QZL

[2020] NSWCATGD 37

NSW Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

QZL [2020] NSWCATGD 37

Hearing dates:

2 March 2020

Date of orders:

2 March 2020

Decision date:

02 March 2020

Jurisdiction:

Guardianship Division

Before:

C L Grant, Senior Member (Legal)
W E Blaxland, Senior Member (Professional)
S Fogg, General Member (Community)

Decision:

The guardianship application is dismissed because the Applicant has withdrawn the application and the Tribunal consents.

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

2. EBL of [Address removed for publication.] is appointed as the financial manager of the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.

Catchwords:

GUARDIANSHIP – application for a guardianship order – withdrawal of application – application dismissed.

FINANCIAL MANAGEMENT – application for a financial management order – subject person with mixed dementia – subject person residing interstate - significant recent cognitive decline – need for NSW property to be sold to pay refundable accommodation deposit – need for management of bank accounts – suitability of proposed private manager – private manager appointed – order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 4, 25M

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

001: Guardianship Application

QZL (the person)
EBL (applicant)
Public Guardian
NGL (spouse)

002: Financial Management Application

QZL (the person)
EBL (applicant)
NSW Trustee and Guardian
NGL (spouse)

Representation:

Nil

File Number(s):

NCAT 2019/00403160

Publication restriction:

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

REASONS FOR DECISION

What the Tribunal decided

1. We made a financial management order appointing EBL to be the financial manager of the estate of his mother, QZL.

2. We dismissed the application for guardianship after the applicant, EBL requested to withdraw the application and we consented.

Background

3. QZL is a 75-year-old woman who is currently living in a nursing home in Victoria. She moved to Victoria in early February 2020 to be close to her children and other family members. Previously she lived in the family home with her husband, NGL in regional NSW but due to her high care needs was temporarily placed in an aged care facility in regional NSW before moving to Victoria.

4. QZL has a cognitive impairment caused by a diagnosis of dementia and Alzheimer’s disease. It is reported that she has been deteriorating for the last two years. Her husband, NGL, has been her primary carer over this time.

5. In late-December 2019, her son, EBL, made applications to the Tribunal for financial management and guardianship on the basis that his mother no longer had capacity to make decisions about her health care and her finances. NGL had been managing her finances for the last few years.

6. QZL’s children and husband are reported to all be supportive of the applications by EBL.

Conduct of the hearing

7. QZL did not attend the hearing. NGL and EBL gave evidence that QZL was likely to become distressed if she was required to participate in the hearing. Further, given her dementia she was unlikely to understand the nature and purpose of the proceedings. We accepted this evidence and decided to proceed with the hearing in the absence of QZL.

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

FINANCIAL MANAGEMENT

9. In relation to financial management we must decide the following questions:

• Is QZL incapable of managing her affairs? Evidence of how the person is actually managing their affairs is relevant. The Tribunal assesses the subjective circumstances of the person including the support available to them and their ability, within the bounds of that support, to make sound judgments.

• Is there a need for another person to manage QZL’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 QZL incapable of managing her affairs?

10. A person is not shown to be incapable of managing their financial affairs unless they are incapable of dealing, in a reasonably competent fashion with their affairs and because of that lack of competence there is a real risk that either they may be disadvantaged in the conduct of such affairs or their money or property may be dissipated or lost.

11. Geriatrician, Dr Z prepared a report dated 10 October 2019 and wrote that she had examined QZL and reported that QZL had scored 69/100 on an ACE 111 assessment and 24/30 on an MMSE assessment. In the opinion of Dr Z, QZL has mixed dementia of vascular and Alzheimer’s aetiology. She also has a generalised anxiety disorder that impacts on her function.

12. General Practitioner, Dr Y from a medical clinic prepared a report dated 6 February 2020 and wrote that QZL had been diagnosed with vascular and Alzheimer’s dementia and had no capacity to make decisions. He also wrote that her cognitive capacity was likely to continue to deteriorate.

13. Her husband, NGL, told us that he had been married to his wife for over 44 years and in the last few years she had significantly declined in her capacity and ability to function independently. He told us that he had been managing all his wife’s finances as she had no capability to do so herself.

14. Her son and the applicant, EBL, told us that he agreed with the medical opinion that due to his mother’s dementia she lacked decision making capacity. In his view, she was incapable of managing her financial affairs.

15. We considered the undisputed and consistent medical evidence from Dr Z and Dr Y supported by her husband and son and we are satisfied that QZL is incapable of managing her financial affairs.

Is there a need for another person to manage Mr Morris’s affairs and is it in his best interests for a financial management order to be made?

16. NGL told us that he and his wife jointly owned their family home in regional NSW which was unencumbered and valued at about $540,000. He and his wife also have two joint accounts with the Bank ZZ and the Bank AB with a total balance of about $5,500. His wife has two other accounts with Bank AB in her own name and he has no access to these accounts. One of the accounts is a term deposit with about $82,000 and the other account has a minimal balance. His wife also owns a motor vehicle in her name valued at about $1,000. She receives an aged pension of about $930 per fortnight. Her accommodation fees are about $51 per day but these daily fees will reduce once the refundable accommodation deposit assessed at $32,000 is paid. NGL told us that he had been paying the rates and other utility bills for the family home from his own funds.

17. NGL told us that he intends to sell the family home and to purchase another property in Victoria to be close to his wife’s aged care facility. He needed his wife to have an appointed financial manager to enable the family home, held in joint names to be sold, to manage his wife’s bank accounts and to pay his wife’s refundable accommodation deposit to the aged care facility.

18. EBL confirmed his father’s plan to sell the family home and purchase another property in Victoria close to QZL’s aged care facility. He also told us that all his siblings and extended family supported the application.

19. We are satisfied that there is a need to appoint someone to manage QZL’s financial affairs and it is in her best interests that an order be made. That is, there is no power of attorney or formal third party signatory able to operate her bank accounts, act with respect to selling the family home, organise payment of the accommodation deposit, pay all her expenses and sell the motor vehicle registered in her name. These tasks will be for the financial manager.

Who should be appointed financial manager?

20. In appointing a financial manager, as in making all other orders under Guardianship Act 1987 (NSW), 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.

21. 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.

22. EBL proposed himself as his mother’s financial manager. He was very committed to ensuring his mother was comfortable in her new accommodation and that her financial assets were protected and he believed he was the best person to manage her finances.

23. NGL supported the appointment of EBL as financial manager. He was happy for his son to take over management of his wife’s estate.

24. During the hearing, the Tribunal made enquiries of EBL to ascertain whether he was a “suitable person”, for the purposes of the Guardianship Act to be appointed as his mother’s financial manager. EBL told us that he had an accounting background and a successful career of managing his own businesses. He also confirmed that:

• he is not, and never has been, bankrupt;

• he has not been convicted of any offences involving dishonesty;

• he is aware of, and accepted, the accounting and reporting requirements of the Office of the NSW Trustee and Guardian; and

• there is no intermingling of his own funds and those of QZL’s funds.

25. We are satisfied that EBL has the knowledge and experience to be a suitable person to be appointed as financial manager for QZL subject to the authorities and directions of the NSW Trustee and Guardian.

DISMISSAL OF THE GUARDIANSHIP APPLICATION

26. Before we may make a guardianship order, we must be satisfied that:

• QZL is a person with a disability within the meaning of the Guardianship Act;

• because of that disability/ those disabilities, QZL is totally or partially incapable of managing her person;

• QZL is a person in need of a guardian and a guardianship order should be made; and

• if a guardianship order is made what decision making functions should be given to the guardian.

27. The applicant, EBL requested to withdraw the application for guardianship on the basis there was no need for the order. That is, QZL was settled and comfortable in the aged care facility in Victoria and the family were making all the necessary decisions regarding her medical treatment and health care. The withdrawal application was supported by NGL.

28. We accepted the submission and consented to the withdrawal application. We also noted that QZL is now residing permanently in Victoria and therefore the Tribunal was unlikely to have jurisdiction to hear the matter in any event.

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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

Amendments

16 February 2021 - Amendment to cover sheet

Decision last updated: 16 February 2021