NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FND [2015] NSWCATGD 55 Hearing dates: 27 October 2015 Date of orders: 27 October 2015 Decision date: 27 October 2015 Jurisdiction: Guardianship Division Before: J Anderson, Senior Member (Legal) S Taylor, Senior Member (Professional) A Wannan, General Member (Community) Decision: Enduring Guardianship reviewed; enduring guardianship revoked. Enduring Power of Attorney reviewed; declined to make orders. Guardianship order made; private guardian and Public Guardian appointed for 12 months with separate functions, private guardian appointed with medical and dental functions, Public Guardian appointed with accommodation and access functions. Financial order made; NSW Trustee and Guardian appointed. Catchwords: REVIEW OF ENDURING GUARDIANSHIP – enduring guardian instrument not executed in accordance with requirements – enduring guardian deceased – no alternative (substitute) guardian – appointment of enduring guardian revoked REVIEW OF ENDURING POWER OF ATTORNEY – Tribunal declined to make orders – power of attorney suspended by Tribunal financial management order GUARDIANSHIP – enduring guardianship instrument revoked –consideration of factors in section 14 of the Guardianship Act 1987 (NSW) – family conflict – preserving subject person's family relationships – consideration of subject person's best interests – appointment of Public Guardian with accommodation and access functions – appointment of private guardian with medical and dental functions FINANCIAL MANAGEMENT – need for a financial management order – who should be appointed as manager – separate representative's views considered – consideration of subject person's welfare – financial management order made – NSW Trustee and Guardian appointed – order to be reviewed in 12 months Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 37, 38, 67 Guardianship Act 1987 (NSW), Part 2; Part 3A; ss 3(1), 3(2), 4, 14, 14(2), 15(3), 17(1), 25M Mental Health Act 2007 (NSW) Powers of Attorney Act 2003 (NSW), ss 36, 36(1), 36(2), 37, 46(2), 50 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 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 IF v IG [2004] NSWADTAP 3 P v D1 [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 Category: Principal judgment Parties: Ms FND (appointor) Ms TBD (appointed enduring guardian, a person appointed by a power of attorney, applicant, and carer) The Public Guardian The NSW Trustee and Guardian Representation: Nil File Number(s): 59145 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 conducted a review of the enduring guardianship made by Ms FND on 27 February 2014 whereby she appointed Ms TBD and Ms MBD to be her enduring guardians. Upon its review, the Tribunal revoked the enduring guardianship appointment. 2. The Tribunal appointed Ms TBD and the Public Guardian as Ms FND's guardians with separate functions for a period of 12 months. Ms TBD was appointed as Ms FND's guardian with the authority to make decisions on her behalf about her medical and dental treatment. The Public Guardian was appointed as Ms FND's guardian with the authority to make decisions on her behalf about her accommodation and access. 3. The Tribunal conducted a review, under s 36(1) of the Powers of Attorney Act 2003 (NSW), of the enduring power of attorney made by Ms FND on 27 February 2014, and declined to make any orders. The Tribunal, under s 37 of that Act, decided to treat the application for review as an application for a financial management order. 4. The Tribunal made a financial management order in relation to Ms FND, and appointed the NSW Trustee and Guardian as her financial manager, for review in 12 months. BACKGROUND 1. Ms FND is an 86-year old woman who lives in her own home in Reginal NSW. Ms FND has three living children: Ms TBD, Mr TGD, and Ms CJD. Ms FND's daughter, Ms MBD, died on 11 August 2014. The late Ms MBD's son, Mr DQE, has regular contact with Ms FND. 2. Mr TGD and Ms CJD live in Regional NSW. Ms TBD resides in Ms FND's home in Regional NSW. Ms TBD has lived with her mother for the past two years, and receives a carer's payment in respect of the care she provides to Ms FND. Ms FND receives services via a Level 4 Home Care Package through an aged care service provider. She also attends regular day respite with a not-for-profit volunteer organisation. 3. On 27 February 2014, Ms FND appointed Ms TBD and Ms MBD jointly/ jointly and severally as her guardians, pursuant to an appointment of enduring guardian instrument. On the same date, Ms FND appointed Ms TBD and Ms MBD jointly and severally to be her attorneys, pursuant to an enduring power of attorney instrument. 4. On 2 April 2015, the Tribunal received applications for guardianship and financial management orders in respect of Ms FND, by Ms TBD. 5. On 8 July 2015, the Tribunal heard applications by Mr TGD, Ms CJD, Mr DQE, and Ms NKW to be joined as parties to the proceedings. Each application was refused by the Tribunal. 6. On 6 August 2015, the Tribunal refused an application by Ms TBD to be legally represented in the proceedings. 7. On 7 August 2015, the Tribunal received an application to review the enduring power of attorney and an application to review an appointment of enduring guardianship, by Ms TBD. 8. On 11 August 2015, the Tribunal adjourned the proceedings for two months and issued directions for the filing of various documents. 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.] Settlement 1. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Civil and Administrative Tribunal Act 2013 (NSW), s 36. 2. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act or the Civil and Administrative Rules 2014 (NSW) do not otherwise make provision. The Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s 38 and s 67. 3. Pursuant to s 37 of the Civil and Administrative Tribunal Act, where it considers appropriate, the Tribunal may use resolution processes to assist the parties to narrow or resolve the issues between them. 4. During the course of the Tribunal hearing on 27 October 2015, the Tribunal explored with the participants the various issues in dispute and whether agreement could be reached on any of those issues. The Tribunal offered the participants an opportunity to express their views on possible outcomes in an attempt to resolve some of the issues. Given the protracted nature of the proceedings, it was generally agreed that the applications should be dealt with to finality on the day of the scheduled hearing. REVIEW OF ENDURING GUARDIANSHIP APPOINTMENT 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 may confirm the appointment (or purported appointment) of an enduring guardian even where the instrument was not executed in accordance with the requirements of the Guardianship Act 1987 (NSW), if the Tribunal is satisfied that the confirmation of the appointment (or purported appointment) reflects the appointment that the person making the appointment intended to make at the time it was purportedly made. 2. The Tribunal may appoint a substitute enduring guardian to replace an enduring guardian who has died, resigned or become incapacitated. The Tribunal may appoint a substitute enduring guardian only if: 1. the person is eligible to be appointed as an enduring guardian under Part 2 of the Guardianship Act 1987 (NSW), and 2. the Tribunal is satisfied that: 1. Ms FND is in need of an enduring guardian, and 2. the person has a close personal relationship with Ms FND, and 3. the person is capable of carrying out the functions of an enduring guardian. 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 Ms FND that the appointment be revoked. Details of the enduring guardianship appointment 1. On 27 February 2014, Ms FND executed an appointment of enduring guardianship instrument, whereby she appointed Ms MBD and Ms TBD to be her enduring guardians. A section on the instrument enables the appointor to elect the basis of the enduring guardians' appointment; that is, that whether they are appointed (1) jointly, or (2) severally, or (3) jointly and severally. Ms FND appears to have elected that Ms MBD and Ms TBD's appointment be both joint and joint and several. However, this appears to be invalid, in that the instrument requires the appointor to choose that the appointment be either joint or joint & several; not both. Indeed, it would be incongruous if an appointor could elect both, and would likely cause confusion and uncertainty by those persons interpreting the instrument for the purposes of determining whether one or both of Ms FND's enduring guardians are required to make decisions on Ms FND's behalf. 2. Moreover, the instrument indicates Ms FND elected to terminate the appointment of the surviving enduring guardian in the event the other enduring guardian dies. Accordingly, the death of Ms MBD effectively terminates the appointment of Ms TBD and renders the instrument inoperative. 3. In her application for review of the appointment of enduring guardian, Ms TBD requests that the Tribunal: (1) confirm her appointment, and/or (2) declare her appointment has effect, and/or (3) appoint a substitute enduring guardian, namely, Mr DQE. 4. In conducting its review, the Tribunal was mindful that Ms FND's current wish is that Ms TBD and Mr DQE be the persons who should assist her in decision-making. However, the Tribunal found that on the evidence and in the circumstances it was not appropriate to confirm the appointment of Ms TBD, or declare the appointment has effect or appoint Mr DQE as a substitute enduring guardian. Rather, having regard to Ms FND's best interests, the Tribunal formed the view that the most appropriate course was to revoke the appointment of enduring guardianship. 5. In coming to this conclusion, the Tribunal took into account the fact that when Ms FND executed the instrument of appointment, she explicitly indicated that the appointment of the surviving enduring guardian would not continue in the event the other enduring guardian died. Specifically, she did not appoint an alternative (substitute) guardian to cater for the possibility that one of her enduring guardians might die, resign or become incapacitated. In this regard, the confirmation and substitution requested by Ms TBD does not necessarily reflect the actual intention of Ms FND when she executed the instrument of appointment in February 2014. 6. Furthermore, in light of the nature and extent of the conflict between Ms FND's family members, the Tribunal determined that it was in Ms FND's best interests that an independent guardian be appointed by the Tribunal, with the authority to make decisions on Ms FND's behalf in certain areas of her personal affairs. The Tribunal's reasoning for its decision to appoint the Public Guardian is provided in further detail in these Reasons in relation to the application for a guardianship order. 7. Finally, the Tribunal recognises that the appointment of enduring guardianship in its current form is inoperative and unable to be relied upon. Accordingly, the Tribunal was satisfied that the appointment of enduring guardianship made by Ms FND on 27 February 2014 should be revoked in her best interests. GUARDIANSHIP APPLICATION What did the Tribunal have to decide? 1. The questions which had to be decided by the Tribunal were: 1. Is Ms FND 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? 2. Should the Tribunal make a guardianship order and if so, what order should be made? 3. Who should be the guardian? 4. How long should the order last? Is Ms FND 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 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), the 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), the Guardianship Act). 1. The Tribunal had before it professional evidence, including an ACAT assessment and reports of various health professionals involved in Ms FND's treatment and care. The authors of those reports include Dr Z, Geriatrician, Dr Y, Geriatrician, Dr X, General Practitioner, and Ms W, Social Worker. 2. The evidence indicates that Ms FND has a number of health concerns including Dementia, Atrial Fibrillation, Hypertension, and Glaucoma. She requires assistance with domestic tasks, meal preparation, medication administration, shopping, and transportation. A Mini Mental State Examination carried out on 19 February 2015 indicated a score of 26/30 which was considered "good" by Dr Y. However, Addenbrooks Cognitive Examinations performed on Ms FND have revealed scores ranging from 59/100 to 70/100, with deficits in memory, attention and fluency; and are indicative of obvious cognitive impairment. 3. Dr Y reports Ms FND is unaware of the existence of her Atrial Fibrillation and its treatment; and is also unaware of the level of the care being provided by Ms TBD. As a result, Dr Y is of the opinion that Ms FND lacks insight into her current health condition and the level of support and accommodation she requires. Whilst Dr Y indicated Ms FND was able to express a view about the appointment of persons who she considers would be helpful with her future care, Dr Y is of the opinion that Ms FND does not have the capacity to make decisions in relation to her finances, health care needs or her accommodation. 4. Ms W, Social Worker with the Aged & Community Care Team in a Community Health Centre in Regional NSW, in her written report dated 11 May 2015 details her involvement with Ms FND, her family members, and the other health professionals involved in Ms FND's care. Ms W refers to Ms FND's limited insight into her care needs and memory impairment, which was demonstrated by Ms FND's inability to recognise Ms W during her visits, Ms FND's lack of awareness of the composition and value of her estate, and Ms FND's expressed belief that she does not require support to live in her home. 5. The Tribunal also had the opportunity to observe Ms FND during the Tribunal hearing. While naturally apprehensive about the proceedings, Ms FND's presentation was consistent with the health professionals' evidence. She was unable to recall the medication she takes and the conditions it treats. In addition, it was apparent that she relied on Ms TBD and Mr DQE for assistance in comprehending the nature of the proceedings and the issues being discussed. On all of the evidence before it, the Tribunal was satisfied that Ms FND has a disability which prevents her making important life decisions. She 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. 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. Ms FND attended the Tribunal hearing in person. She did not recall having made an enduring power of attorney or an appointment of enduring guardianship, and it was apparent to the Tribunal that Ms FND was not able to fully comprehend the nature of the applications and the Tribunal proceedings generally. It was not possible to obtain Ms FND's specific wishes as to the making of a guardianship order, however, she was able to indicate that she was content for things to remain as they are, with the assistance of Mr DQE and Ms TBD. It was apparent that Ms FND has considerable affection for Mr DQE who she was seated next to during the hearing. Ms FND also spoke of her daughter, Ms TBD, being "handy" and as someone whom she would trust. However, Ms FND also told the Tribunal that all of her children "mean the same" to her. 3. As indicated in the Background section of these Reasons, Ms FND receives formal services via a Home Care Package. She attends day respite, and is also supported and cared for in her home by Ms TBD, who is a registered nurse. Ms TBD has been living with, and caring for, her mother for approximately two years. In her oral and written evidence, Ms TBD described how her mother now requires a significant level of assistance to maintain her safety and welfare. 4. Prior to residing with her mother, Ms TBD worked as a nurse in various parts of Australia. Ms TBD owns a property in Regional NSW and has a son and grandchildren who also live in that area of Regional NSW. 5. Ms FND has regular contact with her grandson, Mr DQE, who lives in Regional NSW and has a young family of his own. 6. Ms CJD and Mr TGD live in Regional NSW. They say that they had regular contact with their mother prior to Ms TBD moving in; a decision about which they say they were not consulted. They also say they are made to feel unwelcome and excluded by Ms TBD, and a result, they no longer regularly visit their mother. 7. There is a significant level of conflict between Ms TBD and Ms CJD. There is no effective communication between them, and in January 2015, an Apprehended Violence Order was made which prevented Ms CJD from approaching Ms TBD. 8. During the hearing, Ms TBD told the Tribunal that she is proposing to sell her property at Regional NSW and move to a property around Regional NSW close to where her son and grandchildren live. She said she plans to also take her mother, who requires full-time care and supervision. Ms TBD says her brother and sister do not have an accurate and realistic understanding of the extent of their mother's current care needs and are opposed to Ms FND leaving her home. Ms TBD is of the view that a guardianship order should be made in respect of Ms FND, and she proposes that she and Mr DQE be appointed. 9. It was apparent that Ms CJD and Mr TGD were not previously aware of any plans for a change to their mother's current accommodation. They expressed significant concern about their mother leaving the Regional NSW area, which they say she has lived in for almost 30 years and in which she is both comfortable and familiar. Ms CJD said her mother has a large spiritual and social network in the area, and it would be sad to see her mother lose those connections were she to move away with Ms TBD. 10. Ms W told the Tribunal that Ms TBD has been providing a very high level of care to Ms FND. Ms W said that Ms TBD had followed through with all of the Aged Care team's recommendations, and that formal services were now at a maximum level. Ms W also reported that there had been a deterioration in Ms FND's overall condition, and that if there were to be any changes to Ms FND's current accommodation, 24-hour care would be necessary. 11. Ms W told the Tribunal that the conflict between Ms FND's children was continuing, despite attempts by her service and Ms TBD to initiate steps to enable equal opportunities for all of Ms FND's children to visit and be consulted in decision-making. Ms W said she had observed an increase in Ms FND's level of confusion as well as an increase in paranoia and an element of suspicion, about which Ms W suggested the family conflict may be a contributing factor. In her written report, Ms W states: "Recently this conflict has escalated and there is reportedly a current AVO in place between [Ms TBD] and [Ms CJD]. This impacts on Ms FND's wellbeing and family harmony." 12. The Tribunal was informed that mediation between Ms FND's children had been proposed on a number of occasions, including by police (in the context of the AVO) and solicitor/s. However, it appears mediation never eventuated as Ms FND's children could not reach agreement on the mediator to conduct the mediation. Tribunal consideration 1. In all of its proceedings, the Tribunal is required to act in accordance with the principles set out in s 4 of the Guardianship Act, which in respect of Ms FND requires that: * Her welfare and interests are to be given paramount consideration; * Her freedom of decision and freedom of action should be restricted as little as possible; * She should be encouraged as far as possible to live a normal life in the community; * Her views should be taken into account as much as possible; * The importance of preserving her family relationships and her cultural and linguistic environment should be recognized; * She should be encouraged to be as self-reliant as possible in respect of her personal, domestic and financial affairs; * She should be protected from neglect, abuse and exploitation. 1. The Tribunal was guided by these principles in its deliberations in this matter. 2. The Tribunal finds that due to the severity of her condition, Ms FND is no longer able to make important decisions for herself. She does not have the capacity to make a reasoned decision about where she lives, what care she receives, who should have access to her, and what treatment she should have. 3. The Tribunal finds that each of Ms FND's children love and care for their mother. However, the conflict between Ms FND's children has meant that informal arrangements have not been able to be utilised to determine Ms FND's current and future accommodation, the nature and extent of those who should have access to her, and the family member who should be recognised as the "person responsible" for the purposes of her medical and dental treatment. The appointment of enduring guardianship made by Ms FND in February 2014 is inoperative and, in any event, is now revoked. 4. Therefore, the Tribunal finds that the current arrangements are not adequate to enable decision-making to occur informally, and are insufficient to protect Ms FND's welfare and interests. Moreover, the Tribunal finds that there is no evidence to suggest the conflict between Ms FND's family members is likely to resolve in the short term. Accordingly, the Tribunal determined it was in Ms FND's best interests that a guardianship order be made. What decision making functions should be included in the order? 1. The Tribunal finds that there is a significant divergence of views held by Ms FND's children about the accommodation and care needs of their mother. Both Ms CJD and Mr TGD are of the view that their mother should remain residing in Regional NSW, and any move away from it would be detrimental to her interests and welfare. Ms TBD recognises that her mother requires 24-hour care and is proposing to take her mother to Regional NSW to be close to Ms TBD's son and his family. 2. There is also dispute between Ms FND's children about the nature and extent of the access to Ms FND, and in particular, about the person who should be determining such decisions on Ms FND's behalf. 3. Finally, the Tribunal takes into account that Ms FND has significant health concerns about which she does not have insight and is unable to give informed consent. As a result, it is likely that there will be ongoing decisions to be made about her medical and dental treatment. 4. Accordingly, the Tribunal is satisfied that the guardianship order should include the functions of accommodation, access and medical and dental treatment. Who should be the guardian? 1. In her application, Ms TBD proposes that she and Mr DQE be appointed as guardians for Ms FND. Her application is supported by Mr DQE. 2. Ms TBD's solicitor's written submissions to the Tribunal also indicate on Ms TBD's behalf that there is no objection to the Public Guardian being appointed. 3. In her written submission, Ms CJD proposes that she and Mr TGD be appointed as joint guardians of Ms FND. However, during the Tribunal hearing, Ms CJD and Mr TGD expressed their support for the appointment of the Public Guardian. 4. 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), Windeyer 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 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), the Guardianship Act). 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]). Tribunal consideration 1. The Tribunal finds that Ms FND is a person who has relied on her family to assist her, including to, make decisions on her behalf. Ms TBD, as her mother's primary carer for two years, has a developed understanding of her mother's health concerns and has demonstrated her capacity to work with the health professionals involved in her mother's care. The Tribunal also notes that Ms TBD is a registered nurse and has considerable experience in this profession. As a result, the Tribunal determined that it was appropriate and in Ms FND's best interests to appoint Ms TBD as her mother's guardian with the function of providing consent to medical and dental treatment on Ms FND's behalf as required. 2. The Tribunal also decided to appoint the Public Guardian as Ms FND's guardian with the functions of accommodation and access. In this regard, the Tribunal finds that the conflict between Ms FND's children is serious and entrenched. At present there is no communication between Ms CJD and Ms TBD. Indeed, the existence of the Apprehended Violence Order (if it has not in fact been revoked) on the face of it prevents communication. It is therefore difficult to foresee in the immediate future effective consultation occurring between Ms FND's children in respect of the important decisions pertaining to her current and future accommodation. 3. Furthermore, whilst the Tribunal acknowledges Ms TBD's preparedness to facilitate her siblings' access to their mother, the reality is that while ever a family member is responsible for deciding the terms of access to Ms FND, this is likely to be problematic and ineffective in ensuring Ms FND spends time with all of her children. Therefore, the Tribunal considered that an independent guardian, rather than a family member, should be given the authority to make decisions about the nature and circumstances of the access to Ms FND. Such an appointment will help to ensure the views of Ms FND and the important people in her life are taken into account, and will provide a neutral and impartial approach to decision making. 4. Accordingly, the Tribunal appointed the Public Guardian with the functions of accommodation and access, and also appointed Ms TBD with functions of medical and dental treatment. 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. The Tribunal decided to make an order for 12 months. In light of Ms FND's health concerns and the foreseeable change in Ms TBD's circumstances, there are likely to be important decisions to be made about Ms FND's accommodation. During this period, decisions about her access and her medical and dental treatment are also likely. Accordingly, the Tribunal decided to make a guardianship order for a period of 12 months. REVIEW OF ENDURING POWER OF ATTORNEY What did the Tribunal have to consider? 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, s 36(1)). 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)). 2. 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 Ms FND to make the order; * that it would better reflect the wishes of Ms FND to make the order. 1. These orders include: * 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. * 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, 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 Part 3A of the Guardianship Act. Overview of the evidence 1. On 27 February 2014, Ms FND executed an enduring power of attorney, appointing Ms TBD and Ms MBD jointly and severally as her attorneys. The instrument indicates Ms FND intended that it should come into effect when a medical practitioner considers her unable to manage her affairs. Ms FND elected to appoint Ms TBD and Ms MBD jointly and severally. Pursuant to s 46(2) of the Powers of Attorney Act, the vacancy in the office of one of the attorneys, namely the death of Ms MBD, does not operate to terminate the power of attorney in relation to the other attorney, Ms TBD. Therefore, the instrument is not on its face defective, and Ms TBD is not precluded from exercising the powers of attorney. 2. In her application, Ms TBD seeks that the Tribunal review the operation and effect of the enduring power of attorney, and in particular, requests an order appointing Mr DQE as a substitute attorney in place of the vacancy created by the death of Ms MBD. As well as submitting an application to review the enduring power of attorney, Ms TBD has also lodged an application for a financial management order to be made in respect of her mother. 3. As referred to previously in these Reasons, there is significant conflict between Ms FND's children. A considerable proportion of this conflict relates to Ms FND's finances. There is dispute about the circumstances surrounding an amount of $10,000 in cash allegedly taken from Ms FND's safe in May 2014 and given to Ms FND's accountant, Ms NKW, for safekeeping. There is also evidence of Ms FND making Ms CJD a signatory to a bank account in August 2014, and several thousand dollars being withdrawn from the account shortly thereafter. There is also a significant volume of documentary evidence before the Tribunal pertaining to Ms FND's finances, and allegations about the giving of gifts and loans to her children. Importantly, however, a number of such allegations relate to periods of time in respect of which there is an absence of evidence that Ms FND lacked decision-making capacity. A number of such incidents also do not specifically relate to the operation and effect of the power of attorney, but rather, to the individual actions of family members and in the context of longstanding conflict. 4. In light of Ms TBD's existing application for a financial management order, and the level of conflict between Ms FND's family members, the Tribunal, upon reviewing the enduring power of attorney, decided it that it should not make any orders pursuant to s 36 of the Powers of Attorney Act. Rather, pursuant to s 37 of that Act, the Tribunal decided to treat the application for review as an application for a financial management order. FINANCIAL MANAGEMENT APPLICATION What did the Tribunal have to decide? 1. The questions to be considered by the Tribunal are: 1. Is Ms FND incapable of managing her affairs? 2. Is there a need for another person to manage Ms FND's affairs and is it in her best interests for a financial management order to be made? 3. If so, who should be appointed financial manager? Is Ms FND 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 evidence about Ms FND's disabilities is outlined above in relation to the guardianship application. It is also relevant to the financial management application. The opinions of the health professionals, which are consistent and uncontradicted by any other expert evidence, are that Ms FND lacks the capacity to manage her financial affairs. On a practical level, the evidence indicates Ms FND is dependent on others for shopping, transportation and the paying of bills. 2. In addition, the Tribunal takes into account the attempts made by Ms W and Dr Y to elicit information from Ms FND about the value and composition of her estate. Significantly, Ms FND was unable to provide specific relevant details. She could not, for example, tell Ms W how much money she receives from her Age Pension and the amount of cash assets she has. 3. The Tribunal finds that due to her age and the progressive nature of her dementing illness, Ms FND is not likely to improve in her ability to manage her financial affairs, and will continue to be dependent on others. On all of the evidence before it, the Tribunal was satisfied that Ms FND is incapable of managing her financial affairs. Is there a need for a financial management order? Is it in Ms FND's best interest that a financial management order be made? 1. The evidence indicates Ms FND owns her home at Regional NSW which has been valued at approximately $300,000 to $315,000. She also has cash assets in her bank accounts. Ms FND's funds are used to pay council rates, water rates and other household expenses, as well as services and health care costs. 2. The Tribunal carefully considered Ms FND's wishes. The Tribunal acknowledges that in February 2014, Ms FND appointed Ms TBD to be her attorney (jointly with Ms MBD). However, there is some complexity in relation to Ms FND's wishes. For example, despite Ms FND's current wish for Ms TBD and Mr DQE to be involved in her affairs, the evidence indicates that in August 2014 (after she had executed the power of attorney in favour of Ms TBD), Ms FND took steps to add Ms CJD as a signatory to her bank account. In this sense, there appears to have been some variation in her wishes, and evidence that Ms FND is susceptible to the influence of those in whose company she is present. 3. The reality is that the current situation and its continuation is not in Ms FND's best interests. Whilst at a prima facie level the power of attorney executed by Ms FND permits Ms TBD to manage Ms FND's financial affairs, the continuation of its exercise in the current circumstances is not operating in Ms FND's best interests. In making this finding, the Tribunal does not suggest that Ms TBD has not been performing her duties appropriately as an attorney. On the contrary, there is a lack of evidence of maladministration on her part. Indeed, Ms TBD has authorised services to be instituted for her mother and has facilitated their payment as well as the payment of her mother's other expenses. However, it is abundantly clear that the management of Ms FND's financial affairs is a source of considerable tension and conflict between Ms FND's children. Allegations about misappropriation and motivation of financial gain continue to pervade and permeate Ms FND's financial affairs. Such activity is highly unlikely to dissipate in the absence of the transparency and accountability afforded by a financial management order. 4. As indicated previously, there is likely to be an important decision to be made shortly about Ms FND's future accommodation. Such a decision will have an impact on her property and her estate generally. In the event Ms FND leaves her home (whether to travel with Ms TBD or to enter into a residential care facility), this will require a decision to be made about Ms FND's property, and in particular, its retention or sale. In addition, if Ms FND enters into permanent residential care, agreements will need to be signed, and an Assets Statement completed for Centrelink purposes. Formal authority is likely to be needed to liaise with insurer/s, and to cease utilities and other services currently connected to Ms FND's home. There are also decisions to be made about whether certain monies provided by Ms FND to her children during any period of incapacity should be considered as gifts or loans. 5. The Tribunal was not satisfied that such tasks could be undertaken informally and in the current circumstances. Accordingly, the Tribunal was therefore satisfied on the evidence that there is a need to appoint someone to manage Ms FND's affairs and it is in her best interests that a financial management order be made. Who should be appointed as financial manager? 1. In her written application, Ms TBD proposes herself and Mr DQE for appointment as financial managers of Ms FND's estate. However, in Ms FND's solicitor's written submissions, he indicates on Ms TBD's behalf that there is no objection to the appointment of a public financial manager for Ms FND. 2. Ms CJD and Mr TGD support the appointment of the NSW Trustee and Guardian. In her written report, Ms W also supports the appointment of the NSW Trustee and Guardian. 3. Although Ms FND had expressed that she did not want a change to the current situation, towards the end of the Tribunal hearing, Ms FND expressed her satisfaction to a proposal that independent substitute decision-makers be appointed for a period of time. 4. 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. 5. 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. 6. 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. 7. 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. 8. The advantages of the appointment of a family member were more economic management of smaller estates (that is, freedom from 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 to act as managers. 9. 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. 10. 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 Tribunal gave careful consideration to Ms FND's wishes, both past and present. The Tribunal carefully considered whether it should appoint a private financial manager for Ms FND. The Tribunal is cognisant of the evidence that demonstrates that Ms FND has elected to have her family members assist her with her affairs. However, the evidence also indicates that Ms FND has engaged professional services in the past, including the accounting services provided by Ms NKW, who is named as the executor of Ms FND's current will. The Tribunal finds that the appointment of an independent financial manager, rather than a family member, is not necessarily inconsistent with Ms FND's wishes. 2. Furthermore, the Tribunal concluded that if a family member were to be appointed as Ms FND's financial manager, the tension and conflict may well continue. Exposure to such conflict is likely to have a deleterious effect on Ms FND's wellbeing, and jeopardise the social and other support she receives from her family members. Such an outcome would be contrary to Ms FND's best interests, particularly as her dementia progresses and her need for the assistance of others increases. 3. In addition, there are obvious trust issues between Ms FND's children. These factors are likely to add complexity to the role of financial management, particularly when making important decisions about Ms FND's assets. This is particularly so in light of the divergent views about the appropriateness of Ms FND's accommodation, the legitimacy of interests of family members, as well as the significant barriers to communication between those persons. 4. Accordingly, and on balance, the Tribunal formed the view that the NSW Trustee and Guardian, as an independent financial manager, was best placed to take on the responsibility of managing Ms FND's estate. The Tribunal was satisfied that the independence of that office, and its impartiality and neutrality was of particular importance in this case, and is consistent with the wishes expressed by Ms FND during the Tribunal hearing that she wants her children "to live in peace". 5. In all the circumstances, therefore, the Tribunal was satisfied that it was in the best interests of Ms FND that her estate be managed by the NSW Trustee and Guardian. Should a reviewable financial management order be made? 1. Pursuant to s 50 of the Powers of Attorney Act, a power of attorney is suspended while the estate of the principal is a managed estate. Accordingly, the power of attorney executed by Ms FND on 27 February 2014 is suspended by the making of the Tribunal's order. 2. The Tribunal formed the view that in 12 months' time, the situation may be somewhat different for Ms FND. There may have been important decisions made about Ms FND's ongoing accommodation, as well as decisions about the various loans and gifts to family members which have been the cause of considerable dispute. In the event that the involvement of independent decision-makers does have the desired effect of reducing and/or containing the family conflict, this may facilitate the consideration of the reinstatement of the power of attorney or the appointment of a family member/s as financial manager/s of Ms FND's estate. In any event, those matters, and other relevant considerations may be dealt with by the Tribunal when it conducts its review of the order in 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: 22 September 2016