Amo v NSW Trustee and Guardian

[2013] NSWADTAP 20

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

AMO v NSW Trustee and Guardian [2013] NSWADTAP 20

Hearing dates:

14 February 2013

Decision date:

01 May 2013

Before:

Magistrate N Hennessy, Deputy President
Ms S Leal, Judicial Member
Dr B Field, Non-Judicial Member

Decision:

1. AMO's appeal on a question of law is dismissed.

2. Leave is refused for AMO's appeal on other grounds to proceed.

Catchwords:

APPEAL - Guardianship Tribunal decision not to vary or revoke financial management order - appeal on question of law - no question of law identified - appeal on other grounds - whether findings made on the basis of outdated or inaccurate evidence

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
NSW Trustee and Guardian Act 2009

Cases Cited:

K v K [2000] NSWSC 1052
Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456

Category:

Principal judgment

Parties:

AMO (Appellant)
NSW Trustee and Guardian (Respondent)
Guardianship Tribunal (Decision Maker)

Representation:

Dr F Ainsworth (Guardian ad litem for AMO)
No appearance (NSW Trustee and Guardian)
Ms A Sprouster (Guardianship Tribunal)

File Number(s):

128015

 Decision under appeal 

Date of Decision:

2012-08-29 00:00:00

Before:

Guardianship Tribunal

File Number(s):

File No: C/38909
Matter No: 2012/2743

reasons for decision

Introduction

1. Late in 2011 AMO applied to the Guardianship Tribunal to review an order it had made in 2008 appointing the NSW Trustee and Guardian as his financial manager. The Guardianship Tribunal dismissed the application. AMO applied for a review of the order again in April 2012. Again, the Guardianship Tribunal refused to vary or revoke the financial management order. The Tribunal was not satisfied either that AMO was capable of managing his affairs or that it was in his best interests for the financial management order to be varied or revoked. AMO has appealed against the Guardianship Tribunal's latest decision. We have dismissed the appeal because the Guardianship Tribunal did not make an error of law in reaching its decision. We have also refused AMO permission to appeal on any other ground.

Background

1. AMO is a 60 year old man with a schizo affective disorder. Because he is a "protected person" the Tribunal appointed a guardian ad litem, Dr Ainsworth, to act on his behalf: Administrative Decisions Tribunal Act 1997 (ADT Act), s 71(4A). The NSW Trustee and Guardian chose not to play any active role in the appeal. The Guardianship Tribunal's role was limited to providing information about the Guardianship Tribunal's practices and procedures. Ms Sprouster represented the Guardianship Tribunal. We were mindful of the fact that there was no one directly opposing AMO's appeal.

Should the appeal be accepted even though it is late?

1. AMO lodged his appeal about two weeks late. The general rule is that a person must appeal against a decision of the Guardianship Tribunal within 28 days of being provided with the written reasons for the decision: ADT Act, s 118B(2). The Appeal Panel has power to accept an appeal even if it is lodged out of time. AMO says that the reason he lodged the appeal late was that he was waiting for an appointment with a lawyer. Because the appeal is only two weeks late, and there is no prejudice to any party if the appeal is accepted, we accept the appeal: ADT Act, s 118B(2)(b).

Factual background

1. AMO receives a disability pension of approximately $755.50 a fortnight. The NSW Trustee gives him an allowance from that amount of $400 a fortnight. AMO lives in a house registered in his name with his ex-wife. There has been no property settlement following their divorce in 2009. The property is subject to a mortgage of approximately $100,000. AMO's ex-wife is paying $50 a fortnight towards the mortgage.

1. At the time of the Guardianship Tribunal hearing in August 2012, AMO was in debt. A representative from the NSW Trustee told the Guardianship Tribunal that AMO had a debt to Optus for $969.20. There was another outstanding debt to Telstra for $1449 including an amount of $800 that AMO said had been incurred by another person to whom he had given his mobile phone. The NSW Trustee's representative had negotiated or was in the process of negotiating with Optus and Telstra for those debts to be waived. The representative had also arranged a repayment plan for a debt of $443 for various driving offences.

1. When his mother died in 2011, AMO received an inheritance of about $20,000. He told the Guardianship Tribunal at the first review hearing that he had purchased a car but that it had been stolen. At the second review hearing the Guardianship Tribunal reported that AMO had told them that he had used the inheritance money to buy his daughter a boat, but he did not have a receipt for the purchase.

1. AMO told the Appeal Panel that he wants to move out of the house he currently lives in with his ex-wife but he cannot do so while the NSW Trustee has a caveat on the house. He wants to sell the house to his ex-wife for less than market value and then apply for Housing Department accommodation. If the financial management order is not revoked but varied, he wishes to receive a greater portion of his pension than the $400 a fortnight that he is currently being given.

The Guardianship Tribunal's decision

1. The Guardianship Tribunal has power to vary or revoke a financial management order if it is satisfied that the subject person can manage his or her financial affairs or, even if that is not the case, it would be in the person's best interests for the order to be varied or revoked: Guardianship Act 1987, s 25P(2). In this case, the Guardianship Tribunal decided to confirm the order because it was not satisfied of either of those matters.

1. The Guardianship Tribunal summarised its reasons as follows:

[AMO] provided no evidence to the Tribunal in relation to his ability to manage his finances.

[AMO] has a history of being financially exploited. His only savings in the NSW Trustee and Guardian account would be at extreme risk of dissipation if these funds were returned to him.

[AMO] does not have support from a treating health professional in relation to his ability to manage his finances including budgeting and properly protecting his assets.

1. The evidence on which the Guardianship Tribunal's decision was based came from:

(1)   AMO's application for revocation and his oral evidence by phone;

(2)   a report from the NSW Trustee and Guardian as to the state of AMO's finances and oral evidence from a representative of the NSW Trustee and Guardian by phone;

(3)   oral evidence by phone from AMO's former wife; and

(4)   reports including a Health Professional Report Form from AMO's general practitioner, Dr MacDonald.

1. AMO was represented at the Guardianship Tribunal by an advocate from the Disability Advocacy Services.

Grounds of Appeal

1. Neither AMO nor Dr Ainsworth is a lawyer. Rather than set out formal grounds of appeal on questions of law or on any other basis, they wrote their objections to the Guardianship Tribunal's decision in narrative form. AMO denied that he had been or was being financially exploited. In particular, he denied that a woman was manipulating him. He accused the NSW Trustee of not paying his phone bills and fines for driving offences when they became due. He said that he could do a better job and wants to pay his own bills. AMO conceded that a sports car that he had bought had not been comprehensively insured but that the insurance cost was prohibitive. The house is insured and he no longer has the car. He said he was planning for the future and wants to pay off the mortgage on his house. As an alternative to revocation of the financial management order he said that he wants his full pension paid to him and that the NSW Trustee could keep his savings for now.

1. AMO's guardian ad litem, Dr Ainsworth, provided written submissions to the Appeal Panel and made oral submissions at the hearing. In summary, he was concerned that many of the Guardianship Tribunal's findings of fact were inaccurate or out of date. In addition he regarded some of the inferences that the Guardianship Tribunal drew from those facts as unfair. The points he made were that:

(1)   AMO's debts to Telstra, the Office of State Revenue and the motor vehicle accident claims have been settled so that AMO's level of debt is no longer an issue.

(2)   AMO is using a pre-paid phone card so he will not be in debt for phone calls in the future.

(3)   AMO placed a sum of $20,000 that he inherited into an account in his daughter's name. From those funds, his daughter purchased a car for AMO and a boat for herself. These purchases are understandable given that AMO would rarely have a lump sum big enough to make such purchases.

(4)   The Guardianship Tribunal criticises AMO for not 'protecting' his motor vehicle because it was not insured but motor vehicles are stolen every day and AMO is not to blame.

(5)   The money that AMO was giving to his "girlfriend" may have been for sex services which he is entitled to use without censure. In any case, AMO is no longer in any kind of relationship with her.

(6)   AMO should not be criticised for deciding not to access the services of the Psychiatric Rehabilitation Association if he takes the view that those services are of no use to him.

(7)   Dr MacDonald, AMO's general practitioner, is not an expert on the question of whether AMO is capable of managing his financial affairs and the Tribunal should not have taken his view into account.

(8)   The Guardianship Tribunal does not provide a reason for refusing AMO's request that a greater amount than $400 be given to him from his disability pension each fortnight.

1. The assertions in points (2) and (3) involve some "fresh evidence" which was not before the Guardianship Tribunal. Points (3), (4), (5) and (6) contain matters of opinion.

Question of law

1. The only matter raised by either AMO or Dr Ainsworth that could constitute a question of law is that the Guardianship Tribunal did not provide any reasons for declining to vary the financial management order so that AMO is paid more than $400 per fortnight from his disability pension.

1. AMO's written application to the Guardianship Tribunal to revoke the financial management order does not include an alternative application to vary the NSW Trustee's decision to pay him $400 a fortnight from his disability pension. Consequently, the Guardianship Tribunal's decision does not mention such an application. In those circumstances we are not satisfied that such an alternative application was made and the Guardianship Tribunal did not make an error by failing to give adequate reasons for rejecting it.

1. If AMO wishes to receive more than $400 a week from his pension, he should apply to the NSW Trustee for an increase: NSW Trustee and Guardian Act 2009, s 71. The NSW Trustee will consider such an application and make a decision. Similarly, if AMO wishes to sell his house, he should apply to the NSW Trustee outlining his reasons for that request.

1. Neither AMO nor his guardian ad litem identified any other question of law. The appeal on a question of law is dismissed.

Leave to appeal on other grounds?

Relevant principles

1. Even if no question of law has been identified, we can give permission for the appeal to go ahead on other grounds: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 at [60]-[61], [63]). The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in cases interpreting equivalent provisions in the Guardianship Act 1987. In K v K [2000] NSWSC 1052, Young J observed at [10] that 'it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal' but observed at [15] that:

It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

Consideration

1. Dr Ainsworth's submission was that many of the factual findings made by the Guardianship Tribunal were not justified, were inaccurate or out of date. In our view it was open to the Guardianship Tribunal to make the factual findings it did and to draw the inference that AMO still lacks capacity to manage his financial affairs.

1. In relation to AMO's debts, Dr Ainsworth said that they have been settled and that AMO now uses a phone card. While that appears to be the case the circumstances in which those debts have been settled is relevant. A representative from the NSW Trustee had organised, or was in the process of organising, to have the phone debts waived and the traffic offence debts paid off. That situation does not support AMO's contention that he is now capable of managing his own financial affairs. The Guardianship Tribunal was entitled to draw the inference, based on AMO's past conduct, that he is likely to incur debts that he cannot pay if the financial management order was revoked.

1. Dr Ainsworth questioned the Guardianship Tribunal's negative inferences in relation to the way AMO spent a $20,000 inheritance. Given the fact that AMO has a $100,000 mortgage which he says he wants to repay, it was open for the Guardianship Tribunal to draw the inference that the way he spent the $20,000 does not demonstrate a sound capacity for the management of his financial affairs.

1. On our reading of the Guardianship Tribunal's decision, it was not blaming AMO for the fact that his car was stolen. The reference to AMO "not protecting his motor vehicle" was made by the Guardianship Tribunal hearing AMO's first application for revocation in January 2012. It was not a matter that the Guardianship Tribunal relied on in the second decision.

1. Dr Ainsworth speculated that AMO may have been giving a woman money in return for sex services. There was no evidence to that effect. Dr Ainsworth also questioned whether Dr MacDonald has the expertise to express an opinion about the extent to which AMO's disability affects his capacity to make informed decisions about his financial affairs. As AMO's general practitioner, we accept that he has that expertise.

1. The Guardianship Tribunal impliedly accepted Dr MacDonald's view when it found that AMO has a history of being financially exploited and that his funds would be at extreme risk of dissipation if they were returned to him. AMO strongly disagreed with the opinion expressed by Dr MacDonald as to the risk of financial exploitation. He wrote that:

I've got no control over what the Doctor thinks. Maybe I didn't explain properly. He thinks I'm being manipulated. I don't. They did all this because they don't like me. In other words they do as they like. It's all been a gross misunderstanding. I didn't make myself clear enough.

1. The evidence in relation to the risk of financial exploitation can be summarised as follows:

(1)   Dr MacDonald's opinion expressed in July 2012 that ". . . his girlfriend has a way of extracting medication, drugs and money from [AMO] each 'pay day' . . . to my mind the "girlfriend" poses a problem although [AMO] says he will only give her $20.00. She is a drug addict with no scruples and has a boyfriend who has previously bashed [AMO].

(2)   In the 13 January 2012 reasons for refusing AMO's application for revocation of the financial management order, the Guardianship Tribunal reported that AMO had said that it is "hard to hang on to money" because "a female friend asks for money and she will sometimes attend the ATM when he is withdrawing money." In that decision, the Guardianship Tribunal concluded that:

[AMO] is currently being financially exploited and has been financially exploited in the past. He has been taken financial advantage of by his own admission and his inheritance moneys have been dissipated. His savings in the NSW Trustee and Guardian's trust account would be at severe risk of dissipation if these funds were returned to him.

(3)   In his second application for review to the Guardianship Tribunal, AMO wrote that, "There was only one person taking my money and I've put a stop to that now." At the hearing, AMO told the Guardianship Tribunal that the woman who he was giving his money to has gone.

1. Dr MacDonald did not give oral evidence to the Guardianship Tribunal and was therefore not available for cross-examination.

1. The only area of disagreement between the Guardianship Tribunal's findings and AMO's opinion is the extent to which he is at risk of financial exploitation in the future. It was not unorthodox or unfair for the Guardianship Tribunal to find that, on the basis of recent past behaviour, AMO is at risk of exploitation in the future. It was open for the Guardianship Tribunal to come to that view.

1. It is a matter for AMO as to whether he accesses the services of the Psychiatric Rehabilitation Association in relation to managing his finances and budgeting. But the point the Guardianship Tribunal was making was that AMO was unable either verbally or in writing to indicate how he would budget if he was managing his own money. If he had obtained some assistance and provided the Guardianship Tribunal with an outline of his budget, that would have supported his application for revocation of the financial management order.

1. It follows from this discussion that we are not persuaded that the Guardianship Tribunal went about the fact finding process in such an unorthodox manner or in a way that was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

Orders

1. AMO's appeal on a question of law is dismissed.

2. Leave is refused for AMO's appeal on other grounds to proceed.

Decision last updated: 01 May 2013