QBS
[2015] NSWCATGD 30
•18 February 2015
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: QBS [2015] NSWCATGD 30 Hearing dates: 18 February 2015 Date of orders: 18 February 2015 Decision date: 18 February 2015 Jurisdiction: Guardianship Division Before: S Taylor, Senior Member (Professional) Decision: Financial management order revoked.
Catchwords: FINANCIAL MANAGEMENT – whether to revoke financial management order – whether subject person has regained capacity to manage affairs – best interests – whether affairs can be managed with informal support – enduring power of attorney instrument executed – financial management order revoked Category: Principal judgment Parties: Miss QBS (the protected person)
Mr LAS (father, financial manager, and applicant)
The NSW Trustee and GuardianRepresentation: Nil
File Number(s): 23350 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).
REASONS FOR DECISION
What the Tribunal decided
-
The Tribunal revoked the financial management order it made on 30 November 2001 in relation to Miss QBS.
Background
-
Miss QBS is a 51-year old woman who has been treated for bipolar affective disorder for more than twenty years. She has lived at Inner West Sydney for many years with her friend and landlord, Mr TCI.
-
On 30 November 2001 the Tribunal appointed Mr LAS as Miss QBS's financial manager. At that time Miss QBS was in debt to Mr TCI, due to overspending when manic, and was not spending money on her daily requirements. She had cashed in shares which she had accumulated with the assistance of Mr TCI and Mr LAS. She then travelled overseas without advising friends or family, and had spent large amounts of money in a short period. She was hospitalised whilst overseas and had to be traced through the police.
-
On 11 July 2014 Mr LAS submitted an application to revoke the financial management order, on the basis that Miss QBS's mental state has improved, and the supervision of the NSW Trustee and Guardian is impeding him from making timely decisions with regard to her share portfolio.
-
On 28 November 2014 the Tribunal adjourned part heard the hearing of the requested review of the financial management order for a period of three months, to allow time for further information to be provided.
The Hearing
-
At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing. [appendix removed for publication]
What did the Tribunal have to decide?
-
On reviewing the financial management order made for Miss QBS, the Tribunal must confirm, revoke or vary the financial management order.
-
The Tribunal may revoke the financial management order only if:
it is satisfied that Miss QBS is capable of managing her affairs;
OR
it considers that it is in the best interests of Miss QBS that the order be revoked.
Evidence provided at the hearing on 28 November 2014
-
At the hearing on 28 November 2014, Miss QBS's father and financial manager, Mr LAS, provided documents to the Tribunal indicating that Miss QBS's assets now amount to $112,747, consisting of $40,262 in bank accounts, and $72,485 in shares. This has grown from investment in shares over a number of years, from a starting amount of around $5,000. Mr LAS said that, with the assistance of Mr TCI, he has worked hard to increase Miss QBS's assets, and her money is always spent in her best interests. He has saved money from her disability support pension, and has used this money to invest.
-
Mr LAS said that the supervision of the NSW Trustee and Guardian has become increasingly bureaucratic, and he believes it is no longer working in Miss QBS's best interests. He acquired a share portfolio for Miss QBS in 2007, and the annual reporting has become increasingly detailed and onerous, with no benefit to Miss QBS. The NSW Trustee and Guardian has placed restrictions on the buying and selling of shares, and has asked him to open an account with Bank A to consolidate Miss QBS's share portfolio.
-
It has not been possible to buy and sell shares at optimal times, and this has meant that he has not been able to maximise the growth of Miss QBS's portfolio.
-
Mr LAS said Miss QBS has some involvement in the management of her shares, and attends some of the companies' annual general meetings. Mr LAS would like to continue to manage her affairs, with her involvement, and with the help of Mr TCI, and this would be optimally done under an Enduring Power of Attorney.
-
Miss QBS told the Tribunal that they invested $5,000 in a gold mining company which was started by a friend of hers, and she wants to retain those shares. She believes she can manage her own affairs, but would be happy for Mr TCI to help her with this. She regularly sees her treating doctor, Dr Z, and has not been hospitalised since 2001.
-
The Tribunal adjourned the hearing in order to obtain further information, including a report from Miss QBS's doctor, a detailed report from the NSW Trustee and Guardian, and further documentation about Miss QBS's investments. Additionally, Mr LAS and Mr TCI said that Miss QBS may consider making an Enduring Power of Attorney.
Evidence provided at the hearing on 18 February 2015
-
In a report to the Tribunal dated 13 February 2015, a Senior Liaison Officer from the NSW Trustee and Guardian stated that the NSW Trustee and Guardian has no major concerns about Mr LAS's general management of Miss QBS's finances. All accounts have been passed, and Mr LAS is generally responsive to calls and correspondence from the NSW Trustee and Guardian. The value of Miss QBS's estate has increased from $32,928.58 in 2008 to $66,326.36 in 2013.
-
The Liaison Officer stated however that the NSW Trustee and Guardian regards share investments as carrying significant risk, and has placed some restrictions on Mr LAS's ability to buy and sell shares. Approval is only granted to trade in shares which do not exceed 20% of the total capital holdings at any one time. This approval is limited to trading on the ASX200, and risks to the estate must be minimised. The Liaison Officer considered that it would be important to ensure that financial institutions recognise Miss QBS's or Mr LAS's authority, if the financial management order were revoked.
-
At the hearing on 18 February 2015, the Tribunal was provided with a copy of a certified Enduring Power of Attorney executed by Miss QBS on 13 February 2015, appointing Mr LAS and Mr TCI as her joint and several attorneys, effective immediately. Miss QBS told the Tribunal that she is happy for the financial management order to be revoked, and for Mr LAS and Mr TCI to operate under the Power of Attorney for the time being. Miss QBS said she is now in a good financial position with her share portfolio, and spends her money carefully and does not have any credit cards.
-
Mr TCI told the Tribunal that he and Mr LAS have invested in shares for Miss QBS, but they take a defensive approach, and have not sold any shares.
-
He discusses financial decisions with Miss QBS and Mr LAS. He is in a good financial position as a result of his own investment in shares, and he also looks after his father's estate, which is worth several million dollars.
-
Mr LAS provided bank statements to the Tribunal which indicate that, as at 4 February 2015, Miss QBS had $4,585 in a deeming account with Bank B, and $27,689.47 in a reward savings account also with Bank B. She also has shares in a communications company, Bank C, and said gold mining company, totalling more than $86,000. Mr LAS said that he has four other children who are also in a good financial position, and they would never allow Miss QBS's interests to be compromised. Mr LAS also provided a letter dated 17 December 2014 from Miss QBS's treating doctor, Dr Z, stating that Miss QBS has the capacity to understand and make decisions regarding the making of an Enduring Power of Attorney.
Is it in the best interests of Miss QBS that the order be revoked?
-
When Miss QBS's finances came under management in 2001, she was in debt, and had no savings. The evidence is that her estate has increased significantly during the period that Mr LAS has been managing her affairs, and she now has assets of more than $110,000. No concerns have been expressed about Mr LAS's and Mr TCI's ability to continue to assist Miss QBS with her finances. Miss QBS has now executed an Enduring Power of Attorney appointing Mr LAS and Mr TCI, which gives them the authority to act on her behalf with regard to her finances.
-
The Tribunal was satisfied that it was in Miss QBS's best interests that the financial management order be revoked, removing the need for reporting and payment of fees to the NSW Trustee and Guardian. Should there be any concerns regarding the management of Miss QBS's finances in the future, another application for financial management can be made to the Tribunal.
**********
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: 01 December 2015
0
0
0