FMR v NSW Trustee and Guardian

[2022] NSWCATAD 410

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FMR v NSW Trustee and Guardian [2022] NSWCATAD 410

Hearing dates:

21 November 2022

Date of orders:

22 December 2022

Decision date:

22 December 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S E Frost, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – review of decision of NSW Trustee and Guardian to decline a request to make a gift of money from protected person’s estate

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

NSW Trustee and Guardian Act 2009 (NSW)

Cases Cited:

None cited

Texts Cited:

None cited

Category:

Principal judgment

Parties:

‘FMR’ (First Applicant)
‘FMT’ (Second Applicant)
NSW Trustee and Guardian (Respondent)

Representation:

Applicants (Self Represented)
J McCarthy (Solicitor, NSW Trustee and Guardian) (Respondent)

File Number(s):

2022/00254184

Publication restriction:

The publication or broadcast of the names of the Applicants or the protected person or any member of the protected person’s family is prohibited. This order is made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013. The first Applicant is to be referred to as ‘FMR’ and the second Applicant is to be referred to as ‘FMT’.
Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1. The Applicants have a sister who is a ‘protected person’ for the purposes of the NSW Trustee and Guardian Act 2009 (NSW) (the NSWTGAct). The estate of their sister, to whom I will refer as FRA, is subject to management under the NSWTG Act, with the Applicants appointed as financial managers.

2. The Applicants asked the Respondent (the NSW Trustee) to approve the making of gifts, from FRA’s estate, to her nieces and nephews. The request was denied, initially on the ground that the gifts were unaffordable but later on the ground that the NSWTG Act did not authorise the gifts.

3. The Applicants have applied to the Tribunal for an administrative review of the decision of the NSW Trustee.

4. I have decided to affirm the NSW Trustee’s decision. My reasons follow.

Jurisdiction

5. The application to the Tribunal is brought under s 70 of the NSWTG Act. It is an application for an administrative review of a decision by the NSW Trustee under Part 4.5 of the NSWTG Act in relation to the functions of a person appointed as a manager. The administrative review is to be conducted under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).

6. Subsection 63(1) of the ADR Act provides that in determining the application, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it.

Gifts

7. As a ‘protected person’, FRA is also a ‘managed person’: NSWTG Act, s 38.

8. The types of gifts that can be made from the estate of a managed person are restricted to the following (NSWTG Act, s 76(1)):

1. a gift to a relative or close friend of the managed person that is of a seasonal nature or is given because of a special event (such as a birthday or marriage),

2. a donation of a nature that the managed person made when the managed person had capacity to do so or that the managed person might reasonably be expected to make.

What are the gifts FRA wants to make?

9. At the family Christmas lunch in 2020, FRA expressed a desire to make a gift of $5,000 to one of her nieces to help the niece pay for some additions to her house. FRA wanted to use her superannuation to fund the gift, once she became eligible to access it.

10. FRA apparently has some cognitive impairment and can be forgetful. So she put a note in her calendar to look at her superannuation account on her 60^th birthday. When her birthday arrived she had to be reminded of the discussion she had had about giving money to her niece. After thinking about it she decided she still wanted to go ahead with the gift. Her sisters, the Applicants, told her it might look unfair to FRA’s other nieces and nephews if she only gave money to one of them. FRA decided she would be happy to give each of her four nieces and nephews $5,000, making $20,000 in total.

11. On 5 November 2021 FRA signed the following written statement, witnessed by a Justice of the Peace:

I, [FRA], verify that I give permission to withdraw from my superannuation account the sum of $20,000 Twenty thousand dollars to be distributed equally to my nephew and nieces [names deleted] for the amount of $5,000.00 each.

I am doing this on my own accord as I would like to give them a monetary gift.

12. I accept FRA genuinely wants to make these gifts to her nieces and nephews.

13. One of FRA’s sisters, in her capacity as financial manager, completed a ‘Change in Estate’ form and submitted it to the NSW Trustee for approval. The form is not dated but it was lodged on 20 May 2022. In the form the following answers were given to the questions asked:

Is the gift for a special occasion (e.g. wedding, birthday) or seasonal celebration? – No

Is the payment affordable to the estate? – Yes

Is there a history of past practice of the managed person making similar gifts? – Yes, Xmas Gifts

Will the gifting be made on a regular basis? – No

Is there another specific reason for the gift proposal? If yes, please outline – Yes. [FRA] wanted to help her nieces & nephew by a small monetary help for their renovations of property & car purchase.

14. At the hearing the Applicants submitted, on FRA’s behalf, that the intended gifts were for a special event, namely Christmas 2020. They say the gifts had to be delayed until after FRA’s 60^th birthday because, as they understood things, she couldn’t access her super until then.

What is the NSW Trustee’s position?

15. The NSW Trustee says the intended gifts are not within s 76 of the NSWTG Act as they are not of a seasonal nature, they are not given because of a special event, and they are not within the concept of a ‘donation’.

16. If the Tribunal does not accept that submission then it is submitted that the amount of the gifts is not ‘reasonable having regard to all the circumstances and, in particular, the managed person’s financial circumstances and the size of the managed person’s estate’: NSWTG Act, s 76(2).

Consideration

17. FRA’s initial desire was to help one of her nieces by giving her money to pay for some additions to her house. While the desire was expressed at Christmas time, it does not seem to have been intended as a Christmas gift. Indeed, she had already given each of her nephews and nieces a Christmas gift of $50, which makes it hard to characterise this extra $5,000 as a Christmas gift as well.

18. Even 17 months later, when the ‘Change in Estate’ form was lodged in May 2022, there was no claim that the gifts (by now four of $5,000 each) were for a special occasion or for a seasonal celebration.

19. I find that FRA wanted to provide monetary assistance for one of her nieces, to help towards the cost of some additions to the niece’s house. Even though she raised the issue at the Christmas lunch, her decision had nothing to do with Christmas. Then, as a matter of fairness, but not until several months later, she decided she wanted to give the same amount to her three other young relatives. Again, there is no connection with Christmas.

20. The attempt to characterise these intended gifts as belated Christmas gifts arose only after the Applicants were alerted to the terms of s 76 of the NSWTG Act. I do not criticise them for trying to put forward their sister’s circumstances in the most favourable light but the objective facts are not in their favour.

21. In the circumstances, the intended gifts are not ‘gift[s] … of a seasonal nature or … given because of a special event’. They are not authorised by s 76(1)(a) of the NSWTG Act.

22. If FRA were to have a clear intention to make Christmas gifts, or perhaps birthday gifts, of $5,000 to each of her nephews and nieces then they may very well be authorised by s 76(1)(a). That would be a matter for the NSW Trustee to consider if the circumstances were to arise. But the circumstances I have examined do not disclose an intention to make either Christmas gifts or birthday gifts.

23. For completeness, I take the view that the word ‘donation’ in s 76(1)(b) does not include a gift of the kind under consideration here. Donations are normally made to charities or public institutions, often to support a particular cause. Gifts of the kind referred to in paragraph (b) are of an entirely different nature from those referred to in paragraph (a).

24. Having concluded that the intended gifts are not authorised by s 76(1) of the NSWTG Act, it is not necessary to address s 76(2).

Conclusion

25. The Respondent’s decision is affirmed.

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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 December 2022