DVX

[2016] NSWCATGD 26

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DVX [2016] NSWCATGD 26
Hearing dates:	20 September 2016 & 26 October 2016
Date of orders:	20 September 2016
Decision date:	26 October 2016
Jurisdiction:	Guardianship Division
Before:	C Fougere, Principal Member
Decision:	1. The financial management order made by the Tribunal on 08 September 2015 in relation to the estate of Miss DVX is varied as follows: • Ms TKX and Ms BRX are appointed jointly as the financial managers of the estate.
Catchwords:	FINANCIAL MANAGEMENT – initial application to revoke financial management order – requirements of the NSW Trustee and surety bonds – application to revoke withdrawn – joint private financial managers appointed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 4, 25M
Category:	Principal judgment
Parties:	Miss DVX (protected person) Ms TKX (sibling and applicant) Ms BRX (sibling and carer) The NSW Trustee and Guardian
Representation:	Nil
File Number(s):	59815
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 varied the financial management order made in relation to Miss DVX by appointing Ms TKX and Ms BRX as joint financial managers for Miss DVX, subject to the authority and directions of the NSW Trustee and Guardian.

Background

2. Miss DVX is a 59-year-old woman who has lived at a nursing home in west Sydney since September 2015. Miss DVX has seven siblings each of whom maintain contact with her and each other. Prior to moving to the nursing home, Miss DVX lived with two of her sisters, Ms BRX and Ms TKX.

3. Prior to this time, Miss DVX lived with her parents who have since passed away.

4. On 8 September 2015, the Tribunal appointed Mr QDX and Mrs EMI as Miss DVX’s joint guardians for 12 months. On the same date, the Tribunal appointed Ms TKX as her sister’s private financial manager.

5. At a hearing on 20 September 2016, the Tribunal renewed the guardianship order and reappointed Mr QDX and Mrs EMI as Miss DVX’s joint guardians for three years with decision-making authority about her healthcare, medical and dental treatment, and the use of restrictive practices, namely, the use of a restraint chair.

6. On 20 September 2016, the Tribunal also adjourned the hearing of Ms TKX’s application to revoke the financial management order. By the time of that hearing, instead of applying to have the order revoked, Ms TKX wished to have her sister, Ms BRX, appointed with her so that they managed their sister’s estate jointly. The Tribunal agreed to the request to adjourn the hearings in order to provide Ms BRX an opportunity to attend the next hearing date.

7. During the course of this hearing the Tribunal attempted to speak directly with Miss DVX by telephone. However the Tribunal was informed by the carer with Miss DVX that shortly after taking the telephone, Miss DVX became very agitated and gave the telephone back to her carer.

Evidence and submissions

8. In her original application to have the financial management order revoked, Ms TKX gave the following reasons as the basis of her request (set out at paragraph 3.2 of the application):

Earlier this year, the NSW Trustee and Guardian contacted me to request that [Miss DVX]’s bank provide a letter of security over her two term-deposit accounts, this was obtained and forwarded to them. Now they are asking for us to partake in the surety bond scheme which would mean that a percentage of [Miss DVX]’s money will be used to pay a private entity, Willis Towers Watson each year. To me this is not in the best interests of [Miss DVX].

As a family we are reluctant to have [Miss DVX]’s finances provide surety and also an income stream for Willis Towers Watson who I am sure are not carrying out this duty free of charge.

I am therefore requesting that [Miss DVX]’s financial management be returned to how it has always been until nine months ago which was being informally managed by the family.

9. The evidence before the Tribunal is that Miss DVX’s estate is made up of the following:

• a retirement access account containing $21,330;

• a term-deposit account containing $15,467;

• a term-deposit account containing $52,457.

10. Miss DVX also has a life insurance policy amounting to $22,187.

11. In her evidence to the Tribunal on 20 September 2016, Ms Tracey Burgess, Director of Specialist Services at the NSW Trustee and Guardian, made the following observations concerning the matters raised by Ms TKX in her application concerning the Surety Bond Scheme.

12. Ms Burgess gave evidence that 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.

13. 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.

14. Ms Burgess indicated that on the basis of the written material provided in this matter and the evidence provided at the hearing, although Miss DVX has liquid assets amounting to approximately $90,000, the NSW Trustee and Guardian would be prepared to deem Miss DVX’s estate as having a value $50,000. As a consequence, a one-off fee of $350 would need to be paid from her estate to meet the surety bond requirement. Ms Burgess said that she had made this assessment on the basis that Miss DVX’s parents and then her siblings have cared for her for decades. In addition, Miss DVX has seven siblings who are close to Miss DVX and each other which provide an informal level of oversight of the management of Miss DVX’s financial affairs.

15. At the hearings on 20 September 2016 and 26 October 2016, Ms TKX confirmed that she no longer wished to have the financial management order revoked. Instead, if Ms BRX were to be appointed to act jointly as a financial manager, then Ms TKX would be prepared to be willing to continue in the role. Ms TKX acknowledged that a financial manager continues to be needed to manage Miss DVX’s term-deposit accounts in order to ensure that those funds are invested in such a way that they will continue to meet their sister’s needs in the future. A financial manager will also be needed in order to consider whether, as Miss DVX ages and her needs may change, whether she will require the purchase of aides or equipment to assist her.

16. Ms TKX’s views were supported by other members of the family participating in the hearing.

17. The Tribunal therefore did not proceed with considering Ms TKX’s original application to revoke the financial management order. Rather it proceeded to conduct the review of the financial management order and considered Ms TKX’s oral application to vary the order by appointing Ms BRX as a joint financial manager for Miss DVX.

Discussion

18. In appointing a financial manager, as in making all other orders under the Guardianship Act 1987 (NSW), the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principle set out in s 4 of the Guardianship Act.

19. Section 25M of the Guardianship 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.

20. The Tribunal on 8 September 2015 was satisfied that Ms TKX was a suitable person to be appointed as Miss DVX’s financial manager. There was no evidence or suggestion that the Tribunal should alter this decision-making arrangement for Miss DVX.

21. Ms BRX participated in the hearing on 26 October 2016. Ms BRX informed the Tribunal that prior to the making of the financial management order in September 2015, she assisted her sister on an informal basis and had been made a signatory on her sister’s bank accounts approximately three to four years ago. Prior to that, Miss DVX’s mother was a signatory of all of her bank accounts.

22. Ms BRX is a certified practicing accountant and has worked in the financial area for approximately 30 years. She is currently employed in a finance role with an aged care service provider. The evidence was that Ms BRX shares her home with Ms TKX and so that they are able to discuss Miss DVX’s finances and care very easily.

23. The evidence given by both Ms TKX and Ms BRX at the hearing satisfied the Tribunal that they would work well together if they were appointed as joint financial managers.

24. Ms BRX also gave evidence that she has never been declared bankrupt, has not ever been convicted of dishonesty offences, and has no shared finances or bank accounts with Miss DVX.

25. The Tribunal accepted that Ms BRX was a suitable person to be appointed as her sister’s financial manager and was also satisfied that it was in Miss DVX’s best interests to appoint Ms TKX and Ms BRX as joint financial managers.

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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: 23 December 2016