VZN

[2020] NSWCATGD 53

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

VZN [2020] NSWCATGD 53

Hearing dates:

10 June 2020

Date of orders:

10 June 2020

Decision date:

10 June 2020

Jurisdiction:

Guardianship Division

Before:

L Organ, Senior Member (Legal)
M J Staples, Senior Member (Professional)
I Ferreira, General Member (Community)

Decision:

1. The estate of VZN is subject to management under the NSW Trustee and GuardianAct 2009 (NSW).

2. The management of the estate of VZN is committed to the NSW Trustee and Guardian.

Catchwords:

FINANCIAL MANAGEMENT – application for a financial management order – gambling addiction – whether subject person incapable of managing their own affairs - subject person in favour of financial management order being made – subject person at risk of homelessness – NSW Trustee and Guardian appointed.

Legislation Cited:

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

Cases Cited:

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

Nil

Category:

Principal judgment

Parties:

001: Financial Management Application

VZN (the person)
BZB (applicant)
NSW Trustee and Guardian (proposed financial
manager)

Representation:

Nil

File Number(s):

NCAT 2020/00062264

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

FINANCIAL MANAGEMENT APPLICATION

Background

1. VZN is a 41-year-old man originally from New Zealand who lives in Southwest Sydney in temporary accommodation provided by a charitable organisation. VZN is reported to have a gambling addiction.

2. On 26 February 2020, an application for the appointment of a financial manager for VZN was made by BZB, Case Worker from the charitable organisation. The application says a financial manager is required as VZN’s gambling addiction is placing him at risk of becoming homeless.

The hearing

3. 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.]

What did the Tribunal have to decide?

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

• Is VZN incapable of managing his affairs?

• Is there a need for another person to manage VZN’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 VZN incapable of managing his affairs?

5. In P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J commented at [308]-[309] on the meaning of the phrase “capable of managing those [the subject person’s] affairs” in s 25G(a) of the Guardianship Act 1987 (NSW):

[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.

In considering whether the person is “able” in this sense, attention may be given to: (a) past and present experience as a predictor of the future course of events; (b) support systems available to the person; and (c) 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: CJ v AKJ [2015] NSWSC 498 at [38].

6. As a first step in determining whether VZN is capable of managing his affairs, it is necessary to identify the nature of those financial affairs.

7. VZN gave evidence that he is currently employed full-time as a forklift driver earning approximately $1600 net a fortnight. Although he has steady employment he has fallen into arrears of rent for his accommodation. VZN frankly acknowledged that he has a problem with gambling mostly through playing poker machines. He said since the COVID-19 lockdown restrictions came into effect he has become very aware of how much money he was spending at hotels and clubs on gambling as he now has more money available as he cannot go these venues. He is making attempts to repay the arrears of his rent but is concerned that he could be tempted to gamble again once lockdown restrictions are lifted. He said in the past it was not uncommon for him to spend the entirety of his wages on gambling shortly after receiving them.

8. The applicant, BZB said VZN has been receiving support from the charitable organisation since 2018. VZN was at that time homeless due to his gambling addiction. BZB said VZN was referred by him for specialist counselling around his gambling. Unfortunately this did not have any significant impact on his gambling habits. VZN was unemployed for about five months in 2019 and was extended a rent free period at that time. Although he now has employment he has again fallen into arrears of rent. BZB noted that VZN has recently been observed approaching other residents at his accommodation to lend him money for food, cigarettes and for public transport fares. VZN disputed that he does this anymore although acknowledged that he has done so in the past.

9. BZB said that the accommodation provided to VZN is transitional accommodation only which is due to end in August. At that time BZB said he has serious concern that VZN will again become homeless due to his problem gambling. He noted VZN has demonstrated over a long period that he is unable to prioritise necessities such as rent and food expenses over gambling.

10. Although VZN’s financial affairs are relatively straightforward, we accept the evidence of BZB which was largely uncontradicted by VZN, that VZN is unable to manage his day to day financial affairs and prioritises expenditure on gambling over essentials such as rent, medication and food.

11. We are satisfied that VZN is unable to manage his financial affairs.

Is there a need for a financial management order and is it in VZN’s best interests that an order be made?

12. The principles in s 4 of the Guardianship Act require that we must balance a number of competing considerations. At all times the welfare and interests of VZN must be our paramount consideration.

13. VZN was not opposed to an order being made. We explained carefully to him in simple terms the implications of a financial management order. He acknowledged that he understood that it would represent a significant restriction on his freedom of decision making around his financial affairs and said he wanted the order to be made as he is motivated to change his life and achieve some financial security. He does not want to go back to being homeless and said he is worried that this is what will happen. He said “I need restrictions so I don’t overspend.”

14. We were satisfied that a financial management order should be made for VZN. There is a need to put in place sustainable financial arrangements to ensure payment of VZN’s accommodation fees on an ongoing basis and for payment of the arrears of rent he has accrued for his accommodation. A financial manager will also be able to put in place appropriate arrangements so that VZN has access to sufficient funds for other essentials such as food and transport. We have placed significant weight on VZN’s evidence that he supports an order being made and sees it as being a positive step in him achieving greater financial security.

15. We find that that there is both a need for a person to manage VZN’s estate and that it is in VZN’s best interests that a financial management order be made.

Who should be appointed as financial manager?

16. 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.

17. As there was no private individual available to appoint we committed the management of VZN’s estate to 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