NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: PNH [2016] NSWCATGD 76 Hearing dates: 25 August 2016 Date of orders: 25 August 2016 Decision date: 25 August 2016 Jurisdiction: Guardianship Division Before: A M Scahill, Senior Member (Legal) J M Wortley, Senior Member (Professional) M Watson, General Member (Community) Decision: 1. The Tribunal appointed Ms DAZ as the guardian of Mrs PNH with the authority to make decisions about her accommodation; health care; medical and dental consents, and services for a period of 12 months. 2. The Tribunal committed the management of the estate of Mrs PNH to the NSW Trustee and Guardian. Catchwords: GUARDIANSHIP – application for a guardianship order – application for a financial management order – procedure – mandatory considerations in s 14(2) of the Guardianship Act 1987 (NSW) – consideration of who to appoint as guardian and financial manager –appointment of private guardian – proposed financial manager's insight into the needs of the subject person – appointment of NSW Trustee and Guardian as financial manager Legislation Cited: Guardianship Act 1987 (NSW), ss 3, 4, 14, 17, 25M Cases Cited: CJ v AKJ [2015] NSWSC 498 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 Re W and L (Parameters of protected estate management orders) [2014] NSW SC 1106 Texts Cited: Nil Category: Principal judgment Parties: Mrs PNH (subject person) Mr SQT (applicant) The NSW Trustee and Guardian The NSW Public Guardian Representation: Nil File Number(s): 62950 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 APPLICATION FOR GUARDIANSHIP AND FINANCIAL MANAGEMENT WHAT THE TRIBUNAL DECIDED 1. The Tribunal appointed Ms DAZ as the guardian of Mrs PNH with the authority to make decisions about her accommodation; health care; medical and dental consents, and services for a period of 12 months. AND 1. The Tribunal committed the management of the estate of Mrs PNH to the New South Wales (NSW) Trustee and Guardian. Background 1. Mrs PNH is an 86-year-old widowed-woman who lives alone in her own home in lower North Shore Sydney. She has a twin brother, Mr MSU. Mrs PNH is supported by a community mental health service provider. On 23 June 2016, Mr SQT, case manager at the community mental health service provider, made an application for guardianship and financial management for Mrs PNH. 2. The matter before the Tribunal on 25 August 2016 was the application for financial management and guardianship in respect of Mrs PNH. The Hearing 1. At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing. [Appendix removed for publication.] The hearing was held in person at the Tribunal. What did Tribunal have to decide? 1. The questions which had to be decided by the Tribunal in relation to the application for guardianship were: * Is Mrs PNH 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 Mrs PNH 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) sets out circumstances in which the Tribunal may make guardianship orders: 14 Tribunal may make guardianship orders (1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person. (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order. 1. Section 3 of the Guardianship Act defines a person in need of a guardian as a person who, because of a disability, is totally or partially incapable of managing his or her person. Reports 1. The application was accompanied by a number of reports supporting the application. 2. The Tribunal had before it the report of Dr Z, consultant psychiatrist, dated 25 July 2016. The report stated that Mrs PNH had been referred to the community mental health service provider by police. The police had attended her home based on a report that there had been an intruder. The police referred Mrs PNH to the community mental health service provider for a mental health assessment. Dr Z had seen Mrs PNH on 30 May 2016, 6 June 2016, and 20 June 2016. Dr Z noted in his report that various facilities in Mrs PNH's household were not functioning properly – such as toilets, the doorbell and the telephone landline. In the refrigerator there were a number of containers of food with use by dates many months old and bags of partially decomposed vegetables in the crisper drawer. Mrs PNH had told him that a local real estate agent was a very nice woman who had assisted her by taking her to the Roads and Maritime Services (RMS) office to renew her driver's licence which she had lost. As a consequence, Mrs PNH told Dr Z that she felt obligated to sell her home through that agent. Dr Z noted that Mrs PNH had well systematised paranoid delusions that her brother had been illegally gaining entry to her home. He was either using a copy of the house key or, after she had locked the doors from inside that he climbed onto the roof, removed tiles and entered by the hatch to the roof cavity. He did this even though there was a bolt lock on the inside of the hatch. Mrs PNH had insisted that various household items that were not working had been sabotaged by her brother and that his motive was to obtain her money. 3. Dr Z noted that it is likely that there is some degree of nutritional compromise as Mrs PNH was not able to organise adequate meals for herself. Her medical issues are not being reliably treated due to her lack of regard for medications and her lack of recall of what they are for. Currently, her judgment is compromised by paranoia. Dr Z believes Mrs PNH's cognitive impairment is rendering her unable to manage independently with complex activities of daily living. Dr Z's primary diagnosis was that Mrs PNH had senile dementia with paranoia. Dr Z did not believe that Mrs PNH has the capacity to make competent decisions in the areas of finance and medical and dental consent and accommodation. He requested the appointment of a Public Guardian for the management of these matters. Dr Z considered that a guardianship order was necessary in order to consent to psychiatric medication for Mrs PNH's paranoia which had clearly emerged in the context of cognitive decline. 4. The Tribunal was satisfied from Dr Z's report that Mrs PNH is incapable of managing her person. She is a person for whom the Tribunal could make a guardianship order. Is there a need for a Guardian to be appointed? 1. Section 14 of the Guardianship Act requires that after conducting a hearing into a guardianship application that the Tribunal may make a guardianship order in respect of the person if the Tribunal is satisfied that the person is a person in need of a guardian. Views of the Applicant, Mr SQT 1. In his application, Mr SQT stated that Mrs PNH will require services to support her to meet her ADLs (activities of daily living), namely services to assist in meal preparation, shopping, and medication supervision. However, she expressed reluctance to accept services as she is not inclined to pay for them and she insists that she can manage on her own. Mr SQT considered that this was exposing Mrs PNH to harm as she is currently failing some of her ADLs. 2. Mrs PNH has limited fresh food in the fridge and displays difficulty preparing meals. She is failing to uphold basic maintenance of the house; all three toilets do not work, the doorbell is not working and she has taken no steps to repair them. She is known to City Council due to the poor state of her garden, and when her only phone broke, she did not attempt to fix it until prompted and assisted by Mr SQT and the MHSOP (Mental Health Services for Older People) team. 3. Mrs PNH is non-compliant with medication. Her medication Webster pack has pills removed in a haphazard sequence and she is no longer taking prednisolone nor the prescribed warfarin and digoxin as she "didn't feel like I needed it". She also refused to accept medication for her paranoia. 4. Mr SQT observed that it took almost 20 minutes for Mrs PNH to get ready to go grocery shopping and it appears that she was confused and unorganised. When I enquired if she had cash money to buy groceries, she said no, she would use credit card. She did not, however, remember her PIN for the credit card. While shopping it was apparent that Mrs PNH has some shopping skills, she mainly bought frozen food, fruit and milk; however, it appears as though she requires someone to prompt her to buy necessities and she requires assistance in planning and transporting grocery items. 5. Currently Mrs PNH has a driver's licence. Dr Z has written to the RMS requesting she have an assessment of her fitness to drive. Mrs PNH requires transportation services. On some occasions Mrs PNH is oriented to date/day/month/year and on other occasions she is not. Mrs PNH's home is disorderly with various piles of documents, broken utilities, and medication Webster packs around. Mrs PNH's cognitive decline makes her vulnerable to exploitation Views of Dr Z concerning the need for a guardianship functions 1. Dr Z considered that provided Mrs PNH had appropriate assistance in the home, with GP review of her physical issues and with treatment with low dose antipsychotic medication, he thought that there was a reasonable prospect that Mrs PNH may be able to remain living at home with a reasonable level of safety and comfort. Dr Z considered that Mrs PNH needed an order for the appointment of the Public Guardian for the management of finances, the medical and dental consent, and for accommodation. Views of Mrs PNH 1. Mrs PNH attended the hearing in person. When the Tribunal asked her what she thought of the application, she said that she thought that the Tribunal was planning to take control of her and she did not like it. She told the Tribunal that she was friendly with a real estate agent, but she is not going to sell until she has found somewhere suitable in which to live. She wants something close to the shops. Mrs PNH said that if she gets pressured, she becomes stubborn. Mrs PNH did not know how long she had known Mr SQT or what he does. Mrs PNH referred to some of the difficulties with her home. She said that tradespeople have been paid to fix the toilets although she wasn't sure who would organise this. She said it was not just her phone that was out of order – the whole area's phone was. Mrs PNH said she doesn't need help and she can do things for herself. She had given up her car recently. She still has her licence and she would not hand that in as it establishes her identity. Mrs PNH said that her neighbour just wants her home in order to sell it to a developer and feels betrayed by her. Mrs PNH said she had meals delivered and she didn't like them although she hasn't stopped them yet. She had not taken action to tidy up her garden as yet and she was not going to be pushed by her neighbour. 2. The Tribunal asked Mrs PNH if she was worried that she was short of money. She said she was not worried and that there was enough for her. She said that a real estate agent had come knocking on her door she had only started the previous Monday week. Her house has three stories. Mrs PNH said she would choose her brother to give her advice. When asked what medications she was taking, Mrs PNH said she had taken prednisone but had stopped taking it for a while. She does not know why she is taking it in nor why she needs to take warfarin. Views of Mr MSU 1. Mr MSU said that his sister takes prednisone but that you cannot take this continuously and only to a certain level. He says he does visit his sister regularly – perhaps once a month. When he goes to her home, his sister cooks. He was there before he went overseas and has been away. He came back early to be here for this hearing. He didn't know her telephone was not working. The need for a guardianship order 1. The Tribunal was mindful of the principles set out under s 4 of the Guardianship Act. These principles stressed the need for the Tribunal to act least restrictively in respect of the subject person while ensuring their welfare is paramount. 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles. 1. The Tribunal had heard that Mrs PNH's require services to assist her with such things as transportation, shopping, taking medication, and attending to household repairs. 2. The Tribunal had also heard that Mrs PNH does not agree to take medication necessary for physical and mental health. 3. The Tribunal was satisfied that there is a need for a guardian to be appointed to ensure that all necessary decisions about Mrs PNH's lifestyle are made and she is not subject to exploitation. 4. The Tribunal determined that the guardian should have the following authorities: * accommodation * services * health care, and * medical and dental consents Who should be appointed guardian? 1. Section 17 of the Guardianship Act sets out the requirements for a person who is appointed as guardian. 17 Guardians (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order. Views of Ms DAZ 1. Ms DAZ is the daughter of Mrs PNH's brother, Mr MSU. She lives in regional NSW. She has contact with her aunt. She thought that her aunt needed such services as home care, meals on wheels, and assistance with shopping. She agreed that she would be prepared to act as her aunt's guardian. 2. Generally speaking, it is preferable for the Tribunal to appoint family members as guardians for subject persons. However the Tribunal needs to be satisfied that the family member is ready and willing to act as guardian and has an understanding of the person's needs. The Tribunal had heard that Mrs PNH has become suspicious about her brother Mr MSU. The Tribunal considers that this would make it difficult for Mr MSU to act as Mrs PNH's guardian and to make decisions with which she disagreed. 3. The Tribunal determined it was appropriate to appoint Ms DAZ as Mrs PNH's guardian. How long should the order last? 1. An initial guardianship order can be made for a period of up to one year from the date on which it was made. However, an order of up to three years can be made, if the person the subject of the order has permanent disabilities, is unlikely to become capable of managing his or her person and there is the need for an order longer than one year. The Tribunal needs to act least restrictively in considering the need for a guardian and the term of the guardian's appointment. The Tribunal determined to make an order for 12 months. During this time it will be necessary for the guardian to make any necessary accommodation, services, health care decisions, and provide medical and dental consents decisions for Mrs PNH. In particular, it may take some time to work through whether Mrs PNH can remain safely in her own home with the provision of services. The Tribunal will review the continuing need for the guardianship order after this 12 month period. APPLICATION FOR FINANCIAL MANAGEMENT What did the Tribunal have to decide? 1. The issues for the Tribunal were: * Is Mrs PNH incapable of managing her affairs? * Is there a need for another person to manage Mrs PNH's affairs and is it in her best interests for a financial management order to be made? * If so, who should be appointed financial manager? Is Mrs PNH incapable of managing her affairs? 1. The test for determining a person's capability to manage his or her affairs has been described as follows. See 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 the 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 judgements about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498, [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, [309]. 1. The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81at [86]). See Lindsay J in Re W and L (Parameters of protected estate management orders) [2014] NSW SC 1106 at [20]: Each case must of course, be considered on its own facts, including not only actual facts presently known but also, so far as they can be known, prospective developments. 1. The Tribunal had before it the report of Dr Z dated 26 July 2016 which stated that there was a very high risk of Mrs PNH being financially exploited. Dr Z did not believe that Mrs PNH has the capacity to make competent decisions in the areas of finance. Dr Z stated that she is clearly very vulnerable to suggestion and feeling obligated towards anyone who assists her. Because of her vulnerability to financial exploitation, Mrs PNH required the appointment of a financial guardian. The report also noted that Mrs PNH was deeply suspicious about her brother's actions and thought that he was trying to take her money. 2. The Tribunal was satisfied that Mrs PNH is unable to manage her financial affairs. Is there a need for another person to manage Mrs PNH's affairs and is it in her best interests for a financial management order to be made? The views of Mr SQT 1. In his application, Mr SQT stated that Mrs PNH is vulnerable to financial exploitation. Dr Z, psychiatrist, did not regard Mrs PNH as competent to nominate an enduring guardian or power of attorney. 2. Several different real estate agents have attempted to coerce Mrs PNH into selling her house. Mrs PNH explained that she had been assisted by a nice woman real estate agent to obtain an interim driver's licence and that she now felt obligated to sell through that agent. Mrs PNH denied that she was now considering selling; gave vague answers as to where she would live if the house were sold. A separate real estate agent has valued the house, and sent Mrs PNH gifts. The real estate agents involved have since been contacted by the community mental health centre and asked to cease contact with her until after the guardianship hearing. 3. Mrs PNH currently manages her own finances but is unable to give clear accounts of money. She does not receive a pension, and so was primarily accessing her savings to pay for things. Mrs PNH expressed an unwillingness to accept services as she does not want to spend money. 4. Mr SQT understood that Mrs PNH's income consisted of $99 superannuation monthly. Her major expenses were house maintenance. He understood that her house was valued at $3.7 million. He recommended the appointment of the NSW Trustee and Guardian. Views of Mr MSU 1. Mr MSU told the Tribunal that his sister was able to manage her financial affairs. He had, however, managed the sale of her house in Northwest Sydney for her. He had obtained a higher rate of interest for the proceeds through his connections to the bank. He said that a real estate agent had contacted him saying that he was interested in selling his sister's property at Lower North Shore Sydney. Mr MSU said his sister was stubborn and would not be persuaded to sell if she did not wish to. Mr MSU said he disagreed with Dr Z's views. He thought his sister is well able to make all her own decisions. Views of Mrs PNH 1. Mrs PNH told the Tribunal that she did not know what her house would be worth. She says she has one bank account but does not know how much is in it. She pays her bills by credit card and then just pays the credit card bill at the end of the month. She was not sure what sort of bills she has. Mrs PNH told the Tribunal that she has shares and bank interest. She gets a small amount of superannuation from her late-husband's account. She gets a tax agent to do her tax return. Mrs PNH said she had paid the Council to fix the toilets but they were still leaking even though she paid an extra $30. Mrs PNH did not know who had got them in. She would usually pay by cheque. She banks with an Australian commercial bank and has a credit card. She has no other term deposits. There is no one else who co-signs on her account and there is only her brother that she would trust. She thought she would give her brother authority to operate her account if she became sick. She just had not got around to it. 2. The Tribunal had a number of concerns about Mrs PNH's financial situation. Mrs PNH had told Mr SQT she did not know her PIN but relied on her credit card to make purchases and pay bills. Mrs PNH was unaware of what her regular bills were. She was reluctant to spend money on services to assist her to live safely in her home. Mrs PNH did not appear to know the extent of funds available to her. 3. It appeared to the Tribunal that Mrs PNH's brother has been handling more major financial functions for her. At the same time Mr MSU was firm that his sister could make all of her own decisions for herself and was critical of the medical evidence before the Tribunal. The Tribunal had also heard that Mr MSU was subject of his sister's suspicions. The Tribunal was satisfied that Mrs PNH may be vulnerable to financial exploitation in the absence of a financial manager. The Tribunal was satisfied that there is a need to appoint someone to manage Mrs PNH's affairs and it is in her best interests that an order be made. Who should be appointed financial manager? 1. In appointing a financial manager, as in making all other orders under the Guardianship Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Guardianship Act. 2. Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian. 3. 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 Protective Commissioner and a family member as the manager of an estate. 4. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner. 5. On the side of the 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. 6. 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. 7. The Tribunal had heard that Mrs PNH had been distrustful of her brother as a result of paranoia from her dementia. Mrs PNH had told the professionals who were seeing her that her brother was trying to sell her home and take her money. At the same time, at the hearing, Mrs PNH told the Tribunal that the only person that she would trust to operate her accounts was her brother. It appears that Mr MSU undertook the sale of Mrs PNH's property in Northwest Sydney and that a real estate agent has contacted him about selling Mrs PNH's current home. The Tribunal considered Mrs PNH's stated reluctance to pay for services although it appears that she has sufficient funds to afford them. Mr MSU thinks that there is nothing wrong with his sister and that she can make her own decisions including to reject services. In these circumstances the tribunal considers that Mr MSU would have difficulty with the concept of paying for services as the financial manager. 8. In the circumstances, the Tribunal did not consider that it was in Mrs PNH's best interests for her brother to be appointed as financial manager. No other family member offered themself in this role. The Tribunal was satisfied that there is no other friend or family member available to be appointed as financial manager. The Tribunal was satisfied that the estate of Mrs PNH should be committed to the NSW Trustee and Guardian. ********** 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: 20 December 2018