SKC

[2014] NSWCATGD 39

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

SKC [2014] NSWCATGD 39

Hearing dates:

29 October 2014

Decision date:

29 October 2014

Jurisdiction:

Guardianship Division

Before:

Connor E, Senior Member (Legal)
Beale I, Senior Member (Professional)
Williams M, General Member (Community)

Decision:

Attorney replaced.

Financial management order made; private manager appointed, order reviewable within 12 months.

Catchwords:

ENDURING POWER OF ATTORNEY - review of operation and effect - obligation of attorney to act in best interests of principal - principal's inheritance dissipated - attorney sought to resign - attorney replaced.

FINANCIAL MANAGEMENT - brain injury - need for an order - investigation into attorney's conduct - recovery of estate -NSW Trustee and Guardian to assist financial manager with recovery - order suspends operation of power of attorney.

Legislation Cited:

Powers of Attorney Act 2003 (NSW)

Category:

Principal judgment

Parties:

Mr SKC (subject person)
Ms QLO (applicant)
Ms MPI (attorney)
The NSW Trustee and Guardian

File Number(s):

57174

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

1. The Tribunal reviewed the operation and effect of the enduring power of attorney made by Mr SKC on 3 April 2014 and ordered that Mr HMX be appointed to replace Ms MPI under that enduring power of attorney.

1. The Tribunal appointed Mr HMX as private financial manager subject to the directions and authorities of the NSW Trustee and Guardian and ordered that the order be reviewed within 12 months.

Background

1. Mr SKC is a 63-year old man who lives in supported accommodation apartments managed by a not-for-profit aged care service provider. It is reported that Mr SKC sustained a head injury in a motor vehicle accident.

1. On 3 April 2014 Mr SKC appointed his niece, Ms MPI, as his attorney pursuant to an enduring power of attorney. On the same date Mr SKC also appointed Ms MPI as his enduring guardian.

1. On 14 August 2014 the Tribunal received an application from Ms QLO, Care Manager, requesting the appointment of a financial manager for Mr SKC and a review of the power of attorney. Ms QLO states that Mr SKC has expressed concerns to her about the current management of his financial affairs by Ms MPI. In her applications Ms QLO proposes the appointment of the NSW Trustee and Guardian as financial manager for Mr SKC and asserts that Ms MPI is happy to relinquish her role as attorney.

THE HEARING

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

1. Before it makes a decision, the Tribunal must try to bring the parties to a settlement if this is possible and appropriate. There was no conflict in this matter.

APPLICATION TO REVIEW AN ENDURING POWER OF ATTORNEY

1. Although her application is stated to be requesting a review of the making of the enduring power of attorney by Mr SKC, at the hearing it was apparent that the issues related to the operation and effect of the power of attorney and the Tribunal treated the application as such.

1. To make an order relating to the operation and effect of the enduring power of attorney made by Mr SKC, the Tribunal must be satisfied that:

(1)   It would be in the best interests of Mr SKC to make the order; and/or

(2)   It would better reflect the wishes of Mr SKC to make the order.

1. The Tribunal spoke to Ms MPI, the attorney appointed by Mr SKC who is his niece, by telephone during the hearing. She stated that she did not wish to continue in the role. On questioning by the Tribunal Ms MPI gave evidence that she has been operating under the power of attorney since Mr SKC was admitted to the nursing home and that 'I haven't really done anything.' When pressed by the Tribunal, Ms MPI stated that she had opened up a new account with a local bank into which the funds Mr SKC received from an inheritance of between $53,000 and $56,000 following the death of his mother were deposited.

1. Ms QLO, the applicant, showed the Tribunal a copy of a bank statement relating to this account which evidenced a large number of withdrawals over a short period of time. The funds were almost totally depleted prior to Ms QLO being made aware of the transactions by Mr SKC and a stop being placed on the account at the end of July 2014. In addition to making the applications to the Tribunal, Ms QLO has referred the matter to the police who are currently investigating.

1. Ms MPI asserted that the funds were used to purchase a television, a fridge and clothing for Mr SKC and on visits to the club where he spent $1000 per visit playing the poker machines.

1. Mr SKC stated that each time $1000 was withdrawn, Ms MPI would give him $500 and keep $500 for herself. He stated that he would like his friend, Mr HMX, to assist him with the management of his affairs in the future.

1. Mr HMX attended the hearing. He stated that he and Mr SKC have been neighbours and close friends for many years and that he now sees him once a week. He was shocked to learn from Mr SKC that he had no money left from his inheritance. He gave evidence that Mr SKC has spent money unwisely in the past, but that he is confident that if they agree a budget, Mr SKC will comply. He and Mr SKC both bank with the same local bank and are known to the local bank manager who has been helpful.

1. Mr HMX stated that he would like to take on the role of assisting Mr SKC to manage his financial affairs. Mr HMX told the Tribunal that he is a retired secondary school teacher who has taught subjects including social science, business studies and economics.

1. The Tribunal determined that it would be in Mr SKC's best interests for the Tribunal to make an order replacing Ms MPI with Mr HMX as his attorney. Ms MPI indicated that she wishes to relinquish her role as attorney, and had she not done so the Tribunal would have removed her as attorney. There is clear evidence before the Tribunal that Mr SKC's funds have been dissipated under the control of Ms MPI and that it would be in his best interest for an alternate attorney to be appointed. The appointment of Mr HMX also better reflects Mr SKC's wishes at the current time.

FINANCIAL MANAGEMENT

1. Although the Tribunal has reviewed the operation and effect of the enduring power of attorney made by Mr SKC on 3 April 2014 and ordered that Mr HMX be appointed to replace Ms MPI under that enduring power of attorney, in the circumstances, the Tribunal also decided to make a reviewable financial management order appointing Mr HMX as his private financial manager for a period of 12 months.

1. The Tribunal considers that given the serious issues which require investigation, it is in Mr SKC's best interests for Mr HMX to be appointed as his financial manager for the next 12 months. There is a need for the manager of Mr SKC's affairs to work with the police to try to seek to recover his funds and Mr HMX's appointment as private financial manager will enable him to access the support and guidance of the NSW Trustee and Guardian.

1. There is also a need for greater clarity about Mr SKC's financial affairs. The bank statement refers to payments from 'SA Housing Trust Pension' and there is a notation which states 'Special Narration and not related to DSS Pensions.' Mr SKC was unable to explain the source of these payments.

1. Prior to making a financial management order the Tribunal must consider whether or not Mr SKC is capable of managing his affairs.

1. The Tribunal noted the Health Professional Report Form completed by Dr Z on 27 August 2014. Dr Z notes that Mr SKC sustained a brain injury of moderate severity in a motor vehicle accident and as the result of a cerebrovascular accident. He is unable to plan and displays 'poor decision making.' His disability affects his capacity to make informed decisions about his financial affairs.

1. The Tribunal also noted the report provided by Dr Y, Clinical Psychologist, dated 7 August 2014. Dr Y provided counselling to Mr SKC in relation to his change of accommodation and grief and loss surrounding the recent death of his mother. Dr Y notes that:

'For no obvious reason, [Mr SKC] would show me large numbers of notes in his wallet. His behaviours and comments about money have been a concern to me as I felt he was leaving himself very vulnerable.

...

I have not conducted any tests in relation to [Mr SKC's] capacity to manage funds (numeracy, executive functioning etc) as my role has been to provide psychotherapeutic services. However, in my view, [Mr SKC] is capable of making a decision to request the Tribunal to administer his financial affairs.'

1. The Tribunal is satisfied that Mr SKC is not capable of managing his own financial affairs. The Tribunal was also satisfied that Mr HMX is a suitable person to be appointed as financial manager for Mr SKC, subject to the authorities and directions of the NSW Trustee and Guardian.

1. The making of the financial management order suspends the operation of the power of attorney for the duration of the order.

Reviewable financial management order

1. The Tribunal formed the view that once the issues relating to the dissipation of Mr SKC's funds are investigated and resolved, and the source of his income is clarified, there is unlikely to be any ongoing need for a financial management order. The Tribunal anticipates that the financial management order may then be able to be revoked and Mr SKC's affairs can be managed by his attorney, Mr HMX, pursuant to the enduring power of attorney executed by Mr SKC on 3 April 2014.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 12 December 2014