XZL

[2020] NSWCATGD 90

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

XZL [2020] NSWCATGD 90

Hearing dates:

1 December 2020

Date of orders:

1 December 2020

Decision date:

01 December 2020

Jurisdiction:

Guardianship Division

Before:

K Ross, Senior Member (Legal)
Dr C Pratten, Senior Member (Professional)
S Bullock, General Member (Community)

Decision:

FINANCIAL MANAGEMENT

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

2. SAL and TFL of [Address removed for publication.] 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 they have obtained all necessary authorities from the NSW Trustee and Guardian.

Catchwords:

FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their affairs – where subject person vulnerable to exploitation – suitability of proposed private managers – private managers jointly appointed – order made.

Legislation Cited:

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

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

001: Financial Management Application

XZL (the person)
TFL (applicant)
SAL (joined party)
NSW Trustee and Guardian

Representation:

Nil

File Number(s):

NCAT 2020/00312606

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

What the Tribunal decided

1. The Tribunal made a financial management order appointing TFL and SAL jointly and severally as XZL’s financial managers.

Background

2. XZL is a 71-year-old man who has been diagnosed with bipolar disorder. He lives in rented accommodation in Southwest Sydney. XZL has a supportive son and daughter in law, TFL and SAL. He also has a second son, Mr Z, from whom he is estranged.

3. On 30 October, 2020 the Tribunal received an application for the appointment of a financial manager from TFL. He seeks to be appointed as his father’s financial manager. He states that XZL requires a financial manager as he spends all his money, and is vulnerable to exploitation. He said that he frequently spends all his money and then has nothing to pay essential bills.

The hearing

4. 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.] The hearing was conducted by phone due to COVID-19 restrictions.

What did the Tribunal have to decide?

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

• Is XZL incapable of managing his affairs?

• Is there a need for another person to manage XZL’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?

Reason for the Application and other evidence

6. XZL gave evidence that he has trouble managing his money. He said that he spends money, and does not even know what he has spent it on. His rent is direct debited, but he frequently runs out of money for food, and then unless TFL and SAL help him out, he doesn’t eat. His phone has been cut off at the moment because he didn’t pay the bill. He relies on a voluntary organisation to pay for his electricity. He has no savings. He said that “someone needs to look after my money”.

7. TFL gave evidence that he and his wife, SAL, have had to bail XZL out many times over the last ten years. Recently he gave $8000 to his masseuse. He is vulnerable to exploitation. He makes purchases online of things he doesn’t need and then is unable to pay for food and other bills. TFL and SAL have tried to help but have not been able to protect him.

Is XZL incapable of managing his affairs?

8. The leading cases say that in determining whether a person is or is not capable of managing his or her financial affairs, it is necessary to focus attention on the personal circumstances of that person, and the ability of that person to undertake the particular tasks which their circumstances require. The questions to be considered are:

1. Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a protected estate manager charged with a duty to protect his or her welfare and interests?

2. Is the person 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 can be relied upon to make sound judgements about his or her welfare and interests.

9. Whether a person is or is not “capable of managing his or her own affairs” will usually depend upon whether:

1. He or she is reasonably able to determine what is in his or her best interests, and to protect his or her own welfare and interests, in a normal, self-reliant way without the intervention of a protected estate manager; and/or

2. He or she is in need of protection from neglect, abuse or exploitation.

10. 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.

11. The Tribunal was satisfied on the evidence that XZL lacks the capacity to manage his limited income, in such a way as to ensure sufficient funds are available for his essential expenditure. Even with the assistance of Mr TFL and SAL there is evidence of insufficient funds for food and bills. The Tribunal was satisfied that XZL’s mental health condition is such that he is unable to manage his own financial affairs in a way which protects his interests.

Is there a need for a financial management order? Is it in XZL’s best interest that a financial management order be made?

12. The Tribunal was satisfied on the evidence that there is no Power of Attorney or other authority allowing another person to act on XZL’s behalf. Whilst TFL and SAL have been assisting him informally through some issues, there is a need for someone with legal authority to protect him from exploitation, and assist him to manage his limited income. It is therefore in his best interests to appoint a financial manager.

Who should be appointed as financial manager?

13. 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 s 4 of the Guardianship Act.

14. 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.

15. TFL was proposed as XZL’s financial manager. It was also agreed that SAL should be considered to act jointly and severally with TFL. They each indicated an awareness of the accountability responsibilities to the NSW Trustee and Guardian, and were willing and confident of their ability to comply. They each told the Tribunal that they had never been declared bankrupt nor convicted of any offences of dishonesty. There is no intermingling of their financial affairs with that of XZL which might cause any conflict of interest. The appointment of both TFL and SAL was welcomed by XZL himself.

16. The Tribunal was satisfied that both TFL and SAL were suitable persons to be appointed as financial manager for XZL 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: 03 May 2022