LVB

[2015] NSWCATGD 56

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	LVB [2015] NSWCATGD 56
Hearing dates:	17 November 2015
Date of orders:	17 November 2015
Decision date:	17 November 2015
Jurisdiction:	Guardianship Division
Before:	C Murray, Senior Member (Legal) H Creasey, Senior Member (Professional) L Stewart, General Member (Community)
Decision:	Financial management order; interim financial management order made for four months, estate committed to management, private manager appointed.
Catchwords:	FINANCIAL MANAGEMENT – application for a financial management order – concerns about proposed transfer of funds overseas – Tribunal did not determine capability to manage own affairs – urgent hearing – short notice given – procedural fairness – interim financial management order made
Legislation Cited:	Guardianship Act 1987 (NSW), s 3(2), 4, 25, 25G, 25H, 25M NSW Trustee and Guardian Act 2009 (NSW), s 39
Category:	Principal judgment
Parties:	Mr LVB (subject person) Mr BCG (applicant) NSW Trustee and Guardian
Representation:	Nil
File Number(s):	61122
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

FINANCIAL MANAGEMENT APPLICATION

Contents

1. These Reasons for Decision are arranged under the following headings:

• What the Tribunal decided

• The hearing

• Background concerning Mr LVB

• The legislative framework governing the Tribunal’s power

• What did the Tribunal have to decide?

• Is Mr LVB incapable of managing his own affairs?

• Who should be appointed as financial manager under the interim financial management order?

What the Tribunal decided

2. The Tribunal made an interim financial management order committing Mr LVB’s estate to management under the NSW Trustee and Guardian Act 2009 (NSW) and appointed Mr BCG as financial manager of that estate. The interim financial management order was for a period of four months. The proceedings were otherwise adjourned to a date to be fixed.

The hearing

3. The application was heard as a matter of urgency. It was filed on Monday 16 November 2015 and listed for hearing at 11:30 AM on Tuesday 17 November 2015. Mr LVB was informed about the application and the hearing earlier on the morning of 17 November 2015 while he was an inpatient at a public hospital.

4. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing of the application on 17 November 2015. [Appendix removed for publication.] The hearing was conducted by telephone. Mr LVB participated in the hearing to the extent that he was able given the circumstances, including the very short notice that he had received.

5. The Tribunal did not consider it appropriate in the circumstances of these proceedings to use resolution processes other than those inherently available to it during its informal hearing process. During the hearing the Tribunal endeavoured to draw out agreement from the parties in respect of the issues or, otherwise, to narrow those issues.

Background concerning Mr LVB

6. Mr LVB is a 79-year old man who has lived in Australia since the 1960s or 1970s. He is an Australian citizen and has an Australian passport. Mr LVB identifies as Hungarian and wishes to return to Hungary to live out the rest of his life. He has relatives in Hungary, including a niece.

7. Mr LVB recently sold his unit in Inner West Sydney and he holds the proceeds of sale in a bank account in his name at branch in the Sydney CBD. The credit balance in that account is approximately $550,000.

8. Mr LVB apparently intends to transfer that money to Hungary to an account of his niece or her husband, as he has no bank account himself in Hungary. The intended transfer is to support his proposed move to Hungary including, possibly, the purchase of property there. Mr LVB apparently attended at the Sydney CBD branch on Friday, 13 November 2015, to effect the transfer but did not have with him the full details of the account to which the money was to be transferred. The applicant, Mr BCG, believed that Mr LVB does have those details and that he may try again to effect the transfer at anytime.

9. Mr LVB’s right to live permanently in Hungary is not yet established. Nor is the portability of his Australian pension that is his principal source of income.

10. On 16 November 2015, an urgent application was received from Mr BCG for the appointment of a financial manager for Mr LVB. Mr BCG is Mr LVB’s second cousin (his mother was Mr LVB’s cousin). Mr BCG states that he is Mr LVB’s only relative in Australia. Mr LVB refers to Mr BCG as his nephew.

11. The matter was listed for urgent hearing on 17 November 2015.

12. Mr LVB is presently an inpatient at a public hospital awaiting an operation scheduled for Friday, 20 November 2015.

13. Mr LVB’s ‘partner’, Ms FSK, is also an inpatient at the same public hospital and is reported to be very unwell. Ms FSK has her own home at East Sydney where she normally resides.

The legislative framework governing the Tribunal’s power

14. It is helpful as an aid to understanding the Tribunal’s decision to set out the legislative framework within which it is acting in deciding whether to make a financial management order.

15. The Tribunal is the Civil and Administrative Tribunal of New South Wales in its Guardianship Division. The Guardianship Division has been assigned the functions of the Tribunal in relation to the Guardianship Act 1987 (NSW) and some other specified Acts.

16. The making of a financial management order is a function under the Guardianship Act and is governed by the legislative framework set out in that Act.

17. It is the duty of everyone exercising functions under the Guardianship Act, including the Tribunal, with respect to persons who have disabilities, to observe the following principles set out in s 4 of that Act:

1. the welfare and interests of such persons should be given paramount consideration,

2. the freedom of decision and freedom of action of such persons should be restricted as little as possible,

3. such persons should be encouraged, as far as possible, to live a normal life in the community,

4. the views of such persons in relation to the exercise of those functions should be taken into consideration,

5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

7. such persons should be protected from neglect, abuse and exploitation,

8. the community should be encouraged to apply and promote these principles.

18. (A similar duty applies to appointed financial managers pursuant to s 39 of the NSW Trustee and Guardian Act.)

19. These principles reflect the protective nature of the guardianship jurisdiction (which includes the financial management jurisdiction) but seek to strike a balance between providing necessary protection and promoting empowerment of persons with disabilities including by intruding no more than is necessary on their rights and liberties. Strictly speaking, the financial management regime under the Guardianship Act, unlike the guardianship regime under that Act, focuses on incapability per se without the requirement to base that incapability on a person’s disability. Nevertheless, it will usually be the case that the incapability is so based. In that case, the duty in s 4 is enlivened, including the principle that the welfare and interests of the person are to be given paramount consideration.

20. A "person who has a disability" is defined in s 3(2) of the Guardianship Act as a person:

1. who is intellectually, physically, psychologically or sensorily disabled,

2. who is of advanced age,

3. who is a mentally ill person within the meaning of Chapter 3 of the Mental Health Act (Forensic Provisions) 1990 (NSW), or

4. who is otherwise disabled,

5. and who, 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. Section 25G of the Guardianship Act provides that:

25G Grounds for making financial management order

The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person’s capability to manage his or her own affairs and is satisfied that:

(a)    the person is not capable of managing those affairs, and

(b)   there is a need for another person to manage those affairs on the person’s behalf, and

(c)   it is in the person’s best interests that the order be made.

22. Section 25H of the Guardianship Act provides in part that:

25H   Interim financial management orders

(1) Despite section 25G, the Tribunal may, …make a financial management order for a specified period not exceeding 6 months (an interim financial management order), pending the Tribunal’s further consideration of the capability of the person to whom the order relates to manage his or her own affairs.

(2) …

(3)    If the further consideration of the capability of the person to whom the interim financial management order relates to manage his or her own affairs is not completed before the expiry of the period specified in the order, the order is taken to be revoked on that expiry.

What did the Tribunal have to decide?

23. The questions to be considered by the Tribunal on the application for the appointment of a financial manager are:

• Is Mr LVB incapable of managing his affairs?

• Is there a need for another person to manage Mr LVB’s affairs and is it in his best interests for a financial management order to be made?

• If so, who should be appointed financial manager?

24. Overlaying these questions are considerations of procedural fairness given the speed at which the application has been brought on and the consequent very short notice able to be given to Mr LVB. The Tribunal needs to strike the appropriate balance between its obligations pursuant to its protective jurisdiction and its obligations to proceed fairly. In the circumstances, both sets of obligations concern Mr LVB’s welfare and interests, but they may pull in opposing directions. An appropriate balance of accommodation of these obligations may need to be found to suit the circumstances.

Is Mr LVB incapable of managing his affairs?

25. The Tribunal had before it a letter dated 16 November 2015 from Dr Z, Registrar at the public hospital, on behalf of Dr Y (Consultant Physician), which stated:

[Mr LVB] is currently an inpatient under General Medicine at [a public hospital] with a medical condition. During his stay it has become apparent that he is significantly cognitively impaired and likely has an underlying dementia that needs further diagnostic workup. His Mini-Mental State Examination scored 19/30 (normal >25/30) which is highly concerning and raises significant questions about his capacity. He was seen by the visiting consultant Geriatrician who felt that [Mr LVB] lacks insight into his cognitive impairment, and likely does not have capacity to make financial and healthcare-related decisions. In addition, he is due for surgery this Friday and will be an inpatient until then at which point he will be transferred to [another public hospital] with a plan for neuropsychiatric assessment to establish if he does have capacity.

26. In his application, Mr BCG stated that:

[Mr LVB] is currently experiencing a very high stress level ... I am convinced that [Mr LVB] does not have the capacity at the moment to handle important decisions about handling large amounts of money in his own best interest. He is currently lacking the mental flexibility he had before and has problems to process simple information in a rational way…[Mr LVB] still has the ability to manage his daily affairs and pay his bills. But currently he would sign any paperwork (without reading it) if he thinks that it would help to fulfil his dream to move to Hungary for good.

27. At the hearing, Mr LVB gave evidence to the Tribunal that he had read the paperwork this morning and that he did not agree with the application. He said that he could manage his money. He told the Tribunal that he wanted to move to Hungary and that he had been there 10 times in the last 30 or 40 years. He said he was proposing to transfer his money to his brother’s daughter who was very close to him and that there was not much risk. He said his relatives would help him in Hungary. He said that he had made inquiries in Canberra and had been told there would be no problems with his residency in Hungary and citizenship. Mr LVB admitted that maybe his capacity was not the best but said he still had a good memory. He agreed with Dr Z that he had some dementia. Dr Z added that she thinks it is worse than he realises.] He said he still enjoyed his life and would like to live and die in Hungary.

28. Mr LVB was able to give the Tribunal information about his financial position including that he had recently sold his unit and received $545,000 that he had deposited in his bank account at a Sydney CBD branch. He said he had some other savings of $10,000 or $11,000 with another bank but he could not recall the name of the bank. He said it was Australia’s third largest Bank. He said he received a pension payment of about $8,050 every two weeks (by which he obviously meant about $850 which would tally with his bank passbook entries). He said he had no other income.

29. Mr BCG gave evidence to the Tribunal that last week he had helped Mr LVB to manage his deposits to obtain better interest ($311 per week or approximately $16,000 per year). He also explained to Mr LVB that he wanted to help him go to Hungary but wanted to ensure that his savings were safe. He told Mr LVB that he needed someone to help him manage his finances to go overseas so that he could have a nice retirement. He explained to Mr LVB that Mr LVB needed support to buy a house or apartment in Hungary to ensure that he got what he thought he was getting. He also explained that there were other options for accessing his money in Hungary without transferring it all over now and that he wanted to help him with reading contracts, and obtaining his visa.

30. In the light of the evidence set out above, which it accepted, the Tribunal was of the opinion that the question of Mr LVB’s capability to manage his own affairs was still open and that it needed further consideration. The Tribunal considered that it would be greatly assisted in that further consideration by the results of Mr LVB’s neuropsychiatric assessment proposed to be undertaken at the other public hospital after his transfer there following his surgery. Accordingly, the Tribunal was minded to make an interim financial management order in respect of Mr LVB to enable that further consideration to be undertaken and to preserve his financial position in the meantime. The Tribunal was of the opinion that there were serious potential risks in Mr LVB proceeding in the way he intended with what were essentially his life savings. The Tribunal was not satisfied that the proposed immediate transfer of those savings to someone else’s account in a country in which Mr LVB has no present right of residency, and without prudential safeguards, was not both unnecessary and unwise.

31. It was open to the Tribunal to make an interim financial management order for a period up to six months. The Tribunal was, however, mindful of the very limited notice of the proceedings that Mr LVB had been afforded. In these circumstances, the Tribunal was of the opinion that the period of the order should be as short as possible but adequate to allow Mr LVB time to recover from his surgery, to undergo the proposed neuropsychiatric assessment, and to have a proper opportunity to consider the application and to prepare for its further hearing. A period of four months was considered appropriate.

32. In the Tribunal’s opinion, the course that it decided upon did provide an appropriate balance of accommodation of its competing obligations to Mr LVB in the particular circumstances that were presented (refer to [23] above).

33. For the sake of clarity, the Tribunal confirms that it has not determined at this point whether Mr LVB is capable or not of managing his affairs. That matter will be determined on the further hearing of the matter after the adjournment. Any consequential questions as set out in s 25G of the Guardianship Act will also be determined then. The sole remaining matter is to determine who should be appointed as the financial manager under the interim financial management order.

Who should be appointed as financial manager under the interim financial management order?

34. Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person’s estate or may commit the management of the estate to the NSW Trustee and Guardian.

35. Mr BCG told the Tribunal that he was prepared to be appointed as the interim financial manager for Mr LVB. For his part, Mr LVB told the Tribunal that he trusted Mr BCG and that he would be happy for Mr BCG to be appointed to assist him.

36. Following consideration, the Tribunal was satisfied that Mr BCG was a suitable person to be appointed as interim financial manager for Mr LVB, subject to the authorities and directions of the NSW Trustee and Guardian. Mr BCG was appointed accordingly.

37. In discussion with the Tribunal, Mr BCG indicated that during the adjournment he would also seek to ascertain from Mr LVB’s niece in Hungary further details, if any, of the planning for Mr LVB’s possible move to Hungary as well as endeavouring to ascertain whether Mr LVB’s pension would be portable and what the position would be concerning his possible residency there.

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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: 23 December 2016