NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NNX [2020] NSWCATGD 34 Hearing dates: 25 June 2020 Date of orders: 25 June 2020 Decision date: 25 June 2020 Jurisdiction: Guardianship Division Before: A D Suthers, Principal Member Dr B Chenoweth, Senior Member (Professional) S Bullock, General Member (Community) Decision: The application for the appointment of a guardian is dismissed after hearing. Catchwords: GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – presumption of capacity not rebutted – subject person at least partially incapable of managing their person because of disability – whether a guardianship order should be made - allegations of undue influence – family conflict – increased services being received – informal supports being accepted – no benefit of guardianship to family relations – guardianship unnecessary to protect subject person from abuse, neglect or exploitation – subject person's welfare and interests not promoted by the appointment of a guardian – application dismissed. Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(1)-(2) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: 001: Guardianship Application NNX (the person) QZX (applicant) CAQ (carer) PNX (enduring guardian) BHX (enduring guardian) NSW Public Guardian Representation: Nil File Number(s): NCAT 2020/00120057 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65. REASONS FOR DECISION What the Tribunal decided 1. The Tribunal dismissed the application for the appointment of a guardian for NNX. Background 1. NNX is 87 years old and at the time of the hearing was transitioning back to residing in her own property after recent disruptions to her life caused by difficulties with her health. 2. NNX has recently been hospitalised at a private hospital, following admission to a public hospital, and then had a subsequent period residing at an aged care facility. 3. NNX has seven children: QZX, CAQ, DYX, HFM, BHX, PNX and EGX. 4. On 1 June 2012, NNX executed two separate enduring guardianship appointments. By one of those appointments, she appointed PNX as her enduring guardian. By the second document, she appointed BHX as her enduring guardian to act if PNX was unable to do so. With those documents, NNX provided her solicitors with instructions that they were only to be released to her appointed enduring guardians conditionally, and, in the case of PNX, on condition that a "duly qualified medical practitioner certifies that I am partially or totally incapable by reason of disability of managing my person". The provision of the appointment of BHX for him to operate upon was made conditional upon similar terms and the added condition that PNX be first unable to act. 5. On 22 April 2020, QZX applied for the appointment of a guardian and financial manager for NNX. At a hearing on 7 May 2020, a differently constituted Tribunal dismissed the application for the appointment of a financial manager for NNX on the basis that it was satisfied that she retained capacity to manage her own financial affairs. The application for the appointment of a guardian for NNX was adjourned on the basis that the Tribunal did not have enough time to deal with it. That matter came before another differently constituted panel on 28 May 2020 and was adjourned for reasons that have been provided to the parties. 6. Today was the allocated hearing of the application for the appointment of a guardian for NNX. 7. Despite several of NNX's family members having an interest in her well-being and views about the application for the appointment of a guardian for her, the only parties who participated in the hearing of the application for the appointment of a guardian were QZX as applicant, NNX and CAQ. NNX and CAQ appeared by video link. QZX attended by telephone. 8. It is not in contention between the parties that, in early 2020, NNX suffered a decline in her health which led to her hospitalisation. 9. Nor is it in dispute that she then moved to the aged care facility, initially for respite. 10. There is, however, a dispute between various members of NNX's family about whether she then voluntarily decided to move permanently to the aged care facility. Certainly, she eventually signed an agreement to take up permanent residence. 11. At the time of her hospitalisations, NNX was diagnosed as having a urinary tract infection (UTI) which, it appears, had some impact upon her cognition throughout the period of her hospitalisation and respite at the aged care facility. 12. NNX has now returned home, with supports. We have decided that it would not be appropriate for us to exercise our discretion to appoint a guardian for NNX at this time. The Hearing 1. At the end of these Reasons for Decision are lists of the parties and witnesses who attended the hearing. [Appendix removed for publication.] 2. As a preliminary issue, QZX asked for an adjournment of the hearing, on the basis that he had not received a submission sent by CAQ to the Tribunal on 19 June 2020 and dated 18 June 2020, commencing "[s]ome notes written by [CAQ]…" CAQ claimed to have sent the document to QZX but QZX had not received it. CAQ conceded that it would be appropriate for us to proceed without reference to that document, which we agreed was appropriate and have done so. Notwithstanding that concession, the application for an adjournment was pressed on the basis that QZX also wanted more time to review and seek legal advice about the material lodged in the Tribunal since the last hearing on 28 May 2020, and in accordance with directions made on that day. Those documents consisted of reasonably concise letters containing evidence by family members, and letters written by NNX. The documents authored by people other than NNX who oppose the application were sent to QZX well prior to the hearing and none of them raised any complex legal issues. We were satisfied that QZX had an appropriate opportunity to consider those documents, or take any relevant advice he may have wished to in that regard. The adjournment was refused on that basis. What did the Tribunal have to decide? 1. The threshold issue for the Tribunal, once an application has been properly made, is whether the person who is the subject of the application has a disability which renders them at least partially unable to manage their person. 2. Even if this threshold issue is established, the Tribunal has discretion about whether to make orders and what kind of orders to make. The Tribunal considers all relevant factors and will attempt to give effect to arrangements already made by the person in respect of substitute or assisted decision- making, provided those arrangements were understood by the person, are appropriate and in their best interests. The welfare and interests of NNX are the Tribunal's paramount consideration. GUARDIANSHIP 1. The questions to be considered by the Tribunal are: * Is NNX someone for whom the Tribunal could make a guardianship order? * Should the Tribunal make a guardianship order and if so, what order should be made? * If a guardianship order is to be made, who should be the guardian and how long should the order last? Is NNX someone for whom the Tribunal could make a guardianship order? 1. Section 14(1) of the Guardianship Act 1987 (NSW) ("the Act") enables the Tribunal to make a guardianship order for NNX if we are satisfied that she is "a person in need of a guardian". 2. A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing their person": s 3(1) of the Act. The disability must restrict them in one or more major life activities to the extent that they require supervision or social habilitation (s 3(2) of the Act), that is, assistance to manage in society. 3. In that regard, the relevant medical and allied health professional evidence available to us, which showed the course of the medical investigations and changes to NNX's medical conditions impacting on her cognition over the relevant period is summarised, relevantly, as follows: 1. A My Aged Care assessment of NNX conducted on 30 July 2018 indicates that at that time NNX scored 26/30 on the Mini-Mental State Examination (MMSE) and was reported as having declining memory and some repetitiveness. NNX was reported to have a low mood in conjunction with a recent decrease in mobility. 2. NNX was admitted to the private hospital on 9 March 2020 for recuperation after admission to the public hospital for treatment, having experienced periods of dizziness, described in later reports as vertigo. 3. Notes made during the private hospital admission include a record of the administration of a Montreal Cognitive Assessment (MoCA) indicating that NNX scored 17/30. 4. Nursing notes compiled at the private hospital refer to NNX being diagnosed with, and treated for, a UTI. 5. A My Aged Care assessment of NNX conducted on 16 March 2020 indicates that NNX had occasional short-term memory problems, resistive behaviour and depression. No other psychological impairments were noted. 6. On 17 March 2020, NNX moved to the aged care facility, for what is described in the discharge notes as respite. 7. Notes made when NNX was at the aged care facility include the following: 1. Daily notes indicating that on a number of occasions NNX evidenced memory impairment including forgetting to put on her shoes and forgetting to use a walker. At times she resisted assistance. 2. On a Psychogeriatric Assessment Scale (PAS) NNX scored 0. The Tribunal understands that the lower the score on the PAS, the less indication of impairment. 3. Handwritten notes of Dr Z dated 24 April 2020 indicate that NNX had seen Dr Y, a geriatrician, the previous day and Dr Z understood that Dr Y thought that NNX had adequate mental capacity, was "pretty good" and could go home after services were in place. 4. Dr Z's notes include a record of the administration of a MMSE in which NNX scored 28/30. 5. A nursing note dated 20 April 2020 indicates that NNX "agreed to pay RAD. She is waiting for her home to become available to go home. Family sent plan to go home". 6. A nursing note dated 23 April 2020 records a discussion in which: 1. CAQ complained that there had been pressure on NNX to sign the accommodation contract with the facility; and 2. The Director of Nursing, who is NNX's granddaughter, responded that NNX and CAQ were aware of the contents of the contract and that a family meeting had taken place and the family were in agreement to signing the contract and paying the RAD. 1. A report of Dr Y dated 23 April 2020 addressed to Dr Z, related the history of difficulty NNX experienced managing hypertension and her diabetes. The Doctor noted NNX's recent admissions to the public hospital and the private hospital associated with vertigo. Dr Y noted that NNX agreed that she had a recent decline in short-term memory, confirmed by CAQ. He opined that NNX retained the ability to make major life decisions for herself, including where she lives and recorded NNX's desire to return home from the aged care facility as she found the behaviour of some other residents distressing. He also noted NNX's willingness to access services on returning home and to commence using a Webster pack for her medications. Dr Y concluded that NNX has a mild amnesiac cognitive impairment. 2. In a report of 1 May 2020, Dr Z noted that there had been several changes to NNX's medications during her stay in hospital. He noted NNX's diagnosed issues with blood pressure and non-insulin dependent diabetes but did not indicate that these would prevent her returning home. Dr Z noted that NNX developed another UTI whilst at the aged care facility, with a delayed treatment with anti-biotics which resolved when they were commenced. Dr Z noted the disparate views between some of NNX's children about her cognitive capacity but opined that, "[u]ltimately, my conclusion is that as long as [NNX] had capacity to make her own decisions and as long as supports were available to help her with her wishes and that she understood the pros and cons of each option, then what she eventually chose to do would be the best course of action as long as that option was reasonably safe…". He reported that "[i]n my opinion, although she has some cognitive decline but still has capacity (sic)." Dr Z further recorded that he "had advised [NNX] to stay at [the aged care facility] until she goes back home in mid-May but she left on Monday 27 April to stay with her daughter [CAQ] as she could not sleep very well at the NH (sic) due to other residents nearby making too much noise". 3. In a Health Professional Report Form dated 4 May 2020, Mr X, a registered nurse and clinical care manager at the aged care facility indicates that he had known NNX for one month. He noted the following: 1. In his view she had a number of medical conditions that did not affect her ability to make decisions about her accommodation, care and services, her health and medical care or her financial affairs. 2. On 17 March 2020, he performed an Abbreviated Mental Test with NNX, and she scored 10/10. 3. NNX had demonstrated some confusion and forgetfulness and required physical assistance with activities of daily living and required assistance managing her medications and diabetes. She requires a Webster pack for medications and assistance managing her diabetes and blood pressure. 1. We had the benefit of speaking to NNX today. Her presentation was consistent with the reports referred to above, in that NNX appeared well oriented and able to advert to and discuss the relevant issues for our consideration, without prompting or assistance from CAQ. 2. Despite a challenge mounted by QZX to the reliability of the evidence of Dr Z and Dr Y, drawing attention to what he says are deficits in the accuracy of their history taking, in particular, we observed no obvious signs of significant cognitive impairment in NNX's presentation of her evidence. We saw nothing to cause any concern that the findings of Dr Z, Dr Y or Mr X; that NNX retained decision-making capacity, whilst physically well and provided with supports, should not be accepted. 3. Based on that evidence, we find that notwithstanding the apparent decline in her cognition when she was unwell earlier in the year, the legal presumption that NNX is presently able to independently make her own decisions about important personal, health or lifestyle issues that she may need to make has not been rebutted. This is commonly sufficient to dispose of an application for the appointment of a guardian, as a finding of that nature, in the absence of other relevant evidence, generally leads to the conclusion that the person does not meet the definition of being a person in need of a guardian. 4. However, QZX points out, correctly, that there is other evidence supporting a finding that NNX is a person who, because of a disability, is at least partially incapable of managing her person and that her disability restricts her in some major life activities to the extent that she requires assistance to manage in society. 5. NNX's presentation does meet that definition. Her diagnosis of mild amnesiac cognitive impairment combined with several physical ailments, are a form of disability. As we will refer to later, we also had unchallenged evidence that, as a result of those conditions, she requires support in managing issues such as her blood pressure and diabetes in the form of using Webster packs for her medications and oversight by CAQ. NNX also requires formal services to manage her person and keep herself well in preventing the re-occurrence of urinary tract infections. As a result, we conclude that she is a person in need of a guardian, as defined in the Act. 6. Of course, that does not lead automatically to the conclusion that we should appoint a guardian, which we will deal with below. Should the Tribunal make a guardianship order and if so, what order should be made? 1. When considering making an order, in addition to the considerations set out in s 4 of the Act, we must have regard to NNX's views and those of CAQ, who is currently fulfilling the role of NNX's carer. NNX has no surviving spouse whose views could be sought. We are also required to consider the importance of preserving NNX's existing family relationships and particular cultural and linguistic environments as well as the practicability of services being provided to her without the need for an order: s 14(2) of the Act. 2. These matters are in no particular order and each must be considered. Where there are different or competing issues to be considered, we undertake a balancing exercise in our consideration of these matters. Of course, we also consider any other relevant evidence, guided by the principles that are set out in s 4 of the Act. Where relevant evidence of particular weight about these issues was available to us, or where different factors needed to be balanced, it is referred to below. 3. We will deal firstly with the mandatory considerations set out in s 14 of the Act. The views of NNX 1. Given that NNX believes that she can make her own important life decisions, she did not feel that we should appoint a guardian. 2. NNX provided us with direct evidence of the changes she has put in place to avoid the sort of decline in her wellbeing which led to her hospitalisation this year. That includes the renovation of her home to make it safer, together with the installation of a bidet to assist in the prevention of future urinary tract infections. NNX also advised that she has commenced receiving more services into her home, and receives ample assistance each day, including showering assistance as required three times per week. She also intends to access the community through a community transport service and receives a meal service. Her evidence is that she is in recent contact with a new general practitioner and is following the doctor's advice. She could not name the medications she takes, but she takes them with the benefit of a Webster pack. 3. NNX acknowledges that there was a decline in her functioning earlier in the year, at the time of her hospitalisation. She did appear, however, to minimise the concerns expressed by QZX, which we will refer to below, but accepts that in the period leading up to her hospitalisation at least some aspects of her self-care fell away, for example leading to her home having a flea infestation. She denies allegations that she was not managing to dispose of discarded food properly, or other allegations of self-neglect made by QZX, which are supported at least inferentially by correspondence we received from PNX, BHX and HFM. 4. NNX gave clear and consistent evidence about the services she presently receives and showed no apparent desire to reduce them into the future. She presented as a person who, when physically well, can appropriately understand the need to take steps to put in place external assistance and services to assist her with managing her person. 5. Despite QZX's concern that there was no independent verification of this evidence, we accepted what we were told by NNX in this regard, as it was uncontroverted and consistent with the evidence of CAQ. The views of CAQ 1. The only person who currently meets the definition in the Act of a carer for NNX is CAQ. CAQ has been providing direct support to NNX, particularly during the period NNX lived in CAQ's home after her discharge from the aged care facility. CAQ's view is that there is no need for the appointment of a guardian for NNX and that NNX can manage her own decision making or rely upon informal supports as required. CAQ confirmed that she maintains oversight of NNX's wellbeing and is in regular contact with her. She confirmed NNX's evidence of the changes put in place to try to ensure that there is not a repeat of the decline in wellbeing NNX experienced earlier this year, such as the installation of a bidet. CAQ confirmed that NNX has commenced seeing two new doctors, neither of whom have indicated that they had concerns that NNX could not give her own consent to the changes they have recommended to her prescribed medications. Her evidence was that NNX now has a system in place to monitor her blood sugar levels appropriately. CAQ confirmed that the occupational therapy assessment recommended by Dr Z has now been arranged. 2. In a letter to the Tribunal received 14 May 2020, attaching what is described as NNX's 'care plan', CAQ confirms that: * NNX has reengaged with services through a service provider, including three hours per week assistance which will increase due to an approved Level 2 Home Care Package; * Other carers will attend three hours per week; * NNX is in receipt of meals on wheels; * NNX uses a Webster pack to manage her medications and regularly monitors her blood sugars; and * NNX has engaged with the NSW Ageing and Disability Commissioner to obtain counselling about how to re-establish relationships with her "estranged children". 1. QZX asked us to accept that CAQ was involved in excluding some members of the family from contact with NNX to ensure that there would be no appropriate oversight of any future decline in NNX's functional capacity. Despite the evidence we refer to later in these reasons, at [67]-[73], upon which this assertion was based, we were not prepared to draw the inference that CAQ held this motivation, as it would involve a level of reckless indifference on the part of CAQ toward NNX's wellbeing which is not borne out by the evidence. It is also inconsistent with the evidence of DYX and EGX, which we refer to later. The importance of preserving NNX's existing family relationships 1. There was no evidence before us that would enable us to conclude that making, or not deciding to make, a guardianship order would have any impact upon the preservation of NNX's existing family relationships. 2. As we will come to shortly, it appears that NNX's family relationships with some of her adult children is somewhat fractured. 3. Notwithstanding that, there was no evidence that we could rely upon to be satisfied that the appointment or non-appointment of a guardian would alter that situation or that either course would better serve to preserve those relationships. In particular, it was not suggested that we should appoint a guardian to make access decisions for NNX and, in any event, such an appointment would be unlikely to have any utility given that NNX remains a staunchly independent person, who can and is entitled to express her own views about which members of her family she would like to spend time with and the context in which that occurs. 4. We cannot rule out the possibility that NNX is influenced in who she will agree to spend time with by CAQ. We will expand on the evidentiary basis for this at [66]-[75] below. However, appointing a guardian to make access decisions contrary to NNX's currently expressed views will not, in our view, improve that situation or bring about a reconciliation with those of her children from whom she is currently estranged, thereby promoting her welfare and interests. In our view, NNX's approach to the Ageing and Disability Commissioner for referral to counselling to commence this process is more likely to bear fruit than anyone trying to substitute their own decisions for those currently made by NNX in this regard. The importance of preserving NNX's particular cultural or linguistic environments 1. There was no evidence before us to suggest that making any particular order, or not making an order, would have any impact upon NNX's cultural or linguistic environments. NNX is Hungarian by birth, and she is a native speaker of that language. She has, however, lived in Australia since she was 16 and she says that, without an order, she will be able to enjoy her life "in her own way": Letter from NNX to the Tribunal, 19 May 2020. The practicability of services being provided to NNX without the need for a guardianship order 1. QZX relied on written and oral submissions setting out why he felt that a guardian should be appointed for NNX, to make decisions about her accommodation and health care. These included statements of some of his siblings, in particular BHX, PNX and HFM. Some of that evidence and the submissions of QZX specifically touched on the practicability of services being provided to NNX absent a guardianship order, which was our final mandatory consideration. 2. In that regard, QZX focussed on two specific issues, as follows: 1. That there was a flea infestation at NNX's house before she was hospitalised at the public hospital – There does not seem to be any dispute that this occurred. QZX was particularly concerned that this highlighted NNX's inability to manage at home before she was hospitalised and subsequently moved to respite care at the aged care facility. 2. It certainly appears that, in all likelihood as a result of her urinary tract infection developing, NNX became increasingly unable to recognise and manage various indicia of her developing an inability to cope at home without more assistance, including the flea infestation. There was, however, uncontroverted evidence from CAQ and NNX at the hearing that NNX had engaged a pest exterminator to resolve this issue. 3. In a similar vein to that discussed in relation to the flea infestation, QZX also pointed to his concerns about NNX having difficulties with incontinence and developing an inability to manage the disposal of sanitary products and uneaten food at around the time of her hospitalisation. NNX denies these allegations, however, on balance, we accept QZX's evidence on these issues. We have no reason to assume that he would be motivated to invent the allegations. It is also inherently possible, given the apparently sudden decline in NNX's cognition evidenced by the Montreal Cognitive Assessment conducted whilst at the private hospital, that NNX was not fully aware of the extent of her inability to manage her self-care when affected by the UTI and poor management of her other conditions which was contemporaneous with, and likely contributed to, her hospitalisation. 1. In summary, we accept that NNX experienced a decline in her ability to self-care before her hospitalisation which was likely contributed to by her receiving insufficient services into her home and poor management of her medical conditions. We also accept, however, the uncontroverted evidence that steps have been taken to improve this situation since NNX returned home, and that other beneficial services have been put in place without the need for the intervention of an appointed guardian. Other relevant evidence and considerations 1. Whilst the issues set out in s 14(2) of the Act are mandatory considerations in terms of whether or not we should appoint a guardian and, if so, what order should be made, we must also consider all other relevant issues. 2. Again, our finding that NNX retains decision-making capacity is relevant, as it lends weight to a conclusion that due consideration of the principles in s 4 of the Act that: * the freedom of decision and freedom of action of NNX should be restricted as little as possible; * she should be encouraged, as far as possible, to live a normal life in the community; * her views in relation to the exercise of the Tribunal's functions should be taken into consideration; and * she should be encouraged, as far as possible, to be self-reliant in matters relating to her personal, domestic and financial affairs * means that her welfare and interests will best be promoted by dismissal of the application and that her prima facie right to self-determination does not need to be altered. 1. Declining to make an order, in those circumstances, may also generally encourage the community to apply and promote these principles. 2. Before we could reach such a conclusion, however, we must also consider and weigh the need to ensure that: * the importance of preserving her family relationships and cultural and linguistic environments is recognised; * she is protected from neglect, abuse and exploitation; and * there is no other proper basis for us to make an order. 1. QZX's submits that a guardian should be appointed for NNX as she is vulnerable to neglect, abuse and exploitation, particularly by CAQ. He also raises concern about her potential vulnerability to financial exploitation, evidenced by NNX making payments to PNX at PNX's request and against her own expressed preference, but this was a consideration more relevant to the previous financial management application. 2. He points to what he describes as "the highly-inappropriate and sudden removal and or abduction from [the aged care facility] [of NNX] by [CAQ]". He says that at the time of NNX's discharge, she had not complied with Dr Z's pre-discharge requirements, arranged a discharge plan or arranged to leave with all of her medications and belongings. 3. The circumstances surrounding NNX's admission to and subsequent discharge from the aged care facility were dealt with by the Tribunal in its reasons for decision regarding the financial management application at [37]-[42]. 4. In relation to the allegation that NNX was abducted from the aged care facility, however, there is no evidence of any action being taken contrary to NNX's expressed wishes, to support that allegation. 5. Whilst Dr Z had recommended that, prior to discharging from the aged care facility, NNX reach a number of milestones including managing her toileting without assistance, managing her showering without assistance, the stabilisation of her blood sugar levels and glucose levels, review by an endocrinologist and her satisfactory demonstration of an ability to take all of her medications, those issues cannot be said, properly, to be pre-discharge requirements as alleged by QZX. Rather, they were recommendations by Dr Z which, if NNX could understand the impact of those recommendations and weigh her options in that regard, she was free to either follow or not, at her own choosing. 6. It is unsurprising, though, that what might appear to be a precipitous decision to move home without fulfilling those recommendations would have raised concerns among those of NNX's children who were not consulted about her decision to move to live with CAQ on 27 April 2020. 7. The best evidence of whether NNX left the aged care facility voluntarily is available from NNX, who set out in a letter she sent to the Tribunal prior to the hearing that she had not wanted to stay at the aged care facility, despite signing the contract to take up a permanent residency there and agreeing to pay a refundable accommodation deposit. 8. That is consistent with the evidence that NNX had expressed a desire to leave the aged care facility to both Dr Z and Dr Y. It is also consistent with the appointment she gave PNX as her enduring guardian in 2012, to which she added a signed note, witnessed by her solicitor, relevantly, to the following effect: … Although the appointment of enduring guardian states that it is not subject to any limits or directions, I am providing this memorandum to you so that you will be aware of my wishes. In exercising your powers under the appointment of enduring guardian it is my wish that I should be permitted to continue to live in my home for as long as possible, with such support services as may be necessary, and I should not be moved into a nursing home or other assisted-living facility unless it is considered necessary on medical advice that I do so. 1. Whilst it is clear that there was uncertainty in NNX's mind as to where she wished to live when she initially moved to the aged care facility, as evidenced by her signing the accommodation contract, she clearly formed a subsequent desire to leave the aged care facility, as evidenced by her statements to her treating medical practitioners toward the end of her stay there. 2. We accept, though, that the decision to move home, and the timing of that decision, contributed to the concerns of those of her children who were excluded from her confidence in her decision making in that regard. 3. We infer that NNX's knowledge of the conflicting views between her children may have contributed to the way in which her discharge was conducted. 4. Given the fractured relationship between CAQ and some of her siblings and the apparent lack of communication between them, NNX's sudden departure from the aged care facility appears to have heightened the tensions between NNX and those of her children who apparently support this application. That is not, however, probative evidence that NNX is exposed to neglect, abuse or exploitation. 5. Another focus of QZX's submissions is what he sees as the recently expanded and inappropriate involvement of CAQ in NNX's life. That position draws support from correspondence from BHX, HFM and to a lesser extent, PNX. 6. HFM records noting a change in her mother's behaviour around the time of the death of her mother's sister. She points to what she saw as changing positions expressed by her mother in relation to belongings under her mother's sisters will. She felt that the nature of those changes were "bizarre" and noted that NNX became angry with her in the resolution of that process. She also points to what we infer she says are deficits in her mother's memory and strange changes in her mother's behaviour, for example insisting that she have her hair cut short before NNX would talk to her. 7. HFM also notes that her sister, DYX, had previously been estranged from NNX for many years but that there had been a recent significant change in that relationship. 8. HFM says that CAQ was removed by NNX as an attorney in 2012 and that CAQ subsequently "bombard[ed] [NNX] with phone calls, up to 30 a day, which led to the involvement of police". 9. HFM raises concern that CAQ has advised NNX to change her phone number and arranged for changing the locks on NNX's house. 10. HFM also alleges that CAQ monitors the calls which she has attempted to have with NNX. 11. HFM says that CAQ and DYX have "carried out a systematic campaign to isolate [her] mother from [her] and [her] brothers [BHX], [QZX] and [PNX]". 12. In the context of the financial management application considered by the Tribunal, BHX and PNX have also written letters to the Tribunal indicating their concerns about the recent changes to NNX's support networks and the extent to which it involves reliance upon CAQ. They refer to the previous trust shown in them evidenced by their appointment by NNX as her attorneys and enduring guardians. BHX also indicated that CAQ was monitoring his recent conversations with NNX, which he confirmed in earlier email correspondence with QZX. 13. The uncontroverted evidence from QZX also indicates that there have been periods of estrangement between NNX and CAQ in the past. 14. There is, for example, evidence that NNX did not wish to be seated near CAQ at an earlier family wedding and we received a copy of a letter from NNX to CAQ, dated 27 June 2018, wherein NNX indicates that CAQ should "[p]lease not contact [her] in any way". 15. However, the evidence from which we were asked to infer that the recently increased involvement of CAQ in supporting NNX is preventing the free exercise of NNX's will was not uncontroverted. 16. Emails from CAQ indicated that all siblings were welcome at her house when NNX was staying there, but that NNX had said that she did not wish to be visited by some of her children. 17. We also received correspondence from DYX and EGX. 18. In contrast to the views expressed by her siblings, referred to above, DYX describes what in her view is a history of "fractured and dysfunctional relationships between my siblings over many years" which she says may have had a deleterious effect on NNX. She also posited that there have been attempts to influence NNX in relation to the allegations of concern in these proceedings, by QZX, BHX, PNX and HFM. 19. In response to the allegation that CAQ is isolating NNX from those members of the family, DYX says that she does not accept that is the case. She says that she is in regular contact with her mother over the telephone and that NNX is clear with her that she is exercising her own judgment about who she is having contact with. DYX says that she has no concerns about NNX's capacity to make decisions about her accommodation or health and that she does not need a guardian to be appointed. 20. In a letter dated 16 June 2020, EGX says: I have seen Mum and she is very happy, very healthy and extremely well cared for. Mum's health should be all that matters to all of us, but I think some siblings have lost sight of this. I work long hours and am married with four children at home with two under 10 and I can't look after Mum let alone visit her regularly. Mum said to me tonight she is being treated like a queen by [CAQ] and all of her family. No one is doing anything positive for Mum's health and wellbeing except [CAQ]. Mum deserves to be well looked after and she is under [CAQ]'s care. She is our mother and she is 86 with her 87th birthday this week and with all these distressing documents being sent to her, it's disgraceful and makes Mum very upset to say the least. 1. In the context of a large family, where various members of the family have strong and differing views, such periods of estrangement and reconciliation are neither rare nor evidence of abuse, neglect or exploitation, as has been alleged. Where the majority of people making the assertions and counter assertions have elected not to participate in the hearing and make themselves available to give evidence or answer questions, it is also difficult for us to assess where the truth of such allegations may lie. 2. However, we are not satisfied that we need to make findings about these issues to resolve the application. Despite the conflict within her family, we have set out above why NNX would not benefit from the appointment of a guardian to make decisions about her access to her various children. 3. Ultimately, we were not satisfied that the conflict referred to, or the allegations of undue influence, should cause us to exercise our discretion to appoint a guardian for NNX. We could not foresee that any decision-making function which a guardian may be given would improve NNX's family relationships or was necessary to protect her from abuse, neglect or exploitation. 4. Despite our satisfaction that NNX meets the legal definition of being 'a person in need of a guardian', her presentation to us, the medical evidence, and the evidence that she has obtained increased services and has support from some of her children which she will accept at this time, indicates that NNX's welfare and interests will not be promoted by the appointment of a guardian. 5. Additionally, PNX and then, in turn, BHX, retain the legal authority to make decisions about NNX's accommodation and health care (together with the other functions contained in their appointments as enduring guardians) in the event that NNX meets the qualifying conditions for those appointments to commence as certified by a doctor. 6. Despite neither BHX nor PNX participating in the hearing, there is nothing before us to indicate that they have resolved that they would not assist their mother in that way if circumstances arose which made their appointments operational. 7. For those reasons the application is dismissed. ********** 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: 28 January 2021