WZL [2022] NSWCATGD 4

Procedural history

1. In September 2020, EBL made an application for review of the enduring power of attorney purportedly made by WZL on 28 August 2020, appointing EBL as her attorney. In that application, EBL stated that he wanted the Tribunal to "investigate what the previous attorneys had done with WZL's money". On 27 October 2021, the Tribunal dismissed that application for want of prosecution.
2. The Application was listed for hearing on 9 December 2021 and 1 March 2022 and adjourned on each occasion, primarily because of WZL's difficulty of participating by phone because of a hearing impairment.
3. The hearing on 13 April 2022 was held in person and attended by WZL who was assisted by a Serbian interpreter. The people listed at the end of these reasons also attended. [Appendix removed for publication.]

Background facts

1. To put the evidence and the submissions made by the parties in context we set out below background facts, focussing on WZL's living arrangements and her purported appointments of various family members as her enduring guardians and attorneys. As noted above, EBL has alleged that Ms Z and TQW have financially exploited WZL, and, and during the period TQW held her grandmother's power of attorney, substantial and unexplained sums were withdrawn from WZL's bank accounts Ms Z and TQW make the same allegation about EBL. Except where relevant to the issues we are required to decide in determining the Application, in the reasons we will not detail those claims and counter claims. Date Event 1999 EBL claims that Ms Z was WZL's attorney under a POA since 1999. 2004 - August 2020 WZL resides with Ms Z, at regional NSW. 2012 WZL's house at regional NSW, is sold. WZL continues to live with her daughter. April 2019 WZL receives compensation of $285,000 after an accident. 19 July 2019 WZL executes an enduring power of attorney appointing TQW as her attorney. 14 August 2019 WZL appoints TQW as her enduring guardian. 11 May 2020 Ms Z alleges that EBL attempts to withdraw $20,000 from and close WZL's account. The bank notifies TQW and she cancels the transaction. 1 June 2020 WZL signs documents appointing EBL as her enduring guardian and attorney. WZL revokes power of attorney made in favour of Ms Z and TQW. 16 July 2020 WZL signs document titled 'power of enduring guardianship', but which refers to an 'attorney' throughout the doc, appointing TQW. WZL signs a revocation of power of attorney, referring to the appointment, of EBL. August 2020 WZL is found alone at a petrol station, picked up by EBL's son, Mr Y, and is taken to EBL's house. August 2020 WZL resides with EBL. 28 August 2020 WZL signs document appointing EBL as her attorney. 15 November 2020 WZL signs document appointing EBL as her attorney.

Can a guardianship order be made?

1. The power to make a guardianship order can only be exercised if we are satisfied that WZL is a "person in need of a guardian": Guardianship Act 1987 (NSW) (the Act), s 14(1). 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": the Act, s 3(1). A person with a disability is defined to include a person who is physically and/or psychologically disabled and/or of advanced age 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: the Act, s 3(2).

Evidence and submissions

1. The available medical evidence indicates that WZL's decision-making capacity is impaired. In a report dated 17 February 2021, geriatrician Dr X wrote that cognitive tests (RUDAS, MOCA) administered with the assistance on an interpreter, revealed that WZL has "significant frontal dysexecutive and amnestic type cognitive impairment". In Dr X's opinion, WZL "does not have the mental capacity to make major life decisions including financial decisions".
2. In a pro-forma health professional report dated 7 December 2021, WZL's GP for the past 10 years, Dr W, stated that WZL was first diagnosed with dementia in 2016. She described WZL's condition as "moderate" and "progressing slowly". According to Dr W, WZL's disability affects her ability to make decisions about accommodation, care, services, health, medical care and financial affairs.
3. In these proceedings, EBL was the only person to suggest that WZL was not "a person in need of a guardian". In submissions dated 7 October 2021, he wrote that while his mother has dementia and "occasional memory loss and forgetfulness", she does not have "serious dementia". He stated that she is capable of making her own decisions "to an extent and with the right supports". In answer to questions from the Tribunal, EBL agreed that his mother had difficulty retaining information and said "absolutely [his mother] was vulnerable to pressure from other people".

Findings and conclusions

1. Our observations of WZL and her answers to our questions during the hearing were consistent with the opinions given by Dr X and Dr W.
2. We find that on account of advanced age and diagnosed cognitive impairment WZL is restricted in several major life activities, including shopping, cooking and housework, to such an extent that she requires support to live in the community (social habilitation). WZL is a "person with a disability" within the meaning of s 3(2) of the Act. In addition, we find that WZL is at least partially incapable of managing her person. It follows that WZL is a "person in need of a guardian" and the power to make a guardianship order can be exercised.

Should a guardianship order be made?

1. In considering whether or not to make a guardianship order, we must consider the matters listed in s 14(2) of the Act, relevantly the views of WZL, the views of her carer, EBL, the importance of preserving WZL's existing family relationships and cultural and linguistic environments, and the practicability of services being provided to WZL without the need for the making of a guardianship order.

The views of WZL

1. In answers to questions by the Tribunal WZL said: 1. she lives with her son and they get on well; 2. her daughter was well; 3. she did not know why she was at the hearing or what was the purpose of the hearing; 4. she did not know what a power of attorney is, and could not recall signing a document to give a person authority to make decisions on her behalf; 5. at the close of the hearing, in answer to the question, "who would you like to make decisions on your behalf", she said "my son", "a good boy".

Views of separate representative

1. Shortly before the hearing, Ms Reed met with WZL in her home. Ms Reed reported that WZL said at that meeting that she enjoys living with her son and that she would like to have contact with her daughter and granddaughter.
2. Ms Reed said that in her opinion, WZL appeared to understand the purpose of their meeting but not the background to, or what the Tribunal proceedings were about.
3. At the hearing, Ms Reed invited EBL to comment on the chain and padlock on the fridge in the kitchen in his home. EBL explained that it was to stop WZL eating food inappropriate because of her diabetes. Ms Reed said she accepted that explanation.
4. Ms Reed said that WZL appears to be well cared for and reports being taken to the doctor once a fortnight. In her view there appeared to be no current need for a guardianship order because it was unlikely that any decisions of significance need to be made in the foreseeable future. WZL's accommodation was settled, and her health needs appeared to be taken care of.
5. When asked by the Tribunal whether she had concerns that if a guardianship order is not made, as a consequence of his appointment as enduring guardian, EBL holds authority to make decisions about WZL's accommodation, access etc., Ms Reed declined to proffer a view.

Views of EBL

1. EBL contends that the current arrangements involving decisions for his mother are working well. He opposed the making of a guardianship order, asking rhetorically, "why fix something that is not broken". He strongly opposes TQW being appointed as guardian.

The views of TQW

1. TQW submits that it is necessary and appropriate that the Tribunal exercise the discretion to make a guardianship order for her grandmother. She contends that it is not in her grandmother's best interest that she continued to live with and be cared for by EBL and that he continues to make decisions on her behalf. She claims that she has the means and the ability to care for her grandmother.
2. Ms Z agrees.

The importance of preserving WZL's existing family relationships

1. The relationship between TQW, Ms Z and EBL is characterised by a high level of mistrust. At best the relationship can be described as dysfunctional. It has been for some time.
2. The comments made by EBL in these proceedings, indicate that he holds his sister and niece in contempt. He said: 1. he would refuse to permit his sister and niece to visit WZL. They "bring nothing to the table" and "are toxic". Their relationship with WZL is "not healthy" and is "motivated by greed"; 2. when his mother came to live with him in August 2020, he did not inform his sister. Since then, he has made "zero efforts" to inform his sister about any matters to do with WZL's; 3. he has had no contact with his niece for about four years; 4. when these proceedings are concluded he will commence legal proceedings to recover money from his mother by his sister.
3. In answer to questions from the Tribunal, EBL said he planned to have "zero" contact with his sister and would refuse to give her any information about their mother, including, if she were to go into palliative care.
4. TQW responded that EBL is an unsuitable person to care for WZL. Among other things, she asserts he is "temperamental and abusive".
5. In affidavits prepared for these proceedings, TQW detailed what she asserted was a long history of EBL financially exploiting WZL including: 1. by misappropriating $420,000 from the sale of WZL's property at regional NSW (in 2012); 2. by withdrawing significant sums from WZL's bank accounts without consent, over various periods; 3. since WZL has been living with him, using her pension as his own money.
6. TQW claims that the reason her grandmother decided to leave her mother's house in August 2020 was because EBL was manipulating her grandmother's medication.
7. EBL rejects these claims. He claims that his mother was "kicked out" of his sister's house around the time she revoked TQW's appointment as attorney.
8. In a statement dated 9 October 2021, EBL's son, WZL's grandson, Mr Y, wrote that late one evening in August 2020 he visited a service station around the corner from where his grandmother was then living with Ms Z. To his surprise he found his grandmother in tears begging the attendant to ring her son. He approached his grandmother who said, "[Ms Z] lock door and go to Sydney now [WZL] stuck". He said he took his grandmother to his father's house. He claimed his father had anticipated this might occur and had rearranged his home to accommodate WZL.
9. Mr Y that said since living with his father, his grandmother is a "different person", "so much happier". He wrote "[Ms Z] and [TQW] are dead to this family and none of us, including my [WZL] want anything to do with them".

Findings and conclusions

1. It is not necessary for the purpose of these proceedings, to determine the truth or otherwise of the allegations and counter allegations made by EBL and his son, and TQW and Ms Z. In our view, making or not making a guardianship order, is unlikely to repair the fractured relationships between the four. However, if a guardianship order is made (and EBL is not appointed guardian), it may facilitate ongoing contact between WZL and her granddaughter. While Mr Y and EBL assert that WZL wants nothing to do with her granddaughter, there is some independent evidence to suggest otherwise, including: 1. the statement made by WZL to the separate representative during their recent meeting that she would like to have contact with her daughter and granddaughter; 2. the report prepared by Dr X dated 24 February 2020, in which he stated that he spoke with WZL alone, and she denied any financial verbal or emotional abuse by her daughter and she expressed the wish to stay living with her daughter and to not move to a nursing home.
2. This factor favours the making of a guardianship order.

The importance of preserving WZL's particular cultural and linguistic environments

1. WZL's first language is Serbian. Apparently, her ability to communicate effectively in English has declined since the onset of dementia.
2. If a decision is made that WZL were to move to live with her granddaughter, she would continue to be in an environment where Serbian is spoken. We think it unlikely that making or not making a guardianship order will materially affect the preservation of her Serbian cultural and linguistic environments.

The practicability of services being provided to WZL without the need for the making of such an order

1. Because of advanced age and cognitive impairment, WZL is unable to make and implement decisions about the services she requires to live in the community. To date, decisions surrounding home care have been made and implemented by EBL. He claims that the services WZL currently receives are adequate and appropriate. There is no evidence to refute that claim and it is consistent with the observations made by Ms Reed and EBL's former wife. Given the evidence that a home care package is in place, it could not be said it would be impracticable for services to be provided to WZL without a guardianship order.
2. This factor neither favours nor weighs against the exercise of the power to make a guardianship order.

Findings and conclusions

1. In deciding whether to exercise the power to make, or not to make, a guardianship order, we must consider the factors listed in s 14(2) of the Act, together with the statement of principles contained in s 4 of that Act. This exercise requires us to balance several competing considerations. On the one hand, we must observe the principle that WZL must be protected from neglect, abuse and exploitation. On the other hand, we must restrict her freedom of decision making and action as little as possible. At all times, the paramount consideration is WZL's welfare and interests.
2. Weighing heavily in favour of a guardianship order is WZL's evident inability to make and implement decisions of significance in relation to her person. Between July 2019 and November 2020, on several occasions, in quick succession WZL appointed her granddaughter, daughter or son as guardian and attorney and soon after revoked those appointments. That pattern of conduct suggests WZL lacked an understanding of the nature and significance of those appointments, and/or was vulnerable to suggestions and pressure from others in making (revoking) those appointments.
3. Another factor favouring the making of a guardianship order is the animosity between family members. If EBL continues as his mother's decision maker, she will be denied the ability to remain in contact with her daughter and granddaughter and they will effectively be excised from her life.
4. Also of significance, is the fact that unless a guardianship order is made, the most recent purported appointment of EBL will have effect. This is concerning if for no other reason that the medical evidence indicates that when that appointment was made, WZL lacked the capacity to make a reasoned and informed decision about a matter of such significance. That said we note that it nonetheless accords with WZL's statement made in these proceedings that she would like her son to make decisions on her behalf, if she was unable to do so. We note she not questioned about that statement and it was made while her son was in close proximity to WZL.
5. Finally, we reject Ms Reed's submission that the Tribunal should not make a guardianship order because "need" is not established. First, that submission is based on the flawed premise that "need", in the sense of a requirement to make significant decisions in the near future in relation to the subject person, is a pre-condition to the exercise of the discretion to make a guardianship order. This misstates the statutory test. "Need" is simply a consideration which the Tribunal may take into account in the exercise of that discretion. Second, in any event, in the foreseeable future it is probable that decisions of significance will need to be made in relation to WZL. Decisions of significance are already being made by EBL, including about having contact with her daughter and granddaughter. Given WZL's age and health, whether the current arrangements for her care and accommodation are and continue to be appropriate, require regular review. Finally, as effectively conceded by Ms Reed, not exercising the discretion to make a guardianship order fails to address the elephant in the room, that is, that EBL will remain the effective decision maker on behalf of his mother.
6. For these reasons we have decided that it is necessary and appropriate to exercise the discretion to make a guardianship order. That decision gives effect to the paramount consideration, WZL's welfare and interests.

Functions given to the guardian

1. In the foreseeable future decisions may need to be made about WZL's accommodation, the services she should receive and her access to other people. It is appropriate that the guardian be given authority to make those decisions.

Term of order

1. We have decided to make the term of the order 12 months.

Who should be appointed guardian?

1. TQW submitted that she should be appointed guardian. TQW's appointment is supported by her mother and opposed by her uncle.
2. EBL also seeks to be appointed as his mother's guardian. That application is opposed by TQW and Ms Z.
3. The Tribunal must not appoint the Public Guardian where another person can be appointed as the guardian: s 15(3) of the Act. Before appointing a person to act as guardian, the Tribunal must satisfy itself that the proposed guardian satisfies each of the three matters listed in s 17(1) of the Act: 17 Guardians (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.
4. Section 4 of the Act requires that anyone exercising functions under that Act, including a guardian, must observe the principles in s 4 of that Act.
5. As noted by the Appeal Panel in ZKF v ZKG [2019] NSWCATAP 64 at [31], s 17(1)(c) of the Act requires an evaluative judgment to be made about whether the proposed guardian is "able" to exercise the functions conferred under the guardianship order. This requires consideration not only of whether the proposed guardian possesses the necessary skill and experience to be able to exercise those functions but also whether the proposed guardian has the personal attributes, such as judgment and integrity, required to exercise those functions. In addition, it requires consideration of whether the proposed guardian is able to make those decisions in a manner consistent with the duty imposed by s 4 of the Act: ZKF v ZKG at [31]; W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25] (per Windeyer J); IR v AR [2015] NSWSC 1187 at [36] (per Lindsay J).

Is TQW able to exercise the functions conferred by the guardianship order?

1. TQW is undoubtedly willing to undertake the role of her grandmother's guardian.
2. The real issue is whether she is able to, in a manner consistent with the duty imposed by s 4 of the Act.
3. It is submitted for TQW that the evidence establishes that she is devoted to and cares deeply for her grandmother. She points to the care she provided her grandmother during the period they lived with her. She states that she can provide her grandmother with better quality care than that provided by her uncle, pointing out that he is in full-time employment and leaves her grandmother at home alone for much of the day. In contrast she is currently a full-time homemaker. She is both willing and has the means to properly care for grandmother.
4. In addition, she contends that she is an honest and reliable person as evidenced by the positions of trust and responsibility she has held, including as a security officer with NSW courts and tribunals.

Findings

1. The submissions and evidence given by both parties centred on who would be best able to care for WZL. That is not a decision for this Tribunal. While the roles of carer and guardian can be carried out by the same person, they are nonetheless distinct. Different considerations apply.
2. While TQW has many fine qualities and we accept cares deeply for her grandmother, we are not satisfied that she is able to discharge the obligations of the role of guardian for two main reasons. First, her actions in accepting an appointment as attorney in July 2020, shows a serious lack of judgment. The series of appointments and reappointments made by her grandmother in the preceding 12 months, ought to have made apparent that her grandmother lacked the capacity to make decisions of such significance. Accepting that appointment demonstrates at best that TQW lacked insight; at worst that she accepted that appointment in circumstances where she knew or ought to have known that there was at least a real doubt about her grandmother's capacity to make that appointment. It may be that TQW was motivated by concern to protect her grandmother from her uncle. Whatever the reason it showed a lack of judgment.
3. Second, because of the long-standing animosity between her mother and EBL, we find that TQW probably lacks the necessary objectivity to evaluate whether it is in her grandmother's best interests to remain living with, and in the care of, EBL.
4. Finally, we could not be satisfied that TQW would be able to make decisions in a manner consistent with the obligations of a guardian imposed by the Act, specifically s 4(f), which requires that a guardian must observe the principle of the "importance of preserving the family relationships". When questioned by us about whether she would facilitate access between her grandmother and EBL, TQW said she would, provided it occurred outside her home. She later said that she would like NCAT or an "outsider" to decide. Even if she were willing to continue to involve EBL in her grandmother's life, the toxic relationship within the family is likely to render her unable to do so.

Is EBL able to exercise the functions conferred by the guardianship order?

1. For largely the same reasons given in relation to TQW we could not be satisfied that EBL would be able to exercise the functions conferred by the guardianship order. With respect of the third of those reasons, EBL was emphatic: in no circumstances would he permit his mother to have contact with her daughter and granddaughter, seek their views or keep them informed about any matters related to WZL, including, if it came to it, palliative care. There is a real risk that his contempt for his sister will infect decisions made in relation to his mother.

Conclusions

1. Not being satisfied that TQW or EBL are able to exercise the functions conferred under the guardianship order, the power to appoint either as WZL's guardian cannot be exercised. It follows that the Public Guardian must be appointed guardian.

Application for a financial management order

1. Section 25G of the Act provides that we may make a financial management order in respect of WZL only if we have considered her capability to manage her own affairs and are satisfied, to the relevant civil standard, of three matters: 1. that WZL is not capable of managing her affairs; 2. that there is a need for a person to manage those affairs on behalf of WZL; and 3. that it is in WZL's best interests that the order be made.

Is WZL not capable of managing her affairs?

1. As a first step in determining whether WZL is capable of managing her affairs, it is necessary to identify the nature of her affairs, namely her income and assets. The available material indicates that WZL receives the Age Pension. The position in relation to her assets is unclear. It may be as assumed by Ms Reed and the parties that WZL's savings have now been depleted. Without better evidence it is not possible to reach a concluded finding about this issue.
2. In any event, even if assumed WZL has no savings, the evidence reveals that she is unable to manage her pension. EBL's claims that WZL's carers assist her to withdraw money from the bank and she directs them about how to spend that money. If accepted, that claim indicates that WZL is unable to manage even the most simple financial transactions. That is consistent with the medical evidence. We find that WZL is no longer capable of managing her affairs.

Is there a need for a person to manage her affairs on behalf of WZL and is it in WZL's best interests that a financial management order be made?

1. In circumstances where WZL is reliant on others to manage her finances, where there is a lack of transparency about the history concerning the management of her finances, we find that there is both a need for a person to manage WZL's financial affairs on her behalf and that is it in her best interests that a financial management order be made

Should a financial management order be made?

1. As the pre-conditions to making a financial management order are satisfied, the power to make a financial management order can be exercised. Having regard to the statement of principles contained in s 4 of the Act which require that we observe, among other things, the principle that WZL must be protected from neglect, abuse, and exploitation, we have decided that it is appropriate to exercise the power to make a financial management order.

Who should be appointed to manage WZL's estate?

1. 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. TQW and EBL each nominate to act as the manager of WZL's estate.
2. In Application by AMAM; Re SAM [2011] NSWSC 503, commenting on the matters that may be relevant in determining whether a person is suitable to act as a manager of a protected person's estate, Hallen AsJ stated at [34]: "Each case must depend on its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager's character, honesty and ability to manage, diligently, the managed person's property in the managed person's best interests." (See also the "non-exhaustive guidelines" listed by Lindsay J in M v M [2013] NSWSC 1495 at [50]).
3. We are not satisfied that either TQW or EBL is a suitable people to act as WZL's financial manager. Each believes that the other has misappropriated funds from WZL. Each flagged their intent to commence proceedings to recover that money. If appointed financial manager, they would be authorised to commence that action in WZL's name. It is possible that their animosity towards the other might influence that decision. This is not to say that it may be appropriate that such action be commenced but rather that an independent decision-maker is better placed to evaluate whether to do so. It would not be in WZL's best interests TQW or EBL to be appointed financial manager.
4. In our view WZL's interests would be best served by her estate being managed by an independent person, the NSW Trustee and Guardian.

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: 15 July 2022