DQI v NSW Trustee & Guardian

Case •

[2019] NSWCATAD 75

•

30 April 2019

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: DQI v NSW Trustee & Guardian [2019] NSWCATAD 75
Hearing dates: 5 April 2019
Date of orders: 30 April 2019
Decision date: 30 April 2019
Jurisdiction:Administrative and Equal Opportunity Division
Before: E Connor, Senior Member
Decision:

1. The decisions of the first respondent are affirmed

Catchwords: ADMINISTRATIVE LAW - Protective Jurisdiction – Welfare and Interest – Paramount consideration – Gifting from estate of protected person
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Guardianship Act 1987
NSW Trustee and Guardian Act 2009
Category:Principal judgment
Parties: DQI (Applicant)
NSW Trustee and Guardian (First Respondent)
Representation: Applicant – self-represented
Respondent – K Kwan, Legal Officer, NSW Trustee and Guardian
File Number(s): 2018/00348173
Publication restriction: Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013, a person must not without the consent of the Tribunal, publish, or broadcast the name of any person who appears as a witness in these proceedings, to whom these proceedings relate, or is mentioned or otherwise involved in the proceedings. The name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Background

  1. This is an application to review the decision of the NSW Trustee and Guardian (NSWTG) to decline requests made by DQI for $450 for family birthday gifts and $3,000 for a gift for her birthday from the estate of her mother, who is a protected person and will be referred to as ‘DEP’ in these proceedings.

  2. DEP is approximately 85 years old and resides in an aged care facility. She has two children, a son and a daughter (DQI) who is the applicant in these proceedings. She also has a number of grandchildren and great grandchildren.

  3. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act2013 (NSW), that the name of the applicant and any person involved in the proceedings is not to be published or broadcast without the leave of the Tribunal.

  4. On 5 March 2018 the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT or the Tribunal) committed the management of DEP’s financial affairs to the NSWTG.

  5. DQI made several requests to the NSWTG relating to the transfer of ownership of a vehicle owned by DEP and the gifting of $450 and $3000, DQI was informed by letter dated 10 September 2018 from the NSWTG Senior Client Services Officer managing DEP’s affairs that the following decisions had been made in relation to her mother’s estate:

  1. Decision allowing DQI to use DEP’s vehicle, subject to regular reviews but stating that the vehicle was to remain DEP’s asset.

  2. Decision to decline to reimburse $450 for DQI’s family’s birthdays.

  3. Decision to decline a request for $3,000 for DQI’s birthday.

  1. DQI requested that the NSWTG conduct an internal review of the decisions made on 10 September 2018.

  2. By letter dated 29 October 2018 was informed of the outcome of that review. The reviewing officer varied Decision (1) above and approved the gifting of the vehicle previously owned by DEP to DQI. Decisions (2) and (3) were affirmed.

  3. On 12 November 2018 DQI filed an application with this (the Administrative and Equal Opportunity) Division of NCAT seeking review of the decisions of NSWTG made on 29 October 2018 in relation to Decisions (2) and (3) above.

  4. For the reasons set out below, I have affirmed the decisions of the NSWTG in relation to Decisions (2) and (3) above to decline the requests by DQI to be paid the amounts of $450 and $3,000 as gifts from the estate of DEP.

Jurisdiction and Applicable Law

  1. The applicant is eligible to make an application under section 62 of the NSW Trustee and Guardian Act2009 being a person who, in the opinion of the Tribunal, is an ‘affected person’ adversely affected by a decision of the NSWTG. DEP is the daughter of DQI and asserts that $450 should be reimbursed to her for family birthday gifts and $3,000 gifted to her for her birthday. A decision to decline her claims will adversely affect her.

  2. The role of the Tribunal in reviewing the decisions is to determine the correct and preferable decision having regard to the material before it and the applicable law (s 63(1) Administrative Decisions Review Act 1997 (NSW)). The orders the Tribunal can make on an application for review include an order to affirm the decisions of the NSWTG, or an order to set aside either or both decisions and in substitution thereof make other decisions in accordance with section 63(3) of the Administrative Decisions Review Act 1997 (NSW).

  3. The Tribunal is guided by section 39 of the NSW Trustee and Guardian Act 2009 (NSW) which sets out the general principles which apply to the management of the estate of persons incapable of managing their financial affairs and how the correct and preferable decision is to be determined. The principles of section 39 relevant to this case include:

  1. the welfare and interests of such persons should be given paramount consideration,

…

  1. the views of such persons in relation to the exercise of those functions should be taken into consideration,

  2. the importance of preserving family relationships and the cultural and linguistic environments of such persons should be recognised, and

…

  1. such persons should be protected from neglect, abuse and exploitation.

  1. Section 76 of the NSW Trustee and Guardian Act 2009 is also relevant. It provides that:

  1. A manager may use property of the estate of a managed person for the following gifts:

  1. a gift to a relative or close friend of the managed person that is of a seasonal nature or is given because of a special event (such as a birthday or marriage),

…

  1. A manager may make a gift under this section only if the value of the gift is not more than what is reasonable having regard to all the circumstances and, in particular, the managed person’s financial circumstances and the size of the managed person’s estate.

The documents before the Tribunal

  1. The Tribunal considered the following material filed by the applicant:

  1. Application for review filed 12 November 2018 attaching internal review of decision made by NSWTG dated 29 October 2018;

  2. Credit Union of Australia bank statements of DQI;

  3. Extract from Guardianship Division of NCAT Reasons for Decision;

  4. Letter from DQI to NSWTG dated 14 September 2018;

  5. Letter from NSWTG to DQI dated 10 September 2018;

  6. Handwritten letters from DQI to NSWTG dated 14 April 2018 and 13 June 2018;

  7. Letter from DQI to NSWTG dated 6 January 2019;

  8. Statutory declaration of DQI’s son dated 8 January 2019;

  9. Statutory declaration of DQI’s daughter dated 29 December 2018;

  10. Email of DQI’s daughter dated 16 December 2018;

  11. IMB Bank statements for DEP for period 30 April 2017 to 30 October 2017 and from 30 October 2017 to 8 January 2018;

  12. Commonwealth Bank ‘Client Data Enquiry’ for account of DEP from 26 April 2017 to 30 October 2017 and from 1 October 2017 to 7 February 2018;

  13. Letter from DQI to NSWTG dated 20 December 2018;

  14. Handwritten letter from DQI to NSWTG dated 6 December 2018 under cover of email of same date; and

  15. Two statutory declarations of DQI’s spouse dated 11 February 2019.

  1. The Tribunal considered the following material filed by the respondent:

  1. Documents filed by the respondent on 3 January 2019 pursuant to section 58 of the Administrative Decisions Review Act 1997 (46 pages).

Internal review conducted by NSWTG

  1. As noted above, on 10 September 2018 DQI requested that the NSWTG conduct an internal review of the decisions made by the NSWTG to refuse to gift her mother’s car to her and to provide cash payments of $450 for DQI’s family’s birthdays and $3,000 for her birthday.

  2. By letter dated 29 October 2018 DQI was informed of the outcome of that review. The reviewing officer varied the decision of NSWTG with respect to the vehicle previously owned by DEP and approved it being gifted to DQI. That issue has been resolved to DQI’s satisfaction and does not form part of this review by the Tribunal.

  3. The reviewing officer affirmed the decisions to decline the requests of DQI that she be reimbursed $450 for DQI’s family’s birthdays and gifted $3,000 for her own birthday.

  4. In the letter dated 29 October 2018 the NSWTG states that:

DQI has provided a letter dated 14 April 2018 which appears to be signed by her mother requesting NSWTG make gifts of money for DQI’s children and husband’s birthdays. I note this letter is dated after the Financial Management order was made. DQI has stated that the giving of money as gifts to (sic) has been a long standing arrangement however there is no evidence to corroborate this.

NSWTG sought DEP’s view about request for gifts of money to DQI and her family members by telephone call with (the officer from NSWTG) on 7 August 2018. DEP provided a view at that time (sic) she did not wish to make any gifts to her daughter of (sic) family. As part of this review I contacted DEP by telephone on 29 October 2018 and she confirmed this view.

Evidence given at the hearing

  1. DQI gave evidence that on 14 April 2018 she and her mother had a conversation about family birthdays and DQI said to her mother ‘we will just do the same thing’. They discussed the amounts of the gifts and DQI wrote the handwritten letter dated 14 April 2018 to the NSWTG which she asserts was signed by her mother, requesting $300 for gifts of $100 to DEP’s son-in-law (DQI’s husband); $100 for her granddaughter (DQI’s daughter); and $50 for each of two great grandchildren (DQI’s grandchildren).

  2. On 13 June 2018 a second letter to NSWTG was written by DQI and purportedly signed by DEP, requesting $3,000 for DQI’s birthday; $100 for a great grandson and $50 for a great granddaughter (DQI’s grandchildren).

  3. DQI gave evidence that before she went away on holiday in 2017 her mother informed her that she intended to give her and her brother some money. Her brother had ‘eliminated’ her from being an attorney for her mother and ‘got power of attorney for himself’. DQI believes that her brother misappropriated funds from DQI and paid himself $3,000 as a birthday gift but that she did not receive the equivalent amount promised to her by her mother. She does not expect this amount annually but maintained that it was a one-off promised gift.

  4. DQI stated that her mother telephoned her on her birthday and reiterated that she intended to give her $3,000. DQI said that every time her mother has a telephone conversation with the responsible officer from NSWTG she ‘changes to a different person and when I speak to her she is intolerable and irritable and says: “You just want my house and my money”. DQI stated that ‘all I want is what she has authorised me’ to receive.

  5. Mr Kwan for the NSWTG referred to the gifting policy set out in section 76 of the NSW Trustee and Guardian Act 2009. He stated that the requests for cash for gifts were initially declined because there was no evidence of a pattern of prior gifting and the size of the gifts were not seen as reasonable given DEP’s known financial circumstances at the time. He acknowledged that DQI has since produced bank statements evidencing prior gifts and that DEP’s financial circumstances have materially changed. When the request was first declined, DEP’s house had not been sold and it was not known what sale price it would achieve. The house has now been sold and Mr Kwan conceded that the requested gifts are now affordable for DEP.

  6. Mr Kwan submitted, however, that DEP has consistently stated that she does not want to make cash gifts to family members because she needs the money for herself. He referred me to pages 44 to 46 of the section 58 documents filed by the respondent. Mr Kean submitted that DEP’s view is ‘entirely reasonable’ and that the NSWTG has been guided by the principles set out in section 39 of the Trustee and Guardian Act 2009 which oblige them to consider the views of the protected person (DEP) and to give paramount consideration to the protection of her welfare and interests.

  7. Mr Kwan submitted that little weight should be placed on the handwritten notes that were written by DQI and ‘placed in front of’ DEP for her to sign because it is unclear who was present at the time DEP purportedly signed them.

  8. Mr Kwan further stated that it is not the role of the NSWTG to maintain parity with respect to gifting and that their decision was based on the views of the protected person and, initially, on the financial affordability of the proposed gifts. NSWTG approved DQI being gifted DEP’s former vehicle because DEP indicated that she wanted her daughter to have the car, but ‘it is not feasible to continue the level of gifting requested by DQI’.

  9. In final submissions DQI stated that she is out of pocket for amounts she has provided to her children and grandchildren for gifts her mother decided to give to them. She again asserted that her brother has received ‘his $3,000’ but said that: ‘It’s not because he has and I haven’t. He has abused my mother’s estate’.

  10. In closing Mr Kwan submitted that ‘at the end of the day it is DEP’s decision not to gift the money and it would be perverse for us (NSWTG) to gift the money when she has told us she does not want to’. Mr Kwan stated that ‘even if they have dementia, if somebody tells us the same thing three times, we can rely on it’.

Consideration

  1. I am satisfied that the decisions made by the respondent are the correct and preferable ones.

  2. It is relevant that on 5 March 2018 the Guardianship Division of this Tribunal heard an application brought by DQI requesting a review of an enduring power of attorney made by DEP on 6 September 2016 which appointed DQI’s brother as DEP’s attorney. The application was treated as an application for a financial management order and the management of DEP’s estate was committed to the NSWTG. In making this order the Tribunal was satisfied that DEP was incapable of managing her own affairs. This does not, however, mean that her views are no longer to be taken into consideration. Rather, as Mr Kwan submitted, the NSWTG is obliged to consider the views of a protected person in making decisions on their behalf.

  3. The letters purporting to be signed by DEP requesting a total of $3,450 were both written after the making of the financial management order when it was determined that DEP was incapable of managing her own affairs. DQI acknowledged that the only other person present when the letter was signed was her husband, who was one of the proposed recipients of a cash gift from DEP with a clear conflict of interest. In the absence of independent corroborating evidence, I am not satisfied that DEP knew what she was signing when the handwritten letter was put in front of her by DQI.

  4. DQI was the applicant in the proceedings before the Guardianship Division and was fully aware that the Tribunal had determined that her mother was not capable of managing her own affairs and that management had been committed to the NSWTG. DEP was no longer legally capable of signing a document to gift money and DQI did not have the authority to gift money on her mother’s behalf. The action taken by DQI in gifting money on her mother’s behalf and then requesting reimbursement could be seen as a deliberate attempt to circumvent the proper process by which DQI could have put a request to the NSWTG that they approve the gifts prior to her making them.

  5. During the hearing DQI told me more than once that her brother received his payment of $3,000 and that she believes she is entitled to an equivalent amount.

  6. DQI is aggrieved because she believes that her brother may have received more money as gifts from their mother than she has and/or that her brother, while acting as attorney for their mother, misappropriated funds from her account. These concerns do not make it appropriate for DQI to attempt to ‘even up’ what they have each received and, any alleged misappropriation of funds is a matter for the NSWTG to investigate as DEP’s financial manager.

  7. I accepted the evidence of Mr Kwan that DEP has consistently maintained that she does not want to give cash gifts to family members and there are file notes completed by officers of the NSWTG recording their conversations with DEP. The records indicate that DEP understood the questions being put to her and clearly indicated her wishes.

  8. The Reasons for Decision from the hearing in the Guardianship Division on 5 March 2018 note that DEP was able to recall withdrawing $3,000 on 11 September 2017 which she gave to her son as a birthday gift. It is also stated that:

During the course of the hearing, [DEP] maintained her right to spend her money as she sees fit and in particular to provide gifts to her children. She maintained that she has treated her two children equally with respect to financial gifting. This was evidence with which the applicant (DQI) disagreed.

  1. The NSWTG has provided copies of detailed file notes of conversations between their officers and DEP dated 7 August 2018 and 29 October 2018. In the notes from the discussion on 7 August 2018, it is stated that:

When asked about her daughter’s request for $3000 for her – [DQI’s] Birthday and also her children’s Birthdays, client said ‘she is not getting that much’. She does not even see any of them (does not even see her children much and yet her grandchildren) does not want to give any Birthday presents to them, she needs her money.

  1. In the notes from 29 October 2018 it is recorded that DEP did not recall the previous discussion with a different officer on 7 August 2018 and that:

[DEP] was adamant that she did not want NSWTG to give any gifts to any of her children or grandchildren. She wanted to keep her money to help look after herself.

  1. While the bank statements provided by DQI substantiate that DEP provided numerous gifts to members of her family between 2014 and December 2018, there is no clearly established pattern to those gifts, with the exception of annual gifts of $50 to one grandchild. The gifts have varied in amount from $25 to $300 and some family members have been given substantially larger total amounts during that period than others. There is no evidence that DEPs son-in-law (DQI’s husband) has received any gift previously. DQI gave evidence that in the past she discussed with her mother what gifts she (DEP) wished to give and arranged the payments to individual family members.

  2. One possible explanation for the variation in the amounts gifted to individual family members at different times by DEP is that DEP has, in the past, determined the size of the gifts she wished to give, and to whom she gifted money, according to her perception of her overall financial position and/or according to her disposition towards particular family members at that time. This would be consistent with her stated views to the NSWTG that she does not want to gift money to her children or grandchildren because she needs the money for herself and because they do not visit her.

  3. After considering all the evidence before me I am satisfied that the decisions made by the NSWTG to refuse to pay the amounts of $450 and $3,000 to the applicant are the correct and preferable ones.

  4. Although the gifts may now be affordable by DEP, I placed greater weight on the stated views of DEP to officers of NSWTG on two separate occasions that she did not want to give cash birthday gifts to her family. There is no suggestion in the notes of the officers that DEP was in any way confused about what she being asked or what she wished to do. Even if DEP did at some point in time promise or agree to certain amounts being gifted to family members, she is entitled to change her mind and I am required to make the correct and preferable decision on the evidence before me now. I agree with Mr Kwan that it would be ‘perverse’ for DEP’s view not to be respected and that it is not the role of the NSWTG or the Tribunal to seek to equalise the gifting between a protected person’s children.

  1. I have given paramount consideration to the welfare and interests of DEP and to ensuring that she is protected from exploitation. I also considered the importance of preserving family relationships. By DQI’s own admission, her relationship with her mother is strained and I determined that the difficulties in their relationship may be further exacerbated by me ordering the gifting of money from DEP’s estate against her wishes.

  2. The first respondent’s decisions are affirmed and the application is dismissed.

Order

  1. The orders of the Tribunal are that:

  1. The decision of the respondent to decline the claim for reimbursement by the applicant of $450 for birthday gifts is affirmed.

  2. The decision of the respondent to refuse the claim by the applicant that she be gifted $3,000 for her birthday is affirmed.

*********

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: 30 April 2019

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