Michael (a pseudonym) - [2025] NSWCATGD 2

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Michael (a pseudonym) [2025] NSWCATGD 2
Hearing dates: 12 March 2025
Date of orders: 12 March 2025
Decision date: 12 March 2025
Jurisdiction: Guardianship Division
Before: K A McMahon, Senior Member (Legal)
Dr M J Wroth, Senior Member (Professional)
D R Sword, General Member (Community)
Decision:
1. The estate of Michael is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of Michael is committed to the NSW Trustee and Guardian.

Catchwords:
FINANCIAL MANAGEMENT – subject person is 57-year-old and is diagnosed with early onset dementia –– subject person is incapable of managing his affairs due to cognitive difficulties ––need for a financial management order despite enduring power of attorney – who should be appointed as financial manager – need for independent management – estate committed to the NSW Trustee and Guardian

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW),
s 36
Guardianship Act 1987 (NSW), ss 4, 25M

Cases Cited:
Application by AMAM; Re SAM [2011] NSWSC 503
CJ v AKJ [2015] NSWSC 498
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
M v M [2013] NSWSC 1495
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
Szozda v Szozda [2010] NSWSC 804

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Financial Management Application
Michael (the person)
Rebecca (applicant)
Logan (attorney, joined party)
Hank (carer)
NSW Trustee and Guardian
Representation: M Streeter as Separate Representative

File Number(s): NCAT 2024/00386893
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS for decision

Background

Michael is a 57-year-old man of Macedonian heritage. He is diagnosed with early onset dementia.
Michael is separated from his former spouse, Pauline. They have four children, Elise, Logan, Mathew and Tim. Michael’s parents are Hank and Marcella. Michael has a sister, Rebecca.
Meaning no disrespect but to assist in ease of reference, we will refer to Michael and his family members by their first names in these reasons.
Following a progressive breakdown in the marital relationship, Pauline left the family home in 2022. Following his separation from Pauline, Michael continued to reside in the family home. Hank and Marcella own, and have also resided at, this property.
Around five years ago, Elise moved into a unit owned by Michael and Pauline in South Sydney. In late 2024, Logan got married and has moved into a duplex owned by Michael and Pauline in Inner Southwest Sydney. Mathew and Tim continue to reside at the family home.
Some years ago, Hank purchased a unit in Macedonia. The…

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 Michael (a pseudonym)

Details

AGLC: Michael (a pseudonym) [2025] NSWCATGD 2
Case: [2025] NSWCATGD 2
Decision Date: 12 March 2025

CaseChat Overview and Summary

The case involved a 57-year-old individual identified as Michael, who was diagnosed with early onset dementia. Michael was found to be incapable of managing his own affairs due to significant cognitive difficulties. The court was required to determine whether a financial management order should be issued, and if so, who should be appointed as Michael’s financial manager. Despite the existence of an enduring power of attorney, the court considered the necessity for independent management due to Michael's condition.

The central legal issues the court addressed were whether Michael was indeed incapable of managing his affairs and whether there was a necessity for an independent financial management order. The court examined the evidence regarding Michael's cognitive abilities and his capacity to make decisions about his finances. Given Michael’s diagnosis of early onset dementia and the associated cognitive decline, the court concluded that he was unable to manage his financial affairs effectively. The court also considered the role of the existing enduring power of attorney and determined that independent management was required to ensure Michael’s best interests were protected.

In reaching its decision, the court highlighted the importance of protecting individuals with cognitive impairments from financial exploitation and ensuring their welfare. The court found that committing the management of Michael's estate to the NSW Trustee and Guardian was the most appropriate course of action. This decision was made to safeguard Michael’s assets and ensure that his financial affairs were managed in his best interests.

The final orders of the court were that Michael's estate would be subject to management under the NSW Trustee and Guardian Act 2009, and the management of his estate was committed to the NSW Trustee and Guardian. This decision ensured that Michael’s financial affairs would be managed independently and appropriately, taking into account his cognitive limitations.

Orders

Orders of the court

1. The estate of Michael is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. The management of the estate of Michael is committed to the NSW Trustee and Guardian.

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:	Michael (a pseudonym) [2025] NSWCATGD 2
Hearing dates:	12 March 2025
Date of orders:	12 March 2025
Decision date:	12 March 2025
Jurisdiction:	Guardianship Division
Before:	K A McMahon, Senior Member (Legal) Dr M J Wroth, Senior Member (Professional) D R Sword, General Member (Community)
Decision:	1. The estate of Michael is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of Michael is committed to the NSW Trustee and Guardian.
Catchwords:	FINANCIAL MANAGEMENT – subject person is 57-year-old and is diagnosed with early onset dementia –– subject person is incapable of managing his affairs due to cognitive difficulties ––need for a financial management order despite enduring power of attorney – who should be appointed as financial manager – need for independent management – estate committed to the NSW Trustee and Guardian
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 36 Guardianship Act 1987 (NSW), ss 4, 25M
Cases Cited:	Application by AMAM; Re SAM [2011] NSWSC 503 CJ v AKJ [2015] NSWSC 498 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 M v M [2013] NSWSC 1495 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 Szozda v Szozda [2010] NSWSC 804
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Financial Management Application Michael (the person) Rebecca (applicant) Logan (attorney, joined party) Hank (carer) NSW Trustee and Guardian
Representation:	M Streeter as Separate Representative
File Number(s):	NCAT 2024/00386893
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.