UZK

[2023] NSWCATGD 13

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

UZK [2023] NSWCATGD 13

Hearing dates:

7 June 2023

Date of orders:

7 June 2023

Decision date:

07 June 2023

Jurisdiction:

Guardianship Division

Before:

R L Bailey, Senior Member (Legal)
Dr F Duffy, Senior Member (Professional)
K Clark, General Member (Community)

Decision:

Guardianship

1. A guardianship order is made for UZK.

2. BFN, of [Address removed for publication.], is appointed as the guardian.

3. This is a continuing guardianship order for a period of two years from 7 June 2023.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where UZK may reside.

b) Health care

To decide what health care UZK may receive.

c) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where UZK is not capable of giving a valid consent.

d) Services

To make decisions about services to be provided to UZK.

e) Legal services

To make decisions for UZK in relation to access to legal services.

f) Travel

To make decisions about whether or not UZK can travel to any place outside Australia.

g) Passport

To make a decision about whether or not the passport of UZK should be surrendered to the guardian or some other authority the guardian nominates pending a decision by the guardian concerning travel.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management

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

2. BFN, of [Address removed for publication.], is appointed as the financial manager of the estate.

NOTE: The financial manager is 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.

Catchwords:

GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – 18-year-old subject person – NDIS participant – subject person previously under the care of the Minister for Communities and Justice until she turned 18 – subject person lives with former foster parents – history of coercion and exploitation by employer – need for decisions to be made about legal services to bring victims of crime compensation claim – need for decisions to be made about accommodation, health care, medical and dental consent, and services – need for decisions to be made in relation to passport and travel – private person suitable to be appointed – order made

FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their own affairs – loss of significant sums of money – vulnerability to exploitation and financial harm – need for a financial manager to retrieve assets and protect the subject person from future exploitation – private person suitable to be appointed – private financial manager appointed – order made

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 25M

Cases Cited:

Application by AMAM; Re SAM [2011] NSWSC 503

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)

CJ v AKJ [2015] NSWSC 498

Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227

M v M [2013] NSWSC 1495

McD v McD (1983) 3 NSWLR 81

P v D1 & Ors [2011] NSWSC 257

P v NSW Trustee and Guardian [2015] NSWSC 579

Re B [2011] NSWSC 1075

Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Guardianship Application

UZK (the person)
MZN (applicant)
BFN (carer, joined party)
DAK (joined party)
Public Guardian (proposed guardian)

002: Financial Management Application

UZK (the person)
MZN (applicant)
BFN (carer, joined party)
DAK (joined party)
NSW Trustee and Guardian (proposed financial manager)

Representation:

J Alewood, Barrister, separate representative for UZK

File Number(s):

NCAT 2022/00379467

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

GUARDIANSHIP APPLICATION; FINANCIAL MANAGEMENT APPLICATION

What the Tribunal decided

1. The Tribunal appointed BFN as UZK’s guardian for a period of two years to make decisions about her accommodation, health care, medical and dental consent, services, legal services, travel and passport.

2. The Tribunal appointed BFN as UZK's financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian.

Background

3. UZK is an 18-year-old woman, who now lives with her former foster parents, Mr Z and BFN, with whom she has lived since she was four and a half years of age.

4. This is a resumed hearing of the hearing which took place on 30 March 2023 and was adjourned on a part-heard basis, of a guardianship application. The applicant is MZA, Case Worker at the Department of Communities and Justice (DCJ). UZK was under the parental care of the Minister until she turned 18. The Tribunal notes information provided to the effect that UZK has intellectual disability, anxiety disorder, ADHD and PTSD.

5. These Reasons for Decision must be read in conjunction with the Reasons for Decision on 30 March 2023 which have been extracted and included hereunder.

6. MZA has also asked the Tribunal to appoint a financial manager for UZK.

Evidence given on the previous occasion

Evidence of UZK

7. UZK attended the hearing in person. It was obvious that she was, initially, extremely anxious and distressed. She sat in the front of the hearing room with her separate representative, and the other parties to the proceedings sat behind her, out of her line of sight in the second row.

8. This appeared to make it somewhat easier for UZK to participate. As the hearing progressed, UZK became less distressed and was able to express her views on occasion, when asked.

9. UZK gave the following evidence.

• She only remembered being advised that a guardianship application had been made. She believed that she had been told by the applicant that she had the choice of who to have as a guardian but that she had to accept that she had to have a guardian because she is a participant in the National Disability Insurance Scheme (NDIS).

• UZK really loves cooking and is enjoying her TAFE course which she attends each Monday. She does not find it difficult to concentrate. TAFE is far better for her than school.

• UZK believes she may sometimes be a bit impulsive. She agrees with the diagnoses of PTSD, intellectual disability, ADHD and general anxiety disorder.

• UZK agreed that she sometimes makes decisions on the spur of the moment and agreed with the contention that it is sometimes difficult for her to make complex decisions.

• When she has to make a difficult decision, her practice is to talk to “a trusted person”. The reason she finds it difficult is due to poor concentration, difficulty with problem solving and a poor memory.

• UZK said she thinks it would be good for her to have a substitute decision-maker. She wants to remain living with Ms Y. She is happy there and gets on well with Ms Y’s children. Ms Y makes UZK feel safe and happy and teaches her life skills. She likes helping out in the bakery and with the children.

• UZK agreed that she has been “back and forth” on a couple of occasions between Ms Y’s house and that of her foster parents, Mr Z and BFN, who live across the street. On the first occasion, an Ambulance came in the middle of the night and took her away. She could not remember why she left Ms Y’s on the second occasion.

• UZK said she thinks it would be good for her to have someone to make decisions for her about aspects of her lifestyle.

Evidence of the applicant, MZA

10. MZA gave the following evidence by VMR telephone.

• UZK presents well, despite her mild intellectual disability. However, the applicant believes that she requires a guardian to make decisions particularly about her accommodation and services in order to assist her to build a support network in the community. UZK’s behaviour has demonstrated that she is not trying to build a support network. She believes she is independent and does not appreciate the support network she has.

• The applicant has doubts about UZK’s ability to consider the consequences of her decisions.

• The applicant has “constantly” received information from treating professionals to the effect that UZK has reported experiences that “are not positive” whilst living with Ms Y.

• UZK has missed important mental health medical appointments.

• The applicant recommends the appointment of the Public Guardian for decisions of accommodation, services, healthcare and medical and dental consents.

• It is important for UZK to maintain healthy relationships with those that care for her. This is not possible in the current circumstances where there is a profound difference of opinion between those people.

• The appointment of the Public Guardian would help UZK maintain her relationship with BFN and Ms Y.

Evidence of Ms Y

• Ms Y agrees with the diagnoses but believes that UZK can make decisions with support. She believes that UZK’s responses to the Tribunal are motivated by “pure fear”. Ms Y argued that UZK does not want a guardian despite what she told the Tribunal.

• Ms Y has an autistic son and was a Case Manager in the past.

• UZK is strong willed and can make her own decisions. She needs adult guidance but is good at making decisions with assistance. She is good at sourcing guidance.

• UZK can be quite impulsive. She sometimes behaves like a five-year-old.

• It has been difficult for Ms Y to ensure that appropriate services are implemented because she has not been able to gain access to health care and medical information and she can’t speak with BFN pleasantly about UZK’s health.

• Ms Y conceded, at the commencement of the hearing, that she had received the information that had been provided to the Tribunal, including an Occupational Therapist’s report and the report of psychometric testing.

• UZK has now found service providers with whom she can connect. She needs to start being treated like an adult. She ‘shuts down’, if pressured.

• UZK is now on medication to treat her ADHD which has just started.

• Ms Y has attended UZK’s General Practitioner to “discuss the next stage”.

Evidence of BFN

• BFN told the Tribunal that she agrees with both UZK and Ms Y insofar as she believes UZK is mostly capable of making her own decisions. However, she said that UZK does not always understand the range of choices that are available to her.

• She believes that UZK often makes choices that are solely based on her preference or “all consuming goal” at the time, rather than considering all options. She said that if UZK really wants something, she will not listen to any alternative proposals and loses common sense, as evidenced by her decision to leave school early.

• BFN respects UZK’s choice to live with Ms Y, even though she does not believe it to be in her best interests.

• When UZK has lived with Ms Y in the past, her mental health has deteriorated to the extent where she is no longer healthy.

• UZK’s feelings for Ms Y “are quite intense”.

• When UZK perceives any slight or difference of opinion, her mental health deteriorates. On one such occasion, UZK was scheduled for suicidal ideation. There have been five episodes of suicidal feelings, in the last 12 months.

• She supports UZK’s right to choose where she wants to live. However, she fears that if that placement breaks down, it will be difficult to source alternative suitable accommodation for UZK. She believes a guardian should be appointed to make decisions about accommodation.

• Furthermore, BFN said that UZK’s NDIS plan needs to be managed in a manner which supports UZK’s own independent goals. She does not believe this is the case.

• UZK’s needs are increasing but the funding that has been awarded for her services has not been used. BFN is fearful that this means that UZK’s funding will be reduced in the next NDIS review.

• UZK is supposed to have support for budgeting, therapy, social outlet, independent living skills and supported independent living. Her Coordinator of Support is a man called “Mr X”. He did not attend the hearing.

• UZK requires someone who can manage her NDIS plan. Until now, her nominee has been MZA for DCJ and BFN. BFN currently manages the Plan and receives the spreadsheets which identify the way in which funds are dispersed.

• The NDIS plan has set “good goals” but the funding is not being used for its intended purpose. The plan is currently plan managed.

• UZK requires someone to advocate for her and make decisions in relation to her access to services.

• The conflict is worrying. It would be beneficial for a guardian to be appointed to “take the heat out”.

Evidence of DAK, paternal aunt and joined party

11. DAK attended the hearing in person and gave the following evidence.

• She could not initially see why UZK requires a guardian. She was in a state of “blissful ignorance” about UZK’s cognitive capacity and mental health. However, now that she has seen a report, she believes that UZK may require someone to assist with decision making because UZK is “a bit fuzzy on the consequences”.

• UZK told the Tribunal that she wants a guardian out of fear, not because this reflects her actual wishes.

• The Coordinator of Support should be assisting UZK to ensure that she receives appropriate services.

Submissions of the separate representative

12. Ms Jan Alewood, Barrister, attending the hearing as separate representative for UZK.

• She referred the Tribunal to the medical reports that were provided including the Occupational Therapist’s report, dated 7 October 2022; the psychological functional assessment, dated 7 July 2022; a psychometric report, dated 1 June 2020; and a Paediatrician report, amongst other documents.

• From an assessment of those documents, the Tribunal could be satisfied that UZK is a person for whom the Tribunal could make a guardianship order.

• Some of UZK’s services have been “let go”. The appointment of a guardian will support UZK to ensure that she has funding and access to services that will most optimally meet her needs. It is not possible for these decisions to be made an informal basis due to the differences of opinion between those who are close to UZK. This includes decisions about accommodation. The conflict that has arisen as a result of these different opinions is causing UZK considerable stress and anxiety and is detrimental to her mental health.

• The Tribunal could be satisfied that there is a need for a guardian to make decisions about accommodation and services.

• UZK’s accommodation has fluctuated in the past and could easily do so in the future.

• The parties now realise that UZK feels very strongly and will stay with Ms Y while it is a viable option.

• It is possible that further discussions may assist the parties to come to an understanding about what is best for UZK.

13. The Tribunal asked UZK on a number of occasions if she would prefer to give evidence to the Tribunal in the absence of the other parties. She declined that opportunity. The Tribunal asked her whether it was her own independent view that she requires someone to assist her with decision making or whether she was saying that because she felt the Tribunal wanted her to answer in that way. She repeated that it is her own independent opinion that she does require assistance with decision making and that the Tribunal should make a guardianship order. She did not feel particularly distressed by the difference of opinion between those in the hearing room and was not fearful of the hearing. She is, however, fearful of “what’s next”.

14. At this point, the time which had been allocated for the hearing expired. The Tribunal, therefore, adjourned the hearing on a part-heard basis to a date to be fixed by the Registrar.

15. UZK has been appointed a separate representative. Ms Jan Alewood, Barrister, appeared as separate representative at both hearings.

16. The matters before the Tribunal are the hearings of the guardianship application and the financial management application.

The hearing

17. 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.]

GUARDIANSHIP APPLICATION

What did the Tribunal have to decide?

18. The questions which had to be decided by the Tribunal were:

• Is UZK someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

• Should the Tribunal make a guardianship order and if so, what order should be made?

• Who should be the guardian?

• How long should the order last?

Is UZK someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

19. Section 14 of the Guardianship Act 1987 (NSW) (‘the Act’) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is “a person in need of a guardian”. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person”: the Act, s 3(1). A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: the Act, (s 3(2).

20. The separate representative referred the Tribunal to the Occupational Therapist’s report of Heather Norton, dated 23 September 2022, and the psychological assessment performed by Ms W on 29 June 2022. She also asked the Tribunal to accept that recent evidence reinforces the medical opinions that UZK lacks the capacity to make decisions that are in her best interests.

21. Since the previous hearing, the Tribunal has received a statement from BFN, foster mother, titled “Summary of Events”. In this document, BFN wrote that prior to August 2021, UZK was settled and content with her foster parents. In mid to late-June 2021, UZK accepted a casual job at the local bakery, owned by Ms Y.

22. Ms Y attended the previous hearing but did not attend on this occasion. Ms Y is a party to the proceedings, because she was accepted on the previous occasion as a carer. Therefore, she has received a copy of this document. She has not submitted any evidence in response and the evidence of BFN is, therefore, uncontested.

23. The evidence paints a very distressing picture of a history of coercion and exploitation. The statement of BFN, which she said she drafted together with UZK herself, and which UZK corroborated, suggests that UZK was employed by Ms Y but not paid by her employer. Furthermore, it alleges that Ms Y encouraged UZK to make false allegations of child abuse against her foster parents. These allegations included claims that UZK was not being fed appropriately or that she was made to contribute to the household chores.

24. UZK ran away from her foster parents on 23 August 2021 to stay with Ms Y, who was, at that time, her employer. UZK was 16 years old at the time. BFN reported that UZK was encouraged by Ms Y to leave school within a week from leaving home. Having left school, it is alleged she started working in the bakery fulltime, without pay.

20. UZK reported that this undermined the parental relationship between UZK and her foster parents. It is alleged that there were discussions about UZK moving to either regional NSW or Southeast Asia with Ms Y, who planned to sell the bakery and move away. It is alleged that UZK told her paternal aunt, DAK, that Ms Y’s boyfriend could get her a new identity and travel documents.

21. BFN reported that, during this time, she learnt that UZK was trying to get a new passport and that she had ceased her casual employment with Coles, which was her only source of income at the time, to work at the bakery without pay. BFN said that UZK did not recognise the danger associated with a new identity or moving away from her family and friends.

22. She also alleges that UZK was prevented access to mental health support, which resulted in a significant deterioration in her mental health leading to suicidal ideation. On 1 October 2021, UZK was scheduled under the Mental Health Act as a result. She was diagnosed with borderline personality disorder. Shortly after this admission, UZK returned to her foster parents and returned to school and completed her year 10 education and commenced year 11. She secured a casual job as a waitress at a beachside café which she enjoyed.

23. In April 2022, BFN said that UZK again engaged with Ms Y and ran away to live with her, against her psychiatrist’s advice. Once again, UZK dropped out of school and ceased her paid employment to work in the bakery fulltime again without pay. Whilst UZK previously had had significant savings (more than $19,000.00), her savings at this time dropped to $30.00. UZK told the Tribunal on this occasion that Ms Y repeatedly asked her for funds which she transferred, believing that they would be repaid.

24. In July 2022, UZK again returned home. However, Ms Y stayed in touch with her and, in October 2022, UZK’s conduct changed again. She started missing shifts at work and TAFE classes.

25. At the end of October 2022, UZK again moved in with Ms Y. UZK was taken to the Police and made a statement against her foster parents who were then served with a provisional Apprehended Domestic Violence Order (ADVO).

26. Between November 2022 and March 2023, which was the time of the last hearing, UZK stopped attending TAFE and again ceased paid employment to work in the bakery without pay. It is alleged that Ms Y has stated that UZK was not employed, but merely helping out. Over this six-month period, it is alleged that UZK gave or lent Ms Y at least $19,000.00, which represented her entire life savings. Bank statements confirm the detail of these transfers.

27. It is also alleged that Ms Y encouraged UZK to falsify documents such as prescriptions for Ms Y’s family members.

28. BFN reports that UZK has told her that Ms Y discussed introducing her to a boy in Southwest Sydney because “Vietnamese families pay well to meet the right girl”. BFN submitted that UZK does not understand the risks associated with this statement.

29. UZK also reported to BFN that whilst living with Ms Y, she was given drugs and forced to assist Ms Y to break into her former boyfriend’s home, an incident which allegedly resulted in Police involvement.

30. The report states that UZK returned to live with her foster parents on her 18^th birthday in April 2023. It is alleged that on that morning someone from Ms Y’s residence removed $150.00 from UZK’s wallet and accused UZK of stealing from the till. It is also alleged that Ms Y has denied UZK access to most of her belongings and that there was an altercation between UZK, Ms Y and Ms Y’s now boyfriend, which also resulted in Police involvement.

31. It is alleged that UZK felt intimidated and frightened and left with only minimal possessions. It is alleged that Ms Y still owes UZK over $19,000.00 in addition to her unpaid wages.

32. UZK corroborated the information contained in BFN’s report and confirmed that, from her perspective, it is a truthful report. There is no evidence to contradict BFN’s evidence and the Tribunal, therefore, accepts it.

33. This evidence demonstrates that UZK has been easily persuaded to engage in activities that are risky and contrary to her best interests.

34. UZK told the Tribunal that she believes she can make her own decisions but would appreciate the assistance of BFN when making lifestyle decisions. However, the Tribunal is not satisfied that the evidence set out in BFN’s report demonstrates that UZK is capable of making lifestyle decisions that are in her own best interests at this time.

35. It is clear that, on numerous occasions, she has been persuaded to change accommodation. On each occasion, this has been to her detriment and has placed her at considerable financial and personal risk of harm.

36. The Tribunal is satisfied that UZK has a disability which prevents her making important life decisions. She 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?

42. Before making a guardianship order, we must have regard to several matters set out in s 14(2) of the Act. This requires us to consider the views of UZK and the significant people in her life and have regard to family relationships and matters of cultural significance. We must also consider the practicability of services being provided to UZK without the need for making an order.

43. Additionally, we must observe the general principles listed in s 4 of the Act. Among other things, this requires that in deciding whether to make a guardianship order, we must endeavour to restrict UZK’s freedom of decision making and freedom of action as little as possible. As far as possible, we should enable UZK to be self-reliant in matters relating to UZK’s personal, domestic and financial affairs. At the same time, we must also aim to protect UZK from neglect, abuse and exploitation. The paramount consideration at all times is UZK’s welfare and interests.

44. It was submitted by the separate representative that there is a need for a guardian to make decisions about UZK’s accommodation, to prevent a situation where she might again be persuaded to leave her secure and safe accommodation. The separate representative submitted that UZK is very vulnerable. Furthermore, she submitted there will be a need as UZK develops more independence to consider independent living options and that it will be in UZK’s best interests that a substitute decision-maker be appointed to ensure that any such decisions are in UZK’s best interests and meet her needs.

45. Everyone who attended the hearing, including UZK, agreed that this would be beneficial.

46. The separate representative noted that UZK is an NDIS participant. However, she submitted that UZK does not always fully understand the elements included in her own NDIS plan.

47. Mr X, NDIS Coordinator of Support, agreed that this is the case. He said that UZK currently receives core funding and capacity building funding, which he does not consider to be adequate at this stage. UZK enjoys time with her Support Worker. However, the funding is currently insufficient to enable that engagement at the necessary level for an entire year. He will be supporting UZK to seek a review of her plan. He corroborated the evidence that there will be a need, in due course, to consider independent living options, but noted that UZK does not, at this stage, feel she is quite ready for that next step.

48. UZK agreed, although she believes she can make her own decisions and does not require a guardian, that it would be of assistance to her to have support in this area.

49. Everyone else who attended the hearing agreed that UZK would benefit from a guardian to make decisions about her access to services.

50. The separate representative also submitted that there is a need for a guardian to make decisions about legal services. She said that there will be a victims of crime compensation claim commenced on UZK’s behalf, as a result of historical events. Legal action is also currently being contemplated in relation to other matters which are set out above. The separate representative submitted that UZK will benefit from a guardian to make decisions about her access to legal services for all legal action that is currently contemplated.

51. UZK indicated her fervent desire to pursue legal action and supported the appointment of a guardian to make decisions about her access to legal services. Everyone else who attended the hearing agreed.

52. UZK told the Tribunal that she takes medication for her ADHD. BFN added that she has been prescribed Seroquel and Melatonin, although UZK denied taking it.

53. BFN submitted that it is very important that UZK have a guardian who is authorised to make decisions about her access to health care and to provide or withhold consent to medical and dental treatment. Although she said UZK is very interested in medical opinion, she does not believe that she always understands the intricacies of her medication. Furthermore, she said that the power to exchange health information will be essential to support UZK to have the appropriate access to health care. She noted that she has had the ability to exchange health information for UZK all her life, however, now she is 18, this is no longer possible.

54. DAK, aunt, also told the Tribunal that she believes that the travel and passport functions should be included in a further guardianship order. She told the Tribunal that UZK has reported to her that Ms Y had discussed travelling to Southeast Asia and changing UZK’s name. She believes there that is a risk that UZK is still vulnerable to someone taking her overseas and that UZK may not appreciate the risks of any such suggestion. She noted that UZK is keen to travel and supports this.

55. The separate representative endorsed this proposal. She said that UZK has advised her that she was “trained” by Ms Y, in terms of the responses that she gave to the Tribunal on the last occasion. The separate representative submitted that this suggests that there is a repeating pattern of UZK being vulnerable to suggestion and coercion. She supported the inclusion of the travel and passport function to protect UZK from being taken out of Australia in circumstances where this would not be in her best interests.

56. There was no dispute that the functions referred to above should be included in a guardianship order. UZK did not object.

57. The Tribunal is satisfied that the evidence demonstrates that UZK has been subjected to extraordinary coercion and persuasion and that her vulnerabilities have been exploited. She has only been released from the parental care of the Minister for less than two months. The Tribunal notes that the events described occurred whilst she was under the parental care of the Minister.

58. The Tribunal is satisfied that UZK will benefit from a guardian to make decisions about her accommodation, access to services, access to health care, medical and dental consents, access to legal services, access to her passport and her travel plans in order to prevent a recurrence of past abuse.

59. The making of a guardianship order does impact on UZK’s ability to make her own decisions, but our paramount consideration is her best interests and welfare. It is manifestly in her best interests for a guardianship order to be made.

60. These decisions cannot be made informally. There is no evidence that the making of a guardianship order would have any adverse impact on UZK’s family relationships or her cultural or linguistic environment.

Who should be the guardian?

61. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she must:

1. have a personality generally compatible with the personality of the person under guardianship,

2. have no undue conflict of interest (particularly financial) with those of the person, and

3. be able and willing to exercise the functions of the order.

62. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, at [66]).

63. In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

64. The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed: the Act, s 15(3).

65. The Supreme Court has held that:

“the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).”

66. It was proposed that BFN should be appointed. She is UZK’s foster mother and has cared for her since the age of four and a half.

67. UZK herself supported the appointment of BFN, as did everyone else who attended the hearing.

68. The Tribunal is satisfied that BFN has demonstrated her long-term love, support and care in the face of considerable adversity at times, for UZK. The Tribunal is entirely satisfied that she is a suitable person to be appointed as the private guardian for UZK.

How long should the order last?

69. An initial guardianship order can be made for a period of up to one year from the date on which it was made.

70. The Tribunal decided to make an order for a period of two years because UZK expressed a dislike of having to return to a hearing and because her disability is permanent. Furthermore, the issues which have given rise to the need for a guardianship order are unlikely to have resolved within a 12-month period.

FINANCIAL MANAGEMENT APPLICATION

What did the Tribunal have to decide?

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

• Is UZK incapable of managing her affairs?

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

• If so, who should be appointed financial manager?

Is UZK incapable of managing her affairs?

72. 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, [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.”

73. To determine whether the person is able to manage their affairs, 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].

74. 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). See Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [20]:

75. Each case must, of course, be considered on its own facts, including not only actual facts presently known but also, so far as they can be known, prospective developments.

76. The Tribunal adopts the evidence in the guardianship application as evidence in this matter.

77. UZK told the Tribunal that she can manage her affairs. She told the Tribunal that she receives a disability support pension and that, in the past, she would allocate $100.00 for spending and save the rest. This enabled her to accumulate savings of over $19,000.00. Unfortunately, due to persuasion, all of this money was taken from her. This demonstrates that whilst UZK has significant skills in terms of managing her finances, she is unable to protect herself from exploitation and financial harm.

Is there a need for a financial management order?

78. The Tribunal adopts the evidence of UZK and BFN that was presented in the guardianship application that attests to the fact that UZK has been financially exploited. This has occurred because she has not been paid for her employment and because her savings have been drained. Furthermore, her belongings have not been returned to her.

79. The Tribunal is satisfied that there is a need for a financial manager to be appointed to take such action as is necessary to retrieve UZK’s assets and to protect her from future exploitation.

80. UZK agreed that she requires support with paperwork and that she is in favour of someone taking action on her behalf to recover her funds.

81. The Tribunal was satisfied that there is a need to appoint someone to manage UZK’s affairs and that it is in her best interests that a financial management order be made.

Who should be appointed as financial manager?

82. In appointing a financial manager, as in making all other orders under the Act, 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 s 4 of the Act.

83. Section 25M of the 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.

84. In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court’s broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.

85. On the side of the then Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage.

86. The advantages of the appointment of a family member were more economic management of smaller estates (that is, lower fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers.

87. The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be “more apparent than real,” should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family.

82. In Application by AMAM; Re SAM [2011] NSWSC 503, Hallen AsJ stated:

“[34]    It would be unwise to attempt any definition of the matters that may legitimately be enquired into to determine whether the applicant is suitable. Each case must depend on its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager’s character, honesty and ability to manage, diligently, the managed person’s property in the managed person’s best interests.”

89. The matters or "guidelines" that should be considered when determining who to appoint as financial manager, as established in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, are discussed and expanded upon by Lindsay J in M v M [2013] NSWSC 1495 at [50].

90. It was proposed that BFN be appointed as financial manager for UZK.

91. UZK approved of this proposal.

92. BFN denied any factors which would give rise to a conflict of interest. Furthermore, she noted that she has managed UZK’s financial affairs effectively until UZK went to live with Ms Y.

93. The Tribunal was satisfied that BFN was a suitable person to be appointed as financial manager for UZK, subject to the authorities and directions 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: 30 August 2023