FX v NSW Trustee and Guardian and anor [2012] NSWADT 184

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: FX v NSW Trustee and Guardian and anor [2012] NSWADT 184 Hearing dates: 30 March 2012, 31 July 2012 and 14 August 2012 Decision date: 05 September 2012 Jurisdiction: General Division Before: P H Molony, Judicial Member Decision: The decisions under review are affirmed. Catchwords: Guardianship -access to protected person NSW Trustee and Guardian - sale of home Legislation Cited: Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 NSW Trustee and Guardian Act 2009 Cases Cited: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 FW and FX v Protective Commissioner [2009] NSWADT 36 FX v NSW Trustee and Guardian (GD) [2009] NSWADTAP 61 FX v NSW Trustee and Guardian (External) [2011] NSWADTAP 5 FX v NSW Trustee and Guardian (External) [2011] NSWADTAP 31 K v K [2000] NSWSC 1052 Category: Principal judgment Parties: FX (Applicant) NSW Trustee and Guardian (Respondent in 123022) The Public Guardian (Respondent in 123121) Representation: FX (Applicant, in person) D French (Respondent) File Number(s): 123022 and 123121 Publication restriction: Section 126 Administrative Decisions Tribunal Act 1997

REASONS FOR DECISION

Introduction 1FW is an 83 old woman who has been a high care, permanent resident of a nursing home in a country NSW since February 2011. She is reported to have moderate to severe dementia, to be doubly incontinent, and to be reliant on others for her care. She suffers from heart disease, stress and anxiety. She is recovering from colorectal cancer. According to her son, FX, FW was first diagnosed with dementia in 1994. 2FX cared for FW for some years prior to her admissions to care in August 2010. FW also has a daughter, OS. FX and his sister are estranged. According to FX, FW is also estranged from her daughter. There has been Supreme Court litigation involving all three of them concerning the estate of FW's late husband and the provisions made for her. 3On 1 August 2001 the Guardianship Tribunal made an interim financial management order for FW, and committed the management of her estate to the Protective Commissioner (now the NSW Trustee and Guardian). A final financial management order appointing the Protective Commissioner was made on 17 April 2002. 4Since 2010 there have been a series of proceedings in the Guardianship Tribunal, this Tribunal, and the Court of Appeal concerning FW's welfare and estate. 5On 21 May 2010 the Guardianship Tribunal dismissed FX's application to review the financial management order relating to his mother, and confirmed to appointment of the NSW Trustee and Guardian as her financial manager. 6On 16 November 2012 the Guardianship Tribunal made a temporary guardianship order appointing the Public Guardian as FW's guardian for one month with the functions of accommodation (including coercive powers), health care, medical and dental consents and services. OS made that application. The temporary order was made following FX removing his mother from a respite facility, in circumstances where he had previously said he had no intention of doing so, without first seeking advice from and consulting the facilities manager. His explanation was that the facility had failed to provide appropriate care for his mother, despite his request that they do so. 7The Guardianship Tribunal was satisfied that FX did not consult the manager and had always intended to remove his mother from the faculty for the purposes of an upcoming court hearing. The Tribunal expressed concern that FX did not appreciate his mother's care needs, and was unable to provide the care she needed. As a result, it made the temporary guardianship order and appointed a separate representative for FW. 8A consequence of the order was that FX's appointment as his mothers enduring guardian, by an instrument dated 15 October 2010, was suspended during the operation of the Tribunal's order: s 61 Guardianship Act 1987. it remains suspended. 9On 14 December 2010 the Guardianship Tribunal reviewed that order and made a 6 week continuing guardianship order appointing the Public Guardian as FW's guardian with the functions of accommodation (including the powers to call on assistance), health care, medical and dental consents and services. At the same time OS was joined as party to the guardianship proceedings. 10A reading of the reasons for that decision reveals that - * The Member of the Guardianship Tribunal hearing the matter heard FX instruct FW to tell a support officer that she (FW) did not wish to take part in the hearing. * FW's appointed separate representative told the Tribunal that she was "unable to make a meaningful decision of her own." * Both FX and FW wanted her to return to live in her own home and be cared for by FX. * At the end of the hearing FX announced his intention to appeal the decision, and said he would contact his MP to a arrange a full Ministerial Inquiry and would "immediately remove his mother..." 11On 19 January 2011 the Guardianship Tribunal reviewed that order and made a 12 month continuing guardianship order appointing the Public Guardian as FW's guardian with the functions of accommodation (including the powers to call on assistance), health care, medical and dental consents, services and access. When making that order the Tribunal noted FX supported the appointment of a guardian for his mother, with each of those functions, but argued that he should be appointed to fulfil that role. In appointing the Public Guardian the Tribunal expressly made no adverse finding against FX. 12On 20 March 2012 the Guardianship Tribunal reviewed that order and made a 12-month continuing guardianship order appointing the Public Guardian as FW's guardian for one month with the functions of accommodation (including powers to call on assistance), health care, medical and dental consents, services and access. A reading of the reasons for that decision reveals that - * There was evidence before the Tribunal from senior staff of the nursing home of the need for a continuing assess function "in the light of difficulties which the facility had in dealing with antagonistic which had arisen on one or two occasions when FX had attended the facility." * The Public Guardian supported the continuation of the access function "in the light of several statements made to the Public Guardian by FX to the effect that he intended to take his mother from the facility" without the guardian's permission. * FX while agreeing with the appointment of a guardian for his mother "because her dementia was likely to become worse' told the Tribunal that she was presently able to make lifestyle decisions for herself, provided that time and patience were exercised in explaining things to her. * The Tribunal found that FX was not a suitable person to be appointed as his mother's guardian for a number of reasons. One of these was that - Although it is clear that FX cares deeply for this (sic) mother and that she also fells strongly for her son, the Tribunal unfortunately is not satisfied that FX has sufficient insight into his mother's care needs to be suitable for appointment as her guardian, or that such appointment would be in her best interest. 13In this Tribunal FX has - * Unsuccessfully, at first instance, sought to review a decision of the NSW Trustee and Guardian to wind up a sole trader business of his mother's: FW and FX v Protective Commissioner [2009] NSWADT 36. * Successfully appealed that decision to an Appeal Panel, with the result that the decision to wind up the business was set aside: FX v NSW Trustee and Guardian (GD) [2009] NSWADTAP 61. * Sought to appeal the decision of the Guardianship Tribunal made in May 2010 to dismiss his application to revoke the financial management order. That appeal was made out of time and an extension of time was refused: FX v NSW Trustee and Guardian (External) [2011] NSWADTAP 5. * Unsuccessfully appealed the guardianship order made by the Guardianship Tribunal on 19 May 2011 to an Appeal Panel of this Tribunal: FX v NSW Trustee and Guardian (External) [2011] NSWADTAP 31 14FX subsequently sought to appeal the decision of that Appeal Panel to the Court of Appeal. It is agreed that his appeal was dismissed in August 2012 on the basis that it had no utility, as the order appealed again had been supplanted by the subsequent guardianship order made by the Guardianship Tribunal.