the processing of her daughter's Carer visa application or her related sponsorship application. We were not confident that the current orders would be adequate in ensuring appropriate visa related decisions can be made on WZA's behalf on an informal and consistent basis.
20. We, therefore, decided to vary the order made on 28 February 2020 by adding a further function. We decided that the appointed guardian should have the additional function of making all necessary decisions in relation to visa-related matters that would ordinarily be made by WZA, including giving and receiving information, making applications, and giving consent to visa-related applications. Section 21B of the Act provides further practical support to enforcement of the guardian's decisions or actions, allowing a guardian to sign relevant legal documents. Where the nature of the document requiring signature is financial or is an agreement or an undertaking with financial implications, authority on behalf of WZA can be exercised by an appointed financial manager.

Who should be the guardian?

1. GAM was previously appointed as WZA's guardian. We were satisfied that she continues to meet the legislative requirements to be appointed as a private guardian. We decided to appoint GAM as WZA's guardian.

How long should the order last?

1. On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. However, an order of up to five years can be made, if the person the subject of the order has permanent disabilities, is unlikely to become capable of managing his or her person and there is the need for an order longer than three years.
2. In the circumstances of this case, we decided to make an order for two years to enable GAM to continue make the decisions specified in this order.

Financial Management Application

1. The questions to be considered by the Tribunal are: 1. Is WZA incapable of managing her affairs? 2. Is there a need for another person to manage WZA's affairs and is it in her best interests for a financial management order to be made? 3. If so, who should be appointed financial manager?

Is WZA incapable of managing her affairs?

1. The test for determining a person's capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]): Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests? … [A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.
2. In considering whether the person is 'able' in this sense, consideration may be given to:

• past and present experience as a predictor of the future course of events;
• support systems available to the person; and
• the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498 at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579 at [309].

1. The evidence cited by the previous Tribunal's reasons, which were accepted by us, indicated that WZA has severe dementia. We were satisfied that WZA is unable to deal with her own affairs in a reasonable, rational, and orderly way with due regard to her present and prospective wants and needs and those of family and friends without undue risk of neglect, abuse, or exploitation. We were satisfied that WZA is incapable of managing her own affairs.

Is there a need for another person to manage WZA's affairs and is it in her best interests for a financial management order to be made?

1. WZA is a recipient of an Age Pension. She has no other income, assets or debts.
2. GAM's application for financial management was prompted by the correspondence from the Department regarding her mother's application to sponsor HYM in connection with her Carer visa application.
3. Regulation 1.20(1) of the Migration Regulations 1994 states that the sponsor of an applicant for a visa is a person who undertakes the obligations set out in sub-reg (2) of the Migration Regulations. Relevant to Carer visas, reg 1.20(2)(a) of the Migration Regulations prescribes the obligations of a sponsor and requires that the sponsor undertake to assist the applicant, to the extent necessary, financially and in relation to accommodation for a period of two years immediately following the grant of the visa or the applicant's first entry into Australia under the visa.
4. We were satisfied that the nature of the sponsor's obligations under reg 1.20(2)(a) of the Migration Regulations is financial in nature and relate to WZA's estate. We agreed with the Department's position that the sponsorship undertaking requires a significant financial commitment from a sponsor. We were also satisfied the legal authority or the power to sign any legal document, such as an application for sponsorship, the effect of which is to undertake certain financial obligations or entering into a contractual agreement, is best characterised as a function or power relating to WZA's estate.
5. Having considered the evidence before us, we were satisfied that there was a need to appoint a financial manager and that it was in the best interests of WZA that a financial management order be made.

Who should be appointed as financial manager?

1. In appointing a financial manager, as in making all other orders under the Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Act.
2. Section 25M of the Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian.
3. We accepted GAM's oral evidence at the hearing that she is willing to act as WZA's financial manager under the supervision of the NSW Trustee and Guardian. We also took into consideration the fact that GAM has been managing WZA's estate informally.
4. We were satisfied that GAM is a suitable person to be appointed as financial manager for WZA subject to the authorities and directions of the NSW Trustee and Guardian.

Endnote

1. https://immi.homeaffairs.gov.au/form-listing/forms/40.pdf. 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: 19 May 2021