NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: AWL [2016] NSWCATGD 16 Hearing dates: 22 March 2016 Date of orders: 22 March 2016 Decision date: 22 March 2016 Jurisdiction: Guardianship Division Before: J Currie, Senior Member (Legal) M Wroth, Senior Member (Professional) S Rylands, General Member Decision: Guardianship order made; private guardian appointed for 12 months with health care and services functions. Financial management order dismissed. Legal Representation application dismissed. Catchwords: GUARDIANSHIP – application for guardianship order – subject person's views considered – consideration of factors in s 14(2) of the Guardianship Act 1987 (NSW) – subject person's welfare and interests – preserving family relationships – application of s 15(3) of the Guardianship Act FINANCIAL MANAGEMENT – approach to assessing whether has capacity to manage their affairs – whether need for a financial management order – no need – financial management application dismissed INTERLOCUTORY – application for leave to be legally represented – consideration of factors in s 36(1) of the Civil and Administrative Tribunal 2013 (NSW) –whether Tribunal would be assisted – McKenzie Friend – leave refused Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 36(1) Guardianship Act 1987 (NSW), ss 4, 4(a), 14(2), 15(3), 17 Cases Cited: CJ v AKJ [2015] NSWSC 498 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re D [2012] NSWSC 1006 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSW SC 1106 Category: Principal judgment Parties: Mr AWL (the subject person) Mr KRD (the applicant) The NSW Public Guardian The NSW Trustee and Guardian Representation: Nil File Number(s): 61803 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 What the Tribunal decided Guardianship 1. The Tribunal decided to make a continuing limited guardianship order for Mr AWL. Ms UVK was appointed as Mr AWL's guardian for 12 months and authorised to make decisions on his behalf about his health care and services. Financial management 1. The Tribunal decided to dismiss the financial management application on the ground that it was not satisfied that Mr AWL was incapable of managing his affairs. Legal Representation 1. The Tribunal decided to dismiss the application for Mr AWL to be represented by an Australian legal practitioner in all proceedings pending before the Tribunal. Background 1. Mr AWL is a 64-year-old man who is reported to have long-standing problems concerning his alcohol consumption and anxiety. It is reported that Mr AWL has had regular hospital admissions when he is feeling anxious and that he has on many occasions admitted himself to hospital, only to discharge himself after a short stay. It is reported that Mr AWL has limited insight into his own ability to abstain from alcohol and as to the effect which alcohol has on his health and ability to make informed decisions. Mr AWL is currently receiving support from a public health centre. 2. On 9 February 2016, the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) received from Mr KRD, Senior Social Worker at the public health centre, applications which sought the appointment of a guardian and a financial manager for Mr AWL. It was those applications which were the subject of the Tribunal's hearing at Balmain on 22 March 2016. Parties and witnesses 1. The Appendix to these Reasons for Decision identifies the parties to each of the applications and the witnesses who participated in the hearing. [Appendix removed for publication.] Issues for determination by the Tribunal (a) Guardianship 1. The questions which had to be decided by the Tribunal were: 1. Is Mr AWL 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? 2. Should the Tribunal make a guardianship order? 3. If an order is to be made, who should be the guardian and what functions and authorities should the guardian have? 4. How long should the guardianship order last? (b) Financial Management 1. The questions which had to be decided by the Tribunal were: 1. Is Mr AWL incapable of managing his affairs? 2. Is there a need for another person to manage the affairs of Mr AWL and would it be in his best interests for a financial management order to be made? 3. If an order is to be made on the basis of the answers to those questions, who should be appointed as financial manager? Application for legal representation of Mr AWL 1. Mr X, Solicitor, appeared at the hearing to make an application for legal representation of Mr AWL. The grounds which the Tribunal should consider when considering such an application are conveniently set out in the Tribunal's Procedural Direction for the Guardianship Division, entitled "Representation", effective on 2 January 2014. Mr X addressed some of the issues listed in paragraph 24 of the Procedural Direction. In particular he said that he was familiar with Mr AWL, could communicate with him in the Croatian language, and could possibly assist the Tribunal in relation to matters concerning Mr AWL's Croatian cultural background. 2. However we could not be satisfied that this was an appropriate case for granting such an application. In particular, Mr X had not demonstrated that there would be fairness between the parties if Mr AWL were the only party granted legal representation. Additionally, in our view, Mr AWL had not demonstrated that the legal and factual issues of the case were of such complexity that his appointment as legal representative would promote the principles in s 4 of the Guardianship Act 1987 (NSW) or permit the Tribunal to comply more fully with the guiding principle set out in s 36 (1) of the Civil and Administrative Tribunal Act 2013 (NSW). There appeared to be no disability or other factors which would impede Mr AWL's capacity to participate fully in the hearing without legal representation, particularly as an accredited Croatian interpreter was available. 3. For these reasons we decided to refuse the application for legal representation. We noted that Mr X would continue to participate in the hearing as the McKenzie Friend of Mr AWL. Participation in the hearing by Mr AWL and his views 1. Mr AWL participated actively in the hearing. With the assistance of a Croatian interpreter he told us that he did not need either a guardian or a financial manager. He admitted that he had been living off his funds, and in particular utilising credit cards, for the last three years. But he was able to describe his savings and future plans, at least in moderate detail. In particular, he said that he had cash investments of approximately $150,000, most of which, apart from some of approximately $2000-$4000, was invested in a term deposit with a bank which Mr AWL asserted was earning interest at 2.2% per annum. 2. Mr AWL provided some details of his employment and training. He was somewhat prevaricative when asked to describe his last job and appeared to indicate that he had a job some three weeks prior to the hearing. He was also prevaricative when asked what work he would like to do, but did eventually answer that he would like to be a forklift driver but could not do the manual lifting work usually associated with that job. He also indicated that his inexperience in dealing with information technology limited his job choices. 3. Mr AWL told us that he had given up alcohol for one period of approximately two to three months but did drink socially nearly every day between 1:30 PM and 5:00 PM. He denied that he had a gambling problem and said that he gambled small amounts "for fun". 4. Mr AWL initially told us that he was on no medication whatsoever. When asked whether he took antidepressants he replied that he did not. 5. A Tribunal Member read Mr AWL an extract from the report of Dr Z, Clinical Neuropsychologist dated 7 February 2014 including the following conclusions: Improvement in his thinking skills can be observed if he complies with an alcohol detoxification program…I would be concerned that more cognitive damage would be done if Mr AWL continues consuming alcohol at the current rate. Especially (sic) further reductions in his higher-level thinking skills might result in possible lack of insight and exacerbated rigid thinking in the future, making him vulnerable to poor lifestyle and financial decisions. 1. Mr AWL said that he disagreed with most of those conclusions and in particular that he had decision-making difficulties because of his alcohol consumption. THE TRIBUNAL'S ASSESSMENT OF THE EVIDENCE AND DETERMINATION OF THE ISSUES (a) Guardianship Is Mr AWL 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. The Tribunal had received and considered a number of medical and clinical reports concerning Mr AWL which included the report from Dr Z referred to in paragraph 14 above, clinical notes for the period 11-18 May 2015, and an assessment report from a drug and alcohol treatment team, which was undated but received by the Tribunal on 9 February 2016. 2. These reports supported conclusions that Mr AWL demonstrated cognitive deficits and apparent occasional periods of anxiety which appeared to be related to excessive alcohol consumption. Dr Z, in particular, noted that Mr AWL's executive functioning performance on tasks of higher-level thinking was severely impaired and that all aspects of his executive functioning including his ability to reason and problem-solve at an abstract verbal level, his mental flexibility, self-monitoring planning, and organisation were all impaired. 3. Although Mr AWL indicated his disagreement with some of Dr Z's conclusions, as noted in paragraph 15 above, there was no professional evidence which was inconsistent with or contradictory to the conclusions of the reports noted at paragraph 17. Significantly, Mr AWL's cousin Ms UVK, who attended the hearing and who is a general medical practitioner, confirmed her view that Mr AWL does have an alcohol problem and some difficulty in making lifestyle decisions. 4. On the basis of that evidence and these conclusions as to the evidence we were satisfied that Mr AWL is someone for whom we could make a guardianship order, because he has disabilities which prevent him from making some important life decisions. Should the Tribunal make a guardianship order? Legal basis for the Tribunal's analysis 1. The Tribunal has a discretion as to whether or not to make a guardianship order, even where it has concluded that the subject person is "a person who has a disability" for the purposes of the Guardianship Act. Not all people with a disability who are incapable of making life decisions should be regarded as being in need of a guardianship order and there are important principles in the Guardianship Act, particularly in ss 14(2) and 4 of that Act, which govern the circumstances in which the Tribunal should make an order. The evidence 1. Mr KRD, who is the applicant and Mr AWL's social worker at a public health centre, told us that in his view Mr KRD can manage some areas of his life reasonably well and others not well or not at all. In Mr KRD's opinion, Mr AWL's cognitive ability and his ability to manage personal decision-making was largely affected by his alcohol consumption. Mr KRD described a somewhat repetitive scenario involving six major treatment episodes over eight years. In each of these, Mr AWL had admitted himself to hospital and was then referred to the public health centre because of his distress and anxiety about his drinking. In each case he had been stabilised in hospital before being sent to the clinic for management. On each occasion there was evidence that Mr AWL had expressed profound disagreement with the opinions of his treating physicians. In Mr KRD's view, Mr AWL had demonstrated that he does not understand professional explanations about the nature and effects on him of his alcohol addiction. 2. In Mr KRD's view, a guardian could act as a "guiding keel" for the development of a treatment plan and could coordinate services and treatment and provide close case management for Mr AWL. Mr KRD's view was that these things could not be achieved without the appointment of a guardian. Mr KRD also asserted that there may be a need for consideration of the need for accommodation decisions for Mr AWL. He added that there was a history of Mr AWL not following through with treatment suggestions; for example Mr KRD and his colleagues had been unable to persuade Mr AWL to have an initial assessment for a detoxification program. 3. Mr KRD's views were supported by Ms Y, Social Worker, who also attended the hearing. 4. As related in paragraph 18 above, Mr AWL's cousin, Ms UVK, who is a general medical practitioner, confirmed her view that Mr AWL does have an alcohol problem and some difficulty in making lifestyle decisions. We understood Ms UVK's view to be that a guardian was needed, at least in respect of some of the decisions to be made for Mr KRD, particularly those directly relating to his alcohol problem. Ms UVK emphasised that Mr KRD had a supportive family and quite often followed the advice and suggestions of family members. 5. We also considered the written reports referred to above in relation to this issue. We accepted those reports and the evidence of Mr KRD, Ms Y, and Ms UVK as reliable and persuasive. The Tribunal's determination of this issue 1. In reaching a conclusion on this important issue we considered each of the factors prescribed by s 14(2) of the Guardianship Act which appeared to be relevant. We also had regard to the general principles set out in s 4. In considering the s 14(2) factors, we considered Mr AWL's own views and the importance of preserving his family relationships. However, on the basis of the evidence as discussed above, we gave more substantial weight to the question of whether, as a practicable matter, the services which Mr AWL needs could be made available to him without the need for a guardianship order. On the basis of the strong and reliable evidence of Mr KRD and that contained in the medical and clinical reports, supported to some extent by that of Ms UVK, it was clear that these necessary services cannot be made available to Mr AWL in a practicable way without the appointment of a guardian. 2. We also had regard to the guiding principles set out in s 4 of the Guardianship Act. The principles, other than those already considered by reference to s 14(2), which appeared to have primary relevance to this case, were the need to minimise any restrictions to be imposed on Mr AWL's freedom of action and of decision, the need to encourage him, so far as possible, to be self-reliant and to live a normal life in the community, but also the need to protect Mr AWL from any neglect or abuse or exploitation. As s 4(a) of the Guardianship Act requires, we gave paramount consideration to Mr AWL's welfare and interests. Ultimately we were satisfied on the basis of the evidence as analysed above that Mr AWL's welfare and interests would best be preserved and protected by the making of an order. 3. It followed that there is a current need for decisions on behalf of Mr AWL, particularly decisions about his health care and services. We found a particular need for the healthcare function, under which the appointed guardian could arrange for Mr AWL's admission into the IDAPS program and implement detoxification strategies. Accordingly, a guardianship order should be made. What order should be made? Decision-making functions 1. Although Mr AWL's evidence in relation to the prescription of medications to assist him appeared to be uncertain and unreliable, we were persuaded by the evidence of his cousin Ms UVK that there appeared to be no current need for a substitute decision-maker for the purposes of consenting to medical or dental treatment for Mr AWL. The key factor in reaching this decision was our reliance on Ms UVK's assertion that Mr AWL obtains support from family members and listens to reasonable advice. The most important aspect of his future care is clearly his admission to a suitable detoxification program and the provision of follow-up services. Accordingly, the health care and services functions will be needed but we could perceive no current need for any further functions. For example, there appears to be no immediate threat of Mr AWL becoming homeless or of a current need for accommodation decisions. Identity of the guardian 1. At the hearing it was proposed that Mr AWL's cousin, Ms UVK should be appointed as his guardian. 2. The Tribunal may appoint a private person or the Public Guardian as guardian. As required by s 15(3) of the Guardianship Act, when it is considering the making of a continuing guardianship order the Tribunal will not appoint the Public Guardian in circumstances in which such an order could be made appointing a suitable private person as guardian. So, as a practicable matter, wherever possible and appropriate under the Guardianship Act, the Tribunal will appoint a family member or a friend to act as guardian. A private guardian must be at least 18 years old. Section 17 of the Guardianship Act expressly prohibits the Tribunal from appointing a person as guardian unless it is satisfied that they have a personality generally compatible with that of the subject person, they have no undue conflict of interest, particularly but not restricted to a financial conflict of interest, in respect of the person under guardianship; and that they are willing and able to exercise the functions of the order. 3. We were satisfied that Ms UVK satisfied each of these tests and that, accordingly, she was a suitable person to be appointed as guardian. We were also satisfied that her appointment would be in Mr AWL's best interests. The appointment of Ms UVK was supported by Mr AWL and appeared to be supported by the professional care witnesses. No other person was identified as being willing to be appointed as guardian. We appointed Ms UVK accordingly. Duration of the order 1. Under the Guardianship Act, except where the Tribunal is satisfied that the subject person has permanent disabilities and is unlikely to become capable of managing their person, the maximum term of an initial order is 12 months. In this case, although Mr KRD and indicated that a short-term order might be appropriate in order to allow for the necessary detoxification treatment, we decided to make an order for 12 months. We did so because we were of the view that there would be an ongoing need for the guardian to be available to make decisions for Mr AWL in relation to, at the least, the services function. (b) Financial Management Is Mr AWL incapable of managing his affairs? The legal principles and authorities 1. The Supreme Court of New South Wales has provided guidance in several decisions as to how the Tribunal should assess a person's capability to manage his or her affairs. In earlier cases the Court had based its test predominantly on the ability of the subject person to conduct the everyday affairs of ordinary people. It was said that if by reason of a failure to do this the person would be disadvantaged or there would be a real risk that they would be disadvantaged or that their money or assets would be at risk of dissipation, then they would properly be treated as being incapable of managing their affairs. 2. However, that approach has been reviewed and altered in more recent cases. In P v R [2003] NSWSC 819, Re D [2012] NSWSC 1006, and PB v BB [2013] NSWSC 1223, it has been emphasised that the Tribunal should not be relying just on hypothetical notions such as "the ordinary affairs of people" but rather should focus on the capability of the particular person to deal with his or her actual assets and to do what he or she is proposing to do with them. 3. Most recently, in CJ v AKJ [2015] NSWSC 498, Justice Lindsay said that a Court or Tribunal dealing with this issue should focus on 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. 4. His Honour went on to say that in considering whether a person is "able" in this sense, the Court or Tribunal may give attention to: 1. past and present experience as a predictor of the future course of events; 2. support systems available to the person; and 3. 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. 1. The relevant time for considering whether a person is incapable of managing their affairs is not merely the day of the hearing, but includes the reasonably foreseeable future. That was confirmed by Justice Lindsay in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSW SC 1106, at [20]. Application of those principles in the present case 1. As noted in paragraphs 11 and 12 above, Mr AWL was able to describe his savings, his general financial position and his future plans in at least moderate detail. We accepted his evidence as accurate in terms of the substantial term deposit which he had and we accept that such a term deposit operates in Mr AWL's particular circumstances as some form of effective protection against his current spending habits, which he himself appeared to acknowledge as being unusual. 2. Although some concern was expressed in the applicant's report and other professional reports as to Mr AWL's possible vulnerability to exploitation, there was no specific source of exploitation identified. Ms UVK told us that her cousin Mr AWL was not in the habit of spending excessive sums of money and was at most a social gambler. We accepted her opinion as persuasive, given her close family tie with Mr AWL. Ms UVK supported Mr AWL's characterisation of his gambling activity as being "for fun". 3. Ms UVK emphasised that she disagreed with many of Mr AWL's lifestyle decisions including his drinking and gambling but emphasised the support mechanisms which were available through family members. In particular Ms UVK led us to understand that Mr AWL does take the advice of family members. It appeared from Ms UVK's account that on many occasions Mr AWL had accepted family advice to limit his drinking. Ms UVK emphasised that Mr AWL was an intelligent man who had attended university in Croatia but who had not graduated because of his excessive social activities. 4. In the recent decisions cited above; P v R [2003] NSWSC 819, Re D [2012] NSWSC 1006, and PB v BB [2013] NSWSC 1223, it has been emphasised that the Tribunal should focus on the capability of the particular person to deal with his or her actual assets and to do what he or she is proposing to do with them. We took those authorities into account in conjunction with the matters emphasised in recent cases by Justice Lindsay, most recently in the case of CJ v AKJ [2015] NSWSC 498, in which His Honour noted that it would be appropriate for a Tribunal in these circumstances to give weight to support systems available to the person under consideration. 5. It is true that Mr AWL demonstrated on neuropsychological testing that he had clear impairments to his executive functioning. However, we were satisfied on the basis of the evidence discussed above that Mr AWL has retained sufficient awareness of the current nature of his assets and of his spending habits that he can, with support and advice from family members, which is apparently available, be relied upon to make sound and rational judgements about his money and property. 6. For these reasons we could not be satisfied that Mr AWL either currently or for the foreseeable future is incapable of managing his affairs. 7. It followed that the financial management application would be dismissed. ********** 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