NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: KNQ [2019] NSWCATGD 19 Hearing dates: 24 October 2019 Date of orders: 24 October 2019 Decision date: 24 October 2019 Jurisdiction: Guardianship Division Before: A R Boxall, Senior Member (Legal) A M Matheson, Senior Member (Professional) E Lyne, General Member (Community) Decision: The application to Review the Power of Attorney is dismissed after hearing. The application to review the Guardianship Order is dismissed after hearing. The application to review the Guardianship Order is dismissed after hearing. Catchwords: GUARDIANSHIP – review of making and operation and effect of enduring power of attorney – decision not to conduct review under s 36(1) of the Powers of Attorney Act 2003 (NSW) – power of attorney purportedly revoked by interstate tribunal – financial management order made by interstate tribunal – financial managers have power to investigate history of subject person's affairs – financial managers can apply to have interstate order recognised in NSW – application dismissed. GUARDIANSHIP – requested review of guardianship order – appointment of Public Guardian as guardian – where a parallel order made by interstate tribunal – whether appointment of family is preferable to that of Public Guardian – suitability of applicant to be appointed guardian – applicant unsuitable to be appointed guardian – guardianship order confirmed – application dismissed. Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 6K3, 14(2), 25M, 48B(1)-(3) NSW Trustee and Guardian Act 2009 (NSW), s 63 Powers of Attorney Act 2003 (NSW), ss 5(c), 36, 36(1)-(2), 50, 50(1) Cases Cited: IF v IG [2004] NSWADTAP 3 Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 Texts Cited: Nil Category: Principal judgment Parties: 004: Review of an Enduring Power of Attorney KNQ (the person) LAB (applicant) CZO (attorney) SQB (attorney) NSW Trustee and Guardian 005: Requested Review of Guardianship Order KNQ (the person) LAB (applicant) Public Guardian (appointed guardian) 006: Requested Review of Guardianship Order KNQ (the person) Public Guardian (applicant, appointed guardian) LAB (carer) Representation: M Adam as separate representative for KNQ File Number(s): NCAT 2019/00023887 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 REVIEW OF ENDURING POWER OF ATTORNEY REQUESTED REVIEW OF GUARDIANSHIP ORDER COMMON INTRODUCTORY ELEMENTS Background 1. KNQ is 85 years old and is reported to have dementia. She has five surviving children: SQB, CZO, LAB, SYB and UBQ, whom these reasons will for simplicity refer to by their respective given names or nicknames. SQB and CZO live on the Central Coast; LAB, SYB and UBQ live in the ACT. There is considerable conflict within the family as to the appropriate accommodation and care arrangements for KNQ. 2. KNQ is currently a resident in the ACT with her son LAB, who is the Applicant in two of the three applications under consideration. The details of her residential history and of her move to the ACT are set out in some detail below. 3. On 25 July 2017 KNQ executed in favour of SQB an enduring guardianship appointment and an enduring power of attorney, appointing him as respectively her enduring guardian and her enduring attorney. 4. On 8 April 2019 these instruments were reviewed by the Tribunal at the request of LAB. In those reviews, the Tribunal: 1. decided to treat the application for review of the enduring guardianship appointment as if it were an application for a guardianship order for KNQ; 2. found, for the reasons outlined in its Reasons for Decision, that KNQ was a person with a disability, namely a cognitive impairment due to dementia of mixed aetiology, which prevented her making important life decisions, and was thus a person for whom it could make a guardianship order; 3. again for the reasons outlined in its Reasons for Decision, appointed the Public Guardian as KNQ's guardian for 12 months, to make decisions for her concerning access to her, accommodation (with authority for the guardian to enlist the assistance of third parties in implementing accommodation decisions), health care, medical and dental treatment and service support; and 4. declined to review the operation or effect of the enduring power of attorney and dismissed the application. 1. On 20 August 2019, by which time KNQ was a resident in the ACT, the Australian Capital Territory Civil and Administrative Tribunal (ACAT): 1. appointed LAB and SYB as KNQ's guardians for two years, to make decisions concerning her accommodation, medical treatment, and health and welfare needs; 2. appointed LAB and SYB for two years as managers to manage KNQ's property, including her finances; and 3. purportedly revoked the enduring power of attorney made on 25 July 2017 "…on the grounds that [KNQ] lacked capacity to make it…" . 1. On 27 June 2019 the Tribunal received a further application from LAB to review the enduring power of attorney. 2. On 23 August 2019 the Tribunal received an application from LAB to review the guardianship order made on 8 April 2019. 3. On 27 August 2019 the Tribunal received an application from the Public Guardian to review the guardianship order made on 8 April 2019. 4. The purpose of today's hearing is to consider all three applications. 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.] 2. Mr Matthew Adam participated by telephone as separate representative for KNQ, having been appointed pursuant to an order made on 7 August 2019 that KNQ be separately represented. Do the Applicants have standing to make the application? 1. A person may apply for an enduring power of attorney to be reviewed if he or she is: 1. an attorney (including an attorney whose appointment has been purportedly revoked); 2. the principal; 3. any person who is: 1. a guardian of the principal (whether under the Guardianship Act 1987 (NSW) or any other Act or law); or 2. an enduring guardian of the principal under the Guardianship Act; 1. any other person who, in the opinion of the review tribunal, has a proper interest in the proceedings or a genuine concern for the welfare of the principal. 1. A person has standing to request the review of a guardianship order if he or she is: 1. the guardian; 2. the person under guardianship; 3. the Public Guardian; 4. any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person under guardianship. 1. The Tribunal found that: 1. LAB has standing to make the application to review the power of attorney and the guardianship order because, as KNQ's son, he can reasonably be considered to have a genuine concern for her welfare; and 2. The Public Guardian has express statutory standing to make an application to review the guardianship order. Summary of some evidence 1. The following matters emerged from the evidence provided by LAB and SQB: 1. For several years until late 2018, KNQ lived with SQB and his family on the Central Coast. 2. In late 2018 she was admitted to Public Hospital A for treatment for a urinary tract infection. 3. In January 2019 she was scheduled to enter an aged care facility. The decision that she enter the facility was made by SQB as enduring guardian, having regard to advice of the treating team at Public Hospital A to the effect that she required a level of care and supervision which SQB and his family would be unable to provide. 4. Shortly before her proposed move to the aged care facility, she was removed from the hospital by LAB without the knowledge or approval of the treating team and driven to Canberra. The ACT Police found KNQ and took her to another public hospital for treatment. LAB again removed her from hospital there without the knowledge of the hospital staff, and the ACT Police again located her and returned her to the hospital. SQB and his daughter drove to Canberra and took KNQ to the aged care facility on the Central Coast. 5. KNQ had considerable difficulty settling in the aged care facility and was unhappy there, especially in the locked section of the facility. 6. On 23 January 2019 LAB applied for a review of the enduring guardianship appointment and the enduring power of attorney. These applications were heard at Gosford on 8 April 2019. The application to review the enduring power of attorney was dismissed, while the Tribunal decided under s 6K(3) of the Guardianship Act to treat the application to review the enduring guardianship appointment as an application for a guardianship order and made the guardianship order which is under review in this hearing. 1. LAB provided the following relevant evidence: 1. Immediately after the decision in the NCAT hearing in Gosford, LAB left Gosford with KNQ in his car. He described this as having "escaped to Canberra" and said that they took a round-about route to Canberra, in order to make it difficult for SQB and others to follow or find them. They eventually arrived in Canberra on 10 April 2019, having spent two nights on the road. 2. He did this because: 1. his mother was desperately unhappy at the aged care facility; 2. he believed that she was being drugged there and had been sexually assaulted; and 3. KNQ wished to come and live in Canberra, close to him and his brother; 1. LAB said that he informed the ACT Tribunal of the existence of the New South Wales guardianship order: "I assume I mentioned it in my application. I wasn't trying to hide anything. I am 100% certain I mentioned it in the ACAT", he told the Tribunal. 1. SQB provided the following evidence: 1. He received a notice of the ACAT hearing but did not consider it necessary to participate in the ACAT hearing for two reasons. 2. These were as follows: 1. He did not wish to continue as his mother's attorney, and so had no objection if ACAT made a financial management order (or ACT equivalent) appointing one or more of his brothers, or an ACT government body, as his mother's financial manager. This was because he found it onerous and expensive to act as his mother's attorney. 2. In any event, he did not consider it necessary for him to participate in the ACAT guardianship proceedings, since he had legal advice that his mother's move to the ACT was legally wrong and he expected, therefore, ACAT to dismiss the application. 1. He informed his sister, CZO, that: 1. He had no objection to ACAT making a financial management order for his mother, but 2. He was not happy for LAB to be appointed as his mother's guardian since he had doubts as to his brother's mental stability and judgment. 1. Mr Alan Rhoades, of the office of the Public Guardian, told the Tribunal that: 1. He was the officer in charge of KNQ's file. 2. He had not initiated any action specifically to retrieve KNQ following her removal to Canberra, despite: 1. There being a currently operative decision by KNQ's enduring guardian, that she be accommodated at the aged care facility on the Central Coast; and 2. The Tribunal's decision on 8 April 2019 that the Public Guardian be appointed as her guardian with coercive accommodation powers. 1. The Public Guardian, however: 1. had itself lodged a guardianship application concerning KNQ with ACAT on 5 July 2019; 2. was informed of LAB's parallel application; 3. had been informed of the ACAT hearing on 20 August 2019; 4. did not take any steps to participate in that hearing or to initiate contact with ACAT to ensure participation; 5. rather, had assumed without enquiry that ACAT would necessarily seek the Public Guardian's views on LAB's application in view of this Tribunal's appointment of the Public Guardian as KNQ's guardian; and 6. had lodged its present application with this Tribunal because, in the light of ACAT's decision, the continuation of the guardianship order dated 8 April 2019 served no useful purpose. 1. KNQ herself told the Tribunal that: 1. when she left the Tribunal hearing in Gosford, she wanted to go to Canberra; 2. LAB and SYB have been good with her; 3. she felt that she had been dumped at the Central Coast nursing home and treated very badly there; 4. she had always been a very independent person, which was why she did not get on well in a nursing home; and 5. she wanted to remain in Canberra. 1. The orders made by ACAT each contain a note as follows: "[CZO] attended the hearing by telephone and supported the appointment of [LAB] and [SYB] as guardian and manager. She also stated that [SQB] no longer objects to the appointment of [LAB] and [SYB]". 1. Unfortunately, CZO in an email to the Tribunal dated 15 August 2019 declined to participate in today's hearing, on the basis that "…there is nothing more I can do without making the situation worse for mum". 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 2003 (NSW), 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). Should the Tribunal conduct the review? 1. In Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516, Slattery J stated at [80]: On an application for s 36 review such as this the Court must first exercise a discretion under Powers of Attorney Act, s 36(1) to decide whether or not to conduct a s 36 review. In my view the Court does not have to conduct a full review of all documents associated with the operation of the subject power of attorney to do this. Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review. In the circumstances of this case the Court can glean sufficient information to exercise the s 36(1) discretion by undertaking a general survey of what... (a party)...has produced. 1. The Tribunal decided not to conduct a review of the enduring power of attorney for the following reasons: 1. If the decision of ACAT purporting to revoke the enduring power of attorney is one which it is legally competent to make, then there is no enduring power of attorney to be reviewed and it would thus be pointless for the Tribunal to take the review process any further; 2. If, however, that decision is outside the legal competence of ACAT with the consequence that the enduring power of attorney subsists, several conclusions follow: 1. LAB and SYB, as managers appointed under the ACAT order, have full power to take all steps necessary or desirable to manage KNQ's affairs, even though the enduring power of attorney may subsist; this includes power to initiate and undertake such investigations into the historical management of KNQ's affairs as they consider appropriate in her interests; 2. SQB, however, retains under the enduring power of attorney a parallel (and potentially competing) authority as attorney to deal with KNQ's affairs, at least to the extent they are located in New South Wales; this is because the ACAT order does not have the effect under s 50 of the Powers of Attorney Act of suspending the operation of the enduring power of attorney, since KNQ's estate is not a "managed estate" within the meaning of s 50(1) of that Act by reason of the ACAT order (as it would be if this Tribunal made a financial management order for KNQ); but 3. If the subsistence of the enduring power of attorney is a source of concern to the Applicant or SYB, they have a simple expedient open to them, which we discuss in the next paragraph, both: 1. to address the consequences (if any) of the enduring power of attorney's subsistence in parallel with the ACAT orders and, 2. if considered necessary, to ensure that their powers as KNQ's financial managers appointed by ACAT extend to her assets in New South Wales; and 1. since that simple expedient exists and its implementation is entirely within the control of LAB and SYB, there is no reason for the Tribunal to undertake the requested review. 1. This expedient is, in summary, as follows: 1. It is open to the Applicant and SYB, as KNQ's managers appointed under ACAT's order of 20 August 2019, to apply to this Tribunal under s 48B(1) of the Guardianship Act for the recognition in New South Wales of their appointment. 2. If they do apply, this Tribunal is required under s 48B(2) of the Guardianship Act to recognise their appointment if it is satisfied that they have been so appointed. 3. Once so recognised under s 48B(3) of the Guardianship Act, they are "…taken to be appointed under this Act as…manager…" of KNQ's estate. 4. The consequence is that KNQ's estate is taken, at least so far as New South Wales is concerned, to be an estate: 1. in respect of which a manager has been appointed under s 25M of the Guardianship Act, and 2. to which s 63 of the NSW Trustee and Guardian Act 2009 (NSW) applies. 1. This in turn means that under s 50 of the Powers of Attorney Act the powers of SQB under the enduring power of attorney will be automatically suspended from the time at which the ACAT order is recognised and for the remaining duration of the ACAT orders. 1. If, as he indicated in his evidence, SQB no longer wishes to be appointed as KNQ's enduring attorney then an even simpler expedient is available to him. It is always open to renounce his appointment, as s 5(c) of the Powers of Attorney Act contemplates. 2. It is not necessary in the circumstances for the Tribunal to make a finding as to whether ACAT has jurisdiction to set aside an enduring power of attorney created under the provisions of the Powers of Attorney Act. 3. In view of its decision not to review the enduring power of attorney, the Tribunal dismisses the application. REQUESTED REVIEW OF GUARDIANSHIP ORDER What did the Tribunal have to decide? 1. On reviewing the current guardianship order at the request of LAB and the Public Guardian, the Tribunal may confirm, vary, suspend, revoke, renew or renew and vary the order. LAB and the Public Guardian have each requested the Tribunal to review the current guardianship order for KNQ because, in view of ACAT's order appointing LAB and SYB as KNQ's guardians, the guardianship order made by this Tribunal on 8 April 2019 serves no useful purpose. 2. Accordingly, the questions to be considered by the Tribunal are: * Is KNQ someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions? * Should the guardianship order continue, be revoked or be renewed? * What functions should now be given to the guardian? * Who should be the guardian? Is KNQ someone for whom the Tribunal could make an order because she continues to have 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 or 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) of 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) of the Guardianship Act. 1. When the previous order was made, the Tribunal found that KNQ had a disability, being dementia of mixed aetiology, likely Alzheimer's and vascular, and was unable to make important life decisions. It did so on the basis of: 1. a report to that effect by Dr Z, senior medical officer (geriatrics) at Public Hospital A dated 10 January 2019; and 2. a supplementary report dated 28 March 2019 by Mr Y, registered nurse at an aged care facility, which were not inconsistent with KNQ's responses during the hearing. The Tribunal noted these as "…frequently rigid, repetitive and tangential". 1. In doing so, the Tribunal preferred the professional evidence to LAB's observational evidence of his mother, or KNQ's assertions that that there was nothing wrong with her. 2. There is no new evidence before the Tribunal in relation to this issue apart from LAB's uncorroborated assertion, in a handwritten submission received by the Tribunal on 23 August 2019, that KNQ had scored 26/30 in a capacity test – presumably the Mini-Mental State Examination (MMSE) – performed since the April 2019 hearing, as compared to a MMSE score of 17/30 in testing conducted in January 2019. While the Tribunal noted LAB's assertion it alone does not form a satisfactory basis on which to revisit the April 2019 finding, for two reasons: 1. It is entirely uncorroborated; and 2. The MMSE test is merely a screening device which does not amount to a diagnosis of (or clearance from) dementia. 1. In any event, in making its guardianship order of 20 August 2019, ACAT apparently reached a similar conclusion. 2. The Tribunal remains satisfied, therefore, that KNQ continues to have a disability which prevents her making important life decisions. She is a person for whom the Tribunal could make a further guardianship order. Should the Tribunal make a further guardianship order and if so, 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 further 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; 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) of the Guardianship Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3). 2. The issue here is whether, in view of the ACAT order dated 20 August 2019 appointing LAB and SYB as KNQ's guardians: 1. the Tribunal's order dated 8 April 2019 appointing the Public Guardian as KNQ's guardian is superfluous; and 2. the Tribunal should in consequence revoke that order. 1. The Applicant and the Public Guardian in their respective applications say that it should, because: 1. As both the Applicant and the Public Guardian say, the orders are duplicative and the existence of the ACAT order makes this Tribunal's order of 8 April 2019 unnecessary; and 2. In the case of the Applicant (if not the Public Guardian), there is a further substantive reason for his application which appears to be that the appointment of himself and his brother as guardians is preferable to that of a government body; this is the argument that the Tribunal discerns in the following extracts from his review application: "We live in the ACT & a government worker is not appropriate or necessary our mother has been very unfairly treated by two family members, & our mother did not ask for a guardian in the first place she was tricked & now that our mother does not have a urinary track [sic] infection & big family emotional troubles & not being dumped in a nursing home, her capacity result is now 26/30 before it was 17/30 …..No government please …. A family person are [sic] here 24/7 a government person is not even half plus they do not much understand the person or the situation. & government workers usually do not question other gov workers just rubber-stamp in agreement." 1. The starting point is, in the Tribunal's view, the ACAT hearing on 20 August 2019: 1. The note recorded in the ACAT orders is, as indicated above, that CZO participated by telephone and stated that SQB "…No longer objects to the appointment of [LAB] and [SYB]." 2. SQB's oral evidence to the Tribunal is that while he no longer wished to act as his mother's attorney – he observed memorably in evidence that "old ladies are expensive things to run" by way of explanation for this preference – he was adamant that LAB was not a suitable person to act as his mother's guardian and opposed his appointment. He said that "I told [CZO] that I wasn't happy with [LAB] as guardian", and later expanded on his reasons for this view: "[LAB]'s a bit demented. Mum's got dementia. They're both a bit mental." We have no reason to doubt the accuracy of SQB's recall of his discussion with CZO. 3. CZO unfortunately declined to participate in today's hearing, and so the Tribunal did not have her account of the ACAT hearing. However, in comparing the note which appears on the ACAT orders with SQB's oral evidence, it appears to be a not unreasonable hypothesis that in her telephone discussions with ACAT during the hearing, she may have conflated SQB's attitudes towards the making of a financial management order and a guardianship order, and inadvertently led ACAT to conclude that, as its note says, SQB did not object to the appointment of LAB and SYB as KNQ's guardians. 4. Compounding this apparent misinformation was the Public Guardian's failure to participate in the ACAT hearing. This was regrettable, since the Public Guardian's absence from the hearing deprived ACAT of the opportunity to hear: 1. the views of the independent third party whom this Tribunal, in its decision on 8 April 2019, had very consciously and deliberately appointed as KNQ's guardian because of its concerns as to "…the family dynamics and high level of conflict between [KNQ]'s children"; and 2. a more objective account of LAB's history of removing KNQ on at least two occasions from hospitals or care institutions without consultation with or notice to her treating team, and his history – to which he proudly admitted during his evidence – of physically making off with her in order to frustrate the implementation of decisions made by her lawfully appointed enduring guardian. 1. These were both matters which, if brought to ACAT's attention, may well have resulted in a different outcome on 20 August 2019. 2. If faced by an order made by a fraternal interstate tribunal which in a material way overlapped with orders made by or sought from the Tribunal, the Tribunal might well be disinclined to allow two competing orders – one made by it, and the other made by the interstate tribunal – to subsist. At least two reasons would support such an approach: 1. The undesirability of having multiple potentially competing substitute decision-makers for a person in need of a guardian; and 2. The respect and comity which this Tribunal owes to an interstate tribunal exercising a similar jurisdiction. 1. In the present case, however: 1. The misinformation concerning SQB's views which appears to have been communicated to ACAT by CZO, and which having regard to the note in ACAT's orders appears to have been a material factor in ACAT's decision; and 2. That ACAT did not have the benefit of the Public Guardian's views in respect of LAB's application; are both deficiencies in the evidence provided to ACAT which, as noted above, may well have led ACAT, if properly informed, to make a decision which could well have been materially different. 1. Accordingly, the Tribunal is not prepared to revoke the guardianship order of 8 April 2019 simply because of the existence of the ACAT guardianship order. 1. Turning now to the identity of the decision makers under the ACAT order, the Tribunal has significant reservations concerning their appointment: 1. In the reasons for its decision of 8 April 2019, the Tribunal outlined its reasons for appointing the Public Guardian as KNQ's guardian. These were, essentially, because "…having regard to the family dynamics and high level of conflict between [KNQ]'s children, we decided that it was in [KNQ]'s best interests that an independent guardian be appointed to help preserve her relationships with all of her children". Nothing in today's hearing gave us any reason to believe that the conflict between KNQ's children had in any way moderated, so that this consideration remains as relevant as ever. 2. Since SYB did not participate in the hearing, the Tribunal was not in a position to form any view as to his suitability as a guardian. At [52] of its reasons concerning the orders made on 8 April 2019, the Tribunal did observe as follows; "We accepted that [SYB]'s personality is generally compatible with that of his mother's [sic]. They appeared to have a close relationship at the hearing and [KNQ] indicated that she trusts [SYB] to make decisions on her behalf. [SYB] appeared to have a reasonable understanding of his mother's condition and her care needs, although they have apparently not lived together for many years". 1. While this is a broadly positive assessment of SYB's suitability, the appointment of him and LAB as KNQ's guardians under the ACAT order is a joint and several one. That is to say, either he or LAB may make decisions for KNQ without consulting with the other. This then leads to consideration of LAB's suitability. 2. LAB's oral and written submissions clearly indicate his affection for his mother. Their tone and content strongly suggest, however: 1. an unwillingness or inability to analyse in a rational and measured manner his mother's condition; give appropriate consideration to medical and other professional advice; or draw measured conclusions concerning his mother's condition and care needs; 2. no willingness to give consideration to the views of SQB or CZO; and 3. a firm belief that he, and he alone, has privileged insights into his mother's condition and needs and a correspondingly privileged status to give effect to those insights, whatever may be the legal decision-making arrangements in place for KNQ. 1. A few extracts from LAB's applications and written submissions illustrate these characteristics: 1. In his application to review the enduring power of attorney, LAB observes concerning the professional opinions relied on by the Tribunal on 8 April 2019 that: "I don't agree with a doctor from [Public Hospital A] it was not fair, under my mother's case and situation I certainly don't agree with the assessment done by a nurse at the [aged care facility]. They are irrelevant anyway". This would appear to suggest that LAB is unprepared to give credence to professional opinion concerning his mother's condition, at least when such an opinion differs from his own views. This is not to say that professional opinions are necessarily and universally correct; it is, however, incumbent on a person who intends to act as the decision maker for a person with a disability to give them the reasoned consideration that the professional training and experience of their authors merit rather than to dismiss them out of hand. 1. Concerning KNQ's hospitalisation in late-2018 LAB's submission states as follows: "[CZO]. 'Unfortunately as she stated (started) to get well physically, she declined mentally'. [LAB]. Very exaggerated and the urinary track [sic] infection played are big part in mum's mental state at the time, and anyway [CZO] and [SQB] wanted our mother to be mentally unwell or get classed as that, so they can 'legally' have total ownership of her and her finances. The put downs, as your so stupid mum, and the sarcasms, and [CZO]'s safety negligence's, and mum's suspicions become real against [CZO], causing mum to stop going to [CZO]'s place. And that situation of mum trying to climb out of [CZO]'s bathroom window hurting her leg badly, because mum said the door was locked, as in thinking [CZO] had locked it on purpose". This suggests that LAB not only has significant and negative preconceptions concerning SQB and CZO, but also that these preconceptions negatively colour his attitude towards information provided by them concerning their experience of dealing with their mother in late-2018. 1. Concerning his removal of KNQ from hospital he writes as follows: "The lies and bullshit are so many and so thick. [CZO] goes on to say how I took Mum out of hospitals 'without asking permission'. Without asking permission. [SQB] was the only one to give permission. So mum and I were to ask his permission. Me and mum planned for her to escape about a week before the first escape. Timing and luck needed to be on our side, but that damned guardian crap thing [CZO] and [SQB] devised was a hell of a thing to deal with, so we ended up being forced to leave it up to the tribunal, which took another 12 weeks to happen. The main thing was to get [SQB] off that power possessive guardian rotten thing. Well it happened, and if it did not then mum would be like dead now, under [CZO]'s and [SQB]'s whatever is best for mum, caring bullshit". Again, LAB indicates a reluctance not only to consider the views of other family members concerning KNQ's care and well-being, but even to consider the possibility that SQB or CZO might have a legitimate interest in or concern for their mother. Moreover, he demonstrates a clear preparedness to take steps which are both drastic and potentially risky for his mother in order to impose his preferred approach to her care and welfare. 1. There is no need to multiply examples any further, nor is there any need to consider (or express any view concerning) the validity of the concerns which LAB says justify his actions. What LAB's actions and submissions indicate to the Tribunal is that his impetuousness, his tendency to dismiss out of hand professional opinion and advice which does not conform to his preferred narrative, his absolute certainty that he knows what is best for his mother, his unwillingness to engage in relation to his mother's care with those family members who have had the most to do with her on a day-to-day basis for some years (and are thus better placed to form a realistic assessment of her capacities and needs), and his uncritical acceptance of KNQ's accounts of matters, can only raise doubts in the Tribunal's mind as to his suitability to act as her guardian, either alone or jointly and severally with SYB. 2. For this reason, the Tribunal considers it desirable for the guardianship order to continue, so that the Public Guardian remains in a position to participate in, or if need be initiate, a review of the ACAT guardianship orders. The Tribunal's jurisdiction is a protective one, and the circumstances surrounding KNQ's removal to Canberra and the obtaining of the ACAT orders, coupled with the very troubling nature of LAB's attitudes and approach, as disclosed in his submissions, are in the Tribunal's view such as to make it consistent with that protective role for the guardianship order to remain in place so as to facilitate intervention by the Public Guardian before ACAT with a view to protecting KNQ's interests should it prove appropriate to do so. 3. Mr Adam, the separate representative appointed for KNQ, made submissions consistent with this conclusion. He submitted relevantly that "…it may be in KNQ's best interests for the Public Guardian to be in place…" and there may be "…some protective benefit for [KNQ] in the NSW Public Guardian staying in place…". 4. Instructively, Mr Rhoades, representing the Public Guardian, observed that having heard the evidence he now thought it appropriate to reconsider whether the Public Guardian in fact sought the revocation of the guardianship order. 5. KNQ expressed the view, as summarised earlier, that LAB and SYB have been good with her and she is happy in Canberra and wants to stay there. The Tribunal's decision today is not one that KNQ should or should not stay in Canberra. Rather, it is that: 1. certain aspects of the process by which she was removed to Canberra and guardianship orders were obtained there in relation to her; and 2. LAB's approach to her care and welfare; are so troubling as to make it imprudent, in the Tribunal's view, for the Tribunal's appointment of the Public Guardian as her guardian to be revoked. The protection of her interests requires that she have an advocate, and at this stage the only advocate realistically available is the Public Guardian since it at least has the statute and standing to do so. 1. The Tribunal decided on the basis of all of this evidence that the guardianship order should therefore be confirmed without variation. 2. The other questions outlined above need not be answered. A closing observation 1. Mr Rhoades explained the Public Guardian's absence from the ACAT hearing on the basis that he had assumed that ACAT would, as this Tribunal does as a matter of course, contact the Public Guardian to seek its views and therefore took no active steps to inform ACAT of the Public Guardian's interest in participating on the hearing. Mr Adam, who was the appointed separate representative of KNQ, described this absence as surprising. The Tribunal would go a little further. The Public Guardian's failure to take active steps to ensure its participation in a hearing, of which it had notice and which it knew concerned matters directly relevant to the decision-making mandate conferred on it by this Tribunal on 8 April 2019, was a dereliction in its responsibilities towards this Tribunal and KNQ's welfare. Since this Tribunal made its guardianship order under s 6K(3) of the Guardianship Act in a hearing at which the Public Guardian was not represented, the Tribunal makes no criticism of it for not having stopped the removal of KNQ from New South Wales in April 2019. However, its supine acceptance of LAB's removal of KNQ from the jurisdiction when it eventually learnt of that event, coupled with its acquiescence in the application to revoke the Tribunal's order and its failure to participate in the ACAT hearing, can only undermine the integrity and credibility of the protective decision-making system provided for under the Guardianship Act. 2. Given our concerns, we request that the Registrar of the Guardianship Division provide our orders and reasons for decision in this matter directly to the Public Guardian of NSW. Further, it would seem prudent that we also request that our orders and reasons also be provided to the Registrar of ACAT. ********** 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 2019