TKD

[2020] NSWCATGD 1

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	TKD [2020] NSWCATGD 1
Hearing dates:	22 January 2020
Date of orders:	22 January 2020
Decision date:	22 January 2020
Jurisdiction:	Guardianship Division
Before:	J Claridge, Senior Member (Legal) Dr L Tong AM, Senior Member (Professional) S Bullock, General Member (Community)
Decision:	1. The estate of TKD is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).  2. The management of the estate of TKD is committed to the NSW Trustee and Guardian.
Catchwords:	FINANCIAL MANAGEMENT – application for financial management order – whether there is a need for another person to manage the subject person’s affairs on their behalf – where subject person has an acquired brain injury – where subject person is the beneficiary of a trust administered by the NSW Trustee and Guardian as a result of a Supreme Court order – where subject person has multiple sources of income – subject person unable to manage his own affairs – beneficial for a financial manager to be appointed – financial management order made – NSW Trustee and Guardian appointed.
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 77(4) Guardianship Act 1987 (NSW), ss 4, 25M
Cases Cited:	CJ v AKJ [2015] NSWSC 498 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 Re Tracey [2016] QCA 194
Texts Cited:	Nil
Category:	Principal judgment
Parties:	005: Financial Management Application   TKD (the person) TZM (applicant) WBX (carer) NSW Trustee and Guardian (proposed financial manager)
Representation:	Nil
File Number(s):	NCAT 2005/00374404
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

Background

1. TKD, 51 years old, is currently living in southwest Sydney, in accommodation provided by Housing NSW.

2. It is reported that TKD has a mild intellectual disability, a brain injury from a motor vehicle accident and mental illness.

3. It is reported that TKD is supported by his long-term friend WBX, who is also his carer.

4. On 5 December 2019 the Tribunal received an application for financial management for TKD from TZM, social worker.

Does the Tribunal have jurisdiction to hear this matter?

5. By consent judgement made in the District Court of NSW on 13 October 2017, $100,000, less specified deductions, was paid into court for the benefit of TKD, following a personal injures claim made on his behalf.

6. By order of the District Court under s 77(4) of the Civil Procedure Act 2005 (NSW) (“Civil Procedure Act”), the amount of $98,899.68 was paid into an account of the NSW Trustee and Guardian to be applied by them as trustee on behalf of TKD.

7. The terms of the trust are for the trustee to hold the funds and “apply any trust income or capital for the maintenance, education, benefit and advancement of TKD in such manner as the trustee shall in its absolute discretion think fit”.

8. The terms of the order do not preclude us from exercising jurisdiction to consider the application for financial management for TKD.

Written evidence

9. Accompanying the applications are a social work report dated 19 October 2019 by TZM, report dated 3 October 2019 by Dr Z, rehabilitation specialist, report of neuropsychological assessment dated 6 April 2016 by Ms Y, current treatment plan dated 30 October 2019 by Ms X and a submission of the NSW Trustee and Guardian dated 20 January 2020, including statement of account for the period 9 April 2018 to 15 January 2020, orders of the District Court made 13 October 2017 and Care Needs Report dated 2 May 2017 by Ms X.

10. We also had the benefit of the reasons for decision for orders made on 23 May 2016.

FINANCIAL MANAGEMENT

11. Before we can make a financial management order for TKD, we must be satisfied, to the relevant civil law standard, that:

1. TKD is not capable of managing his financial affairs;

2. there is a need for a person to manage those affairs on behalf of TKD;

3. it is in TKD’s best interests that the order be made.

Is TKD incapable of managing his affairs?

12. The test for determining a person’s capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, at [307]–[308]):

Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests?

…

[A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.

13. In considering whether the person is “able” in this sense, consideration may be given to:

• past and present experience as a predictor of the future course of events;

• support systems available to the person; and

• the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498, at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, at [309].

14. The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81, at 86).

15. In October 2013, TKD sustained a traumatic brain injury following a motor vehicle accident, in which he was a pedestrian. TKD also has a mild intellectual disability.

16. In her report, Dr Z, rehabilitation specialist, states that “having a financial manager is in his best interest due to his ongoing and long-term cognitive impairment”.

17. In the April 2016 report of neuropsychological assessment, Ms Y found that TKD was not able to manage his finances. She stated that he had limited functional capacity to undertake basic transactions but due to impaired mental arithmetic capacity he would be unlikely to be aware if he had been given correct change. She found he lacked the knowledge to pay bills and had a limited awareness of the general cost of bills, holidays and everyday activities. TKD demonstrated difficulty holding information in mind, impaired ability to recall information presented to him and difficulty reasoning and making judgements.

18. In her report, TZM states that TKD requires assistance to budget and prioritise spending. TKD has chosen not to deal with the NSW Trustee and Guardian.

19. TKD has been receiving assistance from a friend and carer WBX. Following concerns raised by NSW Trustee and Guardian staff that WBX may be exploiting TKD, she is no longer providing this assistance. WBX confirmed at the hearing that she does not want the responsibility of assisting TKD with his finances as she did not like being accused of misappropriating his money.

20. In the Care Needs Report, Ms X states that TKD requires assistance for planning and decision making regarding purchases and to plan his weekly expenses within an imposed budget. This assistance has historically been provided by WBX.

21. TKD receives the disability support pension. TKD receives additional income from a trust set up to apply compensation monies for his benefit following a motor vehicle accident. The trust is managed by the NSW Trustee and Guardian. At 15 January 2020, approximately $53,000 is held in the trust. TKD does not own the unit in which he lives, which is rented through Housing NSW. TKD has a bank account with a commercial bank; he did not know the balance in the account. TKD has expenses for everyday living and no significant debts. He is purchasing through ‘a rent to buy scheme’, a refrigerator and lounge setting which he pays off at $40 per week.

22. Because TKD has a traumatic brain injury and a mild intellectual disability and has relied on others for many years to assist him with his finances, we accept that TKD is not able to manage his finances in a reasonably competent manner without the intervention of a financial manager. We are satisfied that TKD is not capable of managing his affairs.

Is there a need for a person to manage TKD’s financial affairs and is it in TKD’s best interests that a financial management order be made?

23. In the Current Care Plan, case manager Ms X states that following the NSW Trustee and Guardian imposing restrictions on contact between it and TKD’s friend and carer WBX, an alternative arrangement has been put in place. This involves a social worker assisting TKD by obtaining pre-approval for planned purchases using quotes and then submitting receipts for reimbursement of funds spent. This process is time consuming and not sustainable and has been implemented because of concerns that TKD was being exploited and remains vulnerable to financial exploitation.

24. We note that the trust property remains outside any appointment of a financial manager. The NSW Trustee and Guardian is charged with the administration of the trust in accordance with its terms and the scope of the trust.

25. Mr Peter Moir, for the NSW Trustee and Guardian, stated that the NSW Trustee and Guardian manages the trust fund, makes investments of trust monies and applies the funds in accordance with its polices. Mr Moir stated that if a financial management order were made, the NSW Trustee and Guardian would consider a request from the financial manager to pay out the entirety of the trust fund to the financial manager. The NSW Trustee and Guardian would consider certain criteria before doing so. Any payment would be made because a financial manager has a larger scope of authority with respect to the person. Mr Moir stated that the NSW Trustee and Guardian has done this for other clients, who do not have capacity to manage their own money.

26. We note earlier advice, dated 27 March 2018, of the NSW Trustee and Guardian to TKD’s litigation lawyers that “If a Financial Management Order was made appointing the NSW Trustee as manager then the terms of any order in the personal injury matter would need to be amended to reflect that the funds would be paid to the NSW Trustee in its capacity as financial manager – not as trustee.”

27. We also note the decision of the Supreme Court of Queensland in the matter of Re Tracey [2016] QCA 194.

28. TZM stated that currently it would be confusing for TKD to have to deal with the NSW Trustee and Guardian in different capacities. She stated that a single source of funds would be preferable. She stated that this can also be difficult to explain to service providers. TZM stated that she would continue to provide support to TKD with a view to his funds, including those held separately in trust, being brought under management.

29. We note that the appointment of a financial manager, with the expertise of the NSW Trustee and Guardian, is better placed to facilitate the bringing of the trust fund under financial management if this course of action was considered in TKD’s interests.

30. Currently, TKD manages his own pension; although direct debit arrangements for his rent and for the NSW Trustee and Guardian to pay electricity bills on receipt of bills are in place. Despite this, Ms X states in her report that TKD continues to demonstrate difficulties living within an imposed budget each week.

31. Only TKD has access to his bank account.

32. TZM expressed her ongoing concern that TKD remains at risk of exploitation; he has been exploited in the past.

33. WBX stated that TKD needs protection. She stated that she is older than TKD by more than 10 years and will not be able to assist him indefinitely.

34. We are satisfied that there is a need to appoint someone to manage TKD’s affairs.

Who should be appointed as financial manager?

35. In appointing a financial manager, we must give paramount consideration to the interests of the person concerned and act in accordance with the other principles set out in s 4 of the Guardianship Act 1987 (NSW).

36. Section 25M of the Guardianship Act provides that, if we make a financial management order, we 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.

37. The applicant proposes that the NSW Trustee and Guardian be appointed as financial manager for TKD’s estate. Everyone at the hearing supported the appointment of the NSW Trustee and Guardian, including WBX and TKD.

38. As no private person was identified as being willing and able to be considered for appointment, we decided to commit the management of the estate of TKD to the NSW Trustee and Guardian.

39. We note that the court ordered trust falls outside of the terms of the financial management order. It will be up to the NSW Trustee and Guardian in its capacity as financial manager to determine if it will take any action to bring the trust fund under its purview.

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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: 11 February 2020