ZZD v ZZE; ZZX v ZZY

NCAT Appeal Panel|2022-10-11|Before: Dr J

strative Tribunal Jurisdiction: Guardianship Division Citation: N/A Date of Decision: 19 May 2022

15 June 2022 Before: J Toohey, Senior Member (Legal) L Houlahan, Senior Member (Professional) RM Fela, General Member (Community)

C Steer, Senior Member (Legal) Dr J Law, Senior Member (Professional) S Bullock, General Member (Community) File Number(s): 2022/00063077 - 002 Review of an Enduring Guardianship Appointment

Publication of names of people involved in the appeal

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: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), ss 65(1)(a) and 65(2). Being an official report of the appeal proceedings, that prohibition does not apply to these reasons: NCAT Act, s 65(3). Nonetheless, because of the sensitive nature of the matters discussed in these reasons, we will not refer to the parties by name.
In appeal 2022/00192765, the Registrar assigned the following pseudonyms to the parties: 1. "ZZD", the Appellant; and 2. "ZZE", the person the subject of the guardianship order.
In appeal 2022/00251312, the Registrar assigned the following pseudonyms to the parties: 1. "ZZX", the Appellant and an attorney under the enduring power of attorney under review; 2. "ZZY", the grantor of the enduring power of attorney under review and person the subject of the financial management order; and 3. "ZZZ", the other attorney (apart from the Appellant) under the enduring power of attorney under review.
For ease of reading in these reasons we will refer to: 1. ZZD/ZZX as the "Appellant"; 2. ZZE/ZZY as the "Aunt"; and 3. ZZZ as the "Cousin".

Background

The Aunt is 83 years old and at the time at which the decisions on appeal were made was an in-patient at *** Hospital. She previously lived in her own home in the Illawarra but is now a permanent resident at an aged care facility in southern Sydney. She had a long career as a nurse and diabetes educator. She is unmarried and has no children, but has two nephews, the Appellant and his brother, whom she substantially brought up from an early age. She also has a cousin, the Cousin.
On 16 April 2021, the Aunt: 1. Entered into an enduring guardianship appointment under which she appointed the Appellant and the Cousin jointly and severally as her enduring guardians; and 2. Entered into an enduring power of attorney, under which she appointed the Appellant and the Cousin jointly and severally as her attorneys.
Reports provided to the Tribunal indicated that she was admitted to hospital on nine occasions between February 2020 and February 2022: 1. On two occasions she was admitted to ### Hospital's intensive care unit with severe diabetic ketoacidosis; 2. Four presentations were as the result of episodes of hypoglycaemia or hyperglycaemia; 3. Two presentations were consequent upon falls; and 4. One presentation was for bradycardia.
On 4 March 2022, Illawarra Shoalhaven Local Health District lodged applications with the Tribunal's Guardianship Division seeking: 1. A review of the enduring guardianship appointment, its revocation, and the appointment of the Public Guardian as the Aunt's guardian to make decisions about her accommodation, service support, health care and medical and dental treatment; and 2. A review of the enduring power of attorney, its revocation, and the appointment of NSW Trustee & Guardian as the Aunt's financial manager.
On 14 April 2022, the Tribunal ordered that the Aunt be separately represented. Ms M O'Kane, solicitor, was subsequently engaged as separate representative.
On 19 May 2022, the Tribunal: 1. Adjourned the review of the enduring power of attorney; 2. Proceeded to review the enduring guardianship appointment; 3. Decided that it was in the Aunt's best interests to treat the application for review as one seeking for the appointment of a guardian under the Guardianship Act 1987; 4. Found that: 1. the Aunt had dementia as a result of which she was a person for whom the Tribunal could make a guardianship order; and 2. She was in consequence unable to make informed and reasoned decisions concerning her accommodation and service support; 1. Found that the Appellant and the Cousin had formed the view that the Aunt should return home on discharge from hospital, and were thus unlikely to make an independent and objective decision based on all the available information; and 2. Decided therefore to make a guardianship order for the Aunt, appointing the Public Guardian as her guardian for 6 months, to make decisions for her about accommodation and service support, and automatically suspending the operation of the enduring guardianship appointment for the term of the guardianship order under section 6I of the Guardianship Act 1987.
On 15 June 2022, the Tribunal: 1. Heard the application to review the enduring power of attorney; 2. Decided under section 36(1) of the Powers of Attorney Act 2003 to carry out a review of the enduring power of attorney; 3. Upon reviewing the enduring power of attorney, decided under section 36(2) of the Powers of Attorney Act 2003 not to make an order under section 36, but rather to treat the application for review as one for a financial management order; 4. Found that: 1. The Aunt was incapable of managing her finances; and 2. The Aunt's move into an aged care facility will require significant financial decisions, but that there was a risk that these will not be made under the enduring power of attorney; 1. Decided therefore to make a financial management order for the Aunt, appointing NSW Trustee & Guardian as her financial manager for 6 months , and automatically suspending the operation of the enduring power of attorney for the term of the financial management order under section 50 of the Powers of Attorney Act 2003.
On 7 July 2022, the Tribunal received a Notice of Appeal from the Appellant in relation to the decision to make a guardianship order for the Aunt.
On 11 July 2022, the Tribunal received a Notice of Appeal from the Appellant in relation to the decision to make a financial management order for the Aunt.
On 29 July 2022, the Public Guardian provided its Reply to Appeal, informing the Tribunal that it did not intend to participate actively in the appeal.
On 17 August 2022, the Tribunal received a Reply to Appeal from Illawarra Shoalhaven Local Health District in connection with the appeal against the guardianship order.
On 24 August 2022, the Tribunal made certain procedural directions, including relevantly that both appeals be heard together and for the provision of submission and evidence provided at first instance.
On 31 August 2022, NSW Trustee & Guardian informed the Tribunal that it did not intend to participate actively in the appeal.
On 7 September 2022, the Tribunal received a Reply to Appeal from Illawarra Shoalhaven Local Health District in connection with the appeal against the financial management order.
On 27 September 2022, the Tribunal received from the Appellant: 1. A copy of both sets of reasons for decisions with certain annotations on them; the Tribunal takes these to be submission by the Appellant; and 2. Copies of certain evidence provided by the Appellant at first instance.
On 5 October 2022, the Tribunal received: 1. Written submission for Illawarra Shoalhaven Local Health District; and 2. A bundle of documents comprising evidence provided at first instance.

Scope and nature of internal appeals

Internal appeals may be made as of right on questions of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) NCAT Act; .
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
A differently constituted Appeal Panel has recognised in Cominos v Di Rico [2016] NSWCATAP 5 at [13] that, in the case of appeals by self-represented appellants, a pragmatic approach should be taken in identifying the basis of appeal: [13] It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.'

Submissions and evidence

In deciding the appeal, we have had regard to the following: 1. The Notices of Appeal referred to above; 2. The Replies to Appeal referred to above; 3. The Appellant's written submissions filed and the accompanying first instance evidence referred to above; 4. Illawarra Shoalhaven Local Health District's written submissions and the accompanying bundle of evidence referred to above; and 5. The oral submissions made by and on behalf of the parties at the appeal hearing.

Notices of Appeal

In its Replies to Appeal, Illawarra Shoalhaven Local Health District notes that the appeals may have been lodged out of time but does not object to the Tribunal extending time accordingly.
Under rule 24(5)(c) of the Civil and Administrative Tribunal Rules 2014, an appeal must be lodged within 28 days after the Appellant is notified of the decision or given reasons for decision.
In view of: 1. The concession by Illawarra Shoalhaven Local Health District set out above; 2. The uncertainty surrounding the precise time from which the 28-day period should run; and 3. The relatively brevity of any delay by the Appellant, the Appeal Panel decided to extend the periods for lodging the appeals as follows: 1. In the case of appeal 2022/00192765, to 7 July 2022; and 2. In that of appeal 2022/00251312, to 11 July 2022.

Grounds of Appeal - Guardianship appeal

We have had regard to the notice of appeal signed by the appellant.
The Appellant's Grounds of Appeal raise a wide range of considerations, which do not necessarily conform to the structure or strict logic of appellate proceedings in the Tribunal as set out above. The Appeal Panel attempted, consistently with the approach approved in Cominos v Di Rico [2016] NSWCATAP 5, to identify in conjunction with him the essence of the Appellant's concerns.
This process crystallised the issue as follows. The Appellant accepted the Tribunal's findings that the Aunt was a person in need of a guardian, that a guardianship order should be made and that the guardian's functions should cover decisions about accommodation and services. Rather, his argument was that the Tribunal at first instance: 1. concluded incorrectly that the Appellant would not be able to make the necessary care decisions, specifically concerning the Aunt's discharge destination from hospital, with appropriate independence and objectivity; and 2. in doing so, failed to take proper account of the care plan for the Aunt and other evidence provided by him as to his intentions for the Aunt's care and accommodation.

Reply to Appeal - guardianship appeal

We have had regard to Illawarra Shoalhaven Local Health District's reply to appeal filed on 17 August 2022.

Consideration - guardianship appeal

At the hearing of the appeal the parties supplemented their written submissions with oral submissions.
Whether the grounds of appeal, as reformulated above, are characterised either: 1. as alleging an error of law, or 2. as seeking leave to appeal, the Appeal Panel was unconvinced by the Appellant's arguments.
In its reasons, the Tribunal observes at [74] that: [74] We have no doubt that [the Appellant] and [the Cousin] have [the Aunt's] best interests at heart. However, we are not satisfied that [the Appellant] in particular fully appreciates the seriousness of the risk to her if she returns home, what would be required of him as full-time carer, and the services and supports that might be available to her at home.
It then refers: 1. At [75], to the Aunt's successive discharges, and repeated readmissions to hospital when her diabetes was not managed; 2. At [77], to the suitability of the care plan devised by the Appellant for the Aunt, if in fact it can be implemented, and at [76] to the practical difficulties identified by her treating team in implementing certain central elements of the care plan devised by the Appellant; and 3. At [78], to its not being "... persuaded that [the Appellant] or [the Cousin], both of whom appear to have decided she should return home, will make an independent and objective decision based on all the available information", and then concludes that the Public Guardian is the appropriate appointee.
It is quite clear from the reasons that the Tribunal considered: 1. The Appellant's care plan and other proposals for the Aunt's accommodation and care following her discharge from hospital, and 2. In accordance with section 17 of the Guardianship Act 1987, the Appellant's ability to exercise the relevant functions in accordance with the general principles of the guardianship legislation set out in section 4 of that Act, namely by giving paramountcy to the Aunt's welfare and interests.
In doing so it concluded that his proposal for her accommodation and care, when compared with the advice of the treating team, was less conducive to the Aunt's welfare and interests, and that his own strong personal commitment to the implementation of his proposal rendered him unable to have due regard to the treating team's countervailing concerns. It therefore decided to appoint the Public Guardian as the Aunt's guardian, as being more likely to approach the relevant decisions in a more objective way than would the Appellant since it was unencumbered by the Appellant's preconceptions concerning the Aunt's interests and welfare.
There is nothing in either the Tribunal's reasons or their summary of the evidence to suggest any significant flaw in the Tribunal's findings or conclusion. This was underlined for the Appeal Panel by the Appellant's observation during the hearing, that "For her to go home was my intention at the time of the hearing".
Hence there is no basis to discern either an error of law on the part of the Tribunal. Accordingly, the Tribunal dismisses the appeal against the guardianship order for the Aunt.

Grounds of Appeal - financial management appeal

We have had regard to the notice of appeal signed by the Appellant.
The Appellant's Grounds of Appeal raise essentially one issue, which the Appeal Panel articulates below in accordance with Cominos v Di Rico [2016] NSWCATAP 5: that in identifying a potential conflict of interest for the Appellant in acting as the Aunt's financial manager, and in consequence appointing NSW Trustee and Guardian as financial manager in preference to himself, the Tribunal erred in law because there was no evidence to support that conclusion.

Reply to Appeal - financial management appeal

We have had regard to Illawarra Shoalhaven Local Health District's reply to appeal filed on 7 September 2022.

Consideration - financial management appeal

At the hearing of the appeal the parties supplemented their written submissions with oral submissions.
There were five stages in the Tribunal's reasoning'
The first was its decision under section 36 of the Powers of Attorney Act 2003 to conduct a review of the relevant power of attorney. This, as Slattery J observed in In Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 at [80] involves a preliminary question which does not require a complete review: On an application for s 36 review such as this the Court must first exercise a discretion under Powers of Attorney Act, s 36(1) to decide whether or not to conduct a s 36 review. In my view the Court does not have to conduct a full review of all documents associated with the operation of the subject power of attorney to do this. Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review. In the circumstances of this case the Court can glean sufficient information to exercise the s 36(1) discretion by undertaking a general survey of what... [a party]...has produced.
The Tribunal undertook such a preliminary review, and decided to proceed with a full review, because of concerns that the Appellant might be subject to a conflict between his personal interests and his duties as the Aunt's attorney in considering any proposal that she enter an aged care facility as a permanent resident. The bases for these concerns are set out at [71] of the Tribunal's reasons, and were threefold: 1. The Appellant continued to hold the view that the Aunt could be safely cared for at home; 2. If she were to become a permanent resident in an aged care facility, he would no longer be paid the carer's allowance; and 3. If she were to make such a move, her home would need to be sold in order to fund it, thus requiring him to find somewhere to live and potentially devaluing his expected future inheritance from the Aunt.
The second stage was the Tribunal's conclusion to proceed under section 37 of the Powers of Attorney Act 2003, by treating the application as one for a financial management order. It based this decision, too, on the perceived risk of a conflict for the Appellant between his personal interests and his duties as attorney. This is set out at paragraphs [78] to [81] of its reasons. The Appellant says that there was no evidence to support this conclusion, since he had provided evidence that: 1. he was employed full-time by a crane company in southern Sydney, and thus that he was not dependent at all on receiving the carer's allowance; 2. he was not dependent on the Aunt's continuing occupation of her home for his own accommodation; and 3. he was staying at the Aunt's house in order better to help with her care and support, not because he lacked other acceptable accommodation options.
The third stage was its conclusion, set out in paragraph [94] of its reasons, that the Aunt is incapable of managing her affairs because of her dementia. There was no controversy as to this conclusion.
The fourth stage was the Tribunal's conclusion at paragraph [98], that without the appointment of a financial manager for the Aunt "... there is a risk that her aged care fees will not be paid, or that the arrangements for payment will not be in her best interests". Inherent in this is a conclusion that, if the Aunt's guardian decided that she should enter an aged care facility, there was a real risk that Appellant as her enduring attorney might impede implementation of that decision through his control of her property and financial affairs.
The fifth stage is the conclusion at paragraph [107] of the reasons, that ".. Because of the potential for a perceived conflict of interest, set out above, we decided that [the Appellant] was not a suitable person to be appointed as the financial manager" . Inherent in this conclusion are two findings: 1. First, the finding referred to at paragraph [47] above, that the Appellant's ability to perform satisfactorily his duties as financial manager would potentially be impaired by the financial considerations set out at paragraph [71] of the Tribunal's reasons; and 2. Secondly, the finding referred to at paragraph [49] above, that the Appellant might use his position as financial manager, if so appointed, or as enduring attorney to impede the implementation of an accommodation decision for the Aunt made by her guardian with which he disagreed.
The Appeal Panel was not satisfied that the crucial conclusions at first instance, which are summarised in paragraph [50] above, were supported by the evidence available to the Tribunal: 1. That the Appellant would no longer be able to occupy the Aunt's house if it were sold in order to fund her aged care accommodation was uncontroversial. However, the Tribunal's reasons record at paragraph [64] that the Appellant faced that prospect with equanimity, observing that if the property were sold he would return to Sydney where work opportunities were greater and that he was only staying at the property to look after it for the Aunt and, if need be, to undertake a little cosmetic work needed to freshen it up for sale. Nowhere is there any consideration of this evidence, or any balancing of the Appellant's evidence against the theoretical conflict. 2. That the Appellant would lose the carer's allowance if she moves into aged care, or that the sale of her home might adversely affect the value of his expectancy under her will, were both uncontroversial. The reasons indicate at paragraph [66] that the Appellant approached this prospect too with equanimity. Nowhere, however, is there any consideration of the Appellant's other financial resources or sources of income so that the Tribunal considered only one side of the Appellant's personal financial ledger, rather than its totality. 3. That the Appellant might through his control of the Aunt's financial affairs impede the implementation of accommodation decisions made by her guardian is unsupported by any evidence recorded in the Tribunal's reasons. Nor is there any record of the proposition having been put to the Appellant for comment. Indeed, the other enduring attorney, the Cousin, expressed a view which is recorded at paragraph [56]: "[The Cousin] said that he expects the aged care fees will get paid because [the Appellant] will want to look after [the Aunt's] interests". The Tribunal's findings appear to be based on surmise only, that because: 1. The Appellant was opposed to the Aunt's entering into aged care, and 2. His control of her financial affairs would put him in a position to do so, there was an appreciable risk that he might seek to impede the implementation of accommodation decisions taken by the Aunt's guardian.
In the Appeal Panel's view, for the reasons outlined above the Tribunal erred in law in reaching these conclusions, and accordingly the appeal against the financial management order is allowed.
The Appeal Panel notes that the statutory review of the guardianship order is scheduled for 23 November 2022. Ideally, the Guardianship Division's reconsideration of the financial management order can take place at the same time as the review of the guardianship order. The Guardianship Division may wish to make such directions as it considers appropriate for the provision of further evidence in connection with the reconsideration of the financial management order.

Orders

The Appeal Panel orders that: 1. The appeal in 2022/00192765 is dismissed; 2. The appeal in 2022/00251312 is allowed; and 3. The application 2022/00063077 for the review of the enduring power of attorney dated 16 April 2021 granted by the Aunt is remitted to the Guardianship Division for reconsideration.

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: 14 November 2022

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Judgment (17 paragraphs)

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Cases Cited (7)