XA v NSW Trustee and Guardian

Legislative framework and Tribunal's decision 4Section 25 of the Guardianship Act 1987 gives the Guardianship Tribunal power to review a guardianship order on its own motion, on the application of any eligible person before the order has expired and at the expiration of the order. It may decline to review an order if the request does not disclose grounds that warrant a review, or the Tribunal has previously reviewed the order: s 25A. When reviewing a guardianship order before it has expired, the Guardianship Tribunal has powers to vary, suspend, revoke or confirm the order: s 25C(1). When reviewing an order on the expiration of the period for which the order had effect, the Guardianship Tribunal has the power to renew, renew and vary or allow the order to lapse (and revoke the order in respect of any unexpired period for which the order is specified to have effect). 5The Guardianship Act does not set out the test to be applied to determine whether, following a review, the guardianship order should be changed, that is varied, suspended, revoked, confirmed, renewed, renewed and varied or allowed to lapse: IF v IG & Ors [2004] NSWADTAP 3 (13 February 2004). When determining what order, if any, to make, the Tribunal is exercising a discretion and should take into account all relevant considerations. Those considerations include: 1)whether the subject person is still a "person in need of a guardian" (as that term is defined in s 3); 2)the considerations in s 14 namely: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order. 3)whether there are any restrictions on the Tribunal's power to make an order: s 15; 4)in relation to the identity of the existing or proposed guardian, whether that person fulfils the requirements in s 17; and 5)any other relevant matters. 6Using the revocation of a financial management order as an analogy, it will normally be necessary for the person seeking the change to show some reason why the change should be made: Holt and Anor v Protective Commissioner (1993) 31 NSWLR 227 at 241. 7The Tribunal found that XB remained a "person in need of a guardian." No ground of appeal challenged that finding. On the question of whether the order should continue or be allowed to lapse, the Guardianship Tribunal exercised its discretion to allow it to lapse. In coming to that view, the Tribunal found that the functions which had been given to the Public Guardian were no longer needed because XB's living arrangements were stable and there was no conflict in relation to who should be able to visit him. It also found, contrary to XA's assertion, that there was no need for a guardian to make decisions about matters relating to medical treatment and health care. 8Despite the fact that the existing guardianship order did not give the NSW Trustee and Guardian the function of making substitute decisions about health care and treatment, the Tribunal noted that XA expressed concern that the medication his brother was taking to treat schizophrenia had not recently been reviewed. XA told the Tribunal that he would like to act as his brother's guardian, be given the function of making substitute decisions about health care and treatment, and arrange for a review of his medical treatment to be undertaken. 9The Tribunal reviewed the evidence, especially the evidence relating to the question of whether XB could give informed consent to the taking of Clozapine, an antipsychotic medication that is regarded as a 'major treatment' under the Guardianship Act . The Tribunal concluded that health professionals administering that drug must have formed a view that XA is able to give informed consent to that treatment. If that view changed, then the Tribunal noted that an application could be made for consent to be provided for the administration of that medication. The Tribunal concluded that: Given the evidence of the close monitoring of XB's mental and physical health by staff of New Horizons and medical practitioners, the Tribunal was not satisfied that there is currently a need for a guardian to be appointed about these issues. 10When referring to "a need" for a guardian to be appointed, the Tribunal was referring, not to the statutory definition of "a person in need of a guardian" but to the discretion in s 14 to make or not make a guardianship order or, in this case, whether to allow a guardianship order to lapse. 11The Tribunal decided that the guardianship order should lapse and revoked the unexpired period of the order.

Grounds of appeal 12XA identified three grounds of appeal in relation to the decision of the Guardianship Tribunal to allow the guardianship order to lapse. In XA's words, those grounds were that: (a)The Guardianship Tribunal made an error of fact with forming a view that it would be in my brothers best interest that he not be advocated for and accounted to, self (applicant) for his day to day welfare myself acting as his formal guardian. (b)The Guardianship Tribunal failed to address a prior application in addressing only the accommodation issues. The recent application (23.9.10) the Tribunal concentrated only on my brother's medical issues or part thereof. (c)It appears that a disproportionate weight has been unduly placed by the Guardianship Panel on material submitted by [XB's] commercial carers (New Horizons). 13XA also noted that there was no evidence from his brother's treating psychiatrist despite the fact that in previous hearings Dr Cynthia Parker from the Newcastle Mental Health Team had given evidence. 14While the first and third grounds are self-explanatory, the second ground requires some clarification. We assume that XA is referring to the original guardianship order made on 25 September 2008 when the predecessor to the NSW Trustee and Guardian was given the functions of making substitute decisions in relation to where XB should live (accommodation) and who should visit him (access). The application of the NSW Trustee and Guardian (filed on 1 June 2010) sought an early discharge of that order. XA's application to the Tribunal for a review of the order to substitute himself for the NSW Trustee and Guardian, submits that he has not been kept informed about medical issues relating to his brother. In its reasons for decision, the Guardianship Tribunal considered whether a guardian "needed" to be appointed to make substitute decisions in relation to accommodation, access, and medical treatment.

Questions of law? 15XA has a right to appeal on any question of law: ADT Act , s 118B(1)(a). We are not able to identify a question of law in relation to any of the three grounds of appeal. In relation to factual findings, it is only where a decision maker makes a finding of fact without any evidence or without probative evidence or gives inadequate reasons for a factual finding that an error of law will be made: Ormwave Pty Ltd v Smith [2007] NSWCA 210; 5 DDCR 180 at [14] per Beazley JA, with whom Santow and Ipp JJA agreed . It is not an error of law to make a finding of fact that is against the weight of evidence: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.

Leave to appeal on the merits? 16An appeal on grounds other than a question of law is only available if leave is given. The ADT Act does not contain any guidance as to the factors that should be taken into account in determining whether to grant leave for XA to appeal against the merits (or factual findings) of the Guardianship Tribunal's decision. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886 (17 August 2000). Those cases interpret s 67 of the Guardianship Act which is the equivalent provision in relation to appeals from Tribunal decisions to the Supreme Court. In K v K Young J observed at [10] that 'it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67. He went on to make a number of observations on this point: see para [10] -[15]. After considering the relationship between the Court and the Tribunal, Young J observed at [15]: It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 17None of XA's grounds of appeal relate to broad questions of administration or policy. Each relates to findings of fact made by the Tribunal. There is no suggestion that the Tribunal has gone about its fact finding process in an unorthodox manner or in a manner that is likely to produce an unfair result. These grounds of appeal amount to no more than disagreement with the Guardianship Tribunal's decision to allow the guardianship order to lapse. That is not a sufficient basis to justify the granting of leave to appeal.

Appeal against decision to confirm financial management order

Tribunal's decision 18The Guardianship Tribunal rejected XA's application that he replace the NSW Trustee as his brother's financial manager. XB's estate has been subject to a financial management order since l0 May 2006. The Guardianship Tribunal noted the test for revoking the appointment of a financial manager as set out in section 25U(4)(b). In summary, the Tribunal must be satisfied that it is in the best interests of the protected person that the appointment be revoked. However, XA was not applying for the order to be revoked. The substance of his application was that the order should be varied by substituting him for the NSW Trustee and Guardian as the financial manager: s 25R. The only guidance in the Guardianship Act on the question of who should be appointed to manage a person's estate is s 25M: (1) If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may, by order: (a) appoint a suitable person as manager of that estate, or (b) commit the management of that estate to the NSW Trustee.

Grounds of appeal 19XA listed the following grounds of appeal: a.The Guardian Tribunal erred in law in that the interest of the subject party, my brother be best served by his next of kin. b.The Guardianship Tribunal erred in fact placing weight on the verbal submission of Georgina Woods commercial carer in that funds in [XB's] account with the N.S.W Trustee office were the only means of safe and secure tenure overlooking that application was for management subject to audit. c.The Guardianship Tribunal erred in fact in placing undue weight in the view of the subject party (my brother) him being diagnosed as a chronic schizophrenic, as well as having a mental disability (impairing his cognitive capacity). d.The Guardianship Tribunal erred in fact in arriving at a decision based on unsupported evidence from a commercial carer's submission, in that my brother became withdrawn when the issue of managing his affairs is raised and this impacts negatively on his mental and emotional well being in contrast to a submission that he has difficulties understanding the complex issues re information concerning his financial affairs. e.The Guardianship Tribunal erred in finding that the applicant is not a suitable person to be appointed as his brother's private manager. f.The Guardianship Tribunal erred in law by not viewing the application in order of hierarchy as in sec 22 of the Act: ( Holt and Anor v Protective Commissioner 1993) g.The Tribunal has erred in fact by not acknowledging the applicant as a concerned party and a next of kin, was not duly communicated with on any issues arising out of the Trustee's dealings and inquiries sought by the applicant to do with [XB]. h.The Guardianship Tribunal erred in fact by not adequately addressing a Ievel of incompetence by the trustee in investing monies held in my brother's A/C at 50% below optimum available elsewhere in the market with equal sureties on the sum concerned

Questions of law? 20XA submitted that grounds 1 and 6 identified questions of law. In relation ground 1, the Tribunal's finding that XA was not a suitable person to be his brother's financial manager was a finding of fact based on probative evidence. No error of law is disclosed. 21In ground 6, XA refers to s 22 of the Act. We have assumed that XA is referring to s 22 of the now repealed Protected Estates Act 1983. The repealed section 22 is in substance the same as section 25M of the Guardianship Act 1987 set out at [18] above. 22In relation to the equivalent provision to s 25M, the Court of Appeal has acknowledged that by first referring to a suitable person and then to the NSW Trustee (formerly the Protective Commissioner) this provision sets out a 'sensible hierarchy of choices': Holt and Anor v Protective Commissioner (1993) 31 NSWLR 227 per Kirby P at 238. However, failure to appoint an individual in preference to the NSW Trustee and Guardian does not, in itself, amount to an error of law. The Tribunal discussed the pros and cons of appointing XA compared with leaving the management of the estate with the NSW Trustee and Guardian. The Tribunal also took into account XB's views. The Tribunal concluded that XA was not a suitable person to be the financial manager of his brother's estate. It made no error of law in coming to that view.

Should leave be granted to hear an appeal in relation to factual findings? 23The remaining grounds of appeal (grounds 2, 3, 4, 5, 7 and 8) are appeals in relation to findings of fact. Those grounds include placing weight or 'undue weight' on evidence, making findings of fact on the basis of evidence that was not 'supported' (that is, not corroborated); 'overlooking' facts and not adequately addressing certain facts. 24As with the decision to allow the guardianship order to lapse, none of XA's grounds of appeal in relation to the confirmation of the financial management order relate to broad questions of administration or policy. There is no suggestion that the Tribunal has gone about its fact finding process in an unorthodox manner or in a manner that is likely to produce an unfair result. The Tribunal made relevant findings of fact based on probative evidence. None of the grounds of appeal in relation to factual findings justify leave being granted.

Order

1. XA's application for leave for the appeal to proceed on grounds other than a question of law is refused.
2. The Guardianship Tribunal's decision to allow the guardianship order in relation to XB to lapse is affirmed.
3. The Guardianship Tribunal's decision to confirm the appointment of the NSW Trustee and Guardian as XB's financial manager is affirmed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2011