FZX

[2017] NSWCATGD 36

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FZX [2017] NSWCATGD 36

Hearing dates:

21 April 2017

Date of orders:

21 April 2017

Decision date:

21 April 2017

Jurisdiction:

Guardianship Division

Before:

J S Currie, Senior Member (Legal)
A M Matheson, Senior Member (Professional)
M McCalman, General Member (Community)

Decision:

(1) The appointment of the NSW Trustee and Guardian as financial manager for Mr FZX is revoked.

 

(2) Mr KAX is appointed as the financial manager of the estate of Mrs FZX, subject to the authority of the NSW Trustee and Guardian.

 

(3) The NSW Trustee and Guardian is to pay over or hand over the estate to Mr KAX.

 

(4) This is a reviewable order and will be reviewed by the Tribunal within 18 months.

 

(5) The Tribunal imposes the following additional conditions on the order, pursuant to s 58 of the Civil and Administrative Tribunal Act 2013 (NSW). None of these conditions limits the duties and obligations of Mr KAX as financial manager, including without limitation his duties and obligations under the Guardianship Act 1987 (NSW), the NSW Trustee and Guardian Act 2009 (NSW), or any authorities and directions issued by the NSW Trustee and Guardian:

 

i. Mr KAX must take all reasonable steps to liaise with the NSW Trustee and Guardian. He must provide to the NSW Trustee and Guardian every three months, commencing three months from the date of this order, or at such other frequency or on any other occasion as may be required by the NSW Trustee and Guardian from time to time, a written report by way of a summary of his actions as financial manager and the financial position of the estate, including without limitation the progress of any claims pursued on behalf of the estate.

 

ii. Mr KAX may, on his own account and at his own personal expense, instruct a senior solicitor or barrister of good standing and repute who practices extensively in the relevant field to provide an updated opinion as to the prospects of success of any claim by the estate of Mrs FZX for recovery of interest claimed on an Australian Bank pension security account, a passbook for which was issued in Mrs FZX’s name (“the Australian Bank PSA claim”).

 

iii. Mr KAX may not proceed to obtain any further advice in relation to the Australian Bank PSA claim other than that referred to in (ii) above, or to commence any action for recovery in relation to it, without the prior written consent of the NSW Trustee and Guardian.

 

iv. In his role as financial manager, Mr KAX must cooperate with any duly appointed guardian of Mrs FZX and must take all steps and do all things necessary to facilitate the performance and fulfilment of all decisions made or proposed to be made by the guardian, including without limitation all decisions in relation to Mrs FZX’s accommodation and her care.

 (6) Each of the NSW Trustee and Guardian and Mr KAX has liberty to apply at any time on reasonable notice to request the Tribunal to review these orders and the conditions set out above.

Catchwords:

FINANCIAL MANAGEMENT – application to review or revoke financial management order – application to revoke appointment of financial manager – consideration of appointment of financial manager – discrepancy in financial accounts – welfare and interests of subject person – conditions applied to the financial management order – reviewable financial management order – private financial manager appointed

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s 58
Guardianship Act 1987 (NSW), ss 3, 4, 14(2), 25A and 25O, 25P(1)(a)-(b), 25P(2)
Mental Health Act 2007 (NSW)
The NSW Trustee and Guardian Act 2009 (NSW)

Category:

Principal judgment

Parties:

Mrs FZX
Mr KAX, carer for Mrs FZX
The NSW Trustee and Guardian
The NSW Public Guardian

Representation:

Solicitor:
Ms XON (Mr KAX) also as McKenzie Friend

File Number(s):

2014/00384592

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 A GUARDIANSHIP ORDER;

APPLICATION TO REVOKE FINANCIAL MANAGEMENT ORDER; AND

APPLICATION TO REVOKE APPOINTMENT OF FINANCIAL MANAGER

What the Tribunal decided

Review of Guardianship Order

1. The Tribunal decided to adjourn the hearing of this matter for approximately two months, part-heard. The matter was subsequently listed for hearing on 22 June 2017 at 2 PM at Sydney. The Tribunal made the following Directions and Recommendations.

1. The Tribunal directs and recommends to a Western Sydney Nursing Home that on or before 1 June 2017, any evidence or submissions it wishes to make in response to the statement of Mr KAX dated 19 April 2017 and in particular to the photographs which comprise Annexure B to that statement, be lodged with the Tribunal and served on the parties.

2. The Tribunal recommends that prior to the next hearing, The Public Guardian, Mr KAX, and the Western Sydney Nursing Home give further consideration to, and confer as to, Mrs FZX’s accommodation needs.

Application to Revoke Financial Management Order

2. The Tribunal declined to revoke the financial management order made for Mrs FZX on 2 September 2014. It decided to vary the order by requiring the order to be reviewed by the Tribunal within 18 months.

Application to Replace Financial Manager

3. The Tribunal decided to make the following orders:

1. The appointment of the NSW Trustee and Guardian as financial manager for Mr FZX is revoked.

2. Mr KAX is appointed as the financial manager of the estate of Mrs FZX, subject to the authority of the NSW Trustee and Guardian.

3. The NSW Trustee and Guardian is to pay over or hand over the estate to Mr KAX.

4. This is a reviewable order and will be reviewed by the Tribunal within 18 months.

5. The Tribunal imposes the following additional conditions on the order, pursuant to s 58 of the Civil and Administrative Tribunal Act 2013 (NSW). None of these conditions limits the duties and obligations of Mr KAX as financial manager, including without limitation his duties and obligations under the Guardianship Act 1987 (NSW), the NSW Trustee and Guardian Act 2009 (NSW), or any authorities and directions issued by the NSW Trustee and Guardian:

1. Mr KAX must take all reasonable steps to liaise with the NSW Trustee and Guardian. He must provide to the NSW Trustee and Guardian every three months, commencing three months from the date of this order, or at such other frequency or on any other occasion as may be required by the NSW Trustee and Guardian from time to time, a written report by way of a summary of his actions as financial manager and the financial position of the estate, including without limitation the progress of any claims pursued on behalf of the estate.

2. Mr KAX may, on his own account and at his own personal expense, instruct a senior solicitor or barrister of good standing and repute who practices extensively in the relevant field to provide an updated opinion as to the prospects of success of any claim by the estate of Mrs FZX for recovery of interest claimed on an Australian Bank pension security account, a passbook for which was issued in Mrs FZX’s name (“the Australian Bank PSA claim”).

3. Mr KAX may not proceed to obtain any further advice in relation to the Australian Bank PSA claim other than that referred to in (ii) above, or to commence any action for recovery in relation to it, without the prior written consent of the NSW Trustee and Guardian.

4. In his role as financial manager, Mr KAX must cooperate with any duly appointed guardian of Mrs FZX and must take all steps and do all things necessary to facilitate the performance and fulfilment of all decisions made or proposed to be made by the guardian, including without limitation all decisions in relation to Mrs FZX’s accommodation and her care.

6. Each of the NSW Trustee and Guardian and Mr KAX has liberty to apply at any time on reasonable notice to request the Tribunal to review these orders all the conditions set out above.

Background

4. Mrs FZX is a 98-year-old woman who has been diagnosed with dementia and is reported to demonstrate extreme confusion and to have hearing impediments. Mrs FZX is a permanent resident at a nursing home in Western Sydney. She has two sons, Mr KAX who, until her admission to the nursing home, was her carer and Mr IBX. Both her sons live in Western Sydney.

5. On 6 June 2014, the Tribunal made a guardianship order for Mrs FZX under which it appointed the Public Guardian as her guardian for 12 months with the functions of accommodation and services. On that date, the Tribunal dismissed an application for the appointment of a financial manager for Mrs FZX. On 2 September 2014, the Tribunal renewed and varied the guardianship order. The Public Guardian was appointed for the term of the original order and its functions were confirmed with the addition of an authority for the guardian to enlist the services of others in implementing accommodation decisions (“the coercive authority”). The Tribunal also dismissed a separate guardianship application made by Mr KAX.

6. At its hearing on 2 September 2014, the Tribunal also made a financial management order for Mrs FZX under which it committed the management of her estate to NSW Trustee and Guardian.

7. On 5 March 2015, the Tribunal dismissed an application by Mr KAX for revocation of the financial management order. It also renewed and varied the guardianship order for Mrs FZX. The Public Guardian was appointed for two years with the functions of access, accommodation (with the coercive authority), and services.

8. On 6 October 2015, Tribunal conducted a hearing of two further applications by Mr KAX; being a second application to revoke the financial management order for his mother and a further application to review the guardianship order for her. The Tribunal refused to conduct a review of either the guardianship order or the financial management order, in exercise of its discretion under ss 25A and 25O, respectively, of the Guardianship Act. On that date, the Tribunal granted leave to Mr KAX to be legally represented by Ms XON, Solicitor.

9. On 29 August 2016, the Registry received from Mr KAX a third application for revocation of the financial management order. At an interlocutory hearing on 27 October 2016, the Tribunal refused leave for Mr KAX to be legally represented. The hearing of the revocation application was commenced on 8 December 2016 and was adjourned part-heard for approximately two months with a recommendation to the NSW Trustee and Guardian regarding the evidence to be available for the next hearing. At that hearing, the Tribunal on its own motion arranged for the registration of an application for review of the appointment of the appointed financial manager, the NSW Trustee and Guardian.

10. On 15 February 2017, Tribunal decided to adjourn the hearing of the review of the guardianship order for two months and also decided to adjourn the hearing of the application to revoke financial management order and the application to revoke the appointment of the financial manager for two months, part-heard.

11. As indicated in the Reasons for Decision from that hearing, the need for the adjournment of the hearing of the two financial management applications arose from substantial discrepancies as to the value of substantial cash assets of Mrs FZX’s estate between the value reported by Mr KAX and as reported by the NSW Trustee and Guardian. The Tribunal made detailed directions to Mr KAX to provide any available substantiation of estimates of Mrs FZX’s cash assets and to the NSW Trustee and Guardian to provide any response, explanation, and verification of those matters.

12. The matter was listed for a Directions Hearing on 11 April 2017. At the Directions Hearing:

1. Mr KAX was directed to file and serve on the other parties any response to correspondence from the NSW Trustee and Guardian regarding the cash assets subject to the discrepancies referred to in [11] above;

2. the Tribunal formally excused Mrs FZX from participation in the resumed hearing;

3. the Tribunal noted that arrangements were to be made for a senior officer of Western Sydney Nursing Home to participate in the resumed hearing and it made other notations as to the progress of the matter; and

4. the Tribunal confirmed that the resumed hearing was set down for 21 April 2017 at Sydney.

13. The purpose of the Tribunal’s hearing on 21 April 2017 was therefore:

1. to conduct the hearing of the statutory end of term review of the guardianship order for Mrs FZX, last reviewed on 5 March 2015; and

2. to resume the hearing of Mr KAX’s application for revocation of the financial management order for Mrs FZX and the hearing of the application for review of the appointment of the NSW Trustee and Guardian as financial manager.

Parties and witnesses

14. The Appendix to these Reasons for Decision identifies the parties to the application and the witnesses who gave evidence at the hearing. [Appendix removed for publication.]

Issues for determination by the Tribunal

Review of the guardianship order

15. The issues for determination were:

1. Is Mrs FZX someone for whom we could make a further guardianship order because she continues to have a disability which prevents her from being able to make important life decisions? Is she “a person in need of a guardian” for the purposes of the Guardianship Act?

2. Should we make a further guardianship order?

3. If so what order should be made? Specifically, who should be the guardian, what decision-making functions should the guardian have, and how long should any further guardianship order last?

The financial management applications

16. The issues for determination were:

1. Has Mrs FZX regained the capability to manage her own affairs?

2. Would it be in Mrs FZX’s best interests for the current order to be revoked (even if we are not satisfied that she has regained the capability to manage her own affairs)?

3. If the financial management order is not revoked on one of the grounds in (1) and (2) above, would it be in Mrs FZX’s best interests for the appointment of the NSW Trustee and Guardian as her financial manager to be revoked?

4. If the appointment of the NSW Trustee and Guardian as financial manager is revoked, who should be appointed as Mrs FZX’s financial manager?

5. If we decide not to revoke the order, should it be varied, and if so how?

Preliminary matters

Reasons for Decision from previous hearings

17. Although these Reasons for Decision relate mainly to the hearing on 21 April 2017, for completeness they should be read in conjunction with Reasons for Decision from the previous hearings, particularly those of 8 December 2016 and 15 February 2017.

Absence of Mrs FZX

18. Mrs FZX did not participate. She had been excused from participation in the hearing by order made at the directions hearing on 11 April 2017.

McKenzie Friend for Mr KAX

19. We again recognised Ms XON, Solicitor, as the McKenzie Friend of Mr KAX. There was no application for legal representation of any party.

REVIEW OF GUARDIANSHIP ORDER

Is Mrs FZX someone for whom the Tribunal could make a further guardianship order because she continues to have a disability which prevents her from being able to make important life decisions? Is she “a person in need of a guardian” for the purposes of the Guardianship Act?

20. The Tribunal may make or renew a guardianship order for a person if it is satisfied that he or she is a person in need of a guardian. That phrase is defined in s 3 of the Guardianship Act as "a person who because of a disability, is totally or partially incapable of managing his or her person". A person with a disability is a person who is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally ill person within the meaning of the Mental Health Act 2007 (NSW), or 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.

21. At the hearing on 6 June 2014, at which the guardianship order was made, the Tribunal accepted evidence from Dr Z, Geriatrician, and from Mrs FZX’s general practitioner as establishing that she had a disability, namely Alzheimer’s dementia, which prevented her from being able to make important life decisions. At subsequent hearings evidence has been accepted from the Director of Nursing at the nursing home where Mrs FZX lives, to the effect that she continues to display the symptoms of Alzheimer’s disease and in particular substantial confusion. At the present hearing, we understood each of the participants to agree that there had been no improvement in Mrs FZX’s general condition or her cognitive ability. Mr KAX told us that his mother can do “some things” but he agreed that she continued to require supervision.

22. For completeness we add that there was one item of additional medical evidence made available for this hearing and that comprised annexure “C” to the statement by Mr KAX dated 19 April 2017. It was a short report dated 6 March 2017 from Dr Y, Consultant Cardiologist. Dr Y commented on cardiological aspects of Mrs FZX’s health and her penal oedema. His report begins with a summary of Mrs FZX’s diagnoses and this includes “unspecified dementia”, “intermittent confusion”, and “depression”. He does not otherwise comment on Mrs FZX’s cognitive capacity.

23. On the basis of this evidence we were satisfied that Mrs FZX continues to have disabilities which prevent her from making some important life decisions, that she continues to be a “person in need of a guardian” for the purposes of the Guardianship Act and is someone for whom a further guardianship order could be made.

Should a further guardianship order be made?

Legal basis for our determination of this question

24. We have discretion as to whether or not to make a guardianship order, even where we have concluded that the subject person is prevented by a disability from making important life decisions. Not all people with a disability who are incapable of making life decisions should be regarded as being in need of a guardianship order and there are important principles in the Guardianship Act, particularly in ss 14(2) and 4 of that Act, which we must consider in deciding whether we should make an order.

Consensus amongst the participants on this issue

25. There was a clear consensus amongst the participants that Mrs FZX continues to need a guardian. Mr KAX confirmed that he was of this view and that the main issue for him was the identity of the guardian.

26. In finalising our decision on this issue, we considered the factors prescribed by s 14(2) of the Guardianship Act. In particular, we considered whether the services which Mrs FZX needs could, as a practicable matter, be made available to her without the guardianship order being continued. It was clear on the evidence before us and before previous hearings that they could not.

27. We also took into account the guiding principles set out in s 4 of the Guardianship Act. The principles which appeared to have primary relevance to this case, other than those already considered by reference to s 14(2) of that Act, were the need to protect Mrs FZX from any neglect, abuse or exploitation and the need to encourage her, so far as possible, to live a normal life in the community. As we are required to do by s 4 of the Guardianship Act, we gave paramount consideration to Mrs FZX’s welfare and interests.

28. On the basis of this analysis we were satisfied that there continues to be a current need for decisions on behalf of Mrs FZX to be made by a guardian. It followed that a further guardianship order should be made.

Who should be the guardian?

29. We commenced but, for the reasons explained below, did not complete consideration of this issue. Mr KAX reiterated that he wished to be appointed to replace the Public Guardian. He conceded that he had made little attempt over the last 12 months also to discuss matters with the Public Guardian and said that he had “given up” asking the Public Guardian to take action to improve his mother’s condition, her access to outdoor areas and her care generally.

29. Ms Amanda Smith of the Office of the Public Guardian told us that she had concluded that the accommodation and facilities available at Mrs FZX’s current nursing home were adequate and that she received adequate care there. Ms Smith observed that, given Mrs FZX’s advanced age and the likely disruptive effects of any attempt to change her accommodation, it was unlikely that the Public Guardian would consent to such a change.

30. Ms X, the Director of Care Services at the nursing home, told us that she and her colleagues believed that the level of care being provided to Mrs FZX was appropriate. She confirmed that some of Mr KAX’s requests in respect of his mother, including a recent request to install an exercise machine, were unreasonable. Ms X confirmed that under current arrangements Mr KAX could take his mother out provided they were accompanied by a carer. She confirmed that Mrs FZX had access downstairs to the lawn area of the facility and that although she did not have her own bathroom there was a bathroom directly across the corridor from her.

31. Mr IBX, son of Mr FZX, told us that he was satisfied that his mother’s present accommodation was suitable and that he had no concerns about the level of care provided to her.

Adjournment of the review of the guardianship order

33. In the course of our hearing, the views of the participants on the issue of the identity of the guardian, it became apparent that neither the Public Guardian nor nursing home representatives had been provided with Mr KAX’s statement dated 19 April 2017 and had not therefore seen the photographs which were attached to that statement as annexure “B”. These purported to be photographs taken by or at the direction of Mr KAX. They are photographs of what he asserts are injuries to his mother, her general living conditions including the size and nature of her room at the nursing home, and what he asserts are potential hazards, including what appears to be an electrical cord lying loose in Mrs FZX’s room.

34. We adjourned briefly to make arrangements for the photographs to be emailed to the Public Guardian and to the nursing home. However, following some delays in email transmission and our further detailed consideration of the photographs, we were of the view that allegations which might arise from them were sufficiently serious that it would be a denial of procedural fairness to the Public Guardian and to the nursing home for the hearing to proceed until those parties had had a reasonable time to review the photographs and to make any written response to them and to Mr KAX’s statement of 19 April 2017 generally. At the resumption of the hearing we explained our views to the participants. We understood from her and Ms X that there may be a prospect of further discussions with Mr KAX concerning Mrs FZX’s accommodation needs.

35. Ultimately we were persuaded that the potential denial of procedural fairness and the opportunity for further discussion justified an adjournment of the hearing of this review, part-heard, for approximately two months.

APPLICATION FOR REVOCATION OF FINANCIAL MANAGEMENT ORDER AND APPLICATION TO REVOKE APPOINTMENT OF FINANCIAL MANAGER

The applications were heard concurrently

36. We determined that we would hear these matters concurrently. We did this because the parties to the two applications are identical, much of the evidence before us relates to both of the applications and that the issues for our determination can be combined in the manner outlined below.

Issues for determination by the Tribunal

37. Under s 25P(1)(a) of the Guardianship Act, when the Tribunal reviews a financial management order, it must vary, revoke or confirm the order.

38. By his application, Mr KAX seeks revocation of the financial management order made for Mrs FZX. Under s 25P(2) of the Guardianship Act, we can revoke that order only if:

1. we are satisfied that Mrs FZX is capable of managing her affairs. This is often called the “regained capability” ground; or

2. we consider that it is in Mrs FZX’s best interests that the order be revoked (even though we are not satisfied that she is capable of managing her affairs). This is often called the “best interests” ground.

39. Under s 25P(1)(b) of the Guardianship Act, when the Tribunal is reviewing a financial management order it can also consider whether to revoke the appointment of the current financial manager if it is appropriate to do so. In this case a separate application to this effect has been made. Obviously that issue will only arise if the original order is to continue; that is, if we decide not to revoke it.

40. It follows that it is sensible and effective to combine the issues arising from the two applications and to consider them concurrently. The issues for our determination were:

1. Has Mrs FZX regained the capability to manage her own affairs?

2. If she has not, would it nevertheless be in her best interests for the current order to be revoked?

3. If we decide not to revoke the order, should the appointment of the NSW Trustee and Guardian as financial manager be revoked?

4. If the NSW Trustee and Guardian’s appointment is to be revoked, who should be appointed as Mrs FZX’s financial manager?

5. If we decide not to revoke the order, should it be varied in any way?

THE TRIBUNAL’S ASSESSMENT OF THE EVIDENCE AND DETERMINATION OF THE ISSUES

Has Mrs FZX regained the capability to manage her own affairs?

41. It is accepted by all parties and we are satisfied on the evidence, including medical evidence accepted at the previous hearing on 5 March 2015 which has not been challenged or revised, that Mrs FZX remains incapable of managing her own affairs. We note that at the commencement of the hearing the applicant Mr KAX confirmed that this ground was not pressed.

Would it be in Mrs FZX’s best interests for the order to be revoked?

42. Revocation of the financial management order on this ground would effectively involve Mrs FZX’s financial affairs being managed, on a completely unlimited and unsupervised basis, by Mr KAX, who asserts that prior to the making of the order he did this for 31 years and has expressed a clear wish to do so again.

43. For the following reasons (and each of them severally) we cannot be satisfied that the revocation of the financial management order would be the course which is in the best interests of Mrs FZX or would best protect and preserve her welfare.

1. Proceedings for the statutory end of term review of the guardianship order for Mrs FZX (“the RGO proceedings”) have been commenced but not concluded. On 21 April 2017, those proceedings were adjourned, part-heard, for approximately two months. Without in any way predicting the outcome of the RGO proceedings, it is reasonably clear from the course of those proceedings that one possible result of them is that Mrs FZX’s current accommodation arrangements will be reviewed. That in turn might require the payment of a new or varied accommodation bond and the execution of appropriate accommodation and care agreements. So far as we are aware, Mrs FZX has no existing power of attorney. Unless there is a financial management order for her, there will be no one with the requisite legal authority to arrange such a payment or to execute such agreements.

2. Although we make no findings as to the sustainability or prospects of a successful recovery on behalf of Mrs FZX’s estate in relation to what we have referred to in these Reasons and the Reasons from earlier hearings as “the Australian Bank PSA claim”, we believe that it may be appropriate for further legal advice to be obtained in relation to it. That claim has been raised at previous hearings. It arises from Mr KAX’s allegation that the Australian Bank made an error in calculating the appropriate interest rate applicable to an account for Mrs FZX in 1999 and that his mother’s estate was owed a considerable amount (at one stage asserted as approaching $1.5 million) as a result. We note that the Australian Bank has advised the NSW Trustee and Guardian that it no longer holds the relevant records due to their disposal upon lapse of the required seven year retention period. The claim was subject to a detailed report letter dated 29 March 2017 from Ms Maree Rice, a Legal Officer of the NSW Trustee and Guardian. That includes advice that the claim was considered by the Financial Ombudsman Service in 2009 and that Service had determined that the PSA passbook was issued in error, that there was no agreement made to open the PSA, and that on the weight of the available information that Mrs FZX did not request a PSA account to be opened in June 2000. Ms Rice’s letter confirms that the NSW Trustee and Guardian has decided to take no further action in relation to the claim. However, there is nothing before us to indicate that the Financial Ombudsman made a finding on the important issue of whether or not the passbook was operated during relevant periods as the passbook of a PSA account. As Mrs FZX has no existing power of attorney, unless the financial management order for her continues, no-one will have the requisite legal standing to obtain appropriate legal advice on the claim, or to pursue the claim, if that is justified.

Should the appointment of the NSW Trustee and Guardian as financial manager be revoked; and if it is to be revoked, who should be appointed as Mrs FZX’s financial manager?

The real issue for our consideration

44. As a formal matter we are required to undertake two-stage process, under which we investigate and determine firstly, whether the appointment of the NSW Trustee and Guardian should be revoked; and then, if it is to be revoked, who should be appointed in its stead.

45. We are required to determine each of these matters with regard to the factors set out in s 4 of the Act and, in accordance with that section, our paramount consideration must be Mrs FZX’s welfare and interests

46. This is the fourth occasion in just over two years on which the Tribunal (as constituted by various Panels) has considered Mr KAX’s applications that he should replace the NSW Trustee and Guardian as his mother’s financial manager. In each of his previous endeavours, Mr KAX has been unsuccessful. The real issue before us can be put simply: What has changed?

47. It seems to us that the following matters do constitute substantial changes to the matter and to the position of Mr KAX and, to some extent, that of the NSW Trustee and Guardian, since the matter was last subject to full consideration at the hearing on 6 October 2015:

1. Mr KAX has produced more substantial documentary evidence as to his mother’s assets, the way in which he managed her financial affairs informally (prior to the making of the financial management order), the nature of the Australian Bank PSA account interest claim and, in particular his assertions concerning the actions and omissions of the NSW Trustee and Guardian in the course of its management of the estate.

2. For its part the NSW Trustee and Guardian has provided more detailed reports as to the financial position of the estate and in particular the assets and liabilities of the estate and it has sought to explain some of the actions which it has undertaken.

3. The Tribunal finally has a comparatively detailed description of the Australian Bank PSA account interest claim, by way of more detailed documentation lodged by both Mr KAX and by the NSW Trustee and Guardian (even though some issues remain unresolved, as noted at [43] above).

48. The evidence before us from Mr KAX on the one hand, and the NSW Trustee and Guardian on the other, is in conflict as to some significant matters, in particular, but by no means restricted to: the conduct of the investigation into the Australian Bank PSA account interest claim, legal advice as to the prospects of success of any such claim the value of the major assets of the estate and the composition of the current balance of the NSW Trustee and Guardian’s trust account.

49. It is not our role, and it is clearly not conducive to facilitating the just, quick and cheap resolution of the real issues, for us to undertake a detailed analysis of each item of evidence relating to the various complaints which Mr KAX makes about the administration and management of the estate by the NSW Trustee and Guardian. However, we must note and to take into account the following matters.

1. In relation to Mrs FZX’s reported cash assets the discrepancy of approximately $561,000 which was reported in detail in our Reasons for Decision from the hearing on 15 February 2017 (see [22] to [25] of those Reasons) was conceded by the NSW Trustee and Guardian to have arisen from an error in its report on the estate dated 3 November 2016.

2. At the present hearing Mr John Wilkman, a Senior Client Services Officer with the NSW Trustee and Guardian conceded that in the NSW Trustee and Guardian’s report dated 10 April 2017 the reported estate details and their value was in error because the refundable on Mrs FZX’s nursing home accommodation had not been included. That was an amount of $254,281.

50. We commend the NSW Trustee and Guardian for its diligence in investigating and acknowledging these matters, but it is inescapable that the fact that corrections and acknowledgements were necessary and that that does support Mr KAX’s claim that the NSW Trustee and Guardian’s previous reports may not have provided a full or accurate account as to the extent of the value of major assets of the estate. That in turn throws more importance on our consideration of whether Mr KAX would be a suitable person for appointment as financial manager and with his appointment may be the course that best serve the welfare and interests of his mother Mrs FZX.

51. Before appointing a private person as financial manager, we must be satisfied that the person seeking appointment is willing to act and is suitable for appointment. There are no express criteria for determining suitability in the relevant legislation, but we normally ensure that the candidate:

1. is reasonably familiar with the subject person’s estate;

2. has a reasonable level of understanding of how to deal with and account for other people’s money. This can usually be demonstrated through their having held a relevant position in a business (including as an owner or employee), or in a not-for-profit organisation such as an industry association or a trade union, a community or sporting club or association. In some cases this can be satisfied by demonstrating substantial experience in relation to the subject person’s own affairs;

3. has no conflict of interest which would prevent their appointment on the basis that they might not be seen to be acting solely in the interests of the subject person;

4. has nothing in their public record, in particular by way of any criminal or bankruptcy proceedings or orders, which might render them unsuitable for appointment;

52. We were satisfied that Mr KAX has a genuine care and concern for his mother. We gave substantial weight to the fact that Mr KAX apparently managed his mother’s affairs for a substantial period prior to the making of the financial management order and that on his account (which appears to be uncontroverted in this regard) Mrs FZX’s net assets grew substantially during that period. As a result of his discussion with us and his answers to our questions, Mr KAX demonstrated to our satisfaction that he was suitable for appointment as financial manager under the criteria described in sub-paragraphs (1) to (4) above.

53. Mr KAX also confirmed his understanding of the fact that, if appointed as financial manager, he would be subject to the oversight and direction of the NSW Trustee and Guardian.

54. There was no indication of any other private person being willing to be considered for that appointment. Mr IBX objected to the appointment of his brother Mr KAX as financial manager. Mr IBX asserted that his brother was not competent and stated that he (Mr IBX) had “no way of knowing whether he misappropriated any part of our mother’s estate”. Following further discussion, however. Mr IBX conceded that he had no evidence of any misappropriation or wrongdoing by his brother or of any lack of competence

55. Whilst we are sure that many of Mr KAX’s assertions and claims require further detailed investigation and verification we are satisfied that:

1. at present, with appropriate conditions and subject to ongoing oversight and direction of the NSW Trustee and Guardian and review by this Tribunal within a relatively short period, say 18 months, Mrs FZX’s interests and welfare are better served in the short to medium term by replacing the NSW Trustee and Guardian as her financial manager; and

2. Mr KAX should be appointed as her financial manager, on that basis.

56. We ordered accordingly.

Should the financial management order be varied?

57. We concluded that the order should be varied so that it is a reviewable order. We have reached that conclusion because of our decision to replace the NSW Trustee and Guardian as financial manager with a private manager, Mr KAX. We believe that in light of the accepted evidence and certain unresolved issues including the Australian Bank PSA interest claim and the completion of the review of Mrs FZX’s guardianship order, it is appropriate for:

1. the conditions which are fully set out in sub-paragraph 3(5) of these Reasons to apply to the order. We make these conditions in exercise of our power under s 58 of the Civil and Administrative Tribunal Act. (We confirm that conditions (ii) and (iii) are imposed because of the remaining uncertainty as to the validity and enforceability of the Australian Bank PSA interest claim); and

2. Mr KAX’s appointment and the performance of his office as financial manager to be subject to further review by us.

58. A further reason for imposing a reviewable order is that it seems likely that most of the substantial decisions required of a financial manager (including any decision to pursue the Australian Bank PSA interest claim and finalisation of that claim) can be concluded within a finite time. In all the circumstances we believe that that the order should be reviewed within 18 months.

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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: 05 July 2018