EHM

[2017] NSWCATGD 4

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EHM [2017] NSWCATGD 4

Hearing dates:

22 February 2017

Date of orders:

22 February 2017

Decision date:

22 February 2017

Jurisdiction:

Guardianship Division

Before:

E Connor, Senior Member (Legal)
Dr M Wroth, Senior Member (Professional)
M Watson, General Member (Community)

Decision:

Guardianship
1. The guardianship order for Mrs EHM made by the Tribunal on 4 January 2017 is renewed and varied so that the order is now as follows.
2. This is a continuing guardianship order for a period of 12 months from the date of this order.
3. The Public Guardian is appointed as the guardian for Mrs EHM.
4. Mr NBM and Mr FZM are appointed jointly as the guardians for Mrs EHM.
5. This is a limited guardianship order giving the guardian custody of Mrs EHM to the extent necessary to carry out the functions referred to below.
Public Guardian – Access and Other (overseas relocation decisions)
Mr NBM and Mr FZM – Accommodation, Health Care, Medical and Dental Consent, Services

 

Financial Management
1. The financial management order made by the Tribunal on 4 January 2017 in relation to the estate of Mrs EHM is confirmed.
2. This order is to be reviewed by the Tribunal on 27 April 2017.

 Review of Enduring Power of Attorney
1. Not to carry out a review of the making, operation and effect of the enduring power of attorney made by Mrs EHM on 9 November 2016 which appointed Ms OBM and Mr DFM as attorneys.
2. The application made by Mr NBM, Mr FZM for a review of the making, operation and effect of the abovementioned enduring power of attorney are dismissed.

Catchwords:

GUARDIANSHIP – review of guardianship order – subject person in hospital – consideration of factors in section 14 of the Guardianship Act 1987 (NSW) – family willing to provide care at home – consideration of who to appoint as guardian – Public Guardian and private guardian appointed with separate functions

 

FINANCIAL MANAGEMENT – review of financial management order – need for a financial management order – sale of property – contracts exchanged prior to appointment of Public Trustee – risk of financial penalty for cancellation of sale of property – effects of changing financial manager during sale – financial management order appointing Public Trustee confirmed

  REVIEW OF ENDURING POWER OF ATTORNEY – application dismissed due to financial management order

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 15(3), 17(1), 25M
Powers of Attorney Act 2003 (NSW), ss 36, 36(1), 36(2)

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep
Holt v Protective Commissioner (1993) 31 NSWLR 227
IF v IG [2004] NSWADTAP 3
P v D1 [2011] NSWSC 257
Re B [2011] NSWSC 1075

Category:

Principal judgment

Parties:

Mrs EHM (person under guardianship and financial management)
Ms OBM (attorney appointed pursuant to a (suspended) power of attorney)
Mr DFU (attorney appointed pursuant to a (suspended) power of attorney)
Mr NBM (applicant for review)
Mr FZM (applicant for review)
The NSW Public Guardian
The NSW Trustee and Guardian

File Number(s):

64464

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

REVIEW OF GUARDIANSHIP AND FINANCIAL MANAGEMENT ORDERS

APPLICATION TO REVIEW AN ENDURING POWER OF ATTORNEY

What the Tribunal decided

1. The Tribunal reviewed the previous guardianship order for Mrs EHM made on 4 January 2017 and renewed it for a period of 12 months and varied it as follows: The Tribunal made a guardianship order for 12 months in relation to Mrs EHM. Mr NBM and Mr FZM were appointed jointly as Mrs EHM’s guardians in relation to decisions about her accommodation, services, health care, and consents to medical and dental treatment. The Public Guardian was appointed to make decisions about Mrs EHM relocating overseas and about her access to and by others.

2. The Tribunal confirmed the financial management order it made on 4 January 2017 in relation to Mrs EHM and ordered that the order be reviewed on 27 April 2017.

3. The Tribunal decided, under section 36(1) of the Powers of Attorney Act 2003 (NSW) not to carry out a review of the enduring power of attorney made by Mrs EHM on 9 November 2016 and dismissed the application for a review of the enduring power of attorney made by her on that date.

Background

4. Mrs EHM is a 77-year-old-woman who previously lived with her daughter, Ms OBM, and her daughter’s husband, Mr DFU, in her own home. Mrs EHM also has two sons, Mr FZM and Mr NBM. At the time of the hearing, Mrs EHM was in a public hospital.

5. On 23 October 2014, Mrs EHM appointed Ms OBM and Mr NBM jointly as her attorneys pursuant to an enduring power of attorney

6. On 9 November 2016, Mrs EHM purportedly appointed Ms OBM and Mr DFU, jointly and severally, as her enduring guardians. The appointment includes a clause revoking all previous enduring guardianship appointments.

7. On 9 November 2016, Mrs EHM also executed an instrument purportedly appointing Ms OBM and Mr DFU as her attorneys. It is not expressly stated whether this appointment is intended to be joint or joint and several and this enduring power of attorney does not revoke any previous enduring powers of attorney.

8. On 9 December 2016, the Tribunal received an application from Mr FZM and Mr NBM requesting a review of both the making and the operation and effect of the enduring power of attorney executed by Mrs EHM on 9 November 2016.

9. On 30 December 2016, the Tribunal received an application from Mr FZM and Mr NBM requesting the review of the enduring guardianship appointment made by Mrs EHM on 9 November 2016.

10. The review of the enduring guardianship appointment was dealt with urgently at a hearing on 4 January 2017. The Tribunal treated the application as if it were an application for guardianship and financial management orders for Mrs EHM. The Tribunal made a guardianship order for eight weeks appointing the Public Guardian to make decisions about Mrs EHM’s access to others; accommodation; travel and her passport. The Tribunal also made a financial management order committing the management of Mrs EHM’s estate to the NSW Trustee and Guardian for eight weeks.

11. These Reasons for Decision relate to the statutory reviews of the guardianship and financial management orders made on 4 January 2017 and the application to review the enduring power of attorney lodged with the Tribunal on 9 December 2016.

The hearing

12. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.] Ms OBM and Mr DFU did not participate in the hearing and the Tribunal was informed that they were in Portugal. A late document submitted by them was received by the Tribunal on 21 February 2017. The hearing was stood down while this document was copied and provided to the parties present to read.

Settlement

13. The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. There was no conflict in this matter during the hearing. It was clear from documents before the Tribunal that there has been considerable past conflict within the family which did not manifest during the hearing as a result of Ms OBM and Mr DFU not participating.

INITIAL POSITION OF THE PARTIES AND PARTICIPANTS IN THE HEARING

14. Prior to the commencement of the hearing the Tribunal asked each of the participants to outline the outcome they were seeking.

15. Mr FZM stated that he would like the Tribunal to consider ‘discharging’ all previous enduring guardianship appointments and enduring powers of attorney, and the guardianship and financial management orders made at the hearing on 4 January 2017. He believes it is in Mrs EHM’s best interest for her sons, together with their wives, and potentially her grandsons who were present at the hearing (Mr KJF and Mr MPF), to care for and make decisions for Mrs EHM. Mr FZM would like to take his mother home with him after the hearing.

16. Mr NBM submitted that he has been ‘very disappointed’ in the performance of the Public Guardian and NSW Trustee and Guardian. He would like Mr FZM and his wife to take over guardianship decisions and for him and his wife to take over financial management of his mother’s estate. He would like formal orders to be made to that effect.

17. Referring to Mr FZM and his wife, Mr MPF stated that he ‘is fine with family looking after’ his grandmother and would be happy for his uncles to be appointed as decision makers for Mrs EHM. Mr KJF agreed with his brother.

18. Ms SVM, Mrs EHM’s granddaughter, told the Tribunal that she believes that her uncles should be appointed as guardians and financial managers for Mrs EHM.

19. Ms KBT, Mrs EHM’s daughter-in-law, stated that she agrees with the views of other family members and that she does not want Mrs EHM to return to hospital at the conclusion of the hearing.

20. Ms Amanda Smith from the Office of the Public Guardian submitted that the guardianship order should remain in place and that the Public Guardian should be re-appointed because decisions need to be made about Mrs EHM’s accommodation and there continues to be conflict within the family. Ms Smith does not think there is any longer a need for travel and passport functions to be included in the order.

21. Mr Shashank Desai from the NSW Trustee and Guardian declined to offer a view.

22. The Tribunal was not able to ascertain the views of Ms OBM or Mr DFU during the hearing as they were in Portugal and informed the Tribunal that they were unable to participate by telephone. As noted above, the Tribunal received a late written submission from Ms OBM on 21 February 2017 but she does not state what she would like the outcome of the hearing to be.

23. Referring in particular to the submission of Mr FZM, the Tribunal noted that it is not able to review the enduring guardianship instrument as that application was dealt with at the hearing on 4 January 2017. There is also no application before the Tribunal to review the first enduring power of attorney made by Mrs EHM on 23 October 2014. Hence it is not possible for the Tribunal to ‘discharge’ all previous enduring guardianship and enduring powers of attorney at this time.

GUARDIANSHIP

What did the Tribunal have to decide?

24. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.

25. The questions to be considered by the Tribunal are:

• Is Mrs EHM someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

• Should the Tribunal make a further guardianship order and if so, what order should be made?

• Who should be the guardian?

• How long should the order last?

Is Mrs EHM someone for whom the Tribunal could make a further order because she has a disability which prevents her from being able to make important life decisions?

26. Section 14 of the Guardianship Act 1987 (NSW) (the Act) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she is “a person in need of a guardian”. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person” (s 3(1) of the Act). A person with a disability is a person who is:

1. intellectually, physically, psychologically, or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation (s 3(2) of the Act).

27. When the guardianship order was made on 4 January 2017, the Tribunal accepted professional evidence that Mrs EHM has a disability, Alzheimer’s disease, which prevents her from making important life decisions.

28. On 21 February 2017, the Tribunal received a letter dated 20 February 2017 from Ms Z, clinical neuropsychologist at the public hospital. Ms Z explains that for a number of reasons she has been unable to complete her assessment of Mrs EHM’s cognitive status and how this impacts on her capacity to make decisions about her discharge destination. She notes, however, that her working hypotheses based on her assessment and involvement with Mrs EHM to date include the following:

There are some problems that impact on her ability to make independent, informed decisions about discharge options;

It is likely that she will require support for her decision making or a substitute decision maker for these matters;

She appears to be susceptible to undue influence, which makes her vulnerable to exploitation;

There are multiple parties with competing opinions involved, which adds to the risk of exploitation given her susceptibility to undue influence.

29. There was no suggestion by any of the parties that Mrs EHM’s cognitive abilities have improved since the hearing. Rather, it was submitted by the participants in the hearing that her dementia has worsened.

30. During the hearing Mrs EHM had difficulty responding to questions of any complexity, even with the assistance of an interpreter with whom she was able to communicate well in Portuguese, and our observation was that this was likely to be as a result of her cognitive impairment. She did not appear to be upset or distressed during the hearing, although, not surprisingly, she became tired as the long hearing progressed.

31. After considering the evidence, we are satisfied that Mrs EHM has dementia of Alzheimer’s disease type and associated cognitive impairment that impairs her ability to make important lifestyle decisions for herself. Mrs EHM is a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order and what order should be made?

32. The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order:

1. the views (if any) of:

1. the person, and

2. the person's spouse, and

3. the person's carer and

2. the importance of preserving the person's existing family relationships, and

3. the importance of preserving the person's particular cultural and linguistic environments, and

4. the practicability of services being provided to the person without the need for the making of such an order.

33. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2). When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

34. When the guardianship order was made on 4 January 2017, the Tribunal specifically stated that the orders were being made to preserve the status quo until the further hearing of the matter on 22 February 2017. The Tribunal was told by Ms OBM and Mr DFU that there was no proposal to move Mrs EHM to Portugal before the February hearing and that the sale of Mrs EHM’s property was in abeyance.

35. Mr Shashank Desai from the NSW Trustee and Guardian informed the Tribunal that contracts for the sale of Mrs EHM’s property were exchanged on 21 December 2016, prior to the hearing on 4 January 2017 when the NSW Trustee and Guardian was appointed. Mr Desai told the Tribunal that the property was sold for $465,000 and a deposit of ten percent is being held in the solicitor’s trust account. Mr Desai stated that the contract for sale was executed by Mrs EHM.

36. The Tribunal also spoke briefly to a solicitor, who confirmed that contracts for the sale of the property were exchanged by the real estate agent involved in the sale.

37. It is clear that Ms OBM and Mr DFU have gone to Portugal, apparently on a permanent basis, although Ms OBM’s sons stated that there are plans for Ms OBM to return to Australia to visit family at the end of the year.

38. Mr FZM’s family present at the hearing expressed serious concern about Mrs EHM’s continued ‘detention’ in hospital given Mr FZM and his wife’s willingness to care for her at home. It was apparent during the hearing that Mrs EHM was very comfortable with Mr FZM and his wife and was also delighted to see her two grandsons at the hearing. Mrs EHM clearly indicated that she would like to go home with her family after the hearing and not return to hospital.

39. Ms Smith from the Office of the Public Guardian stated that she had determined that Mrs EHM should remain in hospital because her care needs are unclear and she is awaiting further assessments to be completed. Ms Smith was unable to state when such assessments would be finalised. She also raised concerns about the level of conflict within the family and the allegation made by Ms OBM about Mr FZM’s ‘outburst’ when he arrived at the property to take his mother for lunch (the lunch incident).

40. Mr FZM provided a different version of events surrounding the lunch incident and asserted that he and his wife were polite and respectful.

41. The Tribunal is unable to determine what actually took place during the lunch incident. However, events which have occurred since that date cast serious doubt on the truthfulness of the evidence given by Ms OBM and Mr DFU on 4 January 2017. It is not plausible that they did not know that contracts for the sale of Mrs EHM’s property had been exchanged prior to the last hearing. Given the open affection between Mrs EHM and the family members present at the hearing it is also not credible that Mrs EHM did not want to see them at Christmas and that her being isolated was arranged to protect her from being harassed by them. It seems highly likely that without the making of the guardianship orders on 4 January 2017 that Ms OBM would have taken her mother with her to Portugal. All of these issues cast serious doubt on the credibility of Ms OBM and her husband.

42. As previously noted, Mrs EHM was able to make only a limited contribution to the hearing as a result of her disabilities, even with the assistance of an interpreter in the Portuguese language with whom we were satisfied she was able to communicate effectively. During the hearing, Mrs EHM oscillated about whether she would like to remain in Australia or relocate to Portugal. What was very clear, however, is that she would currently like to leave hospital and stay with her family. Ms Smith told the Tribunal that she has been informed by Ms OBM that she intends to put a proposal to the Public Guardian in relation to moving her mother to Portugal. Ms Smith also stated that an Aged Care Assessment has been completed and that Mrs EHM has been assessed as requiring low-level care.

43. Apart from the disputed lunch incident allegation outlined above, and other unsubstantiated assertions made by Ms OBM that her brothers have limited concern for their mother, there is no evidence to suggest that Mrs EHM cannot be adequately cared for by Mr FZM and his wife. It was unclear to the Tribunal why the assessments of Mrs EHM’s care needs, which Ms Smith asserted are required, cannot be continued on an outpatient basis. Mr FZM and Ms KBT stated that they are very happy to facilitate this. It was apparent that Mrs EHM is ambulant and continent and there is no evidence before us to suggest that there are any behavioural issues. We can see no reason why she should not be permitted to leave hospital and stay with her family.

44. There was a discussion during the hearing about Mrs EHM’s access to her daughter if she is living with Mr FZM and his wife. They stated that they have no problem communicating with Ms OBM, and will be happy to facilitate visits between her and her mother. Mr FZM also stated that he has no problem with his mother relocating to Portugal if that is what she wants to do, provided there is an appropriate plan in place and she is not going to be simply placed in a nursing home there.

33. After considering the evidence, we are satisfied that the guardianship order in relation to Mrs EHM should be continued. Decisions remain to be made about Mrs EHM’s immediate accommodation; the possibility of her being relocated to Portugal to live with her daughter; and access of persons to and by her. We accepted Ms Smith’s recommendation that there is no current need for the guardianship order to include travel and passport matters, but we determined that there is a need for the order to include health care and medical and dental consents to ensure that there is clarity as to who has authority to make these decisions.

Who should be the guardian?

46. It was initially proposed by Mr FZM that he, his brother, and their wives should be appointed as joint guardians for their mother. There was some discussion about various ‘permutations’ of family members in Australia being appointed jointly.

47. Mr KJF and Mr MPF, Ms OBM’s sons, were supportive of the appointment of their two uncles as joint guardians.

48. Ms Smith submitted that the Public Guardian should be re-appointed because of the conflict within the family. However she did not object to a proposal suggested by the Tribunal that the functions be split such that the Public Guardian has authority in relation to the decision as to whether Mrs EHM should relocate to Portugal and her access to and by family members, and Mr NBM and Mr FZM be appointed as joint guardians in relation to the other areas of decision making. This suggestion was acceptable to all the participants in the hearing.

49. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He/she must:

1. have a personality generally compatible with the personality of the person under guardianship;

2. have no undue conflict of interest (particularly financial) with those of the person; and

3. be able and willing to exercise the functions of the order.

50. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep, and Re B [2011] NSWSC 1075, [66]).

51. In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

52. The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed (s 15(3) of the Act).

53. The Supreme Court has held that:

the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).

54. The closeness between Mrs EHM and the family members participating in the hearing was obvious. We are satisfied that each of Mr FZM and Mr NBM meets the requirements to be appointed as the private guardian for Mrs EHM in relation to the functions of her accommodation, services, health care, and consent to medical and dental treatment.

55. In relation to decisions as to whether Mrs EHM should relocate to live in Portugal and her access to and by other persons, we appoint the Public Guardian. This will ensure that the views of Mrs EHM and all family members are considered and that there is an independent decision maker about the very important decision as to whether Mrs EHM should move to Portugal. It will also ensure that there is no impediment to Ms OBM, or any other family members, having access to Mrs EHM. While we have no reason to doubt the goodwill expressed by Mr FZM and Ms KBT in relation to this, we are also very aware that even with good intentions, difficulties can arise.

How long should the order last?

56. An initial guardianship order can be made for a period of up to one year from the date on which it was made.

57. The Tribunal decided to make an order for 12 months because it is likely to take some time for these very important issues in Mrs EHM’s life to be resolved.

Effect of order on enduring guardianship appointment

58. The making of the guardianship order suspends any enduring guardianship appointments.

59. We note that if and when the guardianship order is permitted to lapse, the enduring guardianship order made on 9 November 2016 will no longer be suspended. There is no current application before the Tribunal to review that instrument and, if necessary, a further application may need to be brought.

FINANCIAL MANAGEMENT

What did the Tribunal have to decide?

60. This review was ordered by the Tribunal when it made the financial management order on 4 January 2017 in relation to Mrs EHM.

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

62. The Tribunal may revoke the financial management order only if:

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

2. it considers that it is in the best interests of Mrs EHM that the order be revoked.

63. The Tribunal may also review the appointment of the manager if it considers it appropriate to do so.

64. On reviewing the appointment of the manager, the Tribunal may either confirm or revoke the appointment. The Tribunal may revoke the appointment under review only if:

1. The appointed manager seeks the revocation; or

2. The Tribunal is satisfied that it is in the best interests of Mrs EHM that the appointment be revoked.

65. If the appointment of the manager is revoked but the financial management order remains in place, the Tribunal must appoint a substitute manager.

Should the order be revoked because Mrs EHM has regained the capacity to manage her own affairs or because it is in her best interests that the order be revoked?

66. When the Tribunal made the financial management order on 4 January 2017, it was satisfied that Mrs EHM was unable to understand the more complex issues relating to the sale of her house; how she would financially contribute to any acquisition of property in Portugal; or fund her living expenses in that country.

67. There was no evidence before us to suggest that Mrs EHM has regained the capacity to manage her own affairs. She was able to make only a limited contribution to the hearing and was unable to answer questions such as how the sale of her property might impact her pension entitlement.

68. As previously noted, contracts for the sale of Mrs EHM’s property were exchanged prior to the appointment of the NSW Trustee and Guardian on 4 January 2017. Mr Desai told the Tribunal that the property was placed on the market by Ms OBM. After their appointment as financial manager, the NSW Trustee and Guardian contacted the purchaser’s solicitor to seek to have the contract rescinded but the purchaser refused. Settlement of the property was delayed but after consideration, the NSW Trustee and Guardian decided to permit the sale to proceed to avoid the risk of Mrs EHM incurring financial penalties. Mr Desai is satisfied that the property was sold for an appropriate market price.

69. Mr Desai suggested that the Tribunal speak to Mr Z, who he stated was the vendor’s solicitor, about the consequences of the sale not proceeding. The Tribunal telephoned Mr Z who stated that if the sale did not proceed legal action would most likely be taken for an order for specific performance. It became apparent that Mr Z was in fact the solicitor for the purchaser and the Tribunal terminated the call. Mr Desai was very apologetic. Although the incident was unfortunate, we do not consider any detriment was caused to Mrs EHM.

70. The Tribunal then attempted to contact Mr Anthony Williamson, the vendor’s solicitor, but he was unavailable. Mr Peter Robinson from Williamson Isabella tried to assist the Tribunal, despite not being familiar with the matter. He also stated that if the sale of Mrs EHM’s property did not proceed it was possible that the purchaser would take steps to seek specific performance of the contract.

71. Ms Smith drew the Tribunal’s attention to Ms OBM’s assertion in her written submission that her brothers had agreed to the sale of their mother’s property. The issue in dispute does not appear to be the sale of Mrs EHM’s property per se, but the timing of the sale and the possibility that the proceeds may have been removed from Australia without clarity as to how they were to be spent.

72. There was a discussion about a caveat that had been placed on the property by Mr NBM utilising the enduring power of attorney executed by Mrs EHM on 23 October 2014 which appointed Mr NBM and Ms OBM as joint attorneys. It is curious that Mr NBM was able to place the caveat without the agreement of his sister as joint attorney, but it appears that his motivation was to protect his mother and ensure that the property was not sold without the knowledge of other family members.

73. Mr Desai noted that a caveat was also placed on the property by the NSW Trustee and Guardian and that the earlier caveat was identified when they conducted a search with Land and Property Information.

74. Mr NBM opined that given that contracts have been exchanged, it would appear now to be in his mother’s best interest for the sale to be completed in order to protect her from financial penalties.

75. Concerns were raised about Mrs EHM’s savings and the possible dissipation of funds. Mrs EHM told the Tribunal that she has always banked with IMB Bank. Accordingly, it should be relatively easy for past bank records to be obtained to determine if and when there have been any substantial and unexplained withdrawals from Mrs EHM’s accounts.

76. Of concern to the Tribunal also was the lack of apparent consideration by her daughter of the impact of the sale of Mrs EHM’s property on her entitlement to a pension with Centrelink.

77. After considering the evidence we are in no doubt that it is not in Mrs EHM’s best interest for the financial management order to be revoked. The sale of her property needs to be concluded; the proceeds of the sale will need to be invested for her benefit; discussions will need to be undertaken with Centrelink; and investigations into the alleged dissipation of her savings need to be undertaken.

Should the NSW Trustee and Guardian be replaced as financial manager?

78. In appointing a financial manager, as in making all other orders under the Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Act.

79. Section 25M of the 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.

80. In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court’s broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.

81. On the side of the then Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise, and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage.

82. The advantages of the appointment of a family member were more economic management of smaller estates (that is, freedom from fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers.

83. The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be “more apparent than real”, should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision maker must be satisfied that the estate, income, and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family.

84. It was submitted by a number of the participants in the hearing that the NSW Trustee and Guardian should be replaced as financial manager by family members, specifically Mr NBM and his wife jointly. This was proposed to effectively divide the responsibilities between family members in Australia, with Mr FZM and his wife providing Mrs EHM with care and accommodation and Mr NBM and his wife managing her financial affairs. The Tribunal noted that it would not consider appointing Mr NBM’s wife as she had not participated in the proceedings and the Tribunal was therefore unable to consider her suitability.

85. It is noted that when she made the first enduring power of attorney on 23 October 2014, at a time when there is no allegation she did not have the required capacity to grant the power, Mrs EHM appointed Ms OBM and Mr NBM jointly as her attorneys. Ms OBM is currently out of the jurisdiction. Mr NBM is willing to act as his mother’s financial manager and it is of relevance that his mother co-appointed him in 2014. Mr NBM stated that he welcomed the required oversight of private managers by the NSW Trustee and Guardian, which the Tribunal noted assists in protecting such managers from allegations of mismanagement.

86. In response to questions from the Tribunal, Mr NBM disclosed that he was bankrupt as a teenager, but that this was discharged approximately 30 years ago. He runs his own business as an electrical contractor, for which his wife manages the accounts. He has never been convicted of any criminal offence and there is no intermingling of his finances with those of his mother. He stated that his mother has in the past loaned him money which he has always repaid. Most recently he borrowed $2,500 from her approximately 12 years ago.

87. We noted that the sale of Mrs EHM’s property is in the final stages of settlement and were concerned that transferring the management of her affairs at this time to a financial manager or managers may cause further delays. Before a private financial manager is able to act, they are required to submit a plan for approval to the NSW Trustee and Guardian and obtain the requisite authorities and directions to which any such order is subject. This would involve the matter being transferred to a different section within the NSW Trustee and Guardian Office and being assigned to a new case officer. All of this is likely to take some considerable period of time and we decided that it is not in Mrs EHM’s best interest for the management of her estate to be transferred to a private manager until after the sale of her property is finalised to avoid the possibility of her incurring any penalties as a result of failing to settle the property in accordance with the requirement of the contract, which we note is already overdue.

88. We are therefore satisfied that the estate of Mrs EHM should remain committed to the NSW Trustee and Guardian at this time.

89. This will enable the NSW Trustee and Guardian to finalise the sale of Mrs EHM’s property and also to investigate her bank accounts with IMB to see whether there have been any unusual or unexplained withdrawals over the past 18 months. We consider that the NSW Trustee and Guardian is better placed to undertake these investigations than a private financial manager.

Should a reviewable financial management order be made?

90. The Tribunal may determine that a financial management order should be reviewed within a specified time. In this matter, the Tribunal determined that the appointment of the financial manager should be further reviewed on 27 April 2017, by which time it is anticipated the sale of Mrs EHM’s property will have been finalised and further consideration can be given to the management of her affairs being given to a family member or members.

91. We note that if Mr NBM’s wife wishes to be considered for joint appointment as financial manager with her husband at the next hearing of this matter, she will need to participate in the proceedings.

REVIEW OF ENDURING POWER OF ATTORNEY

What did the Tribunal have to consider?

92. The Tribunal may, on the application of an interested person, decide to review the making or the operation and effect of a reviewable power of attorney, or not to carry out such a review (Powers of Attorney Act, s 36(1)). As a consequence of reviewing the making or operation and effect of a reviewable power of attorney, the Tribunal may decide whether or not to make an order under s 36 of the Powers of Attorney Act (s 36(2)).

93. Given the decision to continue the financial management order which suspends all enduring powers of attorney made by Mrs EHM, we did not consider it to be necessary to review the making or the operation and effect of the power of attorney made by Mrs EHM on 9 November 2016 as requested by the applicants.

94. We note that the decision not to review the enduring power of attorney should not be taken as construing that the Tribunal has formed any view about the making, or operation and effect, of that instrument. As noted in the Reasons for Decision of the Tribunal in relation to the hearing on 4 January 2017, the medical evidence raises questions as to Mrs EHM’s capacity in November 2016 to execute the enduring guardianship instrument and enduring power of attorney in favour or Ms OBM and Mr DFU. If at any time there is a perceived need (because, for example, it is proposed that the financial management order be revoked) a further application to review the enduring power of attorney can be made to the Tribunal.

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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: 28 March 2017