DQC

[2016] NSWCATGD 10

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DQC [2016] NSWCATGD 10
Hearing dates:	18 May 2016
Date of orders:	18 May 2016
Decision date:	18 May 2016
Jurisdiction:	Guardianship Division
Before:	J Simpson, Senior Member (Legal) C Pratten, Senior Member (Professional) D Sword, General Member (Community)
Decision:	Application for a financial management order dismissed.
Catchwords:	FINANCIAL MANAGEMENT – application for a financial management order – incapability to manage own affairs – need for a financial management order – best interests – fluctuating capacity – alternatives to an order – application dismissed
Legislation Cited:	Guardianship Act 1987 (NSW), s 3(2)(a)-(d)
Cases Cited:	P v NSW Trustee and Guardian [2015] NSWSC 579
Category:	Principal judgment
Parties:	Mr DQC (subject person) Ms NZK (applicant) The NSW Trustee and Guardian
File Number(s):	61988
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify a 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 dismissed the application for a financial management order.

Background

2. Mr DQC is a 66-year-old man with a mental illness who lives in rented accommodation at regional NSW. There were concerns about Mr DQC’s financial vulnerability when unwell and Ms NZK, mental health case manager, applied for a financial management order.

3. Mr DQC has a supportive sister and brother-in-law, Ms DYP and Mr HBP, and he has trusted his sister with being his attorney. However, when unwell, there have been times when he becomes very distrustful of his sister and he has revoked the power of attorney. Ms DYP  has herself become unwell so that she is unable to manage her brother’s finances.

What did the Tribunal have to decide?

4. The Tribunal had to decide:

• Is Mr DQC incapable of managing her affairs?

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

• If so, who should be appointed financial manager?

5. The concept of a person “incapable of managing his or her own affairs” is a free standing idea governed by the purpose of the jurisdiction to be exercised. The Tribunal looks at whether the person is “reasonably able to manage his or her own affairs in a reasonably competent fashion” without the intervention of a financial manager. A focus for attention is whether the person is able to make and implement decisions about his or her own property, capital and income “in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation”. “Attention may be given to:

1. past and present experience as a predictor of the future course of events;

2. support systems available to the person; and

3. the extent to which the person, placed as he or she is, can be relied upon to make sound judgements about his or her welfare and interests.”

The concept of capability focuses on the reasonably foreseeable future as well as the present time.

Usually, but not necessarily, a person who is incapable of managing his or her affairs would be “disabled” within the meaning of section 3(2)(a)-(d) of the Guardianship Act 1987 (NSW). (P v NSW Trustee and Guardian and Guardian [2015] NSWSC 579 at [301], [307-310]).

Is Mr DQC incapable of managing his affairs?

6. Mr DQC has an inheritance of over $100,000 held in a superannuation account with a financial institution. He receives an age pension and a fortnightly payment from the superannuation account. The applicant had no concern about Mr DQC’s management of his day-to-day affairs but was concerned that he may be taken advantage of in relation to his superannuation account. When unwell, he has had delusions that his family is taking his money and this has impacted on his mental health and his relationship with his family. On one occasion, he was going to pay $5000 to a law firm so that he could sue his family.

7. Ms NZK, who is an occupational therapist with the local mental health service, reported that she has been Mr DQC’s case manager for eight months. He has a long history of mental illness including paranoid schizophrenia and a major depressive disorder. In the hearing, Ms NZK said that Mr DQC was very well for a long period but then about 18 months ago became very unwell. However, in the last two months he has been well again and is currently capable of managing his financial affairs. Also, back when Mr DQC planned to pay the money to the solicitor, Ms NZK was able to persuade him to let her know if he was going to pursue this.

8. In the hearing, Mr DQC was able to give the Tribunal a very clear account of his financial situation. He did understand Ms NZK is concerned about him being disadvantaged with the superannuation if he is unwell. He was clear that it was delusions that led him to want to pay the $5000 to the solicitor. Now that he is well, his relationship with his sister has resumed in a positive way.

9. On the evidence as it stood, the Tribunal was very doubtful whether it could be satisfied that Mr DQC is incapable of managing his financial affairs.

10. The Tribunal explored with the parties options short of a financial management order for meeting any need for intervention with his finances when Mr DQC is unwell.

11. One clear option emerged that was supported by both Mr DQC and the applicant. This would be for Mr DQC to approach the NSW Trustee and Guardian and ask it to be his enduring attorney. This would mean that if Mr DQC was unwell and incapable, the NSW Trustee and Guardian could step in, activate the power of attorney and prevent financial disadvantage to Mr DQC. Also, even if Mr DQC signed a revocation of the power of attorney, this would not be valid if Mr DQC lacked capacity at that time.

12. The Tribunal confirmed with a representative of the NSW Trustee and Guardian that the above approach should be feasible.

13. The Tribunal also discussed this approach with Mr DQC’s sister and brother-in-law, Mr HBP and Ms DYP. Mr HBP had some concerns about the power of attorney approach not being as clear-cut as a financial management order but saw value in the fact that it would remove his wife from being a potential attorney. He said that Mr DQC has recently signed a new appointment of enduring guardian and power of attorney but he and his wife would not sign the power of attorney if the above approach was to be pursued. Mr HBP also said that Mr DQC’s savings being held in the superannuation account with the financial institution meant that it could not readily be accessed.

14. The Tribunal also notes that, if Mr DQC becomes unwell and is in danger of being financially disadvantaged, an urgent application can be made to the Tribunal.

15. With Mr DQC currently being well and the pattern of his illness in recent years, the Tribunal was not satisfied that he is incapable of managing his financial affairs. In any case, the proposed power of attorney to the NSW Trustee and Guardian was a less intrusive and reasonably satisfactory option in the current circumstances.

16. Mr DQC and Ms NZK can make an appointment to see the NSW Trustee and Guardian in regional NSW. They can discuss whether the whole of Mr DQC’s affairs should be covered by the power of attorney or only his savings and other relevant issues.

17. If the NSW Trustee and Guardian is appointed as attorney, any concerned person can advise them it Mr DQC is unwell and requires them to act on the power of attorney.

**********

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: 12 July 2016