DJC

[2016] NSWCATGD 27

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DJC [2016] NSWCATGD 27
Hearing dates:	20 September 2016
Date of orders:	20 September 2016
Decision date:	20 September 2016
Jurisdiction:	Guardianship Division
Before:	C Fougere, Principal Member
Decision:	1. The financial management order made on 9 January 2014 in relation to the estate of Mrs DJC is revoked.  2. The manager, Mr DJC is to pay over or hand over the estate to Mrs DJC.
Catchwords:	FINANCIAL MANAGEMENT – application to revoke financial management order – revocation in best interests of the protected person – requirements of the NSW Trustee and surety bonds
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), sch 6, cl 5(1) Guardianship Act 1987 (NSW), s 4
Category:	Principal judgment
Parties:	Mrs DJC (protected person) Mr DJC (spouse and applicant) The NSW Trustee and Guardian
Representation:	Nil
File Number(s):	55049
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

What the Tribunal decided

1. The Tribunal revoked the financial management order made in relation to Mrs DJC on 9 January 2014.

Background

2. Mrs DJC is a 51-year-old woman who lives with her husband, Mr DJC, in their home in northwest Sydney. Mr and Mrs DJC have three children, two of whom still live with their parents, the youngest being 14 years of age.

3. On 30 October 2013, Mrs DJC experienced a cerebral artery aneurism that led to a lengthy period of hospitalisation and rehabilitation. Mr DJC applied for the appointment of a financial manager for his wife in the months following that event. At the time of the hearing before the Tribunal on 9 January 2014, Mrs DJC was in a coma and evidence was provided by Mr DJC that a financial manager was needed to organise her financial affairs, to possibly sell their family home and to enable access to be gained to an education fund for their children but that was in Mrs DJC’s name alone.

4. On 9 January 2014, the Tribunal appointed Mr DJC as his wife’s financial manager subject to the authority and directions of the NSW Trustee and Guardian.

5. On 25 July 2016, Mr DJC applied to have the financial management order revoked. This application was made with the support of Mrs DJC and other members of her family. In the application, and in other evidence to the Tribunal, Mr DJC indicated that despite the seriousness of his wife’s health following the aneurism, the improvement in her health has been greater than the doctor’s first anticipated. With the order in place, Mr and Mrs DJC have sold their former home and bought a new home in joint names in northwest Sydney. Mrs DJC has also accessed the National Disability Insurance Scheme and receives funding for 38 hours per week for a carer to provide rehabilitation services.

6. Mr DJC’s written application to the Tribunal also outlined as a basis for seeking revocation the costs associated with the oversight provided by the NSW Trustee and Guardian. These factors were set out at paragraph 3.2 of the application as follows:

1. it is disadvantaging Mrs DJC financially with annual fees (including a surety bond) totalling more than $1,200;

2. it is restricting Mrs DJC from leading a normal life because our money is in joint accounts and we need to seek approval to spend money outside of general living expenses;

3. the new surety bond fee penalises Mrs DJC financially if we wish to restructure our finances to take advantage of the tax-free threshold now that Mrs DJC no longer receives an income;

4. Mrs DJC did not have a say when the financial management order was put in place because she could not speak.

7. At the hearing, Mrs DJC gave clear and cogent evidence that she wished to have the order revoked and that she would like her husband to continue to manage their joint finances. Mrs DJC informed the Tribunal that her husband always discusses everything with her, including financial matters, and she is very happy with the way that that works.

8. The application for revocation was also supported by Mr and Mrs DJC’s two eldest children, one of whom attended the hearing with her parents. The Tribunal was also provided with a number of letters from family, friends, and associates of Mr and Mrs DJC who consistently wrote of Mr DJC’s integrity supported the revocation of the order.

What did the Tribunal have to decide?

9. On reviewing a financial management order, the Tribunal must confirm, confirm and vary, or revoke the financial management order.

10. The Tribunal may revoke a financial management order only if:

1. it is satisfied that Mrs DJC is capable of managing her affairs; or

2. it considers that it is in Mrs DJC’s best interests that the order be revoked.

11. It was not put to the Tribunal in this matter that the financial management order should be revoked on the basis that Mrs DJC has regained her capacity to manage her financial affairs. Rather the entire focus of the hearing was whether it was in Mrs DJC’s best interests to have the order revoked.

12. In deciding whether or not to revoke a financial management order, the Tribunal is under a duty to observe the principles set out in s 4 of the Guardianship Act 1987 (NSW) (Civil and Administrative Tribunal Act 2013 (NSW), sch 6, cl 5(1)) which require that:

• The person’s welfare and interests are to be given paramount consideration;

• The person’s freedom of decision and freedom of action should be restricted as little as possible;

• The person should be encouraged as far as possible to live a normal life in the community;

• The person’s views should be taken into account as much as possible;

• The importance of preserving the person’s family relationships and the person’s cultural and linguistic environment should be recognized;

• The person should be encouraged to be as self-reliant as possible in respect of the person’s personal, domestic and financial affairs;

• The person should be protected from neglect, abuse and exploitation.

Evidence and submissions

13. The evidence before the Tribunal was that Mrs DJC’s estate is made up of the following:

• a bank account in joint names with Mr DJC holding just over $5,000;

• furniture and jewellery in the region of $100,000;

• investments/unit trust $5,600;

• northwest Sydney property jointly owned by Mr and Mrs DJC valued at approximately $2,010,000.

14. In her submission to the Tribunal, Ms Tracy Burgess, Director of Specialist Services at the NSW Trustee and Guardian, made the following observations concerning the matters raised by Mr DJC in his application concerning the Surety Bond Scheme.

15. The Surety Bond Scheme introduced by the NSW Trustee and Guardian is an agreement between a private manager, the NSW Trustee and Guardian, and the surety bond company. It ensures the estates of privately managed people are protected against mismanagement and fraud by the private manager. The NSW Trustee and Guardian makes a decision on a case by case basis as to whether a surety bond is required for the estate. If a surety bond is imposed, then it is charged at a rate of 0.4% on the liquid assets in the estate. Real property, for example, is excluded from the estate for the purposes of calculating the value of the surety bond.

16. Ms Burgess noted that if the NSW Trustee and Guardian decides that a surety bond needs to be imposed, a private manager who disagrees with that decision can request an internal review of the decision. If the private manager remains unhappy with the outcome of the review, they are entitled to seek a further review of the decision by the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal.

17. Ms Burgess indicated that on the basis of the written material provided in this matter and the evidence provided at the hearing, given that over 90% of the assets contained within Mrs DJC’s estate consists of real property and that the bank accounts are in the joint names of Mr and Mrs DJC, her assessment was that there was low-risk associated with Mr DJC’s ongoing management of the estate. In these circumstances, Ms Burgess indicated that the NSW Trustee and Guardian would waive the need for a surety bond to be paid should the order continue.

18. The Tribunal sought evidence from Mr and Mrs DJC as to how they believed Mrs DJC’s financial affairs would be managed should the financial management order be revoked and whether they foresaw any impediments to the management of her finances in those circumstances.

19. Mr DJC informed the Tribunal that they had already made enquiries with their lawyer about Mrs DJC executing an enduring power of attorney. It was proposed that should the order be revoked, Mrs DJC would execute such an appointment and appoint Mr DJC as her attorney.

20. The only outstanding issues that Mr and Mrs DJC indicated that might potentially present a difficulty if the order was revoked concerned Mrs DJC’s access to superannuation when she reaches the age of 65 years. According to the evidence, Mrs DJC has already received a payment from her superannuation fund resulting from a permanent disability claim but there is a remaining amount of approximately $110,000 that may be able to be accessed at a later date. Mr DJC suggested, however, that with authority as an attorney he may be able to take whatever steps are necessary to access these funds on his wife’s behalf when the time comes. The education account that Mr and Mrs DJC established for their children remains in Mrs DJC’s name. Again, Mr and Mrs DJC expressed a view that if Mrs DJC was unable to operate this account herself, then with his appointment as an attorney, Mr DJC is likely to be able to do so on her behalf. Mr and Mrs DJC also referred to the renovations that they wished to undertake in relation to their home in northwest Sydney. Any legal issues including the execution of building contracts could be undertaken by Mr DJC alone or using his authority as attorney on Mrs DJC’s behalf should she have difficulty in dealing with these matters.

21. The Tribunal explored with Mr and Mrs DJC what may occur should, for some reason, an enduring power of attorney not be able to be put in place by Mrs DJC. Both indicated to the Tribunal that they believed that Mrs DJC’s estate could be managed in any event by Mr DJC with Mrs DJC’s input and involvement given their home is in joint names and they have joint bank accounts. If there proved to be an insurmountable impediment to managing Mrs DJC’s affairs at a later time, then another order could be sought from the Tribunal.

Discussion

22. The consistent evidence before the Tribunal was that Mrs DJC’s general health and cognition has improved dramatically since experiencing an aneurism in 2013. Prior to this event, Mr and Mrs DJC shared the management of their finances. The evidence indicated, and the Tribunal finds, that Mr DJC has been a diligent and prudent financial manager for his wife since the financial management order was made in January 2014 and he has exercised his responsibilities with her best interests uppermost in his decision making. The evidence before the Tribunal on this occasion, both from Mr and Mrs DJC, their daughter, and the numerous letters sent to the Tribunal which can be characterised as character references, attested to Mr DJC’s integrity and his support and care for his wife since she became ill in 2013.

23. Although the application for revocation appears to have been prompted by Mr and Mrs DJC receiving advice from the NSW Trustee and Guardian that a surety bond would be required to be paid from Mrs DJC’s estate, the evidence given by Ms Burgess on behalf of the NSW Trustee and Guardian at the hearing was that the surety bond would be waived should the order continue. Despite this, Mr and Mrs DJC’s evidence indicated that the appointment of Mr DJC as financial manager, whilst necessary at the time the immediate period following Mrs DJC’s hospitalisation, has more recently imposed a level of bureaucracy that has actually impeded their ability to manage Mrs DJC’s finances in a way that meets all of the family’s needs. The Tribunal gave particular weight to Mrs DJC’s view that she wished to have the order cancelled and no longer wishes to have the NSW Trustee and Guardian involved in her life.

24. There was no dispute in the evidence that without an order being in place, there was any risk to Mrs DJC’s finances. In fact, the overwhelming evidence, which the Tribunal accepted, was that now that Mrs DJC’s immediate needs have been met from a financial perspective and given her improvement in her health and cognition, the appointment of a financial manager is no longer in her best interests.

25. In these circumstances the Tribunal was satisfied that it was in Mrs DJC’s best interest to revoke the financial management order and issued an order to that effect.

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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: 01 June 2018