EGX

[2018] NSWCATGD 6

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	EGX [2018] NSWCATGD 6
Hearing dates:	12 February 2018
Date of orders:	12 February 2018
Decision date:	12 February 2018
Jurisdiction:	Guardianship Division
Before:	A Britton, Principal Member Dr A M Berry, Senior Member (Professional) P Davidson, General Member (Community)
Decision:	1. The estate of Mr EGX is subject to management under the NSW Trustee and Guardian Act 2009.  2. The management of the estate of Mr EGX is committed to the NSW Trustee and Guardian.
Catchwords:	FINANCIAL MANAGEMENT – application for financial management order – need for independent oversight – vulnerability to exploitation – NSW Trustee and Guardian appointed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 4, 25G, 25G(a)
Cases Cited:	P v NSW Trustee and Guardian [2015] NSWSC 579
Texts Cited:	Nil
Category:	Principal judgment
Parties:	001: Financial Management Application   Mr EGX (the person) South Eastern Sydney Local Health District (applicant) NSW Trustee and Guardian (proposed financial manager)
Representation:	Nil
File Number(s):	NCAT 2018/00018466
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

1. Seventy-year-old Mr EGX is currently a respite patient at public hospital A, East Sydney. He was admitted to public hospital B on 5 January 2018 following a fall which resulted in a hip fracture. Twelve days later he was transferred to the public hospital A in East Sydney. Prior to this hospital admission, Mr EGX had been living in a boarding house in East Sydney. For a number of years he has been a regular visitor to a charity centre where he was provided meals and various services. Mr EGX has no known relatives in Australia. Apparently he has limited contact with a nephew, Mr Z, who lives in England.

2. In January 2018, a social worker of public hospital B, Ms TDC, made an application to the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT) seeking a financial management order in respect to Mr EGX (the Application). Ms TDC wrote that the reason for making the Application was because of concerns that without a financial management order, Mr EGX is vulnerable to financial exploitation.

3. For the reasons that follow we have decided to make a financial management order in respect of Mr EGX and to commit the management of his estate to the NSW Trustee and Guardian.

Can a financial management order be made?

4. Section 25G of the Guardianship Act 1987 (NSW) (the Act) provides that the Tribunal may make a financial management order in respect of Mr EGX only if we have considered his capability to manage his own affairs and are satisfied, to the relevant civil standard, of three matters:

1. That Mr EGX is not capable of managing his affairs.

2. That there is a need for a person to manage those affairs on behalf of Mr EGX.

3. That it is in Mr EGX’s best interests that the order be made.

Is Mr EGX not capable of managing his affairs?

5. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J commented at [308], [309] on the meaning of the phrase “capable of managing those [the subject person’s] affairs” in s 25G(a) of the Act:

[A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and 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.

In considering whether the person is “able” in this sense, attention may be given to: (a) past and present experience as a predictor of the future course of events; (b) support systems available to the person; and (c) 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: CJ v AKJ [2015] NSWSC 498 at [38].

6. As a first step in determining whether Mr EGX is capable of managing his affairs, it is necessary to identify the nature of those affairs, namely his income and assets. The available material indicates that Mr EGX has no assets apart from savings, which he understands to be about $80,000. He apparently does not receive any social security payments or benefits. The available evidence indicates that he is probably entitled to receive the Age Pension.

7. Following his admission to public hospital B, Mr EGX was assessed by advanced trainee in geriatric medicine, Dr Y. In a report prepared for these proceedings Dr Y wrote that during the period of his admission, Mr EGX displayed “significant short term recall issues” and on testing using the Montreal Cognitive Assessment (MoCA), a screening tool used to assess mild cognitive dysfunction, he scored 14/30, which in her opinion was suggestive of “significant cognitive impairment”. Dr Y recorded that at the time of testing there was no evidence of delirium. She considered the history Mr EGX gave about his finances — having an annual income of $40,000 and paying annual rent in the same amount — revealed that he had limited knowledge of his financial worth. Dr Y wrote that without which a financial management order Mr EGX would be vulnerable to financial abuse.

8. As noted, for a number of years Mr EGX has been a regular visitor at the charity centre at East Sydney. For the past few years, each fortnight the charity centre’s Care Coordinator, Mr X, has accompanied Mr EGX to his bank to withdraw funds for rent and living expenses. Apparently Mr X’s predecessor had also performed that role.

9. According to Mr X over the past six to 12 months, Mr EGX appeared to be increasingly confused. He pointed to a recent incident where, after withdrawing money from the Bank, Mr EGX handed him the withdrawn money and when asked why he had done so, replied it was for rent. Mr X stated that he maintains regular contact with the manager of Mr EGX’s boarding house to confirm that he is receiving rent from Mr EGX. The manager reported that on occasion Mr EGX offers his rent to other boarders.

10. Mr X endorsed Dr Y’s opinion that Mr EGX is unable to manage his finances and is vulnerable to financial abuse. Mr EGX pointed out that with Mr EGX’s proposed move from East Sydney to hostel accommodation also in East Sydney, Mr EGX will probably no longer be able to call upon the informal support provided to date by staff of the charity centre.

11. At the hearing Mr EGX was unable to answer simple questions asked by the Tribunal about his estate and on-going expenses. He agreed with the proposition that he needed help to manage his finance.

Conclusions

12. The available evidence indicates that Mr EGX is no longer capable of managing his affairs and has probably been unable to do so for a number of years. It is telling that he has required the assistance of the charity centre staff to assist with the simple task of withdrawing money from his bank. Further, it is revealing that Mr EGX does not appear to know how much he holds in savings and how long his savings are likely to last. Nor has he taken steps to apply for social security benefits.

13. Notwithstanding that the available evidence suggests that Mr EGX’s finances are relatively simple, we agree with the opinion expressed by Dr Y that Mr EGX probably lacks the capacity to manage his finances.

Is there a need for a person to manage his affairs on behalf of Mr EGX and is it in Mr EGX’s best interests that a financial management order be made?

14. These two issues are intertwined. As noted, for some time Mr EGX has been reliant on the staff of the charity centre to assist him with simple banking tasks. With the proposed move to hostel accommodation it appears unlikely that this form of assistance will remain available to Mr X.

15. The available evidence reveals that there is an urgent need for steps to be taken in relation to the management of Mr EGX’s estate. These include, first, identifying how much money he holds in the bank and whether he has any other assets. Given that Mr EGX has apparently not been in paid employment for over a decade and has never claimed social security benefits, it is possible that he may hold other assets. Second, determining whether he is eligible for social security entitlements, and if so, applying for benefits. Third, executing documents to facilitate the proposed move to hostel accommodation. Given the evidence of impaired cognition, it is likely that the accommodation provider will not accept Mr EGX as signatory to these documents.

16. Unless a person is appointed to manage his estate, in the future Mr EGX may find himself without sufficient funds to meet his living expenses. In addition, as the evidence given by Mr X indicates there is a risk he might simply give his money away. Self-evidently, he is now vulnerable to exploitation. We find that that there is a need for a person to manage Mr EGX’s estate and that it is in Mr EGX’s best interests that a financial management order be made.

Should a financial management order be made?

17. As the pre-conditions to making a financial management order are satisfied, the power to make a financial management order can be exercised. In exercising that power we are obliged to have regard to the statement of principles contained in s 4 of the Act. This requires a number of competing considerations to be balanced. On the one hand, we must observe the principle that Mr EGX must be protected from neglect, abuse, and exploitation. On the other hand, we must restrict his freedom of decision making and action as little as possible and encourage him as far as possible to live a normal life in the community. The paramount consideration at all times is Mr EGX’s welfare and interests.

18. In a pre-hearing report, a senior registry officer wrote that during a conversation with Mr EGX on 5 February 2018, Mr EGX stated that he was very happy with the idea of his finances being managed by another person. At hearing, he repeated that view.

19. It will be a rare case where the pre-conditions to making a financial management order are satisfied and the making of the order is supported by the subject person and nonetheless, factors weigh against the exercise of the discretion to make a financial management order. This is not such a case. We have decided that the power to make a financial management order should be exercised.

Who should be appointed to manage Mr EGX’s estate?

20. As noted Mr EGX apparently has no family in Australia. There is no evidence of a friend or associate who is willing and able to take on the role of manager. There being no individual willing to undertake the role of manager, we have no option but to commit the management of Mr EGX’s estate to 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: 23 April 2018