EZL

[2020] NSWCATGD 31

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EZL [2020] NSWCATGD 31

Hearing dates:

14 February 2020

Date of orders:

14 February 2020

Decision date:

14 February 2020

Jurisdiction:

Guardianship Division

Before:

B M Shipp, Senior Member (Legal)
F Duffy, Senior Member (Professional)
A D Wannan, General Member (Community)

Decision:

1. The estate of EZL is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. NAL of [Address removed for publication.] is appointed as the financial manager of the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.

3. This order be reviewed by the Tribunal within 12 months.

Catchwords:

FINANCIAL MANAGEMENT - application for a financial management order - subject person has significant global impairment and poor insight into their own needs – subject person requires 24 hour nursing care – subject person not capable of managing their own affairs – subject person in arrears with care fees – means of payment not accessible due to lack of authority – need for someone with legal authority to attend to expenses and outstanding debts – private person suitable to be appointed as financial manager – private financial manager appointed – order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 4, 25M

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Financial Management Application

EZL (the person)
NAL (applicant)
NSW Trustee and Guardian
OBL (spouse)

Representation:

Nil

File Number(s):

NCAT 2019/00366771

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

What the Tribunal decided

1. The Tribunal made a financial management order appointing NAL as EZL’s financial manager. The Tribunal directed that this order be reviewed in 12 months.

Background

2. EZL is a 69-year-old man who had a transient ischaemic attack causing ongoing cognitive impairment. He also has a history of hydrocephalus, seizures, Type 2 diabetes, ischaemic heart disease and chronic lower back pain.

3. EZL was hospitalised following a fall in May 2019. He remained in a public hospital until late June 2019 when he was discharged to an aged care facility at Southwest Sydney. They have three sons – NAL, JL and BL. Prior to his fall, EZL was living with his wife OBL and son JL in their jointly owned home in Southwest Sydney.

4. In November 2019, NAL applied for the appointment of a financial manager. This was mainly due to being unable to access funds in EZL’s account to pay for his care needs, leading to some fee arrears. NAL also suggested there was a need to sell his father’s limited assets to pay his bills.

The hearing

5. At the end of these Reasons for Decision are lists of the parties to the application. [Appendix removed for publication.]

6. EZL and his wife and their two sons attended the hearing. There was no dispute between them.

What did the Tribunal have to decide?

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

• Is EZL incapable of managing his affairs?

• Is there a need for another person to manage EZL’s affairs and is it in his best interests for a financial management order to be made?

• If so, who should be appointed financial manager?

Reason for the Application

8. The applicant suggested his father was unable to manage his financial affairs, even before his stroke. Past examples included leaving his money in the automatic teller machine when he tried to withdraw funds and not paying his bills on time.

9. NAL believes that an order is required because his father has funds in the bank, but he is not sure that he can access it to pay his fees and other bills. Most of the bills and services are in EZL’s name. NAL is unable to speak to the service providers due to lack of authority. EZL also has an old unregistered car in his name, located in the front yard of his mother’s home, that the family would like to sell.

10. NAL also provided the following information:

1. EZL and his wife’s pensions are now separate, but they have a joint bank account.

2. They had tried to set up direct debits from his account but there would be too much being deducted including electricity, gas, phone, rates and insurance.

3. EZL has no superannuation.

4. Due to lack of authority given to other family members, EZL has had to sign all documents, including the resident’s contract. He lacks the capacity to properly understand legal documents so this is not appropriate.

5. EZL is a fully supported resident, currently liable to pay about $1500 per month in care fees. These fees are currently about $12,000 in arrears. NAL is not a signatory to his father’s pension account and has no online access to this account.

6. It would be easier if the household bills were changed into OBL’s name.

7. No-one is currently recognised as EZL’s Centrelink nominee.

Other Evidence

11. The Tribunal was provided with a report from Dr Z, Clinical Neuropsychologist, dated 2 September 2019. EZL was referred to her for assessment of his capacity to manage his financial affairs. On the basis of collateral history and interviews with EZL and NAL, Dr Z provides the following opinion. EZL has a complex medical history and significant complex care needs. He requires 24/7 nursing care. He has significant global impairment, poor insight into his cognitive difficulties and physical care needs and poor understanding of his living and financial situations. He does not have the capacity to make decisions as to the management of his finances and lifestyle, and is at risk of financial exploitation and misadventure. After communicating this to him, EZL told Dr Z that he was open to receiving assistance from his family members. He would like his son NAL to be appointed, but was also happy for his other sons to be involved.

12. I note that EZL attended the hearing but was totally unable to participate in the hearing, consistent with the information set out in the report and the views of the family.

Is EZL incapable of managing his affairs?

13. The leading cases say that in determining whether a person is or is not capable of managing his or her financial affairs, it is necessary to focus attention on the personal circumstances of that person, and the ability of that person to undertake the particular tasks which their circumstances require. The questions to be considered are:

1. Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a protected estate manager charged with a duty to protect his or her welfare and interests?

2. Is the person 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 can be relied upon to make sound judgements about his or her welfare and interests.

14. Whether a person is or is not “capable of managing his or her own affairs” will usually depend upon whether:

1. he or she is reasonably able to determine what is in his or her best interests, and to protect his or her own welfare and interests, in a normal, self-reliant way without the intervention of a protected estate manager; and/or

2. he or she is in need of protection from neglect, abuse or exploitation

15. The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future.

16. We were satisfied on the evidence that EZL is not reasonably able to protect his own welfare and interest with regards to his financial affairs, cannot reasonably manage those affairs, and would be at risk of exploitation without the appointment of a financial manager. He is therefore a person for whom a financial manager can be appointed.

Is there a need for a financial management order? Is it in EZL’s best interest that a financial management order be made?

17. No-one has legal access to EZL’s funds. He has outstanding debts, and has accounts in his name about which no-one can communicate. EZL is also a joint owner of his former home, where his wife still resides, and is therefore legally liable for a share of the expenses.

18. There is a clear need to provide someone with the legal authority to attend to these matters on his behalf.

19. There is no Power of Attorney or other authority allowing another person to act on his behalf. It is therefore in his best interests to appoint a financial manager.

Who should be appointed as financial manager?

20. 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 principles set out in s 4 of the Guardianship Act.

21. 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.

22. NAL proposed himself as EZL’s financial manager. We informed him about the accountability responsibilities to the NSW Trustee and Guardian, and he was willing and confident of his ability to comply. He also told the Tribunal that he had never been declared bankrupt or convicted of any offences of dishonesty. There is no intermingling of his financial affairs with that of EZL which might cause any conflict of interest.

23. NAL’s mother and brothers indicated their support for the appointment of NAL as EZL’s financial manager.

24. The Tribunal was satisfied that NAL is a suitable person to be appointed as financial manager for EZL subject to the authorities and directions of the NSW Trustee and Guardian. He clearly had a good understanding of his father’s affairs, and demonstrated a clear focus on his father’s welfare.

Reviewable Order

25. We decided to review the order in 12 months on the basis that it may be in EZL’s best interests to revoke the order at the end of that time, assuming NAL is able to use his authority to undertake all the necessary tasks within this period.

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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: 08 December 2020