Guardianship Division Case Digest Issue 1 of 2024
The Guardianship Division Case Digest provides a summary of relevant and interesting case law of significance to the work of NCAT's Guardianship Division.
This issue features case summaries of decisions from the Guardianship Division, NCAT Appeal Panel, and Supreme Court of New South Wales. | | NCAT Guardianship Division | OND [2024] NSWCATGD 5 D Jay, Senior Member (Legal), Dr M A Martin, Senior Member (Professional), K Laurence, General Member (Community) – 19 March 2024
In sum: The Tribunal dismissed an application for a financial management order. The Tribunal found that there was no need to appoint a financial manager to manage the Subject Person’s affairs because she had made an enduring power of attorney which was operating in her best interests.
Facts: The Subject Person (OND) is 93 years old. She has one son, TND (the Son), and five grandchildren. Her husband passed away in 2019. OND lives in privately rented accommodation with two full time carers.
In November 2020, OND executed an Enduring Power of Attorney appointing three of her grandchildren as her joint and several attorneys (the EPOA). The attorneys did not act in reliance on the EPOA until January 2023. OND owns substantial assets. In July 2023, her home in Sydney’s lower north shore (property AB) was sold by the attorneys for $18,500,000.
In October 2023, the Son submitted an application to appoint a financial manager due to concerns that property AB was sold at an undervalue. The Son also contended that the attorneys “appear unable” to account for $270,000 of OND’s money and that “a series of issues or anomalies” exist which, in their totality, support the appointment of a financial manager.
Issues and outcome: (i) The Tribunal was satisfied that it could exercise the discretion to make a financial management order having found that OND is incapable of managing her affairs: see s 25G of the Guardianship Act 1987 (NSW). The Tribunal received medical evidence stating that OND has been diagnosed with Alzheimer’s Dementia of advanced severity and has non-cognitive impairments including ischaemic heart disease, reflux and incontinence. OND’s General Practitioner was of the opinion that OND is not capable of managing her affairs. In a report dated 5 October 2022, OND’s Geriatrician noted that the EPOA should be activated ([7]-[15]).
(ii) In deciding whether it would be in OND’s best interests to make a financial management order, the Tribunal considered the actions of the attorneys in managing her affairs. In relation to property AB, the Tribunal considered that the attorneys acted reasonably on the advice from the real estate agent retained in selling the property off market. The Tribunal noted that a property that is offered for a sale price guide of $18,000,000 will have a reasonably small class of buyers, and that in these circumstances it is reasonable to rely on the advice of the real estate agent to approach known persons who had funds sufficient to pay that amount and who were known to be interested purchasers in the area ([25], [42]).
(iii) The Tribunal found that there was a lack of evidence to support the Son’s contention that the attorneys had failed to account for $270,000 of OND’s money. The Tribunal noted that this figure is based on the Son’s “best guess” as to what OND’s assets were in October 2019. The Son then compared the total estimated receipts with the total estimated expenditure during that time. However, he did not submit evidence of all receipts and expenditure relied upon. The Tribunal raised several concerns with that figure, including that it assumes that there were no significant expenses between October 2019 and November 2023, that the expenses the Son had included in that figure were consistent over the course of the four years, and that OND did not indulge in personal discretionary spending. The Tribunal stated that there is no obligation on the attorneys to “explain a shortfall”, especially when the shortfall is based on a mixture of speculation and extrapolation. In addition, the Tribunal found that the investment of OND’s funds by the attorneys in a managed investment scheme does not represent an “anomaly” and is consistent with OND’s conservative approach to finance ([30]-[34], [36], [37], [39]-[41], [46]).
(iv) The evidence indicated that OND was able to make decisions regarding her finances prior to October 2022. The Tribunal accepted that the attorneys did not act in reliance on the EPOA until January 2023, and that prior to that date, OND’s expenditure was largely a matter for her discretion. In circumstances where OND had made a decision to appoint her three grandchildren as her attorneys and where the attorneys have acted diligently and in accordance with their obligations to OND, the Tribunal was not satisfied that there is a need to appoint a financial manager to manage OND’s affairs, or that it is in OND’s best interests for the Tribunal to make a financial management order ([35], [47]-[48]). | QZH [2023] NSWCATGD 21 A R Boxall, Senior Member (Legal), Dr I L Beale, Senior Member (Professional), F N Given, General Member (Community) – 25 October 2023
In sum: The Tribunal decided to make guardianship and financial management orders in circumstances where existing enduring power of attorney and enduring guardianship appointments were not operating in the Subject Person’s interests.
Facts: The Subject Person (the Father) is 89 years old and has been diagnosed with dementia. He lives with his spouse (the Mother) in a house owned by their son, KAH. The Father and the Mother share the house with their other son, OYH, while his own property is being rebuilt.
On 20 November 2020, the Father executed an enduring power of attorney appointing OYH as his attorney, and two of his grandsons as substitute attorneys (the EPA). The Father also executed an instrument of enduring guardianship appointing OYH as his enduring guardian, and his grandsons as substitute enduring guardians (the EGA). The Mother executed corresponding instruments, also appointing OYH as her attorney and enduring guardian.
KAH made applications to the Tribunal for a guardian and financial manager to be appointed for the Father and the Mother. Both cases were heard together. KAH raised concerns that whilst OYH is appointed as their parents’ enduring guardian, he in fact does little to assist in making appropriate care and lifestyle decisions, with the result that they live in sub-optimal conditions. KAH also raised concerns that neither parent receives support from service providers, and that OYH is unwilling to share information about their parents’ medical and other care needs. In addition, KAH raised concerns about the risk of exploitation of his parents and their vulnerability to financial abuse. In particular, KAH contended that the money from the sale of his parents’ property has primarily been used to fund the building works for OYH’s property, where the couple will move with KAH on completion and where they will be cared for by him.
Issues and outcome: (i) The Tribunal was satisfied that it should make a guardianship order for the Father because decisions were not being made by OYH in his parents’ best interests. The Tribunal noted that OYH’s primary focus for his parents was for them to move with him to his new house when works are completed in the expectation that this move will resolve any issues about their care and accommodation. In the meantime, he was entirely accepting of their living in sub-optimal physical conditions, with little apparent idea as to how long these temporary arrangements were likely to persist. In addition, OYH was not open to considering alternative accommodation options that might offer the couple better care and accommodation pending completion of the works. Further, the Tribunal found that OYH showed little appreciation of, or engagement with, his parents’ health care and medical needs ([27]-[28]).
(ii) The Tribunal decided to appoint the Public Guardian as the Father’s guardian. Although OYH proposed himself, with the assistance of his wife, as guardian for the Father, the Tribunal was not satisfied that OYH or his wife were suitable to be appointed. The Tribunal noted that the “negative dynamic” and “animosity” between the brothers would influence OYH’s decision making, with the risk of further disruption in family relationships for the parents ([29]-[30]).
(iii) The Tribunal was satisfied that it should make a financial management order for the Father. The Tribunal accepted that it is neither unusual nor inappropriate for parents who wish to do so to assist their adult children financially in acquiring or improving real property. However, the Tribunal raised concerns that OYH appears to have acted outside his authority as attorney for the Father. Neither the EPA nor the corresponding instrument executed by the Mother, contain any provision that expressly provides for OYH to grant benefits for himself from the estates of the parents. The Tribunal noted that the financial position of the parents is put at risk whether the transactions are characterised as “gifts” or “loans” to OYH as their assets have been depleted for no apparent benefit to themselves other than an assumption that they will eventually move to OYH’s house once it is completed ([42]-[46]).
(iv) The Tribunal decided to commit the management of the Father’s estate to the NSW Trustee and Guardian. The Tribunal found that due to the hostility between the brothers, the Father’s interests were better served by the appointment of an independent financial manager. The making of a financial management order suspends the EPA ([49]-[51]). | ZCT [2024] NSWCATGD 4 S Pinto, Senior Member (Legal) – 15 March 2024
In sum: The Tribunal reviewed a guardianship order and decided that a further guardianship order is needed due to allegations that the Subject Person has been exploited by a National Disability Insurance Scheme (NDIS) provider and her family members for financial gain.
Facts: The Subject Person (ZCT) is 24 years old and has been diagnosed with schizophrenia. ZCT is a participant in the NDIS. In 2021, the Tribunal made a guardianship order appointing the Public Guardian to make decisions for ZCT in relation to her accommodation, services, health care, legal services, and medical and dental treatment. The Tribunal also made a financial management order committing the management of ZCT’s estate to the NSW Trustee and Guardian. The guardianship order was most recently reviewed in February 2024, and the Public Guardian reappointed with the function of services only, as the Public Guardian submitted that ZCT has made all her own decisions about her accommodation, health care and medical services.
In March 2024, ZCT’s support coordinator (the applicant) made an urgent request to the Tribunal to review the guardianship order made in February 2024. The applicant raised concerns that ZCT’s family is misusing her NDIS funds, with approximately $100,000 used in a relatively short period. It was alleged that ZCT’s family had engaged with an NDIS service provider, and that the director of the service provider (the director) is intending to marry ZCT. It was also alleged that ZCT has disclosed that she has been involved in sexual encounters with this man, and that he had booked hotels rooms for ZCT and paid her family money. In addition, the applicant stated that ZCT’s family does not allow her to speak on the phone or leave the family’s home without permission. The applicant requested that the February 2024 guardianship order be varied to include additional functions to address these concerns.
Issues and outcome: (i) The Tribunal noted that concerns regarding ZCT’s family are not new and have been raised consistently at reviews before the Tribunal since the guardianship orders were first made in 2021. For example, there have been AVOs in place against ZCT’s family and involvement with the police. The Tribunal has also noted in financial management orders that ZCT’s family has pressured her for money and concerns have been raised regarding their financial motivations. Having regard to the past and current concerns regarding ZCT’s circumstances and vulnerability from her family and others, the Tribunal considered that there was sufficient evidence to warrant a review of the guardianship order and a variation of the functions to ensure that ZCT is not vulnerable to neglect, abuse or exploitation ([37], [38], [44]).
(ii) The Tribunal held that the guardianship order should be varied to include an access function, to enable the Public Guardian to consider whether access should be restricted to ZCT by the service provider and ZCT’s family members should they be involved in exploitation of ZCT for financial gain. The Tribunal also held that there is a need for an accommodation function because ZCT is vulnerable and at risk of harm, having in the past been homeless and living in hotels in Western Sydney. The Tribunal considered that the Public Guardian should also have the power to authorise others to enable ZCT to be removed from a situation where she is at risk, and, to deter unscrupulous NDIS providers from organising unsuitable accommodation. Further, the Tribunal considered that a services function and a legal services function were necessary to enable further investigation and possible legal action into the involvement of the service provider ([39]-[41]).
(iii) The Tribunal included the functions of passport and travel restrictions in the guardianship order due to suggestions that there is a proposal that ZCT should marry the director. The Tribunal accepted that ZCT has been removed from Australia and taken to Libya in the past, and that her situation in Libya may have been exploitative ([42]).
(iv) The Tribunal decided to reappoint the Public Guardian, noting that members of ZCT’s family have previously been found not to be suitable for appointment as guardians or financial managers. Due to the limited evidence regarding the allegations, the Tribunal decided to make the order reviewable in five months ([45]-[47]). | KXE [2024] NSWCATGD 1 B M Shipp, Senior Member (Legal), Dr J Law, Senior Member (Professional), P J McGirr, General Member (Community) – 2 February 2024
In sum: The Tribunal decided to conduct an own motion review of an enduring guardianship appointment and varied the appointment to authorise the enduring guardians to consent to the use of restrictive practices.
Facts: KXE is an 88-year-old woman with moderate dementia. She is a permanent resident of an aged care facility (the ACF). In August 2023, KXE made an Appointment of Enduring Guardian (the 2023 EG) appointing her son and granddaughter as her enduring guardians jointly and severally. The appointment authorised the enduring guardians to make decisions about KXE’s accommodation, health care, services, and medical and dental treatment. It did not authorise the enduring guardians to consent to the use of restrictive practices.
In October 2023, the Care Manager of the ACF applied to the Tribunal for the appointment of a guardian to make decisions about the use of restrictive practices. It was submitted that KXE resides in a secure unit requiring the use of a keypad with a code to access other parts of the facility. Due to KXE’s impaired cognition, she cannot operate the keypad and cannot freely come and go from the unit or from the facility. The application was supported by a report from KXE’s geriatrician who noted that KXE has a history of moderate dementia which is said to be complicated with wandering behaviour. The geriatrician concluded that KXE does not have capacity to make decisions about environmental, physical or chemical restraints.
Issues and outcome: (i) Section 6J of the Guardianship Act 1987 (NSW) (‘the Act’) gives the Tribunal power to review the appointment of an enduring guardian either on the request of a person who has a genuine concern for the welfare of the appointer, or on its own motion. No application had been made for review of the 2023 EG. However, the Tribunal decided to exercise its discretion to review the appointment because (1) the appointment was made only six months before, (2) the appointment appears to have been validly made, (3) it was satisfied that KXE is “a person in need of a guardian”, (4) the enduring guardians have assumed that they are making decisions under the authority of the 2023 EG, and (5) choosing to vary the 2023 EG would give effect to KXE’s will and preferences by preserving KXE’s decision to appoint her son and granddaughter as her enduring guardians, to the extent possible, without compromising her welfare and interests ([12]-[13]).
(ii) On reviewing an enduring guardianship appointment, the Tribunal may make any orders under s 6K of the Act. This includes confirming the appointment of an enduring guardian, with or without varying the functions of the enduring guardian: s 6K(1)(b). The focus of the review was whether the Tribunal should vary the functions of the 2023 EG to include a restrictive practices function ([15]-[17]). The Tribunal was satisfied that the use of a coded keypad to prevent KXE from freely entering or exiting the facility amounts to an environmental restraint requiring the consent of a ‘restrictive practices substitute decision-maker’ (see SZH [2020] NSWCATGD 28) ([28]-[32]).
(iii) In SKN [2024] NSWCATDGD 16, the Tribunal held that the following considerations are relevant to whether or not an enduring guardian should be given a restrictive practices function ([34]):
whether the enduring guardians have and are likely to continue to be able and willing to discharge the functions conferred under the appointment in a manner consistent with the s 4 principles of the Act. Among other things, those principles require that paramount consideration be given to the welfare and interest of the appointor: the Act, s 4(a);
whether the enduring guardians are suitable people to exercise a restrictive practice function for the appointor; and
whether it would better give effect to the s 4 principles of the Act to make a guardianship order and to appoint the enduring guardians as guardians for the appointor.
(iv) Having regard to the above considerations, the Tribunal was satisfied that the 2023 EG should be varied to add a restrictive practice function. The Tribunal noted that both the son and the granddaughter consented to a change in their authority as enduring guardians to make decisions about the use of the environmental restraint. The Tribunal was satisfied that the enduring guardians would bring a critical mind to the use of an environmental restraint, including that the focus be on the prevention of harm to KXE and that its use be included in a Behaviour Support Plan ([36]).
(v) The application for the appointment of a guardian was dismissed. The Tribunal noted that there was no reason to make a guardianship order as doing so would not provide the enduring guardians with greater authority than they have as enduring guardians, and would involve further reviews by the Tribunal in circumstances where this would not be necessary to protect KXE’s welfare and interests ([14],[37]). | EKC [2024] NSWCATGD 6 E M Connor, Senior Member (Legal) – 13 May 2024
In sum: The Tribunal made an order awarding costs in favour of the Subject Person, under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (‘NCAT Act’). The Tribunal found that there were special circumstances which warranted an award of costs because the applicants had conducted the proceedings in a way which unnecessarily disadvantaged the Subject Person.
Facts: The Subject Person (EKC) is 92 years old. He has one son (the Son) and three grandchildren (the applicants). In August 2023, the applicants lodged applications for the appointment of a guardian and financial manager for EKC due to concerns that EKC was taken from his home by the Son in October 2022, isolated from other family and friends, and may have been subject to financial exploitation.
The Tribunal gave leave to EKC and the applicants to be legally represented. In addition, the Tribunal gave the applicants leave for summonses to be issued to three medical practitioners requiring them to produce records relating to EKC’s decision-making capacity. In late October 2023, the Tribunal gave all parties access to the medical records produced in answer to the summonses. Those records indicated that EKC did not lack cognitive capacity.
On 25 October 2023, the Tribunal was informed that EKC’s solicitors had engaged counsel to represent him at the hearing scheduled for 4 December 2023.
On 16 November 2023, EKC’s solicitor informed the applicants of the existence of the enduring power of attorney and the enduring guardianship instruments made by EKC on 14 November 2022, appointing the Son as his enduring guardian and attorney. The appointments were made following an assessment of a geriatrician that EKC had the requisite capacity to make the appointments. EKC’s solicitor asked the applicants whether, in those circumstances, they intended to amend their application. The applicants did not respond.
On 1 December 2023, the applicants lodged a request to withdraw both guardianship and financial management applications. On 4 December 2023, the Tribunal consented to the withdrawal and dismissed the applications. EKC’s solicitors lodged an application seeking an order for costs against the applicants.
Issues and outcome: (i) The starting point in s 60(1) of the NCAT Act is that each party is to pay its own costs. Despite this rule, s 60(2) of that Act gives the Tribunal discretion to award costs where it is satisfied that there are “special circumstances” that warrant an award of costs. In Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60], Santow JA observed that: ‘[I]t suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional.’ In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the factors listed in s 60(3) of the NCAT Act.
(ii) The Tribunal accepted that it was not ‘out of the ordinary’ for the applicants to lodge the guardianship and financial management applications out of genuine concern for the wellbeing of their grandfather. However, the Tribunal was satisfied that it is ‘out of the ordinary’ for proceedings to continue to be prosecuted by a party who is legally represented, in the face of clear medical evidence that the Subject Person does not have a cognitive impairment that impacts on their ability to make important life decisions, or evidence that they are incapable of managing their affairs ([66]-[67]).
(iii) The Tribunal found that the applicants had prolonged unreasonably the time taken to complete the proceedings and that EKC was unnecessarily disadvantaged, in circumstances where it was clear that the applicants’ claims had no tenable basis in law and lacked substance. The Tribunal noted that had the applicants been concerned about the ongoing management of EKC’s affairs or his living situation, they could have lodged applications seeking review of the enduring power of attorney and enduring guardianship instruments but had not done so. This was despite the applicants being put on notice by EKC’s solicitor of the existence of those instruments and invited to review the basis of their applications ([71]-[73]).
(iv) The Tribunal noted that all the medical evidence about EKC’s capacity was available to the applicants by late October 2023 – at least two weeks before the applications were withdrawn. The Tribunal considered that this was adequate time for the applicants to review that evidence. Their failure to seek to withdraw their applications after being made aware that there was no evidence that EKC lacked capacity resulted in EKC incurring unnecessary costs ([78]-[79]). Having found that ‘special circumstances’ had been made out, the Tribunal ordered that the costs incurred by EKC after 16 November 2023 are to be paid to him by the applicants. The Tribunal considered that the costs of counsel for EKC should be included because EKC is an elderly man who did not initiate the proceedings and was entitled to engage the legal representatives of his choice to represent him ([80]-[81]). | | YHE v YHF [2024] NSWCATAP 95 A Britton, Deputy President, A R Boxall, Senior Member, M E Bolt, General Member – 29 May 2024
In sum: The Appeal Panel dismissed an appeal against the decision of the Tribunal to revoke the appointment of the appellant as financial manager. The Appeal Panel found no error in the Tribunal’s conclusions that it was in the best interests of the Subject Person for the appointment of the appellant to be revoked on the ground that he had breached his fiduciary duties by using funds from the estate of the Subject Person for his own financial benefit.
Facts: YHF (the Father) is 86 years old and has been diagnosed with dementia. In September 2022, the Tribunal made a financial management order appointing YHF’s son (the Son) as his financial manager (2022 FMO).
In September 2022, the NSW Trustee and Guardian (the NSW Trustee) gave the Son a document entitled “Directions and Authorities” which set out what the Son is authorised/not authorised to do as a financial manager. The NSW Trustee had directed the Son not, without its approval, to make a loan or gift from the Father’s estate, not to transfer any of the Father’s funds into an account in the name of another person, not to use the Father’s assets for the benefit of the manager, and not to claim remuneration from the estate.
In October 2022, the NSW Trustee applied for review of the financial management order and a change of manager because the Son had not submitted the Private Manager’s Plan due on 8 November 2022; and after he had been appointed as his father’s private financial manager, he had used the Father’s funds to reduce the mortgage on a property he owns in Randwick, giving rise to concerns that the Father’s estate may be at risk.
In May 2023, the Son made an application to the Tribunal requesting that the 2022 FMO be revoked. Following a hearing of the applications, the Tribunal decided not to revoke the FMO. However, the Tribunal decided to revoke the appointment of the Son as financial manager and committed the management of the Father’s estate to the NSW Trustee. Two findings were central to the Tribunal’s conclusion that it is not in the Father’s best interests for the Son to continue as financial manager – that the Son had breached his fiduciary duties owed to the Father, and that the Son had acted outside the authority conferred by the NSW Trustee.
The Son appealed from the decision of the Tribunal, contending that the Tribunal’s conclusion was illogical and irrational and based on findings that were not supported by logical grounds. The Son disagreed with the Tribunal’s finding that the transfer of the Father’s superannuation to himself was to “primarily benefit the Son”. The Son contended that the “true purpose” of the transfer was to enable him to work less, to devote more time to care for the Father, and to give effect to the Father’s wishes to remain living at home for as long as possible.
The Son also sought leave to appeal from the decision and requested that the Appeal Panel exercise the discretion to deal with the appeal by way of a new hearing and to appoint himself or the Father’s accountant as manager, either separately or together.
Held (dismissing the appeal): (i) A manager owes the obligations of a fiduciary to the person under financial management. Duties of a fiduciary include to act in good faith and to avoid a conflict, or a sensible possibility of conflict between his or her personal interests and his or her duty to the protected person (see P v NSW Trustee and Guardian [2015] NSWSC 579 at [51]; Ability One Financial Management Pty Ltd and Anor v JB by his Tutor AB [2014] NSWSC 245 at [113] and [166]-[175]; GDR v EKR [2012] NSWSC 1543 at [38]; Woodward v Woodward [2015] NSWSC 1793 at [36]). A financial manager is not entitled to payment of remuneration out of the protected person’s estate unless authorised to do so by the Supreme Court or the NSW Trustee. It was reasonably open to the Tribunal on the available material to conclude that the transfer was “primarily” for the benefit of the Son, and in breach of his fiduciary duties. This was especially the case where the Son had purchased the Randwick property shortly after the 2022 FMO was made, and then transferred the Father’s superannuation funds to himself a few months later ([60], [67]-[75]).
(ii) A financial manager is not permitted to deal with the estate unless the NSW Trustee has made directions authorising the person to exercise functions in respect of the estate: s 25M(2)(b) of the Guardianship Act 1987 (NSW); Div 2 of Part 4.5 of the NSW Trustee and Guardian Act 2009 (NSW) (‘TAG Act’). The Appeal Panel found no error in the Tribunal’s findings that the Son did not have the power to make the transfer and that it fell outside the scope of the “Directions and Authorities” issued by the NSW Trustee. In addition, whilst s 76 of the TAG Act permits a manager to make “gifts” from the property of the estate of the managed person in limited circumstances, it does not permit the making of a gift by the manager to himself or herself in breach of their fiduciary duty: Woodward v Woodward [2015] NSWSC 1793 at [36] ([61]-[65], [76]).
(iii) The Appeal Panel rejected the Son’s second ground of appeal: that the Tribunal failed to consider the views of the Father (see ‘Ground 2: Purported failure to consider the views of the father’ at [80]-[89]), and refused leave to appeal, finding that the appeal does not raise an issue of general principle or public importance, or that the Tribunal went about the fact-finding process in an unorthodox manner or in a way that was likely to produce an unfair result (see ‘Leave to appeal’ at [91]-[96]).
(iv) The Appeal Panel also declined to exercise the discretion to deal with the appeal by way of a new hearing. Section 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) permits the Appeal Panel to “deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing” and to “permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances”. The Son contended that the Tribunal should revoke the appointment of the NSW Trustee and appoint the family accountant as manager of the Father’s estate because the accountant was already familiar with the Father’s financial position. However, the Appeal Panel noted that it had not been given any information to enable it to assess whether the accountant is a suitable person to undertake the role of manager, or the basis on which the accountant would be remunerated. The Appeal Panel noted that it is open to the Son to make an application under s 25S of the Guardianship Act seeking revocation of the appointment of the NSW Trustee ([102]-[105]). | YGM v YGN [2024] NSWCATAP 14 A Britton, Deputy President, J T Kearney, Senior Member, C M Kennedy, Senior Member – 2 February 2024
In sum: The Appeal Panel dismissed an appeal against the Tribunal’s decision not to make an order under s 36(4) of the Powers of Attorney Act 2003 (‘POA Act’), finding no error in the Tribunal’s finding that it was not in the best interests of the principal for an order to be made.
Facts: Angela is 71 years old and has four children, Doug, Ted, Mark and Kim. In May 2017, Angela made an enduring power of attorney appointing Kim and Mark’s wife, Margaret, as her attorneys (the EPOA). Angela also executed an instrument appointing Kim and Margaret to act together and individually, as her enduring guardians. Those appointments were prepared and witnessed by Angela’s solicitor (the Solicitor). The attorneys claimed that they did not commence to use the EPOA or take over management of Angela’s affairs until around May 2020.
Between the mid-1990s and 2018, Angela made loans to each of her children in differing amounts, ranging from approximately $7700 to $100,000. Angela recorded the details of those loans in a will made in 2005.
In 2017, following discussions between Angela, Kim, and Angela’s solicitor, Angela waived the interest on each loan contract taken out by Kim (totalling $280,000). In 2019, Angela executed a further will which “released any surviving child from any debt owed to her”. The will made gifts to Doug, Ted, and Mark, as adjustments to make up for the interest that they had already paid on their loans. The will also gave the residue of Angela’s estate to each surviving child in equal shares.
In January 2023, Doug made an application to the Tribunal seeking a review of the operation and effect of the EPOA and the removal of Kim as attorney, alleging that Kim had breached her fiduciary duties as an attorney in relation to the “treatment of loans made by Angela to her children and the role played by Kim in these arrangements”. Doug also alleged that there was a conflict of interest in Kim acting as Angela’s attorney.
In June 2023, the Tribunal conducted a review of the EPOA and decided not to exercise the discretion to remove Kim as attorney, or to make any other order under s 36(1) of the POA Act. The Tribunal found that Angela’s needs and care expenses are being met and that she has the means available to fund her future care needs. The Tribunal found that the available evidence does not support a finding that there has been any financial abuse or exploitation of Angela by her appointed attorneys. In addition, the Tribunal found that there is no reason to disturb the arrangements put in place by Angela by operation of the EPOA, in the absence of evidence of any mismanagement, maladministration or conflict of interest on the part the attorneys.
Doug appealed from the decision of the Tribunal on the ground that the Tribunal applied the wrong test in relation to the exercise of its discretion under s 36(4) of the POA Act. Doug also sought leave to appeal on the ground that the finding of the Tribunal that there was no evidence of “any misconduct, mismanagement, maladministration or conflict of interests on the part of the attorneys” constitutes a factual error “unreasonably arrived at” and one which “gave rise to an injustice which is reasonably clear”.
Held (dismissing the appeal): (i) Section 36 of the POA Act gives the Tribunal the power to review the operation an effect of an enduring power of attorney. Upon review of the EPOA, the Tribunal may make any orders under s 36(4) of the POA Act. This includes removing a person from office as an attorney (s 36(4)(b)). Section 37(1) of the POA Act states that if the Tribunal decides not to make an order under s 36 of that Act, it may (if it considers it appropriate in all the circumstances to do so) decide to treat that application for review as an application for a financial management order under Part 3A of the Guardianship Act 1987 (NSW). The Appeal Panel noted that the POA Act does not stipulate the matters which the Tribunal is to consider in deciding whether it would be in the principal’s best interests to make orders under s 36(4) of that Act. The matters relevant to an assessment of the principal’s best interests and the weight to be given to them is for the Tribunal to decide, having regard to the facts of the particular case and the protective purpose of the POA Act ([54]-[56],[67]).
(ii) The Appeal Panel rejected Doug’s argument that the Tribunal applied the “wrong test”. Doug contended that in considering whether to make an order under s 36(4) of the POA Act, the Tribunal erroneously confined its enquiries to Kim’s conduct in the use of the EPOA and failed to consider Kim’s “problematic and exploitative” conduct in 2017-2019 that did not involve the use of the EPOA. Doug contended that by June 2017, Kim believed that Angela was on the “cusp of losing capacity” and took steps to order Angela’s finances in a way that benefitted herself and other family members. The Appeal Panel found that read fairly and as a whole, the Tribunal’s Reasons do not support the contention that the Tribunal failed to consider the impugned conduct, including the decisions made by Angela about the loans to her children from mid-2017, and the decision to waive the interest payable by Kim. The Tribunal was not satisfied that that evidence supports a finding of financial abuse or exploitation of Angela by her appointed attorneys ([68]-[77]).
(iii) The Appeal Panel refused leave to appeal. Doug contended that there was “significant, objective evidence of Kim’s misconduct” including that at a time when she believed Angela’s capacity to be impaired, Kim took advantage of Angela by arranging for the interest payable on her $280,000 loan to be forgiven and then proceeding to orchestrate changes to Angela’s will. The Appeal Panel found that Doug’s challenge to the impugned finding side steps a key finding made by the Tribunal that up until 2020, Angela was managing her finances free from undue influence of either Kim or Margaret. The Appeal Panel noted that although Kim was advantaged by the waiver of interest on her loan, Angela’s subsequent revision to her will is consistent with her reported wish to treat her children equally. In circumstances where the Tribunal found that Angela was “still capable of making financial decisions for herself” prior to 2020, it is not apparent how any act or omission by Kim during that period evidenced “mismanagement, maladministration or conflict of interest” ([78]-[92]). | YFB v YFC [2023] NSWCATAP 337 C P Fougere, Principal Member, J D’Arcy, Senior Member, C M Kennedy, General Member– 21 December 2023
In sum: The Appeal Panel found that the Tribunal had denied the appellant procedural fairness by failing to offer an adjournment in circumstances where the appellant was unrepresented and where the appellant sought to rely on the evidence of a witness who was not present at the hearing.
Facts: The Subject Person is an 88-year-old man who has been diagnosed with Alzheimer’s dementia and lives in a nursing home. In June 2021, the Subject Person executed an appointment of enduring guardianship (2021 EG) appointing one of his daughters as his enduring guardian, and another daughter as his substitute enduring guardian. The Subject Person also executed an enduring power of attorney (2021 EPOA) appointing the same two daughters as his attorneys.
In February 2023, the son of the Subject Person (the appellant) lodged a guardianship application seeking to be appointed as his father’s guardian. The appellant also lodged an application seeking review of the 2021 EPOA and an application for a financial management order. The Tribunal held a hearing to consider the three applications. The solicitor who had witnessed the 2021 EPOA (the Solicitor) did not attend the hearing and could not be contacted, despite numerous attempts by the Tribunal. Following the hearing, the Tribunal decided not to make a guardianship order and dismissed the guardianship application, finding that the evidence does not demonstrate that the making of an order is necessary to protect the Subject Person’s welfare and interests.
The Tribunal adjourned the hearing of the financial management application and the application for review of the 2021 EPOA to allow the Solicitor to take part in the hearing and to give evidence, noting the importance placed by the parties upon the possible evidence of the Solicitor, including the challenge made by the appellant to the Subject Person’s capacity to execute the 2021 EPOA.
The appellant appealed from the decision of the Tribunal to dismiss the guardianship application on the basis that because he was unrepresented at the guardianship hearing before the Tribunal, he should have been offered the opportunity to request an adjournment. The appellant submitted that he would have asked for an adjournment had he known that he could have done so. The appellant contended that the Solicitor’s evidence was important to the guardianship application as it would have clarified whether the Solicitor had followed the correct procedure when she witnessed the Subject Person signing the 2021 EG.
Held (allowing the appeal): (i) The Appeal Panel noted that although no application was made to review the 2021 EG, the existence of the instrument was clearly a factor that the Tribunal took into account when deciding to dismiss the guardianship application. In its reasons for decision, the Tribunal referred to the 2021 EG, noting that the appointment “reflects the wishes of the Subject Person and the arrangements he wished to see in place in the event that he lost the capacity to make his own decisions”. The Appeal Panel concluded that the fact of the 2021 EG was therefore clearly relevant to the exercise of the Tribunal’s discretion to make a guardianship order under s 14(2) of the Guardianship Act 1987 (NSW). In addition, the effect of the dismissal was to leave unaffected, the 2021 EG ([42]-[44]).
(ii) The Appeal Panel held that the guardianship application should have been adjourned in circumstances where the Tribunal adjourned the hearing of the application seeking review of the 2021 EPOA so that a witness critical to resolving the issue of whether the Subject Person had capacity to make that appointment could attend to give evidence. Given that the 2021 EPOA was made on the same date as the 2021 EG, the evidence of the solicitor would have also been significant to the Tribunal’s exercise of the discretion under s 14(2) of the Guardianship Act to make, or not to make, a guardianship order ([45]).
(iii) The Appeal Panel held that the Tribunal’s failure to offer the appellant an adjournment so that he had a reasonable opportunity to present his case as to the validity, or otherwise, of the 2021 EG constituted a denial of procedural fairness. The Appeal Panel noted that had an adjournment been allowed and the Solicitor given an opportunity to give evidence, it is possible that the Tribunal may have reached a different conclusion about the weight to be given to the 2021 EG when deciding whether or not to make a guardianship order under s 14(2) of the Guardianship Act ([46]-[49]).
(iv) The Appeal Panel allowed the appeal and ordered that the matter be re-determined by the Tribunal, with arrangements made for the Solicitor to give evidence in relation to the 2021 EG ([50]-[54]). | YDC v YDD [2023] NSWCATAP 340 C P Fougere, Principal Member, R H Booby, Senior Member, L Porter, General Member – 21 December 2023
In sum: The Appeal Panel dismissed an appeal against the decision of the Tribunal to make a guardianship order which appointed the cousin of the Subject Person, rather than the Public Guardian.
Facts: The Subject Person is a 60-year-old man who had lived for approximately 15 years at a hospital in Sydney where he received treatment as an involuntary patient under the Mental Health Act 2007 (NSW). In November 2020, the Tribunal made a guardianship order appointing the Subject Person’s cousin (the Cousin) as his guardian. That order was reviewed and renewed by the Tribunal on several occasions. On 24 January 2023 following a statutory review, the Tribunal made a 12-month guardianship order reappointing the Cousin as guardian.
The brother of the Subject Person (the appellant) appealed against the decision of the Tribunal to appoint the Cousin. The appellant relied on several grounds of appeal contending that the Tribunal made errors of law in appointing the Cousin as guardian rather than the Public Guardian, and that the Tribunal failed to afford the appellant procedural fairness by: not offering an adjournment in circumstances where a witness provided “substantial and entirely new” evidence at the hearing; and for not treating the appellant as a party to the proceedings.
Held (dismissing the appeal): (i) The Appeal Panel held that the Tribunal made no errors of law in finding that the Cousin was suitable to be appointed as the Subject Person’s guardian. Before appointing a person as a guardian, the Tribunal must be satisfied that the proposed guardian satisfies each of the three matters listed in s 17(1) of the Guardianship Act 1987 (NSW) (‘the Act’). Section 17(1)(b) of the Act requires that there be no undue conflict between the interests (particularly the financial interests) of the proposed guardian and the Subject Person. The appellant claimed that there was a conflict of interest because the Cousin had accepted an offer of accommodation for the Subject Person from an accommodation provider of which the Cousin was the CEO, and now director. The Tribunal’s reasons make clear that it would not have necessarily regarded the Cousin’s role with the disability accommodation provider as creating an undue conflict of interest. Nevertheless, no such conflict of interest existed because the offer had been withdrawn, and there was nothing in the evidence to suggest that this organisation was being considered as a future accommodation or service provider to the Subject Person. Section 15(3) of the Act provides that if satisfied that a proposed guardian meets the criteria for appointment listed in s 17(1) of that Act, the Tribunal is precluded from appointing the Public Guardian. The Appeal Panel found no error in the approach taken by the Tribunal in finding that the Cousin was suitable to be appointed as guardian, having found that there was no conflict of interest between the interests of the Cousin and the Subject Person, that the Cousin had “acted diligently” as guardian, and “remains ready and willing to fill that role” ([43]-[47], [57]-[58], [62]-[71]).
(ii) The Appeal Panel rejected the appellant’s contention that he was denied procedural fairness as required by s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW). The appellant contended that because the National Disability Insurance Scheme (NDIS) Support Coordinator had not made a written submission prior to the hearing, her evidence at the hearing was “substantial and entirely new”. He submitted that the Tribunal should have offered him an adjournment because he was unrepresented and disadvantaged in the proceedings as he was unable to review “all the evidence” prior to the proceedings. The Appeal Panel rejected this ground of appeal on the basis that the NDIS Support Coordinator did not provide any “adverse or prejudicial” information about the appellant which would necessitate an opportunity being provided to the appellant to rebut that information. In any event, the appellant was given a reasonable opportunity to respond to that information at the hearing ([76]-[80],[87]-[90]).
(iii) The Appeal Panel also found that the appellant was not denied procedural fairness because he was not treated as a statutory party in the earlier Tribunal proceedings prior to being joined as a party on 18 January 2023. Relying on the decision of the Supreme Court in The Husband v the Public Guardian [2016] NSWSC 1720, the appellant claimed that he should have been an automatic party to all proceedings before the Tribunal as he met the definition of a “carer” under s 3F(2) of the Act. The appellant claimed that he had provided “psychosocial support” to the Subject Person in the form of emails exchanged with his brother. The Appeal Panel was not satisfied that the appellant meets the requirements set out in ss 3D(1)(a) and 3D(2) of the Act as he did not provide evidence to support his assertion that he was carer about for his brother ([99]-[112]).
(iv) The Appeal Panel rejected the appellant’s remaining grounds of appeal including the contention that the Tribunal failed to consider mandatory considerations in ss 4(g) (‘protection from abuse, neglect and exploitation’) and 14(2)(a) and (b) of the Act (‘views of the subject person’ and ‘preservation of family relationships’). The Tribunal is under a duty to observe the principles set out in s 4 of the Act. However, the applicability of each principle will depend on a person’s particular circumstances as there may be no evidence of one or more principles. In WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22 at [75], the Administrative Decisions Tribunal (predecessor to NCAT’s Appeal Panel) held that the Tribunal is bound to observe any relevant principles. The Appeal Panel held that the Tribunal was not in error by failing to specifically address the principle in s 4(g) of the Act, in circumstances where evidence had not been put before the Tribunal that the Subject Person was at risk of, or had experienced, neglect, abuse or exploitation ([113]-[120]). In addition, the Appeal Panel held that the Tribunal’s reasons, when read fairly and as a whole, indicates that the Tribunal did consider the views of the Subject Person and preservation of family relationships ([121]-[138]). | YFX v NSW Trustee and Guardian [2024] NSWCATAP 70 I R Coleman SC ADCJ, Principal Member, R H Booby, Principal Member, F N Given, General Member – 3 May 2024
In sum: The Appeal Panel declined to grant an extension of time to appeal, refused leave to appeal, and dismissed an appeal against the decision of the Tribunal to make a financial management order committing the management of the appellant’s estate to the NSW Trustee and Guardian.
Facts: YFX is a 77-year-old man who lives in community housing. A social worker at the Older Persons Mental Health Service made an application to the Tribunal for the appointment of a financial manager for YFX on the basis that he was facing imminent eviction from his accommodation due to squalor, hoarding and safety concerns.
In August 2023, the Tribunal made a financial management order committing the management of YFX’s estate to the NSW Trustee and Guardian. In finding that YFX was incapable of managing his affairs, the Tribunal relied on medical evidence indicating that YFX has untreated schizophrenia for at least 20 years and was experiencing symptoms of persecutory delusions and thought disorder. The Tribunal also noted that proceedings were brought by the landlord seeking the termination of YFX’s residential lease, leaving him at risk of homelessness. YFX strongly opposed a financial manager being appointed. However, the Tribunal found that YFX is highly vulnerable by reason of his untreated mental illness, and that a financial management order is needed to ensure that YFX had ongoing accommodation.
In December 2023, YFX lodged an appeal against the Tribunal’s decision to make a financial management order. In his Notice of Appeal, YFX did not identity a ground of appeal, but sought leave to appeal and an extension of time in which to appeal. Mr Fogarty, of counsel, was appointed as YFX’s separate representative in respect of the appeal.
Held (dismissing the appeal): (i) As YFX filed his appeal out of time, the Appeal Panel was required to decide whether to extend the time to appeal. The Appeal Panel noted that if the appellant is able to demonstrate merit, either on a question of law or otherwise, a grant of leave to appeal is likely to be justified. In contrast, if the appellant’s case is found to lack merit, there would be no utility to extending the time to appeal, only for the appeal to be dismissed ([16]).
(ii) The principles governing an application for leave to appeal are set out in Collins v Urban [2014] NSWCATAP 17. In that case, the Appeal Panel held that generally, in order to obtain a grant of leave to appeal an applicant needs to demonstrate something more than the primary decision-maker having been “arguably wrong”. Grounds that may justify granting leave to appeal include where the appeal grounds raise questions of principle, public importance or matters of administration or policy, or where the Tribunal made an “error of fact which resulted in an injustice that is reasonably clear” ([18]-[19]).
(iii) Having regard to the above principles, the Appeal Panel was not satisfied that it should exercise the discretion to grant an extension of time to appeal, or grant leave to appeal. The separate representative advanced a number of grounds of appeal on behalf of YFX, including that the Tribunal had made its decision on the basis of “scant” evidence with respect to YFX’s financial circumstances which resulted in a failure to give proper, genuine and realistic consideration to the merits of the case ([29]). However, the Appeal Panel found that no error of law had been established, either on this ground or any other ground. The Appeal Panel found that the evidence to which the Tribunal referred to in its reasons provided an adequate factual basis for its decision. The Appeal Panel noted that it was open to YFX to seek to adduce new or further evidence to support his assertions about his financial affairs, but that he had not done so. The Appeal Panel found that the Tribunal’s decision has not been shown to lack an evident and intelligible basis. Further, in the absence of the transcript of the hearing before the Tribunal, the Appeal Panel was unable to find that YFX had been denied procedural fairness ([28]-[29], [32]-[34], [37]-[43]),
(iv) As there was no basis for extending time to appeal, or granting leave to appeal, the Appeal Panel decided to dismiss the Notice of Appeal ([44]). | Supreme Court of New South Wales | AW v WW (No 2) [2024] NSWSC 146 Kunc J – 28 March 2024
In Sum: Clause 14(1)(b) of Schedule 6 to the Civil and Administrative Tribunal Act 2013 (NSW) gives parties a right to appeal to the Supreme Court from a decision of the Guardianship Division on a question of law.
Kunc J held that a “question of law” means a “pure question of law” and not a question of mixed fact and law. A submission that the Tribunal came to the wrong conclusion on the facts is not a question of law because it would require the Court to investigate the facts before the Tribunal, inviting merits review.
Facts: The defendant (Mrs W) is 89 years old. In 2021, Mrs W executed an appointment of enduring guardianship, appointing “KB” (a retired solicitor and cousin by marriage) and “KS” (a solicitor) as her guardians jointly and severally. Mrs W also revoked an appointment of her son (the plaintiff) as her enduring attorney and appointed her accountant “JM” under a new enduring power of attorney instrument.
The plaintiff made applications to the Tribunal seeking the appointment of a guardian and financial manager for Mrs W. On the basis of conflicting evidence regarding whether Mrs W had dementia, the Tribunal was not satisfied that Mrs W has dementia that results in a cognitive deficit that prevents her from managing her person. The Tribunal found that Mrs W had anxiety and depression, which were likely to impede on her ability to manage aspects of her lifestyle, such that she was a person for whom the Tribunal could make a guardianship order. However, the Tribunal concluded that there was no need to make a guardianship order due to the current enduring guardianship arrangements. In addition, the Tribunal was not satisfied that Mrs W was incapable of managing her affairs and therefore concluded that it could not make a financial management order.
The plaintiff lodged an appeal to the Supreme Court against the decisions of the Tribunal. The plaintiff contended that contrary to the Tribunal’s conclusions, there was evidence to support a finding that there was a need for a guardian to make medical decisions for Mrs W. Lindsay J dismissed the plaintiff’s application for leave to appeal on grounds other than a question of law: AW v WW [2023] NSWSC 724.
Counsel for the plaintiff argued that the Tribunal had failed to take into account a relevant consideration, namely, “the conditions of delirium, delusion, paranoia and confusion”, which although do not amount to dementia, nevertheless affect Mrs W’s cognitive functioning ([32]-[34]). Counsel for the plaintiff submitted that provided that the evidence went to a “necessary consideration”, the ignoring of that evidence was an error of law ([36]). It was submitted that the Tribunal “ought to have directed itself to whether there was any condition other than anxiety or depression…that was a lesser condition than dementia, which should have informed the exercise of its discretion as to what steps ought to have been taken to protect Mrs W’s interests” ([39]). It was also submitted that the Tribunal failed to take into account those medical conditions, which should have led to the finding that Mrs W was incapable of managing her financial affairs ([42]).
Held (dismissing the appeal): (i) The Court considered the proper construction of “question of law” in cl 14(1) of Sch 6 to the Civil and Administrative Tribunal Act 2013 (NSW) (See [49]-[54]). The Court accepted the submission made by counsel for Mrs W, that “question of law” in cl 14(1)(b) means a “pure question of law”, and “not a mixed question of law and fact or anything else”. The language of cl 14(1) makes clear that the path to an appeal to the Court is a narrow one. For any decision, other than an interlocutory decision, cl 14(1) provides an appeal as of right “on any question of law” and requires leave of the Court to appeal “on any other grounds” ([53]).
(ii) The Court noted that a fact-based challenge to the effect that there was other evidence before the Tribunal that could or should have led to the conclusions for which the plaintiff had contended before the Tribunal, does not disclose a “pure question of law”. This would require an examination of the facts before the Tribunal, inviting merits review. Kunc J stated that the submission advanced by counsel for the plaintiff “really amounted to a submission that the Tribunal had come to the wrong conclusion on the facts” ([58]-[59]).
(iii) It was accepted by the plaintiff that the Tribunal did not fail to take into account a “mandatory consideration” as described in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 ([33]). Counsel for the plaintiff described the specific medical conditions as being “necessary” considerations. However, the plaintiff had failed to demonstrate that the specific medical conditions said not to have been taken into account by the Tribunal, were required to be taken into account by reference to the subject matter, scope and purpose of the Guardianship Act 1987 (NSW) ([60]).
(iv) In any case, the Court was not prepared to infer that those considerations were in fact not taken into account by the Tribunal. Referring to the decision of Wilcox J in Castro v Minister for Immigration and Ethnic Affairs [1997] FCA 40 at [8], Kunc J stated that the Tribunal “is not bound to refer to every item of evidence in framing its reasons…The Tribunal is required to set out findings about essential facts, to indicate the legal principles it is applying the chain of reasoning it has adopted” ([62]).
(v) The Court further noted that an assessment of whether a question of law is raised where the Court is required to examine the evidence before the Tribunal, cannot be undertaken without considering how the case was run before the Tribunal. However, in circumstances where the Tribunal’s reasons appear to be comprehensive, “the Court will be slow to find that a Tribunal had erred for failing to consider a specific circumstance or reach a specific conclusion which it does not appear clearly to have been invited to consider or reach” ([63]).
The following decision relates to proceedings in the Supreme Court in FC v SC [2022] NSWSC 1780 and FC v SC (No. 2) [2023] NSWSC 376. See Guardianship Division Case Digest Issue 2 of 2023 for a summary of those decisions. | SC v Ability One Financial Management Pty Ltd [2024] NSWSC 637 Lindsay J – 28 May 2024
In sum: The Supreme Court dismissed an application to change the manager of a protected estate, finding that it is in the protected person’s best interests for the appointed manager to continue managing his affairs.
Facts: JC is an elderly man who had previously been found by the Court to be incapable of managing his affairs. JC has a son, FC, and a nephew, SC, with whom JC lives in Queensland.
On 15 February 2023, the Court made orders that the estate of JC be subject to management under s 41(1)(a) of the NSW Trustee and Guardian Act 2009 (NSW) (‘TAG Act’) and appointed Ability One Financial Management Pty Ltd (‘Ability One’) as the manager of JC’s protected estate. The orders allowed for Ability One to be remunerated out of JC’s estate.
On 13 November 2023, SC commenced proceedings in the Supreme Court seeking the removal of Ability One as manager of JC’s protected estate, and the appointment of Northern Plateau Wealth Management Pty Ltd (a Queensland based corporation) (‘Northern Plateau’) as manager, with authority to receive remuneration.
SC submitted that there is a breakdown in the relationship between Ability One and JC such that it is in the welfare and interests of JC for Ability One to be removed as manager. SC also alleged that Ability One has mismanaged JC’s estate (by arranging for the sale of JC’s principal assets, two blocks of land in Greystanes), declined to meet with JC personally, and charged excessive fees. SC submitted that Northern Plateau is suitable to be appointed because it is local to where JC lives and is therefore more accessible than Ability One.
Issues and outcome: (i) Section 41 of the TAG Act states that if the Court is satisfied that a person is incapable of managing his or her affairs, the Court may (a) declare that the person is incapable of managing his or her affairs and order that the estate of the person be subject to management under [the TAG Act], and (b) by order appoint a suitable person as manager of the estate of the person or commit the management of the estate of the person to the NSW Trustee and Guardian ([35]).
(ii) The principles relevant to a change in the identity of the manager of a protected estate are set out in Holt v Protective Commissioner (1993) 31 NSWLR 227 and M v M [2013] NSWSC 1495 at [49]-[50]. In addition, the Court observed the proposition in Ability One Financial Management Pty Limited and Anor v JB by his Tutor AB [2014] NSWSC 245 at [36], that “a manager…may be replaced, simply on the ground of a breakdown in personal relationships between the manager, the protected person and the protected person’s carer” ([31]-[34]). The Court accepted that there has been a “relationship breakdown” of sorts between Ability One and SC, and not between Ability One and JC, as contended ([41]-[42]). However, despite the conflict between SC and Ability One, the Court was satisfied that Ability One can be relied upon to perform the functions of JC’s manager in an independent way ([55]).
(iii) The Court rejected SC’s allegations against Ability One. The Court found that Ability One has on the whole, acted diligently and reasonably in the management of JC’s affairs, taken responsible, legal, valuation and real estate advice about steps to be taken towards a sale of JC’s land, and has been responsive to suggestions to SC without surrendering the independent judgement required of it as manager ([45]). The Court found that SC’s allegations of overcharging against Ability One are without foundation, as the company has complied with the regulatory regime supervised in the ordinary course by the NSW Trustee and Guardian. It noted that the NSW Trustee and Guardian has oversight of remuneration charged by managers of protected estates and has determined that Ability One’s fees are just and reasonable ([48]-[49]).
(iv) SC’s case for removal of Ability One was supported by his application for the appointment of Northern Plateau as its replacement. The Court found that although Northern Plateau is a Queensland-based corporation, the major management tasks required to be undertaken by the appointed manager relates to JC’s property in NSW. Northern Plateau has no presence in NSW, whilst Ability One has a presence in both Queensland and NSW ([51],[53]-[54]).
(v) The Court further noted that the application appears to be motivated by SC’s desire for financial advantage as is evidenced by his “self-interested involvement” in JC’s affairs. The Court noted that JC made a will naming SC as sole beneficiary. In these circumstances, the Court cannot exclude the possibility that SC’s intervention in arrangements made by Ability One for the sale of JC’s Greystanes properties, and his frustration of the company’s attempts to obtain vacant possession of the properties, have been motivated by a desire to impede an orderly sale of the properties for his own benefit ([57]-[59]).
(vi) The Court dismissed the application as it was satisfied that it is in JC’s best interests for Ability One to remain in office as manager of his protected estate, at least until JC’s Greystanes properties are sold. A protected estate manager has an obligation to consult with significant people in JC’s life. As this obligation has been frustrated by SC’s obstructive behaviour, the Court noted that if it is necessary in order to give paramount consideration to JC’s welfare and interests, an application can be made to the Court seeking directions in relation to the management of the affairs of JC ([60]-[66]). |
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