NZE

[2019] NSWCATGD 16

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NZE [2019] NSWCATGD 16

Hearing dates:

28 August 2019

Date of orders:

28 August 2019

Decision date:

28 August 2019

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)

Decision:

The Financial Management order for NZE made on 19 August 2002 has been reviewed. The order now is as follows:

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

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

Catchwords:

REQUESTED REVIEW OF FINANCIAL MANAGEMENT ORDER – application by NSW Trustee and Guardian – whether subject person has regained capability to manage their affairs – whether it is in subject person’s best interests that the financial management order be revoked – subject person unable to recognise or describe his financial circumstances – subject person unable to recognise information in relation to his financial affairs – subject person remains incapable of managing his affairs – order confirmed.

Legislation Cited:

NSW Trustee and Guardian Act 2009 (NSW), s 71

Cases Cited:

CJ v AKJ [2015] NSWSC 498
P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

Nil

Category:

Principal judgment

Parties:

NZE (the person)
NSW Trustee and Guardian (applicant, appointed financial manager)
TZE (carer, spouse)

Representation:

Nil

File Number(s):

NCAT 1999/00067079

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

Review of Financial Management Order

Background

1. NZE is 46 years old and lives in regional NSW.

2. On 19 August 2002 the Tribunal made a financial management order and committed NZE’s affairs to management by the NSW Trustee and Guardian.

3. On 27 May 2019 the Tribunal received an application from the NSW Trustee and Guardian seeking a review of the order with a view to its revocation.

The hearing

4. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing.

What did the Tribunal have to decide?

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

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

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

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

7. In the application seeking a review of the order, the NSW Trustee and Guardian seeks the revocation of the order on the basis that to do so is in the best interests of NZE.

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

8. 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.

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

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

• support systems available to the person; and

• 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 at [38] and P v NSW Trustee and Guardian [2015] NSWSC 579 at [309].

10. In the application and in a report to the Tribunal dated 15 August 2015, the NSW Trustee and Guardian provides the following information:

1. NZE has been managing his Centrelink Disability Support Pension himself since 2009. On 27 July 2009, this was formally authorised by the NSW Trustee and Guardian under s 71 of the NSW Trustee and Guardian Act 2009 (NSW). The consent was reviewed and further approval provided on 24 August 2010. These approvals were supported by NZE’s mental health case manager. Further reviews have not been possible because NZE has not responded to attempts to contact him in writing or by telephone.

2. Attempts to contact NZE have included contact with his mental health workers and with his accommodation provider. Contact with his previously last known bank in 2014 indicated that the bank account had been closed.

3. The most recent contact with NZE was on 4 August 2015 using the telephone number of his wife. On that occasion he said that he and his wife were managing his affairs and that he was no longer involved with the mental health team.

4. Recent attempts to contact NZE included a letter in November 2018 asking him to contact the office and a voicemail left on 14 August 2019. Contact with his accommodation provider was also made but that agency refused to provide a telephone number for NZE.

5. Based on information available to the NSW Trustee and Guardian, NZE’s financial affairs comprise:

1. A trust account held on his behalf by the NSW Trustee and Guardian with a balance of $3.39;

2. Two bank accounts with a combined total balance of $51.07 as at 15 March 2019;

3. An outstanding loan balance of $9655.83 for a loan taken out with his wife;

4. Centrelink deductions of $76.10 to repay a lump sum advance and a rent deduction of $389;

5. The bank advised that NZE’s account has a Direct Debit of $144 per fortnight to pay off the loan, called a car loan, and that TZE contributes $80 per fortnight to the loan repayments, and that NZE’s father makes a regular payment of $50 per fortnight into the account.

6. A review of NZE’s bank account suggests that his expenses are likely to constitute regular living expenses and his accommodation provider has confirmed that his rent and utilities are paid on time.

11. The Reasons for Decision of the Tribunal upon making the financial management order on 19 August 2002 indicate that on that occasion the Tribunal took into account that NZE had a mental illness and often dissipated his pension within hours of its receipt possibly by providing money to acquaintances. He was then left with no money for food and begged on the street. At that time NZE’s rent and utilities were paid before he received his pension payment and he had secure accommodation.

12. In a letter dated 19 August 2019, Dr Z, a locum for Dr Y, indicates that NZE has been stabilised on Zyprexa, Epilim and Benztropine and is in a “more coherent” state and therefore more able to manage his affairs than he was previously. In respect of the medical evidence available to me:

1. Dr Z indicates that he is a locum for the usual GP. He provides no indication of how long he has known NZE or the basis for his assessment that NZE is now more able to manage his affairs;

2. Whilst TZE had indicated that NZE had ceased medication, Dr Z indicates that NZE continues to receive a number of anti-psychotic medications;

3. I have no evidence from appropriately qualified practitioners regarding NZE’s mental health state;

4. Taking into account the matters listed above, I am unable to place weight on the opinion of Dr Z that NZE is now more able to manage his affairs.

13. NZE attended the hearing with his wife, TZE. In a letter to the Tribunal dated 28 August 2019, TZE comments to the following effect:

1. NZE was diagnosed with cancer in 2007 but is now recovered following surgery and chemotherapy. She also ascribes his recovery to his embracing of Christianity:

2. NZE has ceased using marijuana and alcohol and is no longer required to be case managed by the mental health team and his medication was “stopped completely”;

3. NZE has been reunited with his children and is a Board member of the land council in his regional NSW town;

4. TZE is NZE’s full time carer due to the effects of his cancer.

14. TZE had also prepared a document outlining NZE’s financial circumstances which she provided to him at the commencement of the hearing. However, NZE said words to the effect of “what is this” in reference to the document and TZE explained that it was a breakdown of his financial circumstances that he needed to present during the hearing.

15. In addition to not recognising the breakdown of his financial circumstances, during the hearing NZE was not able to outline his financial circumstances and expressed puzzlement at a number of matters relating to his financial affairs. These included:

1. He had a card on which was written names and what appeared to be bank account numbers. He said words to effect that he had been told by the bank staff that those people were able to withdraw funds from his account;

2. He was surprised that his bank statement indicated purchases made at a supermarket because he said that there is insufficient food in the home and did not think that he was provided with groceries from supermarket;

3. He was concerned that his discretionary spending allowance was reduced to $30.

16. TZE responded to NZE’s concerns and commented to the following effect:

1. The names and bank account numbers on the card referred to payments made of NZE’s account with his consent. These included a regular payment to his daughter to assist to finance her wedding and payments previously made to a creditor. The latter payments had ceased;

2. The purchases at a supermarket were made by her using NZE’s debit card. TZE operated a canteen on behalf of her church and was provided with a cash advances to purchase items for the canteen. NZE’s daughter often borrowed that cash, and she made repayments into NZE’s account. TZE then used that account to make the purchases for the canteen;

3. The couple had less food in the home than previously because they had recently been making a number of trips to Sydney and therefore she had not made as many food purchases as previously;

4. NZE’s spending allowance had been reduced due to cash flow limits particularly since the couple had taken out a loan;

5. These matters had been explained to NZE.

17. In my view, during the hearing NZE displayed a marked ignorance and puzzlement about his affairs despite TZE’s evidence that the matters about which he raised questions had previously been explained to him. It is my view the extent of NZE’s ignorance and puzzlement about his affairs indicates that even with the assistance of TZE, he is not able to understand or to manage his affairs or to plan for and implement plans for his financial future and nor would he be in a position to protect himself from exploitation. Having reached this conclusion I was not able to revoke the order on the basis that NZE is now able to manage his affairs.

Should the order be revoked because it is in the best interests of NZE?

18. The application seeking revocation of the order indicates that NZE has been managing his own affairs for many years, and there has been no contact with the NSW Trustee and Guardian.

19. TZE indicated that she and NZE had recently been travelling to Sydney frequently and had not been efficient in responding to mail and that NZE had lost his mobile telephone. They now each have a mobile telephone.

20. As indicated in the section of these Reasons for Decision dealing with NZE’s ability to manage his affairs, he had a number of concerns about his financial affairs and was puzzled about a number of matters. In respect of these matters:

1. It was my view that in the absence of intervention from the financial manager, NZE’s concerns have not been addressed to his satisfaction;

2. In my view, the explanations provided by TZE involved some complex and circuitous arrangements that need to be assessed as to their appropriateness and impact on NZE’s circumstances;

3. As NZE has a financial manager it is appropriate that the financial manager is provided with details about the arrangements involving Mr NZE’s affairs and forms a view as to whether or not they are in his best interests;

4. For these reasons it is my view that he continues to require the intervention of a financial manager to assess whether his affairs are being informally managed in his best interests and to communicate with him regarding his affairs.

21. During the hearing, TZE and NZE agreed that they would visit the office of the NSW Trustee and Guardian with relevant documents so that NZE could review his affairs with his financial manager. They also provided their mobile telephone numbers to assist in communication with the NSW Trustee and Guardian.

22. Taking into account the matters outlined in the preceding paragraph, it was my view that the financial management order cannot be revoked in the best interests of NZE.

The Tribunal’s order

23. Having decided that I could not revoke the financial management order made on 19 August 2002, I confirmed the order and the appointment of the NSW Trustee and Guardian as NZE’s financial manager.

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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: 31 October 2019