FGS

[2014] NSWCATGD 30

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	FGS [2014] NSWCATGD 30
Hearing dates:	22 August 2014
Decision date:	22 August 2014
Jurisdiction:	Guardianship Division
Before:	Anderson J, Senior Member (Legal) Wortley J, Senior Member (Professional) Manns L, General Member (Community)
Decision:	Financial management application dismissed.
Catchwords:	FINANCIAL MANAGEMENT - application for financial management order - outstanding fees owed to facility - no assets in Australia - no practical utility - no need for an order.
Legislation Cited:	Guardianship Act 1987 (NSW)
Cases Cited:	Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Category:	Principal judgment
Parties:	Mrs FGS (subject person) MR TJH (substitute applicant) Ms NSM (carer) The NSW Trustee and Guardian
File Number(s):	56521
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 dismissed the application for the appointment of a financial manager.

Background

1. Mrs FGS is a 78-year-old German national who is currently residing at an aged care facility in the upper north shore of Sydney, NSW. In 2011, Mrs FGS arrived in Australia from Germany on a visa sponsored by her daughter, Ms NSM.

1. On 3 June 2014, the Tribunal received an application for the appointment of a financial manager for Mrs FGS, by Mrs BNL, Operations Manager of the aged care service provider. Mr TJH, Care Manager of the aged care facility, became the substitute applicant for the purposes of the proceedings before the Tribunal.

1. A hearing of the application was conducted on 22 August 2014.

The Hearing

What did the Tribunal have to decide?

1. The issues for the Tribunal were:

(1)   Is Mrs FGS incapable of managing her affairs?

(2)   Is there a need for another person to manage Mrs FGS' affairs and is it in her best interests for a financial management order to be made?

(3)   If so, who should be appointed financial manager?

Principles

1. In all of its proceedings, the Tribunal is required to act in accordance with the principles set out in section 4 of the Guardianship Act 1987 (NSW), which in respect of Mrs FGS requires that:

(a)   Her welfare and interests are to be given paramount consideration;

(b)   Her freedom of decision and freedom of action should be restricted as little as possible;

(c)   She should be encouraged as far as possible to live a normal life in the community;

(d)   Her views should be taken into account as much as possible;

(e)   The importance of preserving his family relationships and her cultural and linguistic environment should be recognized;

(f)   She should be encouraged to be as self-reliant as possible in respect of her personal, domestic and financial affairs;

(g)   She should be protected from neglect, abuse and exploitation

Overview

1. Ms NSM, in her oral and written evidence, states that in 2006, she was living with her family in Australia, while her mother (the subject person) and father, German nationals, lived in Germany. That year, Ms NSM's father and younger brother died, and she travelled to Germany to care for her mother who had a recent history of small strokes and was unable to cope alone. During Ms NSM's time in Germany, a German Court made a guardianship order granting authority for her to look after her mother's affairs, including financial affairs.

1. Ms NSM returned to Australia after a year and, up until two months ago, has continued to live in this country. By 2011, her mother had developed Alzheimer's Disease and was unable to live independently. Ms NSM successfully applied for a visa for her mother to live in Australia. In 2011, Mrs FGS arrived in Australia and initially resided with Ms NSM and her family in their home. However, Mrs FGS' mental state deteriorated and her care needs increased. According to an Aged Care Client Record dated 20 July 2011, Mrs FGS had been in Australia for eight weeks and could not look after herself. In particular, she had behavioural issues associated with her dementia, including wandering and physical and verbal outbursts. The ACAT assessment recommended high level residential and respite care, and an EACH dementia package.

1. In October 2011, Ms NSM made arrangements for her mother to be placed in aged care facility A. Mrs FGS remained at that facility until her transfer to aged care facility B in April 2014. Mrs FGS does not have any income or assets in Australia, and the Tribunal was informed that she has no entitlement to an Australian pension under the conditions of her residency. She did, however, for a period of time after arriving in Australia, continue to receive a German pension.

1. According to Ms NSM, in December 2012 she (Ms NSM) became unwell and was unable to attend to her mother's financial affairs. She said that her illness caused memory loss, and problems with coordination and concentration. She said she fell behind in payments of her mother's nursing home fees, and was also too unwell to attend to her mother's German pension payments, resulting in their cessation in 2013.

1. In June 2014, Ms NSM's husband, a professor of surgery in the UK, organised for her (Ms NSM) to travel to Europe for treatment of her illness which had not yet been formally diagnosed. While she has been in Europe, she has been diagnosed with severe temporal lobe epilepsy, for which she is currently receiving treatment and is making improvements.

1. The substitute applicant, Mr TJH, told the Tribunal that he has known Mrs FGS for some time, as he was previously a manager of aged care facility A, where Mrs FGS previously resided. Mr TJH said the application for a financial management order was made because the facility has been unable to recover its fees despite a number of attempts to resolve the situation with Ms NSM. In particular, Mr TJH said the nursing home had been assured previously by Ms NSM that the sale of Mrs FGS' property in Germany would enable the fees to be paid. However, this has never occurred and the debt remains unpaid. Mr TJH stated that the amount of fees outstanding in respect of Mrs FGS' current accommodation is $20,500. A further $27,000 remains outstanding in relation to her residence at aged care facility A. A debt collection agency has been involved; however, the monies have not been recovered.

1. Ms NSM states that she is presently organising for her mother's German pension payments to be reinstated. She states that her mother is entitled to three types of German pension and also expects her mother to receive $37,000 in back payments. She said the process may take some time, as the German agencies require various forms to be completed, including by the nursing home in Australia. Ms NSM said that once the process is complete, she will arrange for payment of the total debts to the nursing homes in NSW. In respect of the debt amount that will not be covered by the back payment of German pension, she said she would use part of the proceeds of the sale her own property (in Sydney).

1. Ms NSM told the Tribunal that she intends to live in the United Kingdom where her husband has secured a position at a University. She said she intends to fly back to Australia in the next couple of weeks to pack up her own house in Sydney and to make arrangements for her mother to travel back to Germany to live permanently. She states she is making inquiries about nursing home accommodation for her mother in Germany. If her mother's health insurance coverage permits, she will also consider placing her mother in a nursing home in the United Kingdom, close to where she will be living with her family. Mr TJH was unaware of those proposals.

1. When asked by the Tribunal what arrangements are in place for her mother while she is overseas, Ms NSM informed the Tribunal that her daughter, Ms TSM, has been liaising with the nursing home about Mrs FGS' treatment and care. Mr TJH confirmed that this is the case and agreed that Ms TSM was available to discuss health matters concerning Mrs FGS when contacted by the nursing home.

Tribunal's consideration

1. Although the Tribunal was tasked with hearing an application for financial management only, the Tribunal was nonetheless concerned about the general circumstances surrounding this matter. In particular, where a person is in a country foreign to her, with no capacity to manage her affairs and with no current financial support. The Tribunal was also concerned that the proposal for Mrs FGS to travel to Germany in the coming months has not yet been discussed with the health professionals providing care to Mrs FGS, and therefore there has not been an opportunity to consider the health and medical implications of such a plan.

1. The Tribunal informed the participants that if the current informal arrangements are not sustainable or became problematic, or if Mrs FGS' accommodation, health or safety is at risk, then a person with a proper interest in the matter could apply to the Tribunal for the appointment of a guardian for Mrs FGS.

1. The Tribunal was not satisfied, however, that it was appropriate to make a financial management order in respect of Mrs FGS. The reality is that Mrs FGS has no estate in Australia, and her current status means she is ineligible for an Australian pension. As a consequence, it would be of little or no utility to make a financial management order. Even if appointed, a financial manager would have significant practical difficulties in addressing Mrs FGS' debts. In particular, the financial manager would not have access to funds from which they could draw. The NSW Trustee and Guardian has no reciprocal arrangements with Germany in relation to the management of estates. It is therefore difficult to see how an order in Australia would be effective in securing, for example, the German income and assets to which Mrs FGS may be entitled.

1. In Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106, Lindsay J states that the exercise of the protective jurisdiction is not dependent on the existence of property; and that the Court can, as a matter of jurisdiction, appoint a manager to a presently unpropertied estate in anticipation of a protected person's receipt of property for management. However, his Honour emphasises the importance of identifying the practical utility of an order where there is effectively no property to manage:

That said, the practical utility of the office of a protected estate manager does generally depend upon the existence of property under management. Without property, or at least the prospect of property, there is no "estate" to manage. [Footnotes omitted]

The utility of a management order must, like other features of the protective jurisdiction, be measured by reference to whether it is of benefit to, and in the interests of, the protected person. [Footnotes omitted]

Ordinarily, an absence of property under management is likely to tell decisively against the making of management orders, or decisively in favour of an order for revocation of management orders. [Footnotes omitted]

1. In the case at hand, the Tribunal was satisfied that there was no practical utility of a financial management order, and should therefore dismiss the application. In coming to this conclusion, however, it should be noted that the Tribunal has considerable sympathy with the applicant's position, and with the facilities that have provided accommodation and care to Mrs FGS without fee. However, it is hoped that Ms NSM does in fact attend to these concerns as a matter of priority, in the interests of her mother, Mrs FGS.

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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: 22 October 2014