ETB

[2020] NSWCATGD 48

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ETB [2020] NSWCATGD 48

Hearing dates:

1 September 2020

Date of orders:

2 September 2020

Decision date:

02 September 2020

Jurisdiction:

Guardianship Division

Before:

J S Currie, Senior Member (Legal)

Decision:

The financial management order made on 30 January 2018 is revoked from 2 September 2020. The person appointed as manager of the estate is to pay over or hand over the estate to ETB.

Catchwords:

FINANCIAL MANAGEMENT – requested review of financial management order - whether it is in the best interests of the subject person that the financial management order be revoked – informal support to manage estate provided by family – subject person now, on balance, more likely to accept informal support – subject person should be encouraged to live a normal life in the community and be self-reliant – revocation of financial management order consistent with subject person’s best interests – order revoked.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 4, 4(a), 25P(1)-(2)

NSW Trustee and Guardian Act 2005 (NSW), s 39(a)

Cases Cited:

CJ v AKJ [2015] NSWSC 498

G v G [2016] NSWSC 511

GW v Protective Commissioner & Ors [2003] NSW ADTAP 51

H v H [2015] NSW SC 837

Holt v Protective Commissioner (1993) 31 NSWLR 227

M v M [1981] 2 NSWLR 334

McD v McD (1983) 3 NSWLR 81

P v NSW Trustee and Guardian [2015] NSWSC 579

Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106

Texts Cited:

Nil

Category:

Principal judgment

Parties:

002: Review or Revoke Financial Management Order

ETB (protected person, applicant)
SZB (appointed financial manager)
EYH (spouse)
NSW Trustee and Guardian (statutory party)

Representation:

Nil

File Number(s):

NCAT 2018/00003394

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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

APPLICATION TO REVIEW OR REVOKE FINANCIAL MANAGEMENT ORDER

Background

1. ETB, aged 64 years, has applied to the Tribunal seeking the revocation of a financial management order made for him on 19 November 2018. Under that order ETB’s son SZB was appointed as his financial manager, subject to the authority and direction of NSW Trustee and Guardian (“NSW Trustee”).

2. At the hearing at which that order was made, the Tribunal accepted expert evidence that ETB had a mixed mood state characterised by mania with a history of visual hallucinations, erratic behaviours and probable comorbid cannabis dependence, with the likelihood of a depressive disorder.

3. ETB has a wife EYH, who presently lives separately from him. They both live on the north coast of New South Wales. ETB’s two sons are SZB, who is a Solicitor practising and living in Sydney and Mr Z, who lives on the north coast of New South Wales.

4. Under ETB’s current application he seeks the revocation of the financial management order on the ground that he has regained the capability to manage his own affairs.

5. The purpose of these proceedings at Sydney was to conduct a hearing of ETB’s application. I sat as a single member and the hearing was conducted by telephone.

6. I had to decide whether or not to revoke ETB’s financial management order, either on the basis sought by ETB; that is, that he had regained the capability of managing his own affairs, or on the basis that, whether or not he had regained that capability, it would be in his best interests for the order to be revoked.

7. I decided that I would not make a finding that ETB had regained the capability to manage his own affairs, but that I would revoke the financial management order on the ground it was in ETB’s best interests that the order is revoked.

8. These are my reasons for those decisions.

Parties and participants and statutory provisions

9. Appendix A to these Reasons identifies the parties to the application and the participants in the hearing. [Appendix removed for publication.] Appendix B sets out the text of the principal statutory provisions referred to in the Reasons. [Appendix removed for publication].

Issues for determination

10. Under s 25P(1) of the Guardianship Act 1987 (NSW) when the Tribunal reviews a financial management order response to an application such as one which ETB has made, it must vary, revoke or confirm the order. Under s 25P(2) of that Act, it may revoke the order only if:

1. it is satisfied that the protected person is capable of managing his or her affairs. (that ground often being referred to as the “regained capability” ground); or

2. it considers that it is in the best interests of the protected person that the order be revoked, even though the Tribunal is not satisfied that the protected person is capable of managing his or her own affairs. That is often referred to as the “best interests” ground.

11. At the commencement of this hearing I explained to ETB that both these grounds were available and that I proposed to consider them both. There was no objection to that. Accordingly, the issues which had to be decided by me were:

1. Is ETB now capable of managing his affairs?

2. Would it be in his best interests for the existing financial management order to be revoked?

3. If there are insufficient grounds to revoke the existing order, should it be confirmed or should any variations be made to it?

The evidence and the views of the parties

The expert evidence on which the financial management order was based

12. It is useful to commence by summarising the medical evidence which was available to the Tribunal as constituted on 30 January 2018, on the basis of which it made the financial management order for ETB.

13. On that occasion the Tribunal accepted the evidence of Dr Y, Psychiatrist, who is the Clinic Director of a community mental health service in regional NSW. Dr Y reported that ETB had a history of mental illness and previous admission to psychiatric units. He recounted that ETB was brought to a public hospital in regional NSW by police on 30 December 2017 and that as at the date of Dr Y’s report in January 2018 he presented with a mixed mood state characterised by mania with a history of visual hallucinations, dangerous erratic behaviours and probable comorbid cannabis dependence. In Dr Y’s opinion there had been a significant decline in ETB’s physical health over the last three months and a concerning deterioration in his psychosocial functioning.

14. The Tribunal on that occasion also accepted the reports from Dr X, Psychiatrist dated 22 May 2017 and Dr W, Psychiatrist dated 14 April 2017 and found on the basis of those reports that ETB had experienced difficulties with his mental health over a number of years and at the time of their assessments was likely suffering from a depressive disorder.

15. ETB’s son, SZB, related to the Tribunal on 30 June 2018 certain of his father’s actions which were consistent with those medical opinions; in particular that ETB had engaged in erratic spending such as dissipating his savings of $167,000 in less than three months, purchasing an additional tractor for his rural property for $47,000 and spending between $25,000 and $50,000 on a collection of exotic birds which he had not cared for. He had also continued to drive an unregistered vehicle and had stated that he would not pay any more utility bills and would “rip up bills when they arrive”. (Reasons for Decision, 30 January 2018 at [13]-[18]).

Current medical expert evidence provided by ETB

16. In support of his current application for revocation ETB provided two reports from his general practitioner Dr V, dated respectively 6 February 2020 and 2 March 2020 and an email to Dr V from Ms U, Senior Social Worker at another public hospital in regional NSW.

17. Ms U’s email is of little direct relevance to the current issues. She merely confirms that she had had no contact with ETB for approximately one year. She forwarded the text of her Progress Notes made on 25 February 2019, but, as might be expected, they provide no opinion as to ETB’s then current capability or cognitive ability.

18. Dr V’s first report dated 6 February 2020 notes that ETB:

“.. is insightful some memory issues, but he seems very capable of making decisions about his own financial future and needs as a property/farm owner. He is very concerned about his son’s financial management… and would like to challenge the (financial management order)”

19. Dr V sets out in column form ETB’s history, the only relevant items in which appeared to be reported post-traumatic stress disorder and mood disorder in 1992, a manic response to dexamphetamine, home invasion in 1992 and assaults through ETB’s work in courts and narcotic dependence in 2013 reported to have continued for 10 years. Dr V reported however that ETB had abstained from taking narcotics for at least two years.

20. Dr V’s second report dated 2 March 2020 is addressed to “the Guardianship Tribunal”. It confirms that Dr V has known ETB as a regular patient since February 2018 and that he has had “significant medical challenges” in the past two years including the need for a “CABG” (which I understand to mean a coronary artery bypass graft). The report concludes by repeating the observations quoted at [18] above.

21. That appears to be the totality of supporting expert evidence provided by ETB.

Assessment of Dr V’s evidence

22. I am unable to give substantial weight to Dr V’s reports. In saying that, of course I mean no professional disrespect to Dr V, who appears to have only limited access to ETB’s medical and mental health history and who has demonstrated an admirable wish to support her patient’s current application to this Tribunal.

23. Unfortunately, the manner in which she has expressed that support diminishes the value of her evidence. For example, her letter to Ms U of 6 February 2020 adopts a tone of advocacy rather than one of dispassionate professional observation and opinion. That must reduce the evidentiary value which can properly be given to what she says and the weight which I should give to it. In that letter, Dr V states:

“Apparently the guardianship tribunal got involved in 2018 and gave financial guardianship control to his son [SZB] on the basis of him being scheduled at the time…”

“.. He seems very capable of making decisions about his own financial future…He is very concerned about his son’s financial management of his dwindling funds and would like to challenge at this time the guardianship tribunal arrangement.”

24. Dr V continues this tone of advocacy in the concluding paragraph of her report with what appears to be a request to Ms U for forensic assistance:

“Could you please collect evidence for his claim and help him challenge that ruling?” (Emphasis added).

25. Apart from her error in ascribing the Tribunal’s decision at its 30 January 2018 hearing to ETB “being scheduled”, Dr V’s presentation of ETB’s medical and mental health history is inconsistent with the evidence presented to and accepted by the Tribunal at that hearing. I appreciate that Dr V had not seen the Tribunal’s reasons for decision of 30 January 2018 and that it may not have been possible for her to have obtained them or ETB’s full history before she prepared these current reports. But her observations and conclusions nevertheless are of reduced persuasive value by reason of that error as to the Tribunal’s reasons and the unexplained inconsistency between her view and the Tribunal’s findings.

26. Dr V’s conclusion that ETB “seems very capable of making decisions about his financial future and needs” is not stated to be (and appears not to be) based on or consistent with any independent clinical neuropsychological or other appropriate professional cognitive assessment of ETB, but to be based solely on her impressions. Unfortunately, ETB provides no indication as to the means by which she gained her impressions or as to how her conclusions were reached.

27. For those reasons, on any proper assessment by the Tribunal as to whether ETB has regained the capability to manage his own affairs, only minimal weight can be given to Dr V’s observations and conclusions.

ETB’s estate

28. The hearing report provided by NSW Trustee was received on 17 August 2020 but the financial summary in it appears to have been for an accounting period ending on 29 January 2020. Information in that report, when considered in conjunction with the letter from the private manager SZB dated 6 January 2020 indicates that ETB’s estate is a substantial and somewhat complex one. I was not given any updated information as to any major dispositions of the estate since those reporting dates.

29. On that basis, ETB’s assets appear to comprise:

1. three rural properties with a total value of approximately $1.3 million;

2. a superannuation fund with a balance of approximately $136,000 with a potential Total and Permanent Disablement insurance payment of approximately $12,000 (subject to medical examination);

3. two trucks (a cattle truck and a removal struck), four passenger motor vehicles, and five tractors;

4. livestock comprising Brahmin cattle;

5. vendor finance stated at $52,400; and

6. bank balances with a commercial bank, which are stated by NSW Trustee to be, as at January 2020, a little under $1000.

30. NSW Trustee reports the estate’s liabilities to comprise a debt to the commercial bank of $70,000.

31. It is apparent that, as SZB stated in his letter to his father of 6 January 2020:

“Medium/long-term planning is needed including to reduce costs, increase income and satisfy eligibility for the age pension in 4-7 years’ time.”

ETB’s case and his views

32. As stated in his application, ETB’s own case for the revocation of his financial management order is that he has:

“.. recovered from an episode of illness (mood disorder) and is capable of managing his own financial affairs, as supported by the documents of GP and Social Worker.”

33. At the hearing, I invited ETB to address me as to the nature of his estate and the reasons for which he believed the financial management order should be revoked.

34. In response, ETB:

1. stated a firm view that there was no need for him to be reviewed by any medical professional including for the purpose of assessment of his current cognitive ability and appeared to rely on his professional qualifications and experience as a clinical psychologist for his assertion that he had regained the capability to manage his own affairs;

2. confirmed his belief that the previous order had been based on a temporary mental illness, which in turn was caused by his reaction to methamphetamine and that there should be no need for him to establish his recovery when, in his view, he does not have a mental illness;

3. provided a reasonably detailed description of his estate and his plans for the next few years. For example ETB indicated an appreciation of the fact that his need for a pension would need to be balanced against the benefit he might gain from continuing to hold his rural properties and that real estate is still the most valuable investment;

4. insisted that he was a frugal person and had never been in debt, except under a properly arranged mortgage. He said he has no plans for major purchases.

35. I explored in more detail with ETB the issue of whether he was prepared to seek the assistance of family members in undertaking the management of his financial affairs and some aspects of financial planning. He initially indicated only that he would consult his wife.

36. I had previously asked SZB to attempt to assess the likelihood that his father would continue to seek his advice and consult him and his brother about financial matters. SZB had indicated that there was “about a 10% chance of that”. When I put that to ETB he responded that he hoped that his family members would be “fairly available to help with any financial decisions”. ETB subsequently acknowledged his reliance upon his son SZB for financial advice and appeared to acknowledge that further consideration should be given to obtaining appropriate independent financial management advice.

The views of EYH (wife)

37. EYH was of the view that ETB’s financial management order should be revoked because he was capable of managing his own affairs. She confirmed that she saw her husband every day, subject to her present short respite break from that pattern. In EYH’s views ETB could be relied upon to plan appropriately for his retirement.

38. I asked EYH whether it was likely that ETB would seek assistance including independent advice about management of his affairs, she responded that they had discussed this and that he was at least “open to it”.

The views of SZB (appointed financial manager and son)

39. ETB’s son SZB provided detailed written submissions concerning the extent of his father’s estate and the steps he has taken in managing it. It is evident from the course of his correspondence with his father, some of which has been provided to the Tribunal, that he has shown considerable diligence and care in undertaking his functions as private manager, in seeking to assist his father (including with appropriate advice and encouragement to make his own decisions) and in explaining his actions and his views to his father.

40. The NSW Trustee report stated that as private manager SZB has complied with the Trustee’s requirements “partially”. However, following further discussion, it appeared that the only area of incomplete or only “partial” compliance is non-payment of premiums for property insurance relating to the rural properties. At the hearing I heard from ETB and SZB on this.

41. Their explanation of this matter, which was not challenged or controverted by the representative of the NSW Trustee, was that there was no lack of oversight involved in the non-payment of the premiums, but rather a specific decision had been made not to pay approximately $8000 in premiums for insurance cover of working structures (such as sheds) on the rural properties and that payment of the premiums had been deferred pending resolution of the New South Wales bushfire situation. In SZB’s view it was not, in all the circumstances, worth paying such a substantial premium merely to cover every shed and structure on the relevant property.

42. I accepted that uncontroverted account of the matter as reflecting an available and logical business decision in the circumstances and as not constituting an oversight by private manager or a matter which should reflect on SZB’s performance of his duties as financial manager.

43. I asked SZB whether he supported the proposition that his father had regained the capability to make prudent and sensible decisions about his financial affairs. I understood his response to be that he remained concerned about his father’s capability but neither supported nor opposed the revocation of the financial management order

The views of the NSW Trustee

44. NSW Trustee provided valuable assistance in the form of information about the estate but, as is usual, did not express a view as to whether or not the financial management order should be revoked.

Regained capability

The legal principles and authorities

45. The Supreme Court of New South Wales has provided guidance in several decisions as to how the Tribunal should assess a person’s capability to manage his or her affairs.

46. In earlier cases the Court had based its test predominantly on the ability of the subject person to conduct the ordinary everyday affairs of people. It was said that if by reason of a failure to do this there would be a real risk that they would be disadvantaged or that their money or assets would be at risk of dissipation, then they would properly be treated as being incapable of managing their affairs.

47. However, that approach has been revised in more recent cases in which it has been emphasised that the Tribunal should not be relying just on hypothetical notions such as “the ordinary affairs of people” but rather should focus on the capability of the particular person to deal with his or her actual assets and to do what he or she is proposing to do with them.

45. In two cases in 2015, His Honour Justice Lindsay of the Supreme Court of NSW set out his preferred approach to this issue. In CJ v AKJ [2015] NSWSC 498 and P v NSW Trustee and Guardian [2015] NSWSC 579 at [307] His Honour:

1. noted that the concept of a person being incapable of managing his or her own affairs remains “a freestanding idea: governed, in context, by the purposive character of the jurisdiction to be exercised”;

2. suggested that the real question is whether the person under consideration is reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a manager who is charged with the duty to protect his or her welfare and interests; and

3. the focus should be on whether the person is able to deal with (make and implement 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.

49. His Honour went on to say that in considering whether a person is “able” in this sense, the Court or Tribunal may give attention 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 judgments about his or her welfare and interests.

50. The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of hearing but the reasonably foreseeable future: McD v McD (1983) 3 NSWLR 81, [86]; Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106 at [20].

51. Disability in the guardianship sense is not an element of the test for incapability for the purposes of considering a financial management application: GW v Protective Commissioner & Ors [2003] NSW ADTAP 51.

CONSIDERATION: REGAINED CAPABILITY

52. Ultimately, I decided that I should make no finding that ETB had regained the capability of managing his own affairs. I did so for the following reasons:

1. For the reasons discussed in greater detail at [22] to [27] above only minimal weight could be given to the evidence of Dr V and there was nothing in the brief email from Ms U to persuade me that ETB was now capable of managing his affairs in the sense described in the cases cited in the previous section. That was, of course, the totality of the expert evidence in support of this ground for revocation.

2. Against that was the clear finding of the Tribunal on 30 January 2018, based on substantial expert reports, including those from Dr Y, Dr X and Dr W, Psychiatrists, which I have referred to in more detail above at [13] and [14]. The Tribunal on that occasion accepted the diagnosis of mixed mood state characterised by mania, with a history of visual hallucinations, dangerous erratic behaviours and probable comorbid cannabis dependence and, in the opinion of Dr X and Dr W, depressive disorder.

3. There is no expert evidence before me to the effect that ETB has recovered from those disabilities. There is Dr V’s observation that ETB is now “very capable of making decisions about his financial future”, but, as discussed at [22] to [27] above, I give only minimal weight to that apparently unsupported and clinically untested observation, which is contrary to the specialist reports and diagnoses accepted by the Tribunal in 2018.

4. I am not persuaded that ETB is seeking or is likely to seek further assessment and treatment. In his written submission of 30 June 2020 (at page 3), SZB confirmed that his father:

“consistently denies mental health issues and declines mental health consultation…”

5. Moreover, it is clear from the course of correspondence between SZB and his father, in particular the letter of 18 February 2020, that both as a son and as financial manager, SZB has on several occasions strongly counselled his father to seek “all available medical assistance and intervention”, “to consult with medical practitioners in relation to the non-physical issues you are experiencing”. Additionally, in the letter between them dated 24 February 2020, SZB urged his father again to obtain medical assessment and consultation. He observed (at page 1):

“We cannot do this for you, we can only urge you to obtain medical assistance to work through the existing issues you are experiencing.”

6. There was nothing before me to indicate that ETB acknowledged or followed this sensible and appropriate advice from his son and financial manager.

7. It is the case that in his discussion with me, ETB was able to provide a reasonable description of his major assets and some plans for the future. But nothing was produced or said which was sufficient to persuade me that:

1. the mental health disabilities and issues identified at the previous hearing had been fully resolved,

2. ETB has substantially acknowledged them or is likely to seek professional advice and assistance for them; or

3. even if those disabilities and issues were not currently apparent (which was not conclusively established), if they did recur, they would be so benign as to justify a conclusion that ETB could be relied upon to manage his own affairs.

53. It followed that the financial management order would not be revoked on the “regained capability” ground.

CONSIDERATION: BEST INTERESTS

The protective element and the “welfare” principle

54. Many contemporary Supreme Court judgments in this area have emphasised that in considering whether a financial management should be made or should be maintained on review, the Tribunal is exercising protective jurisdiction.

55. In H v H [2015] NSW SC 837 at [29] and [33]-[34] Justice Lindsay spoke of the jurisdiction as being “purposive and protective” in nature and being historically derived from that exercised by the Lord Chancellor in England. Significantly, His Honour noted that most important of the statutory general principles is consistent with the pre-eminence of that protective element. He referred to the “welfare principle” embodied in s 39(a) of the NSW Trustee and Guardian Act 2005 (NSW) and in s 4(a) of the Guardianship Act to the effect that the welfare and interests of the subject person should be given paramount consideration.

56. In G v G [2016] NSWSC 511 at [10], Justice Lindsay emphasised that in considering what order should be made a tribunal must be mindful of the protective purpose of the jurisdiction; and in light of that protective purpose, of the need to ensure that whatever is done, or not done, by the tribunal is in the interests and for the benefit of the person under consideration as a person in need of protection. In support of those observations His Honour cited cases including Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D-F and 241-242A and M v M [1981] 2 NSWLR 334 at 336A-338D.

57. Clearly, in determining whether it would be in ETB’s best interests for the order to be revoked, I must give due consideration to the protective nature of the Tribunal’s jurisdiction and to the related welfare principle.

Family support

58. I was satisfied on the basis of the written submissions provided by SZB and by my discussions with him and with ETB’s wife EYH that they and ETB’s other son Mr Z would, despite past differences and embarrassments, be willing to provide support and encouragement for ETB in relation to the management of his financial affairs.

59. But that of course is only one side of the coin. Would ETB accept such assistance? Ultimately I was satisfied that he is now more likely than not to do so.

60. I was satisfied that ETB now appreciates the value of this family support and, to put it at its lowest, is now reasonably likely to accept at least some advice as to his future treatment and medical attention and, more pertinently the purposes of the present application, the management of his money, property and affairs generally.

61. I was also satisfied that in these circumstances a revocation of the financial management order was justified by consideration of the principles set out in s 4 of the Guardianship Act.

62. In particular I was satisfied that revocation would most likely not adversely affect ETB’s family relationships, that it would encourage him, so far as possible, to live a normal life in the community and to be self-reliant in matters relating to his financial affairs, that it would be consistent with minimising any restriction of his freedom of action and decision and that, as a paramount consideration, it would be consistent with his welfare and interests.

63. On that basis I found that it would be in the best interests of ETB for the financial management order to be revoked.

64. I ordered accordingly.

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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: 06 May 2021