NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: UCC [2015] NSWCATGD 50 Hearing dates: 2 September 2015 Date of orders: 02 September 2015 Decision date: 02 September 2015 Jurisdiction: Guardianship Division Before: J Anderson, Senior Member (Legal) M Matheson, Senior Member (Professional) M McCalman, General Member (Community) Decision: Guardianship order made for 12 months; private and alternate private guardian appointed to make decisions about accommodation, health care, and medical and dental treatment. Financial management order made; two private managers appointed jointly and severally; order to be reviewed in 12 months. Catchwords: GUARDIANSHIP – application for the appointment of a guardian – person in respite care after admission to hospital as an involuntary patient – consideration of factors in section 14 of the Guardianship Act 1987 (NSW) – concerns about the person travelling overseas at risk to himself – decisions can no longer be managed informally – guardianship order made – who should be appointed as guardian – consideration of section 17 of the Guardianship Act 1987 (NSW) – private guardian and alternate guardian appointed FINANCIAL MANAGEMENT – application for the appointment of a financial manager – whether the person is incapable of managing their affairs – need for a financial manager – best interests – financial management order made – consideration of section 25M of the Guardianship Act 1987 (NSW) – who should be appointed as manager – private managers appointed jointly and severally – reviewable order made Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, and 25M Mental Health Act 2007 (NSW) Cases Cited: C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court 29 November 1999 H v H (unreported) NSW Supreme Court 20 March 2000 McD v McD (1983) 3 NSWLR 81 PY v RJS [1982] 2 NSWLR 700 Re GHI (a protected person) [2005] NSWSC 581 Category: Principal judgment Parties: Mr UCC (subject person) Mrs NAC (an applicant and spouse of Mr UCC) Ms IQC (an applicant) The Public Guardian The NSW Trustee and Guardian File Number(s): 59897 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify a person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)). REASONS FOR DECISION What the Tribunal decided 1. The Tribunal appointed Mrs NAC as Mr UCC's guardian, and Ms IQC as alternative guardian for a period of 12 months to make decisions on his behalf about his accommodation, health care, and medical and dental treatment as set out in the Tribunal's Order. AND 1. The Tribunal appointed Mrs NAC and Ms IQC jointly and severally as Mr UCC's financial managers, subject to the authorities and directions ordered by the NSW Trustee and Guardian. Background 1. Mr UCC is a 75-year gentleman who is currently in respite care at an aged care facility in Northern Sydney. On 14 January 2015, Mr UCC was admitted to the Aged Care Psychiatry and Neurology Unit of a public hospital in West Sydney as an involuntary patient under the Mental Health Act 2007 (NSW). Prior to his hospital admission, Mr UCC lived with his wife, Mrs NAC, in their home at Sydney's Inner West. Mr UCC and Mrs NAC have three children: Ms IQC, Mrs SPL, and Mr KPC. 2. On 3 July 2015, the Tribunal received an application for the appointment of a guardian and financial manager for Mr UCC, by Mrs NAC and Ms IQC. The Hearing 1. At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing. [Appendix removed for publication.] What did the Tribunal have to decide? GUARDIANSHIP 1. The questions which had to be decided by the Tribunal in relation to guardianship were: * Is Mr UCC someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions? * Should the Tribunal make a guardianship order and if so, what order should be made? * Who should be the guardian? * How long should the order last? Is Mr UCC someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions? 1. Section 14 of the Guardianship Act 1987 (NSW) ('the Guardianship Act') provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she 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" (s 3(1), Guardianship Act). A person with a disability is a person 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; 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 (s 3(2), Guardianship Act). 1. The Tribunal had before it a report of Dr Z, Psychiatry Registrar dated 3 July 2015; a report of Dr Y, Clinical Neuropsychologist dated 30 June 2015; and a report of Ms X, Social Worker dated 22 July 2015. 2. The evidence of the health professionals indicate Mr UCC has a mental illness, namely, Schizophrenia, which was first diagnosed in 1972. He has had multiple hospital admissions since that time, and his treatment has included anti-psychotic medication. Notwithstanding treatment, Mr UCC continues to have residual symptoms of his Schizophrenia. His condition is characterised by complex delusions, including being subject to ASIO surveillance and having a significant financial interest in IKEA. As well as mental illness, Mr UCC has significant cognitive impairment and severe functional impairment which has been identified following neuropsychological and occupational therapy assessments. 3. Mr UCC has had a number of months of treatment during his recent hospital admission without improvement in his symptoms. It is believed that Mr UCC's degree of cognitive impairment is likely to be irreversible. Dr Z reports Mr UCC lacks insight into his mental illness, and lacks capacity to make decisions about his future accommodation, care and medical treatment. 4. On all of the evidence before it, the Tribunal is satisfied that Mr UCC has a disability which prevents him from making important life decisions. He is a person for whom the Tribunal could make a guardianship order. Should the Tribunal make a guardianship order and what order should be made? 1. Mr UCC attended the hearing accompanied by his wife and daughter. Mr UCC maintained that he could not give appropriate consideration to the issues, nor could he make decision at the present time as he is being controlled by psychologists and psychiatrists who have a prerogative to maintain him on psychological and psychiatric treatment. Indeed, Mr UCC expressed this belief on a number of times throughout the course of the Tribunal hearing. [Mrs NAC indicated that this was part of Mr UCC's delusional belief that he is part of an experiment. She said that an adjournment of the hearing would not change his view or make any difference to his capacity to participate in the proceedings]. 2. At the same time, Mr UCC indicated on several occasions that he is not opposed to his wife and daughter's judgement and assistance in his affairs. 3. The applicants indicate that Mr UCC's cognition has deteriorated over the last year. In particular, over this time Mr UCC has experienced memory problems and has had difficulties completing tasks he was previously familiar with, such as cooking and shopping. The symptoms of Mr UCC's mental illness also became more pronounced and the family feared he was about to act on a delusion by travelling alone interstate. Mr UCC was considered to be at sufficient risk such as to warrant his detention under the Mental Health Act. Mr UCC was admitted to a public hospital in West Sydney as an involuntary patient, where he remained for approximately seven months until his entry into respite care on 10 August 2015. 4. Mr UCC has indicated a desire to return home. However, the health professionals involved in Mr UCC's treatment and care are of the view that he requires increased care and they support his entry into residential care. It is understood that a permanent place may be available for Mr UCC at an aged care facility. 5. Mr UCC has a number of physical health concerns including in relation to his kidneys, which have only 30% function. He also has Type-2 diabetes and high blood pressure. As well, Mr UCC has a history of skin cancer, and has an obvious lesion on his forehead. Mrs NAC states her husband is in denial about his health issues and does not understand their medical implications. 6. Mrs NAC and Ms IQC are of the view that a guardianship order should be made. Their view is shared by Mr UCC's other children, Mr KPC, and Mrs SPL. They are concerned Mr UCC will not be agreeable to accommodation other than the family home. They are also concerned that he may try to leave the facility and travel interstate, as was his intention earlier this year. Tribunal consideration 1. Section 14 of the Guardianship Act requires the Tribunal, in considering whether to not to make a guardianship order, to have regard to the following: 1. the views (if any) of: 1. the person, and 2. the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and 3. the person, if any, who has care of the person, 1. the importance of preserving the person's existing family relationships, 2. the importance of preserving the person's particular cultural and linguistic environments, and 3. the practicability of services being provided to the person without the need for the making of such an order. 1. The Tribunal is satisfied that a guardianship order should be made. The Tribunal finds that Mr UCC, as a result of his mental illness and cognitive impairment, lacks insight into his increased care needs and his need for treatment. As a result, he is not likely to recognise risks and voluntarily seek, agree to and obtain all of the necessary treatment and care his current circumstances now require. 2. The Tribunal formed the view that it was appropriate that a guardian be appointed to make decisions that carefully balance Mr UCC's wishes with the other principles in s 4 of the Guardianship Act. 3. The Tribunal notes that for many years Mr UCC's family has been able to informally manage decision-making, even when Mr UCC's mental state has declined. However, it appears his emerging cognitive impairment has given rise to new complexities, and decisions in relation to his accommodation, health care and treatment are likely to be required. These include decisions with which Mr UCC may not necessarily agree. 4. Therefore, on all of the evidence before it, the Tribunal was satisfied that current arrangements are no longer adequate to enable decisions to be made informally and a guardianship order should be made. What decision making functions should be included in the order? 1. The Tribunal finds that there are decisions needed to be made by a guardian in a number of areas of Mr UCC's life, including in relation to his accommodation, health care and medical and dental treatment. Who should be the guardian? 1. 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. 2. Mrs NAC and Ms IQC have indicated their willingness to be appointed as guardians for Mr UCC. Their appointment is supported by Mr UCC's other children, Mr KPC, and Mrs SPL. 3. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17 of the Guardianship Act. He/she must: * have a personality generally compatible with the personality of the person under guardianship; * have no undue conflict of interest (particularly financial) with those of the person; and * be able and willing to exercise the functions of the order. 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 (per Windeyer J in C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court 29 November 1999). 2. It is evident that Mrs NAC and Ms IQC love and care deeply for Mr UCC. They are united in their genuine concern for his welfare and have demonstrated an ability to work collaboratively in his best interests. They visit him frequently and are in regular contact with the health professionals involved in his treatment and care. 3. The Tribunal noted that in respect of Mr UCC's current health issues, Mrs NAC and Ms IQC (who is a medical scientist) have been liaising with the relevant health professionals and have demonstrated a capacity and availability to make decisions as required. The Tribunal decided to appoint Mrs NAC as Mr UCC's guardian, and Ms IQC as alternative 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. However, an order of up to three years can be made if the person the subject of the order has permanent disabilities, is unlikely to become capable of managing his or her person and there is the need for an order longer than one year. The Tribunal decided to make an order for 12 months to enable important decisions to be made during this period. FINANCIAL MANAGEMENT 1. The questions which had to be decided by the Tribunal in relation to financial management were: * Is Mr UCC incapable of managing his affairs? * Is there a need for another person to manage Mr UCC's affairs and is it in his best interests for a financial management order to be made? * If so, who should be appointed financial manager? Is Mr UCC incapable of managing his affairs? 1. A person's capability to manage his or her affairs was considered by Campbell J in the NSW Supreme Court in Re GHI (a protected person) [2005] NSWSC 581. Campbell J affirmed the approach enunciated in PY v RJS [1982] 2 NSWLR 700 by Powell J, at [7]: It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears: (a) that he or she is incapable of dealing, in a reasonably competent fashion with the ordinary routine affairs of man; and (b) that by reason of that lack of competence there is shown to be a real risk that either (1) he or she may be disadvantaged in the conduct of such affairs; or (ii) that such moneys or property that he or she may possess may be dissipated or lost...it is not sufficient in my view merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner... 1. Young J in H v H (unreported) NSW Supreme Court 20 March 2000, in dealing with the capacity test as it has been enunciated in NSW, said that dealing with the "ordinary affairs of man" does not simply mean being able to go to the bank and draw out housekeeping money. Most people's affairs, his Honour said, are more complicated than that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one's family and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills. 1. It should be noted that 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. Mr UCC has not been in paid employment since 1978. Mrs NAC previously worked as a teacher to support the family and has managed all of her and her husband's finances. This includes the paying of household bills and expenses, and liaising with Centrelink and the Australian Taxation Office on Mr UCC's behalf. 3. Mr UCC's mental illness is characterised by a delusion that he owns 30 % of IKEA, and has financial interests in other well-known entities. However, during the Tribunal hearing Mr UCC was unable to provide any details of his usual income and assets. 4. The professional evidence as it relates to the application for guardianship is also relevant to the application for financial management. Having regard to Mr UCC's disabilities, including the progressive nature of his cognitive impairment, and the type of legal and financial decisions arising in the immediate future, the Tribunal was satisfied on all of the evidence that Mr UCC is incapable of managing his affairs. Is there a need for another person to manage Mr UCC's affairs and is it in his best interests for a financial management order to be made? 1. Mr UCC and Mrs NAC own their home jointly. They also have joint bank accounts. Mr UCC receives a part pension from Centrelink, which is informally managed on his behalf by Mrs NAC. Mr UCC also receives a monthly MLC allocated pension of $1260.00, which was established following his inheritance from his late mother's estate. This allocated pension comprises approximately $270,000 and is in Mr UCC's sole name. Mr UCC has not previously made a power of attorney, and it appears there is no legal authority for a third party to access or operate the MCL allocation pension account. 2. There are important decisions that need to be made about Mr UCC's long-term accommodation which will impact upon his finances. In the event that Mr UCC enters into permanent residential care there will be a number of financial implications. Agreements will be required to be entered into, and an Assets Statement completed for Centrelink purposes. 3. Accordingly, on all of the evidence before it, the Tribunal was satisfied that there is a need to appoint someone to manage Mr UCC's affairs and it is in his best interests that an order be made. Who should be appointed 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. Mr UCC expressed that an actuary should be appointed in relation to his financial affairs. At the same time, he did not appear to object to the involvement of his wife and daughter. 4. Mrs NAC and Ms IQC indicated their preparedness to become financial managers of Mr UCC's estate. Mrs NAC is already responsible for all of the financial budgeting of the household and seeks assistance from her son and financial planner as required. Ms IQC wishes to be able to assist her mother in such matters. It was apparent that Mrs NAC and Ms IQC are united in their approach to Mr UCC's best interests and communicate well with each other. On the evidence before it, the Tribunal was satisfied that Mrs NAC and Ms IQC were suitable persons to be appointed jointly and severally as financial managers for Mr UCC subject to the authorities and directions of the NSW Trustee and Guardian. Order with a Specified Review Period 1. There are likely to be a number of decisions to be made about Mr UCC's finances that will require the involvement of a financial manager. However, it may be that Mrs NAC and Ms IQC are able to finalise such decisions and establish an appropriate method for the ongoing management of Mr UCC's estate. If this situation is to occur, there may no longer be a need for a financial management order to remain in place. Accordingly, the Tribunal decided that the order should be reviewed in 12 months, at which time those matters (and any other relevant matters) can be further considered. ********** 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: 15 June 2016