NXN

[2023] NSWCATGD 10

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NXN [2023] NSWCATGD 10

Hearing dates:

26 April 2023

Date of orders:

26 April 2023

Decision date:

26 April 2023

Jurisdiction:

Guardianship Division

Before:

J Moir, Senior Member (Legal)
Dr K Djekovic, Senior Member (Professional)
D R Sword, General Member (Community)

Decision:

The guardianship order for NXN made on 15 March 2023 has been reviewed. The order now is as follows:

1.   The Public Guardian is appointed as the guardian.

2.   This is a continuing guardianship order for a period of 11 months from 26 April 2023.

3.   This is a limited guardianship order giving the guardian custody of NXN to the extent necessary to carry out the functions below.

FUNCTIONS:

4.   The guardian has the following functions:

a)   Access

To decide what access NXN has to others and the conditions of access.

b)   Accommodation

To decide where NXN may reside.

c)   The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

(i)   take NXN to a place approved by the guardian.

(ii)   keep her at that place.

(iii)  return her to that place should she leave it.

d)   Health care

To decide what health care NXN may receive.

e)   Medical/Dental consent

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

f)   Services

To make decisions about services to be provided to NXN.

g)   Restrictive Practices

To give or withhold consent as to whether the following restrictive practice should be used to influence NXN’s behaviour:

Environmental restraint

CONDITIONS:

5.   The conditions of this order are:

a)   Standard Condition

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

b)   NDIS Restrictive Practices Condition

The guardian may only consent to the use of the types of restrictive practices permitted under this order to influence NXN’s behaviour:

(i)   as a last resort to prevent NXN harming herself or others; and

(ii)   in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon NXN, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

Financial Management

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

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

3.   This order be reviewed by the Tribunal within 11 months.

Catchwords:

GUARDIANSHIP – requested review of a guardianship order – whether guardianship order should be varied – 18-year-old subject person – subject person an in-patient in a public hospital – subject person reportedly suffering from severe, chronic and life-threatening malnutrition and severe neglect – NDIS participant – subject person previously under the care of the Minister for Communities and Justice until she turned 18 – need for function to authorise others to give effect to accommodation decisions – need for restrictive practices function – environmental restraint – order varied

FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their own affairs – subject person has limited experience in managing financial matters – subject person is vulnerable to influence – subject person has a high level of dependence on her mother – need for an independent financial manager – NSW Trustee and Guardian appointed

Legislation Cited:

Guardianship Act 1987 (NSW), ss 4, 14(2), 25M

Cases Cited:

Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

003: Financial Management Application

NXN (the person)
TZT (applicant)
NSW Trustee and Guardian

004: Requested Review of Guardianship Order

NXN (the person)
TZT (applicant)
Public Guardian (appointed guardian)
TAM (joined party)

005: Financial Management Application

NXN (the person)
TAM (applicant)
NSW Trustee and Guardian

Representation:

I Reed, Separate Representative for NXN

File Number(s):

NCAT 2023/00042497

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

REQUESTED REVIEW OF GUARDIANSHIP ORDER AND FINANCIAL MANAGEMENT APPLICATION

Background

1. NXN is an 18-year-old woman who at the time of this hearing was an inpatient at a children's hospital in regional NSW. NXN usually lives with her mother, TAM, in the same regional NSW area. She does not have any contact with her father, Mr Z, or her two half siblings.

2. NXN has been an inpatient at the children’s hospital since 15 September 2022. During her admission, on 1 November 2022, NXN was taken into the care of the Minister for Communities and Justice, which continued until her 18^th birthday on [Date removed for publication.].

3. On admission, NXN was reported to be suffering from severe, chronic and life-threatening malnutrition on a background of autism spectrum disorder and severe neglect. She was assessed to have been malnourished since the age of three, and this is reported to have significant impact on her cognitive and decision-making capacity. NXN has since been diagnosed with avoidant restrictive food intake disorder and somatic symptom disorder. She continues to be fed via nasogastric tube.

4. On 15 March 2023 the Tribunal made a guardianship order for NXN appointing the Public Guardian for 12 months with authority to make decisions on her behalf regarding the access other people have with her, her accommodation, health care, services and consent to medical and dental treatment.

5. On 5 April 2023 the Tribunal received an application from TZT, Paediatric Social Worker from the children's hospital asking that the guardianship order be varied to include additional functions and authorities. She asks that the guardian be able to override NXN's objection to treatment, because she does not agree with the treating team’s recommendation for surgery. TZT also asks that the guardian be able to authorise others to give effect to decisions about her accommodation, because NXN had recently tried to leave the hospital and is reluctant to move to the adult mental health unit, as planned now she is 18. She also asks that the order be varied to include authority to use restrictive practices to limit NXN's access to devices.

6. Also on 5 April 2023, TZT made an application for a financial management order for NXN. She states that NXN had refused to consent to an application for Centrelink benefits to be made on her behalf or to sign documents to open a bank account. She expresses that NXN would likely need assistance with financial arrangements to cover the cost of future accommodation and general living expenses.

7. On 21 April 2023 the Tribunal received an application for financial management order from TAM.

8. The Tribunal appointed a separate representative for NXN and joined TAM as a party to the application to review the guardianship order and TZT's application for a financial management order.

9. These Reasons for Decision arise from the hearing of these applications.

Conduct of the hearing

10. The hearing was held by videoconference and telephone and the participants were NXN, TAM, TZT, Ms Y from the Public Guardian, Dr X, General Paediatrician, Mr W, Manager Casework, DCJ, and Ms V, Clinical Nurse Consultant, Eating Disorder team. Ms Isabel Reed, participated as Separate Representative for NXN. NXN spoke confidently and openly to the Tribunal and was well able to express her views, which the Tribunal took into account.

Procedural matters

11. Prior to the hearing TAM had made an application seeking an order to prohibit various people from being invited to, or attending the hearing, including Mr Z, NXN's half siblings, and any members of his family. The Tribunal explained to TAM that notices of hearing had not been sent to any of the people she identified and that there had been no indication that any of these people were intending to participate in the hearing. On this basis TAM confirmed she would withdraw this application, and the Tribunal dismissed it.

What did the Tribunal have to decide?

Guardianship review

12. The guardianship order being reviewed was only made recently and has a further 11 months to run.

13. On reviewing the current guardianship order the Tribunal may confirm, vary, suspend, revoke, renew or renew and vary the order. When the review has been requested, rather than a review at the end of the term of the order, it is possible for the Tribunal to limit the matters reviewed to those raised on the application, if this approach is consistent with NXN's welfare and interests. The hearing participants confirmed that the only issue requiring review was the proposal that the order be varied to include authority for decisions about the use of restrictive practices. Dr X confirmed that that they were not pressing an earlier request for the term of the order to be increased.

14. Accordingly, the question to be considered by the Tribunal is whether the functions and authorities of the guardian should be varied.

Financial management applications

15. The financial management applications were considered as one. The questions to be considered by the Tribunal in relation to the financial management application were:

• Is NXN incapable of managing her affairs?

• Is there a need for another person to manage NXN'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?

GUARDIANSHIP

Should the functions of the order be varied?

16. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act 1987 (NSW) before exercising its discretion to make a further guardianship order:

1. the views (if any) of:

1. the person,

2. the person's spouse,

3. the person's carer, and

2. the importance of preserving the person's existing family relationships,

3. the importance of preserving the person's particular cultural and linguistic environments, and

4. the practicability of services being provided to the person without the need for the making of such an order.

17. 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 Guardianship Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act.

18. The Tribunal considered the application, a letter from Ms U, Clinical Psychologist, dated 4 April 2023, a written submission from Dr X, dated 13 April 2023, a letter from Dr T dated 18 April 2023, Occupational Therapy assessment and letters from Ms S, dated 16 April 2023 and 3 April 2023 and 18 April 2023 respectively, written material from TAM including a letter from Ms R, dated 23 April 2023, as well as the oral evidence at the hearing.

19. Ms U's letter states in some detail the basis on which the variations to the order are being requested. In relation to the proposed inclusion of restrictive practices she states that during NXN's inpatient admission she has had increasing access to a variety of electronic devices, (including PlayStation, computer, Switch, telephone and iPad). As a result of this she has increased the time she is spending on these devices at the expense of other activities which would be of benefit to her, such as schoolwork, physiotherapy and psychology sessions. Ms U states that the "excessive screen time is detrimental [NXN] in multiple ways, including psychological wellbeing, physical health (…as she will not get out of bed), sleep, social functioning and engagement in daily pleasant and meaningful activities or therapies.”

20. Ms S' letter of 18 April 2023 states that the proposed restrictions are that NXN is only able to access her electronic devices (laptop, mobile phone, iPad and gaming consoles) between 18:00 and 22:00 each day, except during structured mealtimes.

21. Dr X elaborated on this at the hearing and explained that they were asking for the order to provide for the guardian to consent to the use of restrictive practices - specifically a routine which limits NXN's access to various devices to certain hours of the day. She explained that without restriction, NXN uses these devices for extended periods of time including through the night, and until 4am and even 6am. She then sleeps during the day until as late as 1pm. It is effectively a complete reversal of normal sleep/wake schedule and is not supportive of her general health and rehabilitation. It also interferes with her scheduled bolus feeds and reduces her opportunity and willingness to attend class and other activities within the hospital, which she had been doing previously.

22. NXN denied that she is staying up late using devices and said that she is frustrated and bored because she does not get to leave the hospital for day outings as she had done previously. She wants to go out and exercise and if she was able to do this, she would not need to rely on her devices to pass the time.

23. Dr X confirmed that before NXN turned 18, DCJ funded a carer who would take NXN out into the community a few times a week. This was important for her but unfortunately it stopped when she turned 18 and left the care of the Minister. She is now waiting for arrangements to be made for something similar via a National Disability Insurance Scheme (NDIS) package. Ms Y explained that an NDIS support coordinator has been appointed and that they are putting supports in place to provide for community access. She anticipated that this will be up and running within two or three weeks.

24. TAM did not consider that the restriction on NXN’s access to devices was necessary and submitted that it was a breach of her human rights and of her privacy. NXN has always used music to help her to sleep and uses the devices to entertain herself when she is on bed rest. She also needs the laptop for study purposes. It is important for her daughter to be able to remain connected whenever she chooses, including with her. TAM referred to the need for NXN to be able to report to her, 24/7 if there are breaches in her medication or care so that she is able to make complaints. She did not address the concerns identified by the treating team about the detrimental impact on NXN of unlimited access to devices, except to say that she wanted proof that this was causing NXN harm. It was not apparent what proof TAM would consider to be sufficient.

25. In relation to the other variations sought, Ms U states that since NXN's admission to hospital she has expressed the goal to return home to live with her mother, despite "previous harm from same". In the event that NXN sought to leave hospital or asked for her mother to pick her up and take her home, her health would likely be compromised, and it would be necessary for the guardian to be able to call on the ambulance or police to return NXN to hospital. In addition to this, the plan is for NXN to be transferred from the acute ward to the Intermediate Stay Mental Health Unit (ISMHU) as soon as possible, to focus on her further rehabilitation. In the application TZT suggests that NXN has been opposed to this move, which warranted the inclusion of the "authorise others" variation to the order to assist in her transfer. In her letter, Dr T describes an incident when NXN was reported to have tried to leave the hospital and noted that her health would deteriorate if she did so as she is dependent on nasogastric feeding.

26. At the hearing Dr X said that in addition to these matters, there are concerns about NXN's road safety (based on the report of a DCJ carer) and there are also concerns about her ability to care for herself and ensure that she is adequately nourished if she left hospital without adequate supports in place. Dr X said that NXN has not tried to leave hospital but did recently leave the ward without advising staff, which caused concern, although she remained within the hospital grounds. Should this occur and she leave the grounds, it may be necessary to call on others to return her to hospital.

27. NXN told the Tribunal that she has no idea why anyone said she has poor road safety - this is simply not true. She agreed that she recently left the ward on her own but explained that all she was doing was trying to get some exercise within the hospital and that she was tired of waiting for the nurse to accompany her. She recognised that she should have told someone she was going, but denied that she was trying to escape, or that she had to be persuaded to return to the unit when she was located. NXN also said that she has no problem with the proposed transfer to the ISMHU. She wants to go there because she wants to get on with her life. NXN did not think there was a need for the guardian to be able to authorise others to give effect to decisions about her accommodation.

28. TAM was opposed to the proposed change, again on the basis that it was an imposition on her daughter's autonomy and human rights. NXN is quite competent and should be allowed to come and go as she chooses and in particular to return home to live if she wishes. That being said, she has no difficulty with her daughter going to the ISMHU for a period of time.

29. In relation to the authority to override NXN's objection to treatment, Ms U said that NXN had been unwilling to consider alternate ways of feeding, other than the nasogastric tube she currently uses. She has also been unwilling to trial anti-depressant medication despite medical and psychiatry recommendations. At the hearing, Dr X said that NXN's weight is currently acceptable, but she is maintained on bolus nasogastric feeding because she declines to eat any food within the hospital, even food that has been prepared off site and delivered, due to her concerns regarding food contamination. It is not clear how long it will be possible to feed her via tube, nor is it clear whether she will be able to maintain sufficient oral intake when she does commence eating again. Because of these concerns, consideration has been given to inserting a PEG within the next 6 to 12 months, but NXN is opposed to this. Dr X said that whilst the ISMHU is able to accept NXN if she is still being fed via nasogastric bolus, they would prefer not to and consequently, they aim to trial her on an oral diet before her transfer, if this is possible.

30. Dr X said that NXN generally declines oral medications and so has not been trialled on anti-depressants or melatonin, which the treating team would like to do. They would also like to give her vitamin supplementation via nasogastric tube, which she initially agreed to, but now declines. However Dr X confirmed that whilst the team would like to trial these medications, they were not essential.

31. NXN said that she has said that she is fine to have vitamin supplementation via the nasogastric tube. She does not want other medications. She and her mother told the Tribunal about a serious medication error that occurred to her during her admission, which has influenced their views.

32. TAM said that NXN was eating appropriately prior to her admission to hospital and should be given the right to eat enough to maintain her weight.

33. On behalf of the Public Guardian, Ms Y supported the proposed variation to the guardianship order on the basis that it was likely to assist with her transition to the ISMHU. She confirmed that NXN's views are important and that she would consult with her and TAM about any proposed decisions.

17. Mr W said that he is no longer involved with NXN now she has left the care of the Minister, however he was very involved prior to this and was the original applicant for the guardianship order. He said that he continues to hold concerns for NXN, particularly as TAM has not changed her views or understanding of her daughter’s situation. Mr W said that NXN does require a lot of support when in the community, and also confirmed that there is support available to her via the aftercare program.

18. Ms Reed noted that NXN has been able to express her views at the hearing, and that she did not need to restate them. In relation to the proposed variations, she explained that she needs to make a recommendation which are consistent with NXN's best interests. On this basis, she is not opposed to the proposed variations to the guardianship order.

Tribunal's consideration

36. Registered NDIS providers and behavioural support practitioners must now comply with the requirements set by the NDIS Quality and Safeguards Commission (NDIS Commission) and are responsible to ensure that consent and authorisation is obtained for the use of all restrictive practices. The Tribunal has previously been satisfied that where a person is not able to provide consent on their own behalf to the use of a restrictive practice, consent must be given by a properly authorised guardian.

37. The Rules state that regulated restrictive practices include environmental restraint, which is defined as any practice that restricts a person's free access to all parts of their environment, including items or activities. Restrictions in NXN's free access to her electronic devices would fall within this definition of environmental restraint.

38. NXN is in hospital and is not currently being provided with services funded under the NDIS, although these are likely to commence shortly. Strictly speaking the rules referred to above in relation to consent to the use of restrictive practices do not apply in a hospital setting, unless they are implemented by a service funded under the NDIS. Nevertheless, the Tribunal considers that it is appropriate, if restrictions on NXN’s autonomy are recommended by the treating team, that these be considered and approved (if appropriate) by a properly authorised guardian. As restrictions of this kind are proposed, the Tribunal is satisfied that it is consistent with NXN's interests and welfare that the guardianship order should be varied to include this authority, as this provides a process for these decisions to be made which requires the guardian to have regard to the Principles of the Act.

39. The Tribunal was satisfied that it is consistent with NXN's interests and welfare to give the guardian the ability to authorise others to take NXN to a place, keep her at a place or return her to a place chosen by the guardian. Although the Tribunal accepts that NXN has not tried to leave the hospital, there are legitimate concerns about her willingness to transfer to the ISMHU and then to move to whatever accommodation may be determined by the guardian at the end of this period. TAM remains a very constant presence (via electronic device if not in person) and carries considerable influence over her daughter. The treating team's concerns about the dynamic in their relationship is well described in the Tribunal's Reasons for Decision from March 2023 and TAM's continued lack of insight into her daughter's needs was apparent at this hearing. The Tribunal notes the Public Guardian's reassurance that this authority will only be used with consultation, and if it is absolutely necessary.

40. Based on the available evidence, the Tribunal was not satisfied that it was consistent with NXN's interests and welfare to give the guardian authority to override her objection to treatment. At this stage, although NXN has declined certain recommended medications, and has expressed that she does not want a PEG inserted, none of these treatments are currently being pressed by the treating team. NXN is accepting of bolus feeding via the nasogastric tube which is the treatment which is critical to her survival until she is able to tolerate an adequate oral diet. On balance, the Tribunal did not consider that the possible benefit to NXN of the proposed medications and possible surgery in the future outweighs the very considerable infringement on NXN’s autonomy to require her to have medical treatment to which she is opposed, and which is ongoing. This is not to say that a different Tribunal, considering different evidence would not come to a different decision at some time in the future.

41. NXN's views have been set out above, as have TAM's views. The guardianship order has an ongoing impact on NXN's relationship with her mother, which is considered to be important for her wellbeing, and these particular variations to the order are consistent with this. There is no indication that these variations will impact on any cultural or linguistic environment with which NXN might identify.

42. The Tribunal decided on the basis of the evidence that the order should therefore be varied to include authority for the guardian to make decisions about the use of restrictive practices - environmental restraint, and to authorise others to give effect to the guardian's decision about NXN's accommodation. This is in addition to the existing authority for the guardian to make decisions about her accommodation, services, health care and to consent to her medical and dental treatment.

43. In all other respects the order remains unchanged and will be reviewed at the end of its term in March 2024.

FINANCIAL MANAGEMENT

Is NXN incapable of managing her affairs?

44. The test for determining a person's capability to manage his or her affairs has been described as being whether a person is "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". This involves the person being able to deal with their own financial affairs in a reasonable, rational and orderly way with regard to their current and future wants and needs, "without undue risk of neglect, abuse or exploitation". (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]- [308]).

45. In considering whether the person is "able" in this sense, it is relevant to consider their history, the supports they have in place and their vulnerability to exploitation or abuse.

46. In the application lodged by TZT she states that NXN demonstrates very little financial knowledge and capability, and to be dependent on her mother, although their relationship has been determined to be harmful to her physical and psychological health. She distrusts most people other than her mother. She has declined to consent to an application being made for Centrelink payments, or to open a bank account. TZT states that once NXN is discharged from hospital, she will require the assistance of a financial manager to cover the cost of her accommodation, food, utilities and recreational activities.

47. In the application from TAM, she states that NXN has never had an income other than pocket money paid for doing household chores and that she has also received money as gifts from family at times. TAM states that she and NXN are concerned about a financial management order being made which would allow her future finances to be "unethically withdrawn from her account for frivolous reasons such as 'being taken out for a meal" or "purchasing clothing for her”. She states that in order to be independent, and integrated back into the community, NXN should be given every opportunity to manage her own finances with support and assistance from TAM. On this basis TAM states that she wished to be appointed as financial manager, with NXN's agreement. At the hearing TAM said that NXN has been able to save money from gifts she has been given over the year and is able to purchase items she wants using a Visa debit card. She has done some budgeting training via an online life skills program called Launchpad. They were about to apply for Centrelink payments but then NXN was admitted to hospital and the application did not proceed. TAM did not think that a financial management order should be made, but that if it was, she should be the financial manager. She does not consider that her daughter owes her any money and would not accept any money from her if she offered it.

48. The Tribunal noted Ms S's assessment of NXN's capability regarding budgeting and financial management. She states that NXN does not have her own income but has earned pocket money for doing household chores. Her experience in managing finances is necessarily limited by this. She reports that she has a bank account but is unable to access it because she does not recall the log in details. She does not know how much money is in the account, guessing around $100. She has no debts or loans.

49. When she was in the care of the Minister, she was given a weekly allowance of $40 to purchase discretionary items. She is able to correctly identify notes and coins and use the correct amount of money to make cash purchase. She has been observed to spend her money impulsively, for example, spending the whole allowance in the first shop she visits, leaving nothing for future needs, such as outings later in the week. She is reported to believe that she owes her mother money for caring for her, and "attempts to repay her mother for this by purchasing gifts for her". Ms S considers that this indicates that NXN presents with significant vulnerability to financial exploitation. She requires significant assistance with developing her capacity for financial management, including skills training in a number of settings.

50. At the hearing Dr X said that NXN has the intelligence to learn how to manage her finances, but that she lacks experience, and is vulnerable to influence by others. Since the application was made, NXN has agreed to work with TZT to apply for Centrelink payments. Whilst the money from DCJ stopped when she turned 18, she now has a gift card which she can use for purchasing items, however she mostly uses it to buy bottled water, even though this would be available from the hospital for free. NXN apparently does not trust the hospital’s bottled water. Dr X restated the concern that NXN considers that she owes money to her mother which needs to be repaid.

51. NXN said that she would only repay her mother if she was rich. She does not feel that she needs a financial management order.

52. Mr W said that during DCJ involvement, NXN's case worker, Ms Q, reported that NXN was impulsive with the allowance she was given and did not appear to understand how much money there was. Ms Q also had to reassure her a number of times that she did not owe her mother any money. Mr W said that whilst NXN will be able to develop skills in managing her finances, at the present time he is concerned about her vulnerability and believes that she is not capable of managing for herself.

53. The Tribunal gave particular weight to the professional assessment and observations of NXN's capability. On balance, the Tribunal was satisfied that at the present time NXN is not capable of managing her own financial affairs. She has only very recently recognised the need to source some income for her own support and has very limited experience in managing financial matters other than simple day to day spending. The Tribunal is satisfied that with support, NXN is very likely to develop skills in this area, but that she currently lacks these skills and is vulnerable to being influenced, potentially to her detriment.

54. The Tribunal is satisfied that NXN is not capable currently of managing her own financial affairs.

Is there a need for a financial management order and is it in NXN's best interest that a financial management order be made?

55. NXN is in a period of transition and there are a number of important financial matters which will need to be addressed, as it becomes clearer what her living situation will be. Dr X confirmed that there are no fees payable for an inpatient admission at the ISMHU. However once NXN is ready for discharge from there, the current plan is that she move to supported independent living accommodation, if funding is approved by the NDIS and NXN will then need to pay for her accommodation and expenses such as bills.

56. Whist it is hoped that NXN will have access to support to assist her to develop financial skills during this period, the Tribunal was satisfied that whilst this is happening, and she is undergoing so many changes in her life, it is necessary and in her best interests that a financial management order be made, and a financial manager be appointed. Although TAM submitted that she would be able to support her daughter to develop the necessary skills, without a financial management order being made, the Tribunal noted that TAM's access with her daughter is currently restricted because of the concerns held by the treating team. This would necessarily limit her ability to work with her daughter as she suggests.

57. Ms Reed supported a financial management order being made, noting that direct debit payments could be set up as needed which would make it easier to manage in the future.

58. On balance, the Tribunal was satisfied that there is a need to appoint someone to manage NXN's affairs and that it is in her best interests that a financial management order be made.

Who should be appointed as financial manager?

59. 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 the Guardianship Act.

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

61. 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 NSW Trustee and Guardian now exercises the role of the Protective Commissioner.

62. As noted above, TAM proposed that she be appointed as financial manager. She provided statements from friends attesting to her suitability to be appointed in this role. NXN said that she wanted her mother to be her financial manager. The treating team proposed that the NSW Trustee and Guardian be appointed as financial manager.

63. TAM explained that she has experience in managing budgets from her employment and that if she was appointed as financial manager, she would work with NXN to develop her independence and skills. She would ensure that NXN saved money whilst she was in ISMHU and would respect her daughter's choices regarding returning home. She said (when asked) that she would respect the views of the Public Guardian if it was decided that NXN should live elsewhere and would ensure that rent and other expenses were paid, even if she did not agree with the decision about where she should live.

64. TAM confirmed that she has never been bankrupt, nor has she been charged or convicted of any offences involving dishonesty and has no intermingling of her financial affairs with her daughter. She does not consider that her daughter owes her any money.

65. Dr X explained the treating teams' concerns about TAM being appointed as financial manager for NXN, which relate largely to the problematic relationship that has been observed, rather than particular concerns about TAM's ability to undertake the functions of financial manager. Dr X said that NXN has never learned to individuate from her mother, and that this is problematic for her because of the limits it imposes on her independence. She wants her mother to make decisions for her, and holds the same view as her mother, about everything. NXN has underutilised intelligence and has greater capability to make decisions and manage her own life than is presently the case. The treating team believe that it is important for NXN's ability to develop more independence for her mother not to be the financial manager.

66. NXN said that she wants her mother to be financial manager, and that she trusts her more than she trusts anyone else. She follows her mother's ideas because they are right.

67. Ms Reed was unsure about who should be appointed as financial manager, noting that NXN wanted her mother in the role. She felt that TAM could be a suitable manager but was unsure if this was the best approach.

68. On behalf of the Public Guardian, Ms Y supported the appointment of the NSW Trustee and Guardian, on the same basis as the treating team. She said she had "nothing against [TAM]”, but that NXN needs to develop more independence from her mother in order to be able to make choices for herself. In her view this was supportive of their relationship, rather than divisive.

69. Unlike deciding who should be appointed as guardian, where the Public Guardian can only be appointed if there is no suitable person to be appointed, the Tribunal's decision about who should be appointed as financial manager is based on what is most consistent with NXN's welfare and interests, as well as the other principles in the Act.

70. In NXN's situation the Tribunal is satisfied that it is most consistent with her welfare and interests to appoint the NSW Trustee and Guardian, rather than TAM. In coming to this decision, the Tribunal gave considerable weight to the opinion of the treating team, who have now had the opportunity to observe and work with NXN for over six months. It is evident that her relationship with TAM, whilst close, has not provided her with the usual opportunities to develop the independence associated with adulthood. For example, the skills TAM says that she is now able to help her daughter develop could have been developed over the course of her childhood and teens. The Tribunal was satisfied that appointment of the NSW Trustee and Guardian will provide NXN with a better opportunity to be supported to develop independent financial management skills, than the appointment of TAM.

71. This decision does not imply that TAM is unsuitable to be appointed as a financial manager because of concerns regarding her probity or financial management skills. The Tribunal also notes the importance of her relationship with NXN and accepts Ms Y's view that appointing an independent financial manager is supportive of their relationship because it will assist them to build a more appropriate dynamic than the high level of dependence that has characterised their relationship to date.

72. The Tribunal was satisfied that NXN's estate should be committed to the NSW Trustee and Guardian.

Should a reviewable financial management order be made?

73. The Tribunal may determine that a financial management order should be reviewed within a specified time. In this matter, the Tribunal determined that the financial management order should be reviewed within 11 months, which will mean that it will be reviewed at the same time as the guardianship order. This will ensure that NXN's capability to manager her own affairs, and her need for a financial management order can be reconsidered when she has had some opportunity to develop skills and her living situation is stabilised.

**********

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: 30 August 2023