NZH

[2020] NSWCATGD 30

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

NZH [2020] NSWCATGD 30

Hearing dates:

23 January 2020

Date of orders:

23 January 2020

Decision date:

23 January 2020

Jurisdiction:

Guardianship Division

Before:

J C Simpson, Senior Member (Legal)

Decision:

The Financial Management order for NZH made on 23 September 2019 has been reviewed. The order now is as follows:

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

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

3. This order be reviewed by the Tribunal within one year.

4. The following specified part of the estate is excluded from this financial management order:

$100,000 and all Centrelink entitlements.

Catchwords:

FINANCIAL MANAGEMENT – review of financial management order – end of term review of financial management order – whether subject person is incapable of managing their own affairs – history of mental illness – subject person currently under community treatment order – history of problem gambling – subject person remains at undue risk of dissipating their assets – subject person incapable of managing their own affairs – best interests – whether it is in the best interests of the subject person that the financial management order be revoked - s 4 Principles – balancing freedom to live a normal life in the community and be self-reliant with potential risk of exploitation – financial management order made – NSW Trustee and Guardian appointed – order excluding $100,000.00 and Centrelink entitlements.

Legislation Cited:

Guardianship Act 1987 (NSW), s 4

Cases Cited:

P v NSW Trustee and Guardian and Guardian [2015] NSWSC 579

Re X [2016] NSWSC 275

Texts Cited:

Nil

Category:

Principal judgment

Parties:

013: Review of Reviewable Financial Management Order

NZH (the person)
NSW Trustee and Guardian and Guardian (appointed financial manager

Representation:

P Beaumont, Solicitor for NZH

File Number(s):

NCAT 2011/00419649

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

Background

1. NZH is a 57-year-old woman with a history of mental illness who now lives in her home unit at South Sydney.

2. Since 2011, NZH’s financial affairs have been under the management of the NSW Trustee and Guardian. For most of that time, her Centrelink benefits were excluded from management.

3. NZH has made multiple requests for the financial management order to be revoked but none of those has been successful.

4. The most recent review of the order occurred in March 2019 on the application of Ms Z, mental health case manager. The Tribunal confirmed the order and reversed the exclusion of the Centrelink benefits but also decided that the order should be reviewed again in six months.

5. The further review was postponed until the current hearing.

6. I could revoke the financial management order if I was satisfied that this was in NZH’s best interests or that she was now capable of managing her financial affairs.

7. A person’s capability to manage his or her affairs is considered in the context of the person’s particular circumstances and the purpose of the Guardianship Act 1987 (NSW) as reflected in the s 4 principles. We look at whether the person is “reasonably able to manage his or her own affairs in a reasonably competent fashion”. A focus is whether the person is able to make and implement decisions about his or her 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”. The availability of family or community support is relevant. The concept of capability focuses on the reasonably foreseeable future as well as the present time. A disability may underpin incapability but the focus is the person’s functional capacity to manage his or her affairs, not the disability. (P v NSW Trustee and Guardian and Guardian [2015] NSWSC 579 at [301], [307]-[310]; Re X [2016] NSWSC 275 at [29])

8. If I did not revoke the order, I could consider excluding part of NZH’s estate from management. I would be guided in this by the principles in s 4 of the Guardianship Act. These say NZH’s interests should be given paramount consideration and also emphasise consideration of NZH’s views, minimum restriction on freedom, encouragement of self-reliance and a normal life in the community, preservation of family relationships and cultural and linguistic environments and protection from neglect, abuse and exploitation.

The evidence

9. The 2011 application was made by Mr Y, mental health case manager. There was a particular concern that NZH may realise her interest in the home that she shared with her father and dissipate assets. Dr X, staff specialist psychiatrist, wrote that NZH had been under longstanding mental health care, had schizoaffective disorder and was under a community treatment order due to her very poor insight into her mental illness. She also had a gambling addiction and had lost large sums of money in the past, at times cashing in insurance policies to subsidise her addiction as well as acquiring large credit card debts. Mr Y’s evidence was that NZH would spend her pension when she received it, often using it to gamble and purchasing alcohol.

10. In March 2019, Ms Z, mental health case manager, applied for review of the order in the context of the pending sale of NZH’s home. Ms Z wanted assurance that the proceeds of the sale would be under management. She also was concerned about NZH continuing to manage her own pension. Bank statements from 2018 left the Tribunal with concerns about NZH having her account overdrawn, quickly spending money and with her gambling. NZH however told the Tribunal that she had now turned over a new leaf and stopped gambling. As already said, the Tribunal reversed the exclusion of the pension but said that the order would be reviewed again in six months.

11. Now, NZH was again very keen for the financial management order to be revoked.

12. The NSW Trustee and Guardian reported that NZH now owns her own unit at South Sydney and has approximately $450,000 held by the NSW Trustee and Guardian. All of this derives from the sale of the former jointly-owned property at East Sydney.

13. NZH gave me an income statement from Centrelink showing that she has been receiving a part disability support pension and a carer allowance related to care that she provides to her mother.

14. In September 2019, Ms Z from the mental health team had written that she was unaware of any change in NZH’s capacity to manage her finances. NZH had not permitted Ms Z to have much contact with her. One of her biggest concerns previously had been about NZH’s gambling. She remained concerned that NZH may spend her savings impulsively and quickly.

15. However, I now had a different perspective from the mental health team. Dr W, psychiatrist, wrote that he had reviewed NZH several times in the past few years. “After interviewing her this year, I cannot find any reason that would need us to extend the financial management order. She is not displaying any beliefs, delusions or deficits in cognition that would threaten her ability to manage her finances. Hence I am supporting revoking of the existing financial management order.”

16. Ms V, mental health case manager, wrote that she had been NZH’s case manager the past three months and she had not identified any reason for her to be on a financial management order. Previous concerns were no longer current. NZH had been having her prescribed medication and had been stable in her mental state. Her judgement was not impaired by her mental illness which meant that she was able to manage her money herself.

17. Dr T, general practitioner, wrote that he had been NZH’s GP for 10 years. Her mental health was stable. “She should be able to manage her own affairs but should avoid gambling.”

18. In the hearing, Dr W told me that NZH’s mental illness was stable due to medication. Gambling did not seem to be a problem now. He had not carried out any specific cognitive testing but NZH’s conduct did not suggest this was needed. With NZH being on a community treatment order, he did not see prospect of a relapse in her mental illness. I asked whether there was a possibility that NZH has more subtle cognitive impairments due to her longstanding mental illness that would impair her ability to manage her considerable savings. Dr W said that this was possible but he had not seen anything to indicate it.

19. In the hearing, NZH provided me with a supportive letter from her parish priest.

20. NZH told me as follows. Her mental health is good. If she regains control of her affairs, she plans to put about $50,000 in a term deposit and the rest of her money in a superannuation fund. She may use the money in the term deposit to buy a new car and have a holiday. She may also sell her current home and use some of her savings to buy a new home. She found it hard to say how much she would want to spend each year but thought perhaps up to $50,000. She said that she would consult a financial planner, probably from her bank. I asked whether it would be better to get an independent advisor and she said that would be wise and said that she had already done so over the phone.

21. I asked whether she was still gambling and she said “not so much”. She said she cannot afford much with the current money that she has available to her. I asked whether she would like to gamble more and she said that was a hard question to answer.

22. She agreed that she would like to assist her sister who lives in Greece and wants to visit the sister.

23. I asked NZH about the voicemails she left the Tribunal including one in which she said that she intended to sell her home so that she had money to spend. NZH said that this related to the previous family home but I noted that the voicemail was left in November 2019 or later, well after NZH moved into her current home in August 2019.

24. Another voicemail said that she maybe be going into rehab to get off medication.

25. We discussed grievances that NZH has expressed about the NSW Trustee and Guardian’s handling of the sale of her interest in the family home and the purchase of the new property and a response from the Trustee in December 2019.

26. NZH also provided me with a budget noting that she receives $300 per week from the NSW Trustee and Guardian and does not receive her pension. She listed various expenses and said that she would like to buy a new car using her mother’s car as a trade-in as well is going on a cruise to New Zealand, taking out private health insurance and making a gift for her daughter’s wedding.

27. NZH’s mother, Mrs U, told me that we should revoke the order because the government was currently taking $1200 a month (the NSW Trustee and Guardian’s fees). Her daughter had not so much of a gambling problem at all lately. In the past she was a very generous person. Mrs U sees her daughter almost daily with NZH helping with Mrs U’s care. Mrs U is willing to give her car to her daughter but she needs to get a driver’s license.

28. I said to NZH and her solicitor that the options facing me included adjourning the matter so NZH could have a more thorough assessment of her ability to manage her affairs or to exclude at this stage a substantial proportion of NZH’s estate.

29. NZH said that she could not get a psychiatrist to do a review. In relation to possible exclusion, she said that she wanted to spend $25,000 on a car and $25,000 a holiday.

30. After NZH had had a private conversation with her solicitor, she said that she wanted me to exclude half of her money from management and then conduct a further review later. She mentioned there is a person she can stay with overseas.

31. NZH’s solicitor made some final submissions including saying that her client wanted the order revoked but another option was the exclusion of half the estate. She said that it was hard for her client to show her capacity when she currently has no control over her affairs.

Decision

32. There was significant evidence of health professionals, in particular Dr W, that NZH is now capable of managing her financial affairs.

33. However, I approached Dr W’s assessment with some caution in view of his not having carried out a cognitive assessment.

34. Also, with NZH being on a community treatment order, Dr W did not see a prospect of her mental health relapsing. However, NZH spoke to me of travelling overseas, where she would be out of the reach of the community treatment order, and had also left a voicemail at the Tribunal about going off her medication.

35. I accepted that NZH has considerably reduced her gambling although in the context of a limited allowance. However, she said it was hard to say whether she would like to gamble more.

36. As recently as 2018, NZH’s bank statements suggested problems with managing her pension.

37. All of this needed to be considered within the context of NZH having a considerable estate including her home and approximately $450,000 in liquid assets.

38. On balance, I was not satisfied at this time that NZH is capable of managing her financial affairs. I saw an undue risk that NZH would dissipate her assets.

39. In terms of NZH’s best interests, her strong and consistent wish for full control and the on balance decision that I made on capability provided arguments that it was in her best interests that I revoke the financial management order. On the other hand, I did have open to me the alternative of excluding from management a substantial proportion of NZH’s estate. On balance, I was not satisfied that it was in her interests that I revoke the financial management order.

40. In terms of exclusion, I needed to balance the principles in s 4 of the Guardianship Act. In favour of a substantial exclusion were the principles about maximum freedom, encouragement to live a normal life and to be self-reliant and NZH’s strong wishes. On the other hand, the principal about protection from exploitation suggested some caution. In terms of the paramount consideration of NZH’s welfare and interests, I decided that I should strike a balance between a large exclusion and some caution in case NZH dissipated her assets. I also took her solicitor’s point that it was difficult for NZH to demonstrate the capacity when she did not control her affairs.

41. On balance, I decided to exclude from management $100,000 and NZH’s Centrelink entitlements.

42. My recommendation to NZH and the NSW Trustee and Guardian is that this exclusion be based on the expectation that NZH will meet all of her expenses over the next 12 months and carefully consider how much of the $100,000 she should preserve as opposed to spend.

43. There will be a further review in 12 months. In advance of that review, NZH should provide the Tribunal with a documented report on her spending over the 12 months and what savings and other assets she has to show for the $100,000. She should provide invoices for major spending.

44. If possible, NZH should also provide to the Tribunal at the review hearing a detailed assessment of her capability to manage her considerable affairs by a neuropsychologist or psychiatrist. The assessor should be provided with a copy of these reasons.

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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: 26 November 2020