P v NSW Trustee and Guardian
[2015] NSWSC 579
•18 May 2015
|
New South Wales |
Case Name: | P v NSW Trustee and Guardian |
Medium Neutral Citation: | [2015] NSWSC 579 |
Hearing Date(s): | 26 March 2015 |
Date of Orders: | 18 May 2015 |
Decision Date: | 18 May 2015 |
Jurisdiction: | Equity Division - Protective List |
Before: | Lindsay J |
Decision: | (1) ORDER that any requirement, under the Uniform Civil Procedure Rules 2005 NSW or otherwise, for the plaintiff to have conducted these proceedings by a tutor be dispensed with. |
Catchwords: | GUARDIANSHIP – Guardians, committees, administrators, managers and receivers – Appointment – Capacity for self-management – Meaning – Governed by nature and purpose of protective jurisdiction |
Legislation Cited: | Australian Courts Act, 1828 |
Cases Cited: | A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 4) [2014] NSWSC 31 |
Texts Cited: | HS Theobald, The Law Relating to Lunacy (Stevens and Sons, London, 1924), pp 5-6, 37, 41-44, 47-49 59-60, 50-53, 54, 61, 362-363, 380, 381, 382, 401-403, 462, 511-513 |
Category: | Principal judgment |
Parties: | Plaintiff: Protected Person |
Representation: | Counsel: |
File Number(s): | 2014/00259237 |
JUDGMENT
INTRODUCTION
These proceedings are ultimately, and centrally, about the welfare of an elderly woman (the plaintiff) in transition from independent living to residence in an aged care facility.
The plaintiff was born in 1923 and is presently aged nearly 92 years. The events which triggered proceedings in the Guardianship Division of the Civil and Administrative Tribunal of NSW (“NCAT” or “the Tribunal”), now under appeal, arose in the context of her being required, for her physical welfare, to move from her home in regional New South Wales to a local aged care facility. She is a widow. Her husband died, on her birthday, in 2012. She subsequently suffered ongoing grief and social isolation. She is frail and unable, by reason of her frailty, to live alone or independently. She has two adult sons. Neither lives near her. One, the second defendant, ordinarily lives in New Zealand. The other, who suffers from a disability, lives in a care facility in Sydney.
In the process of arranging for her to move into an aged care facility, a friend upon whom she appears to be socially dependent (“KM”) was granted an Enduring Power of Attorney, ostensibly expressed in terms larger than any formal authority he may have needed, and (until the Tribunal’s intervention) he was poised to buy her home at a $100,000 discount on current market value.
The plaintiff complains of decisions of the Tribunal, the effect of which was to order (under the Guardianship Act 1987 NSW) that:
(a)pursuant to sections 25E and 25H, the estate of the plaintiff be subject to management under the NSW Trustee and Guardian Act 2009 NSW; and
(b)pursuant to section 25M(1)(b), management of the estate be committed to the NSW Trustee and Guardian (“the NSW Trustee”), the first defendant in the current, Supreme Court proceedings.
On 14 February 2014 the Tribunal, inter alia, made an interim financial management order (under the Guardianship Act, section 25H) affecting the plaintiff and an order (under section 25M(1)(b) of the Act) committing management of her estate to the NSW Trustee.
On 17 June 2014 those orders lapsed when the Tribunal made a financial management order (under the Guardianship Act, section 25E) in respect of the plaintiff and, consequentially upon that order, committed management of her estate to the NSW Trustee under section 25M(1)(b).
The plaintiff contends that she is, and was at all material times, capable of managing her own affairs, without any need of a financial management order.
By these Supreme Court proceedings, she challenges both sets of orders but, accepting that the interim financial management order has lapsed, she seeks only an order that the orders of 17 June 2014 be set aside.
The proceedings, when commenced, took the form of an application for judicial review, elaborating grounds for an administrative law challenge to the Tribunal’s orders; namely:
(a)an alleged denial of procedural fairness: essentially an alleged denial of a reasonable opportunity to give or call evidence relating to matters described by the Tribunal as “unresolved issues relating to management of [the plaintiff’s] financial affairs”, including evidence from the plaintiff’s doctor and solicitor of long-standing;
(b)an alleged failure to take into account relevant considerations, including evidence suggesting that urgency earlier attending the Tribunal’s deliberations was no longer operative;
(c)an alleged taking into account of irrelevant considerations, relating to a Will made or to be made by the plaintiff in favour of her friend (KM) suspected, by the able-bodied son of the plaintiff, of taking advantage of the plaintiff; and
(d)errors alleged to have been made by the Tribunal in the construction and application of section 25G of the Guardianship Act.
During the course of several directions hearings, the plaintiff abandoned her application for judicial review and recast the proceedings as an appeal (including an application for leave to appeal on the merits) pursuant to clause 14 of Schedule 6 to the Civil and Administrative Tribunal Act 2013 NSW.
These are the first proceedings in which the Court has been called upon to consider the proper construction, and operation, of clause 14, the legislative predecessor of which was section 67 of the Guardianship Act.
Earlier proceedings between different parties (numbered 2014/00219933), the first appeal instituted under clause 14, were discontinued without any necessity for a judgment to be published.
Procedurally, the proceedings call for a consideration of the intersection between:
(a)the provisions of the Civil and Administrative Tribunal Act (particularly Schedule 6, clause 14) governing an appeal from a decision of the Guardianship Division of NCAT to the Supreme Court;
(b)the jurisdiction of the Court on an application for administrative law relief by way of judicial review of such a decision; and
(c)an exercise of the Court’s inherent, protective jurisdiction.
In the context of a clause 14 appeal, the proceedings also call for a consideration of:
(a)the character to be attributed to an interim financial management order (under the Guardianship Act, section 25H) and an unqualified financial management order (under the Guardianship Act, section 25E) for the purpose of clause 14(1), governing a party’s entitlements to appeal from a decision of the Guardianship Division of the Tribunal to the Court;
(b)the criteria to be applied by the Court in deciding whether or not to grant leave to appeal under clause 14(1);
(c)the criteria to be applied by the Court in making decisions, under clause 14(3), about whether to deal with an appeal by way of a new hearing, and whether to permit evidence to be given (in addition to or in substitution for evidence received by the Tribunal at first instance) in any new hearing; and
(d)the relationship between clause 14 and “rules of court” governing an appeal to the Court.
Upon a consideration of the proper construction and operation of Part 3A of the Guardianship Act (comprising sections 25D-25M inclusive), entitled “Financial Management”, the proceedings require consideration of:
(a)the meaning of references in section 25G to a person’s “capability to manage his or her own affairs” in light, inter alia, of:
(i)the statement of “general principles” contained in section 4 of the Guardianship Act; and
(ii)the definition of “a person who has a disability” in section 3(2) of the Act;
(b)whether incapacity for management of one’s own affairs, within the meaning of section 25G, is (as counsel for the plaintiff contends):
(i)limited to mental incapacity; and
(ii)governed by a requirement (expounded by Powell J in PY v RJS [1982] 2 NSWLR 700 at 702C-D) that there appear to be an incapacity for “dealing, in a reasonably competent fashion, with the ordinary routine affairs of man”;
(c)whether (as posited by EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 at [134]) the plaintiff can, and should, be characterised as incapable of managing her affairs if her financial affairs are of such a nature that action is required to be taken, or a decision is required to be made about those affairs, which action or decision she is unable to undertake personally, and which will not otherwise be able to be made unless another person is given the authority to take the action or make the decision.
There is no real dispute that, if the plaintiff’s estate is to be subject to management, the NSW Trustee is the appropriate manager. As often happens the plaintiff, as a protected person, vents her frustration by criticism of the NSW Trustee (which she does not distinguish from the Tribunal); but that criticism is not entirely fair, and no alternative manager has been proposed or is readily available.
The second defendant’s strained relationship with his mother, and his residence in New Zealand, rule him out for the time being. KM’s preparedness, whilst a fiduciary, to receive substantial benefits at the expense of the plaintiff disqualifies him from characterisation as a “suitable person” to be the plaintiff’s protected estate manager.
Although these proceedings provide the first occasion upon which the construction and operation of the Civil and Administrative Tribunal Act, Schedule 6 clause 14 must be considered, the Court is not without the assistance of judicial consideration of legislation closely analogous to clause 14(1).
In Collins v Urban [2014] NSWCATAP 17 at [80]-[84], an Appeal Panel of NCAT, led by the President of the Tribunal (Wright J), articulated criteria to be applied by an Appeal Panel under section 80(2)(b) of the Civil and Administrative Tribunal Act when considering whether to grant leave to appeal on the hearing of an “internal appeal” from a Division of the Tribunal.
In BPY v BZQ [2015] NSWCATAP 33 at [33]-[34] and [37], another Appeal Panel (including Malcolm Schyvens, a Deputy President of the Tribunal, the Division Head of the Guardianship Division) applied those criteria in the context of an appeal, from the making of a financial management order, governed by the “general principles” for which the Guardianship Act, section 4 provides.
The criteria enumerated in Collins v Urban drew heavily on White J’s judgment in SAB v SEMand Ors [2013] NSWSC 253 at [7]-[10] relating to the law and practice of the Court governing appeals under the Guardianship Act, section 67.
There White J summarised jurisprudence going back to seminal judgments of Young J in Re R [2000] NSWSC 886 at [15]-[19], K v K [2000] NSWSC 1052 at [9]-[10] and [12]-[15] and S v S [2001] NSWSC 146 at [12]-[13], including his own instructive judgment in Re B (No 1) [2011] NSWSC 1075 at [58]-[61] and that of Hallen AsJ in EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 at [181]-[210].
Each of these judgments of the Court proceeded on the basis that a section 67 appeal was not intended to serve as a second trial of an issue litigated in the Guardianship Tribunal, the predecessor of the Guardianship Division of NCAT. Together with the Court’s general, protective and administrative law jurisdictions, section 67 provided a means for supervision of work undertaken by the Guardianship Tribunal as a statutory tribunal entrusted with a primary task of deciding factual questions relating to guardianship, financial management and ancillary topics affecting persons in need of protection.
A correct approach to a clause 14 appeal from a decision of the Guardianship Division of NCAT requires an appreciation of a broader context. In NSW the institutional structure for an exercise of protective jurisdiction, in discharge of the State’s long acknowledged obligation to take “care of those who are not able to take care of themselves” (Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259), involves statutory tribunals – in this case, NCAT – working under the judicial supervision of the Supreme Court. That being so, there is a foundational need for familiarity with the legislative scheme governing the work of statutory tribunals and the Court, and an appreciation of how the current scheme of legislation is integrated with the Court’s inherent, protective (parens patriae) and administrative law jurisdictions.
The efficacy of the administration of the State’s legal system for the protection of those in need of protection depends, in large part, on adoption by the Court of practice conventions in exercise of the jurisdiction it enjoys as a superior court. Reserving all its powers for cases in which they may be needed, the practice of the Court is to exercise purposeful restraint in deployment of its inherent jurisdiction, with the object of facilitating the work of statutory tribunals, and channelling appeals from tribunal decisions through the regulatory framework for which legislation (including clause 14) specifically provides. A recent confirmation of this approach can be found in CAC v The Secretary Department of Family and Community Services [2015] NSWCA 105 at [15]-[16].
The work of the Court in its administration of protective jurisdiction is, and for the due administration of justice in New South Wales must be, integrated with that of statutory authorities which bear the heavy burden of routine cases: in the finding of facts, in the making and revocation of orders, and in the day-to-day management of an elaborate administrative regime designed to protect the person and estates of individuals in need of protection.
Of these statutory authorities, three are quasi-judicial bodies staffed with personnel with specialist expertise, supported by administrative arrangements dedicated to the performance of specialist functions:
(a)NCAT’s Guardianship Division focuses upon individuals unable, independently, to manage their person or property.
(b)the Mental Health Review Tribunal focuses on forensic patients and, more generally, the care and treatment of people with a mental illness or mental disorder.
(c)the Children’s Court of NSW focuses on individuals under the age of 18 years, variously described as “minors”, “infants”, “children” and “young persons” depending on context.
By its nature, the protective jurisdiction has a strong administrative flavour. Historically, its origins are found in delegations from the Crown to the Lord Chancellor, and much of the Lord Chancellor’s work was necessarily performed by his delegates or administrative staff: HS Theobald, The Law Relating to Lunacy (Stevens & Sons, London, 1924), page 61; Leonard Shelford, A Practical Treatise on the Law concerning Lunatics, Idiots and Persons of Unsound Mind (Sweet, and Stevens & Sons, London, 1833), pages 25-27. The work of the Court, as the local repository of jurisdiction historically exercised by the Lord Chancellor in England, cannot, functionally, be entirely separated from executive government in one form or another: cf, M v M [2013] NSWSC 1495 at [10]-[20]: Ability One Financial Management Pty Ltd and Anor v JB by his Tutor AB [2014] NSWSC 245 at [55]-[58]; PB v BB [2013] NSWSC 1223 at [10]-[16], [61]-[64] and [66]-[72]; W v H [2014] NSWSC 1696 at [54]-[63].
The machinery of government through which the Court’s protective jurisdiction is exercised – the administrative support provided to the Court by government – the rules of court and procedures through which business of the Court is transacted – changes from time to time without detracting from the operation of the Court’s inherent and supervisory jurisdictions: In re WM (a person of unsound mind) (1903) 3 SR (NSW) 552 at 561, 567, 569 and 570. In practice, this means that an exercise of protective jurisdiction by the Court is able, in the interests of a person in need of protection, to call upon an optimal mix of inherent and statutory jurisdiction. In the language of an earlier generation the Court, as a superior court, does not work within the constraints within which an “inferior”, statutory court or tribunal must operate. Nevertheless, the administrative regime of government within which the Court must act is important to an effective operation of its protective jurisdiction.
The overlapping work of the Supreme Court, the Guardianship Division of NCAT and the Mental Health Review Tribunal depends for its efficacy, in large measure, on the work of the NSW Trustee and Guardian (in particular) and other agencies of the State of NSW.
The work of the Children’s Court depends for its efficacy, in large measure, on the work of the Department of Family and Community Services, its Secretary and Minister.
The statutory authority of the Guardianship Division of NCAT, the Mental Health Review Tribunal and the Children’s Court is, to a large extent, modelled on the template of the Supreme Court’s inherent, protective (parens patriae) jurisdiction.
Whereas the purposive character and functionality of the Court’s jurisdiction emerged over time with comparatively little legislative intervention, the jurisdiction of the specialist statutory authorities, necessarily, has been articulated by comparatively recent legislation.
With the benefit of experience, and the development of the administrative infrastructure of modern government, that legislation has been adapted to provide supplementary powers to the Supreme Court. The Court has been a beneficiary of, as well as the template for, law reform. An example of this is the inclusion of a statement of “general principles” in section 39 of the NSW Trustee and Guardian Act based on experience derived from the operation of the Guardianship Act, section 4.
The Court’s jurisdiction is generally broader than that of the statutory authorities whose work it supervises.
As a statutory authority, NCAT must work within the constraints of the legislation governing it. As the repository of broader powers, the Court must determine how best to deploy its powers when its work intersects with that of NCAT.
The relief the plaintiff seeks in these proceedings is an order that a financial management order made by NCAT’s Guardianship Division be “set aside”, “revoked” or “quashed”, three different terms for the same substantive form of relief.
In substance, that relief could be granted by the Court, with only relatively slight adjustments in focus, by various means, principally:
(a)allowance of an appeal under the Civil and Administrative Tribunal Act, Schedule 6 clause 14.
(b)the making of an order for revocation of the financial management order under the NSW Trustee and Guardian Act, section 86.
(c)the making of a revocation order in exercise of the court’s inherent protective jurisdiction, be that jurisdiction derived from the Third Charter of Justice 1823 and related Imperial legislation or from section 23 of the Supreme Court Act 1970 NSW.
(d)the granting of relief in the nature of a prerogative writ, under section 69 of the Supreme Court Act 1970 NSW, in exercise of the Court’s administrative law (judicial review) jurisdiction.
In exercising the jurisdiction it has to grant relief to, or in relation to, a person such as the plaintiff (in respect of whom there is a contest about capacity for self-management) the Court must remain mindful of the purpose for which its jurisdiction exists, and the need to ensure the effective operation of the statutory authorities upon whose work it relies to deal with routine business.
In the context of the present proceedings that requires the Court to be mindful that, if it does not channel applications made to it for relief through the appeal structure for which clause 14 of Schedule 6 of the Civil and Administrative Tribunal Act provides:
(a)the limitation on appeals for which clause 14 (1) provides may be rendered nugatory.
(b)the choice of appeals from a decision of the Guardianship Division of NCAT for which clause 12 of Schedule 6 of the Civil and Administrative Tribunal Act provides (either to an Appeal Panel of NCAT or to the Court) may, to that extent, be undermined.
(c)the efficacy of NCAT would be undermined, generally, because of an ever present risk of interference via proceedings instituted in the Court.
(d)the efficacy of the Court itself, as well as that of the NSW Trustee and Guardian, would, consequentially also be adversely affected.
(e)to the extent that the validity of orders made by NCAT is called into question on an application for judicial review (administrative law relief), financial managers and those dealing with them may be driven (as in these proceedings), by uncertainty about their authority, to refrain from taking steps necessary in management of an estate to protect the interests of the person in need of protection.
Considerations of this nature require the Court to mould its procedures, practice and relief, both generally and in particular cases, to ensure that the beneficial, purposive character of the protective jurisdiction can be duly served.
CONTEXT : THE NATURE OF FINANCIAL MANAGEMENT ORDERS
The expression “financial management order” is defined by section 25D of the Guardianship Act:
(a)to mean an order (made under section 25E of the Act) that the estate, or part of the estate, of a person “be subject to management under the NSW Trustee and Guardian Act”; and
(b)to include an “interim financial management order” (made under section 25H of the Guardianship Act), for a specified period not exceeding six months, “pending the Tribunal’s further consideration of the capability of the person to whom the order relates to manage his or her own affairs”.
With emphasis added, section 25G of the Guardianship Act provides as follows:
25G Grounds for making financial management order
The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person’s capability to manage his or her own affairs and is satisfied that:
(a) the person is not capable of managing those affairs, and
(b) there is a need for another person to manage those affairs on the person’s behalf, and
(c) it is in the person’s best interests that the order be made.
If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may, by order: (a) appoint a suitable person as manager of the estate; or (b) commit management of the estate to the NSW Trustee: Guardianship Act, section 25M (1).
The provisions of the Guardianship Act authorising the Tribunal to make a “financial management order” (particularly sections 25E, 25G and 25M) are, for the Tribunal, counterparts of similar powers (to appoint a “manager”) conferred:
(a)on the Court, by sections 40-41 of the NSW Trustee and Guardian Act; and
(b)within a more limited ambit, on the Mental Health Review Tribunal, by Part 4.3 Division 1 (sections 43-52) of the NSW Trustee and Guardian Act.
Once a “financial management order” is made (under section 25E or section 25H of the Guardianship Act) or, to use a convenient label, a “management order” is made by the Court or the Mental Health Review Tribunal (under section 41 (1) or section 46 of the NSW Trustee and Guardian Act respectively) so that, by means of such an order, the estate of a person is subject to management under the NSW Trustee and Guardian Act, the person is deemed by statute to be a “protected person”: Guardianship Act, section 25D; NSW Trustee and Guardian Act, section 38.
NCAT’s power to make an “interim financial management order” serves a similar purpose to that served by the Court’s powers (under the Supreme Court Act 1970 NSW, section 67 and the Court’s inherent jurisdiction) to appoint a receiver: Theobald, The Law Relating to Lunacy (1924), pages 54, 401-403 and 511-513; JMK v RDC and PTO v WDO [2013] NSWSC 1362 at [55]-[56].
Functionally, it may be immaterial whether a person appointed to manage the estate of a person incapable of managing his or her own affairs is called a “manager”, “receiver” or (under the Court’s inherent, protective jurisdiction) a “committee of the estate”: Ex-parte Warren (1805) 10 Ves Jun 622; 32 ER 985 at 986. All such appointments are governed by the protective purpose they serve. All are provisional in the sense that they can be revoked if they lack utility: Guardianship Act, sections 25N-25U; NSW Trustee and Guardian Act, section 86; Re W and L (Parameters of Protective Estate Management Orders) [2014] NSWSC 1106 at [66] et seq.
A “receiver” appointed to manage a protected estate must, however, be distinguished from a receiver and manager appointed by the Court on an exercise of general equitable, or analogous statutory, jurisdiction: Theobald, page 397. The two offices are governed by the purpose for which an appointment is made. A receiver appointed on an exercise of protective jurisdiction is, functionally, an “interim” protected estate manager.
Functionally, a protected estate manager (whether appointed under a financial management order made under the Guardianship Act or by a management order made under the NSW Trustee and Guardian Act) is the modern, local equivalent of a “committee of the estate” appointed by the Court on an exercise of its inherent, protective jurisdiction. Cf, Theobald, pages 41-44, 47-49 and 50-53.
Historically, a person appointed as a committee of the estate of a person in need of protection was regarded as being in the position of a bailiff: Theobald, page 50. Labels aside, the office of a protected estate manager is unique, taking its colour from the terms of the manager’s appointment, governed by the protective jurisdiction of the Court and informed by the nature, purpose and historical origins of that jurisdiction: Ability One Financial Management Pty Ltd and Anor v JB by his Tutor AB [2014] NSWSC 245 at [174]-[175]. A protected estate manager owes the obligations of a fiduciary to the person whose estate is under management, and is subject to supervision by the Court and (if a private manager) the NSW Trustee.
CONTEXT : THE PURPOSIVE CHARACTER OF THE PROTECTIVE JURISDICTION
The purposive character of the protective jurisdiction (including that exercised by the Guardianship Division of NCAT, and the Mental Health Review Tribunal, by legislation) is governed by a central informing idea: that the jurisdiction exists for the care of those who are not able to take care of themselves (Secretary Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258), and that an exercise of the jurisdiction affecting a person in need of protection must be for the benefit, and in the best interests, of that person as an individual, not for the benefit of the state, or others, or for the convenience of carers (Re Eve [1986] 2 SCR 388 at 409-411, 414, 425-428, 429-430, 431-432 and 434; 31 DLR (4th) 1 at 16-17, 19, 28-30, 31, 32 and 34). Implicit in the focus on a person in need of protection “as an individual” is respect for his or her autonomy.
The jurisdiction’s central, informing idea (sometimes described as the “welfare principle” or the “paramountcy principle”) finds legislative expression, in similar terms, in both the Guardianship Act, section 4 and the NSW Trustee and Guardian Act, section 39: CJ v AKJ [2015] NSWSC 498 at [17]-[29].
In the context of the current proceedings, this can be most conveniently illustrated by setting out section 4 of the Guardianship Act (with emphasis added):
“4. General principles
It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:
(a) the welfare and interests of such persons should be given paramount consideration,
(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,
(c) such persons should be encouraged, as far as possible, to live a normal life in the community,
(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,
(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
(g) such persons should be protected from neglect, abuse and exploitation,
(h) the community should be encouraged to apply and promote these principles.”
With emphasis added, section 3(2) of the Guardianship Act defines, in the following terms, the concept of “a person who has a disability”:
“(2) In this Act, a reference to a person who has a disability is a reference to a person:
(a) who is intellectually, physically, psychologically or sensorily disabled,
(b) who is of advanced age,
(c) who is a mentally ill person within the meaning of the Mental Health Act 2007 , or
(d) who is otherwise disabled,
and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation.”
The expression “with respect to” in the introductory words of section 4 is sufficient to require an application for a financial management order under section 25E of the Guardianship Act, or an application for an interim financial management order under section 25H of the Act, to be informed by the general principles set out in section 4 even if, ultimately, the Court finds that the respondent to the application is not, in fact, a “person who has a disability” within the meaning of section 3(2): CJ v AKJ [2015] NSWSC 498 at [44]-[48]. The Guardianship Act should be construed beneficially, having regard to its protective character: Protective Commissioner v D (2004) 60 NSWLR 513 at 543 [167]. As mandated by section 33 of the Interpretation Act 1987 NSW, the Court should construe the Act in a manner designed to promote its beneficial, protective purpose. That requires that section 4 be construed as informing consideration of an application for a financial management order in all eventualities.
This construction may be reinforced by reference to the Civil and Administrative Tribunal Act, Schedule 6, clause 5(1).
The attention of the Guardianship Division of NCAT is specifically drawn to the general principles set out in section 4 of the Guardianship Act by the interrelationship between that Act and the Civil and Administrative Tribunal Act, particularly Schedule 6, clause 5(1).
The jurisdiction to make a financial management order under the Guardianship Act is specifically, expressly conferred on NCAT. The functions of NCAT in relation to the Guardianship Act (as well as in relation to the NSW Trustee and Guardian Act and the Powers of Attorney Act 2003 NSW) are allocated to the Guardianship Division of the Tribunal by the Civil and Administrative Tribunal Act, Schedule 6, clause 3 (1).
Clause 5 of Schedule 6 provides as follows:
“5. Certain principles under Guardianship Act 1987 to be applied
(1) The Tribunal, when exercising its Division functions for the purposes of the Guardianship Act 1987 in relation to persons who have disabilities, is under a duty to observe the principles referred to in section 4 of that Act.
Note : Section 4 of the Guardianship Act 1987 sets out principles that everyone must observe when exercising functions under that Act with respect to persons with disabilities.
(2) The provisions of this clause are in addition to, and do not limit, the provisions of section 36 (5) of this Act.”
Section 36 of the Civil and Administrative Tribunal Act is in the following terms:
“36. Guiding principle to be applied to practice and procedure
(1) The ‘guiding principle’ for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The Tribunal must seek to give effect to the guiding principle when it:
(a) exercises any power given to it by this Act or the procedural rules, or
(b) interprets any provision of this Act or the procedural rules.
(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal:
(a) a party to proceedings in the Tribunal,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.
(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.
(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.”
The effect of section 36(5) and Schedule 6 clause 5 is to confirm the centrality of section 4 (read with section 3(2)) of the Guardianship Act in the exercise by the Guardianship Division of NCAT of the jurisdiction conferred upon it relating to the making of financial management orders.
THE COURSE OF NCAT PROCEEDINGS
Proceedings in the Tribunal were instituted by the second defendant to the current proceedings, the able-bodied son of the plaintiff ordinarily resident in New Zealand.
By an application filed in the Tribunal on 10 February 2014, he applied under section 36 of the Powers of Attorney Act 2003 NSW for a review of the making, operation and effect of the Enduring Power of Attorney granted by the plaintiff to her friend, KM, on 20 December 2013.
The decisions of the Tribunal the subject of complaint in the current proceedings were made on two occasions: first, on 14 February 2014, when orders having an interlocutory flavour were made by the Tribunal; and, secondly, on 17 June 2014, when the Tribunal made orders more distinctly final in character.
The plaintiff, personally, participated in both Tribunal hearings. She participated in the first hearing (on 14 February 2014) by telephone. For the second hearing, on 17 June 2014, the Tribunal (with the same legal and professional members, but a different community member) travelled to the plaintiff’s region. She attended that hearing in person. She had no legal representation on either occasion. On both occasions, she was accompanied by KM.
A representative of the NSW Trustee (the current first defendant) and the plaintiff’s son (the second defendant) participated in the hearing of 17 June 2014 by telephone. The son had also participated in the hearing of 14 February 2014 by telephone.
On the first of the two hearings, on 14 February 2014, the Tribunal decided:
(a)under section 36 (1) of the Powers of Attorney Act, to review the making of the Power of Attorney;
(b)under section 36 (2) of the Powers of Attorney Act, to make no orders under section 36 of the Act (upon a review of the Power of Attorney) but, under section 37 (1) of the Powers of Attorney Act, to treat the application for review of the Power of Attorney as an application for a financial management order under Part 3A (sections 25D-25U) of the Guardianship Act;
(c)to adjourn the application for a financial management order for six months and (pursuant to sections 25F(d), 25H and 25M(1) (b) of the Guardianship Act) to make an interim financial management order, committing management of the plaintiff’s estate to the NSW Trustee; and
(d)to reserve liberty to apply for a restoration of the Tribunal proceedings for an earlier hearing.
No transcript of the proceedings before the Tribunal on 14 February 2014 is in evidence.
On or about 25 March 2014 the Tribunal provided to the plaintiff (in accordance with clause 11 of Schedule 6 to the Civil and Administrative Tribunal Act) a statement of reasons for the decisions made on 14 February 2014.
By a letter dated 9 April 2014 addressed to the Tribunal, the solicitor for the plaintiff applied for the proceedings before the Tribunal to be restored to the list for an early hearing.
On that application, the proceedings came before the Tribunal for hearing on 17 June 2014.
Evidence before the Court in the current proceedings includes a full transcript of the proceedings before the Tribunal on that date.
On 17 June 2014 the Tribunal made orders to the effect that:
(a)pursuant to section 25E of the Guardianship Act, the estate of the plaintiff be subject to management under the NSW Trustee and Guardian Act; and
(b)pursuant to section 25M(1)(b) of the Guardianship Act, management of the plaintiff’s estate be committed to the NSW Trustee.
Subsequently (on or shortly after 5 August 2014), in conformity with clause 11 of Schedule 6 to the Civil and Administrative Tribunal Act, the Tribunal provided to the parties (the plaintiff and the second defendant) a written statement of reasons for the decisions made on 17 June 2014.
THE COURSE OF THESE, SUPREME COURT PROCEEDINGS
The Summons
By a summons filed in the Administrative Law List of the Common Law Division of the Court on 3 September 2014, the plaintiff applied for judicial review of “the decision” of the Tribunal, described as “the committal of the estate of the plaintiff to the management of the NSW Trustee”.
The summons named the NSW Trustee as the only defendant to the proceedings. It sought an order that “the decision” of the Tribunal be quashed on the grounds of a denial of natural justice and an error in law.
On the return of the summons (on 12 September 2014) a registrar ordered that the plaintiff be granted leave to file an amended summons, and that the proceedings be transferred to the Equity Division. The intention of the registrar, not immediately given effect, was that the proceedings be dealt with in the Equity Division’s Protective List.
The Amended Summons
Pursuant to the leave granted, the plaintiff filed an amended summons on 19 September 2014. Essentially, it refined the plaintiff’s case in two respects.
First, it reconstituted the proceedings: the NSW Trustee became the first defendant; the plaintiff’s son (the applicant to the Tribunal) was joined as the second defendant; and the Tribunal itself was joined as the third defendant.
Secondly, it set out the grounds (already here elaborated) for an administrative law challenge to the decision(s) of the Tribunal.
In the Equity Division, the proceedings came before a registrar of the Court, in the Division’s general list, on 8 October 2014, 3 December 2014 and 4 February 2015. On the first two occasions the parties agreed to a timetable and the registrar gave directions conforming to their agreement. On the third occasion the registrar referred the proceedings to the duty judge, essentially because of difficulties experienced in management of the plaintiff’s estate during pendency of the proceedings in the Court.
In resolving an impasse that had led to indecision on the part of the NSW Trustee as to what (if anything) it could do in management of the plaintiff’s estate pending the plaintiff’s application for judicial review, the Chief Judge in Equity, as duty judge, drew to the plaintiff’s attention that:
(a)clauses 12 and 14 of Schedule 6 to the Civil and Administrative Tribunal Act provide an avenue of appeal to the Court from decisions of the Tribunal; and
(b)sections 84 (1)(b) and 84 (3) of the Civil and Administrative Tribunal Act provide that the Tribunal cannot be made a party to such an appeal.
Her honour subsequently ordered that the proceedings be listed before me, as Protective List Judge, for directions.
The Further Amended Summons
When the proceedings came before me on 27 February 2015 the principal contestants (the plaintiff and the second defendant) were represented by counsel. The NSW Trustee (the first defendant) appeared, by a solicitor in its employ, to assist the Court. Having earlier (on 8 October 2014) filed a submitting appearance, the Tribunal (the third defendant) played no part in the proceedings.
After engaging the parties in an extended directions hearing, I made notations and orders, inter alia, to the following effect:
(a)Order that the plaintiff be granted leave to amend her amended summons by filing a “further amended summons”.
(b)Order that, for the purpose of regularising the constitution of the proceedings, the plaintiff be granted such leave as may be necessary to discontinue proceedings against the Tribunal and that, accordingly, that the Tribunal be removed from the record of the Court as the third defendant.
(c)Note that no party in the proceedings as now constituted has any objection to the Court exercising its inherent protective jurisdiction in the proceedings should the Court form the view that it is in the interests, and for the benefit, of the plaintiff that it do so.
(d)Note that, by operation of clause 14(5) of Schedule 6 to the Civil and Administrative Tribunal Act, the decision of the Tribunal under appeal in these proceedings is stayed subject to any interlocutory orders made by the Court.
(e)Note that the first defendant has taken steps, so far as it can, to ensure that the plaintiff receives the whole of her pension for her own use and benefit, under her own management.
(f)Note that, subject to any further order of the Court, it is the intention of the Court that the plaintiff continue to receive the whole of her pension on that basis.
(g)Order, subject to further order, that the NSW Trustee:
(i)be directed to liaise with the solicitor for the plaintiff, should he invite the NSW Trustee to do so, as to management of the estate of the plaintiff; and
(ii)be at liberty to take such steps as to the NSW Trustee seems appropriate, in consultation with the solicitor for the plaintiff, to ensure that reasonable provision is made for, or available to, the plaintiff out of her estate.
The plaintiff’s further amended summons refined her case in two respects. First, it removed the Tribunal from the proceedings. Secondly, with an implicit reliance on clauses 14(1)(b) and 14(3) of Schedule 6 to the Civil and Administrative Tribunal Act, it sought an order that the court “permit fresh evidence to be given at the hearing of this appeal”.
Another Directions Hearing
Because of time constraints and a continuing need to refine the parties’ respective cases in order to ensure that the real questions in dispute could be accurately stated for determination, a hearing scheduled for 4 March 2015 necessarily took the form of a directions hearing. Earlier hopes of a final hearing proved too sanguine, a bridge too far.
After further engagement of the parties in discussion on that occasion, I made notations and orders, inter alia, to the following effect:
(a)NOTE that the evidence to be relied upon by the plaintiff in support of her further amended summons now includes (in addition to that recorded in earlier notations) a purported revocation of the power of attorney executed by the plaintiff in favour of KM on 20 December 2014 (now Exhibit P2).
(b)NOTE that, unless the plaintiff advises the Court and the other parties to the proceedings to the contrary, in writing, no later than (a specified time) the Court will proceed on the basis that:
(i)the plaintiff has abandoned her claim for administrative law relief.
(ii)the only order of NCAT under challenge is the financial management order.
(iii)the interim financial management order having been spent, no relief is sought by the plaintiff with respect to it.
(iv)the plaintiff’s case is grounded on an appeal under clause 14 of Schedule 6 to the Civil and Administrative Tribunal Act, together with reliance by the plaintiff on the Court’s powers (under the inherent protective jurisdiction and section 86 of the NSW Trustee and Guardian Act) to order that a financial management order be revoked.
(c)NOTE that the plaintiff seeks, and no party to the proceedings opposes, such extension of time (if any) as may be necessary to ensure that her appeal (under clause 14 of Schedule 6 to the Civil and Administrative Tribunal Act) is competent.
(d)NOTE that the second defendant contends that, if the Court were otherwise minded to make an order revoking the financial management order affecting the plaintiff, it should refrain from doing so without the benefit of some independent medical examination of the plaintiff.
For the avoidance of doubt in management of the plaintiff’s estate, the Court should in due course make a formal declaration that the power of attorney executed by the plaintiff in favour of KM is of no effect.
An Aborted Final Hearing
By the time the proceedings returned to me on 9 March 2015, the plaintiff had acquiesced in characterisation of her case as set out in paragraph 89 (b); the plaintiff and the second defendant had filed written submissions; and the NSW Trustee had served a formal affidavit outlining the course of proceedings, its management of the plaintiff’s estate and the nature and size of the estate.
An occasion reserved for a hearing of the plaintiff’s appeal became a further, extended directions hearing in which attention was given to the nature of the appeal process, the decisions required to be made in giving effect to it and the character of the Court’s protective jurisdiction. Frustrating though this was, it is not altogether uncommon in contested Protective List proceedings, in which parties take, and often need, time to work through practical, life management issues beyond the ken of formal legal process.
At the end of a discussion between bench and bar, counsel for the plaintiff: (a) applied for an adjournment so that the plaintiff might personally attend before the Court; and (b) announced that the plaintiff agreed to orders being made to enable the NSW Trustee, as financial manager, to sell her residence free of any preferential arrangement formerly proposed by her for the benefit of her friend and attorney, KM.
Accordingly, notations and orders were made, inter alia, to the following effect:
(a)Upon the application of the plaintiff, ORDER that the hearing of these proceedings be adjourned, with directions designed to accommodate the convenience of the plaintiff in her attendance at court on a date convenient to her.
(b)NOTE that, upon an assumption that the evidence remains substantially as hitherto foreshadowed, no party objects to the proceedings being conducted, primarily, by way of an appeal under clause 14 of Schedule 6 of the Civil and Administrative Tribunal Act, attended by the following orders under clause 14:
(i)an order, under clause 14(1)(b), that the plaintiff be granted leave to appeal from the financial management order made by the Tribunal on 17 June 2014 on “all grounds” so as to allow a merits review;
(ii)an order, under clause 14(2)(c), that the plaintiff be granted such, if any, extension of time as may be necessary to enable her to institute an appeal under clause 14;
(iii)an order, under clause 14(3)(a), that the plaintiff’s appeal be by way of a new hearing; and
(iv)an order, under clause 14(3)(b), that the parties be permitted to adduce “in addition to the evidence received by the Tribunal at first instance” evidence specifically identified by the Court.
(c)NOTE that the plaintiff confirms that the case sought to be advanced by her in these proceedings bears the character attributed to it in paragraph 89(b) above.
(d)NOTE that the plaintiff and the second defendant agree that the NSW Trustee (as the plaintiff’s financial manager) can, and should, proceed to sell the plaintiff’s former residence, free of any preferential arrangement formerly proposed by her for KM.
(e)ORDER, subject to further order, that the NSW Trustee be at liberty to sell the plaintiff’s former residence, free of any preferential arrangement for KM or any other person.
(f)ORDER, subject to further order, that the NSW Trustee be at liberty to apply funds forming part of the plaintiff’s estate in maintenance of property owned by her and in the preparation of her former residence for sale.
(g)ORDER, subject to further order, that the solicitor for the plaintiff, within a specified time, account to the NSW Trustee for $25,000 received by him from KM as a reimbursement of funds drawn down by KM, with the consent of the plaintiff, as her attorney.
(h)ORDER that the NSW Trustee and the solicitor for the plaintiff liaise about existing and prospective arrangements for payment of aged care fees by or on behalf of the plaintiff, whether out of her pension or her estate generally.
The Final Hearing
Although broad patterns may be discernible in the exercise of protective jurisdiction (including appeals under clause 14 of Schedule 6 of the Civil and Administrative Tribunal Act), the protective purpose of the jurisdiction requires, and enables, the practice and procedures of the Court to be adapted to the needs of each particular case: Theobald, The Law Relating to Lunacy (1924), pages 59-60, 362-363, 380-381, 382 and 462.
The plaintiff’s appeal came on for hearing on 26 March 2015, at which time the plaintiff attended court personally (accompanied, she said, by KM, who remained outside) and was represented by counsel. The NSW Trustee (the first defendant) was represented by an in-house solicitor. The plaintiff’s able-bodied son (the second defendant) was represented by counsel.
At the outset of the hearing, by way of a final directions hearing, the ambit of the evidence sought by each participant to be adduced was expressly identified, as was the procedure to be followed in the Court’s engagement with the plaintiff personally. All were in agreement about the task at hand.
That consensus having been reached, without objection from any quarter:
(a)orders were made under clause 14 as earlier foreshadowed, and noted in paragraph 94(b) above; and
(b)all the affidavit and documentary evidence, duly identified, was formally recorded as having been adduced.
This structured approach to the conduct of the appeal was necessary: (a) to ensure that the appeal could be contained within reasonable limits if permitted to go beyond the appeal on a question of law for which clause 14(1)(b) provides; (b) to make sure that the plaintiff and her counsel were comfortable with the procedure to be followed; and (c) to ensure that any engagement with the plaintiff personally could be conducted with as little formality as due process and procedural fairness allow.
Procedural formalities having been addressed, all participants in the appeal (bench, bar and the plaintiff personally) congregated around the bar table for an informal discussion with the plaintiff. That discussion was led by me, subject to the possibility of objections (of which there were none), followed by short questions from counsel for the second defendant, and closed by counsel for the plaintiff. The plaintiff was given free rein, throughout, to express her views. She did not hold back.
The discussion proceeded for about one hour, as events turned out. The plaintiff is a charming, outspoken woman – disinhibited – with whom care must be taken in conversation because she patently suffers from deafness. In some things, she is mentally acute. In others, not. Despite displays of bravado, she is vulnerable to exploitation, but lacks insight into her vulnerability. She is overconfident about her ability to manage her own affairs. It would not be difficult, through friendship, to conquer her will by charm.
At the conclusion of the discussion I returned to the bench; shared some “first impressions” of the plaintiff with the lawyers; received short oral submissions from the representatives of the defendants; and, at her request, gave a direction for counsel for the plaintiff to file and serve supplementary written submissions in lieu of oral submissions.
Supplementary directions included a direction that the NSW Trustee, in consultation with the other parties, file and serve a short affidavit: (a) verifying the plaintiff’s date of birth; and (b) deposing to the current arrangements presently in place for care of the plaintiff’s disabled son. The evidence before the Court, in light of statements made by the plaintiff personally, was attended by uncertainty which, it seemed to me, should be removed, if reasonably possible.
Unexpected delays occurred in verifying the plaintiff’s date of birth. In retrospect, a substantial part of the problem was that the plaintiff, more than once, mis-stated her age. NCAT proceeded on an assumption that she was born in 1930. The “Aged Care Client Record” produced to the Tribunal by her aged care facility recorded a date of birth in 1931. The doctor’s report tendered in her case described her as an 84 year old, understating her age by eight years. In her oral (unsworn) evidence before the Court, in conversation with me as the judge and the lawyers appearing before the Court, she claimed to have been born in 1933. In subsequent written submissions made by her counsel, and correspondence sent to the Court by her solicitor, the 1933 date was, on her instructions, adhered to by her lawyers.
When a birth certificate was finally obtained upon a search of the records of the Registrar of Births, Deaths and Marriages, it revealed a date of birth in 1923. Confronted with this evidence, the plaintiff acknowledged its correctness.
In supplementary written submissions her counsel explained: “[The plaintiff] confirms that her correct year of birth is 1923, rather than 1933. She has instructed her solicitor that she has been evasive about her age because she ‘did not want to be 92 years of age’ and ‘all girls lie about their age’”.
CONTEXT : INSTITUTIONAL FRAMEWORK OF A CHALLENGE IN THE SUPREME COURT TO A FINANCIAL MANAGEMENT ORDER MADE BY THE GUARDIANSHIP DIVISION OF NCAT
The Guardianship Tribunal replaced by NCAT Guardianship Division
NCAT was established on 1 January 2014 (Civil and Administrative Tribunal Act, section 7) and, on its establishment several tribunals, including the Guardianship Tribunal as constituted under the Guardianship Act, were abolished (Civil and Administrative Tribunal Act, Schedule 1, clauses 2 (1) and 3).
In making a finding that the plaintiff is incapable of managing her own affairs, I do not overlook contrary expressions of opinion by the plaintiff’s solicitor (in an affidavit sworn 27 February 2015) and her doctor (in a single page report dated 27 February 2015, marked Exhibit P2). Having had an opportunity to examine the plaintiff personally, and the factual matrix of her life, I am confident in differing from them. The plaintiff managed to conceal her true age from her solicitor, despite his close attention to that question, and from her doctor. Neither the solicitor nor the doctor appears to have examined with a sufficiently critical eye the course of her dealings with KM, the prudence of those dealings or the risk that she might be open to exploitation.
Nor do I overlook the results of a “cognitive impairment test” administered by the plaintiff’s aged care facility, in about December 2013, recording that she had “no/minimal impairment”. Those results must be taken into account upon an assessment of the plaintiff’s capacity for self-management, but they are not determinative. Nor do they outweigh the factors that have led me to conclude that the plaintiff is incapable of managing her own affairs.
These proceedings are not an inquiry into the motivations or general character of KM or any person closely associated with the plaintiff. I expressly refrain from making any adverse findings of that nature about any such person. However, the proceedings do require a sober appreciation of the plaintiff’s capacity for self-management and risks associated with unsupervised management of her estate; and KM’s preparedness, as a fiduciary, to receive substantial benefits at the expense of the plaintiff rules him out as a prospective protected estate manager. He has manifested a lack of appreciation of conflicts between interest and duty. He could not be relied upon to discharge the duties of a protected estate manager in a sufficiently disinterested way.
The factors to which I have drawn particular attention persuade me that the plaintiff is not able, without supervision, to deal with (making and implementing decisions about) her own affairs in a reasonable, rational and orderly way, with due regard to her present and prospective wants and needs, and those of family or friends, without undue risk of neglect, abuse or exploitation. In combination, and viewed from a variety of perspectives, those factors point towards a finding of incapacity for self-management: CJ v AKJ [2015] NSWSC 498 at [27]-[43].
Within the aged care facility in which she presently resides, the plaintiff has a support system enabling her, with assistance, to cater for the daily demands of ordinary living. However, at least in dealing with capital assets (and with the prospect of having a large, liquid sum standing in a bank account to her credit) she cannot, in my assessment, be relied upon to make sound judgements about her welfare and interests without supervision.
(8) Is there a need for a financial manager (section 25G(b))?
In my assessment there is a need for another person to manage the plaintiff’s affairs, on her behalf, within the meaning of section 25G(b).
In reaching that conclusion I put to one side her need (in common with many in the community) for professional assistance in effecting a sale of land or managing a rental property. That she needs that assistance does not, of itself, carry the consequence that she has a “need” of the type described in section 25G(b).
I also accept, for the purpose of the current judgment, that it is within the plaintiff’s capabilities to manage her pension income without day-to-day supervision, provided, at least, that regular arrangements are in place to ensure timely payment of recurrent fees due to her aged care facility.
The plaintiff’s need for another person to manage her affairs focuses, principally, upon the risk that, without supervision, she cannot be relied upon not to give away capital assets (including, prospectively, the balance of proceeds of sale of her residence) without due regard to her welfare and interests. Incidentally, the fact that (as I have found) she has this need is reinforced by her need to effect a sale of her residence and to have her investment property duly managed.
A finding that there is a need for another person to manage the plaintiff’s affairs, on her behalf, is not inconsistent with steps being taken to ensure that the plaintiff’s freedom of decision and freedom of action are restricted as little as possible in management of her estate: Guardianship Act, section 4(b). As a matter of jurisdiction, section 25E(2) of the Act confirms that a specified part of the plaintiff’s estate could be excluded from any financial management order made. By virtue of section 71 of the NSW Trustee and Guardian Act, a protected estate manager could, by instrument in writing, authorise the plaintiff to deal with a specified part of her estate notwithstanding that (by the virtue of section 71(1) of the Act) the power of a protected person to deal with his or her estate is suspended in respect of so much of the estate as is subject to management under the Act. Subject to the overriding jurisdiction of the Court (under the Act and in its inherent jurisdiction) to give directions relating to management of a protected estate, the NSW Trustee has broad and flexible powers under the Act to facilitate a beneficial and cost-effective form of management.
[The Guardianship Division of NCAT does not have the same powers as the Court has to give directions for the due management of a protected estate. However, it can, in an appropriate case, publish in its reasons for decision a recommendation as to management of a protected estate for the consideration of a manager, the NSW Trustee or the Court in due course. Recommendations made by NCAT, or the NSW Trustee, are not lightly passed over or disregarded by the Court, for its part.]
(9) Is it in the plaintiff’s best interests that a financial management order be made (section 25G(c))?
In my assessment, it is in the plaintiff’s best interests that a financial management order be made so as to assist her in management functions she is unable to perform and to protect her, against herself, in the orderly management of her capital, including her investment property and, in due course, the proceeds of sale of her residence.
Provided she is protected against rash conduct in dispossession of her capital, I presently see no difficulty in: (a) her being fully consulted, personally, about any decisions that need to be made about the realisation of assets or the deployment of capital; or (b) her having free management of her pension, and a small but liberal contingency fund, subject only to secure arrangements being made for timely payment of her recurrent aged care facility fees.
I note, in passing, that section 72 of the NSW Trustee and Guardian Act imposes on the NSW Trustee a statutory obligation to proceed in a consultative way. The importance of such an obligation was emphasised in Holt v Protective Commissioner (1993) 31 NSWLR 227 at 239G-241C.
(10) Should a specified part of the estate of the plaintiff be excluded from any financial management order (section 25E(2))?
Although section 25E(2) of the Guardianship Act (an analogue of section 40 of the NSW Trustee and Guardian Act) permits a specified part of an estate of a protected person to be excluded from a financial management order, the power to make a partial management order needs to be approached with caution, lest due management of a protected estate be prejudiced: Re Application for partial management orders [2014] NSWSC 1468.
I am sympathetic to the plaintiff being allowed to manage her pension income, and a small contingency fund, but I am not satisfied that a partial management order (excluding that part of her estate to be managed by the plaintiff personally) is either necessary or appropriate, at least as matters presently stand. Far greater flexibility, coupled with administrative oversight, is likely to be available through leaving to the NSW Trustee an opportunity to exercise the powers it has, such as those under section 71 of the NSW Trustee and Guardian Act, to allow the plaintiff freedom of decision and action, consistent with maintenance of her estate, including payment of moneys due to her aged care facility.
(11) A final check against the welfare principle (section 4(a))
Touching base with the welfare principle (recognised by Marion’s Case (1992) 175 CLR 218 at 258 and reflected, particularly, in section 4(a) of the Guardianship Act), and measuring the Court’s orders against what is in the interests, and for the benefit, of the plaintiff (as required by Holt v Protective Commissioner (1993) 31 NSWLR 227 at 283D-F and 241G-242A and GAU v GAV [2014] QCA 308 at [48]), I am satisfied that:
(a)the plaintiff is not capable of managing her own affairs (Guardianship Act, section 25G(a));
(b)there is a need for another person to manage the plaintiff’s affairs on her behalf (Guardianship Act, section 25G(b));
(c)it is in the plaintiff’s best interests that a financial management order be made (Guardianship Act, section (25G(c));
(d)the plaintiff’s estate should be subject to management under the NSW Trustee and Guardian Act (Guardianship Act section 25E(1));
(e)no part of the plaintiff’s estate should be excluded from the financial management order (Guardianship Act, section 25E(2));
(f)in the absence of any other person suitable for appointment as manager of the plaintiff’s estate, management of the estate should be committed to the NSW Trustee (Guardianship Act, section 25M); and
(g)although no formal directions should, at this stage, be given to the NSW Trustee so as to bind the course it may take in management of the plaintiff’s estate, it should be encouraged to consider whether (subject to secure arrangements being made for the timely payment of the plaintiff’s aged care facility fees) she can freely manage her pension and a small, but liberal, contingency fund on a day-to-day basis.
CONCLUSION
These findings carry the consequence that (in conformity with clause 14(4) of Schedule 6 to the Civil and Administrative Tribunal Act, the orders made by the Guardianship Division of NCAT on 17 June 2014 (committing management of the estate of the plaintiff to the NSW Trustee as her financial manager) should be confirmed by orders of this Court.
Accordingly, I make the following orders:
(1)ORDER that any requirement, under the Uniform Civil Procedure Rules 2005 NSW or otherwise, for the plaintiff to have conducted these proceedings by a tutor be dispensed with.
(2)ORDER that the orders made by the Guardianship Division of the NSW Civil and Administrative Tribunal on 17 June 2014 (committing management of the estate of the plaintiff to the NSW Trustee as her financial manager) be confirmed.
(3)DECLARE that the plaintiff is not capable of managing her own affairs.
(4)ORDER that subjection of the estate of the plaintiff to management under the NSW Trustee and Guardian Act 2009 NSW be confirmed.
(5)ORDER that committal of management of the estate of the plaintiff to the NSW Trustee be confirmed.
(6)DECLARE that the instrument dated 20 December 2013, entitled “Enduring Power of Attorney”, executed by the plaintiff in favour of [KM], is of no force or effect.
Subject to allowing the parties an opportunity to be heard as to costs, I am inclined to make no orders as to costs, and not to require the solicitor for the plaintiff to account for the costs and disbursements he deducted from trust funds remitted to the NSW Trustee pursuant to an order made by the Court on 9 March 2015.
Prima facie, having regard to the modest size of the plaintiff’s estate, as well as the course of the proceedings, the proper order as to costs seems to me to be that no costs orders be made: CCR v PS (No 2) (1986) 6 NSWLR 622 at 640; CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 at [129]-[134]; CAC v Secretary, Department of Family and Community Services [2015] NSWSC 344 at [11]-[15].
In expressing that view, I am mindful that the outcome of the proceedings has been substantially that for which the plaintiff’s son (the second defendant) has contended; and equally mindful that, in the protective jurisdiction, costs do not routinely follow the event.
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Amendments
19 May 2015 - Paragraph 281 last line, section 25M amended to section 25G.
02 June 2015 - Paragraph 295 amended "advanced stage" to "advanced age".
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