OKC

[2016] NSWCATGD 2

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

OKC [2016] NSWCATGD 2

Hearing dates:

1 February 2016

Date of orders:

01 February 2016

Decision date:

01 February 2016

Jurisdiction:

Guardianship Division

Before:

J Kearney, Senior Member (Legal)
T Ovadia, Senior Member (Professional)
E Pickering, General Member (Community)

Decision:

Financial management order made; private manager appointed.

 Guardianship order made; private guardian appointed for 12 months to make decisions about accommodation and services.

Catchwords:

FINANCIAL MANAGEMENT – question as to person’s capability to manage their own affairs – need for a financial management order – who should be appointed as manager – separate representative’s views considered – consideration of the person’s vulnerability to exploitation – financial management order made – family member appointed as manager – order to be reviewed in 12 months

 

GUARDIANSHIP – question as to person’s capacity – consideration of factors in section 14 of the Guardianship Act 1987 (NSW) – where medical evidence inconclusive – evidence about person’s capacity to make decisions received from family and friends – separate representative’s views considered – where enduring guardianship instrument revoked – guardianship order made – consideration of who to appoint as guardian – family member appointed as guardian

 

REVIEW OF ENDURING POWER OF ATTORNEY – application withdrawn due to the making of a financial management order

 

REVIEW OF ENDURING GUARDIANSHIP – application withdrawn due to the making of a guardianship order

 

REVIEW OF REVOCATION OF ENDURING POWER OF ATTORNEY – application withdrawn due to the making of a financial management order

 

REVIEW OF REVOCATION OF ENDURING GUARDIANSHIP – application withdrawn due to the making of a guardianship order

PRACTICE AND PROCEDURE – incorrect applications forms used – applicants seeking to review revocation of enduring guardianship and power of attorney instruments – consent of other parties obtained – exercise of guiding principle in section 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) – oral amendment to application type accepted by the Tribunal

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s 36(1)
Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, 14(2), 15(3), 17(1), and 25M

Cases Cited:

Application by AMAM; Re SAM [2011] NSWSC 503
C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court, Windeyer J, 29 November 1999
CJ v AKJ [2015] NSWSC 498
Holt v Protective Commissioner (1993) 31 NSWLR 227
IF v IG [2004] NSWADTAP 3
M v M [2013] NSWSC 1495
McD v McD (1983) 3 NSWLR 81
P v D1 [2011] NSWSC 257
P v NSW Trustee and Guardian [2015] NSWSC 579
Re B [2011] NSWSC 1075
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106

Category:

Principal judgment

Parties:

Mrs OKC (subject person)
Mrs SAT (daughter and applicant)
Mr NCM and Mrs LBD (enduring guardians, attorneys, and applicants)
The NSW Public Guardian
The NSW Trustee and Guardian

Representation:

N Danis, Separate Representative

File Number(s):

61471

Publication restriction:

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

REASONS FOR DECISION

GUARDIANSHIP APPLICATION

What the Tribunal decided

1. The Tribunal appointed Mrs SAT as Mrs OKC’s guardian for a period of 12 months to make decisions about her accommodation, and services which she should receive as set out in the Tribunal’s order.

FINANCIAL MANAGEMENT APPLICATION

What the Tribunal decided

2. The Tribunal appointed Mrs SAT as Mrs OKC's financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian.

Background

3. Mrs OKC is 85 years old (possibly 89) and since mid-December 2015 has been living with her daughter, Mrs SAT, in her home in southern Sydney. Immediately prior to this, Mrs OKC spent some months in Western Australia initially staying with Mrs LBD before being admitted to hospital and then being transferred to a transitional facility. Prior to that, Mrs OKC lived in her own home in southern Sydney.

4. On 15 December 2014 Mrs OKC appointed Mr NCM, a friend and financial planner, and Mrs LBD, a friend, as her enduring guardians.

5. On 22 July 2015, Mrs OKC appointed Mrs LBD and Mr NCM jointly as enduring power of attorneys.

6. On 17 December 2015, Mrs OKC signed revocations of the above power of attorney and enduring guardianship appointments.

7. The Tribunal had before it a number of applications that were filed on or about 23 December 2015. They are (in order of matter number) as follows.

1. 2015/11941 application by Mr NCM – the form of this application was to review an enduring guardian appointment however, Mr NCM told the Tribunal at the hearing that due to his inexperience and the urgency of the issue, the wrong form was filed – what he intended was to make a joint application with his fellow guardian, Mrs LBD, to review the revocation of the enduring guardianship instrument – the revocation in question occurred on 17 December 2015. The guardianship appointment that was purportedly revoked was that dated 15 December 2014.

2. 2015/11942 application by Mr NCM – the form of this application sought to review an enduring power of attorney – similar to (1) above, Mr NCM told the Tribunal that due to his inexperience and the urgency of the matter, the wrong form of application was employed in this matter as well. What Mr NCM intended was to make a joint application with Mrs LBD to the Tribunal to review the revocation of the enduring power of attorney. The revocation in question occurred on 17 December 2015. The power of attorney in question was that dated 22 July 2015 appointing he and Mrs LBD to those positions

3. 2015/12011 – application by Mrs SAT to review the enduring power of attorney entered into on 22 July 2015.

4. 2015/12012 – application by Mrs SAT to review the enduring guardian appointment of 15 December 2014.

5. 2015/12015 – application by Mrs SAT for a guardianship order seeking that she be appointed guardian.

6. 2015/12016 – application by Mrs SAT for a financial management order seeking that she be appointed financial manager.

The hearing

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

Procedural history

9. On 21 January 2016, the Tribunal held an interlocutory hearing when it ordered that Mrs OKC be separately represented, refused leave for Mrs SAT to be legally represented and gave directions regarding service of additional documents by 27 January 2016.

10. Regarding Mr NCM’s use of the incorrect form in applications in 2015/11941 and 2015/11942, Mrs LBD, who attended the Tribunal hearing by telephone, agreed with and consented to Mr NCM’s submission. No other party objected to the Tribunal dealing with the real issues despite the wrong form being used. The Tribunal decided to allow the matter to proceed upon the basis that those applications were seeking to review the revocation of the particular instrument, rather than a review of the instrument itself. In doing so the Tribunal applied the guiding principle of the NSW Civil and Administrative Tribunal Act 2013 (NSW), s 36(1), to facilitate the just, quick, and cheap resolution of the real issues in the proceedings.

Further Background

11. In order to efficiently deal with these six applications simultaneously it is necessary to set out some further detailed background by way of a brief chronology, the evidence for which is taken from the Tribunal file and is accepted by the Tribunal.

1. On 14 August 2013, Mrs OKC’s second husband Ivan died.

2. On 19 August 2013, Mrs OKC was seen by Dr Z, a general practitioner who certified that she has “normal cognitive level”.

3. On 29 September 2013, there is a hand written statement signed by Mrs OKC critical of her daughter, Mrs SAT, saying the last time Mrs OKC was contacted by her daughter was at a wedding in 1997, with the exception of an abusive phone call approximately three years ago.

4. In December 2014, there is the report of a neuropsychiatric assessment in which Mrs OKC is said to have capacity.

5. In December 2014, Mrs OKC was booked to fly from Sydney to Perth but did not travel at that time due to ill health.

6. On 15 December 2014, Mrs OKC executes the enduring guardianship instrument appointing Mr NCM and Mrs LBD as her guardians.

7. On 16 December 2014, Mrs OKC signs a statutory declaration stating that the reason she had omitted her daughter, Mrs SAT, and her son, Mr SVN, from benefit in the will she executed at about that time was because she had been estranged from them “for many decades and they have infrequently contacted me by telephone and in person over the years…and have never been concerned for my welfare”.

8. On 17 February 2015, there was a medical certificate from Dr Y stating that Mrs OKC “has her cognitive intact (sic)”.

9. On 14 May 2015, there is reported to be an ACAT assessment where there was no diagnosis of dementia or cognitive impairment.

10. In July 2015, Mrs OKC was admitted to a private hospital with a pulmonary embolism – following admission she commenced a three- month course of anticoagulation therapy.

11. On 14 July 2015, there is a report from the registrar of the private hospital indicating that Mrs OKC underwent a mini mental state examination in which she scored 27/30 – indicating capacity.

12. On 27 July 2015, Mrs OKC signed the enduring power of attorney appointing Mr NCM and Mrs LBD as her attorney’s.

13. In August 2015, Mrs OKC travelled to Perth by train.

14. Shortly after arriving in Perth, on 12 August 2015 Mrs OKC was admitted to a public hospital in Western Australia in Perth with a chest infection.

15. On 4 September 2015, she was readmitted to the same public hospital in Perth.

16. On 15 September 2015, an ACAT assessment noted a rapid deterioration in her physical and mental condition such that she now required permanent residential care of a high level. She was transferred to the transitional facility at a suburb in Perth on 5 October 2015.

17. On 17 November 2015 Dr X, a consultant physician performed a geriatric assessment noting that she was not orientated to time and place and unable to recognise any of the limitations in her cognition. He noted she was keen on the idea of returning to Sydney but based on her assessment he considered she did not have the capacity to make decisions with regard to her living arrangements. He diagnosed her with depression and a dementia condition.

18. On 23 November 2015, Mrs OKC was certified fit to travel, and on 17 December 2015, she travelled from Perth to Sydney with her daughter, Mrs SAT.

19. Upon arrival in Sydney she executed a revocation of the previous enduring guardianship and enduring power of attorney.

20. On 30 December 2015, there is a brief medical report from Dr W, GP, suggesting that Mrs OKC was “quite capable” of revoking the guardianship.

21. On 23 December 2015, the various applications outlined above were lodged with the Tribunal.

12. The following facts are accepted by the Tribunal and provide a background to the above chronology.

13. Mrs OKC had a period of alienation from her children including Mrs SAT. In 2014 and 2015 her physical health started to deteriorate and she accepted an offer to reside with Mrs LBD and her family in Western Australia. Mrs LBD was a friend and a previous partner of Mrs OKC’s grandson. One of Mrs LBD’s children is fathered by Mrs OKC’s grandson.

14. Mrs OKC moved to Western Australia but shortly afterwards became unwell and her physical and mental condition deteriorated rapidly as disclosed in the medical reports detailed above. At this stage Mr NCM and Mrs LBD, as her enduring guardians, took steps to take care of her including arranging the ACAT assessment and researching her options for her future accommodation. In addition, in accordance with their obligations under the enduring power of attorney a financial management plan was prepared and it indicated significant financial advantage if a residential care option was taken up prior to 1 January 2016.

15. Suitable options for residential care were researched in Perth and, in coordination with Mrs SAT; other options [were] researched in Sydney. Mrs OKC indicated a desire to return to Sydney and then medical clearance to travel having been obtained, she was released by guardians into the immediate care of her daughter Mrs SAT.

16. However upon arrival in Sydney she was not taken to a residential care facility as had been planned by her guardians, but instead was taken immediately to a lawyer’s office where a revocation of the previous guardianship and enduring power of attorney were executed. She has since remained in the care of her daughter in her daughter’s home.

17. The Tribunal decided to first consider the question of whether a guardianship and/or financial management order should be made for Mrs OKC before considering the other applications.

GUARDIANSHIP APPLICATION

What did the Tribunal have to decide?

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

• Is Mrs OKC someone for whom the Tribunal could make an order because she has a disability which prevents her 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?

• How long should the order last?

Is Mrs OKC someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

19. Section 14 of the Guardianship Act 1987 (NSW) (‘the Guardianship Act’) provides that the Tribunal may make a guardianship order for a person if it is satisfied that 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” (s 3(1), Guardianship Act). A person with a disability is a person who is:

1. intellectually, physically, psychologically, or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

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 (s 3(2), Guardianship Act).

20. Mrs OKC said that she has always made her own decisions and she has capacity. She did concede she would probably need help in the future to make decisions. She said she has her own home and is living in her daughter’s house and that she wants to be independent. She said that she had made some bad decisions regarding “relatives” in the past – at this point Mrs OKC indicated Mr NCM in the hearing room and said that “they” had taken money from her – an allegation which she repeated a number of times throughout the hearing.

21. On the basis of this evidence, the Tribunal found that there was a breakdown of trust (whether justified or not). In other words, Mrs OKC no longer trusted the persons who she previously appointed as her guardians and attorneys.

22. Ms Danis appeared before the Tribunal as separate representative for Mrs OKC. Ms Danis said that Mrs OKC did have an incapacity to make important life decisions – that she was unable to weigh up options and to make considered decisions between them. Ms Danis added that Mrs OKC had a good relationship with her daughter and son-in-law and that all her needs are currently being met in the domestic setting of her daughter’s home.

23. Mrs SAT said that her mother was currently physically well and taking little medication. Mrs OKC was actually 89 years old, not 85, as she was inclined to lower her age for reasons of vanity. She does her own hair and makeup and while initially saying that her mother was able to make decisions with some help, conceded that she did not have capacity to make important life decisions on her own.

24. Mr NCM and Mrs LBD submitted to the Tribunal that Mrs OKC did not have capacity.

25. Other witnesses on this issue included family friends, Ms V and Ms U, both of whom agreed that Mrs OKC needs assistance. Her son, Mr SVN, conceded he had been estranged from his mother for 20 years due to a personality conflict. He considered his mother has capacity to make small decisions but needs help with larger decisions.

26. The medical evidence was not particularly helpful on this issue. Clearly from Mrs OKC’s presentation to the Tribunal, she had improved since the examination by Dr X on 17 November 2015. The medical evidence since that time was brief.

27. Apart from Mrs OKC herself, there was no evidence before the Tribunal that Mrs OKC had capacity to make important life decisions, except perhaps the brief note from Dr W that she had capacity to revoke the Enduring Guardianship.

28. The Tribunal found that Mrs OKC was capable of minor decisions but not capable of important life decisions due to a dementing illness with limited insight.

29. The Tribunal is satisfied that Mrs OKC has a disability which prevents her making important life decisions. She is a person for whom the Tribunal could make a guardianship order.

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

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

1. the views (if any) of:

1. the person, and

2. the person's spouse, and

3. the person's carer and

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

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.

31. 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). When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

32. Mr NCM said that since 17 December 2015, Mrs OKC was happily accommodated in her daughter’s home. There was no complaint of the quality of care she received there but there was concern of the longevity of that arrangement. There may be a need for more higher level care in the future if Mrs OKC’s medical condition deteriorates. Therefore a guardian was needed.

33. Mrs LBD agreed that Mrs OKC needed a guardian as did Mrs SAT.

34. Ms Kensey Brydson from the NSW Public Guardian told the Tribunal that given no one was suggesting that Mrs OKC should be moved from the current accommodation, she questioned whether there was a significant need for a guardian at this time.

35. The Tribunal accepted Mr NCM’s submission that while Mrs OKC was happy in the current living arrangements, given her age and the recent illness in Western Australia that affected her cognitive capacity, there was a likelihood for her mental and physical health to deteriorate. Thus there was a need for a guardian to be appointed with the functions of accommodation and services. There was no evidence that other functions were required.

36. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made.

Who should be the guardian?

37. There is a proposal that Mrs SAT be appointed guardian for Mrs OKC. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Guardianship Act. She must:

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

2. have no undue conflict of interest (particularly financial) with those of the person and

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

38. 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 Guardianship Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court, Windeyer J, 29 November 1999 and Re B [2011] NSWSC 1075, at [66]).

39. 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.

40. 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 (s 15(3), Guardianship Act).

41. 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]).

42. Mrs SAT submitted that she should be the guardian being a close family member. Mrs OKC said she didn’t need a guardian but if one was appointed, she wanted her daughter Mrs SAT.

43. Ms Danis, the separate representative for Mrs OKC, said that it should be a close family member and she submitted Mrs SAT was appropriate but not Mr SVN. It is noted that Mr SVN did not express a willingness to undertake this role.

44. Given that Mrs OKC was now accepting of her daughter being made her guardian she was asked to explain her previous assertions of estrangement from her daughter in the hand written note of September 2013 and the statutory declaration of December 2014. Ms Danis said that she had asked Mrs OKC about this and could she not give any explanation for it. Although the hand written document was not in Mrs OKC’s own handwriting it appeared to have been adopted by her.

45. The Tribunal decided that some explanation was be afforded by other evidence. Mr T, a solicitor, who was a witness to the enduring power of attorney of 22 July 2015, told the Tribunal that he had known Mrs OKC since 2003 having worked for her previous solicitor until taking over that practice himself in 2011. He agreed that Mrs OKC was a person of “changeable ideas”. She was a strong minded individual but changed her instructions numerous times regarding her will, the guardianship and power of attorney. He advised that Mrs OKC had previously appointed her husband as enduring guardian and enduring power of attorney.

46. The Tribunal accepted the evidence that Mrs OKC is a person who was inclined to change her mind about important issues from time to time. The inference accepted by the Tribunal is that while Mrs OKC was previously critical of her daughter, family relations were now improved.

47. On the question of the credit of Mrs SAT, the Tribunal asked her about the clear evidence in emails that she was cooperating fully with the guardians while her mother was in Western Australia and in her email communications agreed that her mother would be taken from Sydney airport to a residential care facility as previously arranged with the guardians. However, that did not occur and her mother was taken from the airport to see a lawyer where the revocation of the previous instruments was executed, on the very day she arrived in Sydney.

48. In a statement Mrs SAT had said that her mother was miserable in the hospital and the transitional facility in Western Australia and her mother begged her to bring her back to Sydney. Mrs SAT told the Tribunal “I would have done anything to get my mother back to Sydney.” The Tribunal understood this to mean that she was willing to misrepresent her intentions to the guardians for her mother’s benefit.

49. The Tribunal accepted Mr NCM’s submission that Mrs OKC was not held against her will in Western Australia but remained in the facility until suitable residential care options had been researched both in Western Australia and New South Wales and a clearance to travel had been obtained.

50. Mrs LBD said that there had been no contact with Mrs SAT until September 2015. Indeed Mrs OKC had told Mrs LBD that she (Mrs OKC) did not want her daughter having anything to do with her life. She suggested the Public Guardian should be appointed.

51. Ms Kensey Brydson from the NSW Public Guardian submitted that if a guardian was to be appointed, then the evidence, she said was for Mrs SAT to be appointed as the best person.

52. 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 (s 15(3), Guardianship Act). The Tribunal accepted that Mrs OKC was now happy and settled in her daughter’s home and wished for her daughter to be appointed guardian. The Tribunal had some reservations of appointing Mrs SAT as guardian, given the prior estrangement, and Mrs SAT’s dishonest subterfuge in misrepresenting her intentions to the previous guardians.

53. However, the re-establishment [of] family relations is a positive benefit to Mrs OKC. The previous guardians now lacked her trust and appointing a family member as guardian has considerable advantages to Mrs OKC in that the decisions affecting her life can be discussed with her at her own time and pace and made by those who have an immediate family bond.

54. On the basis of this evidence, the Tribunal was satisfied that Mrs SAT meets the requirements to be appointed as the private guardian for Mrs OKC.

How long should the order last?

55. An initial guardianship order can be made for a period of up to one year from the date on which it was made.

56. The Tribunal decided to make an order for 12 months to allow time for accommodation and services to be arranged and tested.

FINANCIAL MANAGEMENT APPLICATION

What did the Tribunal have to decide?

57. The questions to be considered by the Tribunal are:

• Is Mrs OKC incapable of managing her affairs?

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

• If so, who should be appointed financial manager?

Is Mrs OKC incapable of managing her affairs?

58. 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, at [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.

59. 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].

60. The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81, at [86]). See Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106, at [20]:

Each case must, of course, be considered on its own facts, including not only actual facts presently known but also, so far as they can be known, prospective developments.

61. Mrs OKC told the Tribunal that she didn’t need any help to look after her money. She was able to describe to the Tribunal her home and its address. She said she had a car that she was intending to sell as she had ceased driving and she had $30,000 in her bank account. She was reluctant to tell the Tribunal about her investments since she said “I don’t want anyone to know where it is”, she had no debts and paid bills regularly, usually by direct debit.

62. Her separate representative, Ms Danis, told the Tribunal that in her opinion Mrs OKC was incapable and needs assistance with her financial affairs including assistance with planning and to pay for services and obtain advice.

63. The Tribunal accepted this submission that Mrs OKC is incapable of managing her affairs in the sense of being unable to adequately plan and obtain advice. The Tribunal found in addition that although Mrs OKC had a reasonable grasp of her financial position at the hearing, she was only recently incapacitated (refer report of Dr X, 17 November 2015) and given her age (85 or 89) there was a reasonable chance she would become more incapacitated in the foreseeable future.

Is there a need for a financial management order?

64. The Tribunal was satisfied that there is a need to appoint someone to manage Mrs OKC’s affairs. The Tribunal noted that Mrs OKC was reasonably wealthy and had considerable assets. With her lack of insight and inclination to change her mind from time to time, she was vulnerable to exploitation.

Is it in Mrs OKC’s best interest that a financial management order be made?

65. The Tribunal was satisfied that it is in the best interests of Mrs OKC that a financial management order be made. She has a substantial estate including a home in Sydney.

Who should be appointed as financial manager?

66. 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.

67. 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.

68. 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.

69. On the side of the then Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage.

70. The advantages of the appointment of a family member were more economic management of smaller estates (that is, freedom from fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers.

71. The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be “more apparent than real”, should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family.

72. In Application by AMAM; Re SAM [2011] NSWSC 503, Hallen AsJ stated:

[34]   It would be unwise to attempt any definition of the matters that may legitimately be enquired into to determine whether the applicant is suitable. Each case must depend on its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager’s character, honesty and ability to manage, diligently, the managed person’s property in the managed person’s best interests.

73. The matters or "guidelines" that should be considered when determining who to appoint as financial manager, as established in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, are discussed and expanded upon by Lindsay J in M v M [2013] NSWSC 1495, at [50].

74. Ms Danis, the separate representative for Mrs OKC, suggested that Mrs SAT should be the financial manager particularly as management of Mrs OKC’s estate by NSW Trustee and Guardian would incur significant fees. However the oversight by NSW Trustee and Guardian would be of benefit given the upheaval in Mrs OKC’s affairs over the last 12 months. Ms Danis suggested a review in 12 months of the financial management order.

75. Mrs SAT indicated a willingness to undertake the financial management role. She said there was no conflict of interest with her mother’s affairs. Mrs SAT was independently wealthy owning her own home and four investment properties. She still worked as a theatrical agent and consultant from her home office.

76. Mr NCM said that the Tribunal should exercise caution if it considered appointing Mrs SAT because of the period of estrangement and Mrs SAT’s subterfuge and misrepresentations to the previous guardians. Her trustworthiness was in question. Further, the failure to comply with the previous financial plan prepared for Mrs OKC by her previous attorney’s had cost Mrs OKC a considerable amount of money, he said. Mr NCM went on to submit that such caution should cause the Tribunal to appoint the NSW Trustee and Guardian who does that work for a living.

77. Mrs LBD essentially agreed with Mr NCM’s submissions. Mrs LBD told the Tribunal that the public trustee should be appointed. The circumstances of Mrs OKC’s travel to Sydney and the deception by Mrs SAT (saying her mother would be taken to a residential care facility but then being taken to a lawyer instead) indicated that Mrs SAT should not be trusted with her mother’s affairs. Mrs LBD said that Mrs OKC had full trust in her and Mr NCM until September 2015 when the estranged daughter suddenly reappeared and everything changed.

78. Mrs SAT was critical of the previous financial plan saying her mother’s happiness and wellbeing was more important than money. She said that previous financial plan was only operative if her mother was in aged residential care and Mrs OKC did not want to be there.

79. On the question of her capacity and qualifications to act as financial manager, Mrs SAT said that she had not been convicted of any offence involving dishonesty nor had she ever been made bankrupt. She had the necessary financial skills to manage her mother’s affairs. She had operated her own business for many years and managed her own investments herself.

80. The Tribunal considered the relative merits of appointing the NSW Trustee and Guardian or a private guardian and was persuaded that a private guardian would have the advantages of lower fees, better interaction with the manager and if Mrs SAT were appointed, the advantage of love and affection for her mother and concern for her quality of life.

81. The Tribunal accepted that it was appropriate to question Mrs SAT’s character following her deception to get her mother back to Sydney. However, the Tribunal ultimately decided that Mrs OKC’s circumstances and allegiances have changed since leaving for Western Australia. The advantages for Mrs OKC of appointing her daughter as financial manager are greater than the uncertainties. Some of the uncertainty is addressed because the order is subject to the supervision of the NSW Trustee and Guardian. The Tribunal decided the other uncertainties are addressed by making a reviewable appointment (see below).

82. The Tribunal was satisfied that Mrs SAT was a suitable person to be appointed as financial manager for Mrs OKC subject to the authorities and directions of the NSW Trustee and Guardian.

Should a reviewable financial management order be made?

83. The Tribunal may determine that a financial management order should be reviewed within a specified time. In this matter, the Tribunal determined that the appointment of the financial manager should be reviewed within 12 months because of the matters outlined above.

Other applications

84. As a result of the Tribunal orders, Mrs SAT sought leave to withdraw her applications to review the previous enduring power of attorney and enduring guardianship [matter numbers 2015/12011 and 2015/12012]. In the circumstances the Tribunal accepted this submission and granted leave to withdraw those two matters.

85. As a result of the Tribunal orders, Mr NCM and Mrs LBD sought leave to withdraw the application to review the revocation of the enduring guardianship and the application to review the revocation of the enduring power of attorney, the revocation in question being signed on 17 December 2015. In all the circumstances the Tribunal gave its consent for the withdrawal of those two applications, being matter numbers [2015/11941 and 2015/11942].

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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: 15 June 2016