NGC

[2023] NSWCATGD 7

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NGC [2023] NSWCATGD 7

Hearing dates:

9 May 2023

Date of orders:

9 May 2023

Decision date:

09 May 2023

Jurisdiction:

Guardianship Division

Before:

M Ryan, Senior Member (Legal)
Dr K Eggleton, Senior Member (Professional)
Dr M A Smith OAM, General Member (Community)

Decision:

GUARDIANSHIP:

1. A guardianship order is made for NGC.

2. FZC, of [Address removed for publication.], is appointed as the guardian.

3. This is a continuing guardianship order for a period of two years from 9 May 2023.

4. This is a limited guardianship order giving the guardian(s) custody of NGC to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Advocacy

To advocate generally for NGC.

b) Accommodation

To decide where NGC may reside.

c) Health care

To decide what health care NGC may receive.

d) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where NGC is not capable of giving a valid consent.

e) Services

To make decisions about services to be provided to NGC.

f) Legal services

To make decisions for NGC in relation to access to legal services.

CONDITION:

6. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring NGC to an understanding of the issues and to obtain and consider his views before making significant decisions.

REVIEW OF FINANCIAL MANGEMENT APPOINTMENT:

The Financial management order for NGC made on 26 July 2016 has been reviewed and is confirmed.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – 37-year-old aboriginal man – subject person with a cognitive impairment and brain injury as a result of a motor vehicle accident– subject person requires 24-hour care – participant in the iCare-Lifetime Care and Support Scheme – accommodation arranged by the NSW Trustee and Guardian not suitable – need for decisions to be made about long-term accommodation – need for advocacy and legal services decisions – need for decisions to be made in relation to health care, services, and medical and dental consent – private guardian appointed – order made

FINANCIAL MANAGEMENT – requested review of financial management order – application made on the basis that the current financial management order is unworkable – lack of collaboration by the NSW Trustee and Guardian – cultural insensitivity – whether appointment of the NSW Trustee and Guardian should be revoked – finding that the appointment cannot be revoked as there is no private manager nominated – appointment of NSW Trustee and Guardian confirmed – order made

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 25M

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep

IF v IG [2004] NSWADTAP 3

P v D1 & Ors [2011] NSWSC 257

Re B [2011] NSWSC 1075

W v G [2003] NSWSC 1170

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

005: Guardianship Application

NGC (the person)
OBN (applicant)
FZC (carer)
Public Guardian

006: Review or Revoke Financial Management Order

NGC (the person)
OBN (applicant)
NSW Trustee and Guardian (appointed financial manager)
FZC (carer)

Representation:

Nil.

File Number(s):

NCAT 2015/00385099

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

GUARDIANSHIP APPLICATION

What the Tribunal decided

1. The Tribunal appointed FZC as NGC’s guardian for a period of two years to make decisions about his accommodation, advocacy, health care and medical/dental consents, services, and legal services as set out in the Tribunal’s order.

Background facts

2. NGC is a 37-year-old aboriginal man who suffered a traumatic brain injury following a motor vehicle accident on 21 June 2015. It was reported that NGC has a profound cognitive impairment because of his brain injury and subsequently requires full 24/7 nursing care. NGC is noted to be very close to his family including his four children and mother, FZC. FZC is the primary carer of three of his four children who are living in regional NSW whilst NGC is living temporarily in another part of regional NSW. NGC is a participant in the iCare-Lifetime Care and Support Scheme.

3. On 13 December 2022 the Tribunal received an application for the appointment of a guardian. The application stated that he is wishing to purchase a property in which to live. Until that can be arranged decisions are required as to where he should live and who can make decisions as his National Disability Insurance Scheme (NDIS) Plan nominee. The application proposes the appointment of FZC.

4. On 4 April 2023, the Tribunal received an application from OBN, Brain Injury Case Manager, at a Brain Injury Rehabilitation Program in regional NSW, to review or revoke a financial management order appointing the NSW Trustee and Guardian (NSWTAG). The application proposed the appointment of a private manager, who was yet to be identified. NGC wishes to purchase and be accommodated in a property close to specialist services in which he could live with his mother and children.

The hearing

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

Extracts from submitted reports

6. In a letter dated 9 October 2022 by Dr Z, rehabilitation physician, it is noted that NGC has complex high level physical as well as cognitive impairments. He is wheelchair bound and dependent on 24-hour care for all his basic needs. It is noted that NGC's needs are complex, as he requires assistance with mobility, feeding, personal care, is doubly incontinent and is non-verbal. Medical complications arising from his injuries are ongoing and currently include pain, spasticity and contractures, dysphasia with malnutrition and weight loss and pressure areas.

7. In a health professional report undated by OBN occupational therapist, it is noted that NGC was involved in a motorbike accident on 21 June 2015 when he collided with a metal pylon at high speed with no helmet worn. His Glasgow coma score was 5/15 at the scene. On formal testing of post traumatic amnesia, he remained in a chronic amnesic state. He is said to live with a pervasive substantial cognitive impairment with memory and major deficits.

8. He is said to have profound cognitive, communication and physical impairments affecting all four limbs. He has a right hip heterotopic ossification which results in a hip contracture and is unable to sit with his right hip at 90 degrees. He also has heterotrophic of his jaw which limits opening his mouth. It is noted all his teeth have been removed due to difficulties with dental hygiene and feeding. His condition is said to be permanent and stable.

9. NGC is said to have scored 19/126 on the FIM-functional independence measure instrument which confirms his need for total assistance in all domains of care and 7/7 on the Care and Needs Scale assessment which indicates he cannot be left alone and needs support assistance with all essential tasks of living.

What did the Tribunal have to decide?

10. The questions which had to be decided by the Tribunal were:

• Is NGC someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

• Should the Tribunal make a guardianship order and if so, what order should be made?

• Who should be the guardian and how long should the order last?

Is NGC someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

11. Section 14 of the Guardianship Act 1987 (NSW) (‘the Act’) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is “a person in need of a guardian”. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person”: the Act, s 3(1). A person with a disability is defined to include a person who is intellectually, physically, psychologically or sensorily disabled, of advanced age and 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: the Act, s 3(2).

12. Except for NGC, the parties and participants agreed that because of his traumatic brain injury he has a cognitive impairment that restricts him from making important lifestyle decisions. Because NGC does not communicate verbally his views could not be obtained.

13. The Tribunal accepted the written and oral evidence from the health and medical practitioners, as qualified practitioners with a knowledge of NGC and their views were supported by FZC, Mr Y, iCare team leader, Mr X, Lifetime Cover Manager, and Mr W, for the NSWTAG. Based on that evidence, we were satisfied that NGC has a cognitive impairment that restricts his ability to manage his person, and to make lifestyle decisions and as a result he requires assistance and some supervision. He is therefore a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order and what order should be made?

14. The Tribunal must consider the matters listed in s 14(2) of the Act before exercising its discretion to make a guardianship order: including the views (if any) of the person, their spouse or carer, the importance of preserving existing family relationships and cultural and linguistic environments, and the practicability of services being provided to NGC without the need for the making of a guardianship order.

15. These matters have no hierarchy or weighting, and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

Accommodation

16. Prior to the floods in October 2022, NGC was reported to have been living in regional NSW on the same property as his family including his mother, three of his children and an older daughter who visited and stayed regularly. As we understood the arrangements the children and FZC lived in a house on a large property and NGC and his care workers stayed in a demountable building on the same property. Those arrangements were said to have worked very well for NGC as he is very close to his family and becomes most distressed when separated from them.

17. However, since his evacuation from regional NSW and because of carer staff shortages in the regions, he has been relocated to another part of regional NSW in rented accommodation and is now living 400kms away from his mother and his children. The Tribunal understood this is continuing to have a very distressing emotional impact on NGC and decisions need to be made for more long-term accommodation that facilitates his close interaction with the most important people in his life.

Advocacy/Legal Services

18. Pressing Issues concerning NGC’s accommodation have also led to OBN’s application to review/revoke the appointment of the NSWTAG as financial manager. For reasons that are set out further below, it was apparent to the Tribunal that a guardian is most likely to require the functions of advocacy and legal services to progress to an external review of recent decisions by NSWTAG so that accommodation arrangements that are more aligned with NGC’s care and relationship needs may be accommodated.

Medical/dental consents, healthcare and services

19. There is evidence that FZC is accepted or acknowledged by some health professionals as NGC’s person responsible. However, FZC told the Tribunal, her recognition as a person responsible by different agencies is inconsistent and she feels she requires a formal order to be recognised and have her opinions properly considered in decisions to be made on behalf of NGC. OBN supported FZC’s evidence that NGC has been “forced into making decisions that are not suitable for him”, and that this may have been avoided if FZC had been properly consulted and more importantly ‘heard’. We were told that NGC has ongoing medical issues including his weight, spasticity, and his PEG insitu. The Tribunal accepted therefore that a guardian may be needed to make decisions about medical/dental consents and healthcare.

20. Similarly, FZC and OBN told the Tribunal that FZC is NGC’s nominee but has not been accepted as having the effective capacity to ask for and or consent or advocate for services on NGC’s behalf. It was noted to the Tribunal that if NGC utilised his NDIS funding, he would be required to change the agency he currently has. As we understood it, it was the treating team’s view that a change in Agency is not considered to be in his interests.

21. There is no evidence that NGC appointed someone as an enduring guardian.

22. The making of a guardianship order that provides for decisions to be made against the wishes of NGC may or may result in some conflict between him and any decision maker. The Tribunal is satisfied that despite that potential, the need to address his immediate care needs warrants the making of the order. Importantly there is evidence that relevant existing family relationships and cultural or linguistic affiliations of NGC would be positively affected by making the order.

23. The Tribunal decided because of this evidence that a guardianship order should be made and the decision-making functions of accommodation, advocacy and legal services, medical/dental consents, healthcare and services should be included in the order.

Who should be the guardian?

24. There is a proposal that FZC be appointed guardian for NGC. The Tribunal must be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she must:

• have a personality generally compatible with the personality of the person under guardianship,

• have no undue conflict of interest (particularly financial) with those of the person, and

• be able and willing to exercise the functions of the order.

25. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, [66]).

26. In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

27. The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed: the Act, s 15(3). The Supreme Court has held that the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).

28. The Tribunal accepted the evidence that FZC has been the consistent and tireless support for NGC since his accident in 2015. We observed that in FZC also being the primary carer of three of his children, it has importantly enabled NGC to continue to have a close relationship and engagement with them despite the severe trauma he has experienced. It was apparent to the Tribunal that FZC and NGC have a compatible and close loving relationship, without signs of any undue conflict. FZC told the Tribunal she is willing and able to exercise the functions of a guardian and OBN, Mr Y and Mr X unhesitatingly supported her appointment.

29. Because of this evidence, the Tribunal was satisfied that FZC meets the requirements to be appointed as the private guardian for NGC.

How long should the order last?

30. An initial guardianship order can be made for a period of up to one year from the date on which it was made. However, an order of up to three years can be made, if the person the subject of the order has permanent disabilities, is unlikely to become capable of managing his or her person and there is the need for an order longer than one year.

31. The Tribunal decided to make an order for two years noting the permanent nature of his injuries and the potential need for NGC to pursue an application before another Tribunal to have recent decisions regarding accommodation made by the NSWTAG reviewed externally.

REVIEW OF FINANCIAL MANAGEMENT ORDER (APPLICATION, OWN MOTION AND REVIEWABLE)

What the Tribunal decided

32. The Tribunal confirmed the financial management order it made on 26 July 2015 in relation to NGC.

33. The Tribunal confirmed the appointment of the NSWTAG the manager of the estate of NGC.

Background

34. FZC was appointed Trustee of the estate of NGC on 22 October 2015. On 26 July 2016 the Tribunal reviewed the order of financial management and appointed the NSWTAG.

35. NGC has approximately $347,338.61 funds in trust with the NSWTAG. NGC receives the Disability Support Pension.

36. Such is the extent of NGC’s needs that NGC is supported by iCare-Lifetime Care & Support for all treatment costs (medical and nursing), and rehabilitation (including therapies, case management, equipment, modifications) and care aids (personal care, domestic assistance and garden yard maintenance) as well as funding transport to appointments or subsidised funding of his vehicle, 35% of electricity consumption, emergency accommodation, transitional accommodation, the relocation of a dismountable home, necessary home modifications as recommended by the OT and required vehicle modifications. Mr Y told the Tribunal that through his program NGC receives over one million dollars in support each year.

37. As noted earlier in these reasons NGC was evacuated from regional NSW in October 2022 due to the floods. Whilst living there with his mother and children, NGC occupied a demountable purpose built home situated at the site of the rented premises occupied by FZC and the children. The unchallenged evidence was that relevantly the family and NGC found that this arrangement of sharing a residential site was the superior arrangement for NGC emotionally, socially, physically, and culturally. As also noted earlier in these reasons whilst the relocation of NGC to another part of regional NSW was prompted by the need to evacuate due to floods, his return there is prevented by a lack of suitable support and care workers in the area. At present FZC and the three children continue to remain living in regional NSW in social housing.

Applications to NSWTAG

38. With OBN’s assistance and because of the degree of disability NGC lives with, an application was made to the NSWTAG with the support of iCare to fund a purchase of a property for NGC and his family from monies retained in trust.

39. In December 2021 NSWTAG approved the purchase of a property for NGC for an amount of $250,000, and in March 2022 for a larger amount of $300,000. In February 2023 after many months of searching for a suitable property a request for the purchase of a property in regional NSW that purported to meet NGC’s needs and that of his family, was finally located and a request was made to NSWTAG to approve the purchase for $340,000. The regional NSW property was said to be a large block with a house but large enough to also relocate the demountable home upon it. It was argued that property prices in those areas of regional NSW had increased since the first approval in 2021.

38. The Tribunal understood that iCare would fund the relocation and modifications of the demountable. The proposal was rejected by the NSWTAG for several reasons including but not limited to a view that NGC would “have no funds other than Centrelink income in approximately 21 years”, that he had a vehicle to maintain with ongoing costs (notwithstanding that iCare is able to fund transport costs) and that contributions from family ‘could not be relied upon’. NSWTAG also stated that repair costs had to be included and budgeted for within the $300,00 previously approved.

39. In March 2023, a further request was made to NSWTAG by OBN after NGC had been successful in obtaining an aboriginal home loan grant for $15,000.00 and after offers of specified contributions from FZC were proposed. A further application for approval for $323,000 was then submitted to NSWTAG and was also declined.

Request for an Internal Review and Outcome

42. On 3 April 2023 a request for an internal review of the February 2023 decision out of time was made, due to miscommunication concerning the February decision. The Requestor (OBN) also asked that in reviewing the decision the proposed amount of $323,000 be considered. On 3 May 2023 NSWTAG published the internal review and rejected the proposed property purchase again. Some of the reasons cited included the NSWTAG Financial Planning Unit’s estimated repair costs to be $7,000.00 which needed to be budgeted, that NGC’s estate would be reduced to $24,000, and that his family is ‘growing and have greater needs’ and so hypothetically he could not fund such costs from his pension. The review again asserted the property purchase and expenses, including repairs, were all to be included in the sum of $300,000. This was notwithstanding the inclusion of the Aboriginal home grant and monies undertaken to be contributed by FZC.

43. The Tribunal understood that the NSWTAG decision was made despite the fact that if the regional NSW property had been purchased, iCare-Lifetime Support would meet certain specified costs such as relocation, conveyancing, transitional accommodation, and relocation of the demountable home on the property as well as other costs of and related to NGC’s transport.

44. The NSWTAG review concluded “it is unrealistic to expect that this is adequate provision, particularly as properties in the price group and size tend to be of older construction. Moreover, NGC has a growing family and the children will have schooling and other needs which FZC will not be able to continue to fund or even to continue to provide the level of support she currently provides the family unit.”

What did the Tribunal have to decide?

45. This review was requested by Ms OBN by way of an application dated 4 April 2023.

46. OBN requested that this Tribunal review the financial management order because she asserted that the NSWTAG has obstructed plans for the purchase of a suitable property for NGC and that the current financial management order is unworkable due to the lack of collaboration by NSWTAG and their cultural insensitivity.

47. On reviewing the financial management order the Tribunal must confirm, confirm and vary or revoke the financial management order.

48. The Tribunal may revoke the financial management order only if:

1. it is satisfied that NGC is capable of managing his affairs; or

2. it considers that it is in the best interests of NGC that the order be revoked.

49. The Tribunal may also review the appointment of the manager if it considers it appropriate to do so.

50. On reviewing the appointment of the manager, the Tribunal may either confirm or revoke the appointment. The Tribunal may revoke the appointment under review only if:

1. The appointed manager seeks the revocation, or

2. The Tribunal is satisfied that it is in the best interests of NGC that the appointment be revoked.

51. If the appointment of the manager is revoked but the financial management order remains in place, the Tribunal must appoint a substitute manager.

52. In this matter the issues for the Tribunal were:

• Is NGC capable of managing his affairs?

• Is it appropriate to review the appointment of the NSWTAG? If so, does NSWTAG seek the revocation?

• Is it in the best interests of NGC that the appointment of the NSWTAG appointment be revoked?

• If so, who should be appointed financial manager? And If not, is the appointment confirmed?

Should the order be revoked because the person has regained the capability to manage his affairs?

53. There is no new evidence that NGC has regained his capacity to manage his affairs and it was not controversial that he remains in need of a financial manager.

54. The Tribunal was therefore satisfied that NGC is not able to manage his financial affairs. The financial management order should not be revoked on this basis, and we considered it was not in his best interests to do so.

Is it appropriate to review the appointment of the manager be reviewed and does the NSWTAG seek a revocation?

55. OBN gave written and oral evidence and Mr Y gave oral evidence alleging a number of complaints concerning NSWTAG conduct, which grounded the request for a review of NSWTAG’s appointment as manager.

Contact with NGC by NSWTAG

56. Mr Y told the Tribunal that notwithstanding that NSWTAG were appointed in July 2016, they did not meet NGC in person, or inform themselves as to his degree of disability until iCare and OBN arranged a conference in 2021, five years after their appointment. Mr Y was candid and forthright and referred to this state of non-engagement as ‘abominable’. FZC, and OBN observed that NSWTAG had never initiated contact with NGC, but merely responded when pushed or prompted. These assertions were not challenged by Mr W for NSWTAG.

Non-collaboration and cultural insensitivity

57. OBN complained that NSWTAG were not collaborative regarding the request to purchase a property that met NGC’s needs and family needs. It was alleged that NSWTAG had not been client centred and approached their decision making concerning NGC mono dimensionally without regard to his welfare, practical care needs, emotional wellbeing, safety, and cultural needs. OBN told the Tribunal NGC and FZC and the children do not want to be separated. OBN observed that the current arrangement whereby NGC is living 400kms away (4.5 hours away by car) from his mother and his children, is not sustainable and is causing extreme distress to NGC.

58. OBN contended that in refusing to increase his purchase capacity by $23,000, NSWTAG had relied on hypotheticals such as potential estimated repair costs, future costs of living, transport costs (remembering iCare covered transport costs) and without due regard to FZC and NGC’s combined Centrelink benefits which are ongoing and available to support the family. Mr Y strongly supported OBN’s allegations in this regard. FZC also referred to the estimated costs of repairs alleged by NSWTAG and noted them to be excessive and beyond the likely costs of essential repairs in a country town. Mr Y added that a request had been made to NSWTAG to approve a consultation with an external financial planner to assist NGC’s application, but the request had been refused by NSWTAG.

59. OBN and Mr Y asserted there was no attempt to genuinely confer with NGC’s treating team and iCare as to how the two statutory authorities could come together in the interests of their mutual client, in circumstances where the additional $23,000 needed was 0.017 percent of the enormous financial and human resources already being invested for NGC’s protection in a year.

60. Mr W denied the allegations that NSWTAG had not been collaborative in approaching their decision. Mr W asserted that he had conferred with all ‘stakeholders’ but not identify to whom he was referring. Mr W asserted that his organisation had ‘made decisions in consultation with all stakeholders’ and he insisted that NSWTAG had considered both financial and non-financial aspects.

Payments made by NSWTAG from NGC’s funds, on behalf of other clients

61. OBN alleged a number of invoices received from a podiatry clinic in regional NSW for another client with a similar name were made by NSWTAG from NGC’s account and not corrected until OBN raised a complaint. Similarly charges for specialist medical invoices had been wrongfully attributed to NGC, paid from his account and not corrected until a complaint was raised by OBN. These errors by NSWTAG have been conceded by the Principal Client Service Officer in a letter dated 14 April 2023.

Lack of responsiveness

62. OBN raised a complaint that payment delays have resulted in money being wasted and documents delayed in being returned. OBN alleged that delays have put NGC in breach of legislation and at risk of losing his tenancy. Because wheelchair accessible rental properties are said to be extremely difficult to secure in that other part of regional NSW, OBN noted it took the treating team six to nine months to find the rental in which NGC currently resides. OBN asserted that NSWTAG having been fully informed about the new rental agreement for NGC, the bond and two weeks rent were eventually paid but were five days late. OBN alleges that because of this NGC paid $335.00 of rent prior to being allowed to move in. The rental bond lodgement form which required a signature from NSWTAG is said by OBN to have taken 21 days and numerous prompts to cause the document being returned. OBN told the Tribunal this was in circumstances where the rental bond lodgement form was alleged to have been emailed to NSWTAG on 13 April 2023 and the relevant real estate agent received an email on 4 or 5 May 2023, with the signed document.

63. In his defence regarding the late return of the signed Bond Agreement, Mr W said he had attended to it as soon as it was before him, and he had communicated directly with the Real Estate Agent so as not to delay it further as soon as it was signed.

64. At no time during the hearing did Mr W seek to have the appointment of NSWTAG as financial manager revoked.

Is it in the best interests of NGC that the appointment of NSWTAG be revoked?

65. The Tribunal carefully considered the written and oral evidence before us by OBN and Mr Y and FZC, as well as the comments in reply by Mr W. We also considered the internal review document that had been provided by NSWTAG covering their decision making concerning the requests for $323,000 to $340,000 for the purchase of a property.

66. The Tribunal accepted the evidence before us that was unchallenged as to NSWTAG’s delay in meeting NGC or informing themselves of the extent of his very serious disabilities for five years after their appointment. We also accepted the unchallenged evidence that NSWTAG have not been initiators in contacting NGC but merely responders.

67. We also accepted there is contention as to the quality of responses when contacted but we were unable to make any finding regarding their promptness or qualitative responsiveness. We accepted the evidence confirmed by NSWTAG that they had made payments in error from NGC’s trust account and that it was only OBN and FZC’s alertness that triggered a correction, as opposed to any internal checks and balances on the Trust transactions.

68. In relation to the allegation about the lack of collaboration and consultation we were less than satisfied as to Mr W’s evidence that ‘stakeholders’ had been collaboratively approached and consulted sufficiently or at all. We preferred the evidence given by OBN and Mr Y in that regard. The internal review was instructive in that it confirmed that the decisions made by NSWTAG in February to April 2023 regarding the purchase of the regional NSW property were based on hypothetical financial factors in the main, and devoid of any cultural references or considerations. The review concluded “Matthew should you proceed with this property purchase proposal there is a concern that you will have no funds to meet your needs, unforeseen expenditure such as major property expenses, motor vehicle replacement and repairs and growing family care needs (in a situation your mother's continued support is unavailable). As you will not have any funds to meet your cash flow needs, the proposed property purchase is not affordable.”

69. It became evident to the Tribunal during the hearing that the NSWTAG decision regarding the purchase of the NSW regional property was, most likely made without proper or thorough reference to the treating team’s advice, or iCare’s capacities to cover certain types of future costs or the relevant cultural factors they were obliged to consider. If NSWTAG had considered these elements before making their decision, their determination would not have been based solely on the potential future financial cost issues they identified as their rationale. The Tribunal concluded with respect, that the NSWTAG decision lacked a client centred, culturally sensitive focus in this case. If sufficient collaboration had taken place between all parties, there may have been opportunity to explore options that may have crystallised as to how NGC’s purchase could have been facilitated cooperatively by the respective statutory authorities.

70. For these reasons the Tribunal found OBN’s evidence in support of her application was sufficiently compelling to support a review of the appointment of the NSWTAG and we considered it is arguable that the appointment should be revoked.

Who should be appointed?

71. Section 25M of the 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 NSWTAG.

72. Unfortunately, at the time of hearing no private manager had been located or had been nominated. In those circumstances, having found that NGC is not able to manage his own affairs, in the absence of an alternate private manager, the Tribunal had little choice than to confirm the NSWTAG as the financial manager for the time being. Unless a private manager is located, and a further Review is requested NSWTAG’s appointment cannot be revoked. The Tribunal also noted that NSWTAG’s decision to refuse the purchase may be subjected an external administrative review in due course.

73. The Tribunal therefore confirmed the appointment of the NSWTAG in accordance with the order of 26 July 2015.

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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 June 2023