Re KA

Case •

[2020] NSWSC 1696

•

27 November 2020

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Re KA [2020] NSWSC 1696
Hearing dates: 30 October and 18 November 2020
Date of orders: 18 November 2020
Decision date: 27 November 2020
Jurisdiction:Equity - Protective List
Before: Lindsay J
Decision:

Interlocutory orders (including an order for the appointment of the NSW Trustee as receiver and manager of a trust fund) designed to facilitate an independent medical examination of a vulnerable person, and the attendance upon her of an official visitor, for the provision of reports to the Court about her capacity for self-management, and self-expression, in circumstances in which (contrary to a case advanced to NCAT at the time a financial management order affecting her was discharged) she was relocated from her home to a distant suburb, with the intention that access to her be restricted.

Catchwords:

PROTECTIVE JURISDICTION – Management of the affairs (person and property) of a vulnerable person – Interlocutory orders designed to facilitate independent medical examination and a visitor’s report to Court.

Legislation Cited:

NSW Trustee and Guardian Act 2009 NSW

Guardianship Act 1987 NSW.

Supreme Court Rules 1970 NSW

Uniform Civil Procedure Rules 2005 NSW

NSW Trustee and Guardian Act 2009 NSW

Cases Cited:

Angliss v Urquhart [2001] NSWCA 441

Holt v Protective Commissioner (1993) 31 NSWLR 227

In re WM (a person alleged to be of unsound mind) (1903) 3 SR (NSW) 552

Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 128

Texts Cited:

-

Category:Procedural and other rulings
Parties: Plaintiff: SR
First Defendant: MD
Second Defendant: DP
Third Defendant: TM
Fourth Defendant: NT
Fifth Defendant: KA
Representation:

Counsel:
Plaintiff: M Pringle
First to Fourth Defendants: L Ellison SC and S Milanovic
Fifth Defendant: (Provisionally) L Ellison SC and S Milanovic
NSW Trustee: J Brouwer, Solicitor

Solicitors:
Plaintiff: Turner Freeman
First to Third Defendants: Novakovic Lawyers
Fourth Defendant: P Dobrich & Co.
Fifth Defendant: (Provisionally) Novakovic Lawyers
File Number(s): 2020/00256392

Judgment

INTRODUCTION

  1. Upon an exercise of protective jurisdiction, responsive to a notice of motion filed by the plaintiff on 21 September 2020, on 18 November 2020 I made interlocutory orders (including an order for the appointment of the NSW Trustee as receiver and manager of a fund held in the trust account of the fourth defendant, the solicitor on the record for the fifth defendant) designed to facilitate: (a) an independent medical examination of the fifth defendant, directed towards provision of a report to the Court on her capacity for self-management; and (b) the appointment of a visitor to attend upon her to understand, and to report to the Court on, her current needs and her views about the conduct of her affairs generally.

  2. The motion was heard on the basis of affidavit evidence on both sides of the record (to which evidence no objection was taken by any party) without cross examination of any deponent. The fifth defendant was not presented to the Court for examination.

  3. The orders were made following a hearing on 30 October 2020; an adjournment of the proceedings to permit the parties to make inquiries (thus far unsuccessful) about the availability of an independent medical expert with Serbian language skills, to accommodate the fifth defendant’s cultural background; the provision by the NSW Trustee to the Court, and the parties, of a report dated 15 November 2020; and a resumption of the hearing on 18 November 2020, when submissions as to the form of the Court’s orders were entertained.

  4. At the time orders were made on 18 November 2020, the parties expressed themselves to be content for the orders to be made without the publication of formal reasons.

  5. On 20 November 2020 the solicitors on the record for the first to third and fifth defendants requested that formal reasons be published. These reasons are published in response to that request.

  6. The defendants did not challenge: (a) the jurisdiction of the Court to make the orders made on 18 November 2020; (b) the standing of the plaintiff to apply for protective orders affecting the fifth defendant; (c) the bona fides of the plaintiff’s application, beyond expression of a case that the fifth defendant wishes to have nothing to do with him; or (d) the appropriateness of receivership orders to facilitate an independent review of the fifth defendant’s circumstances.

  7. The major point of concern expressed on the defendants’ side of the record about the Court’s orders appears to be what is reported to the Court to be a reluctance on the part of the fifth defendant to submit to any form of medical examination. A determination that such an examination should be conducted having been made, no substantial controversy attached to the Court’s other orders, all lawyers anticipating that they would work with the NSW Trustee in its performance of the limited functions conferred on it by the orders.

  8. Nevertheless, it should be noted, part of the fifth defendant’s opposition to a medical examination, as was reported to the Court, ostensibly on her behalf, may be a resistance to any ongoing engagement with the NSW Trustee.

  9. The plaintiff is a retired minister of religion in a church to which the fifth defendant once belonged, if (in her judgement) she does not now belong. The church in question is of a denomination of respectable reputation.

  10. The defendants have adduced affidavit evidence to the effect that the fifth defendant long ago ceased to be a member of that denomination and that she has since adopted another (equally respectable) denominational allegiance.

  11. The plaintiff asserts an interest in the fifth defendant’s personal welfare as a pastor and as a friend. He maintains that he has no personal interest in her property, and no expectation of any such interest. Through his counsel, he has informed the Court that: (a) should the fifth defendant be found, upon an independent medical examination, to be capable of managing her own affairs; (b) should she, expressing her own independent views, say that she has no desire to continue personal contact with him; and (c) should it be found that she is safe, secure and being properly cared for in her current accommodation, he will not press for further protective orders affecting her.

  12. The first defendant is an accountant to whom the fifth defendant has ostensibly granted an enduring power of attorney. The second defendant is a solicitor ostensibly appointed by the fifth defendant as an enduring guardian, jointly and severally with her nephew, DS. The third defendant is a tenant of the fifth defendant, a restaurateur. The fourth defendant is the solicitor on the record for the first, second, third and fifth defendants. The second defendant is the solicitor on the record for the fourth defendant.

  13. The fifth defendant’s nephew, DS, currently a resident of Norway, is not presently named as a defendant in the proceedings; but he has filed an affidavit in the proceedings (through the office of the fourth defendant), ostensibly on behalf of the first, second, third and fifth defendants. He is actively involved in the proceedings.

  14. The defendants’ evidence in opposition to the plaintiff’s motion comprises affidavits from each of the first defendant, the third defendant, the wife of the third defendant, the fifth defendant’s nephew, DS, and the fifth defendant herself.

  15. The NSW Trustee has familiarity with the estate of the fifth defendant, having managed it for about five years until 19 June 2020 or thereabouts.

  16. Between 9 October 2015 and 19 June 2020 the NSW Trustee managed the estate of the fifth defendant, as the estate of a “protected person” within the meaning of section 38 of the NSW Trustee and Guardian Act 2009 NSW, as the fifth defendant’s financial manager, pursuant to an order made by the Guardianship Division of the NSW Civil and Administrative Tribunal (“NCAT”) under the Guardianship Act 1987 NSW.

  17. NCAT revoked the management order affecting the fifth defendant on 19 June 2020, not because it was satisfied that she was capable of managing her own affairs, but because it deemed it in her interests to do so: in the hope of reducing the costs of her ongoing care and thereby facilitating her continuing residence in her home of many years at North Bondi.

  18. NCAT had no up-to-date medical evidence, and no evidence from a geriatrician, before it when it nevertheless decided that the fifth defendant remained incapable of managing her own affairs. It had one psychologist’s report from 2015 (which it preferred over the other available medical reports), another psychologist’s report from 2018 or 2019, and a short 2019 report from a general practitioner.

  19. The fifth defendant is a wealthy, 83 year old, childless widow of Serbian origin, without family in Australia, characterised by NCAT (in terms not disputed by any party to these proceedings) as a person vulnerable to undue influence and exploitation. By all reports, she was in fact financially exploited by a tenant, Y, who died on 14 August 2019; and a member of staff of her professional care service may also have taken advantage of her to secure a personal benefit. On 29 November 2019, at a time when her estate was under management by the NSW Trustee, she executed an enduring power of attorney in favour of the first defendant and an enduring guardianship appointment in favour of DS, and the second defendant jointly and severally. Each of those instruments expressly recorded the fifth defendant’s determination to remain living in her North Bondi residence and to preserve it from sale.

  20. On an application to NCAT by DS, filed on 9 December 2019, for revocation of the management order affecting her, the fifth defendant’s three enduring appointees (DS, the first defendant and the second defendant) persuaded the Tribunal on 19 June 2020 that it was in her best interests, and a means for her to remain living in her North Bondi home, for them to be allowed to manage her affairs without the intervention of a financial manager.

  21. Paragraph 11 of the Tribunal’s reasons for decision (with editorial adaptation) provides a summary statement of the case advanced by DS in the Tribunal proceedings:

“[11]   On 9 December 2019 the Tribunal received an application from [DS] to revoke the financial management order made by the Tribunal on 9 October 2015. In his application, [DS] states that the threat of financial exploitation from [Y] no longer exists and that [the fifth defendant] is able to manage her own affairs with the informal assistance of professionals. Further [DS] expresses concern about the management of [the fifth defendant’s] estate by the NSW Trustee and Guardian and particularly the risk that her estate will be dissipated and decisions being made about services by [the professional care service retained by the NSW Trustee on behalf of the fifth defendant].”

  1. The applicant before the Tribunal, DS, was represented at the Tribunal’s hearing of 19 June 2020 by the fourth defendant and counsel retained by the fourth defendant.

  2. The Tribunal’s reasons for decision contain no expression of concern about the plaintiff (who was not in attendance before the Tribunal on 19 June 2020) or any person associated with him. At the hearing before the Tribunal the application of DS (represented by the fourth defendant) was supported by each of the first defendant and the second defendant, all of whom gave evidence by telephone, as did the fifth defendant.

  3. Shortly after the management order was revoked, in mid-August 2020, the fifth defendant was relocated from her North Bondi home to an address (which the defendants have insisted remain confidential) in Liverpool, where she is said to be living alone but with private care arrangements in place.

  4. The fifth defendant’s relocation was apparently effected by the first, second and third defendants, without notice to the plaintiff, after an altercation about access to the fifth defendant at her North Bondi home, with a view to withdrawing her from any contact with people said to be associated with the church to which she once belonged, and of which the plaintiff is a retired minister. In addition to relocating the fifth defendant, the first and second defendants at about the same time applied on her behalf for apprehended domestic violence orders said to be necessary to keep church-connected individuals away from her.

  5. No party to these proceedings advances the view that the fifth defendant is capable of managing her own affairs without assistance. In written submissions dated 29 October 2020 prepared by junior counsel for the first, second and third defendants, and (ostensibly) for the fifth defendant, the following submission was made:

“It is accepted that [the fifth defendant] has some degree of cognitive impairment and may not be in a position to make complex financial decisions. However she is assisted by [the first defendant] who is a Chartered Accountant and is able to advise her accordingly.”

  1. On one view, the fifth defendant is not only a person who is incapable of managing her own affairs, and vulnerable to undue influence and exploitation, but she is a person who has come under the influence of persons who have taken her under physical control, isolated her from people with whom she formerly associated and (contrary to what was put to NCAT, but very quickly after NCAT’s decision) moved her away from her home of many years. The defendants adduced no evidence of an intention to return her to her home, with or without renovations to assist her to remain there. It evidently remains vacant.

  2. Although the fifth defendant’s will dated 15 September 2015 (witnessed and ostensibly prepared by the fourth defendant) expressly acknowledged the plaintiff as the person (her priest) to whom she then entrusted her funeral service, the affidavits sworn by and on behalf of the fifth defendant in opposition to the plaintiff’s summons (and motion) attribute to the fifth defendant statements which demonise the plaintiff and the church. Those affidavits do not sit comfortably with the will, even allowing for a parting of ways between the fifth defendant and the plaintiff’s church.

  3. In my opinion, it is in the interests of the fifth defendant (and, indeed, everybody involved in management of her affairs and with her care) for a determination to be made, with the benefit of an independent medical examination and the report of an independent visitor, as to what her capacity for self-management really is and precisely what her personal circumstances, and views, really are.

PROCEDURAL CONTEXT

  1. By a summons filed on 3 September 2020 and amended on 21 September 2020, the plaintiff seeks orders, inter alia, to the effect that:

  1. the fifth defendant be examined by an independent medical expert for a report to the Court as to her capacity to manage her own affairs.

  2. subject to due consideration of such a report:

  1. a manager of the estate of the fifth defendant be appointed pursuant to section 41 of the NSW Trustee and Guardian Act 2009 NSW.

  2. a committee of the person be appointed to act as a guardian for the fifth defendant.

  1. for the purpose of facilitating an independent medical examination of the fifth defendant, and due consideration of any report consequential upon such an examination, the NSW Trustee be appointed as receiver and manager of the estate of the fifth defendant, charged with responsibility for supervising arrangements for her to be medically examined.

  2. orders restraining each of the first, second, third and fourth defendants from playing a role in management of the affairs of the fifth defendant or having any contact with her.

  1. At a directions hearing held on 14 September 2020, an order was made that the fourth and fifth defendants by themselves, their servants and agents, be restrained from disbursing, charging or otherwise dealing with the sum of $358,225.32 paid by the NSW Trustee to the fourth defendant (on trust for the fifth defendant) on or about 25 August 2020 without the prior leave of the Court or the written consent of the NSW Trustee.

  2. Through senior counsel, the defendants have foreshadowed that, should an independent medical examination of the fifth defendant establish that she is not capable of managing her own affairs, an application may be made (on the plaintiff’s amended summons or by a cross summons yet to be filed) for an order for the appointment of a protected estate manager nominated by them.

  3. All parties to these proceedings are of Serbian heritage. I do not exclude the possibility that tensions between the parties have a cultural dimension, but I put it to one side simply noting that “access” to the fifth defendant is a live, and explosive, issue. Each side of the record has sought court orders to limit contact with the other. On 3 September 2020 I made an order, on the application of the plaintiff, that, subject to further order, the defendants by themselves, their servants and agents be restrained from communicating with, approaching or making contact with, the plaintiff, or deponents of affidavits sworn in support of the plaintiff’s summons without the leave of the Court. On their side, as earlier recorded, the defendants have sought in the Local Court Apprehended Domestic Violence Orders against persons associated with the plaintiff.

  4. The fifth defendant is said to have a reasonable command of English, but (senior counsel suggests) she might be more comfortable with the Serbian language if she were to be medically examined as to her capacity. The plaintiff and the NSW Trustee are prepared to accommodate this, if it can be accommodated, as would be desirable if it can be done.

  5. The fifth defendant has an estate with an estimated value in excess of $6 million or thereabouts. As recorded by NCAT’s reasons for decision of 19 June 2020, the real estate she owns comprises her residence at North Bondi (with an estimated value of $3 million); a commercial property at Bondi (with an estimated value of $2 million), leased and operated as a restaurant by the third defendant; and a property at Surry Hills (with an estimated value of $1.5 million), owned as a tenant in common in equal shares with Y.

  6. On 9 October 2015 NCAT made a financial management order committing management of the fifth defendant’s estate to the NSW Trustee. That order had the effect of suspending an enduring power of attorney which the fifth defendant had granted to Y on 16 February 2015.

  7. On 26 July 2016 the Tribunal appointed DK as the fifth defendant’s guardian for 12 months to make decisions about her health care and who should have access to her.

  8. On 24 July 2017 the Tribunal reviewed that guardianship order and appointed the Public Guardian for 12 months to make decisions about the fifth defendant’s health care, legal services and who should have access to her.

  9. That guardianship order was allowed to lapse when reviewed by the Tribunal on 19 July 2018. At that time the fifth defendant was receiving support services in her home daily through a professional service provider retained by the NSW Trustee.

  10. On 29 November 2019 (at a time when her estate was under financial management) the fifth defendant executed an enduring power of attorney appointment in favour of the first defendant. On the same date, she also executed an enduring guardianship appointment, appointing DS, and the second defendant jointly, as her enduring guardians.

  11. The power of attorney includes an express limitation on the authority of the first defendant in the following terms (with editorial adaptation):

“The Real Property Known as … North Bondi… [the fifth defendant’s home] be the last of my Real Properties that is sold”.

  1. The guardianship appointment expressly records the following limitation on the authority of the fifth defendant’s guardians:

“My wishes are that I stay living in my house as long as possible. I would like to die at home.”

  1. The guardianship appointment also records, as a direction to the fifth defendant’s guardians, the following:

“Please note comments [extracted in the previous paragraph of this judgment]. I want to continue to receive personal care from a carer”.

  1. If the power of attorney and the guardianship appointment are to be taken at face value, there is, at least, a doubt about whether either instrument could be said unequivocally to authorise the fifth defendant’s relocation from her home to a distant suburb of Sydney. What the first and second defendants (in particular) appear to have done in effecting her relocation appears to be justified by them on the basis that the decision to relocate was hers, rather than theirs, and it was a decision made voluntarily by her and with full information about factors affecting her welfare.

  2. In revoking the financial management order affecting the fifth defendant on 19 June 2020, the Tribunal accepted assurances from DS and the first and second defendants that it was in the best interests of the fifth defendant that the financial management order be revoked because informal arrangements for her care had been put in place and, despite her considerable wealth, it was desirable to reduce her estate’s exposure to the substantial costs incurred in the provision of professional care for her, so that she could continue living in her North Bondi home.

  3. The reasons for decision published by the Tribunal included the following (with editorial adaptation and emphasis added):

“Should the [financial management] order [affecting the fifth defendant] be revoked because [she] has regained the capability to manage her affairs?

…

[63]   [The fifth defendant’s] evidence to us was consistent with [Dr A’s] assessment [of 2015] that her capacity to make complex decisions regarding her finances is limited. She did not really engage us on the issue about the shortfall [in her budget] apart from stating repeatedly that [the first defendant] will handle this for her. [The fifth defendant’s] pronounced abdication to [the first defendant] of this most significant aspect of her financial affairs went beyond reasonably relying on professional advice.

[64]   Further, we accept that [the fifth defendant] is vulnerable to undue influence and exploitation. …

[65]   Taking these matters into consideration, we were not persuaded that the order should be revoked on the basis that [the fifth defendant] had regained capacity to manage her financial affairs. Our decision however turned on whether we should revoke the order on the basis that this is in her best interests.

Should the order be revoked because it is in the best interests of [the fifth defendant]?

[66]   Whilst [the fifth defendant] has significant assets, she currently also has significant care costs. NSWTG’s evidence is that payments to [the professional care service] total $408,000 in the last twelve months. NSWTG evidence is that the budget for care will be reviewed later this year at the time of budget review. Care costs allowed by NSWTG however have progressively increased over recent years from $236,000 in the year 2017 to 2018 to $408,160 for the current year.

[67]   Decisions made regarding care costs will significant [sic] impact potentially on her ability to remain living in her own home and/or potentially in residential care.

[68]   All those participating in the hearing were acknowledging of [sic] the significant impact of care costs on [the fifth defendant’s] budget and benefit in there being strategies devised to try and address the substantial shortfall currently. NSWTG indicated the shortfall in this year’s budget to be $370,372.

[69]   The evidence from NSWTG is that whilst they would take into account whether an alternative care regime or service provider are more economically viable, they do not see it as their role to decide upon how much care [the fifth defendant] receives. NSWTG state they are guided by the person under management or from proposals from say their family about this.

[70]   Currently, it appears that NSWTG are not proposing to consider an alternative care regime or service provider, notwithstanding [DS’s] attempt over an extended period to communicate his concerns and [the fifth defendant’s] concerns. [The fifth defendant] expresses concerns to us about costs of care being incurred.

[71]   [DS] appeared to us to have a genuine concern both to ensure that [the fifth defendant] receives the care that she needs to live safely in her home, and that she is not disadvantaged by decisions about [the professional care] services to her.

[72]   We accept [DS’s] evidence and that of [the first defendant] and [the second defendant] about the support they can provide to [the fifth defendant] in the event that the order is revoked. An advantage of this proposal is that it is likely to facilitate better communication than is currently occurring with NSWTG as the manager. This is of benefit given the interplay between decisions about the care regime for [the fifth defendant], choice of service provider and the cost of care being incurred. We accept [the second defendant’s] and [the first defendant’s] evidence that the proposal will likely facilitate strategies to address the shortfall occurring. We accept that they will likely address the issue more proactively than is occurring.

[73]   Significantly the proposal put forward to us accords with [the fifth defendant’s] expressed issues as to who she wants to have assisting her in the management of financial affairs. We take this into account.

[74]   Whilst [the second defendant] raised concerns about the conduct of litigation by NSWTG on behalf of [the fifth defendant] and management of her rental properties, there was insufficient information before us to establish a basis for his concerns. We did not take the concerns raised as a basis on which to revoke the order.

[75]   Given our view that [the fifth defendant] is vulnerable to undue influence and exploitation, we took into account whether it was preferable that NSWTG continue in the role as her financial manager, given their independence and whether this would provide greater protection for [the fifth defendant]. On balance, however, we considered that this was outweighed by the benefit of facilitating better communication and proactive strategies to address the costs of care.

[76]   Taking these matters into consideration our decision was that the order should be revoked on the basis that this was in [the fifth defendant’s] best interests.”

  1. Notably, the Tribunal did not revoke the financial management order affecting her estate on the basis that she is capable of managing her own affairs, and its reasons included a concern to ensure that arrangements were in place to enable her to remain living in her own home.

  2. In recognition of the Tribunal’s revocation of the financial management order affecting the fifth defendant, on or about 25 August 2020 the NSW Trustee paid into the trust account of the fourth defendant (a solicitor), on the account of the fifth defendant, the sum of $358,225.32. It is that fund which has been attached by the Court’s appointment of the NSW Trustee as a receiver and manager.

INTERLOCUTORY ORDERS THE SUBJECT OF THESE REASONS FOR JUDGMENT

  1. The defendants’ affidavits in opposition to the plaintiff’s motion emphatically articulate a case to the effect that the fifth defendant is capable of managing her own affairs (with the assistance of her co-defendants and DS); that she is fully able to express her own views (through them); and that (with their active support) she wants to have nothing to do with the plaintiff, members of his church, the NSW Trustee or any independent medical examination.

  2. A problem with this evidence, however, is that, whilever the fifth defendant is kept under close quarters by or with her co-defendants and DS, their affidavits articulating an emphatic case (which does not sit comfortably with the case advanced before NCAT or with the nature of the fifth defendant’s long friendship with the plaintiff as her priest) cannot be taken as definitive or relied upon with confidence.

  3. What the fifth defendant’s co-defendants and DS have done, in an apparent departure from what DS and the first and second defendants told NCAT they would do, and in taking control of the person and property of the fifth defendant to the total exclusion of the plaintiff, calls for an independent review by persons unconnected with any partisan interest.

  4. By reference to the judgment of the Court of Appeal in Angliss v Urquhart [2001] NSWCA 441, the defendants contended that I should refrain from making an order for a medical examination of the fifth defendant against her wishes (as communicated to the Court by them, albeit with an affidavit said to have been affirmed by her).

  5. That case was very different from this one. In adversarial proceedings the Court of Appeal was required to review orders (made by reference to Part 25 rule 5 of the Supreme Court Rules 1970 NSW, the equivalent of rule 23.4 of the Uniform Civil Procedure Rules 2005 NSW) for the medical examination of an elderly man, on the application of persons advancing their own interests, in circumstances in which there was already medical evidence available and the prospect of a court-ordered examination represented a particular risk to the old man’s health.

  6. The current proceedings involve an exercise of protective jurisdiction (of the character described in Secretary, Department of Health and Community Services v JWB and SMB(Marion’s Case) (1992) 175 CLR 128 at 258-259) in which the welfare of a vulnerable person is the dominant consideration: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238; cf, NSW Trustee and Guardian Act 2009 NSW, section 39(a).

  7. The facts of the present case more closely resemble the facts in the seminal judgment of the Full Court in In re WM (a person alleged to be of unsound mind) (1903) 3 SR (NSW) 552. There, the Full Court upheld an order for examination of a vulnerable person over the opposition of the persons in whose care and control the vulnerable person was.

  8. Mindful of the judgment of the Full Court, I did not lightly exercise the Court’s discretion in favour of arrangements designed to facilitate the provision to the Court (and, through the Court, to the parties) of reports by an independent medical examiner and an authorised visitor. The circumstances in which the order for financial management of the fifth defendant’s estate was discharged by NCAT were in themselves unusual (because, despite her continuing incapacity for self-management, a management order was discharged), and the course of events following NCAT’s discharge of the management order suggests that closer attention needs to be given to the possibility that both her person and her property are in need of a regime of protective orders. There may be a need for orders designed to ensure that her affairs are managed under the supervision of the Court or subject to the regime for which the NSW Trustee and Guardian Act 2009 provides.

  9. The orders made on 18 November 2020, for which these reasons provide an explanation, were in the following terms:

1. ORDER, subject to further order, that the NSW Trustee be appointed as receiver and manager of the estate of the fifth defendant (limited to that part of the estate presently held in trust by the fourth defendant, on the account of the fifth defendant) with all the powers and discretions that the NSW Trustee would have if management of the fifth defendant’s estate were committed to it pursuant to section 41(1)(b) of the NSW Trustee and Guardian Act 2009.

2. NOTE that, as presently advised, the Court proceeds on the basis that (without admissions of any kind by any party) the estate of the fifth defendant, so far as not made the subject of a receivership order, is presently managed by or on behalf of the fifth defendant with the benefit of the enduring power of attorney dated 29 November 2019 granted, or purportedly granted, by the fifth defendant in favour of the first defendant.

3. ORDER, subject to further order, that the fifth defendant be medically examined by Associate Professor Tuly Rosenfeld, with a Serbian translator, pursuant to a retainer to be entered by the NSW Trustee (as receiver and manager of the fifth defendant’s protected estate) subject to directions of the Court.

4. ORDER, subject to further order, that the costs of the medical examination of the fifth defendant be paid in the first instance from the protected estate of the fifth defendant under management by the NSW Trustee.

5. ORDER that each defendant co-operate with the NSW Trustee to grant the independent medical expert access to the fifth defendant.

6. ORDER that the independent medical expert provide to the NSW Trustee and the Court (in the first instance, and subject to any further orders of the Court) a written report as to the fifth defendant’s capacity for self-management, such report to redact any reference to the fifth defendant’s current residential address.

7. NOTE that all parties agree, in principle, that ongoing consideration be given to identification of an independent medical expert appropriately qualified and able to speak the Serbian language as an alternative to the independent medical examination contemplated by these orders to be undertaken by Associate Professor Rosenfeld.

8. ORDER that the fourth defendant provide to the NSW Trustee a trust account statement, including full ledgers, accounting for the sum of $358,225.32 paid to his trust account on or about 25 August 2020 on the account of the fifth defendant by the NSW Trustee.

9. ORDER, subject to further order, that the defendants provide to the NSW Trustee such information as to enable the NSW Trustee to contact the fifth defendant.

10. ORDER that the NSW trustee would be justified in appointing a visitor within the meaning of section 123 of the NSW Trustee and Guardian Act 2009 to attend upon the fifth defendant and to prepare a report so as to allow the NSW Trustee better to understand her current needs together with her views about the conduct of her affairs generally, including matters the subject of the NSW Trustee’s Report to Court dated 15 November 2020.

11. RESERVE to all parties and the NSW Trustee (and any other interested person) liberty to apply to the Protective List Judge generally.

12. ORDER that the proceedings be listed before the Protective List Judge on 18 December 2020 at 9.00am for further consideration, or directions, as the nature of the case may require.

13. ORDER that these orders be entered forthwith.

  1. Particular care needs to be taken to ascertain the nature and extent of any (in)capacity the fifth defendant may have for self-management, and self-expression, because she evidently needs a high level of personal care; and a decision may well have to be made, sooner or later, to sell some of her real estate in order to fund the care she needs. There is a potentially complex inter-relationship between her functional capacity, management of her person (including guardianship and access) and management of her estate.

  2. The fifth defendant’s denial of any incapacity for self-management, and her expressed reluctance to submit to an independent medical examination, are consistent with NCAT’s refusal to discharge the financial management order affecting her on the ground of a present capacity for self-management. It is not unusual for a person in need of protective management to express strong opposition to any form of management regime. It is sometimes an indicator of incapacity. Whether it is so in this case remains an open question.

  3. The opposition of the fifth defendant’s co-defendants, and her nephew, to an independent medical examination of the fifth defendant invites doubt about their objectivity. If the fifth defendant is truly able to manage her own affairs, and to express her own independent views, and if the arrangements currently in place for her care are truly satisfactory, a way to demonstrate that is to facilitate her examination by an independent medical expert and to facilitate the work of an authorised visitor. Keeping her in close quarters, under the control of a small group of individuals who resist an independent review of her circumstances, carries a risk to her in management of her affairs that her welfare is not (as it should be) the paramount consideration.

  4. The orders made on 18 November 2020 were designed to facilitate a review of her personal circumstances, allowing an independent assessment to be made of her capacity, her views, and her needs going forward. As illustrated by the limitation of the Court’s receivership order to a part only of her estate, they were designed to do what appears to be necessary, but no more than presently deemed necessary, to protect her interests and her welfare.

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Amendments

01 December 2020 - Para 24 first line date changed from 2002 to 2020.

Decision last updated: 01 December 2020

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