TQU

[2016] NSWCATGD 54

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

TQU [2016] NSWCATGD 54

Hearing dates:

27 October 2016

Date of orders:

27 October 2016

Decision date:

27 October 2016

Jurisdiction:

Guardianship Division

Before:

A Boxall, Senior Member (Legal)
Dr M Martin, Senior Member (Professional)
L Porter, General Member (Community)

Decision:

Guardianship
1. The Tribunal consented to the withdrawal of the application made by Ms BFT and Mr MLS for a guardianship order for Mr TQU (clause 10, schedule 6, Civil and Administrative Tribunal Act 2013).

 

2. The application for a guardianship order is dismissed (section 55(1)(a), Civil and Administrative Tribunal Act 2013).

 Financial Management
1. The estate of Mr TQU is subject to management under the NSW Trustee and Guardian Act 2009.
2. Mr MLS and Ms BFT are appointed jointly and severally as the financial managers of the estate.
NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.
3. This order be reviewed by the Tribunal within 6 months.

Catchwords:

GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – nominee – family members willing to advocate in relation to NDIS issues – application withdrawn

  FINANCIAL MANAGEMENT – application for financial management order – NSW Trustee and Guardian previously appointed – NDIS service contracts – need for an order – private financial managers appointed jointly – reviewable 6 month order

Legislation Cited:

Guardianship Act 1987 (NSW), ss 4, 25M

Category:

Principal judgment

Parties:

Mr TQU (subject person)
Ms BFT and Mr MLS (applicants)
The NSW Public Guardian
The NSW Trustee and Guardian

File Number(s):

63462

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

GUARDIANSHIP APPLICATION

FINANCIAL MANAGEMENT APPLICATION

What the Tribunal decided

1. The Tribunal, at the Applicants’ request, dismissed the application for guardianship in relation to Mr TQU made by Ms BFT and Mr MLS.

2. The Tribunal appointed Ms BFT and Mr MLS as Mr TQU's joint and several financial managers for a period of six months, subject to the authorities and directions ordered by the NSW Trustee and Guardian.

Background

3. Mr TQU is 29-years-old, and lives with his parents, who are the Applicants, in regional NSW. They are his primary carers. Mr TQU has a brother, Mr KAU, who lives in regional NSW.

4. Mr TQU has cerebral palsy with developmental delay and an intellectual disability, a spastic right hemiparesis with mild left-sided spastic weakness, epilepsy, a right homonymous hemianopia, both urinary and faecal incontinence, anxiety and panic attacks, and oesophageal dysmotility with a severe swallowing disorder. There is no dispute as to the existence, extent or consequences of his disabilities.

5. The purpose of this hearing was to consider guardianship and financial management applications made by his parents on 19 August 2016.

The hearing

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

Do Ms BFT and Mr MLS have standing to bring the application?

7. A person has standing to bring an application for a guardianship order if he/she is:

1. the person who is the subject of the application;

2. the Public Guardian; or

3. any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.

8. A person has standing to bring a financial management application if he/she is:

1. the person who is the subject of the application;

2. the NSW Trustee and Guardian; or

3. any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person.

9. The Tribunal found that Ms BFT and Mr MLS have standing to make the application for a guardianship order and a financial management order because, as Mr TQU’s parents, they have a genuine concern for his welfare.

GUARDIANSHIP APPLICATION

10. In discussions with the Applicants, it became apparent that:

1. They had made all relevant decisions for Mr TQU since his birth, and this continued to be the case. There had been no material change in circumstances.

2. The introduction of the National Disability Insurance Scheme (NDIS) had inspired the application, but since they had been recognised as Mr TQU’s nominees for NDIS purposes and had been intimately involved in the negotiation and establishment of his NDIS arrangements, there appeared to be no need for their authority to be formalised through a guardianship appointment.

3. They were clearly Mr TQU’s carers, and his primary persons responsible for making medical and dental treatment decisions. Mr KAU, as a close relative of Mr TQU, should also be recognised as one of Mr TQU’s persons responsible for these purposes.

11. The Tribunal decided on the basis of all of this evidence that a guardianship order should not be made, and consented to the withdrawal of the application.

FINANCIAL MANAGEMENT APPLICATION

What did the Tribunal have to decide?

12. The questions to be considered by the Tribunal are:

• Is Mr TQU incapable of managing his affairs?

• Is there a need for another person to manage Mr TQU’s affairs and is it in his best interests for a financial management order to be made?

• If so, who should be appointed financial manager?

Is Mr TQU incapable of managing his affairs?

13. Accompanying the application were:

1. A psychiatric report dated 3 August 2016, by Dr Z; and

2. A medical report dated 22 July 2016, by Dr Y;

both concerning Mr TQU.

14. Both state unequivocally that Mr TQU is unable to manage his finances. The Tribunal’s discussions with Mr TQU himself left it in no doubt as to the accuracy of these assessments.

15. Accordingly, the Tribunal is satisfied that Mr TQU is incapable of managing his affairs.

Is there a need for a financial management order?

16. The issue for the Tribunal was why, after 29 years of informal management by them of his finances, it should now be necessary for the Applicants to be formally appointed as his financial managers.

17. The Applicants explained the position as follows:

1. Mr TQU’s disability is attributable to birth trauma, and he was awarded a very large sum by way of damages.

2. That was invested in two ways:

1. In order to acquire for Mr TQU a property for him to live in, which could be adapted to meet his needs; and

2. As to the balance, in a trust fund to produce income for him.

3. The property and trust fund have been held by NSW Trustee and Guardian, and for many years these arrangements have operated satisfactorily. With internal changes in NSW Trustee and Guardian’s operations, Mr TQU’s affairs are no longer managed in the Newcastle Office of NSW Trustee and Guardian, but rather are now managed centrally. The consequence has been a marked decline in the responsiveness of the trustee to Mr TQU’s needs; for example, considerable difficulty and delay were encountered in pursuing an insurance claim for the repair of damage to Mr TQU’s house following the fall onto it of a tree branch. The lack of responsiveness has reached the point that the Applicants wish to change the trustee, and they seek financial management in order to authorise them to undertake such steps as, but for his disability, Mr TQU would be able to undertake to do so.

4. This has been compounded by three other factors:

1. The introduction of NDIS will require a variety of service contracts to be entered on Mr TQU’s behalf. A financial management order is necessary for this to happen.

2. The greater formality which surrounds banking identification and confidentiality requirements means that it is increasingly difficult for Mr TQU’s banking needs to be met informally, as has been the case to date. Again, financial management is needed, if only to reorganise his banking arrangements more practically.

3. The house acquired for Mr TQU was suitable for him as a child, teenager and young adult. Now that he is in his late twenties his interests and needs have changed, and the house is less than ideal. The Applicants believe that the time is right to consider acquiring a more suitable property.

18. The Tribunal was satisfied that:

1. there is a need to appoint someone to manage Mr TQU’s affairs; and

2. it is in the best interests of Mr TQU that a financial management order be made.

Who should be appointed as financial manager?

19. In appointing a financial manager, as in making all other orders under the Guardianship Act 1987 (NSW), the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in section 4 of the Guardianship Act.

20. Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it 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.

21. The Applicants propose themselves as financial manager. In discussions with the Tribunal they demonstrated:

1. A long-standing and genuine commitment to their son’s welfare;

2. In particular, a desire to ensure that his financial needs for life were met, and a consciousness of the need for sound investment strategies to do so;

3. Consistently with that desire, the entirely reasonable view that responsiveness to changing circumstances was necessary to foster his financial best interests; and

4. A considered approach to seeking advice and assistance in relation to the structuring and management of their son’s investments in order to ensure his financial future.

22. In discussions with the Tribunal the Applicants answered satisfactorily the Tribunal’s various probity questions. In particular, they explained that as his carers they live with him in the house which was bought for his use but that they own a house of their own, which is rented out to tenants. They are not, therefore, dependent on their son for accommodation.

23. Moreover, so far as the trust fund is concerned, all that as financial managers they could do is to exercise such rights as under the terms of the trust and under the general law of trusts Mr TQU may have as beneficiary of the trust. The financial management order does not, therefore, allow them to access and manage his trust fund; rather, it allows them merely to stand in his shoes as beneficiary and to exercise such powers as he may have concerning the operation of the trust.

24. The Tribunal was satisfied that Ms BFT and Mr MLS were suitable persons to be appointed jointly as financial manager for Mr TQU subject to the authorities and directions of the NSW Trustee and Guardian.

Should a reviewable financial management order be made?

25. The Tribunal may determine that a financial management order should be reviewed within a specified time. In this matter, the Tribunal determined that the financial management order should be reviewed within six months, because:

1. the financial management process was under the supervision of the NSW Trustee and Guardian, and required the payment of a supervisory fee calculated by reference to the size of the estate under management;

2. in Mr TQU’s case this could be quite substantial, and it was in the Tribunal’s view in his best interests that the duration of the management period (and thus the fee payable) be minimised; and

3. an initial period of six months appeared sufficient in order to reorganise the banking arrangements and to enter into the relevant NDIS-related agreements; if a restructure of the trust fund could not be achieved within that period, or if it did not prove possible to reach more satisfactory management arrangements with the current trustee during that period, it was always open to extend the management period.

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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: 16 March 2017