NDM

[2016] NSWCATGD 40

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	NDM [2016] NSWCATGD 40
Hearing dates:	25 October 2016
Date of orders:	25 October 2016
Decision date:	25 October 2016
Jurisdiction:	Guardianship Division
Before:	A Suthers, Senior Member (Legal) M Wroth, Senior Member (Professional) J Newman, General Member (Community)
Decision:	1. The Tribunal appointed joint private financial managers, subject to the authorities and directions ordered by the NSW Trustee and Guardian.
Catchwords:	FINANCIAL MANAGEMENT – family members appointed as private manager – concerns about solicitor conduct preparing power of attorney – solicitor referred to Legal Services Commission
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 65(2) Guardianship Act 1987 (NSW), s 101(e)
Category:	Principal judgment
Parties:	Mrs NDM (Subject person) Ms EAM (Applicant) Mr SYM (party joined by the Tribunal) The NSW Trustee and Guardian
Representation:	Nil
File Number(s):	63649
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

1. The Tribunal appointed Mr BZM and Ms EAM, jointly as Mrs NDM's financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian.

Background

2. Mrs NDM is a 91-year-old lady who, until recently, lived in her own home in suburban Sydney. She has one son, Mr SYM and three grandchildren – Mr BZM, Ms EAM, and Mr DBM.

3. Earlier this year, Mrs NDM had a severe cerebrovascular accident (a stroke) and was hospitalised. She has subsequently moved into fully- supported care.

4. Mrs NDM's granddaughter, Ms EAM, brought an application to the Tribunal seeking the appointment of a financial manager for her grandmother. She initially proposed that some combination of her and her two brothers be appointed in that regard.

5. Mr SYM brought an application to the Tribunal, seeking to be joined as a party. He also proposed that he should be appointed, solely, as his mother's financial manager.

6. On 18 August 2016, during her admission to hospital, Mrs NDM apparently executed an enduring guardianship appointment and an enduring power of attorney. Those documents, it was established at the hearing, were prepared on the instructions of Mr SYM and given to a solicitor, Mr Z. Mr SYM’s evidence was that he instructed Mr Z that the power of attorney was to appoint him, Ms EAM, Mr DBM, and Mr BZM jointly as attorneys for Mrs NDM.

7. In fact, the evidence indicates, the power of attorney which was prepared and presented to Mrs NDM at the hospital nominated only Mr SYM as attorney. This was unknown to Mr BZM, Ms EAM, and Mr DBM. The situation in relation to the enduring guardianship was, and remains, unclear.

8. The conduct of Mr Z in relation to the preparation and execution of the enduring power of attorney, and its effect on the Tribunal's reasoning, will be dealt with further.

The Hearing

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

10. There was no objection to Mr SYM being joined to the proceedings as a party. As Mrs NDM’s only son, who has assisted her in relation to her finances in the past, the Tribunal was satisfied that was appropriate and so ordered.

What did the Tribunal have to decide?

11. Every person who is the subject of an application is presumed to have capacity to make their own decisions, until the Tribunal receives sufficient evidence to rebut that presumption.

12. The threshold issue for the Tribunal, once an application has been properly made, is whether there is relevant incapacity of the person who is the subject of the application to manage their finances.

13. If this threshold issue is established, the Tribunal has discretion about whether to make orders. The Tribunal considers all relevant factors, and will attempt to give effect to arrangements already made by the person with a disability in respect of substitute decision-making, provided those arrangements were understood by the person, are appropriate and in their best interests. The welfare and interests of Mrs NDM are the Tribunal’s paramount consideration.

FINANCIAL MANAGEMENT

14. The questions which had to be decided by the Tribunal in relation to financial management were:

• Is Mrs NDM incapable of managing her affairs? Evidence of how the person is managing their affairs is relevant. The Tribunal assesses the subjective circumstances of the person, including the support available to them and their ability, within the bounds of that support, to make sound judgments.

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

• If so, who should be appointed financial manager?

Is Mrs NDM incapable of managing her affairs?

15. A person is not shown to be incapable of managing their financial affairs unless they are incapable of dealing, in a reasonably competent fashion, with their affairs and because of that lack of competence there is a real risk that either they may be disadvantaged in the conduct of such affairs or their money or property may be dissipated or lost.

16. The Tribunal had evidence that, because of her stroke, Mrs NDM has severe expressive and receptive dysphasia.

17. In a report dated 17 August 2016, Dr Y opined that "unfortunately, she has persistent severe expressive and receptive dysphasia and right upper limb weakness. She is not able to comprehend verbal instructions. She will have very limited capacity to able (sic) to make decisions”.

18. The Tribunal also received a social work report, outlining the day-to-day difficulties which Mrs NDM has in managing her needs.

19. All the parties and witnesses at the hearing agreed that Mrs NDM was unable to meaningfully participate in the Tribunal's hearing and that she lacks the capacity to manage her financial affairs. The Tribunal is satisfied that that is the case.

Is there a need for another person to manage Mrs NDM’s affairs and is it in her best interests for a financial management order to be made?

20. When considering whether to appoint a financial manager, the Tribunal must consider the arrangements already made by the person in relation to their finances, whether informal or formal. There are no informal arrangements for the management of Mrs NDM's finances. Nobody is authorised to sign on her bank accounts and she has significant savings, income from a pension, and a house which need management.

21. The Tribunal then needed to consider whether the enduring power of attorney prepared and apparently witnessed by Mr Z, would be satisfactory to meet her need to have a substitute financial decision-maker. When considering that issue, the evidence before the Tribunal took a strange and concerning course.

22. Whilst the parties and witnesses had somewhat differing views about the actions taken by Mr Z in preparing the power of attorney, and whether Mr SYM knew that it only nominated him, the following evidence was consistent from Mr SYM, Ms EAM, and Mr BZM, who were present when it was signed:

• Mr Z came to the hospital with the document, but did not discuss it at all with Mrs NDM. In fact, beyond saying hello to Mrs NDM, Mr Z kept a respectful and polite distance from her throughout the time when the document was discussed with her and before it was signed.

• The document was explained to Mrs NDM only by Mr SYM, Ms EAM, and Mr BZM in combination. In doing so, they simply explained that, in accordance with Mr SYM’s instructions to Mr Z, it gave all of them the power to make decisions to do things like paying for her respite care.

• No more thorough explanation was given.

• No questions were asked of Mrs NDM, to ensure that she understood the document.

• Mrs NDM, being unable to sign her name, then made some mark on the enduring power of attorney, it was witnessed by Mr Z at the hospital and then signed by Mr SYM, to accept his appointment.

23. It was only because neither Mr BZM nor Ms EAM was asked to sign to accept the power, that their suspicions about whether they were appointed by the document were raised.

24. They subsequently took issue with Mr Z about that, and, in particular, Mr BZM sent several emails to Mr Z seeking information about the power of attorney.

25. Whilst the Tribunal does not have the power of attorney in evidence it has grave doubts, particularly given the contemporaneous report of Dr Y and the evidence referred to above, that Mrs NDM could possibly have expressed or conveyed to Mr Z, or to anyone else at the relevant time, an understanding of those matters required to satisfy a witness that it was understood, before executing the power of attorney.

26. That, of course, is particularly concerning to the Tribunal. The Tribunal should pause, though, to acknowledge that it did not have the opportunity to hear from Mr Z. He was not given notice of the hearing. The Tribunal did attempt to contact him by telephone but he was in a meeting and unable to be disturbed. Fortunately, the Tribunal was not required to rule on the validity of the document without Mr Z’s evidence.

27. Unfortunately, the evidence went on to show that, after Mr BZM’s emails, Mr Z took what the Tribunal considers to be the extraordinary step of deciding to destroy the enduring power of attorney he had prepared and witnessed for Mrs NDM.

28. There is no evidence that he consulted her in that regard or had her instructions to do so.

29. The evidence that he has done so consists of an email from Mr Z, dated 25 August 2016, addressed to Mr BZM, Mr SYM, Ms EAM, and Mr DBM where Mr Z said, in full:

Dear [Mr BZM],

Thank you for your further email.

You are not my client and I am under no obligation whatsoever to correspond with you or to respond to your requests and/or demands. The documents were drafted in keeping with my understanding of my instructions which I understood to be uncontroversial.

I am in possession of the original power of attorney and guardianship documents which were executed last week. You have called the veracity of these documents into question. I am not prepared to debate this matter or participate in a family dispute. I have ceased acting for [Mr SYM] in respect of this matter and I will destroy the executed documents. I confirm that there have been no copies made. At this stage there is no power of attorney or guardianship documents on foot and it is now a matter for you to resolve as a family.

30. Not only is this email concerning in that it is an acknowledgment by an Officer of the Court that he has destroyed a power of attorney, prepared for a client and which he certified the client appeared to understand, but it also confirms that Mr Z was acting on the instructions of Mr SYM, rather than Mrs NDM, who was the donor of the power.

31. On that basis, the Tribunal will refer these reasons to the Legal Services Commissioner for its consideration. The Tribunal consents to the reasons being provided to the Legal Services Commissioner, and will direct the Principal Registrar to provide them. The Tribunal considers the provision of the reasons, in these circumstances, to be for a lawful purpose (Guardianship Act 1987 (NSW), s 101(e)). The Tribunal has had regard to s 65(2) of the Civil and Administrative Tribunal Act 2013 No 2 (NSW).

32. It is also the case that, for those reasons, the Tribunal cannot be satisfied that the formal arrangements put in place by Mrs NDM can effectively meet her needs.

33. The parties at the hearing agreed that that the Tribunal should appoint a financial manager.

34. The Tribunal was satisfied that there is a need to appoint someone to manage Mrs NDM’s affairs and it is in her best interests that an order be made.

Who should be appointed financial manager?

35. When 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. Preference is given to the appointment of a suitable person where that is appropriate, before the appointment of the NSW Trustee and Guardian.

36. In that regard, the Tribunal could choose between Mr SYM, who proposed that he be appointed, and Ms EAM and Mr BZM, who proposed at the hearing that they be appointed jointly. Mr DBM supported Ms EAM and Mr BZM’s appointment.

37. Mr SYM has experience in accounting, although he is not a qualified accountant. Ms EAM is a qualified accountant and Mr BZM gave evidence that he has management experience.

38. There were allegations and counter allegations, between members of the family, about why others should not be appointed. Many of them related to historical, interpersonal issues within the family that the Tribunal does not have the scope to unravel and determine.

39. In the end, the decision for the Tribunal after weighing all the relevant issues, came down to two determining factors.

40. The first factor is that Mr SYM is currently involved in family law proceedings with his wife which, the Tribunal is satisfied, is likely to distract him from the role of managing his mother's finances if he were to be appointed.

41. The second, given the level of distrust within the family, is that the appointment of joint financial managers would be most likely to promote Mrs NDM's best interests and preserve her existing family relationships. It will provide some level of confidence, for those members of the family who are not appointed, that there is a joint consultation process in the decisions which are made. Of course, the appointment of Ms EAM and Mr BZM will also be subject to the authorities and directions of the NSW Trustee and Guardian.

42. Both Ms EAM and Mr BZM gave evidence to the Tribunal, which it accepted, that they were not otherwise inappropriate, because of their probity or having a conflict of interest, to be appointed.

43. The Tribunal was satisfied that they should be appointed jointly.

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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: 28 February 2017