TKG

[2016] NSWCATGD 28

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	TKG [2016] NSWCATGD 28
Hearing dates:	20 September 2016
Date of orders:	20 September 2016
Decision date:	20 September 2016
Jurisdiction:	Guardianship Division
Before:	C Fougere, Principal Member
Decision:	1. The Tribunal consented to the withdrawal of the application made by Mr CXN for a review of the financial management order made in relation to the estate of Mrs TKG (clause 10, schedule 6, Civil and Administrative Tribunal Act 2013). 2. The application for a review of the financial management order is dismissed (section 55(1)(a), Civil and Administrative Tribunal Act 2013).
Catchwords:	FINANCIAL MANAGEMENT – application to revoke financial management order – requirements of the NSW Trustee and surety bonds – request to withdraw application in best interests of the protected person
Legislation Cited:	Civil and Administrative Act 2013 (NSW), sch 6, cl 10, s 55(1)(a) Guardianship Act 1987 (NSW), s 4
Category:	Principal judgment
Parties:	Mrs TKG (protected person) Mr CXN (attorney appointed under enduring power of attorney and applicant) Ms IGZ (substitute attorney) The NSW Trustee and Guaridan
Representation:	Nil
File Number(s):	55104
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 consented to the withdrawal of the application made by Mr CXN for a review of the financial management order made in relation to the estate of Mrs TKG. The application for a review of the financial management order was therefore dismissed pursuant to s 55(1)(a) of the Civil and Administrative Act 2013 (NSW) (CAT Act).

Background

2. Mrs TKG is an 88-year-old woman who is a permanent resident at a nursing home in regional NSW. Mrs TKG had previously resided in her own home in Toronto which has now been sold. Mrs TKG’s husband and son have both passed away. Mrs TKG’s son was married to Mrs MDN who has since remarried. Mrs MDN’s husband is Mr CXN who was appointed as Mrs TKG’s private financial manager on 19 May 2014.

3. The evidence before the Tribunal on this and the previous occasions is that Mrs TKG has cognitive impairments resulting from a combination of factors including bilateral subdural haematomas experienced in October 2013, consequent neurosurgery and likely underlying cognitive decline.

4. On 9 August 2016, the Tribunal received an application from Mr CXN seeking to have the financial management order revoked. In his application, Mr CXN raised concerns about the ongoing order following communication from the NSW Trustee and Guardian that a surety bond would need to be paid from Mrs TKG’s estate. Mr CXN’s application and his oral evidence to the Tribunal indicated that he has experienced considerable difficulty in obtaining information from the NSW Trustee and Guardian about the reasons for, and basis of, the requirement for the payment of a surety bond. In his application, Mr CXN suggested that the management of Mrs TKG’s finances could revert to management pursuant to an enduring power of attorney that Mrs TKG executed on 13 February 2014. That document appointed Mr CXN as Mrs TKG’s attorney and one of her nieces, Ms IGZ, as her substitute attorney.

The hearing

5. At the hearing before the Tribunal, Mr CXN attended in person along with Ms Tracy Burgess, the Director of Specialist Services at the NSW Trustee and Guardian. Ms IGZ participated by telephone as did another niece of Mrs TKG, Ms TMT. The Tribunal did not attempt to contact Mrs TKG on the basis that Mr CXN ultimately sought to withdraw his application for revocation of the order and the Tribunal consented to this request.

Evidence and submissions

6. Ms Burgess gave evidence that the Surety Bond Scheme introduced by the NSW Trustee and Guardian is an agreement between a private manager, the NSW Trustee and Guardian, and the surety bond company. It ensures the estates of privately managed people are protected against mismanagement and fraud by the private manager. The NSW Trustee and Guardian makes a decision on a case by case basis as to whether a surety bond is required for the estate. If a surety bond is imposed, then it is charged at a rate of 0.4% on the liquid assets in the estate. Real property, for example, is excluded from the estate for the purposes of calculating the value of the surety bond.

7. Ms Burgess noted that if the NSW Trustee and Guardian decides that a surety bond needs to be imposed, a private manager who disagrees with that decision can request an internal review of the decision. If the private manager remains unhappy with the outcome of the review, they are entitled to seek a further review of the decision by the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal.

8. Ms Burgess gave information that based on information that the NSW Trustee and Guardian held about the content of Mrs TKG’s estate and with liquid assets amounting to approximately $400,000 then, should the order continue, this would attract a payment of approximately $1,600 per year from Mrs TKG’s estate.

9. Neither Ms IGZ nor Ms Swan objected to the requirement for the surety bond to be paid out of Mrs TKG’s estate and neither objected to Mr CXN’s ongoing role as private financial manager.

10. Mr CXN indicated that on the basis of the information provided by Ms Burgess and because Ms IGZ did not have an objection to the payment of the surety bond or his ongoing role as financial manager, he wished to withdraw his application for revocation of the order.

Discussion

11. Under s 55(1)(a) of the CAT Act, the Tribunal may dismiss proceedings before it if the applicant withdraws the application to which the proceedings relate.

12. An application, such as that made by Mr CXN, cannot, however, be withdrawn except with the consent of the Tribunal (CAT Act, sch 6, cl 10).

13. In all of its proceedings, including when deciding whether or not to consent to a request to withdraw an application, the Tribunal is required to act in accordance with the principles set out in s 4 of the Guardianship Act 1987 (NSW), which in respect of persons with disabilities requires that:

• The person’s welfare and interests are to be given paramount consideration;

• The person’s freedom of decision and freedom of action should be restricted as little as possible;

• The person should be encouraged as far as possible to live a normal life in the community;

• The person’s views should be taken into account as much as possible;

• The importance of preserving the person’s family relationships and the person’s cultural and linguistic environment should be recognized;

• The person should be encouraged to be as self-reliant as possible in respect of the person’s personal, domestic and financial affairs;

• The person should be protected from neglect, abuse and exploitation.

14. The Tribunal regarded Mr CXN’s request to withdraw the application as one that is in Mrs TKG’s best interests. The Tribunal was satisfied that given the size of her estate, Mrs TKG still requires a financial management order. The oversight provided by the NSW Trustee and Guardian provides her with a level of protection and also appeared to alleviate concerns previously held by some members of Mrs TKG’s family, and still evident in this hearing, that Mrs TKG’s finances are being managed appropriately. The Tribunal therefore consented to Mr CXN’s request.

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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