ZPH v ZPI

Publication of the names of the parties

1. The publication or broadcast of the name of any person mentioned, or otherwise involved, in an "internal appeal" against decisions made by the Guardianship Division of NCAT, is prohibited: ss 65(1) and 65(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"). Being an official report of the appeal proceedings, that prohibition does not apply to these reasons: s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters discussed in these reasons, we will not refer to the parties by name.
2. In this appeal, the Registrar assigned pseudonyms to the parties: "ZPI" (the Subject Person who appointed the Appellant as his enduring guardian on 28 March 2019 and who is now the subject of the guardianship order made by the Tribunal), "ZPH" (the Appellant in this appeal) and "ZPJ" (the person purportedly appointed as the Subject Person's enduring guardian on 18 April 2019 and the respondent in this appeal). For ease of reading, in these reasons we will refer to ZPI as the Subject Person, ZPH as the Appellant and ZPJ as the Respondent.

Statutory framework

1. Part 2 of the Guardianship Act 1987 (NSW) deals with the appointment of enduring guardians. Contained in Part 2, s 6 provides that an "adult person may, by instrument in writing, appoint a person as his or her guardian".
2. Section 6A provides that an appointment made under Part 2 has effect only during such period of time as the appointor is a person in need of a guardian and, unless revoked or suspended under Part 2, has effect during all such periods. A "person in need of a guardian" is defined as a person who, because of a disability, is totally or partially incapable of managing his or her person: s 3.
3. Section 6C prescribes the method of appointment of an enduring guardian: 6C Method of appointment (1) An instrument does not operate to appoint a person as an enduring guardian unless: (a) it is in or to the effect of the form prescribed by the regulations, and (b) it is signed: (i) by the appointor, or (ii) if the appointor instructs - by an eligible signer who signs for the appointor in the appointor's presence, and (c) it is endorsed with the appointee's acceptance of the appointment, and (d) the execution of the instrument by the appointor and appointee is witnessed by one or more eligible witnesses, and (e) each witness certifies that the person or persons whose execution of the instrument is witnessed executed the instrument voluntarily in the presence of the witness and appeared to understand the effect of the instrument, and (f) if the instrument is signed for the appointor by an eligible signer - the person who witnesses the signature certifies that the appointor, in the witness's presence, instructed the signer to sign the instrument for the appointor. (2) Without limiting subsection (1) (b) (i), an instrument is signed by the appointor if the appointor affixes his or her mark to the instrument. (3) If an eligible signer signs an instrument on behalf of an appointor as provided by subsection (1) (b) (ii), the appointor is taken to have signed the instrument for the purposes of this Act (including subsection (1) (e)). (4) For the purposes of subsection (1) (d): (a) the execution of the instrument by or for the appointor and by the appointee may be witnessed by the same person or by different persons, and (b) the execution of the instrument by or for the appointor does not need to be witnessed at the same time and place as the execution of the instrument by the appointee.
4. Section 6H governs the revocation of an appointment of an enduring guardian: 6H Revocation of appointment by appointor (1) A person who has appointed an enduring guardian may, by instrument in writing, revoke the appointment. (2) An instrument does not operate to revoke the appointment of an enduring guardian unless: (a) at the time of executing the instrument, the appointor had the legal capacity to revoke the appointment, and (b) the instrument is in or to the effect of the form prescribed by the regulations, and (c) the instrument is signed: (i) by the appointor, or (ii) if the appointor instructs - by an eligible signer who signs for the appointor in the appointor's presence, and (c1) the execution of the instrument is witnessed by an eligible witness, and (c2) the eligible witness certifies that the appointor executed the instrument voluntarily in the presence of the witness and appeared to understand the effect of the instrument, and (c3) if the instrument is signed for the appointor by an eligible signer - the eligible witness certifies that the appointor, in the witness's presence, instructed the signer to sign the instrument for the appointor, and (d) written notice of the revocation is given to the appointee. (3) Without limiting subsection (2)(c)(i), an instrument is signed by the appointor if the appointor affixes his or her mark to the instrument. (4) If an eligible signer signs an instrument on behalf of an appointor as provided by subsection (2) (c) (ii), the appointor is taken to have signed the instrument for the purposes of this Act (including subsection (2)(c2)).
5. For the purpose of s 6H(2)(b) of the Guardianship Act, the prescribed form for an instrument revoking the appointment of a person as an enduring guardian is Form 2 in Schedule 1 to the Guardianship Regulation 2016 (NSW): reg 6 of the Guardianship Regulation.
6. The Guardianship Act gives the Tribunal power to review the appointment of an enduring guardian: 6J Tribunal's review of appointment (1) The Tribunal: (a) may, on its own motion, and (b) must, at the request of any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the appointor, review the appointment (or purported appointment) of an enduring guardian. (2) Before carrying out the review, the Tribunal must cause a notice specifying the date on which, and the time and place at which, the Tribunal will carry out the review to be served on each party to the review. (3) The Tribunal may, by order, suspend the appointment (or purported appointment) of the enduring guardian until the Tribunal takes action under section 6K (1). (4) A failure to serve notice in accordance with this section does not vitiate the decision of the Tribunal on the review.
7. Section 6K lists the powers available to the Tribunal on review of the appointment of an enduring guardian: 6K Action on review (1) On reviewing the appointment of an enduring guardian, the Tribunal may: (a) revoke the appointment or deal with the matter as provided by subsection (3) (or both), or (b) confirm the appointment, with or without varying the functions of the enduring guardian under the appointment. (2) The Tribunal must not revoke the appointment of an enduring guardian unless: (a) the enduring guardian requested the revocation, or (b) the Tribunal is satisfied that it is in the best interests of the appointor that the appointment be revoked. (3) The Tribunal may, if it considers that it is in the best interests of the appointor to do so, deal with a review as if any of the following applications had been made in respect of the appointor: (a) an application for a guardianship order under Part 3, (b) an application for a financial management order under Part 3A, (c) applications for both such orders. (4) The Tribunal may confirm the appointment (or purported appointment) of a person as an enduring guardian under subsection (1) (b) even where: (a) the instrument that purported to appoint the person as an enduring guardian was not executed in accordance with the requirements of this Part, or (b) the person purporting to make the appointment announced his or her intention to make the appointment but became incapacitated before an instrument making the appointment could be executed in accordance with the requirements of this Part, (c) if the Tribunal is satisfied that the confirmation of the appointment (or purported appointment) reflects the appointment that the person making the appointment intended to make at the time it was purportedly made. (5) The confirmation of the appointment of an enduring guardian under subsection (1) (b) has effect as if an instrument of appointment had been executed in accordance with the requirements of this Part by the appointor in the terms confirmed by the Tribunal.
8. Section 14 of the Guardianship Act gives the Tribunal power to make a guardianship order in respect of a person. If satisfied that the subject person is a "person in need of a guardian", the Tribunal may exercise the discretion to make a guardianship order after taking into account the matters listed in s 14(2).
9. If the Tribunal makes a guardianship order, s 16(1)(a) of the Guardianship Act provides that the Tribunal "shall appoint a person who is of or above the age of 18 years as the guardian of the person of the person under guardianship".
10. Where, as here a continuing, not temporary guardianship order is made the Tribunal is not to appoint the Public Guardian where another person can be appointed as the guardian: s 15(3) of the Guardianship Act.
11. Before appointing a person as guardian, the Tribunal must be satisfied that the proposed person meets the criteria for appointment in s 17(1) of the Guardianship 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.
12. In exercising its functions under the Guardianship Act, the Tribunal must observe the principles listed in s 4 of that Act: 4 General principles It is the duty of everyone exercising functions under this 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.
13. The NCAT Act reinforces the obligation to have regard to the above principles. Clause 5(1) of sch 6 to that Act, 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 Guardianship Act. (See P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]-[58], ZGM v ZGN [2018] NSWCATAP 101 at [39]; ZBC v ZBD [2016] NSWCATAP 264 at [101], [105].)

The decision under appeal

1. In written reasons for its decision ("the Reasons"), after setting out the background to the initiating application and the relevant statutory provisions, the Tribunal posed for itself the question: "Should the Tribunal conduct a review of the enduring guardianship appointments dated 28 March 2019 and 18 April 2019?".
2. The Tribunal noted at [17] that in a letter dated 20 May 2019, the Subject Person's solicitor notified the Appellant of the purported revocation of his appointment as the Subject Person's attorney and enduring guardian. The Tribunal noted the Appellant's submission that, as a consequence of a "Form 2" not having been completed, the First EGA had not been validly revoked and, in addition, at the time of its purported revocation the Subject Person's capacity was "questionable": at [14]. [In these Reasons, we refer to the form prescribed by the Guardianship Act for revoking the appointment of an enduring guardian, by the shorthand term "Form 2". See para [12] above.]
3. In addition, the Tribunal noted at [18]-[19] the Respondent's contention that when the Subject Person revoked the First EGA, he had capacity to give instructions and furthermore, the lack of a Form 2 did not invalidate the Subject Person's "valid instructions" to revoke the First EGA. In addition, the Tribunal noted the Respondent's claim that the Subject Person told his solicitor, the Respondent and the Co-Enduring Guardian that he did not want the Appellant to act as his guardian.
4. Barrister, Ben Fogarty was appointed separate representative for the Subject Person. The Tribunal noted Mr Fogarty's view that when he made and later revoked the First EGA, the Subject Person's capacity was "not in issue". Mr Fogarty accepted that the First EGA appeared not to have been "validly revoked": at [20].
5. The Tribunal went on to consider the Respondent's claim that she would "not be able to work together with [the Appellant] in [the Subject Person's] best interests": at [21]. She asserted that the Clinical Incident Investigation Report prepared by Scalabrini Village, where the Subject Person resided for a couple of weeks after his discharge from hospital, revealed that the Appellant was "interfering with his uncle's care while he was residing there and had recommended that his uncle refuse medication", which had been authorised by the Respondent after consultation with geriatrician, Dr Ben Chua: at [21]. [Dr Chua had recommended that the Subject Person take Risperidone, an antipsychotic medication. The Appellant strongly opposed that recommendation.] The Tribunal went on to refer to the Appellant's claim that his views and actions in response to the Subject Person being given Risperidone, were based on "his own extensive investigations".
6. The Tribunal concluded at [22] that the Clinical Incident Investigation Report and the Respondent's affidavit evidence indicates that she and the Appellant have "very different approaches in managing [the Subject Person's] care" and it was clear that they would not be able to work together in the Subject Person's best interests to "provide the care that he now requires": at [22].
7. Noting that the First EGA may not have been "validly revoked", that there may be "two competing enduring guardianship appointments" and the appointed enduring guardians have different approaches to the management of [the Subject Person's] care and treatment, the Tribunal decided that it would be in the Subject Person's best interests to deal with the initiating application as an application for a guardianship order: at [23].
8. The Tribunal noted at [24] that everyone at the hearing agreed with that course of action.
9. After deciding that the power to make a guardianship order can and should be exercised at [33]-[43], the Tribunal went on to consider whether the two proposed guardians, the Appellant and the Respondent, satisfied the requirements of s 17 of the Guardianship Act: [44]-[63]. The Tribunal decided to appoint the Public Guardian and the Respondent as guardians for the Subject Person. We set out below the reasons for that decision.

Nature of an appeal

1. Before proceeding to consider the grounds of appeal it is necessary to make some observations about the nature of an "internal appeal" and the role of the Appeal Panel.
2. The NCAT Act gives a party a right to appeal against a decision made by the Tribunal on any question of law or, with the leave of the Appeal Panel, on any other ground: s 80(2)(b) of the NCAT Act. In determining an internal appeal, the Appeal Panel may "make such orders as it considers appropriate in light of its decision on the appeal", including those listed in s 81(1). In addition, the Appeal Panel may decide to deal with the internal appeal by way of a new hearing and permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances: s 81(2).
3. In submissions attached to the Notice of Appeal, the Appellant listed 42 grounds of appeal asserting each gave rise to a question of law. In addition, the Appellant sought leave to appeal in respect of each ground, asserting, among other things, that multiple findings of fact and conclusions reached by the Tribunal were not fair and equitable and against the weight of evidence. In addition, in detailed submissions, the Appellant listed numerous purported errors made by the Tribunal, the Respondent, the Respondent's legal representative, persons charged with the care of the Subject Person, members of the NSW Police Force and others. Further, the Appellant pointed to multiple examples of statements made by the Respondent, which he alleged were false and misleading, defamatory of him and amounted to offences under the Crimes Act 1900 (NSW) and the Guardianship Act.
4. The Appellant appears to misapprehend the role of the Appeal Panel. The role of the Appeal Panel is confined to the decision under appeal, "the internal appealable decision". Its role is not to determine, for example, whether a person has committed an offence, or if a party to the appeal has failed to comply with some statutory obligation or duty, except insofar as that might be relevant to a fact in issue in the appeal. Nor is the role of the Appeal Panel to correct an "obvious error" in the reasons for decision: s 63 of the NCAT Act.
5. Here, as a first step we must decide whether any of the stated grounds of appeal raise "a question of law": see, for example, Commissioner of Police v Mohamed [2009] NSWCA 432; B & L Linings Pty Limited v Chief Commissioner of State Revenue [2008] NSWCA 187; Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. Where, as here, the stated grounds fail to identify a question of law and the appellant is self-represented, consistent with our obligation to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicality or legal forms (s 38(3) of the NCAT Act), subject to the requirements of procedural fairness, we must consider whether a question of law is readily discernible from the stated grounds of apeal: Cominos v Di Rico [2016] NSWCATAP 5 at [13]; Khan v Kang [2014] NSWCATAP 48 at [15]; Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12].
6. In addition, we must consider whether leave should be given to the Appellant for appeal "on any other ground". In exercising that discretion, we must be satisfied that there is a "sound basis" for granting leave and that the Appellant has demonstrated more than that the Tribunal was arguably wrong in the conclusion arrived at, or that there was a bona fide challenge to an issue of fact: Collins v Urban [2014] NSWCATAP 17 ("Collins") at [84]. In Collins, the Appeal Panel at [84] stated that "ordinarily it will only be appropriate to grant leave to appeal in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." (Citations omitted)
7. Applying the above principles we identify four grounds of appeal: 1. Whether, in exercising its power to review the first EGA, the Tribunal was obliged to determine whether the Appellant's appointment as enduring guardian had been validly revoked. 2. Whether the Tribunal failed to afford the Appellant procedural fairness by proceeding to make a guardianship order. 3. Whether the finding made by the Tribunal that the Appellant was not able to exercise the functions conferred by the guardianship order, was against the weight of evidence and/or was not fair and equitable. 4. Whether the finding made by the Tribunal that the Respondent was able to exercise the functions conferred by the proposed guardianship order was against the weight of evidence and/or was not fair and equitable.
8. Grounds 1 and 2 raise questions of law. Leave is required for Grounds 3 and 4.

Ground 1: In exercising its power to review the First EGA, was the Tribunal obliged to determine whether the Appellant's appointment as enduring guardian had been validly revoked?

1. The Appellant contends that the Tribunal erred by failing to exercise the power to confirm the First EGA and to determine whether its purported revocation complied with the requirements of s 6H of the Guardianship Act. He asserts that the purported revocation was invalid for several reasons. First, it was not in the form prescribed by the Guardianship Regulation; second, when purportedly revoked the Subject Person lacked legal capacity; third, the purported revocation was made in the absence of the Subject Person's attorneys, himself and the Co-Enduring Guardian; fourth, the purported revocation was prepared in the context of the Subject Person purporting to amend his will in a manner favourable to the Respondent.
2. The Respondent submits that the Tribunal was entitled, as it did, to treat the initiating application as an application for a guardianship order.

Consideration

1. In the initiating application, "Review of an enduring guardianship appointment", in answer to the question, "Why do you think a review of the enduring guardianship appointment is needed", the Appellant wrote: To assume my duties as enduring guardian. My justification for this is I have no evidence this has been revoked and the Current guardian will not allow me to visit and/or communicate with my Uncle. This occurred after [the Subject Person] reported to me that [the Respondent] had stolen $6000 from him and I reported this to [Co-Enduring Guardian], the NSW Police and His Bank that statement.
2. Under the heading "What orders do you think the Tribunal should make?", the Appellant ticked the box "confirm the appointment". As set out above, after noting the circumstances surrounding the making of the First EGA and the Second EGA, the purported revocation of the former and the decisions surrounding the Subject Person's care and treatment since May 2019, the Tribunal concluded at [23] that it would be in the Subject Person's "best interests" to deal with the initiating application as a guardianship application.
3. Where, as here, a request is made by a person "who in the opinion of the Tribunal, has a genuine concern for the welfare of the appointor" the Tribunal must review the appointment (or purported appointment) of an enduring guardian: s 6J(1)(b) of the Guardianship Act. Section 6K of that Act, which is set out in full at [14] above, lists the powers available to the Tribunal on review. These include the power to revoke or confirm the subject appointment: s 6K(1). Alternatively, if the Tribunal "considers that it is in the best interests of the appointor to do so", it can treat the review as an application for a guardianship order under Part 3: s 6K(3). A guardianship order made pursuant to s 6K(3) operates to suspend, for the duration of the order, all authority of the enduring guardian to exercise a function under the appointment: s 6I.
4. This ground of appeal rests on the flawed premise that because, in the initiating application, the Appellant requested the Tribunal to confirm the First EGA, the Tribunal was obliged to first decide whether to confirm, or not to confirm that appointment. Once the power to review the appointment (or purported appointment) of an enduring guardian is enlivened by a request of a person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the appointor (s 6J(2)), the Tribunal may make several types of orders, which include to treat the review as an application for a guardianship order, "if it considers that it is in the best interests of the appointor to do so": s 6K(3). There is nothing in the text or context of s 6J or s 6K to suggest that once seized of the power to review the appointment of an enduring guardian, the Tribunal must first decide whether to make the order sought by the person who requested the review.
5. Being satisfied that it was the in best interests of the Subject Person to do so, it was open to the Tribunal to decide to treat the review as an application for a guardianship order. There was an evident and intelligible justification for that decision. No error of law is disclosed.
6. This ground of appeal is rejected.

Ground 2: Did the Tribunal fail to afford the Appellant procedural fairness by proceeding to make a guardianship order?

1. The Appellant contends that in deciding to exercise the power to treat the review as an application for a guardianship order, the Tribunal failed to afford him procedural fairness. He acknowledges that he stated at the hearing that he the Tribunal's proposal to treat the initiating application as an application for a guardianship order but stated that he did not fully appreciate the consequences of that decision, specifically that there was a possibility that he would not be appointed as guardian for the Subject Person. He submits that by deciding not to resolve the "key issue" of whether the First EGA had been validly revoked, the Tribunal threw him a "curve ball".

Consideration

1. The Tribunal was obliged to afford all parties procedural fairness: s 38(2) of the NCAT Act. Among other things, the Tribunal was required to take such measures as are "reasonably practicable" to ensure that that the parties understand the nature of the proceedings (s 38(5)(a) of the NCAT Act), and, if requested to do so, to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings (s 38(5)(b) of the NCAT Act).
2. Central to this ground is the assertion that the Tribunal failed to discharge its obligation to explain to the Appellant the consequences of its decision to proceed to treat the review as an application for a guardianship order, and, as a consequence, it failed to discharge its obligations under s 38(5) of the NCAT Act.
3. The transcript of the hearing before the Tribunal reveals that the Tribunal explained that it was considering treating the review as an application for a guardianship order and invited the parties to comment on that proposal (at pp 63, 64): Presiding Member: Thank you. Um, since, [the Appellant] - one of the powers that we have is to treat an application for the open enduring guardianship appointment, as an application for a guardianship appointment, what's your view about that? Appellant: Um, I don't know, to some extent, I'd like, you know, to be the guardian. In fact, I'm happy to share those duties and what it's worth. Um, but if you believe that we should do a review of guardianship and appoint somebody... Presiding Member: Well, what would happen is we wouldn't give you the enduring guardianship appointments. We've moved straight to treating them as an application for the appointment of a guardian... Appellant: Yes. Presiding Member: And you would have an opportunity to make submissions as to who the guardian should be. Are you satisfied that that's an appropriate way to go? Appellant: I think, I can understand that position altogether, yeah. Presiding Member: Because if the revocation is ambiguous it means that there's two quite different, um, enduring guardianship appointments on foot at the same time. Appellant: Yeah, I. Presiding Member: So, shall we proceed on that basis. Respondent's Legal representative: I think we should. Appellant: Yeah. Presiding Member: So, in relation to guardianship [Appellant], what the Tribunal has to be satisfied of is that [the Subject Person] has a disability, which affects his decision-making capacity. If we find that that's the case, we then have to consider whether there's a need for a guardianship order. And if there is a need, we have to consider what - who the guardian should be the public guardian or a private guardian. And the decision-making functions that a guardian has, and they're concerned with lifestyle. Appellant: Yes. Presiding Member: and the initial guardianship order usually runs for twelve months and then it's reviewed. And guardianship orders can then be made for three or five years subsequently, usually for three years. The Appellant: Yes. Yeah, I agree. Presiding Member: And our focus is on what's [the Subject Person's] best interest is. The Appellant: And that's more rational.
4. Later, the Tribunal invited each party to comment on who should be appointed guardian (Transcript of proceedings pp 95-106).
5. The above extract of the transcript of the hearing, reveals that the Tribunal not only explained the consequences of treating the initiating application as an application for a guardianship order but invited the parties to comment on its proposal to do so. Even if accepted that the Appellant failed to understand the import of that proposed course, it does not follow that the Tribunal failed to comply with its obligation under s 38(5) of the NCAT Act. That obligation required the Tribunal to take such measures as are "reasonably practicable" to ensure that the parties understand the nature of the proceedings and, if requested to do so, to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal. In our view, the steps taken by the Tribunal to explain the proposed course to the parties not only met but exceeded that obligation.
6. In any event, we note that the documents filed in support of the initiating application reveal that the Appellant stated he was aware that the Tribunal could proceed to determine whether to make a guardianship order. In a detailed document headed "NCAT matter 2019/00229516", under the heading, "part 4 if the tribunal decides no instrument signed 2019 are valid", the Appellant requested the Tribunal to appoint him as the Subject Person's guardian and attorney and provided detailed arguments in support.
7. This ground of appeal fails.

Ground 3: Was the finding made by the Tribunal that the Appellant was not able to exercise the functions conferred by the guardianship order, against the weight of evidence or not fair and equitable?

1. The Appellant contends that the finding made by the Tribunal that he was not able to act as the Subject Person's guardian was both against the weight of evidence and not fair and equitable. The Respondent disagrees.

Reasons given for finding that the Appellant was not able to exercise the function(s) conferred under the guardianship order

1. The Tribunal concluded at [61] that the Appellant satisfied the requirements of para (a) and (b) of s 17(1) of the Guardianship Act. However, with respect to s 17(1)(c) (able and willing to exercise the functions conferred or imposed by the proposed guardianship order), while satisfied that the Appellant was willing to exercise the functions conferred under the guardianship order, the Tribunal was not satisfied that he was able to do so.
2. The Tribunal reasoned at [56]-[60]: Firstly, the Tribunal accepts [the Appellant's] evidence that he wishes to promote his uncle's best interests. His efforts to intensively research medication and to monitor the level of care given to his uncle are motivated by his passion to protect the rights of vulnerable persons. However his obsessive and, at times, overbearing nature, his inability to be able to negotiate with staff members of the facilities in which his uncle has lived and his inability to consider alternative viewpoints have brought him into serious conflict with persons involved with his uncle and created problems for [the Subject Person]. The material supplied for the current application before the Tribunal showed that [the Appellant] had inundated the current facility and [the Respondent] solicitor with multiple texts, phone calls and emails. His attention to detail does not allow [the Appellant] to consider the larger picture and understand the effect of his actions on [the Subject Person's] best interests and welfare. The Scalabrini Clinical Incident Investigation Report noted in June 2019 that [the Appellant] was very demanding and intrusive about his uncle's care and had threatened to report elder abuse from the staff. He wanted the use of risperidone ceased. At the time [the Subject Person] was reporting to the nursing staff that [the Appellant] had told him not to take his tablets. Police were called to the facility because of an escalation in [the Appellant's] difficult behaviours and an agreement was reached that [the Subject Person] needed to settle in the facility without any visits from [the Appellant] or [the Respondent]. An entry on 25 June 2019 stated that the leadership team were very aware of the impact of [the Appellant's] behaviour on [the Subject Person's] care; and staff reported feeling threatened by him. The Director of Scalabrini Village asked [the Respondent] to find alternative accommodation for [the Subject Person] because the staff found [the Appellant] to be too disruptive and rude; and he upset other residents. As a result of an incident at Scalabrini Village on 26 June 2019, Senior Constable Lorraine Yates applied for an apprehended domestic violence order protecting [the Subject Person] from [the Appellant]. A provisional order was made which was subsequently revoked on 8 January 2020 when one of the staff members at the Scalabrini Village declined to provide evidence. At the request of [the Respondent] and on the advice of Senior Constable Fraietta from Dee Why Police, [the Appellant] has been banned by Mr Jonathan Gavshon, the Co-CEO of Group Homes Australia who manages the home in which [the Subject Person] currently lives. Although [the Respondent] is permitted to visit for visits lasting no longer than 30 to 45 minutes, she is not allowed to have [the Subject Person] contact [the Appellant] by phone. Mr Gavshon also noted that [the Appellant's] current approaches in sending multiple emails each day and phone calls to members of the team is not acceptable and he was asked to cease doing so immediately. The Tribunal found that to ensure that the subject person receives appropriate care, the guardian must develop a meaningful, respectful and ongoing relationship with the care providers and treating team. Unfortunately [the Appellant's] difficult behaviours have caused him to be excluded from Scalabrini Village and his uncle's current accommodation and resulted in the imposition of a provisional apprehended violence order against him. In these circumstances the Tribunal could not be satisfied that he is able to exercise the functions of the order in a manner compatible with ensuring that [the Subject Person] receives a high level of care.

Appellant's submissions

1. In support of the contention that the finding that he was not able to act as the Subject Person's guardian was against the weight of evidence and not fair and equitable, the Appellant provided a commentary on, among other things, the claims made by the Respondent and staff of the aged care facilities in which the Subject Person had resided, about him. Among other things, he contended that in reaching that finding: 1. The Tribunal failed to give sufficient weight to the evidence that the Subject Person was not happy with being placed in residential aged care and had attempted to abscond on several occasions. 2. The Tribunal failed to give sufficient weight to his evidence, which he asserted established that the care provided to the Subject Person was of poor quality, and the Subject Person was frequently observed, to be soiled, to have sustained injuries and to be heavily sedated, among other things. 3. There was a proper basis for the concerns he expressed about the Subject Person being given Risperidone. In raising those concerns he was voicing the concerns expressed by Subject Person and advocating on his behalf. 4. The current Royal Commission into Aged Care Quality and Safety reveals that aged care providers commonly label people, such as himself, who advocate on behalf of residents as "difficult". 5. The Tribunal incorrectly stated that he was "banned" from the group home in which the Subject Person currently resides as stated by the Tribunal at [59]. Rather, he asserts he voluntarily complied with a "no visitor" request made by the home's manager, to enable the Subject Person to be observed for a two week period without potential outside influence. 6. The Tribunal failed to give sufficient weight to the evidence of his solid employment history which supports his contention that he was capable of discharging the functions of guardian.

Consideration

1. The reasons given by the Tribunal that the Appellant was not able to exercise the function of guardian are largely contained in [56]-[60] of the Reasons, which is set out at [56] above. In summary, while the Tribunal accepted that the Appellant "wishes to promote his uncle's best interests", it found that he was not likely to be able to do so because of the Appellant's:

• obsessive and, at times overbearing nature;
• inability to be able to negotiate with staff members of the facilities in which his uncle has lived;
• inability to consider alternative viewpoints [which] have brought him into serious conflict with persons involved with his uncle; and
• inability to consider the larger picture and understand the effect of his actions on the Subject Person's best interests and welfare.

1. The Tribunal considered that to ensure that "the subject person receives appropriate care, the guardian must develop a meaningful, respectful and ongoing relationship with the care providers and treating team". Referring at [58] to the "difficult behaviours" which caused the Appellant to be excluded from his uncle's current place of residence and Scalabrini Village, which resulted in the imposition of a provisional apprehended violence order, the Tribunal concluded that it could not be satisfied that he is able to exercise the functions of guardian in a manner compatible with ensuring that the Subject Person receives a high level of care.
2. A decision will be "against the weight of evidence" where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable tribunal member could reach: Collins at [77]. Applying that definition we reject the contention that the impugned finding was against the weight of evidence.
3. The Tribunal had before it objective evidence of the history of the Appellant being unable to deal with people charged with the care of the Subject Person since mid-2019. Those dealings had resulted in police intervention, a provisional apprehended violence order being issued and the appellant not being permitted to visit the Subject Person at two of the four aged-care facilities where he has resided since mid-2019. Whether, as asserted by the Appellant, there were shortcomings in the care provided to the Subject Person or actions taken by the Police and care providers, is not to the point. Unremarkably, the Tribunal took the view that a guardian must have be able to "develop a meaningful, respectful and ongoing relationship with the care providers and treating team". It concluded that notwithstanding the Appellant's many positive qualities and attributes, including a history of demonstrated genuine concern for the Subject Person, he lacked the ability to exercise the functions conferred by the guardianship order. That finding was open to the Tribunal on the available evidence.
4. We are not persuaded that the impugned finding was against the weight of evidence or was not fair and equitable. The Appellant has failed to establish a "sound basis" for granting leave under s 80(2)(b) of the NCAT Act. Leave to appeal is refused.

Ground 4: Was the finding made by the Tribunal that the Respondent was able to exercise the functions conferred by the proposed guardianship order against the weight of evidence and not fair and equitable?

1. For the purpose of this appeal, the Appellant prepared a document, headed "Assessment of Compliance", in which he assessed the performance of the Respondent acting in her purported role as Enduring Guardian in the period mid-2019 to March 2020. Using a scale of "satisfactory" to "not achieved", the Appellant rated the Respondent's performance in respect of each of the s 4 principles of the Guardianship Act. He rated the Respondent's performance as "not achieved". Among other things, the Appellant contended that from mid-2019 to March 2020:

• the care of his uncle had been neglected, pointing to among other things, evidence of alleged unmet dental needs and the decision by the Respondent to authorise Risperidone being prescribed to the Subject Person;
• his uncle was not encouraged to be self-reliant, as evidenced by the Respondent's rejection of the Appellant's proposal that the be cared for in his own home or at least in the suburb where he had been living when admitted to hospital in May 2019;
• his uncle was "socially isolated" as a result of being moved away from family and friends and family members being prevented from visiting him.

1. The Respondent rejects the contention that she was not able to discharge the functions of guardian.

Consideration

1. The Tribunal found that the Respondent satisfied para (a) and (b) of s 17(1). With respect to para (c) of s 17(1) the Tribunal found that, except in relation to the access function, the Respondent was able and willing to exercise the functions conferred under the guardianship order, that is to make decisions about accommodation, health care, services, and to consent to medical treatment: [63]. Noting "the difficulties" between the Appellant and the Respondent and the Respondent's acknowledgement that she would not be able to work with the Appellant, the Tribunal decided that the Public Guardian should be appointed as guardian with the power to make decisions about access: at [63].
2. Referring to its findings at [60] that "to ensure that the subject person receives appropriate care, the guardian must develop a meaningful, respectful and ongoing relationship with the care providers and treating team", the Tribunal found that the Respondent would be able to do so, reasoning at [61]-[62]: By contrast, [the Respondent] has consulted with doctors and care professionals to respond to [the Subject Person's] needs and to move him to appropriate accommodation. She has made decisions about medication on the basis of medical advice and decisions in relation to [the Appellant's] contact based on his past performance at the previous aged care facilities in which [the Subject Person] was living. The Tribunal is satisfied that she meets all of the requirements of subsection 17(1) of the Guardianship Act as she has demonstrated that she is able and willing to exercise the functions of the guardianship order. The appointment of [the Respondent] as [the Subject Person's] guardian reflects [the Subject Person's] wishes about who should make decisions for him.
3. The Appellant apparently holds the genuine view that many decisions made by the Respondent on behalf of the Subject Person were contrary to the Subject Person's best interests and that the Respondent is not able to discharge the functions conferred by the guardianship order in a manner consistent with the s 4 principles. Whether different or better decisions could and should have been made on behalf of the Subject Person is a matter about which reasonable minds may differ. Nonetheless, there was ample material before the Tribunal to support a finding that the Respondent was able to make decisions on behalf of the Subject Person in relation to accommodation and health care and to consent to medical and dental treatment in conformity with the s 4 principles. There was an intelligible and evident basis for that finding. In our view that finding could not be described as one that no reasonable tribunal member could reach.
4. The Appellant has failed to establish that the finding made by the Tribunal that the Respondent is able to discharge the function of the guardianship order is against the weight or evidence or is not fair and equitable.
5. Leave to appeal is refused.

Orders 1. The appeal is dismissed. 2. Leave to appeal is refused.

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

Amendments 04 March 2021 - Paragraph 2, typographical error corrected 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: 04 March 2021