ZOF

[2019] NSWCATGD 32

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ZOF [2019] NSWCATGD 32

Hearing dates:

3 October 2019

Date of orders:

3 October 2019

Decision date:

03 October 2019

Jurisdiction:

Guardianship Division

Before:

A D Suthers, Principal Member
A M Matheson, Senior Member (Professional)
J L Newman, General Member (Community)

Decision:

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

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

3. The following specified part of the estate is excluded from this financial management order: ZOF’s Centrelink income.

Catchwords:

FINANCIAL MANAGEMENT – application for a financial management order – whether the subject person is incapable of managing their financial affairs – subject person with schizophrenia - Aboriginal subject person – Stolen Generations – recipient of Stolen Generations Reparations Scheme – management of large lump sum – previous lump sum used largely for the benefit of family and friends – evidence of subject person’s ability to manage his financial affairs – limited understanding of finances and expenses – limited understanding of consequences of decisions – vulnerability to exploitation - no private person available to be appointed – NSW Trustee and Guardian appointed – order made – order excluding Centrelink income.

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s 10 in Sch 6

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

Category:

Principal judgment

Parties:

001: Financial Management Application

ZOF (the person)
ZOG (applicant)
ZOH (carer)
NSW Trustee and Guardian

Representation:

Solicitors: A Rolfe for ZOF

File Number(s):

NCAT 2019/00053486

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 orders as set out above.

Summary

2. ZOF is a member of the stolen generation. He was taken from his mother at the age of three months and has lived with the trauma and disadvantage that action brought upon him for the last 59 years.

3. In 2018, he was awarded $75,000 as an ex-gratia payment under the Stolen Generations Reparations Scheme (“the Scheme”). That money is gone. It was largely given to, or spent buying gifts for, family and friends. ZOF has nothing to show, in a material sense, for the use of that money, but no apparent regrets.

4. ZOF is due to receive a second payment under the Scheme, larger than the first. Some members of his family think he has been exploited and that the next payment should be managed on his behalf. Others disagree, and say the money given by ZOF to them and others is simply a reflection of ZOF’s Aboriginal heritage and culture. ZOF says an order should not be made and that it would “take away his identity.”

5. In every decision the Tribunal makes it must consider the principles set out in s 4 of the Guardianship Act 1987 (NSW) (“the Act”).

6. While we must always consider ZOF’s welfare and interests paramount, we are also bound to consider and weigh against each other, amongst the other considerations in s 4 of the Act:

1. the importance of preserving ZOF’s family relationships and cultural environment;

2. that his freedom of action and decision making should be restricted as little as possible;

3. that he should be encouraged, as far as possible to live a normal life in the community;

4. that he should be encouraged, as far as possible, to be self-reliant in matters relating to his financial affairs; and

5. that he should be protected from neglect, abuse and exploitation.

7. The hearing was conducted on Wiradjuri land and we had the advantage of a member of that community sitting as a member of the Tribunal.

8. There is no place for unrestrained paternalism, or the perpetuation of it, in the Tribunal’s decision making. Nor may we shirk the need to proactively protect ZOF from exploitation or financial disadvantage if we are satisfied that has occurred or that there is a real risk that it will occur.

9. We made a financial management order for the reasons which follow.

Background

10. ZOF lives in regional NSW with his Aunty and carer, ZOH.

11. ZOF’s maternal cousin, ZOG, has submitted an application for a financial management order for ZOF, seeking the appointment of the NSW Trustee and Guardian.

12. In her application, ZOG reports that ZOF has a mental health diagnosis of Schizophrenia.

13. The Tribunal received an application seeking leave for ZOF to be legally represented in the proceedings, submitted by Mr Andrew Rolfe solicitor.

14. Leave was granted for ZOF to be legally represented.

15. ZOG’s application alleged concerns regarding ZOF being financially exploited by people in the community. ZOG stated that ZOF had received a payout of $75,000 in late 2018, but had nothing remaining and nothing to show for those monies. ZOG indicated that there was a further lump sum payment due to ZOF and was concerned that this money may not be used for the benefit of ZOF.

16. ZOG alleged that Ms Z, ZOF’s cousin and Ms Z’s sister, Ms V, were involved in ZOF’s financial exploitation.

17. On 10 April 2019, the Tribunal made an interim financial management order appointing the NSW Trustee and Guardian and excluding ZOF’s pension income from management.

18. The Tribunal also made directions for documents outlining ZOF’s capacity to manage his financial affairs, including an assessment by a suitably qualified independent health professional, to be submitted to the Tribunal.

19. Subsequently, ZOG advised the Tribunal that she no longer wished to be involved in the matter and would withdraw the application. She said that this was because bringing the application had “impacted [her] & [her] family with the false accusations” and “[ZOF] knows myself and my family did not ask him for anything nor had any intention to…” The Tribunal requested that she nominate a substitute applicant but she did not do so.

20. Ms Z’s position was that she was instrumental in assisting ZOF to receive the first payment referred to by ZOG. She did not think an order should be made.

The Hearing

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

22. ZOF raised three issues of concern to him at the outset of the hearing, which remained of concern to him throughout, as follows:

1. That there was no longer an applicant, so the application could not proceed – When an applicant in the Tribunal’s Guardianship Division indicates that they are unable or unwilling to proceed with or appear in relation to their application, it is common for the Tribunal to ask them to nominate a substitute applicant. Doing so ensures that there will be some evidence upon which the Tribunal can base its decision and that the process will not be rendered futile due to a lack of information upon which the Tribunal may act. It is not, however, a requirement, statutory or otherwise, that there be an involved applicant for the hearing to proceed. Rather, the Tribunal follows this protocol as a matter of practice to ensure the most efficient use of its resources.

2. That ZOG asked to withdraw the application, and so the application should not proceed – Unlike in other Divisions of the Tribunal, an application to the Guardianship Division requires the leave of the Tribunal before it can be withdrawn: s 10 in Sch 6 of the Civil and Administrative Tribunal Act 2013 (NSW). This is reflective of the requirement placed on the Tribunal to act with the welfare and interests of the person about whom the application has been brought as its paramount consideration and what is commonly described as the protective nature of the Division’s jurisdiction. On that basis, once an application has been made, the Tribunal must be satisfied that allowing it to be withdrawn is the decision most likely to promote ZOF’s welfare and interests. As we explained to ZOF, we were not satisfied that we should allow the withdrawal of the application without hearing from the parties and witnesses at the hearing, given the allegations that he had been exploited. In the end, for the reasons below, we decided the Application should not be withdrawn; and

3. That he was dissatisfied that the Tribunal today was made up of different members than the Tribunal which made the interim financial management order – As we explained to ZOF, whilst he might have preferred not to have to tell his story to new members of the Tribunal who did not know what he had said previously (except to the extent that it was recorded in the earlier reasons) it did ensure that his application was being considered afresh, and that our perceptions of the evidence would not be tainted by what occurred at the hearing when the interim financial management order was made.

What did the Tribunal have to decide?

23. Every person who is the subject of an application is presumed to have capacity to make their own decisions, until the Tribunal receives sufficient evidence to rebut that presumption.

24. The threshold issue for the Tribunal, once an application has been properly made, is whether the person who is the subject of the application is incapable of managing their finances.

25. Even if this threshold issue is established, the Tribunal has discretion about whether to make orders and what kind of orders to make. The Tribunal considers all relevant factors. The welfare and interests of ZOF are the Tribunal’s paramount consideration.

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

• Is ZOF incapable of managing his affairs? Evidence of how the person is actually managing their affairs is relevant. The Tribunal assesses the actual circumstances of the person including the support available to them and their ability, with that support, to make sound financial decisions.

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

27. A person is not shown to be incapable of managing their financial affairs unless they are incapable of dealing, in a reasonably competent fashion, with their affairs and because of that lack of competence there is a real risk that either they may be disadvantaged in the conduct of such affairs or their money or property may be dissipated or lost.

28. ZOF acknowledges that he has a diagnosis of Schizophrenia. We did not, however, have any comprehensive evidence detailing how he is affected by that illness.

29. In a report ZOF filed in the Tribunal from Mr X, psychologist, it is noted that ZOF receives a fortnightly depot anti-psychotic injection and that he is usually but not always compliant with this. It was also noted that ZOF uses Marijuana.

30. Mr X’s report was the only professional evidence we had before us that assisted in relation to ZOF’s ability to manage his financial affairs. The report notes that it was based on a letter of instruction from Mr Rolfe, which was not before us, an interview with ZOF and material before the Tribunal on the first occasion.

31. Significantly, Mr X’s report, when referring to ZOF, indicated the following:

1. He has reconnected with some members of his family after childhood separation and identifies strongly that these relationships are very important to him.

2. [His] [a]ffect was appropriate, even, unrestricted and of normal intensity. Congruent with stated mood. Thought process observed was logical, relevant and with appropriate organisation. Nil reports of hallucinations at the time of the interview. [He] [d]enied suicidal and homicidal thought. Reasonable insight into present circumstances identified by ZOF. No concerns identified with attention span. ZOF reported having a poor memory particularly in relation to anterograde memory with some historical recall present. ZOF demonstrated some insight into his mental health needs identifying that he was diagnosed with Schizophrenia and required a regular needle. He was able to articulate that when he doesn’t have the needle sometimes he hears voices and has trouble. ZOF also identified a positive relationship with mental health support services and his general practitioner. In addition to his prescribed medication ZOF identified that he was also regularly using cannabis at a low level of consumption (approx. 10g/week).

3. ZOF completed a cognitive examination using the Test of Non-Verbal Intelligence (4th Edition). Given his non-standard education and literacy issues a non-verbal measure of intelligence or similar tests that do not require a high level of culture specific information or reading abilities is most appropriate. ZOF demonstrated results that provided an Index Score of 82 on the TONI-4 which places him on the 12th Percentile Rank and in the ‘Below Average’ category.

4. ZOF also completed the Hayes Ability Screening Index which is utilised as a screening tool for cognitive impairment and utilises some neuropsychological tests including the trail making test and clock drawing test. In some areas of the examination ZOF was able to perform well for example spelling words backwards, however, in tasks requiring the combination of visuo-spatial skills, processing speed and visual processing a clear delay was observed. Particular cognitive problems were identified with tasks such as the Trail Making Test. ZOF was not able to complete the task: violating the rules of the task and required an extreme amount of time to complete it. The nature of his performance indicated significant impairment in cognitive processing speed, visual scanning and organisation tasks. His initial attempt at the clock drawing task evidenced similar patterns to individuals with severe cognitive deficits particularly in relation to visuo-spatial coordination.

5. ZOF identified that he has been looking after his own money for his adult life. He was able to approximate the change from small regular transactions although he could not calculate the exact change. ZOF was able to identify broad goals such as buying or renting a home as well as specifics such as wanting to provide accommodation and support to his ailing brother. He was also able to identify some appropriate accommodations that would be required for his brother. ZOF was able to identify approximate costs for renting although appeared to have no understanding of more complex matters such as how interest works. ZOF was able to identify some of his expenses and current budget, however, appeared to have a limited understanding of the details. He was able to identify specific things that were required such as paying power bills and similar items.

6. ZOF was able to identify poor choices that he had made distinct from choices that that others identify as poor but he was able to identify a rationale for. An example of this is that he bought his Aunty a lawnmower. He was aware of finite funds and made a decision based on his own consequence and risk analysis – he determined that he wanted to support his family friends. He was able to identify some relationships with others that he did not want to provide support to as he doesn’t like that person and had reasonable strategies for avoiding providing things to that individual.

7. At the time of the assessment, ZOF was taking medication as prescribed by his treating general practitioner for the management of Schizophrenia. He was lucid, broadly orientated to time and place and with understanding of the purpose of his interview. He presents as an Aboriginal man with a substantial concern regarding those in authority and resentment when people attempt to control his actions. At the time of his interview no positive or negative symptoms of Schizophrenia were evident (hallucinations or catatonia) and his thought process was logical in format although a poverty of thought, processing speed and insight were present consistent with a comorbid mild intellectual disability.

8. A semi-structured interview was conducted with ZOF in order to answer the questions identified in the NSW Capacity Toolkit (2008) specifically:

1. Can the person understand the facts of a decision?

2. Can the person understand the main choices?

3. Can the person weigh up the consequences?

4. Can the person understand how consequences affect    them?

5. Can the person communicate their decision?

32. Mr X went on to express the opinion that, in considering these criteria:

1. ZOF was able to demonstrate an ability to understand the facts of a decision. He demonstrated some awareness of this with examples of medical choices, housing requirements and decisions about spending money or not spending money. He displayed limited insight into second and third degree facts associated with a decision for example he was able to identify that not getting his ‘needle’ makes him unwell but not that cannabis may influence the efficacy of that medication.

2. He was able to understand the main choices to a limited extent. For example, he was able to understand the differences between purchasing a home and renting a home; attending medical appointments or not attending appointments. The breadth of choices that he was aware of in making a decision is limited but present.

3. ZOF was able to understand first order consequences to his decisions for example if money is spent on family it will not be present for buying furniture. More detailed understanding of consequences was limited, however, he was able to demonstrate the ability to evaluate the consequences of each choice to a limited extent.

4. ZOF was able to demonstrate a limited understanding of how the consequences of his decisions will impact him. I am of the opinion that this understanding of consequences is limited in scope particularly over time, however immediate consequences were understood.

33. Despite the foregoing, Mr X went on to state that:

I am of the opinion that neither a Guardianship order nor a Financial Management order is required. [ZOF] appears able to make informed decisions albeit with a limited scope and his own priorities. He was able to identify that he had previously spent large amounts of money on family – however only on specific members of his family that he chose and because he is of the belief that supporting them was a reasonable choice and in retrospect is content with those choices. It is possible that [ZOF]’s Schizophrenia symptoms may increase and should that occur his capacity to make decisions would be severely impacted. However, whilst he remains compliant with medication and his management regime is efficacious, symptom change cannot be predicted reliably.

34. There is always the potential, where a witness with particular qualifications expresses an opinion by reference to a legal test as it applies to the facts of the matter, that the opinion may be of limited assistance to the Tribunal. That is the case here.

35. It is not a question of Mr X’s familiarity with the test we need to apply, though his report references the Capacity Toolkit, rather than the broader tests we need to apply in accordance with s 25G of the Act. Nor does Mr X’s apparent conflation of the concepts of guardianship and financial management in relation to the application before us in relation to ZOF cause particular concern. It is simply that Mr X’s opinion must, necessarily, be based on the facts as he understood them from the material he was provided by Mr Rolfe and ZOF’s self-reporting. He did not have the advantage of hearing and considering the other evidence before the Tribunal and he cannot be an expert on the application of the law to the facts of this case, which is our role.

36. To give an example, it is not apparent that anything provided to Mr X or his questioning of ZOF indicated the size of the next lump sum payment due to ZOF, which we were told would be in the order of $100,000. Given that the focus of our consideration is on ZOF’s ability to manage his estate, the size and nature of it are particularly relevant considerations. ZOF did not know an appropriate amount of the next payment to him, despite the fact that Mr Rolfe was able to obtain it by telephoning the solicitors representing ZOF in that claim.

34. For those reasons, we accepted and considered the evidence of Mr X, including the results of his testing of ZOF referred to in [32] above, but were unable to give any weight to his view on the ultimate issues for consideration by us.

35. Given the deficits referred to by Mr X in relation to ZOF’s ability to fully understand and evaluate the consequences of his choices, we spent much of the hearing giving ZOF the ability to demonstrate that he is capable of managing his financial affairs. We excluded from our consideration of this issue whether ZOF’s decisions to spend the first reparation payment he received on others was ‘culturally appropriate’ or could be considered ‘objectively sound’ as we had conflicting evidence from members of his family about these issues and no independent expert evidence to assist us.

36. Instead, we focussed squarely on whether ZOF could demonstrate an understanding of the decisions he made, in the context he made them, and the consequences of those decisions.

37. We should note that ZOF objected to being questioned about these issues, despite our explanation of the purpose of the questions and him being represented by a solicitor. It was difficult, on that basis, to draw a bright line between ZOF’s reluctance to participate in the process and whether his unwillingness to do so could in itself, indicate an inability to understand his financial affairs or, more particularly, be a strategy used by him to retreat into indignation at being questioned when he felt threatened by his inability to recall or explain his actions.

38. In the end, despite his reluctance, we were satisfied that ZOF participated sufficiently for us to gain an appropriate understanding of his ability to manage his financial affairs, which was enough for us to be satisfied that he is unable to do so in the context of receiving another significant lump sum reparation payment. We based our conclusions on the testing undertaken by Mr X, together with the following, which we took from ZOF’s own evidence:

1. ZOF was able to tell us a reasonable, and likely correct, approximation of his Centrelink income but was unable to give a thorough explanation of his expenses that he pays from it or comprehend the disparity in his income over expenses that we calculated for him based on his evidence. In terms of his recurring expenses, ZOF could only nominate the rent he pays ($150 p/f), tobacco ($50p/f) and the occasional clothing purchase, which he accepted could be averaged out at about $20 per fortnight. He was unable to add those three figures, acknowledging that he is “not good at maths.” He was also unable to recognise the disparity between that expenditure and his self-reported income of $700 per fortnight or recognise that, if his recall was correct, he should have a healthy surplus of income amassing, which is not the case. When pressed on this issue, he said he sometimes also has to repay loans from family and friends but did not appear to recognise that this should be a zero sum exercise overall or question why he would need loans if he had such a significant excess of income over expenditure. Ms Z told us after this exchange that ZOF had forgotten other expenses, such as his meals on wheels, as he was stressed at the hearing. Acknowledging that stress, and taking ZOF’s evidence at its highest in allowance for it, it was still apparent that he had a limited ability to understand and explain his recurrent expenses or, at least, recognise when his oversights made his evidence incongruous and reflect on that accordingly.

2. ZOF was only able to explain how he had spent a small portion of the last reparation payment he received, totalling no more than $25,000. He was very defensive when pressed about how or where the balance of the money was spent. Again, we considered this evidence in light of ZOF’s clear resentment of the Tribunal’s involvement in his life. We made allowance for the fact that ZOF’s perception of his right to privacy may have been a significant factor in his reluctance to provide the information but could not be satisfied that this provided a complete or satisfactory explanation, given that he was willing to discuss some examples of what he had spent on, or given to, members of his family. We were left with the overriding impression that ZOF could not provide a more detailed understanding of how his monies were spent, particularly in circumstances where he had legal advice leading up to and at the hearing. We could not infer that he was caught by surprise in having to consider these issues or in being asked to recount the position to us.

3. The way ZOF had expended some of the money was also indicative of him not fully considering the consequences of his actions from a financial perspective. For example, one gift he made to a family member was of a European car, purchased for the sum of $2000. Leaving the decision to make the gift out of our considerations, we were nonetheless concerned by ZOF’s evidence that he decided to purchase the vehicle without any form of mechanical or other check and without him or anyone else even driving the vehicle to test it before he bought it. The potential consequence of this decision, in terms of ZOF risking buying a vehicle that may be expensive to repair without taking even the simplest of steps to protect himself, or the recipient of the gift, from that risk indicated to us that, consistent with Mr X’s evidence, ZOF is unable to consider the non-immediate consequences of his decisions.

42. We were satisfied that ZOF is incapable of managing his financial affairs.

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

43. ZOF will soon receive another significant lump sum reparation payment and has demonstrated an inability to manage such a significant lump sum in a way which is fully understood by him. Those who have supported him informally to date are in dispute about whether that support has led to him being financially exploited. We were satisfied that there is a need to appoint someone to manage ZOF’s affairs and it is in his best interests that an order be made.

Should we exclude any part of ZOF’s estate from the financial management order to be made?

44. ZOF has managed his income from Centrelink throughout his life. There was no suggestion that he was at risk of exploitation before he received a lump sum through the reparation scheme. It is also important to ZOF’s sense of identity that he manages his finances to the greatest extent possible, commensurate with our decision to make an order. We were satisfied that ZOF’s Centrelink income should be excluded from the order to be made.

Who should be appointed financial manager?

45. When 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. Preference is given to the appointment of a suitable person where that is appropriate, before the appointment of the NSW Trustee and Guardian.

46. We gave ZOF the opportunity to consider whether he would prefer the appointment of a private person over the appointment of the NSW Trustee and Guardian, if we reached that stage in our considerations. He did not say he would. Nor was that position urged upon us in submissions by Mr Rolfe.

47. Further, whilst no one proposed themselves as a private manager, there was clear hostility at the hearing between various members of ZOF’s family over allegations about who had benefitted unfairly, or disproportionately, from ZOF’s generosity. It is highly likely that this conflict will escalate on the arrival of ZOF’s second reparation payment. On this point, we carefully weighed our responsibility to protect ZOF against the perceived paternalism described in [8] of these reasons. Having done so, noting ZOF’s attachment to each of the members of his family, we were satisfied that the appointment of any of them was unlikely to best promote his welfare and interests or maintain his existing family relationships, which is one of the principles we are to uphold, as noted in [6] above.

48. Whilst Ms Z is a staunch advocate for ZOF, and has assisted him in obtaining his reparation payment to date, she does not accept that he is unable to manage his financial affairs. On that basis alone, her appointment would be unlikely to promote the objects set out in s 4 of the Act as she would not be appropriately attuned to the need to protect ZOF from exploitation or be likely to appropriately engage with the oversight of the NSW Trustee and Guardian.

49. There was no suitable person available or proposed to be appointed as financial manager.

50. We were satisfied that the estate of ZOF, with the exception of his Centrelink income, should be committed 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

Decision last updated: 20 August 2020