YMP v YND

1. Pursuant to s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) the Appellant may appeal as of right on any "question of law" or with leave, appeal on "any other grounds". What constitutes a question of law is not in doubt. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] the Appeal Panel provided a non-exhaustive list of errors on a question of law, including:

(a) whether there has been a failure to provide proper reasons;

(b) whether the Tribunal identified the wrong issue or asked the wrong question;

(c) whether a wrong principle of law had been applied;

(d) whether there was a failure to afford procedural fairness;

(e) whether the Tribunal failed to take into account relevant (mandatory) considerations;

(f) whether the Tribunal took into account irrelevant considerations;

(g) whether there was no evidence to support a finding of fact; and

(h) whether the decision was so unreasonable that no reasonable decision maker would make it.

1. The principles governing applications for leave to appeal are also not in doubt. In Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 the Court of Appeal at [28] said (citations omitted) that:

"Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient to merely show that the trial judge was arguably wrong."

1. As the Appellant is not legally trained, he cannot be expected to articulate his complaints in the manner in which a legal practitioner could be expected to do so in grounds of appeal. The Appeal Panel has considered the Appellant's material in order to discern whether, howsoever articulated, merit has been demonstrated (Reisner v Bratt [2004] NSWCA 22 at [4]).
2. As the Appellant has not filed new or further medical evidence named in his material, there is no occasion for considering the principles governing the admission of new or further evidence. The material filed by the Appellant, which he contended established that the Tribunal had erred in making guardianship and financial management orders consisted of no more than the Appellant's claims that the medical practitioners who he named had told the Appellant certain things.
3. As the Appellant has not filed a transcript of the hearing on 30 July 2024, in which he participated, and has not filed any evidence which was before the Tribunal, successfully agitating any of his complaints is necessarily problematic.

The Reasons of the Tribunal for the guardianship order

1. The Tribunal's Reasons record [1] that the Appellant was a "79 year old man who was living in care at the [the care facility]". The Tribunal recorded that the Appellant's "support network" includes YPA who "previously has been noted as (the Appellant's) spouse". The Appellant said that YPA was "not my spouse but now a friend whom I meet sometimes". That does not mean that the Tribunal was wrong in what it recorded in that regard. Even if it was, nothing turns on such an error for present purposes.
2. After referring to prior applications for guardianship and financial management orders made in respect of the Appellant the Tribunal, identified at [7], correctly, the questions which needed to be decided :

● "Is [the Appellant] someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions"?

● "Should the Tribunal make a guardianship order and if so, what order should be made"?

● "Who should be the guardian"?

● "How long should the order last"?

1. Addressing the first of these issues, at [8] the Tribunal referred to the provisions of s 14 of the Guardianship Act 1987 (NSW). The Tribunal recorded at [9] that the Appellant agreed that "He has some short term memory problems but disagrees that he has Alzheimers or that he needs any help with decisions". The Appellant said "[the manager] is a liar and she is covering things up". That allegation is a recurring theme in the material filed by the Appellant in this appeal. The Appellant does not appear to have provided evidence supporting that claim to the Tribunal. He has not provided the Appeal Panel with such evidence.
2. The Tribunal referred at [10] to medical reports from a Geriatrician and another medical practitioner referring to the Appellant's "diagnosis of frontotemporal and Alzheimer's Dementia that impairs his cognition, memory, behaviour and executive functions" and his "several complex health needs, including chronic obstructive pulmonary disease, past severe stroke, metastatic non-small cell lung cancer, osteoarthritis and osteoporosis". Both medical practitioners were of the opinion that the Appellant's disabilities and medical conditions "significantly impair his decision making".
3. The Tribunal referred at [11] to the opinion of a dementia nurse specialist, who agreed with the opinions of the medical practitioners to whom the Tribunal referred. The Tribunal was satisfied at [12] that the Appellant "has disabilities which prevent him from making important life decisions. He is a person for whom the Tribunal could make a guardianship order".
4. At [13] the Tribunal addressed the second issue requiring determination and referred in that context to the provisions of s 14(2) of the Guardianship Act. The Tribunal reiterated at [14] the absence of hierarchy or weighting of the matters articulated in s 14(2) and that each of the matters was a mandatory consideration.
5. The Tribunal referred at [15] to the evidence of the manager that the Appellant requires assistance with health care and medical treatment decisions and to her opinion that the Appellant had "minimal ability to understand his care and treatment requirements".
6. At [16] the Tribunal referred to the Appellant's statement that he "didn't need a guardian" and several other matters, including his adverse opinion of the manager. At [17], the Tribunal referred to the evidence of the manager that she agreed with the opinion of the health practitioners in relation to the need for the Appellant to have a guardian to make medical decisions on his behalf. Noting particularly that the Appellant was "increasingly wanting more (Endone and Melatonin) and he gets abusive as a result of his dementia". The Tribunal referred [18] to the manager's evidence that the Appellant "does not want to be involved".
7. The Tribunal referred at [19] to the evidence of a Dementia Nurse Specialist at the facility, who "supports the doctors and staff and the need for a guardian". GM reiterated that YPA "does not want to be involved as person responsible". GM said that the Appellant's "agitation and behaviours are causing a lot of difficulty for staff and the doctors with his care and management".
8. The Tribunal referred at [20] to the requirement that it take into account as far as possible the views of the Appellant and any person who has care of him, as well as the importance of preserving family relationships and cultural or linguistic environment and must also consider the practicability of services being provided to him in the absence of the order.
9. The Tribunal noted at [21] the obligation to act in accordance with the principles set out in s 4 of the Guardianship Act.
10. At [22], the Tribunal accepted the expert opinion evidence to which it had referred, and found that it was "evident" that the Appellant's "cognitive decline and increasing behaviours are impairing his ability to make his own medical and health care decisions, and this is now impacting him receiving appropriate treatment for his complex medical conditions. He is a person who is in need of a guardian".
11. The Tribunal addressed at [24]-[25] the issue of who should be the Appellant's guardian and recorded, accurately there is no doubt, that there was "no one proposing themselves as willing and able to be [the Appellant's] guardian" and that, accordingly the Public Guardian must be appointed.
12. The Tribunal noted at [26]-[27] that an initial guardianship order can be made for a period of up to one year from the date on which it was made and made an order to that effect. As noted earlier in these reasons, that order would have expired. Whether there have been subsequent or further orders is not known to the Appeal Panel.

The reasons of the Tribunal for the financial management order

1. After recording a number of matters common to the guardianship proceedings to which reference has been made earlier in these reasons, the Tribunal posed at [7] the questions which required consideration:
   • Is [the Appellant] incapable of managing his affairs?
   • Is there a need for another person to manage [the Appellant's] affairs and is it in his best interests for a financial management order to be made?
   • If so, who should be appointed financial manager?
2. The Tribunal then turned to consider [8]-[16] whether the Appellant was incapable of managing his affairs. The Tribunal referred to the decision in P v NSW Trustee and Guardian [2015] NSWSC 579 at [307]- [308] in which the Supreme Court said that the question was whether a person was "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?" and that the focus of 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".
3. The Tribunal recognised at [10] that the relevant time for considering whether a person is incapable of managing his or her own affairs was the date of hearing and "the reasonably foreseeable future". The Tribunal reiterated at [12] its earlier finding that the Appellant has Alzheimer's Dementia which "impairs his decision making". The Tribunal recorded at [13] the Appellant's statement that he did not believe that he had Alzheimer's Dementia but "did agree that he has some memory problems".
4. The Tribunal referred at [14] to expert medical evidence additional to that which was before it in the guardianship proceedings, including a report from Geriatrician, Dr Wong, confirming that the Appellant had Alzheimer's Dementia and lung cancer.
5. The Tribunal at [15] accepted the medical and other evidence in support of the financial management application. The Tribunal found at [16] that because of the Appellant's dementia he could not deal with his financial affairs in a reasonably competent manner and that as a result, there was a risk that he may be disadvantaged, or his assets dissipated. The Tribunal found that to be "the case at the present time and in the foreseeable future". The Tribunal was accordingly satisfied that the Appellant was incapable of managing his financial affairs.
6. The Tribunal then considered whether there was a need for a financial management order at [17]-[25]. The Tribunal referred at [17] to the Appellant's statements with respect to his receipt and utilisation of his aged pension.
7. The Tribunal referred at [18] to the evidence of the Clinical Care Coordinator at the facility where the Appellant was residing, that he was "spending money on impulsive and significant purchases that are not needed and/or are not in his best interests", including "buying bulk bottles of alcohol each fortnight, buying bulk toothpaste" and three wheelchairs. The Care Coordinator's evidence was that the Appellant stores the items he has purchased in his shared room and that they are a safety risk to him, his roommate, and to staff who care for him. The Tribunal recorded the evidence of the Care Coordinator that the Appellant is "drinking the alcohol from breakfast time and becomes increasingly drunk throughout the day" thereby impairing further the Appellant's concerning behaviour, during which he becomes "vulgar, abusive and racist to staff members".
8. The Tribunal recorded at [20] the Appellant's response to these allegations - the Care Coordinator "is a liar". The Appellant explained that he purchases alcohol in bulk because "it is a lot cheaper", that his roommate has not complained to him about the purchases and that "he is an alcoholic, so what".
9. The Tribunal further recorded the Appellant's evidence that he "pays his bills".
10. The Tribunal referred at [21] to the evidence of a Dementia Nurse Specialist who supported the financial management application in part on the basis that a financial management order would "limit [the Appellant's] access to excessive alcohol by limiting the amount of money he is spending on alcohol and it will also limit his impulsive and excessive purchases".
11. The Tribunal referred at [22] to the provisions of s 4 of the Guardianship Act each of which it considered and was [25] satisfied that there was a need to appoint a financial manager for the Appellant.
12. The Tribunal accepted at [26] that it was in the Appellant's best interests that a financial management order be made. The Tribunal considered at [27]-[29] whether the TAG should be appointed as the Appellant's financial manager, and noted at [29] that "there was no one proposing themselves as suitable" to act as the Appellant's financial manager. The Tribunal accordingly concluded that, pursuant to s 25M of the Guardianship Act, the TAG should be appointed the Appellant's financial manager.

1. in view of the thrust of the Appellant's appeal, and to the central issue with respect to the Tribunal's orders of 30 July 2024 and 31 October 2024, it is appropriate to consider the Appellant's appeals conjointly.
2. Nothing to which the Appellant has referred in any of his material establishes that it was not open to the Tribunal to accept the expert medical and other health professional evidence which it identified and considered (Dasreef Pty Ltd v Hawchar (2010) 243 CLR 588; [2011] HCA 21). Nor is there anything to which the Appellant referred in this appeal which establishes that the Tribunal erred in accepting, or affording weight to the evidence of the Manager, on the basis of a lack of qualifications and experience, credibility or otherwise. Realistically, unless, which has not happened, the Appellant adduced medical evidence contradicting the opinion evidence of the medical practitioners whose evidence was before the Tribunal, there could be no foundation for allowing the Appellant's appeal against the guardianship order or the financial management order or granting leave to appeal. On the evidence before the Tribunal, each order was well within a proper exercise of jurisdiction and power.

1. The Appellant has not identified, much less established, error on a question of law. He has not established error on any other basis.

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.