Carl (a pseudonym)

[2024] NSWCATGD 25

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Carl (a pseudonym) [2024] NSWCATGD 25

Hearing dates:

6 November 2024

Date of orders:

6 November 2024

Decision date:

06 November 2024

Jurisdiction:

Guardianship Division

Before:

L Davidson, Senior Member (Legal)
Dr M A Martin, Senior Member (Professional)
Dr M A Smith OAM, General Member (Community)

Decision:

Guardianship Application

Christina is joined as Party.

HammondCare Health and Hospitals Limited had standing to bring the application to the Tribunal.

1. A guardianship order is made for Carl.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 6 November 2024.

4. This is a limited guardianship order giving the guardian custody of Carl to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where Carl may reside.

b) Health care

To decide what health care Carl may receive.

c) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where Carl is not capable of giving a valid consent.

d) Services

To make decisions about services to be provided to Carl.

CONDITION:

6. The condition of this order is:

a) Standard Condition

In exercising this role, the guardian shall take all reasonable steps to bring Carl to an understanding of the issues and to obtain and consider his views before making significant decisions.

Financial Management Application

Christina is joined as Party.

HammondCare Health and Hospitals Limited had standing to bring the application to the Tribunal.

1. The estate of Carl is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. Christina, of [Address removed for publication], is appointed as the financial manager of the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.

Catchwords:

GUARDIANSHIP – guardianship application – financial management application – where the applicant for a guardianship order is a public company and a registered charity – where the applicant seeking a financial management order is a public company and registered charity – whether the applicant has standing to bring a guardianship application under s 9(1) of the Guardianship Act – whether the applicant is a “person” within the meaning of the Guardianship Act – whether the applicant has a genuine concern for the welfare of the person – the applicant deemed to have standing– public guardian appointed – private financial manager appointed.

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s 44(1); cl 7(1), Sch 6

Corporations Act 2021 (Cth), s 119

Health Services Act 1997 (NSW), Ch 5

Interpretation Act 1987 (NSW), s 21; Sch 4

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(e), 9(1)(d), 14, 14(2), 15(3), 17(1), 25I(1)(b), 25M

Cases Cited:

Application by AMAM; Re SAM [2011] NSWSC 503

EBI [2017] NSWCATGD 6

Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227

IF v IG [2004] NSWADTAP 3

M v M [2013] NSWSC 1495

P v D1 [2011] NSWSC 257

P v NSW Trustee and Guardian [2015] NSWSC 579

QVC [2017] NSWCATGD 20

W v G [2003] NSWSC 1170

ZKF v ZKG [2019] NSWCATAP 64

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

003: Guardianship Application

Carl (the person)
Hammondcare Health and Hospitals Limited (applicant)
Edward (enduring guardian)
Christina (joined party)
Public Guardian

004: Financial Management Application

Carl (the person)
Hammondcare Health and Hospitals Limited (applicant)
Melanie (attorney)
Christina (joined party)
NSW Trustee and Guardian

Representation:

None.

File Number(s):

NCAT 2024/00386805

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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

1. On 30 October 2024, the Tribunal received applications seeking the appointment of a guardian and financial manager for Carl. The applicant was HammondCare Health and Hospitals Limited. Updated versions of the applications were sent to the Tribunal on 5 November 2024.

Background

2. At the time of the hearing, Carl was 68 years old, and he was an inpatient at Greenwich Hospital, in the Older Persons Mental Health Unit. Before his admission to hospital, Carl lived alone in his home in a suburb on the Lower North Shore of Sydney.

3. Carl is reported to have a cognitive impairment secondary to major neurocognitive disorder, and depression, as well as several physical health conditions.

4. On 21 February 2023, Carl appointed his friend, Edward, as his enduring guardian. Edward signed his acceptance of that appointment the same day.

5. Also on 21 February 2023, Carl signed an enduring power of attorney appointing his neighbour and family friend, Melanie. Melanie signed her acceptance of that appointment the same day.

Standing of HammondCare Health and Hospitals Limited

6. Section 9(1)(d) of the Guardianship Act 1987 (NSW) (the Act) provides that an application for a guardianship order for a person may be made to the Tribunal by any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.

7. Section 25I(1)(b) of the Act similarly provides that an application for a financial management order may be made to the Tribunal by any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person who is subject of the application.

8. On 30 October 2024, the Tribunal ordered HammondCare Health and Hospitals to make written submissions on its standing to bring the applications, focusing on the questions of whether it is “a person” within the meaning of the Act, and its genuine concern for the welfare of Carl. Those submissions were prepared by Ms Wendy Andrews, Head of Legal at HammondCare, and received by the Tribunal on 5 November 2024.

Is HammondCare a person within the meaning of the Guardianship Act?

9. Ms Andrews submits that HammondCare Health and Hospitals Limited is a legal person, as defined in s 21 of the Interpretation Act 1987 (NSW). This provision (which is now contained in Sch 4 of the Interpretations Act) states that a person includes “an individual, a corporation and a body corporate or politic”. Ms Andrews cites the case of QVC [2017] NSWCATGD 20, in which the Tribunal agreed that there is nothing in the Act indicating that the word “person” in ss 9(1)(d) and 25I(1)(b) of that Act should take a meaning other than that provided in the Interpretation Act.

10. Ms Andrews submits that HammondCare Health and Hospitals Limited is a company limited by guarantee, established under s 119 of the Corporations Act 2021 (Cth). It is also a registered charity with the Australian Charities and Not for Profits Commission. Ms Andrews therefore submits that it is a person for the purposes of ss 9(1)(d) and 25I(1)(b) of the Act.

11. Attached to the submissions from Ms Andrews is a copy of the Constitution of HammondCare Health and Hospitals Limited, dated 11 December 2015. Also attached is a copy of an Australian Securities and Investments Commission (ASIC) organisation extract showing that HammondCare Health and Hospitals Limited is a registered Australian public limited company and registered charity. In addition, the submissions attach a copy of a certificate from the Australian Charities and Not-for-profits Commission, dated 3 December 2012, confirming HammondCare’s registration as a charity.

12. At the hearing, there was no suggestion made that HammondCare Health and Hospitals Limited is not a person within the meaning of the Act.

13. Based on the documents provided by Ms Andrews with her submissions, we were satisfied that HammondCare Health and Hospitals Limited is a legal person, and is therefore a person within the meaning of ss 9(1)(d) and 25I(1)(b) of the Act.

Does HammondCare have a genuine concern for Carl’s welfare?

14. In her submissions, Ms Andrews refers to the finding of the Tribunal in EBI [2017] NSWCATGD 6 that St Vincent’s Hospital Sydney Limited had standing to make applications under the Act in respect of a patient in its care. She observes that the Tribunal agreed that the term “genuine concern” should be given its natural and ordinary meaning, and found that the purpose and role of St Vincent’s as an affiliated health organisation demonstrates that it would have a genuine concern for the welfare of any person who they are providing services to.

15. Ms Andrews states that HammondCare Health and Hospitals Limited is also an affiliated health organisation under Ch 5 of the Health Services Act 1997 (NSW) in respect of its recognised establishments, including Greenwich Hospital. As a recognised establishment, Greenwich Hospital is part of the public health system in NSW. Ms Andrews states that Carl is an inpatient of Greenwich Hospital and is receiving services from the hospital.

16. Ms Andrews refers to and attaches a copy of the Constitution of HammondCare Health and Hospitals Limited, which sets out its objects as including: 2.1(a) to provide healthcare services including hospital, palliative, rehabilitation, dementia and psychogeriatric care. She states that these objects and its purpose as an affiliated health organisation, together demonstrate that HammondCare Health and Hospitals Limited is a person with a genuine concern for Carl’s welfare.

17. A social worker at Greenwich Hospital provided a written statement indicating that Carl was transferred to the hospital on 1 July 2024 from the Royal North Shore Hospital. He was admitted initially on an involuntary basis and later on a voluntary basis for assessment and treatment of depression with suicidal ideation. Carl remained an inpatient at Greenwich Hospital, receiving health services from HammondCare Health and Hospitals Limited, at the time of the hearing.

18. At the hearing, there was no suggestion made that HammondCare Health and Hospitals Limited does not have a genuine concern for Carl’s welfare.

19. Based on the submissions provided by Ms Andrews and the evidence that Carl is receiving health services from HammondCare Health and Hospitals Limited since July 2024, we were satisfied that it has a genuine concern for his welfare and has standing to make guardianship and financial management applications in relation to Carl.

Request for Joinder of a Party

20. Prior to the hearing, Christina, who is Carl’s third cousin, requested to be joined as a party to both applications. Christina explains that she has known Carl since childhood and her mother was very close to him and his parents. She says that she is concerned for Carl’s health and well-being, and wishes to help him in whatever way she can, including as his guardian and financial manager.

21. The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined: Civil and Administrative Tribunal Act 2013 (NSW), s 44(1). For proceedings in the Guardianship Division of the Tribunal, the Tribunal must be satisfied that the person should be joined (whether because of the person’s concern for the welfare of the person the subject of proceedings or for any other reason): Civil and Administrative Tribunal Act, cl 7(1), Sch 6.

22. Christina told us that she had been informed about the hearing by the hospital social worker, who had also provided her with the written material supporting the guardianship and financial management applications and advised her to request to be joined as a party. Christina reiterated that she wishes to support and assist Carl and to be considered for appointment as his guardian and financial manager.

23. In light of the submissions made by Christina, we were satisfied that she is concerned for Carl’s welfare, and we decided to join her as a party to the proceedings.

GUARDIANSHIP APPLICATION

What did the Tribunal have to decide?

24. The questions which had to be decided by the Tribunal were:

• Is Carl someone for whom the Tribunal could make an order because he has a disability which prevents him 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 Carl someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

25. Section 14 of 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:

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 Act.

26. As noted above, we received a copy of a social work report concerning Carl from the hospital social worker, dated 1 November 2024. The hospital social worker describes the circumstances of Carl’s admission to the mental health unit at Greenwich Hospital in July 2024. The hospital social worker states that the clinical team at the unit have conducted comprehensive cognitive and functional assessments of Carl and have diagnosed him with “a major multi-factorial Neurocognitive Disorder”. She says that, despite psychiatric treatment, Carl’s cognitive impairment and capacity have shown no improvement, and he continues to demonstrate significant apathy. The hospital social worker also states that Carl requires prompting and support for all self-care tasks.

27. The hospital social worker states that, prior to his admission to hospital, Carl was living in a house in Sydney’s Lower North Shore which previously belonged to his mother, who he cared for until she passed away. The hospital social worker says that Carl’s home was reported to cluttered, unclean and poorly maintained, with signs of hoarding. She says Carl has limited social supports other than his neighbour Melanie and her husband, and his friend and former employer Edward.

28. We also received a copy of a report concerning Carl from a psychiatry registrar. The psychiatry registrar also participated in the hearing. In his report, the psychiatry registrar sets out Carl’s social background and the circumstances of his admission to hospital. He notes that Carl had a motor vehicle accident due to driving while intoxicated in late 2023, and refers to his history of heavy alcohol consumption. He also refers to Carl’s social isolation and his previous expressions of suicidal ideation.

29. The psychiatry registrar states that Carl has “multifactorial cognitive impairment grading into dementia” as well as depression. He describes Carl as “a highly vulnerable individual with his behaviours and cognition placing him at significant and chronic risk of harm”. The psychiatry registrar also expresses the view that Carl’s cognitive abilities are unlikely to improve, but states that his decline may slow if Carl abstains from alcohol, takes his medications, and engages in social activities and exercise.

30. In addition, we received a copy of a neuropsychological assessment report concerning Carl, dated 25 September 2024, prepared by a clinical psychologist. The clinical psychologist observes that Carl had significant problems completing the tests administered as part of the assessment. He states that Carl showed significant cognitive impairments across most of the domains tested. He demonstrated very limited capacity to hold information and manipulate it. The clinical psychologist attributes Carl’s cognitive impairment to cerebral atrophy, subcortical infarcts and white matter changes due to factors such as prior alcohol abuse.

31. We also received a copy of an occupational therapy report concerning Carl dated 24 September 2024. In addition to assessing Carl in hospital, the occupational therapist conducted a home visit and assessment in August 2024 and also spoke to Melanie and Edward about him. The occupational therapist states that Carl was not coping well at home before his hospital admission, and was neglecting his self-care activities.

32. At the hearing Edward told us that he does not believe that Carl is in a position to make important decisions for himself any longer. Melanie agreed with this, saying she has known Carl his whole life and noticed a significant decline in his functioning since his car accident in 2023. Melanie said that, since then, she and other neighbours tried to help Carl as much as they could, but he was spending all his time in bed and appeared to be very depressed.

33. Based on the reports provided about his cognitive impairment, and the evidence from the hospital social worker, Edward and Melanie, we were satisfied that Carl has a disability within the meaning set out in s 3(1) of the Act, which restricts his ability to make important life decisions and that he needs some assistance to do so. He is therefore a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order and what order should be made?

34. The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order:

1. the views (if any) of:

1. the person, and

2. the person’s spouse, and

3. the person’s carer and

2. the importance of preserving the person’s existing family relationships, and

3. the importance of preserving the person’s particular cultural and linguistic environments, and

4. the practicability of services being provided to the person without the need for the making of such an order.

35. 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).

36. Carl told us that he believes he needs help with decision-making, asking that his cousin, Christina, be appointed as his guardian.

37. The hospital social worker told us that Carl has not yet been discharged from hospital, but he has been released to his home on a trial basis. She said that Edward has done significant work to clean up and repair Carl’s house, so it is fit for habitation, and there are also now home care services in place for him. The hospital social worker expressed concern that Carl might cancel his services at any time, but she said that it seems to be going quite well so far. The hospital social worker also said that Carl has had an Aged Care Assessment Team (ACAT) assessment and is on a waiting list for a Level 4 package. The hospital social worker said she does not believe Carl yet needs 24/7 care in a residential aged care facility, but that this is something that might be needed in future.

38. The hospital social worker also said that, as Carl has sufficient resources to do so, they are in the process of hiring a nurse to visit him at home once a week, to check up on his health, assist him with medication, and determine if he needs to see a doctor. She explained that when Carl is discharged from hospital, he will also be monitored by the community social worker from the Royal North Shore Hospital.

39. The hospital social worker said Carl needs a guardian to make decisions about his services, given his fluctuating willingness to receive services at home. She also said Carl requires someone who can make decisions about his health care and medical treatment, in light of his significant health problems and previous lack of engagement with health services. The psychiatry registrar agreed with this, noting that Carl has multiple co-morbidities, and he is at serious risk of medical complications if he does not receive appropriate health care and treatment.

35. Edward said that there are ongoing decisions to be made about Carl’s health and services, and if he is not able to remain living at home, there will also be decisions to be made about his accommodation. Edward said he has made some decisions for Carl since he has been in hospital, as his enduring guardian, but he is no longer in a position to fulfil that role and believes a guardian needs to be appointed in his place.

36. Melanie also said she believes Carl needs a guardian, noting that Edward has done a great job so far. She agreed that there are ongoing decisions to be made about Carl’s care and services.

37. Christina said she lives further away from Carl, but has remained in contact with him over the years. She agreed that it is important for Carl to have a decision-maker who can make decisions about his services and health care.

38. A community social worker, who has been involved in Carl’s care for some time, expressed the view that it is important for him to have a guardian who can also make accommodation decisions. While noting that there are no immediate accommodation decisions to be made, the community social worker cautioned that Carl has only been trialled living at home with services for a few days, and while things are going well so far, there has not yet been time for a proper assessment to be done. The community social worker noted that Carl has previously been resistant to care in the community, and his health is deteriorating. She said she believes it would be best for him to have a guardian with the authority to make decisions about where he lives, should the current arrangements prove inadequate.

39. Edward then said he agreed with the community social worker about the importance of there being a guardian who can make decisions concerning Carl’s accommodation. He expressed concern about Carl’s deteriorating health, saying that his home may not be suitable for him in the foreseeable future.

40. There was no indication that a guardianship order would negatively affect Carl’s existing family relationships or his particular cultural and linguistic environments.

41. The principles set out in s 4 of the Act are to the effect that Carl’s freedom of decision and freedom of action should be limited as little as possible. Appointing a substitute decision-maker does restrict those freedoms. However, s 4 also requires us to prioritise Carl’s welfare and interests.

42. On the basis of the evidence from the hospital social worker, the psychiatry registrar, and Edward, as well as the health reports provided, we were satisfied that decisions from a substitute decision-maker about Carl’s services are required to ensure his health and welfare. We were also satisfied that a guardian should be appointed to make decisions concerning his health care needs and to provide consent to any recommended medical and dental treatment. We further considered that having a guardian with power to make decisions about his accommodation, should he not be able to manage at home following discharge from hospital, is in Carl’s best interests.

Who should be the guardian?

48. Christina proposed that she be appointed as Carl’s guardian, saying she wishes to support him and ensure his care needs are met. To appoint Christina, we must be satisfied that she meets the requirements of s 17(1) of the Act. She must:

1. (a)   have a personality generally compatible with the personality of Carl,

2. (b)   have no undue conflict of interest (particularly financial) with Carl, and

3. (c)   be able and willing to exercise the functions of the order.

49. In deciding whether a person is able to undertake the role of guardian, we must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act: ZKF v ZKG [2019] NSWCATAP 64 at [31]. In P v D1 [2011] NSWSC 257 at [105]-[107] the Supreme Court noted the importance of the proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

50. The Public Guardian cannot be appointed as a person’s guardian if there is an individual who can be appointed: s 15(3) of the Act. Commenting on that provision, in W v G [2003] NSWSC 1170 at [25] the Supreme Court said:

“[T]he proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect.”

51. Christina told us she is willing and able to be Carl’s guardian, saying that despite not living close to him, they remain in contact, and she would make decisions for him in his best interests. Christina said she does not believe she has any conflicts of interest with Carl.

52. Carl said he would like Christina to be his decision-maker as he is sure she would always do the right thing for him.

53. The community social worker, however, expressed concern that Carl’s relationship with Christina would be negatively affected if she is appointed as his guardian. The community social worker said that based on her observation of Carl over a number of years, she knows he can become frustrated when people make decisions which he is not happy about. The community social worker said she believes it would be better if Carl has an independent person as his guardian, to preserve his family relationships.

54. Edward then said he agreed with the views expressed by the community social worker, noting that he has seen Carl’s frustrations at times. Edward said he thinks an independent guardian, with time and expertise, would be better for Carl. Melanie also agreed, noting that Carl has previously not wanted to have care at home, and she is worried that his relationship with Christina may suffer if she makes decisions for him about his services and accommodation which he is not happy with.

55. Christina then told us that she hoped her relationship with Carl would not be put in jeopardy if she was his guardian.

56. In making decisions about the appointment of a guardian, the Tribunal is required to consider the importance of preserving family relationships: the Act, s 4(e). While Carl indicated at the hearing that he was happy for Christina to be appointed as his guardian, the evidence from the community social worker and others was that this view could easily change.

57. Although Christina may meet the requirements to be appointed as Carl’s guardian, we were concerned by the consistent evidence from three of the people who know him well to the effect that there is a risk his important relationship with Christina would suffer if she was appointed. We therefore decided to appoint the Public Guardian as Carl’s guardian.

How long should the order last?

58. An initial guardianship order can be made for a period of up to one year from the date on which it was made. We made the order for 12 months as we were of the view that it will take some time to make and implement decisions regarding Carl’s health care and services and to determine whether there is an ongoing need for the appointment of a guardian.

FINANCIAL MANAGEMENT APPLICATION

What did the Tribunal have to decide?

59. The questions to be considered by the Tribunal were:

• Is Carl incapable of managing his affairs?

• Is there a need for another person to manage Carl’s affairs and is it in his best interests for a financial management order to be made?

• If so, who should be appointed financial manager?

Is Carl incapable of managing his affairs?

60. The test for determining a person's capability to manage his or her affairs has been described as being whether a person is “reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests”. This involves the person being able to deal with their own financial affairs in a reasonable, rational and orderly way with regard to their current and future wants and needs, “without undue risk of neglect, abuse or exploitation” (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]).

61. In considering whether the person is “able” in this sense, it is relevant to consider their history, the supports they have in place and their vulnerability to exploitation or abuse.

62. Carl told us that he previously worked as a sound engineer, but is now retired. He said he has no money coming in at the moment, as he has used it all up. Carl said he does not need anyone to manage his money.

63. In her social work report, the hospital social worker states that Carl is a self-funded retiree, with substantial financial means. She states that he inherited two properties in Sydney’s Lower North Shore, one of which was recently sold for over $4.5 million. The hospital social worker also states that Carl has a share portfolio. The hospital social worker says that Carl does not understand his financial status and believes he cannot afford small things. The hospital social worker notes that Melanie has been assisting Carl for the past year with the management of his financial affairs, under her power of attorney.

64. Melanie told us that, even before she was formally appointed as Carl’s attorney, she was helping him informally to pay his bills and manage his finances. She said this started after his accident in 2023. Melanie said she does not believe Carl would be able to manage his finances himself at this stage.

65. In his report, the psychiatry registrar says that Carl’s cognitive impairment affects his capacity to make informed decisions about his finances. This view is also expressed by the clinical psychologist in his report, who says that Carl’s cognitive impairment, lack of insight, apathy and recent history suggest that he is at risk of financial abuse. Similarly, the occupational therapist states that Carl had difficulty managing a basic shopping task when she assessed his functional capacity, and he would likely have difficulty managing more demanding money management tasks, due to his cognitive impairment.

66. On the basis of this evidence, we were satisfied that Carl cannot deal with his own financial affairs in a reasonable, rational and orderly way with regard to his wants and needs, and that he is vulnerable to financial exploitation. We therefore found that he is incapable of managing his own affairs.

Is there a need for a financial management order and is it in Carl’s best interests that a financial management order be made?

67. Melanie provided a written statement to us, dated 10 October 2024, saying that she has been exercising her functions as Carl’s attorney since his hospitalisation. She explains that she has been involved in finalising the sale of one of his two properties in Sydney’s Lower North Shore, with his solicitor. Melanie indicates that she would like to relinquish her role as Carl’s attorney, in light of her age and other responsibilities.

68. At the hearing, Melanie told us that she has been managing all of Carl’s finances since he has been in hospital, with assistance from one of Carl’s friends, who came down from Queensland. She explained that she has identified that Carl has several bank accounts, all in Sydney’s Lower North Shore. Melanie said she has also been paying all of Carl’s household bills, such as council rates and utilities, from his bank accounts.

69. Melanie explained that the proceeds of the sale of Carl’s one house in Sydney’s Lower North Shore have been put into a savings account for him. She said some of his liabilities and expenses have been paid out of that account. Melanie also said she believes Carl is still receiving $500 a fortnight from his superannuation, into one of his bank accounts. She said she thinks it is important for Carl to have a financial manager who can take over responsibility from her for the management of his affairs.

70. Melanie’s husband told us that he has also known Carl since he was a child. Her husband said Carl’s money must be carefully managed, so that he has the supports he needs for the rest of his life. He also said he believes Carl has not filed a tax return for many years, and may have significant tax liabilities, so it is important for someone with the requisite expertise to assist him in relation to that.

71. In her social work report, the hospital social worker says that Carl needs a financial manager due to Melanie’s resignation as his attorney, noting that he has substantial assets and is vulnerable to financial exploitation. The hospital social worker also says that Carl has the means to pay for services to assist him at home, but he needs someone who can make the necessary arrangements.

72. Based on this evidence, particularly concerning the need for Carl’s moneys to be protected and to be used for his ongoing care needs, we were satisfied that he requires a financial manager and that it is in his best interests for a financial manager to be appointed.

Who should be appointed as financial manager?

73. In 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.

74. 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.

75. In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court’s broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.

76. On the side of the then Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage.

77. The advantages of the appointment of a family member were more economic management of smaller estates (that is, freedom from fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers.

78. The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be “more apparent than real,” should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision-maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family.

79. In Application by AMAM; Re SAM [2011] NSWSC 503 Hallen AsJ stated:

“[34]    It would be unwise to attempt any definition of the matters that may legitimately be enquired into to determine whether the applicant is suitable. Each case must depend on its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager’s character, honesty and ability to manage, diligently, the managed person’s property in the managed person’s best interests.”

80. The matters or “guidelines” that should be considered when determining who to appoint as financial manager, as established in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, are discussed and expanded upon by Lindsay J in M v M [2013] NSWSC 1495 at [50].

81. Christina told us that she is prepared to take on the role of financial manager for Carl, again saying that her concern is to ensure his well-being now and into the future. Christina said she understands that she would be supervised by the NSW Trustee and Guardian and would be able to fulfil their requirements. Christina said she believes financial management is an area of strength for her, noting her professional experience in reporting to financial regulators and running businesses. Christina said she does not believe she has any financial conflict of interest with Carl, although she is one of the beneficiaries of his will.

82. When we asked Carl, he told us that he would trust Christina to manage his finances for him.

83. The hospital social worker said she did not have any concerns about the appointment of Christina as Carl’s financial manager, under the supervision of the NSW Trustee and Guardian. Melanie expressed some ambivalence, saying she does not know Christina and simply wants to make sure that Carl’s affairs are looked after properly, and he has everything he needs now and in the future.

84. Melanie’s husband said he believes that the NSW Trustee and Guardian should be appointed as Carl’s financial manager, given its level of expertise. He noted that there is some complexity to ensuring that Carl’s affairs are managed in a way that will ensure he has sufficient funds for his care needs on a long-term basis, and this requires someone who is sufficiently independent as well as experienced in financial management.

85. We note that the appointment of the NSW Trustee and Guardian as Carl’s financial manager would incur considerable fees, due to the size of his estate. This consideration has to be balanced with the importance of Carl’s affairs being managed carefully, by someone with the skills and experience to ensure that he has sufficient income for his current and future needs.

86. In light of Christina’s evidence that she has the necessary skills and experience to do so, and Carl’s expression of trust in her, we were satisfied that Christina is a suitable person to be appointed as financial manager for Carl subject to the authorities and directions of the NSW Trustee and Guardian.

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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: 14 May 2025