KW v Protective Commissioner
[2008] NSWADTAP 5
•4 February 2008
Appeal Panel - External
CITATION: KW v Protective Commissioner and ors [2008] NSWADTAP 5 PARTIES: APPELLANT
KWFIRST RESPONDENT
Protective CommissionerSECOND RESPONDENT
KZTHIRD RESPONDENT
KYFOURTH RESPONDENT
DECISION MAKER
KV
Guardianship TribunalFILE NUMBER: 078008 HEARING DATES: 20 September 2007 SUBMISSIONS CLOSED: 20 September 2007
DATE OF DECISION:
4 February 2008BEFORE: Hennessy N - Magistrate (Deputy President); Britton A - Deputy President; Field B - Non Judicial Member CATCHWORDS: Financial management order - review MATTER FOR DECISION: Principal matter DECISION UNDER APPEAL: Matter No: 2006/4121;2006/5549 FILE NUMBER UNDER APPEAL: C/28176 DATE OF DECISION UNDER APPEAL: 03/28/2007 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Protected Estates Act 1983CASES CITED: Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
Re L (2000) NSWSC 721REPRESENTATION: In person
FIRST RESPONDENT
No appearanceSECOND RESPONDENT
L Critchley, solicitorTHIRD RESPONDENT
No appearanceFOURTH RESPODENT
DECISION MAKER
No appearance
E Cho, solicitorORDERS: 1. Appeal allowed.
2. The Guardianship Tribunal’s decision to dismiss the application of KW and KY to revoke the appointment of the Protective Commissioner as manager of KZ’s estate, is set aside.
3. The matter is remitted to the Guardianship Tribunal to be heard and decided again.
“Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,
(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
whether before or after the proceedings are disposed of.Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, 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 KZ is an elderly woman who lives in a nursing home. In 2005 the Guardianship Tribunal appointed the Protective Commissioner to manage her financial affairs. The Protective Commissioner made several financial decisions in relation to KZ’s estate which two of KZ’s daughters considered not to be in their mother’s best interests. In 2007 they applied for the Protective Commissioner’s appointment to be revoked and for them to be substituted as their mother’s financial managers. An application was also brought by their brother, KZ’s son, that he be appointed as his mother’s financial manager. The Guardianship Tribunal dismissed both applications and confirmed the appointment of the Protective Commissioner. One of the daughters, KW, appealed against that decision.
2 Despite the fact that KW’s appeal was lodged out of time, we accepted it: Administrative Decisions Tribunal Act 1997, (ADT Act), section 118B(2). The Appeal Panel's jurisdiction to hear external appeals comes from section 67A of the Guardianship Act 1987 (Guardianship Act) and section 118A of the ADT Act. An external appeal may be made as of right on any question of law or by leave on any other ground: ADT Act, section 118B(1). KW appealed on questions of law and sought leave to appeal against the merits of the Guardianship Tribunal’s decisions.
Parties and representation
3 The appellant, KW, appeared in person. Ms Critchley, a solicitor from the Aged Care Rights Service, appeared for KZ. There was no appearance by the other adult daughter or the son. The Guardianship Tribunal said that it wished to have an active role in the appeal, but only to the extent of being available to make submissions in relation to its practices and procedures. That is consistent with the principles outlined by the High Court in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35. Ms Cho appeared for the Guardianship Tribunal.
Grounds of Appeal
4 The daughters appealed against the Guardianship Tribunal’s decision on the ground that the Protective Commissioner had not made decisions which were in the best interests of their mother. KW provided details of how the Protective Commissioner’s decisions had adversely affected her mother’s finances. She also provided fresh evidence of precisely how she would manage her mother’s affairs if she were to be appointed as financial manager. Because she was not legally represented KW did not couch the error in legal terms. We understand her submission to be that the Tribunal erred by rejecting her application on the basis that she had not proved either that the Protective Commissioner had mismanaged her mother’s affairs or that she had an alternative plan of management for dealing with her mother’s estate.
Relevant legal principles
5 Section 25S of the Guardianship Act entitles a person with a genuine concern for the welfare of the protected person to apply for a review of the Tribunal’s appointment of the manager of the protected person’s estate. So far as is relevant to the circumstances of this case, section 25U(4)(b) provides that the Guardianship Tribunal may revoke the appointment only if it “is satisfied that it is in the best interests of the protected person that the appointment be revoked.”
6 The nature of the discretion to revoke the appointment of a financial manager was considered in detail by the Court of Appeal in the context of section 22 of the Protected Estates Act 1983, in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227. Unlike s 25U(4)(b) of the Guardianship Act, that provision does not state expressly that the test to be applied when exercising the discretion is the best interests of the protected person. Nevertheless, the Court of Appeal (Kirby P, Sheller JA & Windeyer A-JA agreeing) emphasised at page 241, that the “abiding rule in the exercise of powers under that Act is the achievement of the best interests of the protected person”. Their Honours held at 239, that if, despite the Protective Commissioner having been validly appointed, it is later shown that, “on balance, it is in the best interests of the beneficiary that some other suitable person, or persons, should be appointed as manager of the protected person’s estate, the court is duty bound to appoint that other person or persons.” (Emphasis added.)
7 The Court of Appeal rejected the principle propounded by a single judge of the Supreme Court in the proceedings at first instance, that the person applying for a change of manager bears the onus of demonstrating a “clear and convincing” case that the form of management proposed would better advance the interests of the protected person than the existing arrangements. When urged to provide guidelines to assist decision makers decide whether to remove an existing manager, the Court thought it inappropriate that the discretion should be confined by rigid rules or guidelines. Nevertheless, their Honours listed factors, which they regarded as relevant when exercising the discretion. Some relate to general principles and the onus of proof, others relate to matters, which may be relevant in weighing up the pros and cons of making an order.
8 In relation to onus of proof, the Court put it no higher than saying that generally a person who seeks the removal of a manager needs to show “some reason” why the Court should so order (at 241). Importantly, there is no requirement for an applicant to demonstrate that the manager has acted incompetently, improperly or unlawfully (at 242). While proof of those matters will be relevant and persuasive, ultimately the decision depends on no more or less than where the best interests of the protected person lie. The Court also emphasised that while conflicts of interest should be taken into account, they do not necessarily present an ultimate bar to the appointment of a person as a financial manager (at 242).
Guardianship Tribunal’s decision
9 As well as the decision in Holt, the Tribunal cited the decision in Re L (2000) NSWSC 721. That was a case involving a woman who had received $990,000 as compensation following a motor vehicle accident. The question for Young J was whether the woman’s father, rather than the Protective Commissioner, should be appointed as the manager of the woman’s estate. The Tribunal quoted two passages from this decision. Those passages are set out in full below:
10 The Tribunal concluded that while it had sympathy for the daughters’ application to be appointed as financial managers, their “allegation that the Protective Commissioner has mismanaged their mother’s estate is not made out”. The Tribunal then examined the evidence in relation to five instances where the daughters said that the Protective Commissioner had not managed their mother’s financial affairs in her best interests. It found in relation to those matters that they were either without substance or that there was no wrong-doing on the part of the Protective Commissioner.
12 In the case of a relative, the Court must look to see that there are minimal conflicts of interest, or, if conflicts of interest cannot be avoided, that they are properly dealt with. In the case of a private manager who purports to have financial expertise, the Court needs to be satisfied not only of that person's good fame and character and of his or her ability generally to manage funds, but also that that person has a good conception as to what is required of a fund manager.
. . .
24 However, the Court needs to be assured that the manager with financial expertise has directed his mind to this particular problem and has produced some outline plan to demonstrate how this can be achieved. The Court, of course, realises that all sorts of market pressures and interest rate changes may affect the future. What has to be established, however, is not only that the manager is a person with the appropriate expertise and probity (and about those two matters I am satisfied in the instant case), but also that he or she has directed his or her mind to the actual issues in this case.
11 The Tribunal concluded that the daughters:
Correct approach
. . . did not show how they would manage and deal with financial management issues for their mother if appointed instead of OPC. They gave evidence of their general suitability and competence demonstrated in their own lives. We accept that evidence.
However given the extreme family conflict and the resulting adverse effect upon the estate of [KW] something more was required. In the circumstances and having regard to the tests enunciated in the decisions (Holt and Re R) there needed to be a plan of management for what is left of the estate and how the first applicants would economically deal with any further action by [the son] and how they would act to prevent his actions further dissipating the estate. For the first applicants to displace OPC in the absence of findings of mismanagement, negligence and incompetence by OPC they needed to demonstrate how they would service their mother’s needs and what are the issues to be addressed.
The failure to address the positive issues for [KW’s] management in the future and just concentrate on the proper criticisms of [the son] and indicate dissatisfaction with OPC was not enough to discharge the onus of proof by them.
12 In our view, the correct approach in the circumstances of this case, in accordance with the principles outlined in Holt and Re L , would have been to start from the proposition that the Tribunal has a broad discretion to revoke the appointment of a financial manager: section 25U(4). Before doing so, the Tribunal must be satisfied that it is in the best interests of the protected person: section 25U(4)(b). If it comes to that view, the Tribunal is “duty bound” to revoke the order.
Although the Guardianship Tribunal referred to the decisions in Holt and Re L , in our view, it did not correctly apply the principles in those decisions. In order to revoke the order, the Tribunal required the daughters to either prove that the Protective Commissioner had acted incompetently, improperly or unlawfully or, in the light of the extreme family conflict, prove that had a plan of management for the estate and a plan to deal with any further negative action by their brother. As we have said, the Court of Appeal in Holt held that it was generally sufficient for applicants to show “some reason” for changing the financial manager. While having a plan of management is a relevant consideration, especially for large estates, the absence of such a plan does not necessarily mean that it will not be in the subject person’s best interests to appoint a private manager.
13 The discretion should be exercised in accordance with the purposes of the Guardianship Act and the general principles in section 4. The person applying for the revocation should generally provide “some reason” for revoking the order. That reason may be that the manager has acted incompetently, improperly or unlawfully. If the person applying for revocation has a conflict of interest with the protected person, that would ordinarily preclude him or her from being appointed as the manager, but it does not present an absolute bar to that appointment. Finally, the pros and cons of appointing a public or a private manager should be weighed up before determining whether it is in the best interests of the person that the order be revoked.
Appeal against the merits of the Tribunal’s decision
14 KW also applied for leave to appeal against the merits of the Guardianship Tribunal’s decision. The Appeal Panel has power to grant that leave and to determine whether the application to revoke the appointment of the Protective Commissioner should be granted. Although that course would probably be quicker and easier for the parties, we are mindful of the fact that the Guardianship Tribunal is a specialist Tribunal with considerable expertise in relation to people who are incapable of making their own decisions. In our view, that Tribunal is better placed to make the ultimate decision in accordance with the approach we have outlined.
Orders
1. Appeal allowed.
2. The Guardianship Tribunal’s decision to dismiss the application of KW and KY to revoke the appointment of the Protective Commissioner as manager of KZ’s estate, is set aside.
3. The matter is remitted to the Guardianship Tribunal to be heard and decided again.
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