NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EYL [2022] NSWCATGD 8 Hearing dates: 20 June 2022 Date of orders: 20 June 2022 Decision date: 20 June 2022 Jurisdiction: Guardianship Division Before: B L Adamovich, Senior Member (Legal) M J Staples, Senior Member (Professional) A Healy, General Member (Community) Decision: Review of Enduring Guardianship Appointment: In relation to the enduring guardian appointment made by EYL on 18 September 2021 appointing DZD the Tribunal orders, directs or declares: The application for review is treated as if it were an application under the Guardianship Act 1987 (NSW) for a guardianship order for EYL. Review of Enduring Power of Attorney: In relation to the enduring power of attorney made by EYL on 13 August 2021 which appointed USD as attorney(s) the Tribunal determines, orders or declares: to conduct a review of the operation and effect of the enduring power of attorney. Not to make an order under s 36 of the Powers of Attorney Act 2003 (NSW). The application for review of the enduring power of attorney is treated as an application for a financial management order under Pt 3A of the Guardianship Act. Guardianship order: 1. A guardianship order is made for EYL. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 20 June 2022. 4. This is a limited guardianship order giving the guardian(s) custody of EYL to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Access To decide what access EYL has to others and the conditions of access. b) Accommodation To decide where EYL may reside. c) Health care To decide what health care EYL may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where EYL is not capable of giving a valid consent. e) Services To make decisions about services to be provided to EYL. CONDITIONS: 6. The condition of this order is: a) Standard Condition In exercising this role, the guardian shall take all reasonable steps to bring EYL to an understanding of the issues and to obtain and consider their views before making significant decisions. Financial Management order: 1. The estate of EYL is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. USD of [Address removed for publication.] is appointed as the financial manager of the estate. NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian. Catchwords: REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the operation and effect of an enduring power of attorney – person of advanced age – changes to long standing appointment of attorney – whether an order under s 36 of the Powers of Attorney Act should be made – no order made – decision to treat application to review an enduring power of attorney as an application for a financial management order. FINANCIAL MANAGEMENT – whether subject person is incapable of managing their own affairs – need to pay for accommodation and care fees in an aged care facility – suitability of proposed private manager – private financial manager appointed – order made. REVIEW OF ENDURING GUARDIANSHIP – application to review an enduring guardianship appointment – no authority to make decisions about access under an enduring guardianship appointment – need for a guardian to make decisions about access – decision to treat the application to review an enduring guardianship appointment as an application for a guardianship order. GUARDIANSHIP – whether subject person is a person in need of a guardian – subject person has significant cognitive impairment – need for decisions to be made about access, accommodation, health care, medical and dental consent, and services – significant conflict within subject person's close family – subject person's family members support the appointment of the Public Guardian – Public Guardian appointed – order made. Legislation Cited: Electronic Transactions Act 2000 (NSW), s 14G Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 15(3), 25M, Pt 3A Powers of Attorney Act 2003 (NSW), ss 35(1), 36, 36(1)-(2), 37, 50(3) Cases Cited: Application by AMAM; Re SAM [2011] NSWSC 503 C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep CJ v AKJ [2015] NSWSC 498 [38], and P v NSW Trustee and Guardian [2015] NSWSC 579 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 M v M [2013] NSWSC 1495 McD v McD (1983) 3 NSWLR 81 P v D1 & Ors [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re B [2011] NSWSC 1075 Re D [2012] NSWSC 1006 Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 Texts Cited: None cited. Category: Principal judgment Parties: 001: Guardianship Application EYL (the person) HBG (applicant) DZD (carer, enduring guardian) Public Guardian 002: Financial Management Application EYL (the person) HBG (applicant) USD (attorney) DZD (carer) NSW Trustee and Guardian 004: Review of an Enduring Guardianship Appointment EYL (the person) DEL (applicant) DZD (carer, enduring guardian) Public Guardian NSW Trustee and Guardian 005: Review of an Enduring Power of Attorney EYL (the person) DEL (applicant) USD (attorney) NSW Trustee and Guardian 007: Guardianship Application EYL (the person) DEL (applicant) DZD (carer, enduring guardian) Public Guardian 008: Financial Management Application EYL (the person) DEL (applicant) USD (attorney) DZD (carer) NSW Trustee and Guardian Representation: Nil. File Number(s): NCAT 2022/00153751 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 REVIEW OF ENDURING POWER OF ATTORNEY & FINANCIAL MANAGEMENT APPLICATIONS; REVIEW OF APPOINTMENT OF ENDURING GUARDIAN AND GUARDIANSHIP APPLICATIONS 1. These are the reasons for the decision of the Tribunal as set out above. 2. In all matters before the Tribunal the welfare and interests of the subject person are paramount. Background 1. EYL is a 92-year-old woman who at the time of the hearing was a patient at a public hospital, having been admitted there on 11 May 2022. Prior to her admission to hospital, EYL spent a number of months living at regional NSW with her daughter, DZD and son-in-law, Mr Z. 2. Before this, EYL lived in her home at another suburb in regional NSW (Property 1), where she had lived for many years with her daughter, Ms Y, who passed away in June 2021. This property was owned by EYL and Ms Y as joint tenants until 18 March 2021 when the joint tenancy was severed and changed to tenants in common in equal shares. This transfer occurred after Ms Y made a Will on 24 February 2021 that made no provision for her mother, EYL. 3. EYL has a son, DEL, and daughter-in-law, Ms X, who live at another suburb in regional NSW. DEL and Ms X are the executors of the Will of Ms Y. DEL is the primary beneficiary of the Will of Ms Y. It is reported that there is significant conflict between DEL and DZD. 4. On 4 August 2021, EYL signed a document declaring that she did not intend to apply for a death benefit from an Australian superannuation fund in relation to Ms Y's superannuation. The Will of Ms Y left the superannuation benefits to DEL. However, on 26 November 2021 the superannuation fund decided that as an interdependent, EYL was entitled to her deceased daughter's superannuation benefits. An objection was lodged against this decision by the executors of the Will of Ms Y. The superannuation fund considered the objection and maintained their decision that as an interdependent, EYL was entitled to the superannuation benefits. 5. On 6 August 2021 EYL revoked a power of attorney dated 24 August 2007 that appointed DEL as her attorney. 6. On 13 August 2021 EYL executed an enduring power of attorney appointing USD (daughter of DZD and Mr Z) as her attorney. The power of attorney was to operate once a medical practitioner considered that EYL was unable to manage her affairs and provided a document to that affect. 7. On 18 September 2021 EYL executed an appointment of enduring guardian by which she appointed DZD as her enduring guardian. 8. On 16 February 2022 EYL, Ms X and DEL entered into an exclusive agency agreement with a real estate company for the sale of Property 1, signed by each of them. 9. On 12 April 2022 Dr W, geriatrician, provided a document in relation to EYL recommending that the enduring power of attorney be activated immediately on medical grounds to assist in managing life affairs and finances. 10. Applications for guardianship and financial management orders with respect to EYL were lodged at the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) (the Tribunal) by HBG, social worker at the public hospital, on 22 May 2022. 11. On 26 May 2022, DEL lodged applications at the Tribunal to review an enduring guardianship appointment and an enduring power of attorney. On 1 June 2022, DEL lodged guardianship and financial management applications at the Tribunal. 12. On 16 June 2022 the Tribunal refused a request by USD to be legally represented in these proceedings. The hearing 1. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.] 2. At the commencement of the hearing, we confirmed that the parties had received the 69 documents identified on the evidence list, that included submissions, screen shots of text messages, photographs, diary notes, character references, bank statements and excel spreadsheets. 3. USD requested that access be granted to a discharge summary dated 14 April 2022 and a comprehensive geriatric assessment and management plan dated 30 March 2022 from Dr W, Geriatrician, in response to a summons. As the documents provided were relevant to disputed issues and were only 10 pages in total, we granted access and arranged for the material to be provided to the parties and stood the hearing down to allow the parties time to read the documents. 4. When we resumed the parties confirmed that they were ready to proceed with the hearing. General principles 1. The Guardianship Division of NCAT is a protective jurisdiction and is obliged to observe the following principles: 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. Review of Enduring Power of Attorney What did the Tribunal have to decide? 1. The Tribunal may, on the application of an interested person, decide to review the making or the operation and effect of a reviewable power of attorney, or not to carry out such a review: Powers of Attorney Act 2003 (NSW), s 36(1). 2. As an attorney (including an attorney whose appointment has purportedly been revoked), DEL is an interested person in relation to the making of applications to review the power of attorney: Powers of Attorney Act, s 35(1). 3. As a consequence of reviewing the making or operation and effect of a reviewable power of attorney, the Tribunal may decide whether or not to make an order under s 36 of the Powers of Attorney Act (s 36(2)). 4. The Tribunal may make a number of orders relating to the making of a power of attorney including the following: * An order declaring that EYL did or did not have mental capacity to make a valid power of attorney * An order declaring that the power of attorney is invalid (either in whole or in part) if the Tribunal is satisfied: 1. EYL did not have the capacity necessary to make a valid enduring power of attorney 2. The enduring power of attorney did not comply with the requirements of the Powers of Attorney Act 3. the enduring power of attorney is invalid for any other reason, for example, dishonesty or undue influence 1. The Tribunal may make a number of orders relating to the operation and effect of a power of attorney if it is satisfied: * that it would be in the best interests of EYL to make the order * that it would better reflect the wishes of EYL to make the order 1. These orders include: * An order varying a term of, or a power conferred by, the power of attorney * An order removing a person from office as attorney * An order appointing a substitute attorney to replace an attorney who has been removed from office or who otherwise vacates the office * An order reinstating a power of attorney that has lapsed by reason of any vacancy in the office of power of attorney and appointing a substitute attorney to replace the attorney who vacated office * An order directing the attorney to: 1. Furnish accounts to the Tribunal or someone nominated by the Tribunal 2. Lodge a copy of all records and accounts of dealings and transactions made under the power 3. Requiring that the records and accounts be audited and that a copy of the report of the auditor be furnished to the Tribunal 4. Submit a plan of financial management for approval * An order revoking all or part of the power of attorney * Such other orders as the Tribunal thinks fit. 1. If on a review of the enduring power of attorney, the Tribunal decides not to make an order under s 36 of the Powers of Attorney Act, it may, if it considers it appropriate in all of the circumstances to do so, decide to treat the application for review as an application for a financial management order under Pt 3A of the Guardianship Act 1987 (NSW). Should the Tribunal conduct the review? 1. In Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516, Slattery J stated [at 80]: "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." 1. DEL requested that the Tribunal review the enduring power of attorney as he believed that the instrument was signed under undue influence. 2. At the time he lodged the application, DEL was under the misapprehension that DZD was the attorney. He alleged that DZD had taken EYL's debit card, using it for whatever she wanted and refused to return the card to EYL. He attached a copy of a handwritten letter from EYL dated 22 May 2022 in which she said that she believed that her daughter and granddaughter were trying to rule her life and money and described verbal abuse she claimed she had suffered from DZD. 3. DEL said that DZD and USD have blocked his telephone numbers and refuse to speak with him, meaning that he has no ability to communicate with the attorney or his mother. He said that he had concerns that EYL's monies were being spent on items that were not in her best interests and alleged that the attorney had mismanaged EYL's affairs. In summary, he believes that the power of attorney is not operating in EYL's best interests. At the hearing he said that as a result of the family conflict, a financial management order appointing the NSW Trustee and Guardian was the outcome that he sought. 4. We were notified that the witness to the execution of the enduring power of attorney of 13 August 2021, Mr V, was available to participate in the hearing if required. We did not see the utility in conducting a full review of the making of the enduring power of attorney. The only medical evidence available to demonstrate EYL's mental state in August 2021 was from her GP of eight and half years, Dr U. Dr U certified on 21 September 2021 that EYL had the mental capacity to make decisions for both medical and financial situations. Mr V, solicitor, signed the certificate on the enduring power of attorney stating that he was satisfied that EYL had the capacity to execute the instrument. The review and decision to exercise discretion to make no orders and to treat the application for review of power of attorney as application for management order. 1. Having received lengthy submissions and bank statements relating to EYL's financial affairs, we decided to review the operation and effect of the enduring power of attorney dated 13 August 2021. USD told us that she had only operated the enduring power of attorney from 12 April 2022 when Dr W recommended that the instruments be activated immediately. DZD told us that before 12 April 2021 she had simply assisted EYL to manage her own affairs. 2. USD provided us with copies of bank statements relating to EYL's term deposit with an Australian bank, her pensioner security account and spreadsheets outlining expenditure. Having considered the material entered into evidence, there appeared to be nothing untoward in the financial statements with which we were provided. The enduring power of attorney does not allow the attorney to confer gifts or benefits upon any other person and there is no evidence that this has occurred. 3. What was evident to the Tribunal was that there is an absolute lack of trust and inability to communicate between DEL on the one hand and DZD and USD on the other. During the hearing, EYL was extremely changeable in her views about who she trusted to look after her money and make decisions about where she lives. We considered that there is a need for caution and for the protective nature of this jurisdiction to be exercised in circumstances where a person of advanced age (92 years of age) makes changes to long standing appointments (i.e., EYL's revocation of the appointment made in 2007 of DEL as her attorney). 4. We decided to exercise our discretion not to make any orders and, in accordance with s 37 of the Powers of Attorney Act treated the application for the review of the power of attorney as an application for a financial management order. FINANCIAL MANAGEMENT APPLICATION 1. Before it could make a financial management order in relation to EYL the Tribunal had to be satisfied of the following matters: * EYL is incapable of managing her affairs * There is a need for another person to manage EYL's affairs and * It is in the best interests of EYL for a financial management order to be made 1. If the Tribunal decides to make a financial management order, it also needs to decide who should be appointed as financial manager. 2. The making of a financial management order has the effect of suspending any enduring power of attorney for the duration of the order: Powers of Attorney Act, s 50(3). Is EYL incapable of managing her affairs? 1. In Re D [2012] NSWSC 1006, White J assessed the history of case law in relation to financial management and noted that initially the issue of capability was approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Court now assesses the person's own capacity to do what they are proposing to do [58]. White J used a "rational appreciation" of assets test to determine a person's capability to manage his or her affairs. He adopts the reasoning of Barrett J in P v R [2003] NSWSC 819 who said that the task of the Court in these circumstances: "… is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person's property…the requisite judgment is to be made in the light of objective physical facts concerning the relevant person's property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter [26]." 1. In PB v BB [2013] NSWSC 1223, Justice Lindsay confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at [7]: "Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack 'mental capacity' or be 'mentally ill'; or (b) particular reasons for an incapacity for self-management." 1. The test for determining a person's capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]): "Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests? … [A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation." 1. In considering whether the person is "able" in this sense, consideration may be given to: * past and present experience as a predictor of the future course of events; * support systems available to the person; and * the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498, at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, at [309]. 1. The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86). 2. EYL told us that she is very independent and is able to look after herself. 3. We noted that in his application and written correspondence DEL denied that his mother has a diagnosis of dementia and instead said that she was in need of a guardian and a financial manager due to her vulnerability to influence. We were provided with numerous letters of support refuting the diagnosis of dementia from EYL's friends from a social group who have known her for many years and some of whom have work experience with people with dementia. Having read the report of Dr W, DEL agreed that at times EYL may be "hazy", however at other times she can make decisions. He conceded that she might have a little bit of dementia. Ms X considered that EYL is incapable of managing her affairs. 4. USD told us that as a result of dementia – despite having good and bad days – EYL is now incapable of managing her affairs. DZD and her husband Mr Z agreed with this view. 5. HBG, social worker, and Ms T, senior social worker, told us that as a result of cognitive impairment associated with Alzheimer's disease, EYL is incapable of managing her affairs. They told us that EYL is very impressionable and will make allegations depending upon who she has last spoken to or thought about. She would not be able to enter into a contract with an aged care facility or make decisions about how to pay for aged care. HBG reported that EYL would be unable to manage the settlement funds from her share of Property 1 due to confusion and cognitive impairment. 6. The views of HBG and Ms T were consistent with the current medical evidence before the Tribunal. As referred to above, Dr W documented on 12 April 2022 that the enduring power of attorney should immediately be activated on medical grounds to assist in managing life affairs and finances. 7. Dr W provided more detailed reasons for his opinion in a comprehensive geriatric assessment and management plan dated 30 March 2022 which was provided in response to the summons of USD. Dr W said that EYL demonstrated obvious cognitive impairment at the consultation and had no idea why she was seeing him. Dr W said that EYL has had a progressive cognitive decline over two years with worsening short-term memory loss, forgetting days, dates and recent events. She has auditory hallucinations, hearing music in her ears 24/7. She has also experienced visual hallucinations. Dr W conducted a Mini-Mental State Examination which resulted in a score of 13/30 which is indicative of severe cognitive impairment. She was disoriented to time and place. EYL displayed poor problem-solving skills and short term memory impairment. Her verbal fluency is excellent which masks her cognitive impairments. Dr W said that observations were consistent with an amnestic, multi-domain cognitive decline with significant functional impairments in day to day living. She is a high falls and fracture risk. 8. Dr W diagnosed EYL with moderate Alzheimer's dementia with amnestic, multi-domain quite severe cognitive impairments including disorientation in time and place, poor short-term memory and poor problem solving. EYL's presentation is complicated by mild paranoid delusions and irritability. He concluded that EYL does not have the cognitive capacity to understand any legal documents, or consent to any change in her enduring guardianship, power of attorney or her Will due to her severe cognitive impairment and lack of insight. He advised Dr U, EYL's referring GP, that the prognosis for EYL to manage at home was guarded due to advanced Alzheimer's Dementia. 9. Dr W's report was supported by a health professional report from Dr S, completed on 25 May 2022. Dr S reported that as a result of cognitive impairment associated with dementia, EYL is unable to make important life decisions, lacking any consistency in her wishes and is unable to recall what her wishes are. She is incapable of managing her financial affairs, due to poor short-term memory and difficulty with any sort of calculations. She does not always recall her financial arrangements. 10. EYL's participation in the hearing was consistent with the views of Dr W, Dr S and the health professionals that participated in the hearing. 11. We were satisfied that as a result of cognitive impairment EYL is incapable of managing her own affairs. Is there a need for a financial management order and is it in EYL's best interests for a financial manager to be appointed? 1. Ordinarily when a person has appointed an enduring power of attorney the Tribunal would be reluctant to interfere with arrangements made when the Principal is presumed to have had the capacity to make the appointment. We did not make any orders in relation to the review of the operation and effect of the enduring power of attorney and made no adverse findings in respect of USD's actions as attorney following the activation of the instrument on 12 April 2022. 2. We accepted that there is an extraordinarily high degree of distrust between DEL, on one side, and DZD and USD on the other, each alleging that the other "side" is financially motivated and attempting to exploit EYL. 3. Clearly, there is a need for someone to make decisions in relation to EYL's share of the settlement funds from the sale of Property 1 which are currently held in trust with her solicitor pending the outcome of the hearing. All participants (other than EYL herself) agree that EYL requires placement in an aged care facility. Decisions will be required about how best to fund placement, taking into account considerations relating to the payment of a refundable accommodation deposit and daily fees. Centrelink Income and Assets forms will have to be completed. Arrangements will have to be made to ensure that EYL has enough funds for comforts, clothing and other necessities. Ongoing decisions will be required with respect to EYL's term deposit and savings. Decisions may be required with respect to whether any legal action could be warranted in respect of the transfer of Property 1 from joint tenants to tenants in common and also in respect of the lack of provision for EYL in Ms Y's Will. 4. EYL has spoken of being financially exploited by DZD and USD. At other times she has taken action indicating a lack of trust in DEL such as revoking his power of attorney. We were satisfied that the appointment of a financial manager with the oversight of the NSW Trustee and Guardian would provide a high degree of transparency and may enable EYL to preserve her relationship with all family members. 5. For the reasons set out above, we considered that there is a need for a financial management order to be made to ensure transparency in the management of EYL's affairs. The oversight of the NSW Trustee and Guardian is both a protection to EYL and to a private manager appointed by the Tribunal. We considered that there is a need for the objective and protective oversight provided by the NSW Trustee and Guardian consequent to the appointment of a private financial manager. 6. The Tribunal was satisfied that there is a need to appoint someone to manage EYL's affairs and that it is in her best interests for a financial manager to be appointed. Who should be appointed as financial manager? 1. In appointing a financial manager, as in making all other orders under the Guardianship Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Guardianship Act. 2. Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian. 3. In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court's broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner. 4. On the side of the then Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage. 5. The advantages of the appointment of a private person were more economic management of smaller estates (that is, fewer fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members and friends to act as managers. 6. The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be "more apparent than real," should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family. 7. In Application by AMAM; Re SAM [2011] NSWSC 503, Hallen ASJ stated: "[34] It would be unwise to attempt any definition of the matters that may legitimately be enquired into to determine whether the applicant is suitable. Each case must depend on its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager's character, honesty and ability to manage, diligently, the managed person's property in the managed person's best interests." 1. The matters or "guidelines" that should be considered when determining who to appoint as financial manager, as established in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, are discussed and expanded upon by Lindsay J in M v M [2013] NSWSC 1495 at [50]. 2. USD proposed that she be appointed as the private financial manager subject to the authorities and directions of the NSW Trustee and Guardian. EYL, DEL and Ms X were strongly opposed to this proposal. HBG told us that she believed that an independent financial manager, the NSW Trustee and Guardian, was preferable. Ms T, senior social worker, was not opposed to the appointment of USD given the high level of scrutiny and transparency required for a private financial manager to comply with the requirements of the NSW Trustee and Guardian. She acknowledged that there is no evidence to suggest that USD is not capable or appropriate to be appointed as a private financial manager, indeed the financial statements submitted to the Tribunal do not demonstrate any inappropriate expenditure. USD's actions since her appointment and the activation of the enduring power of attorney appear to demonstrate a commitment to protecting her grandmother from exploitation. 3. EYL's affairs are not complex. We were also cognisant of the fees and delays that can be incurred by the appointment of the NSW Trustee and Guardian as opposed to a private financial manager. As USD pointed out, once a bond has been paid and arrangements established for the payment of daily fees and general expenses, the management of EYL's affairs are not particularly complex or onerous to manage. 4. We acknowledged that USD is the daughter of DZD and also noted EYL's fluctuating views about her daughter during the course of the hearing. USD is experienced in the finance industry and there is no conflict of interest, particularly financial, which would preclude her appointment. She satisfies the probity tests. Importantly, Dr U and the solicitor who witnessed the enduring power of attorney of 13 August 2021 considered that EYL knew what she was doing when she appointed USD as her attorney. We considered that her appointment as the private financial manager subject to the authorities and directions of the NSW would provide sufficient transparency and oversight to provide comfort to DEL and his wife, whilst also acknowledging the views and wishes of EYL at a time that she is presumed to have had the capacity to have made the appointment of USD as her attorney. 5. We were satisfied that USD would ensure that EYL's rights and assets are protected and that she would do so without any conflict of interest, particularly financial. She appeared to understand that the focus of all decisions is the best interests of EYL alone. 6. The Tribunal was satisfied that USD was a suitable person to be appointed as financial manager for EYL subject to the authorities and directions of the NSW Trustee and Guardian. REVIEW OF APPOINTMENT OF ENDURING GUARDIAN & GUARDIANSHIP APPLICATION What did the Tribunal have to decide? 1. On reviewing the appointment of an enduring guardian, the Tribunal may * confirm the appointment of an enduring guardian with or without varying the functions of the appointed enduring guardian * proceed as if an application for guardianship or an application for financial management (or both) had been made or * revoke the appointment, with or without then proceeding as if an application for guardianship or an application for financial management (or both) had been made. 1. The Tribunal must not revoke the appointment of an enduring guardian unless: 1. the enduring guardian requests the revocation; or 2. the Tribunal is satisfied it is in the best interests of EYL that the appointment be revoked. 1. The Tribunal may only proceed as if an application for guardianship or an application for financial management (or both) had been made if it considers it is in the best interests of EYL to do so. 2. The Tribunal may declare that the appointment of DZD has effect if the Tribunal is satisfied that EYL: * has appointed DZD as her enduring guardian and * that EYL is a 'person in need of a guardian'. A 'person in need of a guardian' is a person who because of a disability is totally or partially incapable of managing his or her person: Guardianship Act, s 3(1). A 'person with a disability' is a someone who is: 1. intellectually, physically, psychologically or sensorily disabled; 2. of advanced age; 3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or 4. otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: Guardianship Act, s 3(2). Details of the enduring guardianship appointment 1. On 18 September 2021 EYL appointed DZD as her enduring guardian. The execution of this instrument was witnessed by Mr V, Solicitor, over audio visual link in accordance with s 14G of the Electronic Transactions Act 2000 (NSW). Does EYL have a disability which prevents her from being able to make important life decisions? 1. EYL told us that she is very independent and that she could live on her own with her two cats. EYL had forgotten that her two cats had passed away during her hospitalisation. At other stages during the hearing, she acknowledged that she needs assistance, at one stage saying that she would rely upon DEL, and then later saying that she would go to live with her daughter, DZD. 2. We preferred the medical evidence as outlined above from Dr W and Dr S, the views of HBG and Ms T as well as Ms S, Nurse Unit Manager at the public hospital. These opinions were consistent with a summary of an ACAT assessment that was carried out on 11 May 2022 by Ms R and two reports from Ms Q, RN, and Ms P from Dementia and Behaviour Support Services in relation to their home visit with EYL on the afternoon of 11 May 2022 which culminated in her current admission to hospital. 3. All of this material substantiates a finding that EYL is a person of advanced age, at high risk of falls and fractures, incontinent of both urine and faeces, suffering from moderate to severe Alzheimer's dementia and in need of 24-hour supervision and care. EYL is incapable of living independently due to the combination of her disabilities and she is a person in need of support and supervision. As a result of EYL's cognitive impairment, she is incapable of making important life decisions. 4. EYL's presentation during the hearing was consistent with the medical evidence provided to the Tribunal. 5. All other participants in the hearing agreed that EYL is a person in need of a guardian. Should the enduring guardianship appointment be revoked or confirmed, or should we deal with the review as if it were an application for a guardianship order? 1. It was not disputed that there is a need for decisions to be made about whom EYL should have access to and the conditions of such access. The evidence demonstrates that DZD and DEL are not capable of communicating with each other to enable EYL to have free access to people she wants to see. 2. HBG told us that although DZD, as enduring guardian, had no authority to request limiting EYL's access to anyone, she requested that the hospital not allow DEL to visit their mother in hospital. HBG also reported that DEL has spoken to his mother whilst she has been hospitalised about not letting DZD or USD visit her if they make her feel scared. On some occasions EYL has reported that she does feel anxious around DZD and USD, and then on other occasions she speaks of wanting them to visit. 3. We agreed with the view of HBG that EYL is impressionable and agrees with different family members in order to keep the peace. She is easily influenced and able to be coerced to cease contact with various family members if enough familial pressure is placed upon her. 4. An enduring guardian has no authority to make decisions about access. The participants in the hearing agreed that there is a need for a guardian to be appointed to make decisions about access. The making of a guardianship order has the effect of suspending an appointment of enduring guardian. 5. The medical team and occupational therapist at the hospital recommend permanent placement in a residential aged care facility for EYL because of her increasing care needs. The other participants (excluding EYL) agreed that this was the case. Placement in an aged care facility will allow EYL ongoing relationships with all family members and her friends from the social group. 6. HBG requested that the guardian have the authority to call upon others to implement accommodation decisions as EYL says that she wants to live independently and does not want to live in an aged care facility. We preferred the view of Dr S who acknowledged that EYL says that she does not want to be placed in an aged care facility and yet has settled very well into the hospital routine since her admission on 11 May 2022. EYL is very frail and is not physically capable of attempting to leave a facility. She has made no attempt to leave the hospital and there have been no attempts by any family or friends to remove her. All other participants in the hearing agreed that residential aged care is now required. We were not satisfied that there would be a need for a guardian to call upon others to implement accommodation decisions. 7. The enduring guardian appointment executed by EYL authorised the enduring guardian to make decisions about EYL's accommodation, medical and dental treatment and healthcare and the services that she is to receive. The suspension of the appointment of enduring guardian by making a guardianship order leaves a gap in important decision-making areas of EYL's life. 8. We accepted that there is a high level of distrust, conflict and an inability to communicate between different family members. They clearly would not be able to communicate with each other to make decisions objectively about where EYL should live, her medical and dental treatment, her health care or the services that she receives. 9. We considered that we should treat the review as an application for guardianship to be heard concurrently with the applications for guardianship orders lodged by HBG and DEL. 10. We were satisfied that EYL cannot practicably receive services without this function being attached to an order in her current circumstances. We considered that it would be useful for a services function to be attached to an order to make decisions about any other services from which EYL could benefit, possibly including the engagement of a service provider to take her to her social group. 11. We were satisfied that making a guardianship order would not impair EYL's cultural or linguistic environment. It is reported that at times she has felt isolated and scared when living alone or with her daughter and son-in-law. She has settled very well into hospital and may benefit from and enjoy the environment in a residential aged care facility. 12. We also considered that making a guardianship order would enable EYL to preserve and maintain her relationships with her children and extended family. 13. Accordingly, we made a guardianship order with the functions of access, accommodation, medical and dental treatment and healthcare. Who should be the guardian? 1. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Guardianship Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep, and Re B [2011] NSWSC 1075, [66]). 2. In P v D1 & Ors [2011] NSWSC 257 the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest. 3. The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed: Guardianship Act, s 15(3). 4. The Supreme Court has held that: "the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25])." 1. At the hearing it was agreed by all the participants, other than EYL who was unable to provide a view about this issue, that an independent guardian was needed. All the participants supported the appointment of the Public Guardian who could consult with EYL, her family and other interested people to make decisions objectively and in her best interests alone. 2. We therefore appointed the Public Guardian. How long should the order last? 1. An initial guardianship order can be made for a period of up to one year from the date on which it was made. 2. We decided to make a guardianship order for 12 months. ********** 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: 05 August 2022