Www.caselaw.nsw.gov.au

NSW Civil and Administrative TribunalNew South WalesCase Name: CZKMedium Neutral Citation: [2020] NSWCATGD 11Hearing Date(s): 8 January 2020Date of Orders:8 January 2020Decision Date: 8 January 2020Jurisdiction: Guardianship DivisionBefore: B M Shipp, Senior Member (Legal)Dr S Williams, Senior Member (Professional)S Johnston, General Member (Community)Decision: Guardianship application?1. A guardianship order is made for CZK.?2. The Public Guardian is appointed as the guardian.?3. This is a continuing guardianship order for a period of 12 months from 8 January 2020.?4. This is a limited guardianship order giving the guardian(s) custody of CZK to the extent necessary to carry out the functions below.?FUNCTIONS:?5. The guardian has the following functions:?a) Accommodation?To decide where CZK may reside.?b) Health care?To decide what health care CZK may receive.?c) Medical/Dental consent?To make substitute decisions about proposed minor or major medical or dental treatment, where CZK is not capable of giving a valid consent.?d) Services?To make decisions about services to be provided to CZK.?CONDITION:?6. The condition of this order is:?a) Standard Condition?In exercising this role, the guardian shall take all reasonable steps to bring CZK to an understanding of the issues and to obtain and consider her views before making significant decisions.?Financial Management application?1. The estate of CZK is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).?2. The management of the estate of CZK is committed to the NSW Trustee and Guardian.?3. This order be reviewed by the Tribunal within 12 months.?4. Recommendation?The Tribunal recommends that the NSW Trustee and Guardian provide CZK access to her pension to enable her to continue to manage as much of her day to day affairs as her support workers deem appropriate.Catchwords: GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – subject person exhibiting signs of alzheimer’s, prosecutory delusions and memory deficits – whether a guardianship order should be made – uncertainty about care arrangements – no person responsible – no informal supports able to be relied upon – Public Guardian appointed – order made.?FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their own affairs – subject person exhibits forgetfulness and lack of judgment – potential need to sell the subject person’s house – no less formal way of managing proceeds of sale available – no private person able to be appointed – NSW Trustee an Guardian appointed - recommendation for part self-management of pension funds – reviewable order made.Legislation Cited: Guardianship Act 1987 (NSW3(1)-(2), 4, 14, 14(2), 25MCases Cited: IF v IG [2004] NSWADTAP 3Texts Cited: NilCategory: Principal judgmentParties: Financial Management Application?CZK (the person)Far West Local Health District (applicant)NSW Trustee and Guardian?Guardianship Application?CZK (the person)Far West Local Health District (applicant)NSW Public GuardianRepresentation: NilFile Number(s): NCAT 2019/00348978Publication 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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.REASONS FOR DECISIONWhat the Tribunal decidedThe Tribunal appointed the Public Guardian as CZK’s guardian for a period of 12 months to make decisions about her accommodation, health care and medical and dental treatment and services.The Tribunal made a financial management order appointing the NSW Trustee and Guardian, and directed that this order be reviewed in 12 months.BackgroundCZK is a 71-year-old woman with cognitive impairment likely due to Alzheimer’s type dementia. She has a younger sister, a daughter and a son, but limited contact with all of them. She also has grandchildren living locally.CZK was living in her own unit in western NSW. Since the end of September 2019, she has been on a respite placement at an aged care facility in western Sydney. This placement appears to be due largely to CZK’s unwillingness to stay at home as a result of delusions that neighbours are trying to kill or harm her. She has expressed a preference to live in regional NSW. Health care providers are suggesting a trial at home with full service support.In November 2019, the Tribunal received an application for the appointment of a financial manager from Ms Z and Ms Y, on behalf of the Far West Local Health District (FWLHD). In December 2019, they also made an application for the appointment of a guardian.The financial management application relates primarily to CZK’s declining capacity and potential need to sell her home. It is suggested that her delusions make her at risk of financial exploitation. She is said to have her home and about $120,000 in various accounts. There are also concerns that a man named Mr X is having some influence on CZK, and had moved some of her furniture out of her home.The potential need for decisions about CZK’s accommodation and services formed the background to the guardianship application.The hearingAt 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.]The hearing was conducted by video conference. Participating were CZK, Ms Y, Ms Z and Mr W, Team leader, Mental Health Drug and Alcohol Service, FWLHD.guardianshipWhat did the Tribunal have to decide?The questions which had to be decided by the Tribunal were:Is CZK 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 CZK 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?Section 14 of the Guardianship Act 1987 (NSW) (“the 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 Act. A person with a disability is a person who is:intellectually, physically, psychologically or sensorily disabled;of advanced age;a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); orotherwise 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 Act.The Tribunal received reports for the hearing from Mr W, Dr V (Old Age Psychiatrist with FWLHD), Ms U (CEO of the aged care facility), Dr T (Geriatrician with a public hospital) and Ms S (Occupational Therapist with an allied health services provider).CZK was referred to Dr V for assessment of her persecutory delusions. In his initial report while CZK was still at home, he notes that she had spoken of neighbours breaking into her home and stealing things, installing equipment in her ceiling and “gassing” her. She had left the home to stay elsewhere due to these concerns, including sleeping in her car. Her neighbours had expressed considerable concern about her decline in speed and gait. Dr V found CZK had significant word finding problems, no thought disorder, but well-formed delusions. On formal cognitive testing, she had deficits with her memory but intact concentration and only very mild orientation difficulties. Dr V expresses the view that CZK has clear cognitive decline suggestive of Alzheimer’s or Lewy Body dementia.In a later report, Dr V notes that CZK had been admitted to the aged care facility for a respite placement. She had a video conference assessment from the geriatrician Dr T (see below) who confirmed the diagnosis of Alzheimer’s type dementia. There had been no further abnormal behaviours during CZK’s time at the aged care facility. Dr V finds that CZK’s psychosis has improved significantly but her delusional recall of past events in her home strongly impact her decision making. This would likely prevent a successful trial return to home with a community aged care package. In any case, she was not keen to return home.Dr T notes the history provided by CZK’s neighbour IZ of CZK’s cognitive decline with delusions predominantly focussed on her neighbours who have been paid to kill her. She also has delusions that Bank YZ is stealing money from one of her accounts and spying on her through her television. On the basis of formal testing, Dr T finds that CZK has a moderate dementia consistent with Alzheimer’s disease including rapid forgetting, anomia and apraxia. The delusions and hallucinations are associated with this dementia. Dr T supports the proposal for CZK to return home with optimal services. In relation to the proposed guardianship and financial management applications, Dr T makes the following comments:… guardianship application, I do not think this is appropriate until [CZK][ has had a trial at home with support from services. Coercive placement could not be contemplated until CZK] has trialled discharge home with services and this has failed.Although there is no evidence of financial exploitation, I do have concerns should []CZK choose to sell her home that she is vulnerable to exploitation given her dementia. [If she choses to sell her home and move into permanent residential care] I recommend a financial management application be lodged … as she does not have the cognitive capacity to understand the nuances of a contract and is vulnerable to exploitation. Should she remain in her own home with …services, there is not sufficient evidence ... to apply for the appointment of a financial manager.The reports from Mr W, Ms S and Ms U raise similar issues. Testing by Ms S confirmed CZK’s severe cognitive deficits in her memory and orientation, auditory recall and recognition, maths skills and problem solving. She had moderate and mild deficits in other areas. Ms S believes CZK requires support from others to manage the more complex aspects of daily living including taking her medication and making a meal. She requires particular assistance with orientation to time, support in handling money and management of bills and support to complete complex problem-solving.Ms U (aged care facility CEO) notes that CZK was admitted on a respite basis on 30 September 2019. She confirms CZK experiences difficulty with her short-term memory and processing multiple sources of information at the same time. In a later report, Ms U notes that CZK was “attempting to process and adjust to a change in her future vision of herself” (relating to a possible loss of independence). This had led to an increase in her stress and the re-emergence of the original statements of neighbours wishing to kill her. Ms U also refers to the “emergence of a man with a strong personality from her religious group” who she believes presents some risks to CZK’s well-being. Further reference is made to this man below. On the basis of these concerns, Ms U believes CZK is vulnerable of being taken advantage of, and she supports the applications that had been lodged.Mr W had initially visited CZK at home with Dr V. He has remained involved since CZK’s admission the aged care facility. He believes her mental state has settled somewhat, but believes this is largely due to her being in a safe and secure environment. He believes she is particularly vulnerable to financial exploitation for reasons indicated in more detail below.CZK participated actively in the hearing. Her views are set out in more detail below. Her views were generally consistent with those which appear in the reports of Dr V and Dr T. In particular, she confirmed her preference for living in regional NSW, even though she thought she had been doing Ok at home. When asked about her medications, she stated: “I’m not an ill woman.” She denied needing any help with household duties in the past. She stated there was a neighbour who used to get into the roof of her house, and another who took things from her house.On the strength of the reports and CZK’s presentation, the Tribunal was satisfied that CZK’s cognitive impairment and associated psychotic symptoms, secondary to her likely Alzheimer’s type dementia causes her to be at least partly unable to manage her person, in the sense of making informed decisions about significant issues in her life. She is therefore a person for whom a guardian can be appointed.Should the Tribunal make a guardianship order and what order should be made?The Legal PrinciplesIn making decisions under the Act, the Tribunal is required to have regard to the general principles set out in s 4 of that Act. There are eight principles set out here which provide as follows in relation to the person with a disability:a. ???The welfare and interests of such persons should be given paramount considerationb. ???The freedom of decision and freedom of action of such persons should be restricted as little as possiblec. ???Such persons should be encouraged … to live a normal life in the communityd. ???The views of such persons … should be taken into consideratione.???The importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognisedf. ???Such persons should be encouraged … to be self-reliant in … their personal, domestic and financial affairsg.???Such persons should be protected from abuse neglect and exploitationh.???The community should be encouraged to apply and promote these principles.In addition, the Act sets out in s 14(2) some specific considerations to be applied when considering whether to make a guardianship order. The Tribunal is directed to have regard to:a. ???the views of the person, their spouse (if a continuing and close relationship exists), and the person who has the care of the personb.???the importance of preserving existing family relationshipsc.???the importance of preserving cultural and linguistic environmentsd.???the practicability of services being provided to the person without the need for making such an order.Essentially, the Tribunal is directed to positively consider whether the circumstances of the life of the person under consideration requires the appointment of a legally-authorised substitute decision-maker, or whether their need for appropriate decision making can be achieved in other less formal ways.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 Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).The information contained in the above reports indicates broadly the purpose of the guardianship application. While the treating team formed the view that CZK could be discharged home with proper community assistance, she was not keen to do so due in large part, it appeared, to her delusional beliefs.CZK indicated a clear preference to move to regional NSW where she claimed she “knew people” and has friends. She also claimed she had an “extra house” there and believed that her grandson could come and live with her. She indicated she would look to buy a house in regional NSW.In relation to her own home, CZK stated she could sell it or rent it out.She confirmed she had met a married couple through her church who were planning to help her. It became evident that she was referring to Mr X and his wife. She stated that Mr X had moved her furniture from her home to her “new house” in regional NSW, “at my request”.Ms Z and Mr W (on behalf of the Applicant) expressed the following concerns:CZK appears to have limited insight into her care needs. She appears to now lack the capacity to cook and eat independently. In any case, she was not interested in returning home with a home care package.She has maintained she has significant supports in regional NSW, but this has not been confirmed. She stated she has a daughter there, but there has been little contact between them.She has a son in Queensland, but he has had his own life difficulties, and is unlikely to be able to offer any significant support.CZK has asked the treating health professionals not to contact her children.They have sought out respite placements in regional NSW but have not found any.If CZK moves to regional NSW, she will no longer have access to any of the NSW health and allied health professionals who have been involved in her life. They have placed her on the waiting list for a Community Health support package.The property into which Mr X had planned to move CZK is quite isolated. It is not in that city in regional NSW and there is no public transport.There are reports that Mr X has taken a romantic interest in CZK, while he has been married. CZK may be unable to understand the full implications of this.Mr X has visited CZK at the aged care facility and has indicated that he does not agree with the diagnosis of dementia (he believes her cognitive impairment is due to calcium deficiency) and does not agree with the treatment she is receiving. He has indicated he may be asking her to make a Power of Attorney appointing him.Ms U also writes about the person who has now been identified as Mr X. She refers to:The emergence of a man with a strong personality from her religious group. He is currently attempting to support [CZK] with strong views regarding her medication, pre-morbid state based on [CZK]’s recalled history, reasons for cognitive decline (cited as a calcium deficiency that will correct itself naturally) and statements of setting [CZK] up in one of his houses. [CZK] has revealed … that the same ... person has attempted unwanted sexual advances and suggested she live with him and his wife, which was not supported by his wife. [CZK] has verbalised that she is aware of his plans of relocating her but has no intention of moving to his house as it is too isolated. She expressed that she does not feel in danger by his attempts and feels comfortable to ask to return to [the aged care facility].ConsiderationThe Tribunal was satisfied on the evidence that:There are now important decisions to be made in CZK’s life about her accommodation, health care, medical and dental treatment and access to services. At the time of the hearing, there was still considerable uncertainty about her care arrangements, including whether she lives in the community with services or remains in an aged care facility, and whether she remains in western Sydney or goes somewhere else. These are complex decisions to make involving a range of considerations. On the evidence provided, we are satisfied that CZK is unable to weigh up the advantages and disadvantages in her own best interests, particularly in circumstances where there are other people providing information to her which may not be accurate.The decisions about CZK’s accommodation and services cannot be made informally, or in a consensual way, as CZK lacks the insight to take advantage of information provided to her, and has no other informal supports known to the Tribunal that can be relied upon.Under the provisions of the Act, decisions about a person’s medical treatment can be made by a person responsible. The Act sets out a hierarchy of categories of persons who come within the definition of “Person Responsible”. There is no person known to the Tribunal who can perform the role of Person Responsible.The Tribunal therefore decided to appoint a guardian to make decisions about CZK’s accommodation, health care, medical and dental treatment and services.In making this order, the Tribunal has considered CZK’s views. It is not clear that she had a complete understanding of the concept of guardianship. In any event, we are satisfied on the evidence as a whole that such an order is required in her best interests. The Tribunal is also required to consider the importance of preserving existing family relationships and the importance of preserving cultural and linguistic environments.There was no evidence provided in relation to cultural or linguistic factors relevant to the Tribunal’s decision. There was also no evidence that any family relationships were likely to be negatively impacted by the appointment of a guardian.Who should be the guardian?There was no-one proposed as CZK’s private guardian. There was strong support for the appointment of the Public Guardian.In these circumstances, the Tribunal appoints the Public Guardian.How long should the order last?An initial guardianship order can be made for a period of up to one year from the date on which it was made.The Tribunal decided to make an order for 12 months, because it is likely that formal decision-making will be required in this period.FINANCIAL MANAGEMENTWhat did the Tribunal have to decide?The questions to be considered by the Tribunal are:Is CZK incapable of managing her affairs?Is there a need for another person to manage CZK’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?Reason for the ApplicationThe applicant sought the order because CZK’s ability to manage her own financial affairs was compromised by her perception that others were trying to take financial advantage of her. It was also suggested that she was in fact at risk of financial abuse due to her impaired cognition. She owns her home and receives a pension. She has some savings.Other EvidenceIn his evidence, Mr W reports that CZK’s neighbour had indicated that CZK had been giving her personal possessions away, and spending money on a range of security devices, related to her belief that others were spying on her. Neighbours had also indicated that family members regularly sought financial support from CZK.CZK had told Mr W that she was concerned about various financial issues. She stated she is sometimes convinced by advertising to buy various products regardless of need. She sought his assistance to do some banking. She indicated she wanted to withdraw $3000 cash, just in case she needed some money. She had difficulties performing the transaction at the bank, because she did not remember her PIN.CZK told the Tribunal that she had a car “about 5 years ago”, and she has three bank accounts. One of these accounts - a Bank ABC account - she described as “a small amount set aside for my son”. She identified a Bank XXZ account into which her pension is paid, with a balance of “about $100,000”. She also referred to a Bank YZ account. She thought her pension was about $1,000 per fortnight. She indicated she had purchased her unit for $135,000.CZK also told the Tribunal that she has always paid all her bills by herself. She does not pay them by direct debit. She denied any problem remembering her PIN, and she began to recite it during the hearing, before being stopped by the panel members.Is CZK incapable of managing her affairs?The leading cases say that in determining whether a person is or is not capable of managing his or her financial affairs, it is necessary to focus attention on the personal circumstances of that person, and the ability of that person to undertake the particular tasks which their circumstances require. The questions to be considered are:Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a protected estate manager charged with a duty to protect his or her welfare and interests?Is the person 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.In considering whether the person is “able” in this sense, attention may be given to: (a) past and present experience as a predictor of the future course of events; (b) support systems available to the person; and (c) the extent to which the person can be relied upon to make sound judgements about his or her welfare and interests.Whether a person is or is not “capable of managing his or her own affairs” will usually depend upon whether:He or she is reasonably able to determine what is in his or her best interests, and to protect his or her own welfare and interests, in a normal, self-reliant way without the intervention of a protected estate manager; and/orHe or she is in need of protection from neglect, abuse or exploitation.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.We note the comments of Dr T at [15] of these Reasons, to the effect that CZK does not have the cognitive capacity to understand the nuances of a contract. Dr T therefore supports the application if CZK was required to sell her home and enter into permanent residential care. Dr T also notes insufficient evidence that CZK was not managing her financial affairs at home, but agrees that she is vulnerable to exploitation.It is true that there is no strong evidence that CZK is unable to manage her day to day affairs (evidence of debts etc.). This creates the impression that CZK has been able to pay her regular expenses as they fall due. However, there is also evidence of increasing forgetting in recent times, and a lack of judgment, both skills required to reasonably determine what is in one’s own best interests and to protect oneself against exploitation.On this basis, we are satisfied that CZK does lack the capacity to manage her own affairs, and is a person for whom a financial manager can be appointed.Is there a need for a financial management order? Is it in CZK’s best interest that a financial management order be made?The need to potentially sell CZK’s home to raise the funds for entry into permanent residential care, and to enter into contracts for the same purpose, creates a clear need for the appointment of a financial manager. In addition to her home, it is likely that CZK has more than $100,000 in savings. Decisions will potentially need to be made about the use of these funds together with any further net proceeds of the sale of her home.We are satisfied that it is in the best interests of CZK that a financial management order be made. To the best of the Tribunal’s knowledge, CZK has not made a Power of Attorney, or given any other authority for anyone to access funds or act on his behalf. There are no alternative less formal ways in which CZK’s affairs can be adequately managed.Who should be appointed as financial manager? Reviewable OrderIn appointing a financial manager, as in making all other orders under the 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 Act.Section 25M of the 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.We were not informed of any person who could be appointed as CZK’s private financial manager, and she could not identify anyone who could act in that role. In these circumstances, we have committed the management of CZK’s property and affairs to the NSW Trustee and Guardian.We have also decided to review this order in 12 months. We note CZK has generally been able to manage her financial affairs to date, but there are now more complex transactions ahead. She may not require a formal order if she does move into permanent residential care, and her regular expenses are paid by direct debit. It is appropriate to review her situation in 12 months to determine whether, at that time, it would be in her best interests to revoke the order.The Tribunal also recommends to the NSW Trustee and Guardian that it provide CZK access to so much of her pension as is required to enable her to continue to manage as much of her day to day affairs, as her support workers deem appropriate. This would be particularly relevant if she does return to a more independent form of living in the community.**********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.RegistrarDISCLAIMER - 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. ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download