Aly v NSW Trustee and Guardian
[2012] NSWADT 255
•05 December 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: ALY v NSW Trustee and Guardian [2012] NSWADT 255 Hearing dates: 3 December 2012 Decision date: 05 December 2012 Jurisdiction: General Division Before: Magistrate N Hennessy, Deputy President Decision: The decision of the NSW Trustee and Guardian to withdraw the applicant's authority to manage his Disability Support Pension is affirmed.
Catchwords: MERITS REVIEW - NSW Trustee and Guardian decision to withdraw applicant's authority to manage his Disability Support Pension - applicant refused to pay accommodation fees at Forensic Hospital - evidence of financial exploitation by ex wife - not in applicant's best interests that he manage his pension Legislation Cited: Administrative Decisions Tribunal Act 1997
NSW Trustee and Guardian Act 2009Category: Principal judgment Parties: ALY (Applicant)
NSW Trustee and Guardian (Respondent)Representation: ALY (Applicant in person)
R Stormont (NSW Trustee and Guardian)
File Number(s): 123285
REASONS FOR DECISION
Introduction
The NSW Trustee and Guardian manages ALY's financial affairs. The Trustee has decided not to continue to allow ALY to manage his Disability Support Pension himself because he has not been paying accommodation fees to the Forensic Hospital at Malabar for over 12 months. Instead, ALY has been allowing his ex wife to withdraw virtually all his pension money from his bank account. I have decided that it is in ALY's best interests for the Trustee to manage ALY's pension so that his accommodation fees are paid and his ex wife cannot withdraw money from his account.
Background
On 30 May 2001 the Guardianship Tribunal made a financial management order in relation to ALY and appointed the Trustee as his financial manager. From 31 May 2011, when he was admitted to the Forensic Hospital, until 21 July 2011, ALY received acute care treatment and was not required to pay any fees. After that date he was required to pay fees of approximately $1420.50 per month. He refused to pay those fees and has incurred a debt of over $15,000. The Trustee has applied for a waiver of the arrears but does not know whether that application will be successful.
ALY is involuntarily detained in a forensic hospital having been found not guilty of an offence by reason of mental illness. He is receiving a Disability Support Pension of about $1787.20 per month. He has no other assets or income. If he pays the accommodation fee, he would have about $366.70 a month left.
ALY separated from his wife in 2004. They have a 9 year old son who is in the care of the Minister for Family and Community Services. He admitted that he signed blank withdrawal slips and gave them to his ex wife to withdraw money from his bank account. His understanding was that he was authorising her to withdraw $350 a month to go towards saving for their son's education. He acknowledged that he had agreed that some money could also be withdrawn to pay for a trip to Hong Kong. The bank statements demonstrate that much larger amounts than that were being withdrawn. As of June 2012, when the Trustee made the decision to cancel ALY's authority to manage his pension, there was $231.03 in his bank account.
ALY does not believe he should have to pay accommodation fees to the hospital because he is being held against his will. He said he would prefer to be in goal where he does not have to pay fees. He says if the Tribunal tells him he has to pay the accommodation fees to the hospital, he will pay those fees but he does not want the Trustee to manage his pension because they charge a fee. According to ALY he is "99% normal" and has been receiving and managing a pension of some kind since 1982.
The Trustee's concern is that if ALY has access to his Disability Support Pension, he will not pay the fees and will continue to be at risk of exploitation by his ex wife.
Consideration
The decision to withdraw ALY's authority to manage his pension was made under s 71(3) of the NSW Trustee and Guardian Act 2009. When making decisions under that provision, the Trustee must observe the principles in s 4 of the Guardianship Act 1987 including the principle that "the welfare and best interests" of the subject person "should be given paramount consideration". Generally speaking, it is in the best interests of a person to be self reliant in relation to their financial affairs. But it is also important that a subject person be protected from exploitation.
I am not satisfied that if ALY is authorised to manage his pension, he will pay the accommodation fees. While he says he will pay them, he still does not believe that he should have to pay those fees. If ALY were willing to pay the fees, he would have done so before now. Secondly, I am not satisfied that ALY would stop signing blank withdrawal forms and giving them to his ex wife. He was not aware that she had withdrawn his entire pension from his account over at least a 6 month period. He assumed that his ex-wife was using the funds for their son's education but given that he is in the care of the Minister for Family and Community Services, that seems unlikely.
ALY is unable to manage his Disability Support Pension responsibly and is at risk of exploitation by his ex-wife. It is in his best interests that the NSW Trustee and Guardian manage his pension.
Orders
The decision of the NSW Trustee and Guardian to withdraw the applicant's authority to manage his Disability Support Pension is affirmed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
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Decision last updated: 05 December 2012
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