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

1. Michael is a 57-year-old man of Macedonian heritage. He is diagnosed with early onset dementia.

2. 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.

3. 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.

4. 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.

5. 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.

6. Some years ago, Hank purchased a unit in Macedonia. The unit is in Michael’s name and is unoccupied. Around 12 months ago, Hank transferred another property which he owned in Inner West Sydney to Rebecca.

7. In 2024, Michael made a number of enduring powers of attorney and enduring guardianship appointments as follows:

1. On 9 July 2024, he appointed Rebecca as his attorney, and his friend, Vincent, and niece, Charlotte, jointly as his substitute guardians.

2. On 9 July 2024, he appointed Rebecca as his attorney, and Vincent and Charlotte jointly as substitute attorneys.

3. On 19 September 2024, he appointed Logan as his attorney (general power).

4. On 10 October 2024, he revoked the enduring power of attorney and enduring guardianship appointments made on 9 July 2024.

5. On 26 November 2024, he appointed Logan with enduring power of attorney.

8. There are differences of view as between Michael’s children, on the one hand, and Rebecca and Hank, on the other, as to the management of Michael’s financial affairs. In the context of their competing attempts to provide support to Michael, their relationship has broken down and conflict has arisen within the family.

9. On 18 October 2024, the Tribunal received an application from Rebecca for a financial management order for Michael. Rebecca expresses concern about the management of Michael’s assets and his interests in a family law property settlement with Pauline. She states that Michael is without income, that he is dependent on financial support from Hank, and is at risk of his estate not being effectively managed to ensure that he has funds for future care.

The hearing

10. 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.]

General Principles

11. Section 4 of the Guardianship Act 1987 (NSW) provides as follows:

4 General Principles

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a)    the welfare and interests of such persons should be given paramount consideration,

(b)    the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c)    such persons should be encouraged as far as possible, to live a normal life in the community,

(d)    the views of such persons in relation to those functions should be taken into consideration,

(e)    the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

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

(g)    such person should be protected from neglect, abuse and exploitation,

(h)    the community should be encouraged to apply and promote these principles.

12. Section 36 of the Civil and Administrative Tribunal Act 2013 (NSW) provides as follows:

36 Guiding principle to be applied to practice and procedure

…   The “guiding principle” for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

…

What did the Tribunal have to decide?

13. The questions to be considered by the Tribunal are:

1. Is Michael incapable of managing his affairs?

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

3. If so, who should be appointed financial manager?

Issues and Evidence

14. We were provided with statements and submissions from Rebecca, Logan, and third parties, health professional reports, financial documents, and other material relating to Michael’s estate and property settlement. The material provided addresses issues relating to family history and relationships over many years. For the purposes of providing these reasons, we do not detail all the material, but do so as necessary to determine the application before us.

15. It is not in issue as between Michael’s family members that he requires either an appointed attorney or a financial manager due to the progression of his dementia. The issue more in dispute between them is who that should be.

Health professionals’ evidence

16. In a report dated 1 July 2024, Dr Doe, Geriatrician, states to the effect that:

1. Michael has significant cognitive impairment with a Mini-Mental State Examination (MMSE) score of only 21/30 and Alzheimer’s pathology confirmed on a PET scan. His cognitive impairment is likely due to early onset Alzheimer’s dementia.

2. He demonstrates an inability to retain important information regarding his finances and is unable to make informed decisions. Michael is at risk of being financially exploited and is not able to manage complicated financial issues relating to his divorce. The stress and depression arising from his traumatic divorce may be a contributing factor but is less likely.

3. Michael demonstrates that he had the ability to appoint persons to act on his behalf in relation to financial and lifestyle choices. He consistently expressed his wish for his father and sister to take up these roles.

17. Dr Jane, Clinical Neuropsychologist, assessed Michael in September 2024. In her report, Dr Jane states to the effect that:

1. Michael was stressed and worried about the enduring power of attorney and guardianship that he had recently assigned to his sister. He expressed wanting to change it to his four children because his sister is “not a good person” and “has other agendas”. Michael was unable to explain why he had assigned an enduring power of attorney to his sister given his complex relationship with her.

2. Neuropsychological assessment is consistent with Michael having Alzheimer’s disease. He has deficits in his ability to learn new information and retain it, with his visuospatial functioning, language, and with his executive function. He has difficulty with reasoning, arithmetic, mental flexibility, inhibition, planning, and with problem solving.

3. In terms of his decision-making capacity, Michael displays widespread cognitive impairment and has had a recent history of inconsistency and vulnerability in terms of financial decision-making.

4. Michael’s insight into the extent of his cognitive difficulties is extremely limited.

5. He will benefit from the support of a substitute decision-maker. There is significant conflict around his enduring power of attorney appointments. The appointment of a financial manager may be of more benefit to him.

Michael’s financial affairs

18. On the basis of the documents provided and the oral evidence at the hearing:

1. Michael previously worked as a facility manager for around 12 years and as an insurance manager for around 21 years. He stopped working around four years ago. His dementia is progressing. It is unlikely that he will be able to be employed again.

2. Currently, he has no income other than some money his father provides to him. He does not contribute to bills at the family home. Expenses such rates, utilities, and household groceries are covered by his father.

3. Michael is not in receipt of any social security payments, such as Newstart or a Disability Support Pension. He has superannuation but has not accessed this. He may be able to make a claim for total and permanent disability.

4. The duplex in Inner Southwest Sydney is not subdivided and comprises two units. One of the units is occupied by Logan and the other unit is rented out. Michael and Pauline have a mortgage on the duplex. A significant amount is still owing on the mortgage, roughly in the vicinity of $500,000.

5. Logan states that he is paying $400 a week rent for the unit in Inner Southwest Sydney. There is no formal lease. The unit requires repairs including damage to the balcony. He is assisting with the repairs. The other unit is leased out for $700 per week, but he states it is in a better condition.

6. Elise does not pay rent at the South Sydney unit. However, she helps to pay the bills such as the rates and strata fees, utilities, and some repairs.

7. For at least several years, Pauline has been primarily responsible for managing financial matters relating to the joint assets and income, liabilities of the marriage, and management of their bank accounts.

8. The unit in in Macedonia, is unoccupied and not generating any income. The unit was used recently by Rebecca’s daughter and her friends for a period of time whilst they were travelling on holiday in Europe.

9. Rebecca states that Hank purchased the Macedonia property for all the family, although it is in Michael’s name.

10. Around 12 months ago, Hank transferred a property that he owned in Inner West Sydney to Rebecca. He states that he did this “so she can help [Michael]”.

Property settlement

19. A focus of Rebecca’s application relates to concerns that Michael’s interests be protected in relation to a property settlement with Pauline. Dr Doe states that Rebecca reported that Michael had been forgetful and anxious around this process, and concerns about Michael’s inability to make decisions.

20. In 2024, Rebecca assisted Michael to instruct Law Firm A. In evidence are copies of correspondence between them and Law Firm B who are representing Pauline and advice provided to Michael in relation to a settlement. No court proceedings are on foot. However, Law Firm A have sought that both Michael and Pauline provide financial disclosure to assist in a settlement.

21. Rebecca states this process was halted by the intervention of Michael’s children who have arranged for him to instruct other lawyers, Law Firm C. She states that Pauline is influencing her children to Michael’s detriment. Rebecca states that she is motivated to protect the interests of Michael and his children.

22. Michael’s children in turn allege that Rebecca has improperly influenced Michael. They state that she has acted unilaterally and is motivated to protect her own interests, for example, in relation to the Macedonia property and her inheritance.

23. There have been discussions within the family about whether, and to what extent, the assets of Michael and Pauline should be liquidated, how this should occur, and how this will impact on the financial interests of their children. There are competing concerns expressed and divided views within the family.

24. Currently, it appears that any property settlement is in a state of abeyance.

Enduring guardianship and enduring power of attorney appointments

25. There are competing allegations that Michael was unduly influenced to make the various appointments and revocation of appointments during 2024.

26. Rebecca states that Michael sought her assistance, and that the enduring guardianship and enduring power of attorney appointments, done on 9 July 2024, were further to legal advice and following Dr Doe’s assessment. She relies upon Dr Doe’s assessment and the views expressed by Michael, which are supportive of him wanting her help and to appoint her as his attorney and his guardian. Logan takes issues that her appointment accords with Michael’s wishes.

27. A copy of the enduring power of attorney dated 9 July 2024 is before us. There is no irregularity on the face of the document. It is duly witnessed by a solicitor, Kate, who certifies that she explained the effect of the enduring power of attorney to Michael and that he understood it.

28. Also in evidence is Michael’s revocation of this appointment and subsequent general power of attorney and enduring power of attorney appointments made by him, following him changing lawyers to Law Firm C.

29. In evidence is a detailed correspondence from Law Firm C setting out the circumstances of these appointments and the views expressed by Michael.

30. A copy of the enduring power of attorney dated 26 November 2024 is in evidence. There is no irregularity on the face of the document, and it is duly witnessed by a solicitor, James, who certifies that he explained the effect of the enduring power of attorney to Michael and he understood it.

31. Law Firm C, state that they conferred at length with Michael and that he expressed, on several occasions, his concerns about appointing Rebecca as his attorney, and his intention that he would prefer to appoint Logan instead.

32. Mr Streeter queried Michael’s capacity to make any of the 2024 appointments. He submitted the evidence did not establish that Michael had the requisite degree of understanding required to make the enduring powers of attorneys, noting that the degree of understanding required will vary with the extent and complexity of the maker’s affairs. In this case, Michael’s affairs are complex, particularly with regard to his multiple property interests and intermingling interests with family members (See Szozda v Szozda [2010] NSWSC 804). In Mr Streeter’s view, Dr Doe did not apply the right test to assess his capacity.

Michael

33. Our interactions with Michael at the hearing were consistent with the evidence of Dr Doe and Dr Jane, that he has cognitive impairment arising from dementia. He had evident memory deficits, word finding difficulty, and difficulty with his verbal expression. Michael’s evidence indicates in effect that:

1. He has difficulty recalling details of any past or current enduring power of attorney appointments, and whether he wanted changes to be made.

2. He appeared to express a preference for Logan to be his attorney.

3. He does not want Rebecca to be involved in his affairs. She has intimidated and stalked him, and has previously said she will kill him.

4. Whilst aware that he has ownership of properties in South Sydney, Inner Southwest Sydney, and Macedonia, he is uncertain of whether he held properties jointly, receives any rental income, and all of the details of their occupation. He is aware that family members occupy properties. He wants to leave a legacy for his children. Together, as a family, he states that they can work this out.

5. His father meets his day-to-day expenses and is currently “his sponsor”.

6. His superannuation is for when he passes away and for his family.

7. He agrees that he has dementia, which is “now part of his life,” however, at this time, “he is confident” in his ability to manage his affairs. There are no major financial decisions that are necessary to make at this time.

8. When we asked about whether his affairs with his ex-wife were settled, he said that he is “not fully aware, but we have spoken,” and that “he needs help and advice to sort this out,” but thinks that it “can be sorted”.

34. On the basis of Mr Streeter’s submission, his interactions with Michael prior to the hearing were also consistent with him not having a sound appreciation of his income, assets, and liabilities. For example, Michael thought that his unit in South Sydney was worth around $30,000 and his unit in Macedonia around 150 Euros. In relation to any family law settlement, he stated nothing needs to be done. Michael expressed a preference for Logan, and not Rebecca, to be his attorney.

Family relationships

35. It is not in issue that:

1. Michael and Rebecca have had a tumultuous relationship at times.

2. There was an incident in 2013 whereby Rebecca made a threat to Michael during a telephone call. Following this, Michael made an application for an Apprehended Domestic Violence Order (ADVO) against Rebecca.

3. The ADVO application was withdrawn and dismissed following an agreement reached by Michael and Rebecca at a Community Justice Centre, which included that they would not have contact.

4. There was a period of estrangement between Michael and Rebecca for around 10 years. They have been more reconnected, however, from around 2016.

5. There have been difficulties and tension in the relationship between Rebecca and Pauline over the years.

6. Issues arising in the relationship between Rebecca, Michael, and Pauline has impacted on the amount of contact that Rebecca has had with Michael’s children. In recent years, however, they have been more reconnected.

7. Some of the issues causing tension within the family relate to arrangements with Hank and Marcella, and there are competing allegations made about their children accessing funds from them.

8. The relationship between Rebecca and Michael’s children has deteriorated, particularly due to events arising during 2024 and in the context of Michael’s decline and steps taken by them in response.

9. Since around September 2024, Rebecca has not been in direct contact with Michael. Michael is stating that he does not want contact with her.

36. Rebecca states in effect that:

1. Although her relationship with Michael has had its ups and downs, they have a close bond stemming from their childhood and their sibling relationship.

2. During significant periods such as the COVID-19 lockdowns, Michael began reaching out to her more frequently and they began reconnecting.

1. Michael reached out following disclosure of the breakdown of his marriage and sought out her support from late 2022. Other family members were not doing enough to support him at this time.

2. She was active in arranging for medical assessments and other supports and sought to involve Michael’s children. It is not the case that she sought to exclude them, and she wants to continue to involve them in decisions.

3. Michael’s children have misunderstood her intentions and the steps she has taken to support Michael and have now influenced him against her.

4. Her motive and commitment have been, and continues to be, Michael’s wellbeing, and to ensure his welfare now and in the longer term.

37. Logan states in effect that:

1. Rebecca has not been a stable presence in his family’s life but a disruptive one. Mainly, there has been estrangement and periods of no contact. She is domineering and manipulative, and causes Michael a lot of stress.

2. Rebecca is not primarily motivated to protect Michael’s interests but rather her own. She showed her “true colours” by “going behind their backs” and pressuring Michael to appoint her as his attorney. She failed to consult with Michael’s children about this and the other steps she has taken.

3. Rebecca seeks to undermine Michael’s relationships with his children. Her suggestion that his children have not consistently supported him is incorrect. They did arrange medical assessments and other supports.

4. It is best that Rebecca has no further involvement in Michael’s affairs.

5. His motivation has been, and continues to be, Michael’s wellbeing and to ensure his welfare now and in the longer term.

38. The views expressed by Michael’s other children are consistent with Logan’s.

39. Amongst the documents provided is a statement from Pauline and other members of Michael’s extended family and friends. This is consistent with there being divided views and a history of conflict in the family. Consistent with this also is the evidence of the family members at the hearing.

Hank

40. Hank’s evidence indicates that:

1. He provides a lot of financial support to Michael.

2. Michael needs help to make financial decisions due to his dementia.

3. Rebecca should be the one to help Michael to manage his finances.

4. There are complex issues within the family about properties. He said: “everything is complex and mixed up in our situation”.

5. Pauline should not be involved in making financial decisions for Michael.

Is Michael incapable of managing his affairs?

41. In Re D [2012] NSWSC 1006, White J assessed the history of case law in relation to financial management and noted that initially the issue of capability was approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Court now assesses the person’s own capacity to do what they are proposing to do [58]. White J used a “rational appreciation” of assets test to determine a person’s capability to manage his or her affairs. He adopts the reasoning of Barrett J in P v R [2003] NSWSC 819 who said that the task of the Court in these circumstances:

“… is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person’s property…the requisite judgment is to be made in the light of objective physical facts concerning the relevant person’s property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter [26].”

42. In PB v BB [2013] NSWSC 1223, Justice Lindsay confirmed that the question focuses attention on the special circumstances of the person. His Honour stated at [7]:

“Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack ‘mental capacity’ or be ‘mentally ill’; or (b) particular reasons for an incapacity for self-management.”

43. The test for determining a person’s capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]):

“Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests?”

…

“[A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.”

44. In considering whether the person is “able” in this sense, consideration may be given to:

1. past and present experience as a predictor of the future course of events;

2. support systems available to the person; and

3. the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498, [38]; and P v NSW Trustee and Guardian [2015] NSWSC 579, [309].

45. The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86). See Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [20].

46. Apart from Michael, the consensus of view expressed by Rebecca, Hank, Logan, Elise, Tim, and Mathew is that Michael is incapable of managing his financial affairs. This is consistent with the suitably qualified and independent expert opinion of Dr Doe and Dr Jane. Whilst Michael agrees that he has dementia, he states that he is confident in his ability to manage his affairs at this time. Our interactions with Michael were consistent, however, with him not having a reasonable appreciation of his income, assets, and liabilities, and what needs to be done to manage his affairs, or an ability to exercise sound judgement. Dr Jane’s assessment is that Michael’s insight into the extent of his cognitive difficulties is extremely limited and he demonstrates inconsistency and vulnerability. We were satisfied that Michael is incapable of managing his financial affairs.

Is there a need for a financial management order and is it in Michael’s best interests that the order be made?

47. It was not in issue as between Michael’s family members that he requires either an appointed attorney or a financial manager due to the progression of his dementia. The issue more in dispute between them is who that should be.

48. Rebecca’s appointment under the enduring power of attorney dated 9 July 2024 has been revoked. In her application, Rebecca sought an order appointing herself as Michael’s financial manager. We will consider this later in our reasons.

49. We considered whether we should dismiss the application on the basis that Logan is able to act as Michael’s attorney under the enduring power of attorney appointment dated 26 November 2024. We decided not to do this having regard to the following considerations:

1. Logan states that Michael had capacity to appoint him under the enduring power of attorney dated 9 November 2024, and that this appointment should be respected. The detailed evidence from Law Firm C as to the circumstances of the appointment weighs in favour of this view.

2. However, more persuasive is the evidence of Dr Doe and Dr Jane which details Michael’s significant cognitive impairment and his recent history of inconsistency and vulnerability in terms of his financial decision-making.

3. Whilst Michael appointed Logan on 9 November 2024, he appointed Rebecca a relatively short time earlier on 9 July 2024. This enduring power of attorney is duly witnessed by Kate, Solicitor. We accept Dr Doe’s evidence that Michael was expressing a preference for Rebecca at this time. He later expresses being stressed about this to Dr Jane.

4. Whilst we consider there is merit in Mr Streeter’s submission that Michael did not have capacity to make either of these enduring power of attorney appointments, and given the complexity of his affairs, our decision does not turn on a finding regarding whether or not he had capacity. Of greater concern is Logan’s capacity to act as an attorney in his best interests.

5. Our interactions with Michael at the hearing were consistent with him wanting Logan to manage his affairs. This is an important consideration. However, this is also outweighed by our concerns about Logan’s capacity to act as his attorney.

6. It is not in issue that Logan has progressed well with his education, qualifications, and his professional career as a physiotherapist. He presented as capable and committed to Michael’s welfare. Logan has the support of his siblings and wants to have regard for Michael’s views.

7. Mr Streeter did not support us dismissing the application on the basis that Logan can act as attorney. We agreed with his submission that essentially it is too difficult for Logan to navigate a path prioritising Michael’s best interest when there are competing financial interests of his own, his mother, his siblings, his grandparents, and also his aunt.

8. As submitted by Mr Streeter, Logan did not demonstrate that he is able to manage the competing and conflicting interests within the family. He did not demonstrate an ability to manage his own conflict of interest.

9. Logan has a conflict of interest arising from his occupation of the Inner Southwest Sydney unit, however, his evidence does not sufficiently demonstrate insight into this, or an ability to manage a conflict of interest moving forward. He said that “he is happy to pay more rent if this is an issue”. When we asked him how this would be decided, he said “it would be decided by his parents”.

10. Similarly, Logan considers that financial issues relating to Elise’s occupation of the South Sydney unit can also be worked out through discussion with his parents, and respecting their views that she lives there.

11. Logan states that what “[Michael] and [Pauline] and their children all want is a 50/50 split of assets to avoid unnecessary legal costs associated with the divorce”. As detailed in his evidence, Logan states that a plan can be worked out to split assets and to generate income for Michael.

12. Significantly, the thrust of Michael’s evidence is that a property settlement between his parents is a simple matter. He expresses a clear view that no further legal advice is required. In our view, however, even on the basis of Logan’s evidence, it is not a simple matter. There are multiple properties involved, a significant mortgage on the Inner Southwest Sydney duplex, and family members occupy properties. There are decisions required as to the split of assets, whether assets should be liquidated, if so, in what order, and how this should be done.

13. Logan said that his view that it should be 50/50 was not informed by legal advice. Instead, it was based on an agreement reached within the family.

14. Logan expresses a clear view that the Macedonia property can be sold as a first step to provide income for Michael. However, as noted by Rebecca, this may not be a straightforward process and it is in Macedonia. He states that other properties should be retained.

15. We accept Rebecca’s concern that securing an income for Michael is a pressing matter. Her evidence that the property settlement has stalled at the stage where Pauline was asked by Law Firm A to provide financial disclosure but has not done so is consistent with the legal correspondence provided. Some months have progressed since then.

16. As noted by Mr Streeter, there are pressing matters in relation to securing an income for Michael and Michael’s potential entitlement to disability benefits and insurance. Despite his assets, Michael is without income and is reliant upon the support being provided by Hank, including for his basic daily needs.

17. In some respects, Logan’s evidence indicated a lack of proactivity and/or reliance upon Pauline and her management of the marital assets. For example, in relation to the issue of insurance on the South Sydney and Inner Southwest Sydney properties, he would need to ask his mother as he does not know.

18. We had concerns about Logan’s ability to distinguish between Michael’s ability to express views and his capacity to make decisions. Logan said that Michael’s dementia was at an early stage. He said that he should follow Michael’s wishes about his properties and about his property settlement. This is despite the evidence of the health professionals regarding Michael’s significant cognitive impairment, his lack of capacity, and his lack of insight.

19. Proceeding on this basis of placing too great an emphasis on Michael’s expressed wishes, engenders too great a risk for Michael in view of his age, his significant disability, vulnerability, and likely future care needs

20. Further, in assessing what is in Michael’s best interests, it is important that we have regard to the views of Hank, who is his father and his carer. Hank did not express support for Michael’s finances being managed by Logan, but rather a preference for Rebecca and a concern about Pauline.

21. The suggestion that we should not place weight on Hank’s views as Rebecca is forceful and manipulative of her parents is not persuasive. Hank presented as well able to express his views. His observation that “everything is complex and mixed up in our situation” is most pertinent.

22. It is unlikely that Logan will be able to objectively consult with and have regard to the views of Hank and Rebecca. Indeed, Logan makes clear that he wants Rebecca to have no involvement whatsoever. He has fixed views as to her and motives and the Macedonia property. We accept, however, that whilst Rebecca and Michael have had periods of estrangement, in recent times, they have been more connected and he was wanting her support.

50. Further, whilst Logan proposed that he act as an attorney, he was open to a financial management order being made. He was open to the NSW Trustee and Guardian (NSWTG) being appointed. His main concern and that of his siblings was that Rebecca not be appointed under an order as Michael’s financial manager.

51. Having regard to all these considerations, we were satisfied there is a need for a financial management order and that this is in Michael’s best interests.

Who should be appointed as financial manager?

52. In appointing a financial manager, as in making all other orders under the Guardianship Act, the Tribunal must act with the interests of the person concerned as the paramount consideration, and in accordance with the other principles set out in s 4 of that Act.

53. 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 NSWTG.

54. In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court’s broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as the manager of an estate. The NSWTG now exercises the role of the Protective Commissioner.

55. On the side of the then Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation, and the security provided to an estate against loss or damage.

56. The advantages of the appointment of a family member were more economic management of smaller estates (that is, less fees), a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for, and knowledge of, the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers.

57. The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be “more apparent than real,” should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision-maker must be satisfied that the estate, income, and capital assets will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family.

58. In Application by AMAM; Re SAM [2011] NSWSC 503, Hallen AsJ stated at [34]:

“It would be unwise to attempt any definition of the matters that may legitimately be enquired into to determine whether the applicant is suitable. Each case must depend on its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager’s character, honesty and ability to manage, diligently, the managed person’s property in the managed person’s best interests.”

59. The matters or “guidelines” that should be considered when determining who to appoint as financial manager, as established in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, are discussed and expanded upon by Lindsay J in M v M [2013] NSWSC 1495 at [50].

60. We gave consideration to whether we should appoint Rebecca but decided that it is in Michael’s best interests that we appoint the NSWTG because:

1. Whilst Rebecca asked that we consider her for appointment, this does not accord with Michael’s currently expressed views, and he does not want to have contact with her at this time. Rebecca acknowledges that these are significant factors and will make it difficult for her to do the role.

2. Rebecca states that she and Michael have had a tumultuous relationship over the years. She agrees that she made a threat to kill him which led to the ADVO application but that this was not serious threat. Rather, it was something said in the heat of the moment when they were arguing.

3. She states that they had since reconnected, particularly so since 2022, and that she has become an important source of support with the challenges he is facing with his cognitive decline and his divorce. She states that she helped him access health care, a lawyer to update his superannuation nomination, and with other tasks. She attributes the subsequent breakdown in their relationship to misunderstandings of his children regarding her motives and Pauline’s influence on them. She states that they have now influenced Michael against her.

4. When we asked her how she would approach the role of financial manager in circumstances where Michael is not wanting contact with her, she said that she would work on building her relationships with his children, which she states in turn will improve Michael’s views of her. Whilst we accept her evidence on this issue is well intentioned, it is not realistic given the strength of their adverse views currently. In any event, it will likely take time and delay, which is contrary to Michael’s interests given the pressing matters that need to be addressed. As matters stand, she is not able to constructively consult with Michael or his children.

5. Further, as submitted by Mr Streeter, Rebecca also has a conflict of interest if she is appointed. Whilst her evidence at the hearing is that she is not opposed to the Macedonia property being sold, Rebecca has also stated that Hank purchased the property for all the family, although it is in Michael’s name. Her daughter and friends have stayed at the property. There are also issues of contention arising from the transfer by Hank of the property in Inner West Sydney around 12 months ago. Hank states that he did this so that Rebecca “can help [Michael]”. Whilst we accept that she is genuinely concerned for Michael’s interests and his welfare, it is apparent also that she is concerned about the financial interests of her parents, and the viability and appropriateness of their financial support to Michael.

1. Rebecca also raises the issue of funds provided by Hank to Michael and Pauline, and to their children over the years. As noted by Mr Streeter, this potentially raises issues relevant to a property settlement between Michael and Pauline. Logan raises issues of funds provided by Hank to Rebecca over the years as well, thus complicating her role, if appointed.

2. A further reason not to appoint Rebecca is that the focus of her concerns is Michael’s property settlement with Pauline, rather than a longer-term role in managing Michael’s financial affairs. She states in effect that she envisaged handing over the reins to his children once this was resolved.

3. These factors outweigh Michael’s previously expressed view reflected in his decision to appoint her and the evidence as to her suitability by reason of her professional experience and background.

4. Whilst asking that we appoint her, she was also open to the appointment of the NSWTG.

61. We sought Michael’s view as to whether we should make a financial management order appointing the NSWTG. He said that he was not sure and appeared to have difficulty with his ability to comprehend information and being able to express his views. We accept, however, that the thrust of Michael’s evidence is more to express his preference that Logan manage his affairs. This is an important factor for us to consider.

62. We gave consideration to whether we should appoint Logan as Michael’s financial manager. Having regard to the matters outlined earlier in these reasons, we had concerns as to his suitability to be appointed. We considered that the matters raising concern about his capacity to act as attorney were applicable also to his capacity to act as Michael’s financial manager. In our view, the supervision of the NSWTG would not sufficiently guard against the risk that Michael’s best interests will not be sufficiently prioritised in decisions.

63. We consider that it is in Michael’s best interests to have the NSWTG appointed. The NSWTG is independent and has expertise in managing estates. It is of benefit that they are appointed in circumstances of conflict and divided views within the family. The NSWTG is able to objectively consult and have regard to the views of Michael and his family members, as appropriate. This assists in all the relevant information being available to ensure that decisions are made in Michael’s best interests. The appointment of the NSWTG as an independent manager is likely to assist in preserving family relationships. The NSWTG is able to make decisions objectively and in Michael’s best interests.

64. Whilst the appointment of the NSWTG will result in greater fees being incurred, this factor is outweighed by other factors that we have identified.

65. We accordingly committed the management of Michael’s estate to the NSWTG.

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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: 24 June 2025