BPD

[2016] NSWCATGD 21

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BPD [2016] NSWCATGD 21
Hearing dates:	22 March 2016
Date of orders:	22 March 2016
Decision date:	22 March 2016
Jurisdiction:	Guardianship Division
Before:	J Currie, Senior Member (Legal) M Wroth, Senior Member (Professional) M Spencer, General Member (Community)
Decision:	Financial management order revoked; (1) Tribunal directed NSW Trustee and Guardian to pay over or hand over assets held by it to State Trustees Limited of Victoria; (2) Tribunal directed financial manager to pay over or hand over such of the estate held by him to State Trustees Limited of Victoria.
Catchwords:	FINANCIAL MANAGEMENT – application to revoke financial management order – subject person subject to administration and guardianship orders of the Victorian Civil and Administrative Tribunal (VCAT) – subject person resides interstate – assets in NSW – interstate recognition of orders
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) , s 36 Guardianship Act 1987 (NSW), Division 2 of Part 3A ; ss 25P(1), 25P(2)
Category:	Principal judgment
Parties:	Mr BPD (the person subject to the financial management order) Ms CPD (the substituted applicant) Mr UGD (the appointed financial manager of Mr BPD) The NSW Trustee and Guardian
Representation:	Nil
File Number(s):	56359
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

APPLICATION TO REVOKE FINANCIAL MANAGEMENT ORDER

What the Tribunal decided

Revocation order

1. The Tribunal decided to revoke the financial management order made for Mr BPD.

Directions

2. The Tribunal decided to direct:

1. NSW Trustee and Guardian to pay over or hand over such of the estate as is held by it to State Trustees Limited of 454 Collins Street, Melbourne, Victoria 3000.

2. Mr UGD to pay over or hand over such of the estate as is held by him to State Trustees Limited of 454 Collins Street, Melbourne, Victoria 3000.

Background

3. Mr BPD is a 78-year-old man of Bosnian culture and heritage who is a permanent resident of a nursing home in regional Victoria. Prior to admission to that nursing home, Mr BPD was a resident of aged care facilities in both Victoria and New South Wales. Prior to that he lived in his own home in a regional Victorian centre. Mr BPD has been diagnosed with dementia.

4. Mr BPD has three siblings, Mr UGD and Mrs SVD, both of whom live in New South Wales, and Mr BFD, who lives in Victoria. Mrs SVD has a daughter, Ms NHB, who lives in suburban Sydney.

5. Mr BPD is subject to administration and guardianship orders made by the Victorian Civil and Administrative Tribunal (“VCAT”). On 8 August 2013 VCAT appointed State Trustees Limited as the administrator of Mr BPD’s estate. On 4 April 2014, VCAT appointed the Public Advocate of Victoria as Mr BPD’s guardian. On 19 May 2014, this Tribunal recognised the Victorian guardianship order in New South Wales, but that recognition was revoked on 22 August 2015. On 1 May 2015, VCAT appointed Mr BFD as the guardian of Mr BPD and on 16 October 2015, VCAT appointed State Trustee Limited as the administrator of Mr BPD’s estate.

6. On 22 August 2014, this Tribunal made a financial management order for Mr BPD under which it appointed Mrs SVD and Ms NHB jointly as his financial managers, subject to the authority and direction of NSW Trustee and Guardian. On 7 January 2015, the Tribunal dismissed an application to revoke that financial management order.

7. On 7 January 2015, this Tribunal made a guardianship order for Mr BPD, under which it appointed the Public Guardian as his guardian for 12 months. On 7 January 2016, that order was lapsed by order of the Tribunal

8. On 30 April 2015, this Tribunal revoked the appointment of Mrs SVD and Ms NHB as financial managers and appointed Mr UGD as financial manager in substitution for them, subject to the authority and direction of NSW Trustee and Guardian.

9. On 21 March 2016, the Tribunal received from Ms NHB an application seeking the revocation of the New South Wales financial management order for Mr BPD; that is, the order made on 22 August 2014, as varied by the order made on 30 April 2015 which appointed Mr UGD as financial manager.

10. It is accepted by all parties that Mr BPD is now permanently resident in the State of Victoria. It appears to be accepted by all parties that there are assets of his estate located in New South Wales.

11. The purpose of the Tribunal’s proceedings at Balmain on 22 March 2016 was to conduct a hearing of the application by Ms NHB for revocation of the financial management order made for Mr BPD.

Parties and witnesses

12. The Appendix to these Reasons for Decision identifies the parties to the application and the witnesses who participated in the hearing. [Appendix removed for publication.]

The issues which the Tribunal had to decide

13. This was an application for revocation of a financial management order under Division 2 of Part 3A of the Guardianship Act 1987 (NSW). When the Tribunal deals with such an application, it is required to review the financial management order itself. Under s 25P(1) of the Guardianship Act the Tribunal, having reviewed the order, must vary, revoke or confirm it. However, under s 25P(2), the Tribunal may revoke the order only if :

1. it is satisfied that the protected person is capable of managing his or her affairs, or

2. it considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her own affairs).

14. Having reviewed the previous Reasons for Decision and the written material currently filed, we decided to consider firstly the “best interests” ground set out in (b) above. If the order were not revoked under that ground we would go on to consider the “regained capability” ground set out in (a) above. If the order were not revoked under either of these grounds, we would consider whether the order should be confirmed or varied. We were satisfied that such a course of action is consistent with our obligation under s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

15. It followed that the issues for determination of the Tribunal were:

1. Would it be in the best interests of Mr BPD for the financial management order to be revoked?

2. If the answer to issue (1) was in the negative, is Mr BPD now capable of managing his own affairs? (In which case the financial management order is to be revoked).

3. If the financial management order is not to be revoked; that is, if the answer to issue is (1) and (2) are both in the negative, should the Tribunal vary the order or confirm it?

Approval of substituted applicant

16. Prior to the hearing, the applicant, Ms NHB, had indicated to the Tribunal Case Officer that she did not wish to participate in the hearing. The Presiding Member attempted to telephone Ms NHB on three occasions at the commencement of the hearing, but was unable to reach her. The Presiding Member left Ms NHB a message with details of how to telephone into the hearing if she wished, but no calls from her were received.

17. Mrs CPD, the sister-in-law of Mr BPD and that wife of Mr UGD indicated that she was prepared to be substituted as the applicant in these circumstances. As the hearing could not proceed in the absence of an applicant and as we were satisfied that Mrs CPD was someone with a genuine concern for her brother-in-law Mr BPD, we decided to accept her as the substituted applicant.

Absence of Mr BPD from the hearing

18. Prior to the hearing, staff at the care facility at which Mr BPD now lives told the Tribunal Case Officer that because of his disability Mr BPD would be unable to participate in the hearing. We considered those views and the Tribunal’s previous Reasons for Decision and findings as to Mr BPD’s capability. There was no objection from the participants, including family members of Mr BPD, to the hearing proceeding in his absence. On that basis we were satisfied that Mr BPD is incapable of understanding the nature of these proceedings and that it appeared possible that requiring him to participate might cause him anxiety or distress. It appeared to be beneficial to Mr BPD’s interests for the hearing to proceed. On that basis we decided to proceed with the hearing in the absence of Mr BPD.

THE TRIBUNAL'S ASSESSMENT OF THE EVIDENCE AND DETERMINATION OF THE ISSUES

Would it be in the best interests of Mr BPD for the existing financial management order to be revoked?

19. Following the Tribunal’s discussion with the participants and based on the position stated by a representative of the NSW Trustee and Guardian and Ms Z of State Trustees Limited of Victoria, it appeared that the current position of Mr BPD’s estate is as follows:

1. It is agreed by all parties that Mr BPD is now a permanent resident in the State of Victoria.

2. However, Mr BPD does have some assets in the State of New South Wales. They are, of course subject to management under the current financial management order made by this Tribunal.

3. Mrs CPD, the substituted applicant and wife of the current financial manager Mr UGD, indicated that she was familiar with the details of Mr BPD’s estate. That assertion was not challenged. Mrs CPD told the Tribunal that the New South Wales assets and liabilities of the estate comprise:

1. an asset being an amount of approximately $11,700 which is currently held in an account in the name of Mrs SVD;

2. an asset being an amount of $7843.10 apparently last held by Mrs SVD and her daughter, Ms NHB. Mrs CPD asserted that those ladies had obtained these amounts by use of a bank transaction card which was intended to be operated for the benefit of Mr BPD. Ms Z confirmed that these matters were being investigated by State Trustees Limited and that if the current NSW order were revoked State Trustees would continue its investigations and take recovery action if necessary and appropriate; and

3. a debt to the nursing home in Western Sydney in the sum of approximately $11,000. Ms Z confirmed that State Trustees Limited would liaise with the nursing home in relation to the payment of this amount.

20. There was consensus amongst the participants, including Ms Z from State Trustees Limited that all these matters could be most effectively managed by having State Trustees Limited act as the sole financial manager, notwithstanding that some assets and liabilities appeared to exist in New South Wales. The representative from the NSW Trustee and Guardian indicated that the Trustee would have no objection to this course of action provided that the Tribunal in addition made appropriate directions to pay over moneys and hand over assets.

21. There was also consensus amongst the parties that there was no practical need in these circumstances for the New South Wales financial management order to continue and that it was in Mr BPD’s best interests for the order to be revoked.

22. There were no contrary views and there was nothing before the Tribunal to indicate that there would be any likely prejudice to Mr BPD’s interests as a result of the revocation of the current New South Wales order in these circumstances. There was a clear consensus that his interests would indeed be served by revocation and on the basis of the available evidence this appeared to be the case.

23. On that basis we were satisfied that revocation of the current financial management order in New South Wales was in the best interests of Mr BPD. It followed that the order should be revoked and we ordered accordingly.

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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

Decision last updated: 22 September 2016