Application of SJ [2011] NSWSC 372

The Tribunal 8Historically, guardianship and financial management jurisdictions had a predominant purpose of the protection of the person with disabilities. Modern guardianship and financial management legislation, however, seeks to strike a balance between providing necessary protection, whilst also promoting empowerment of people with disabilities and minimum intrusion on their rights and liberties: ACJ [2007] NSWGT 15 at [46]. 9The Tribunal is a creature of statute. Its jurisdiction is not at large but must be exercised in accordance with its establishing legislation. It is to the Tribunal that the legislature has committed the primary working out of the Act. The Tribunal was given most, but not all, of the same area of jurisdiction that was within the Supreme Court's jurisdiction.

The Act 10Section 4 of the Act provides: "It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles." 11In the protective jurisdiction, the paramount consideration is the overall interests of the person to whom the protection is directed ( Public Trustee v Blackwood [1998] 8 Tas R 256. The Court is concerned with the person's separate and independent welfare and interests ( Charlton v Baber [2003] NSWSC 745 at [52]). 12The Tribunal is given jurisdiction by Division 1 of Part 3A of the Act to make financial management orders in various circumstances. Section 25I of the Act deals with direct applications to the Tribunal for a financial management order. 13Relevantly, an application for a financial management order may be made by "any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person who is the subject of the application" (s 25I(1) of the Act). 14Similarly, an application for a guardianship order in relation to a person may be made by the person, or "by any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person" (s 9(1) of the Act). The Tribunal's jurisdiction to make a guardianship order is set out in s 14 of the Act. 15There was no question, in the present case, of the application to the Tribunal having been made by such a person. 16Before a financial management order may be made, it must be established that: (a) The person is not capable of managing her, or his, own affairs; and (b) There is a need for another to manage those affairs on the behalf of that person; and (c) It is in that person's best interests that the order is made. See: s 25G of the Act. 17A person's capability to manage her, or his, own affairs, was discussed, by Campbell J (as his Honour then was), in Re GHI (a protected person) [2005] NSWSC 581; (2005) 221 ALR 581. His Honour affirmed the approach stated by Powell J in PY v RJS [1982] 2 NSWLR 70. Powell J had said: "It is my view that a person is not shown to be incapable of managing his or her own financial affairs unless, at the least, it appears (a) that she is incapable of dealing, in a reasonably competent fashion with the ordinary routine affairs of man; and (b) that by reason of that lack of competence there is shown to be a real risk that either (i) she may be disadvantaged in the conduct of such affairs; or (ii) that such moneys or property that she may possess may be dissipated or lost ... it is not sufficient in my view merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner." 18Young J (as his Honour then was) in H v H (Supreme Court, 20 March 2000, unreported) in dealing with the capacity test, said that dealing with the "ordinary affairs of man" does not simply mean being able to go to the bank and draw out housekeeping money. Most people's affairs: "are more complicated than that that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one's family and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills." 19The reference to "affairs" is a reference to the whole of the person's affairs or his, or her, affairs generally: P v R [2003] NSWSC 819 at [7]. The cause of the incapacity is irrelevant, although the ability to recognise and protect one's own interests plays a central part in the inquiry ( P v R at [9]). 20Thus, a person can be said to need a financial manager if his, or her, financial affairs are of such a nature that action is required to be taken, or a decision is required to be made about those affairs, which action or decision he, or she, is unable to undertake personally, and which will not otherwise be unable to be made unless another person is given the authority to take the action or make the decision. 21It should be noted that the relevant time for considering whether a person is incapable of managing her, or his, affairs is not merely the day of the hearing, but the reasonably foreseeable future: McD v McD (1983) 3 NSWLR 81 at 86. 22Section 25M of the Act provides that if the Tribunal makes a financial management order, it may appoint a "suitable person" to manage the person's estate, or may commit the management of the estate to the NSW Trustee. 23In Holt v Protective Commissioner (1993) 31 NSWLR 227, it was said that the dominant consideration in making orders about a financial manager is the welfare of the person who is, or may be, the subject of the management order. 24In relation to the appointment of a family member as the financial manager, in P9/2000 [2011] NSWSC 49, I said: "21 I accept that there are inherent advantages in A's estate being continued to be managed by a family member, with appropriate advice or expertise, rather than by a statutory body, particularly if the estate is of modest size, if there is no conflict of interest and duty, and where a relationship of love and affection between the respondent and the managed person is established. 22 I remind myself, also, that when exercising the discretion, the Court bears in mind that, ordinarily, members of the community consider that an outside manager is a measure of last resort: see Re M (1988) 2 VAR 213; Re R [2000] NSWSC 886 at [32]. 23 In Re L [2000] NSWSC 721, at [7] and [12], Young J (as his Honour then was) recognised that a responsible family member will often be best placed to manage an incapable person's affairs provided there are minimal conflicts of interest or, if there are conflicts of interest, that they are properly dealt with. 24 In Holt v The Protective Commissioner (1993) 31 NSWLR 227, Kirby P (as his Honour then was), with whom Sheller JA and Windeyer AJA agreed, identified the advantages to a protected person of having a family member appointed as manager of his estate as including: "(b) to the appointment of a family member, the following advantages: ... (ii) the capacity of the protected person, if disabled, to interact with his or her manager so that, so far as possible, within the disability which has led to the appointment, such person may remain in charge of, or at least able to influence, the broad directions of the management of the estate; (iii) the ingredient of love and affection and unquestioning devotion to the protected person which an appropriate family member can add to the task of management. Whilst the office of manager is, by its definition, concerned with proprietary and financial matters and involves the prudent control of the property and like interests of the protected person, in the nature of things the manager of the estate of a protected person is more likely than a general trustee or receiver to become involved in decisions which affect the protected person's quality of life. A lifetime knowledge of the person and a devotion to his or her interest may contribute to that quality. It may more readily be secured by the appointment as manager of a family member with the requisite knowledge and motivation." 25It can be seen that the structure of the Act requires taking two distinct steps - the first, pursuant to s 25E of the Act, the Tribunal may order that the estate of a person be subject to management under the Protected Estates Act 1983 (the making of a financial management order), and, if that order is made, then, pursuant to s 25M (1), the second step is the appointment of a suitable person or the NSW Trustee to manage the estate. 26A person who does not appreciate the need for a financial manager to act protectively in respect of the protected person's estate should not be made the financial manager. When considering suitability, the ability of the suggested person to perform the functions and role of financial manager is required. This involves consideration of the nature of the estate to be managed: JAB [2010] WASAT 97 at [71] - [72]. 27It is generally contrary to practice to appoint a private manager with remuneration: G v B (Powell J, 27 May 1992, unreported). 28Before a guardianship order may be made, it must be established that: (a) that the person has a disability; and (b) because of that disability, the person is totally, or partially, incapable of managing his, or her, person. See: IF v IG & Ors [2004] NSWADTAP 3 at [24]; DL v Public Guardian and Ors [2008] NSWADTAP 6 at [6]. 29Section 3(2) of the Act states that a reference to a person with a disability is a person: "(a) who is intellectually, physically, psychologically or sensorily disabled, (b) who is of advanced age, (c) who is a mentally ill person within the meaning of the Mental Health Act 2007 , or (d) who is otherwise disabled, and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation." 30If satisfied of the relevant matters, the Tribunal determines whether to exercise its discretion to make a guardianship order. In that determination, the Tribunal has regard to each of the factors listed in s 14(2), namely: "(a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order." 31Consequently, the first step is for the Tribunal to ask itself whether the subject person is a "person in need of a guardian". The second step is for the Tribunal to decide whether to exercise its discretion to make a guardianship order. 32There is no separate provision conferring on the Tribunal power to make an order appointing any particular person as a guardian. Section 15 (3) of the Act recognizes that the Public Guardian should not be appointed as a person's guardian if an order can be made appointing some other person. 33It has been said that "the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect": W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25]. 34Section 16(1)(a) provides that a "guardianship order shall appoint a person who is of, or above, the age of 18 years as the guardian of the person of the person under guardianship". If a private guardian is to be appointed, that person must have a personality generally compatible with the personality of the person under guardianship; have no undue conflict of interest (particularly financial) with those of the person; and be able and willing to exercise the functions of the order.

The Supreme Court 35The Supreme Court's jurisdiction is preserved under s 31, and other parts, of the Act, and the Court has been given supervisory and appellate jurisdiction under s 67. 36Section 67 permits a party to a proceeding before the Tribunal (whether under the Guardianship Act or any other Act) to appeal to the Supreme Court from any decision of the Tribunal in that proceeding as of right, on a question of law, or by leave of the Court, on any other question. Otherwise, the Act is silent as to the conduct of the appeal. 37The Supreme Court is not intended to be the forum in which an unsuccessful part in the Tribunal, in a case where no error occurred there, may have a second trial of the same issue by a judge under the guise of an appeal. The mere fact that a judge might have reached a different conclusion had he, or she, been determining the issues at first instance does not mean that the Tribunal fell into error. Mere disagreement with the Tribunal's decision does not justify giving leave to appeal. 38In this case, the term "on any other question" in the section became relevant because it was submitted, on behalf of the Plaintiffs, that even if I concluded that the Tribunal had not made an error in determining that the first Plaintiff was, at the date of the order, incapable of managing her affairs, or requiring a guardian, I could consider that, at the present time, she was not incapable, or did not suffer a disability, with the result that the court could revoke the orders made by the Tribunal. In other words, I treat this as an application for leave for the appeal to cover the merits of the Tribunal's decision. I shall return to this topic later in these reasons. 39The appeal, under the section, must be instituted, relevantly in the present case, within the period ending 28 days after the day on which the written instrument setting out the formal reasons for the decision is furnished to the person, or within such further time as the Supreme Court may, in any case, allow. 40The statutory time limits are substantive provisions laid down by the Act, itself and are not merely procedural time limits. There is, however, no definition of the meaning of "furnished" in the Act. It is likely to simply mean "provided". 41There is no dispute, in this case, that the appeal has been commenced within time. 42If the appeal is within time, or the time is extended, the Supreme Court hears, and determines, the appeal (s 67(3) of the Act) and may make such orders as it thinks appropriate in the light of its decision. Those orders include: (a) an order affirming, or setting aside, the decision of the Tribunal, and (b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court. (section 67(4) of the Act) 43Subject to any interlocutory order made by the Supreme Court, an appeal operates to stay the decision appealed against. However, in this case, the NSW Trustee has retained control of the bank accounts, including retaining the cheque book, of the first Plaintiff. (The first Plaintiff, by the second Plaintiff, retained about $91,000, which is held in cash and which has been used to pay expenses.) 44The principles set out in s 4 of the Act are intended as an aid to interpreting and applying the Act as a whole, and even in this appeal, should guide the considerations that should be observed. The relevance and applicability of those principles will depend on all the circumstances of the case: OT v OU [2010] NSWADTAP 9.

Legal Principles - The Application 45The Act does not provide any guidance on the relevant matters to be taken into account in determining whether leave should be granted. 46In P v D1 [2011] NSWSC 257, Slattery J reiterated the principles that apply in such appeals. His Honour said: "55 The legislature has committed the primary working machinery of the Guardianship Act to the Tribunal and its decisions are to be given great weight; but it is probably inaccurate to describe the Tribunal as a "specialist" Tribunal: K v K [2000] NSWSC 1052, [14]. On appeal under s 67 the Court's approach is to deal with a matter broadly and fairly and not to interfere if the Tribunal members have directed themselves properly and fairly on the facts and have not erred in law: Retarded Children's Aid Society v Day [1978] ICR 437 at 443; Re R [2000] NSWSC 886 and K v K [2000] NSWSC 1052, [14]. But one of the functions of the Court is to ensure that the Tribunal has guidance upon the proper interpretation of this legislation so that the Tribunal is integrated into the machinery of justice applicable in this field of jurisprudence. 56 It has not been clearly decided in what circumstances the Court will grant leave to appeal under s 67: the issue has been touched upon in a number of cases: see for example Re R [2000] NSWSC 886 and K v K [2000] NSWSC 1052. In K v K at [15] Young J suggested that leave may be granted in respect of "broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law". But here the plaintiff has not identified any such questions of policy, nor are any such questions obvious from the four Tribunal decisions from which appeals are now sought. This case is about the circumstances of the fifth defendant and the guardianship orders made in respect of her. It is to be approached as one in which the plaintiff seeks the Court's leave to appeal against findings of fact. 57 If a "question of law" is identified, then there is a right to appeal: Guardianship Act s 67(1)(a). Here the plaintiff was only seeking to disturb the Tribunal's findings of fact. The classic statement of circumstances in which a question of law can be found by an appellate tribunal where the appellant seeks to disturb findings of fact is in the judgment of Jordan CJ in The Australian Gaslight Co v The Valuer-General (1940) 40 SR (NSW) 126, at 137-138 which in summary is that: a finding of fact by a tribunal of fact cannot be disturbed if the facts referred to by the tribunal on which the finding is based are capable of supporting its finding and there is evidence capable of supporting its inferences; such a finding can only be disturbed if (a) there is no evidence to support its inferences, (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based on those inferences, and (c) the tribunal of fact had misdirected itself in law: see also Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Here the plaintiff's argument did not identify any particular factual finding of the Tribunal for which there was no evidence to support the finding or the Tribunal's inference from it. Indeed the plaintiff did not seriously attempt such an exercise in the course of submissions. This is not a criticism of the plaintiff's legal advisers, as all the Tribunal's decisions appealed from appeared to the Court to be carefully reasoned with clear findings of fact on matters relevant to the Tribunal's jurisdiction and the disposition of the matters in issue. Really the only question in this case for the Court is whether leave to appeal should be granted from any of the Tribunal's four decisions "on any other question", that is any question other than a question of law: Guardianship Act s 67 (1)(b). 58 But the question of the subjects on which leave to appeal should be granted is more uncertain. In K v K [2000] NSWSC 1052 at [15] Young J described the Court's approach to granting leave under Guardianship Act , s 67(1)(b):- "[15] It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." 59 Young J's statement provides present guidance. The plaintiff's application attacked the Tribunal's fact finding, although not very clearly. One of the Court's tasks on this application has been to look at the Tribunal's decisions appealed from and to see whether the Tribunal had gone about that fact-finding process in a way, which is likely to produce an unfair result and should now be reviewed in the interest of justice. As the reasoning below shows I have found the plaintiff's criticisms of the Tribunals fact-finding processes unjustified. It is now useful to examine the issues that the plaintiff's application presents." 47On the leave application, Young J (as his Honour then was) in S v S [2001] NSWSC 146 had said: "12 The next consideration is how the Court should deal with leave applications. In my view these should be dealt with almost wholly on the papers. The appellant must establish in his or her affidavit evidence why, in view of the principles I have just stated, leave should be granted. Leave should then be considered by the Judge dealing with the Protective List, either in chambers or in court, with minimal submissions. If this were not so then the whole scope of the Act in restricting appeals to questions of law as a general rule, and in making the Guardianship Tribunal the primary Tribunal, would be thwarted. 13 However, as the practice has not yet been clearly laid down, in the present case I read the affidavits, I asked questions of counsel, and then I afforded an opportunity to the plaintiff to give additional oral evidence on certain matters which concerned me and allowed cross-examination on that. This will not normally occur." 48I will follow the approach of determining whether leave should be granted to the Plaintiffs by considering whether it is arguable that there was some error on the part of the Tribunal in the fact finding process, or that there was some error in the view which the Tribunal took of the facts, but subject to the overriding discretion as to whether it is an appropriate case for leave to be granted. 49In the present case, counsel candidly accepted that the Plaintiffs seek the Court's leave to appeal against finding of fact, namely that the first Plaintiff was incapable of managing her affairs or requiring a guardian. They say that the weight of evidence did not warrant the Tribunal coming to that conclusion. If the Tribunal was wrong, then the orders should never have been made, and the first Defendant should not have been appointed her financial manager or guardian. 50From the above, it follows that there were no procedural problems or defects, in the Tribunal's decision. 51This matter is made somewhat complicated because the first Plaintiff and the wife of the second Plaintiff acknowledged having been untruthful in some of what she said in the Tribunal and also because the first Plaintiff made clear that she found the whole event an intrusion of her privacy, felt that she should not be subjected to it, and therefore, did not co-operate as perhaps she might have.

The Background Facts - The Parties 52The first Plaintiff is 88 years of age. She married and has five children, each of whom is a party to these proceedings. 53The second Plaintiff is 49 years of age. He describes his occupation as "company director". He is married to a person to whom, where necessary, I shall refer as "D" and they have two sons, to whom I shall refer as "J" and "R". 54The first Plaintiff's marriage broke down in about 1974 and she describes the resulting divorce as "very bitter". She says that it split the family into two camps, one constituted by the fourth, fifth and seventh Defendants, who are said to have sided with their father, and the second Plaintiff and sixth Defendant, who sided with the first Plaintiff. (There is some dispute about the role of the fourth and fifth Defendants, but not much may turn on this.) 55Between 2000 and 2003, the first Plaintiff began to lose the ability to walk. She says that she sought assistance from the fourth and fifth Defendants who refused to help, and suggested that she should be living in a retirement village. Again, this is the subject of some dispute. 56In September 2003, the first Plaintiff granted a Power of Attorney to the second Plaintiff. 57In about February 2006, the first Plaintiff fell, and broke her hip. Subsequently, in about September 2006, she moved into a nursing home, where she has lived since. She says that she enjoys living there. 58On 29 December 2009, the fourth Defendant applied for an apprehended violence order against the second Plaintiff. 59Subsequently, the first Plaintiff sought an apprehended violence order against the fourth Defendant, but, ultimately, this did not proceed. 60In late January 2010, contracts for the sale of the first Plaintiff's house were exchanged. The sale price was $915,000. The sale was completed on 9 March 2010. I shall return to this matter later in these reasons. 61The second Plaintiff says that prior to the Tribunal hearing in May 2010, the first Plaintiff signed her own cheques and managed her own finances with his assistance and the assistance of D. She paid her own nursing home fees.

The Application in the Tribunal 62The fourth Defendant filed the application in the Tribunal on 4 January 2010, seeking a guardianship and financial management order in respect of the first Plaintiff. (She subsequently filed an application for a review of the Power of Attorney and Enduring Guardianship, granted by the first Plaintiff, in favour of the second Plaintiff. Subsequently, the application for review did not proceed.) 63The genesis of the application to the Tribunal, the fourth Defendant says, was that she and the fifth Defendant "witnessed our mother's unusual behaviour, distress and diminishing mental capacity". 64On 25 February 2010, the Tribunal appointed a separate representative for the first Plaintiff. 65Interestingly, her application to the Tribunal, included the statement that the fourth Defendant had told the first Plaintiff that "I believe it would be in her best interests if a NSW Trustee & Guardian representative jointly managed her estate with" the first Defendant. 66The application came before the Tribunal, for the first time, on 10 March 2010. On that date, the Tribunal granted leave to the first Plaintiff to be legally represented and adjourned the application until 7 May 2010. The Tribunal made a direction for the filing of evidence. 67Each of the Plaintiffs, and the first, third and fourth Defendants, was a party in the proceedings before the Tribunal. Other persons, including the fifth and sixth Defendants attended the Tribunal hearing. 68A differently constituted Tribunal heard the application on 7 May 2010, and delivered its reasons for Judgment on about 16 May 2010. 69The first Plaintiff attended the Tribunal hearing on 7 May 2010. She says that she did not co-operate with the Tribunal and did not answer questions as fully as she could "because I regarded the proceedings as an invasion of my privacy". She gave false evidence to the Tribunal, knowing it was false, because "I did not want [the fourth Defendant] to know where my money was". 70The matter was made more difficult because there was an allegation that the day before the first Plaintiff met with the Clinical Psychologist, whose report was relied upon, she was given valium, which affected her cognition. This, it was said, resulted in some of the matters contained in his report provided to the Tribunal being inaccurate. 71A further complaint was that the Care Services Manager at the Home at which the first Plaintiff was resident, and who also provided a report, was a person with whom each of the Plaintiffs did not get on, the result being that she was unlikely to say anything favourable about the first Plaintiff.

The Tribunal Decision 72I summarise the salient points of the Tribunal's decision on financial management: (a) The Tribunal considered the first Plaintiff's health and ability generally in the context of the application for the guardianship order. (b) The evidence revealed that there was some impairment present that impacted on her ability to make decisions concerning her financial affairs. (c) The first Plaintiff was unable to give the Tribunal a reliable account of the way in which she managed her own affairs. She was unable to tell the Tribunal how much money that she had in each of her bank accounts, or to estimate the amount of her pension income. (d) She was able to state that her home had been sold for $915,000, but when questioned on where the proceeds of sale were, she gave the Tribunal a version which is accepted as being false. (e) The wife of the second Plaintiff confirmed that the first Plaintiff had given cash amounts to a priest. (f) The Tribunal found that the first Plaintiff was a person incapable of managing her affairs and that there was "quite clearly" a need for someone to manage her financial affairs. (g) The first Plaintiff expressly stated that she would trust the second Plaintiff to make decisions about her financial affairs. However, the second Plaintiff did not satisfy the Tribunal that he was prepared to meet the accounting and reporting requirements of the NSW Trustee. He said that he would only meet such of those requirements that the first Plaintiff permitted him to do so. (h) The second Plaintiff, as the first Plaintiff's Centrelink nominee, had not informed Centrelink of the sale of her residential property. Nor did he seek advice on the impact that sale might have on her Centrelink benefits. (i) Relevant information having been given to the second Plaintiff, he did not appear to understand the concepts related to private financial management. In addition, despite it appearing that the first Plaintiff had received the proceeds of sale in cash, he did not seem troubled that she no longer had possession of it. (j) The Tribunal was not satisfied that the second Plaintiff was a "suitable person" for the purposes of the Act. (k) It would be in the first Plaintiff's best interests to commit her property and affairs to the management of the NSW Trustee. 73I summarise the salient points of the Tribunal's decision on the guardianship issue: (a) It appeared that the first Plaintiff had a range of medical conditions that impacted on her mobility, hearing and vision. (b) There was an impairment that impacted upon her ability to make decisions concerning her financial affairs, her residential situation and her care needs. (c) The first Plaintiff did have a disability within the meaning of the Act. (d) As a result of the disability, the first Plaintiff was, at least, partially, incapable of managing her person. Accordingly, she was in need of a guardian. (e) The first Plaintiff confirmed that she would trust the second Plaintiff to make important decisions for her. The second Plaintiff would accept appointment as her private guardian. (f) The Tribunal recognised, at this stage of the first Plaintiff's life, that it would not assist her to live in dignity if those who loved and cared for her most were in conflict with each other about decisions related to her. Such conflict was likely bearing in mind the relationship of the second Plaintiff and the fourth and fifth Defendants. (g) In the circumstances, it would be in the first Plaintiff's best interests to appoint an independent guardian who could discuss her needs with each of her children as well as with health care professionals. The Public Guardian was best placed to fulfil the role. 74I have also considered a number of other documents filed in the Tribunal proceedings, which reveal the following additional facts that seem to me cannot be the subject of substantial dispute: (a) The first Plaintiff had a history of osteoarthritis, osteoporosis, bilateral total knee replacement, total hip replacement, hypertension, stress incontinence and poor hearing. She used a wheelchair to mobilise. (b) The first Plaintiff said that she signed her own cheques until she was prevented from doing so. (c) The first Plaintiff had undergone different MMSE tests in April 2010, with her scores, on each occasion being higher than 23/30. However, she had similar scores in 2002 and 2003. (When she saw the Clinical Psychologist, her score was 20/30.) (d) There was an intense level of conflict between the second Plaintiff and the fourth and fifth Defendants. Clearly, he did not trust them to act in the first Plaintiff's best interests and they did not trust him to do so either. 75In stating the above matters, I have endeavoured to state facts that would not be affected by the complaints made by, or on behalf, of the first Plaintiff. In particular, I have stated facts that are set out in the reports relied upon where there appear to be other sources of information that corroborate the conclusions stated. 76I have also read the transcript of the proceedings. During the proceedings the first Plaintiff stated that she did not need the hearing because "there is nothing wrong with me ... Not a thing". She said that she could handle her own affairs and look after herself. She said that she even looked after herself at the nursing home, making her own bed, brushing her hair and doing everything for herself. She went to the toilet on her own. She repeated a problem that she had with a person with whom she had shared a room. 77She blamed the fourth Defendant for bringing the proceedings and repeated this a number of times. She also said that she could not move the pages shown to her "because of the drugs". 78The second Plaintiff, in answer to the question whether the fourth Defendant should be legally represented at the Tribunal hearing answered that he would like to have the proceedings "stay a little bit informal ... due to mum's age if it got into legal terms or legal argument she might not understand or be confused by it ...". 79On the issue of who should be appointed, the second Plaintiff maintained that he believed the first Plaintiff was capable of managing her own affairs and even if he were appointed as financial manager, since he held that belief, in complying with the obligations to file a management plan and/or accounts, he would only pass on "whatever records she wants to give me" and that it "would be totally up to her".

Was there an Error? 80In its reasons for decision, the Tribunal correctly noted that it had to be satisfied of the three matters set out above before it could make a financial management order. There is nothing in the Tribunal's reasons for decision that suggests that it erred in the way it characterised the relevant legal tests or applied those principles to the facts as found in relation to the first Plaintiff. 81It also correctly identified what needed to be established before a guardian could be appointed. The same points as made in the previous paragraph may be made in respect of the Tribunal's reasons for decision on the guardianship issue. 82These matters appear not to be in issue since there is no appeal on any questions of law. 83Rather, the question appears to be whether the reasons for decision indicate that the examination of the evidence, led to the Tribunal into error. The Plaintiffs submitted that it was the determination of the facts that led to the error. 84My reading of the transcript and the manner in which the hearing was conducted does not allow me to accept the Plaintiffs' submission. The Tribunal confined its role to considering what documentary information had been provided to it, to observing and questioning the various persons who were present, including each of the Plaintiffs. It then made factual findings about the first Plaintiff's capacity and disability based upon the documentary evidence, the observations and the answers to the questions. 85It has been submitted, first, that the medical evidence, which was unchallenged, showed that the first Plaintiff was capable of managing her affairs. Even if the medical evidence that was submitted to the Tribunal was unchallenged, I am not satisfied that it established that the first Plaintiff was capable of managing her affairs. 86In this regard, the medical evidence, overall, demonstrated that there were some cognitive impairments present that impacted on her ability to make decisions concerning her financial affairs. That was supported by the first Plaintiff's inability to show how it was that she managed those affairs. It was insufficient, in my view, to simply state that she had been signing her own cheques and paying bills with the assistance of the second Plaintiff and his wife. I am satisfied that the Tribunal's findings were based on logically probative information that was provided to it. 87Secondly, the premise upon which the submission is based seems flawed. If one considers all of the medical evidence, including the whole of the reports of Mr Champion and Ms Giles, one would be led to the undoubted conclusion that the first Plaintiff was unable to manage her financial affairs. One would also be led to the conclusion that she was suffering disabilities that required the appointment of a guardian. 88The flaw in the Plaintiffs' submission is that the reports in each case should not be accepted, in the case of Mr Champion, because the first Plaintiff had been drugged at the time she saw him, and in the case of Ms Giles, because she was biased against the Plaintiffs. Neither assertion was established at the Tribunal or before this Court. 89It is also said that some of the information before the Tribunal was knowingly false. However, that does not assist the Plaintiffs since it was the first Plaintiff and the wife of the second Plaintiff who provided that knowingly false information to the Tribunal. 90In my view, the Tribunal was correct in its determination of the facts. Even the facts that I have set out above, which I find could not be in dispute, would be sufficient to lead to the conclusions to which the Tribunal came on the issues of capacity and disability. 91Although not specifically addressed in their written submissions, another submission was that in determining who to appoint as financial manager and guardian of the first Plaintiff, the Tribunal erred. In each case, an independent person was appointed. 92Again I am satisfied that the Tribunal was not in error on the facts. In relation to the second Plaintiff, there was available information that led the Tribunal to the view that he was not a "suitable person". I have set out factual matters above, which I consider could not be in contest, which could have led, and did lead, to the Tribunal's decision. It is clear from the reasons for the Tribunal's decision that the availability of the second Plaintiff as financial manager and guardian was considered, as was the first Plaintiff's choice of him. However, he was not, in all the circumstances then known, considered by the Tribunal to be a person who ought to be appointed. 93Furthermore, the views of the first Plaintiff and the availability of the second Plaintiff to act were not the only considerations that the Tribunal needed to bear in mind. It was also required to consider the importance of preserving the first Plaintiff's existing family relationships, including her relationship with some of the other Defendants.

Should leave be granted 94I have earlier set out the principles that apply on this question. 95Counsel for the Plaintiff did not identify any broad questions of administration or policy that would justify the appeal being extended to the merits of the Tribunal's decision. 96Even if the Tribunal's approach to deciding whether to appoint the NSW Trustee or some other person as the financial manager of an estate, or the NSW Guardian as the guardian of a person raises broad questions of policy, I am not satisfied, on the facts of the present case, that leave should be granted. The determination of the most appropriate financial manager and guardian is a matter best left to the Tribunal. It has the experience as well as the guidance of high authority (e.g. Holt v Anor v Protective Commissioner (1993) 31 NSWLR 227) in this regard. 97Also, I am not persuaded that the Tribunal went about the fact-finding exercise in an unusual or unorthodox manner. To the contrary, it set out the evidence clearly and gave cogent reasons for its conclusions in its reasons for decision. 98Accordingly, I do not propose to grant the leave sought by the Plaintiffs to allow the appeal. It follows that the Plaintiffs are not entitled to the relief sought.

Alternative Approach 99Because so much effort was put into preparing the Plaintiffs' case, apparently upon the basis that the leave application would be successful and that there would be a hearing on the merits, and assuming contrary to my earlier conclusion that leave should not be granted, I shall set out some additional matters that are relevant to the merits of the substantive appeal and then my conclusions in respect thereof. 100Firstly, on the question whether the first Plaintiff is capable of managing her affairs, it is necessary to identify some of the additional medical evidence of Dr Parmegiani and Associate Professor Rosenfeld. 101The following are the salient points raised in the medical reports: (a) During the assessment by Dr Parmegiani, the first Plaintiff did not express delusional ideas. She did not feel persecuted, watched, or followed. She did not experience visual or auditory hallucinations. She did not express irrational ideas. (b) On MMSE testing, the first Plaintiff scored 20/30. This indicated moderate degree of cognitive impairment. She had poor short-term memory. She was initially unable to name one of her children. She could not perform basic subtractions or copy a simple drawing. (With Associate Professor Rosenfeld, she scored 26/30.) (c) She presented as a coherent and strong-willed individual. Her cognitive decline is thought likely to be exacerbating pre-existing personality traits including stubbornness, irritability and the need to maintain control. (d) Whilst the first Plaintiff does not suffer a psychiatric disorder, there is a question about her cognitive capacity and whether she can manage her affairs. (e) The clinical features of the history and examination as well as the documents and opinions read by Associate Professor Rosenfeld, suggested the presence of mild to moderate cognitive impairment, including, to a degree, higher level executive impairments such as higher level judgment and decision making. She probably did not suffer dementia, but there were features that are consistent with early, probably vascular, brain disease. (f) Her ability to manage financial and monetary affairs is probably less than would be reasonably expected to be necessary or safe. She has, and is likely to continue to need assistance with day-to-day financial transactions and monetary dealings. (g) Her ability to consider and determine health care needs and accommodation, preferences and consent are more likely to be greater, or at least at a level that would be adequate for her to understand the implications of the issues and her decisions regarding them. She has a degree of retained insight consistent with the features of her premorbid personality and background. (h) According to Associate Professor Rosenfeld, she demonstrated during his assessment, a clear understanding of and views regarding her family connections, the relative merits of the issues and personalities involved and her desire to have her wishes abided. Dr Rosenfeld concludes that there exists a degree of cognitive impairment with a degree of reduced insight, coupled with a background personality of strong will and determination. She retains her capacity to judge and decide. 102I note also, that the first Plaintiff repeated the lie about handing over the money to the priest when she was asked about it by Associate Professor Rosenfeld. She also told him that she was thinking about buying a unit and getting a nurse to look after her but was unable to elaborate how this would eventuate. In my view, each of these matters demonstrate a lack of insight into her own condition. 103Also, I have had the very considerable benefit of seeing and hearing the first Plaintiff. She: (a) maintained that it was her business what money she had and where it was and that she was not going to tell anybody; (b) maintained that she was capable of looking after herself without any assistance; (c) her money was being looked after by the second Plaintiff's wife; (d) did not know where her money was deposited or whether it was attracting any interest; (e) acknowledged that the statement to the Tribunal that her money had been given to a priest "was a definite lie"; (f) sold her house because she needed the money to look after herself; but later said that she did not want to sell it, but, in the end, she had to; (g) initially described the sale price of her home as " 9,000", then said, "9,000", but later correctly said it was "900,000", which was reduced to "eighty six thousand seventy something"; (h) said that she could not look after the proceeds of sale but could not say why she could not do so; she did not know who was looking after the money now, but thought it was still the second Plaintiff's wife; (i) stated that she had been given valium in the nursing home (as the second Plaintiff had a tablet tested); (this last assertion was not proved at the hearing); (j) was in Court "to get everything that was to myself again ... They have taken everything. My bank book, my cheque book, off me and I want to be back to normal"; (k) was able to do most things for herself; (l) stated that since they had taken away her cheque books, the second Plaintiff would give her "money, pocket money"; the second Plaintiff had paid for her clothes, but that she would have to pay him back; (m) stated that when she obtained the money back, "I would go into a nurse, get my own private nursing business" meaning that she would employ a private nurse to look after her, if she were not capable, but that she would be capable; she would keep her money somewhere "where [the fourth Defendant] could not get her hands on it"; (n) initially, accepted that the second Plaintiff did not get on with the fourth and fifth Defendants and that this might cause problems, but when asked what those problems might be said there would not be any, because she did not have anything to do with the fourth and fifth Defendants; (o) maintained that she trusted the second Plaintiff implicitly, but did not trust any of her daughters. 104When I asked the first Plaintiff to describe her day to day routine, she was only able to focus on the events of the last day or so. She described, correctly, that during the case, she had been staying at an hotel with the second Plaintiff and his wife; and that she had done everything to get herself ready to attend court. 105She maintained, repeatedly, that the problems had been caused by the fourth Defendant who continually asked her where the money was. This was stated in the context of the fourth Defendant wanting the money for herself. She did not accept that, perhaps, the fourth Defendant was worried about her. She said that she did not need to know that the fourth Defendant was not seeking to control her (the first Plaintiff's) money. She thought that the fifth Defendant was "being led on" by the fourth Defendant. 106It was clear to me that the first Plaintiff did not have any real idea about her financial affairs. For example, she did not appear to know that the second Plaintiff and his wife was holding a substantial amount of cash that belonged to her and that it was from this fund that her expenses were being, or could be, paid. 107At the end of her evidence, I asked her whether there was anything she wanted to say to me. She answered: "Oh I could fill a book, I could write a book about what I been through, it would take a long time. In that other nursing home I though I was going to get killed by this other patient and they find out she was suffering with - her name was May Cole, College or something and they moved her but she still come back and worried me and she still kept pushing me into the wall and I bruised all my legs, the front of my legs by hitting the wall." 108On the evidence overall, I am more than satisfied that the first Plaintiff is incapable of managing her affairs. The medical diagnosis of mild to moderate cognitive impairment, including, to a degree, higher level executive impairments, such as higher level judgment and decision making is tolerably clear. There is a need for another person to manage those affairs on the behalf of the first Plaintiff and, in my view, it is in her best interests that the order for the appointment of a financial manager be made. 109I have considered this not merely by reference to the day of the hearing, but in light of the reasonably foreseeable future. 110Based upon all of the evidence, I am also satisfied that the first Plaintiff has a number of disabilities. Because of these, she is at least partially incapable of managing her person and is need of a guardian. 111I turn then to the question of the appointment of the second Plaintiff as the financial manager and guardian. 112I have not forgotten that there is no suggestion of dishonesty against the second Plaintiff and/or his wife. Nor is there a suggestion that moneys have been used inappropriately. I have also seen the Book headed "Mum's Costs and Bills" which was tendered by the second Plaintiff. However, in my view these matters are not enough to establish that the second Plaintiff is a suitable person. 113I was unimpressed by the second Plaintiff. He endeavoured, throughout the cross-examination, to try and distance himself from what had been done following the sale of the first Plaintiff's property. In particular, he asserted, more than once, that his wife had handled the funds and that it was she who had been responsible for the way in which the proceeds of sale had been looked after. His evidence was punctuated by statements such as "I didn't do the banking", or "I didn't deposit the cheque", or "[My wife] would have removed the money not me". 114He stated that he had inspected the bank records that depicted the movement of the funds through various bank accounts to ascertain what had occurred but "I am not very good with all the accounting side of things and I have had an accountant always looking after it ... I have always used accountancy services". 115When the question of the funds being transferred into his sons' accounts was raised, he repeated that it was his wife, not he, who had been responsible for doing this. He later admitted that his wife had told him what she was going to do, although he did not know precisely when it was done. Yet, he accepted that it was he who "probably" signed the cheques necessary to enable the funds to be placed into his sons' accounts. 116Remarkably, one might think, he stated that he did not know about the "anomalies" that had been described to him by counsel for the fourth and fifth Defendants regrading the amounts transferred into, and out of, various accounts until they were raised in cross-examination. He could not explain the apparent delay in having the funds put back into the bank account following him being told that the bulk of those funds had been retained in the safe at his business premises. 117The second Plaintiff accepted that interest on the proceeds of sale had been earned but that it had not been credited to the funds held on behalf of the first Plaintiff. His sons, apparently, retained the interest because the first Plaintiff said that they could do so. 118He also stated that, even though he had received legal advice, he did not know that one of the issues that was being raised by the fourth and fifth Defendants related to the proceeds of sale of the first Plaintiff's home and the circumstances surrounding the receipt, and use, of those proceeds. He later stated that he did know. 119He had accepted, without question, that the bulk of the proceeds of sale of the first Plaintiff's home had been given to a priest. (He and his wife both stated that neither she, nor the first Plaintiff had told him the truth about the funds.) He did not ask his wife, or the first Plaintiff, who the priest was, how much had been given to the priest, or how much had been retained by his wife, although she did tell him that she had retained an amount. He did not enquire whether any receipt had been provided for the money, or how it could be recovered in the event that anything happened to either the first Plaintiff or to his own wife. 120Even after the second Plaintiff found out the truth about where the bulk of the funds were, he did not immediately attempt to take control of those funds. 121In addition, he had reimbursed not only himself, but also one of his sons, out of the first Plaintiff's moneys, for time taken off work to attend the Tribunal, because the first Plaintiff had said to him that she would pay any costs that he incurred. This was despite the fact, that in respect of the Tribunal hearing, he would have attended in any event. To the extent that he would lose wages for his attendance at court, he had, and would charge the first Plaintiff. He said that it did not matter that he was also a named Plaintiff. His explanation that "I am seeking to look after my mother and to restore her rights", whilst possibly true, was not a reasonable justification for recompensing himself and others. 122The second Plaintiff acknowledged that his son had not, in fact, lost wages since the second Plaintiff's company employed him. What had occurred was that the company had paid the wages, but it had been reimbursed out of the first Plaintiff's funds. 123The second Plaintiff also paid moneys to have the sixth Defendant attend the Tribunal proceedings. He paid, or reimbursed himself, moneys paid for the sixth Defendant's attendance, including giving the sixth Defendant $50 for a taxi fare and coffee, without seeing any receipt for that expenditure. 124The second Plaintiff could not offer a satisfactory explanation why, as the first Plaintiff's Centrelink nominee, he did not inform Centrelink of the sale of the first Plaintiff's home until after the Tribunal hearing. His only explanation was that "I hadn't received any paperwork so I didn't have access to the documents I needed". He states that he was looking for "paperwork" but did not identify what was being looked for. He accepted that he could have telephoned Centrelink to inform it of the sale. 125He did not inform any person in authority at the nursing home of the sale of the first Plaintiff's home. He said he informed a "nurse". He acknowledged that he could have written a letter, but did not do it. 126Despite the issue having been raised in the Tribunal, the second Plaintiff stated that he had only looked on the internet "a couple of times in the last 6 or 7 months" to find out what the role of a financial manager was" and that his enquiries had not been extensive. He did not know that the financial manager would be subject to the direction and authority of the NSW Trustee. He did not seem to fully understand the role and responsibilities of a financial manager. 127Finally, in relation to financial matters, the second Plaintiff stated that if he was appointed as the financial manager, he would seek to be remunerated in the same way out of the first Plaintiff's funds as he had been in the past. 128In relation to the fourth and fifth Defendants, the second Plaintiff acknowledged that he had not spoken to the fourth Defendant for some time, and with the fifth Defendant for about 1 year. He said that his relationship with the fourth Defendant was acrimonious, although he got on better with the fifth Defendant. He did not speak at all to the seventh Defendant. He had a good relationship with the sixth Defendant. 129He said that the only sibling he would not contact if he were appointed was the fourth Defendant and that he would leave it to the fifth Defendant to inform her about the first Plaintiff. 130He had not informed any of his siblings that the first Plaintiff had moved into a different nursing home two weeks before the hearing, but had told the nursing staff at the prior nursing home at which she had resided to tell them. 131I have no doubt that the appointment of the second Plaintiff as financial manager and/or guardian, inevitably, would lead to conflict between him and the fourth and fifth Defendants about decisions for the first Plaintiff, since they have been unable to agree on many things surrounding the first Plaintiff. (The conflict between the parties in terms of their different views has continued throughout the current proceedings.) This may put him in an untenable position were he to attempt to preserve his relationship with, at least, the fifth Defendant. Their relationship is reasonable although clearly not close. That conflict would ensure that any relationship he has, or had, with the fourth Defendant, is destroyed forever. 132Alternatively, it is highly unlikely that he will seek, or take into account, any views expressed by any of his siblings. It would not assist the first Plaintiff to have conflicts between her children overshadow decisions being made in her interests. 133Although it may be unnecessary to say anything about the second Plaintiff's wife, I should point out that I find her explanation for lying to the Tribunal unpersuasive. Whilst she may not have been giving evidence under oath at the Tribunal, to have lied to the members, whose task was to consider the best interests of the first Plaintiff, because she had been asked to by the first Plaintiff not to disclose what had happened to the funds is hardly commendable. It seems to me, that she, like the second Plaintiff, is not prepared to accept the cognitive disabilities of the first Plaintiff and objectively consider what is in her best interests. 134I conclude, despite the views of the first Plaintiff, that in all the circumstances I have outlined, the second Plaintiff is not a suitable person to be appointed the financial manager of the first Plaintiff's estate. I am of the view that her estate should be committed to the management of the NSW Trustee. 135I conclude, also, that the appointment of the Public Guardian as an independent guardian is needed in order to ensure the best interests of the first Plaintiff are advanced. 136Thus, whichever way one considers this case, the conclusions and reached and orders made by the Tribunal are correct. 137I therefore: (a) Order that leave is refused for the appeal. Order that the decision of the Guardianship Tribunal that the estate of the first Plaintiff be subject to management and that management of the estate be committed to the NSW Trustee is affirmed. (c) Order that the decision of the Guardianship Tribunal that the first Plaintiff be placed under guardianship and that her guardian be the Public Guardian is affirmed. (d) Order that the Summons be dismissed. (e) Order that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules. 138I have not heard any argument on costs. If the parties are unable to agree, that matter may be re-listed for argument.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2011