UMT

[2016] NSWCATGD 7

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	UMT [2016] NSWCATGD 7
Hearing dates:	22 March 2016
Date of orders:	22 March 2016
Decision date:	22 March 2016
Jurisdiction:	Guardianship Division
Before:	J Currie, Senior Member (Legal) M Wroth, Senior Member (Professional) M Watson, General Member (Community)
Decision:	Financial management order revoked on the grounds of the person’s best interests.
Catchwords:	FINANCIAL MANAGEMENT – application to revoke financial management order – application to review financial management order – best interests – consideration of principles in section 4 of the Guardianship Act 1987 (NSW) – ability to manage affairs informally – where the person is Aboriginal and there are specific cultural considerations – previous debts accounted for – community support available – financial management order revoked
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 4 and 36 Guardianship Act 1987 (NSW), ss 25P(1) and 25P(2)
Category:	Principal judgment
Parties:	Ms UMT (the person subject to the financial management order and the applicant for revocation of that order) Mr SMT (appointed financial manager and spouse of Ms UMT) NSW Trustee and Guardian (party by operation of s 3F of the Guardianship Act)
Representation:	Nil
File Number(s):	39803
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

APPLICATION TO REVOKE FINANCIAL MANAGEMENT ORDER

APPLICATION TO REVIEW FINANCIAL MANAGEMENT ORDER

What the Tribunal decided

1. The Tribunal decided to hear these two applications concurrently. The Tribunal decided to revoke the financial management order which was made for Ms UMT on 27 February 2012 and confirmed on 23 April 2015, on the ground that the Tribunal considered that it was in the best interests of Ms UMT that the order be revoked.

Background

2. Ms UMT is a 46-year-old woman of Aboriginal culture and heritage who lives in central-western New South Wales with her partner Mr SMT. Ms UMT has a history of mental illness and receives services from an Aboriginal medical service in Regional NSW, from a Commonwealth-funded health service in Regional NSW, and from Community Mental Health service in Regional NSW.

3. On 15 December 2008 the Guardianship Tribunal made a financial management order for Ms UMT, under which it committed the management of her estate to NSW Trustee and Guardian. On 15 August 2011 the Guardianship Tribunal decided to revoke the appointment of NSW Trustee and Guardian as financial manager. It appointed Mr SMT as financial manager, subject to the authority and direction of NSW Trustee and Guardian.

4. On 23 April 2015, on the application of NSW Trustee and Guardian, the Guardianship Division of this Tribunal reviewed the appointment of Mr SMT as financial manager on the ground that he had not complied with the authorities and directions of NSW Trustee and Guardian. The Tribunal confirmed the appointment of Mr SMT as financial manager and directed that its order be reviewed within six months. On that date the Tribunal also accepted an oral application from Ms UMT which sought review of the financial management order itself with a view to its revocation and it adjourned the hearing of that application for approximately six months.

5. On 20 October 2015, the Tribunal adjourned the hearing of these two matters (that is, the required review of the financial management order and the application by Ms UMT for revocation of the order), for approximately one month. On 20 November 2015 the Tribunal adjourned the hearing for approximately four months and made certain recommendations to the parties.

6. The purpose of the Tribunal’s proceedings at Balmain on 22 March 2016 was to resume the hearing of those two matters; that is, the required general review of the financial management order and the application by Ms UMT for revocation of that order.

Parties and witnesses

7. The Appendix to these Reasons for Decision identifies the parties to the applications and the witnesses who participated in the hearing. [Appendix removed for publication.]

The order of proceedings and the issues for determination by the Tribunal

8. As noted above, the present hearing was arranged for the purpose of conducting the required review of Ms UMT’s financial management order and to hear Ms UMT’s own application for revocation of the order. Under s 25P(1) of the Guardianship Act 1987 (NSW), when the Tribunal reviews a financial management order in these circumstances it must vary, revoke or confirm the order.

9. Accordingly, it was appropriate to conduct the hearing of the review and the application for revocation concurrently. The first question for the Tribunal should be whether the financial management order should be revoked. If it were revoked then obviously there would be no need for a general review of the order. If the order were not revoked, then the Tribunal would proceed with the required review of the order, to determine whether it should be varied.

10. Under s 25P(2) of the Guardianship Act, the Tribunal may revoke a financial management order only if:

1. it is satisfied that the protected person is capable of managing their affairs, or

2. the Tribunal considers that it is in the best interests of the protected person that the order be revoked (even though it is not satisfied that the protected person is capable of managing their affairs).

11. Having reviewed the previous Reasons for Decision and the written material currently filed, we decided to consider firstly the “best interests” ground set out in (b) above. If the order were not revoked under that ground we would go on to consider the “regained capability” ground set out in (a) above. We saw such a course of action as being consistent with our obligation under s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

12. It followed that the issues for determination of the Tribunal were:

1. Would it be in the best interests of Ms UMT for the financial management order to be revoked?

2. If the answer to issue (1) was in the negative, is Ms UMT now capable of managing her own affairs? (In which case the financial management order is to be revoked).

3. If the financial management order is not to be revoked; that is, if the answer to issue is (1) and (2) are both in the negative, should the Tribunal vary the order?

Participation in the hearing by Ms UMT and her views

13. Ms UMT participated in the hearing by telephone and was able to provide her views clearly. She told us that she wanted the order revoked because she believed she could now manage her own affairs and that she did not want “to be told what to do by others”. Ms UMT emphasised that this would allow her to lead a normal life. She provided an account of how she had made arrangements to pay her existing debts. She asserted that one of the debts noted at the previous hearing had now been fully repaid and the other debts were being dealt with through Centrepay and that she and her partner Mr SMT were paying half each of the remaining debts by instalments. Ms UMT asserted that no new debts and no major new developments relating to her affairs had arisen since the last hearing.

THE TRIBUNAL’S ASSESSMENT OF THE EVIDENCE AND DETERMINATION OF THE ISSUES

Would it be in the best interests of Ms UMT for the existing financial management order to be revoked?

The evidence and submissions of the participants

14. Ms UMT’s partner, Mr SMT, told us that he continued to support the revocation of the financial management order on the ground that it would be in Ms UMT’s best interests for that to happen. Mr SMT asserted strongly that he and Ms UMT working together were completely capable of managing her affairs. He provided us with a quite detailed description of how daily and weekly expenses were being managed. We noted that Mr SMT had provided a similar description at the hearing on 20 November 2015. Significantly, it emerged from Mr SMT’s evidence on that date that Ms UMT’s income was paid into a bank account to which she had access, but that this had not led to her spending excessive amounts and that she had complied with suggestions made and restrictions imposed by Mr SMT in this regard.

15. Mr SMT also contended that the current allowance being received from NSW Trustee and Guardian was insufficient for Ms UMT’s needs.

16. Dr Z, Visiting Psychiatrist at a Mental Health/Drug and Alcohol Services in Regional NSW and the treating psychiatrist for Ms UMT for the last five years, participated in the hearing by telephone. The Tribunal had also taken into account Dr Z’s written report dated 7 October 2015, in which he reported that Mr SMT had been a devoted carer for Ms UMT for many years, that Mr SMT understands Ms UMT’s medical condition and capability, her medications and her vulnerabilities.

17. At this hearing, Dr Z contended that it would clearly be in the interests of Ms UMT for the financial management order to be revoked. He cited the following grounds in support of that contention:

1. Mr SMT had provided support and supervision for Ms UMT in her life generally, particularly in relation to the management of her affairs. Dr Z described Mr SMT’s support for Ms UMT as excellent and highly beneficial and referred particularly to Mr SMT’s ability to identify risks and possible problem areas and to give Ms UMT an understanding of these.

2. He observed that both Ms UMT and Mr SMT have gained valuable experience from addressing Ms UMT’s financial difficulties and that Ms UMT had learnt from her experiences.

3. Dr Z emphasised that the revocation of the financial management order would largely restore Ms UMT’s autonomy and effectively “give her back her identity”. He said that Ms UMT had discussed this potential benefit with him several times. The Tribunal noted that Ms UMT had raised this potential benefit at previous hearings, particularly at the hearing on 20 November 2015, when she had also contended that the revocation of the order was important for her reputation within the Aboriginal and general community.

4. Dr Z told us that he believed that, apart from the support available to Ms UMT from Mr SMT, there were substantial support mechanisms in place for Ms UMT through the Aboriginal community itself, the Aboriginal medical service in Regional NSW, Aboriginal Housing, and a not-for-profit primary health care organisation in Regional NSW.

18. A Liaison Officer for Private Management at NSW Trustee and Guardian, also participated in the hearing by telephone. He told us that Mr SMT had not always been fully compliant with the requirements of NSW Trustee and Guardian during the course of the order. That much was borne out by the NSW Trustee and Guardian’s written report dated 18 February 2016, which indicated that Mr SMT had not provided annual accounts for the years ended 26 February 2014 and 26 February 2015, that accounts for the period ended 26 February 2013 had not been passed and that fees of $106.50 were outstanding. However, the Liaison Officer was satisfied that Mr SMT could continue to provide extensive support to Ms UMT in the management of her affairs. The Liaison Officer contended that if collectively Ms UMT and Mr SMT could manage Ms UMT’s income and expenditure and there were support systems available to them (which appeared to be the case) then NSW Trustee would have no objection to the revocation of the current financial management order.

The Tribunal’s analysis and decision

19. The Tribunal noted that Ms UMT’s estate was a reasonably uncomplicated one and that problems had arisen in the past because of Ms UMT’s apparent inability to properly manage her debts.

20. We found the evidence of Mr SMT and that of Dr Z to be reliable and we found their views persuasive. In particular, the independent and objective views of Dr Z were of substantial assistance to us and we gave them substantial weight. Dr Z indicated that there were strong and reliable support systems available to Ms UMT to enable her to manage her affairs. Her principal source of support was of course from her partner Mr SMT. But we found that there was in addition support for Ms UMT available through Aboriginal community links, local health professionals, and service providers.

21. We accepted Ms UMT’s own contentions, supported by those of Mr SMT and Dr Z, to the effect that a revocation of the financial management order would restore her self-pride, improve her local reputation, including that within the Aboriginal and general community and would effectively help to restore her identity.

22. There was nothing before us which indicated that a continuation of the financial management order would be of demonstrable benefit to Ms UMT’s interests.

23. We are required by s 4 of the Guardianship Act to take particular matters into account in exercising functions under the Guardianship Act with respect to people such as Ms UMT. Those matters include the importance of preserving the family relationships and the cultural environment of people such as Ms UMT and the need to encourage such people, as far as possible, to be self-reliant in matters relating to their financial affairs and, so far as possible, to live a normal life in the community. Another important requirement under s 4 is that the freedom of decision and freedom of action of people such as Ms UMT should be restricted as little as possible.

24. We were satisfied that each of these considerations supported a revocation of the order, on the established facts of this case.

25. On the basis of this analysis we were satisfied that it would be in the best interests of Ms UMT for the financial management order to be revoked. We ordered accordingly.

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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 July 2016