NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: HNI [2016] NSWCATGD 12 Hearing dates: 16 February 2016 Date of orders: 16 February 2016 Decision date: 16 February 2016 Jurisdiction: Guardianship Division Before: P Molony, Senior Member (Legal) M Burke, Senior Member (Professional) L Esdaile, General Member (Community) Decision: Public Guardian appointed for a period of 6 months to make decisions about accommodation and what support services required. Catchwords: GUARDIANSHIP – Application for guardianship order – considered in best interests not to seek subject person views – non-financial conflict of interest – financial conflict of interest due to proceedings under Succession Act 2006 (NSW) – importance of preserving family relationships. Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 15(3), 17(1) Succession Act 2006 (NSW) Cases Cited: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Kirby J, 29 November 1999, unrep) IF v IG [2004] NSWADTAP 3 P v D1 [2011] NSWSC 257 Re B [2011] NSWSC 1075 Category: Principal judgment Parties: Miss HNI (subject person) Mr IAG (applicant) Ms DMU (party joined by the Tribunal) The NSW Public Guardian Representation: Nil File Number(s): 61102 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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)). REASONS FOR DECISION GUARDIANSHIP APPLICATION What the Tribunal decided 1. The Tribunal appointed the Public Guardian as Miss HNI's guardian for a period of six months to make decisions on her behalf about her accommodation and about services which she should receive as set out in the Tribunal's order. Background 1. Miss HNI is a 69-year-old single woman who is a resident of an aged care facility in regional NSW. Miss HNI was born with Cerebral Palsy, a developmental cognitive disability, and congenital deafness. In 2006, she suffered a stroke which left her with a left hemiparesis, which severely impacted on her mobility. She has since been diagnosed with "a degree of dementia". She is wheel chair bound. 2. Miss HNI has been living at the aged care facility since 2012, when she moved there with her parents, after her mother had a fall. Before that, Miss HNI had been living at another aged care facility, also in regional NSW following her stroke, while her parents resided in their own home in regional NSW. 3. Miss HNI has a brother, Mr IAG, who is a long-term resident of regional NSW where he runs the family business. Miss HNI also has a sister, Ms DMU, who is married with adult children, and resides in Canberra. Ms DMU left regional NSW in 1966 and has not lived with Miss HNI on a permanent basis since then. She has maintained regular contact with Miss HNI and a constant interest in her welfare. 4. There is some conflict between Mr IAG and Ms DMU as to their comparative contributions to Miss HNI's welfare. 5. Miss HNI's parents are now deceased: her mother dying in 2013 and her father in May 2014. 6. Mr IAG is the executor of his father's will, and the substantial beneficiary of his estate. The will also makes provision for Ms DMU, but does not make any provision for Miss HNI. There are however a number of trusts, of which Miss HNI is the principal beneficiary, established by her father prior to his death, which make provision for Miss HNI's future care. The Tribunal was not provided with financial details relating to the estate or the trusts. Ms DMU is the trustee of those trusts, and the residuary beneficiary on Miss HNI's death. 7. Following their father's death, Ms DMU commenced proceedings in the Supreme Court of NSW under the Succession Act 2006 (NSW) claiming that her father had not made adequate provision for her in his will. She is also funding a similar claim brought by her daughter Ms ESO (as tutor) on Miss HNI's behalf. Both claims were being defended by Mr IAG as executor of his father's estate. 8. Ms DMU told the tribunal that she has since discontinued her own claim against the estate, but Miss HNI's claim remains on foot. It is being resisted by the estate. 9. On 23 December 2015, Mr IAG filed an application for the appointment of a guardian for Miss HNI. He proposed himself as guardian. He explained, among other things, that Ms DMU wished to move Miss HNI to a nursing home in Canberra, and that he was of the belief that this was not in her best interest. He was therefore applying for a guardianship order for Miss HNI. 10. Ms DMU was joined as a party to the application on her own application. She proposed herself as guardian for Miss HNI. She told the Tribunal there was a degree of urgency to the decision making, as an offer had been made of accommodation for Miss HNI in a new aged care facility in Canberra. The hearing 1. At the end of these Reasons for Decision are lists of the parties to the application and the persons who attended the hearing. [Appendix removed for publication.] 2. At the commencement of the hearing, the Tribunal noted that it had just received Mr IAG's response to matters raised by Miss HNI's in her written submissions to the Tribunal. Before the hearing proceeded the Tribunal provided Ms DMU with a copy of that document and allowed her time to read and digest it. She indicated that she was able to respond to it. Settlement 1. The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. The Tribunal was able to confine the issue in dispute to that of who should be appointed as guardian for Miss HNI. There was no dispute between the parties, and the Tribunal was satisfied on the papers, that Miss HNI is a person with a disability who, as a consequence, is at least partially unable to make decision concerning her own care. Similarly, there was no dispute, and the Tribunal was satisfied, that as a consequence of the dispute concerning where should live, there is a present need for a guardian to be appointed for. 2. The Tribunal undertook a dispute resolution process with Mr IAG and Ms DMU to see if they could reach agreement about where Miss HNI should reside. Unfortunately, this was unsuccessful, necessitating a determination by the Tribunal. What did the Tribunal have to decide? 1. The questions which had to be decided by the Tribunal were: * Is Miss HNI someone for whom the Tribunal could make an order because she has a disability which prevents her 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 Miss HNI someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions? 1. Section 14 of the Guardianship Act 1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that 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 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 (s 3(2), Guardianship Act). 1. The Tribunal had before it a number of reports concerning Miss HNI's disability and decision-making capacity. These were from: * Dr Z, Miss HNI's GP since she returned to live in regional NSW following her stroke. He wrote that Miss HNI, "had a profound intellectual disability and is incapable of looking after her own affairs". He expressed the opinion that Miss HNI is happy and comfortable at the aged care facility where she is currently residing, has friends there and is well supported by Mr IAG. He supported Mr IAG's application to be appointed as her guardian. * Ms Y, the Director of Care at the aged care facility, who has nursed Miss HNI for three years. Ms Y said that Miss HNI's last "Psychogeriatric Assessment Scale conducted on 6 May 2014 has a result of 19.89, indicating moderate – severe cognitive impairment." Ms Y said that she believed Miss HNI, "is unable to make important life decision and needs a guardian to decide and act on her behalf". * A medico-legal report prepared by Professor X, Psychiatrist, dated May 2015, prepared for the Succession Act proceedings. Professor X visited Miss HNI for the purpose of preparing this report. In it she noted that Miss HNI expressed a desire to move to Canberra. She expressed the opinion that Miss HNI has "severe cognitive dysfunction". She added that Miss HNI has the capacity to express a view about which state she should live in; which view should be respected "as much as possible". She noted that, irrespective of where she lived, Miss HNI required the level of care provided in a nursing home. * A medico-legal report from Dr W, Rehabilitation Physician, dated 1 June 2015. This is a follow up report to an earlier report of 15 May 2015 (a copy of which was not provided to the Tribunal). In it he discussed the benefits and detriments of a number of scenarios whereby Miss HNI's contact with Ms DMU could be increased. These included obtaining a small flat for Ms DMU in regional NSW in which she could stay when visiting, and moving Miss HNI to a nursing home in Canberra. His report concluded – [Miss HNI] has [a] serious disability, including development cognitive disability and a stroke caus[ing] a left hemiparesis. She does have a degree of dementia and would benefit from nursing home arrangements which would improve the capacity of her sister [Ms DMU] to visit and support [Miss HNI], and would improve the availability of services for [Miss HNI]'s overall well-being and quality of life. * An Occupational Therapy Assessments dated 3 to 15 June 2105, prepared by Ms V for medico legal purposes. In the report, Ms V sets out her opinion as to the various services and supports Miss HNI requires. In the executive summary, Ms V states that Miss HNI has been assessed as "having the capacity to determine where she lives". 1. The weight of these assessments point to Miss HNI being cognitively impaired as a result of a number of factors, and being unable to make decisions concerning her own care as a result. While Ms V said Miss HNI had been assessed as being able to decide for herself where she should live, the Tribunal does not accept this characterisation of the opinion expressed by Professor X. As noted above her opinion was that that Miss HNI has the capacity to express a view about which State she should live in. 2. The Tribunal is satisfied that Miss HNI has a disability which prevents her from making important life decisions. She is a person for whom the Tribunal could make a guardianship order. Both Mr IAG and Ms DMU agreed with that conclusion. Should the Tribunal make a guardianship order and what order should be made? 1. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a guardianship order: 1. the views (if any) of: 1. the person, and 2. the person's spouse, and 3. the person's carer and 1. the importance of preserving the person's existing family relationships, and 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. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2). When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3). 2. The Tribunal had great difficulty in understanding Miss HNI, although it was apparent from some of her reactions that she was following the proceedings at times. Ascertaining her views was not possible. 3. The Tribunal also chose not to ask Miss HNI directly for her views about the guardianship application during the course of the hearing. This was because she is obviously close to both her brother and her sister, and we did not consider it in her best interest to require her to express a view on the issue in contention (who should be guardian) in their presence. This is consistent with the guiding principle of the Guardianship Act that the Tribunal is to act in Miss HNI's best interest. In any case, we could not understand her. 4. Both Mr IAG and Ms DMU considered that Miss HNI requires a guardian to resolve the issues concerning where she should live and what support services she requires. 5. It was clear to the Tribunal from their written and oral evidence that both Mr IAG and Ms DMU have, throughout their respective lives, maintained an active and concerned interest in Miss HNI's welfare, and have maintained as regular contact with her as possible, given their differing locations. While each sought to maximise their own involvement in Miss HNI's life, and minimise that of the other, the Tribunal thought that the true position was that both Ms DMU and Mr IAG have maintained an active and loving interest in Miss HNI's welfare, through both frequent visiting, personal interactions with her, and attending to her needs. An example of this, from the evidence, is that it is clear that they have both made decisions concerning her health care, as Miss HNI's person responsible, since her parents died. The aged care facility approaches them both. 6. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made, so that a determination can be made about where Miss HNI should live and what services she requires. Who should be the guardian? 1. Both Ms DMU and Mr IAG proposed themselves as guardian for Miss HNI. 2. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Guardianship Act. He/she must: 1. have a personality generally compatible with the personality of the person under guardianship, 2. have no undue conflict of interest (particularly financial) with those of the person, and 3. 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 (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Kirby J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, at [66]). 2. In P v D1 [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 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. 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 (s 15(3), Guardianship Act). 2. The Tribunal accepted that both Mr IAG and Ms DMU have personalities that are compatible with that of Miss HNI. Indeed, we accepted that they each have a close and continuing relationship with Miss HNI. We were also satisfied that they were both willing to exercise the functions of a guardianship order. 3. With respect to Mr IAG we considered that he, as executor of the estate of his father and principle beneficiary of his will, had a financial conflict of interest which precluded his appointment as Miss HNI's guardian. This arose from his defence, as executor, of Miss HNI's claim under the Succession Act, and from the fact that his own financial position stands to be adversely affected if the Court makes orders for provision to be made for Miss HNI out of the estate. We put this to Mr IAG who did not see the conflict, because, he said, he would always care for Miss HNI and see that her needs are met. 4. Further, Mr IAG made it clear in his evidence to the Tribunal that were he appointed as guardian for Miss HNI he would determine that she remain in regional NSW. He was dismissive of the concerns raised by Ms DMU regarding Miss HNI remaining in regional NSW, and of the possible benefits to Miss HNI of living in Canberra. He was also dismissive of Miss HNI's reported expressions of opinion in favour of moving to Canberra, taking the view that she had been manipulated into expressing those views. 5. The Tribunal considered that these expressions of opinion by Mr IAG demonstrated that his mind was made up on the issue of where Miss HNI should live, and that his view as to where she should live coincided with what was in his interest. We considered that this demonstrated a non-financial conflict of interest, and raised real doubts as to whether Mr IAG, if appointed guardian, would be able to make decisions in Miss HNI's best interest in accordance with the principles set out in s 4 of the Guardianship Act. 6. As a result, we determined not to appoint Mr IAG as Miss HNI's guardian at this time. 7. With respect to Ms DMU we considered that she too had a perceived conflict of interest (though not of the scale confronting Mr IAG), which arose from the fact that her entitlements under her father's will could be adversely affected, if the Court makes further provision for Miss HNI's benefit. She also is in a position of perceived conflict as the residuary beneficiary of the trusts established for Miss HNIs benefit and support. Ms DMU dismissed this, pointing out that she was funding the proceedings being brought on Miss HNI's behalf. 8. More importantly, we were satisfied that were we to appoint Ms DMU as Miss HNI's guardian she had already made up her mind about the decision she would make; i.e. to move Miss HNI to Canberra. She was dismissive of the legitimate concerns raised by Mr IAG concerning the impact of the dislocation, from her present settled arrangement, on Miss HNI, and whether a move to Canberra is in her best interest. When the Tribunal put to Ms DMU that her mind was already made up, she responded that if appointed she would be guided by Miss HNI's views. If that were the only basis of her decision making as guardian, then she would not be conducting her decision making in accordance the s 4 principles. 9. As already noted, we were persuaded that Ms DMU had already determined to move Miss HNI to Canberra if appointed as guardian. The fact that she has already applied for a place at a new aged care facility in Canberra demonstrated this. Her mind is already made up. Her proposed decision coincides with what is in her best interest. As was the situation with Mr IAG, we considered that this demonstrated a non-financial conflict of interest, and raised real doubts as to whether Ms DMU, if appointed guardian, would be able to make decisions in Miss HNI's best interest in accordance with the principles set out in s 4 of the Guardianship Act. 10. As a result, we determined not to appoint Mr IAG as Miss HNI's guardian at this time. 11. As there is no private person available to be appointed as guardian, the Tribunal appointed the Public Guardian. 12. The Tribunal considered that what is required of the Public Guardian is a once off decision as to where Miss HNI should live, and what support services she should receive, The Tribunal considered that such a decision could be made, implemented, and allowed some time to settle in six months. We therefore determined to review the order in six months' time. ********** 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 Amendments 25 August 2016 - Catchwords updated 04 October 2016 - Matter before: P Molony, Senior Member (Legal) M Burke, Senior Member (Professional) L Esdaile, General Member (Community) 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: 04 October 2016