SXD

[2023] NSWCATGD 17

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

SXD [2023] NSWCATGD 17

Hearing dates:

22 September 2023

Date of orders:

22 September 2023

Decision date:

22 September 2023

Jurisdiction:

Guardianship Division

Before:

S Pinto, Senior Member (Legal)
Dr C M West, Senior Member (Professional)
J V Le Breton, General Member (Community)

Decision:

Guardianship

1. A guardianship order is made for SXD.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 22 September 2023.

4. This is a limited guardianship order giving the guardian(s) custody of SXD to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where SXD may reside.

b) Health care

To decide what health care SXD may receive.

c) Services

To make decisions about services to be provided to SXD.

CONDITION:

6. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring SXD to an understanding of the issues and to obtain and consider his views before making significant decisions.

Financial Management

The Financial Management order for SXD made on 21 April 2023 has been reviewed. The order now is as follows:

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

2. The management of the estate of SXD is committed to the NSW Trustee and Guardian.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person with an intellectual disability – subject person wishes to return to work with a disability service employer – need for application to be made to join the NDIS – need for decisions to be made in relation to accommodation, health care, and services – no private person available to be appointed – Public Guardian appointed – order made

FINANCIAL MANAGEMENT – review of reviewable financial management order – subject person not capable of managing their own affairs – subject person a victim of financial fraud and exploitation – significant depletion of estate after financial management order was made appointing the NSW Trustee and Guardian – need for urgent investigations into alleged misappropriation of funds – no private person available to be appointed – NSW Trustee and Guardian reappointed – order made

Legislation Cited:

Guardianship Act 1987 (NSW) (the Act), ss 3(1)-(2), 4, 14(1)-(2), 17(1), 25N, 25P

Mental Health Act 2007 (NSW)

Cases Cited:

None cited.

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

002: Guardianship Application

SXD (the person)
CZU (applicant)
Public Guardian

003: Review of Reviewable Financial Management Order

SXD (the person)
NSW Trustee and Guardian (appointed financial manager)

Representation:

Nil.

File Number(s):

NCAT 2023/00071530

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. The Tribunal made a guardianship order and appointed the Public Guardian for 12 months with functions of accommodation, services and health care. The order will be reviewed at the end of that time.

2. The Tribunal reviewed the reviewable financial management order made on 21 April 2023. The Tribunal renewed the financial management order and appointed the NSW Trustee and Guardian. The financial management order is ongoing.

Background

3. SXD is 48 years old. He lives alone in his own home in South West Sydney. He previously lived with his mother and grandmother. His grandmother is deceased, and his mother died unexpectedly in November 2022. SXD has until recently been employed by a disability service employer, where he has worked for 27 years. He receives a part disability support pension (DSP).

4. SXD reportedly has an intellectual disability. No medical evidence has been provided because the applicants have been unable to obtain any documentation.

5. On 2 March 2023, applications for guardianship and financial management orders were made. The application for the guardianship order was made by CZU, who is the cousin of SXD. The application for a financial management order was made by Dr Z, who is the husband of CZU.

6. In their applications, CZU and Dr Z stated they have concerns that SXD is subject to financial exploitation from Ms Y, who was a friend of SXD’s mother. It is alleged that Ms Y has isolated SXD from his friends and family and is stealing large sums of money from him. They stated that a report has been made to the Ageing and Disability Commission which is conducting preliminary inquiries.

7. Since the hearing on 21 April 2023, the Tribunal has been advised that the disability service employer has suspended SXD’s employment as there is no funding to pay for its support services. SXD has declined to apply for a National Disability Insurance Scheme (NDIS) funding which would enable a resumption of his supported employment.

8. CZU has also advised the Tribunal that SXD’s savings have been depleted by two women with whom he became acquainted. She indicated that this continued to occur after the financial management order was in place. As discussed below, during the hearing, CZU provided a copy of SXD’s bank account indicating that he has a balance in his bank account of approximately $83.00.

The hearing

9. SXD, CZU and Ms X, a family friend, participated in the hearing in person. Ms W, senior client service officer, and Ms V, area manager, of the disability service employer, participated in the hearing by telephone.

10. A list of the parties and hearing participants is at the end of these reasons for decision. [Appendix removed for publication.]

GUARDIANSHIP APPLICATION

What the Tribunal has to decide?

11. The questions which the Tribunal must consider are:

• Is SXD someone for whom the Tribunal could make a guardianship order because he has a disability which prevents him from being able to make important life decisions?

• Should the Tribunal make a guardianship order and if so, what should it include?

• Who should be the guardian?

• How long should the order last?

Is SXD someone for whom the Tribunal could make a guardianship order?

12. The Tribunal may make a guardianship order in respect of a person if, after conducting a hearing, it is satisfied that he or she is a person in need of a guardian: Guardianship Act 1987 (NSW) (the Act), s 14(1).

13. A person is in ‘need of a guardian’ if because of a disability, he or she is totally or partially incapable of managing his or her person: the Act, s 3(1). A person who has a ‘disability’ means a person who is intellectually, physically, psychologically or sensorily disabled; is of advanced age; is mentally ill within the meaning of the Mental Health Act 2007 (NSW); or who is otherwise disabled; and who by virtue of that fact, is restricted in one or more life activities to such an extent that he or she requires supervision or social habilitation: the Act, s 3(2).

14. Dr Z stated in his application that SXD was born with an intellectual disability. He stated that SXD is unable to make decisions for himself and he does not have any immediate family, or anyone to support him since his mother's death.

15. In a further statement, dated 20 March 2023, Dr Z stated that he attempted to obtain evidence regarding SXD’s diagnosis. He contacted SXD’s employer who advised that they do not have any information they can provide. Dr Z stated that the NDIS will not provide him with any information due to privacy reasons, but it is uncertain whether SXD is a participant in the NDIS.

16. Ms X provided a statutory declaration, dated 22 March 2023. She stated that she is a family friend of SXD’s, and she was a friend of his mother and late grandmother. She stated that SXD was born with an intellectual disability and was never able to make decisions on his own.

17. CZU said during the previous hearing that her mother and SXD’s father were brother and sister. SXD’s father is still alive but is an alcoholic and the family does not have contact with him. Due to his alcoholism, there was an estrangement between the different sides of the family. CZU said they have limited information about SXD’s intellectual disability because his grandmother wanted to hide it. She said SXD’s mother also had an intellectual disability.

18. Dr Z told the previous Tribunal that he has been SXD’s general practitioner for about five years. SXD’s mother came to his surgery and asked if SXD could become his patient. He said SXD generally consulted him for minor medical conditions, but he is aware from his interactions with him that SXD is intellectually impaired.

19. Mr U said during the previous hearing that it is clear SXD has a cognitive disability and is impressionable and could be easily coerced. Although no formal assessment has taken place, Mr U said he has had discussions with the National Disability Insurance Agency (NDIA) who advised that SXD would be eligible for an application to be commenced. Mr U said SXD can certainly express his will and preferences, but he and another colleague who met with SXD formed the impression that he is impressionable and easily led.

20. As above, SXD participated in the most recent hearing in person. We observed that he was polite and respectful but reserved and reluctant to respond to our questions. It was also evident he had some difficulty remembering the events that led to him losing money from two women. He indicated that he does not have a workable stove and his bathroom has several leaks. He presented as extremely vulnerable and did not appear to have any plans as to how he would manage by himself or organise for the considerable repairs required in his home.

21. We acknowledge that there have been no formal assessments of SXD’s cognitive abilities. We also acknowledge that reports of his intellectual disability are anecdotal and not based on any cognitive assessments. However, SXD works for an organisation which employs persons with intellectual disabilities, where he has worked for numerous years, and it is the evidence of Dr Z, a medical practitioner, that SXD has an intellectual disability. SXD’s presentation during the hearing was also consistent with the evidence of Dr Z and CZU. SXD also met with representatives of the Ageing and Disability Commission who appeared to form the impression that SXD has difficulties with more complex decision making.

22. We are satisfied that the evidence establishes that as a result of an intellectual disability SXD has at least some level of impaired decision making. He has a disability as a result of which he is incapable of managing his person and is restricted in one or more life activities to such an extent that he requires supervision or social habilitation. He is a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order and what order should be made?

23. In deciding whether to make a guardianship order, the Tribunal must consider s 14(2) of the Act which includes the person’s views; the views of any person who has care of him or her; the importance of preserving family relationships and any cultural and linguistic environments; and the practicability of services being provided without the need for an order. These factors have no hierarchy or weighting and the Tribunal must undertake a balancing exercise in relation to each factor.

24. The Tribunal must also consider s 4 of the Act which sets out the general principles that everyone exercising functions under the Act in respect of persons with disabilities must observe. These principles include that the person’s welfare and interests should be given paramount consideration; freedom of decision and action should be restricted as little as possible; his or her views should be taken into consideration; the importance of preserving cultural and linguistic environments should be recognised; and he or she should be protected from neglect, abuse and exploitation.

25. In the application for a guardianship order, CZU referred to SXD’s lack of assistance from the NDIS and limited access to services.

26. In an email to the Tribunal, dated 5 September 2023, Ms V stated that the disability service employer has suspended SXD’s employment services from 10 August 2023, pending him accessing the NDIS and gaining some funding for ongoing supported employment. Ms V stated that the disability service employer has had difficulties helping SXD to understand the NDIS, and the importance of it for a service agreement and ongoing supported employment. SXD insists on his independence and his own decision making and has said he does not want anything to do with the government. However, he is very concerned about the suspension of his employment and has called the head office switchboard in a distressed state. The disability service provider has tried to call SXD recently, but his telephone has not been answered.

27. During the hearing, SXD said he would like to return to work as soon as possible. He likes his work, and he would like to return to see his friends who he sometimes goes out with, and who sometimes come to his home. He agreed he would like some help to return to work.

28. Ms V said SXD has never been connected with the NDIS. She agreed that it is important for SXD to return to work but it has been difficult to obtain his agreement to join the NDIS and he is unable to return to work until he is a participant in the NDIS. She said the disability employer for whom SXD has been employed for several years previously received funding from the Department of Social Services, but the funding is now provided through the NDIS. Ms V said SXD was given a letter about this about six weeks ago. They had a meeting with him, but he refused to join the NDIS and said he did not want anything to do with it.

29. Ms V was asked if interim arrangements could be made for SXD to return to work pending an application to the NDIS. She said it is unlikely, but she may be able to apply to her executive branch to enable SXD to recommence employment after an application has been made to the NDIS.

30. CZU and Ms X said SXD’s employment has been very important to him and he requires assistance with an application to the NDIS. CZU said she tried to organise for SXD to see a psychologist to obtain a cognitive assessment but he was not agreeable. CZU said SXD has been told by Ms Y not to sign any agreements with the NDIS and to not become a participant.

31. Having considered all the evidence, we are satisfied we should make a guardianship order. We accept that it is important that SXD returns to his supported employment where he has worked for 27 years. We consider it unfortunate that interim arrangements cannot be made for SXD to continue his employment pending an application to the NDIS, particularly given his lengthy employment, the recent loss of his mother, and the structure and support provided by his employer.

32. Although SXD has been resistant to joining the NDIS, we accept that this is due to the negative influence of some persons who have ulterior motives for ensuring he does not have appropriate support. We accept it is important for SXD to be assisted with an application to the NDIS. Although he has opposed an assessment by a psychiatrist, it may be that an occupational therapist assessment would be less daunting. We have, therefore, included a services function in this guardianship order to enable consideration of an application to the NDIS and to consider the appropriateness of any other services to assist his safety and wellbeing.

33. We have also included a health care function to enable any cognitive assessments to be organised, as these will undoubtedly be required for an application to be made to the NDIS.

34. We have also included an accommodation function in this order to assess the suitability and safety of SXD’s current accommodation, in view of evidence indicating that he does not have a workable stove and his home has leaks.

35. We are satisfied that our decision to make a guardianship order with the above functions is consistent with our obligations under s 4 and s 14(2) of the Act to ensure SXD’s welfare and interests are protected.

Who should be the guardian?

36. The Tribunal must be satisfied that any person appointed as a private guardian meets the requirements of s 17(1) of the Act. These are that he or she must have a personality generally compatible with the personality of the person under guardianship; have no undue conflict of interest (particularly financial) with those of the person; and be able and willing to exercise the functions of the order.

37. During the hearing, CZU referred to SXD’s issues with trusting her due to the attempts by Ms Y and others to isolate him. She said although her relationship with SXD has improved it is too tenuous and she considers it best that an independent Public Guardian is appointed.

38. We accept CZU’s evidence. She has presented over the course of two hearings as very concerned for SXD’s welfare and exhibited concern and compassion for him following the recent death of his mother. We accept that an independent guardian is preferable, and we have, therefore, appointed the Public Guardian for SXD.

How long should the order last?

39. We decided that the order should be for 12 months as this will enable decisions in relation to the areas identified above. The order will be reviewed at the end of that time to determine if it should be confirmed, lapsed or varied.

REVIEW OF FINANCIAL MANAGEMENT APPLICATION

40. When the financial management order was made, the Tribunal ordered that it should be reviewed within four months: the Act, s 25N.

41. On reviewing the financial management order the Tribunal must confirm, confirm and vary or revoke the financial management order: the Act, s 25P. The order can only be revoked if it is in SXD’s best interests.

Evidence provided prior to and during the first hearing

42. Dr Z stated in the application for a financial management order that SXD and his family have been taken advantage of financially in the past and there are concerns regarding risks to the remaining property he owns. Dr Z stated that he has concerns that SXD will be coerced into signing over the deed and title to his property.

43. Dr Z also stated that SXD is completely under the control of Ms Y. She has isolated him from his family and friends and is banning him from answering or returning phone calls. She has reported his daughter, Ms S, to the police, stating that she is stalking and threatening her. To avoid physical confrontation and embarrassment they stopped visiting SXD. Ms Y has achieved what she wanted, which was to isolate and control him. Dr Z stated that Ms Y is currently brainwashing SXD and has told him they want to give his house to the government and put him in a nursing home. He is scared and confused and does not know what to believe.

44. Dr Z stated that in November 2022 when SXD's mother died, he had a bank account with a total of $60,000. He has received information that Ms Y has taken SXD to the bank to withdraw money. They are very concerned about his situation and wish to avoid him being financially disadvantaged. SXD is easily manipulated, and he and his family are very worried he is in danger of fraud and manipulation.

45. Ms X provided a statutory declaration in which she stated that after SXD’s mother died, she witnessed SXD being manipulated by a woman that was once friends with his mother. Her name is Ms Y, and she is constantly opposing anyone else being involved in SXD’s life. She is doing everything she can to convince SXD not to agree to a financial manager. She has taken him to a bank and solicitor's office without any other witnesses and they are concerned she is taking advantage of his situation. Ms X stated that it is vital for a financial manager to be appointed.

42. The Tribunal also received an email from Ms S, the daughter of CZU and Dr Z, dated 13 April 2023. Ms S stated that she has seen and spoken to SXD, and he has lost about 30 kilos in the last two months. His appearance is troublesome as he has visible bruising on his arms. He also reported that he has been withdrawing and transferring money via online banking to Ms Y of between $25,000 and $30,000.

43. During the first hearing, SXD said he knows how to pay his bills and do shopping. He goes to the bank. He said he believes he receives a part pension but does not know how much. He said he has a girlfriend who works at the hospital, and he sees her a few times a week. He said Ms Y does not ask him for money but if she pays for something for him, he has to pay her back.

44. CZU said during the first hearing that the application has been made because she and her husband realised SXD was losing money and at risk of losing his home and they decided that an urgent financial management order was required.

45. Dr Z said SXD is unable to manage his financial affairs, beyond simple things, and he is unable to understand the value of goods. For example, he does not understand the difference between something which is valued at $10 or $100,000. He also does not understand the difference between different denominations of money. Dr Z also believes that SXD is easily coerced and open to manipulation.

46. CZU and Dr Z said they are very concerned about SXD’s financial affairs because he has already lost one house. They said SXD’s grandmother had a house next door to their existing house. A person from their community convinced SXD’s grandmother to sell the home and appoint him as her power of attorney. He then withdrew $560,000 from the proceeds of the sale of the house and fled to Serbia. They do not want SXD to be in the same situation and want his home protected. They also said Ms Y took SXD to a solicitor and they are uncertain of the reason.

47. CZU said she is very concerned that SXD is being manipulated by Ms Y. After SXD’s mother died there were discussions with Ms Y, and it was agreed that guardianship and financial management would be arranged and managed by the Serbian church, which will inherit the home. CZU said she realised after SXD’s mother died that SXD was not answering their calls. CZU arranged to meet with Fr T of the Serbian church to discuss what arrangements had been made regarding SXD. Fr T told them that he knew nothing about it and the church was not involved. CZU said they then realised it was a story that Ms Y had made up so she could influence SXD.

48. CZU said after SXD’s mother’s funeral she and Ms Y and Ms X went to the bank together to draw a cheque for the funeral expenses. After that time, Ms Y has been going with SXD to the bank without anyone as a witness and from February about $25,000 has been withdrawn. They spoke to SXD’s bank about it and although they do not have any proof, the bank agreed to put a warning on SXD’s account stating that he may be subject to fraud.

49. Ms X said she has been a close family friend of SXD’s family for many years, and she was present when SXD’s mother died. She said Ms Y helped with the funeral arrangements, and they went to the bank together and after that time she tried on several times to contact Ms Y but could not. She said she does not know if Ms Y is financially exploiting SXD.

50. Ms Y was asked why she had gone to a solicitor with SXD. She said she went with SXD to a solicitor to assist him to transfer the house into his name. She said she is the only person who can help him. She said SXD has a girlfriend. Ms Y said she does not even know how to do online transactions. She said she does not think SXD needs anyone to help him, and she is a friend and helps him by taking him to the shops.

51. Mr U of the Ageing and Disability Commission said he met with SXD and had discussions with him. He said the salient factors are that SXD cannot read and write or understand complex financial matters. SXD was asked about his bank accounts, but he did not know much he had in them. Mr U said he formed the impression that SXD can manage his day-to-day affairs but regarding more complex matters he has little understanding and would need assistance.

52. Ms V and Ms R, both from the disability service employer, said much of what they know about SXD’s current circumstances are anecdotal, but they agree he would have difficulty managing anything other than simple financial matters.

53. Mr Q, SXD’s family’s lawyer, said SXD came to see him when he received the first notice of the hearing. He said he asked SXD questions about his day-to-day financial management. Mr Q indicated that he agrees with Mr U’s comments that it is largely complex financial matters that SXD does not understand. However, no actual assessment has been made regarding the extent of his impairment. He said SXD leads a simple life and has been working for the same employer for 28 years. He drives himself to work and goes to the teller and they give him the money, and he goes to the Post Office to pay his bills.

54. Mr Q said he had assisted SXD and his mother to transfer the home from tenants in common to joint tenants so upon the death of his mother the property would automatically transfer to SXD. He said when a person dies a document called a notice of death must be provided for the property to be transferred. It is his understanding that SXD and Ms Y went to a solicitor to have the notice of death prepared. He said a lot of accusations have been thrown at Ms Y but there is no evidence and “an obvious way of working out what is going on is to get bank statements and see what is happening.”

55. Mr U said his colleague met with SXD two days ago. He is aware there are reports of $25,000 being withdrawn from his account but there is no documented proof. Mr U said his colleague asked SXD if anyone is asking him for money and he said nobody has asked him for money, including Ms Y. Mr U said consideration could be given by the Tribunal to making an order to protect SXD’s home but enable him to retain control of other aspects of his financial affairs.

Evidence provided following the financial management order on 21 April 2023

NSW Trustee and Guardian’s report

60. A report was provided from Ms W, senior client service officer, NSW Trustee and Guardian, and Ms P, Principal Client Service Officer for the hearing on 22 September 2023.

61. The report states that SXD has assets which include his home in South West Sydney; a motor vehicle; $1858.36 in his NSW Trustee and Guardian Trust account; and $478.68 in his bank account. He receives a DSP of $997.83 per fortnight and his disability employment wage of $416.82 a fortnight. He has regular payments of $150 a week and $40 a week for petrol. His telephone, water, and insurance are paid by the NSW Trustee and Guardian.

62. The report states that the NSW Trustee and Guardian has redirected SXD’s DSP, employment wage for the disability service provider, and bank account to the NSW Trustee and Guardian. All redirection of expenses has been actioned and payments made for outstanding bills.

63. An investigation has been commenced for alleged misappropriation of the funds in SXD’s bank account for misappropriation of funds by Ms O and Ms N is in progress. The NSW Trustee and Guardian has received the bank statements and made a request for branch withdrawal vouchers to determine who withdrew the amounts. This is still under investigation by the NSW Trustee and Guardian. Attempts to contact Ms O have been unsuccessful and there are no contact details for Ms N.

Bank records

64. At the commencement of the most recent hearing, the Tribunal was provided with SXD’s bank statement for the period from October 2022 to 22 September 2023. CZU said she and SXD had attended the bank on the way to the hearing to obtain the statement.

65. The bank statement indicates that on 5 October 2022 there was a balance of $59,167. This amount increased and in March 2023 there was a balance of approximately $67,000. In January 2023, following SXD’s mother’s death in November 2022, amounts of $1,000 are increasingly withdrawn and there are numerous transfers to Ms O and Ms N.

66. At the time of the appointment of the NSW Trustee and Guardian on 21 April 2023, SXD’s bank account had declined to $17,022 with $1,900 withdrawn by Ms N on the day of the previous hearing.

67. Following the appointment of the NSW Trustee and Guardian, the account balance continued to decline due to ongoing transfers to Ms N and Ms O as well as numerous cash withdrawals. It is unclear when SXD’s bank accounts were redirected to the NSW Trustee and Guardian but the first credit transfer from the NSW Trustee and Guardian is 20 June 2023.

68. The closing balance on SXD’s account on 22 September 2023 is $58.11.

Hearing discussion

69. During the hearing, SXD was asked about the significant decline in his funds in his bank account. He said he can go to the bank by himself and withdraw money from his account from the teller machine outside the bank. He cannot remember if he gave his ATM card to anyone, but he may have given it to the two women. He said the women are his friends, but they were also friends of his mother. SXD said he does not go to any of the places, such as hotels, where money was withdrawn, and he did not accompany the women to those places. He said they always came to his home.

70. Ms W confirmed that a significant amount of money was withdrawn from SXD’s bank account after the financial management order was made. Ms W said the NSW Trustee and Guardian sent a request to the bank for SXD’s bank accounts on 8 May 2023. A response was received on 20 May 2023. Ms W said the NSW Trustee and Guardian did not put a hold on SXD’s account because he would have been unable to access any funds. She said, when asked if any action has been taken to refer the matter to the NSW Police fraud squad, that she will refer it to the NSW Trustee and Guardian legal team. Ms W was encouraged to do so as a matter of urgency to ensure inquiries can be made. Ms W said a caveat has been placed on SXD’s home. She confirmed that SXD is receiving a DSP, and he is still receiving some money from his employer.

71. CZU said she does not know the two women, but she is aware that Ms Y isolated SXD from her and others and began a process to place him in a vulnerable position. She said the two women have not bothered to hide their transfers. CZU said there was a “competition” between the women and Ms Y to isolate SXD and he was told not to trust her or her family and not to answer telephone calls or sign any documents. CZU said she believed that because the NSW Trustee and Guardian and the NSW Ageing and Disability Commission were involved that SXD’s finances would be protected. We advised that the information received from the Ageing and Disability Commission indicated that they ceased their inquiries after the financial management order was made, as they would have believed that the NSW Trustee and Guardian would take action to protect SXD’s estate.

72. CZU said there are some urgent repairs required to SXD’s home as there are some water leaks that are causing damage. She believes the financial management order should continue because it is important that there is a caveat on the house. She is aware that Ms Y and the two women have told SXD he should sell his home and they will move in with him if he purchases another home. She said if the women realise the home cannot be sold it is likely they will cease their involvement with SXD.

73. CZU said she is not seeking appointment as a financial manager for SXD. She indicated that it has taken some time to regain his trust because Ms Y and the two women have told SXD not to trust her or her family. CZU indicated that she believes an independent financial manager should be appointed.

74. Ms X agreed with CZU and said she is not seeking appointment. She said it is preferable that an independent financial manager is appointed.

Our consideration

75. The Tribunal has previously found that SXD is able to manage some aspects of his day-to-day finances. SXD is illiterate and unable to recognise different monetary denominations and it is the view of Dr Z and others that he is impressionable, easily led and could be subject to coercion. The most recent evidence indicates that SXD’s bank account has, in a period of some 10 months, been depleted by more than $60,000. The evidence indicates that this money was not used by SXD for his benefit, and it is likely he has been the victim of financial fraud and exploitation. We are satisfied, therefore, that SXD is not capable of managing his financial affairs.

76. Having considered all the evidence, we are also satisfied we should make a financial management order. It is unfortunate and troubling that SXD’s finances continued to be depleted after the financial management order was made and the NSW Trustee and Guardian was appointed. Ms W’s evidence also indicated that despite the information in her financial management report regarding inquiries having been commenced by the NSW Trustee and Guardian that referrals have not been made to the NSW Police and no investigations have been commenced. We consider it important that these inquiries are commenced as a matter of urgency and SXD’s remaining assets, particularly his home, remain protected. We have, therefore, decided there is a need for the continuation of the financial management order made on 21 April 2023 and it is in SXD’s best interests that the order is continued.

77. We have decided that due to the need to ensure the continued protection of SXD’s home, which is now his only major asset, that the financial management order should be ongoing.

78. As above, we have found CZU and her family to be motivated only by SXD’s best interests. Whilst we would have considered CZU to be appropriate for appointment as SXD’s financial manager, we accept that she currently considers this would place strain on their relationship. Given that the financial manager will have to liaise with the bank and the NSW Police, it may preferable that persons with experience in these matters undertake this role. We have, therefore, reappointed the NSW Trustee and Guardian and committed SXD’s estate to the management of the NSW Trustee and Guardian.

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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: 25 October 2023