KDH - [2016] NSWCATGD 17

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KDH [2016] NSWCATGD 17
Hearing dates: 26 February 2016
Date of orders: 26 February 2016
Decision date: 26 February 2016
Jurisdiction: Guardianship Division
Before: J Kearney, Senior Member (Legal)
R Yuvarajan, Senior Member (Professional)
S Rylands, General Member (Community)
Decision:
Financial management order confirmed.

Catchwords: FINANCIAL MANAGEMENT – application to revoke financial management order – consideration of whether subject person recovered capacity to manage finances – financial vulnerability – incapable to manage financial affairs – NSW Trustee and Guardian confirmed as financial manager
Cases Cited: CJ v AKJ [2015] NSWSC 498
McD v McD (1983) 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579
P v R [2003] NSWSC 819
PB v BB [2013] NSWSC 1223
Re D [2012] NSWSC 1006
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Category: Principal judgment
Parties: Mr KDH (the protected person and applicant)
Ms DPC (person appointed as attorney)
Mr UKH (person appointed as attorney)
The NSW Trustee and Guardian
Representation: Nil

File Number(s): 49879
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

The Tribunal confirmed the financial management order it made on 15 June 2012.

APPLICATION TO REVOKE FINANCIAL MANAGEMENT ORDER

Background

Mr KDH is a 61-year old man who lives in private rental accommodation at West Sydney. Prior to this, Mr KDH lived with his mother in her home but she passed away and her house was sold as part of her estate. Mr KDH received an equal share of his late mother’s estate with his seven siblings.
Mr UKH (his brother) and Ms DPC (his sister) are Mr KDH’s attorneys (joint and several) under an enduring power of attorney executed on 24 February 2009.
On 15 June 2012, the Tribunal made a financial management order appointing the NSW Trustee and Guardian as Mr KDH’s financial manager. The financial management order excluded the management of Mr KDH’s Centrelink benefits and his St George bank accounts. The history recorded was that Mr KDH had received an inheritance from his mother’s estate but spent a substantial proportion of it in a short period of time between December 2010 and June 2012. Prior to that time his rental property had been sold. He received $80,000 and said that he gambled it all away.

The hearing

At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication].

Prior applications

Mr KDH has made a number of applications to revoke the financial management order made on 15 June 2012.
On 19 February 2013. the Tribunal dismissed an application by Mr KDH to revoke the previous financial management order. On that occasion the Tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KDH

Details

AGLC: KDH [2016] NSWCATGD 17
Case: [2016] NSWCATGD 17
Decision Date: 26 February 2016

CaseChat Overview and Summary

The case involved KDH and the NSW Trustee and Guardian, who sought to continue their role as KDH’s financial manager. The dispute centred around the question of whether KDH had regained the capacity to manage his own financial affairs. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was to determine whether KDH had recovered the mental capacity necessary to manage his own finances, as required by the Guardianship Act 1987 (NSW). The court had to consider evidence regarding KDH's cognitive abilities, including expert medical assessments and personal observations. The court also needed to weigh KDH’s financial vulnerability and assess whether he was still incapable of managing his financial affairs independently.

The court reviewed the medical evidence and found that KDH had not sufficiently recovered the capacity to manage his finances. The evidence demonstrated that KDH continued to suffer from cognitive impairments that affected his ability to make sound financial decisions. The court acknowledged KDH's financial vulnerability and the potential for exploitation without continued oversight. Accordingly, the court confirmed the NSW Trustee and Guardian's position as KDH’s financial manager.

As a result of the court's findings, the financial management order was confirmed, ensuring that KDH's financial affairs would continue to be managed by the NSW Trustee and Guardian. This decision provided KDH with continued protection and support in managing his finances, given his ongoing cognitive impairments.

Orders

Orders of the court

Financial management order confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	KDH [2016] NSWCATGD 17
Hearing dates:	26 February 2016
Date of orders:	26 February 2016
Decision date:	26 February 2016
Jurisdiction:	Guardianship Division
Before:	J Kearney, Senior Member (Legal) R Yuvarajan, Senior Member (Professional) S Rylands, General Member (Community)
Decision:	Financial management order confirmed.
Catchwords:	FINANCIAL MANAGEMENT – application to revoke financial management order – consideration of whether subject person recovered capacity to manage finances – financial vulnerability – incapable to manage financial affairs – NSW Trustee and Guardian confirmed as financial manager
Cases Cited:	CJ v AKJ [2015] NSWSC 498 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re D [2012] NSWSC 1006 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Category:	Principal judgment
Parties:	Mr KDH (the protected person and applicant) Ms DPC (person appointed as attorney) Mr UKH (person appointed as attorney) The NSW Trustee and Guardian
Representation:	Nil
File Number(s):	49879
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)).