WZL [2022] NSWCATGD 4

WZL [2022] NSWCATGD 4 - NSWCATGD 2022 case summary — Zoe

[4]

Background facts

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WZL, and, and during the period TQW held her grandmother's power of attorney, substantial and unexplained sums were withdrawn from WZL's bank accounts Ms Z and TQW make the same allegation about EBL.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.

[13]

The importance of preserving WZL's existing family relationships

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.
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.
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.
TQW responded that EBL is an unsuitable person to care for WZL. Among other things, she asserts he is "temperamental and abusive".
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.
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.
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.
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.
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".

[17]

Findings and conclusions

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.
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.
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.
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.
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.
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.

[20]

Who should be appointed guardian?

TQW submitted that she should be appointed guardian. TQW's appointment is supported by her mother and opposed by her uncle.
EBL also seeks to be appointed as his mother's guardian. That application is opposed by TQW and Ms Z.
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.
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.
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).

[22]

Findings

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.
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.
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.
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.

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