C S and M Y v the Guardianship Tribunal and the Public Guardian

NCAT Guardianship|2016-06-22|Before: Windeyer J

WHAT THE TRIBUNAL DECIDED

The Tribunal appointed Mr NBT as Mr HWS's guardian for a period of one month to advocate on his behalf as set out in the Tribunal's order.
The Tribunal appointed Mr NBT as Mr HWS's financial manager, on an interim basis for a period of one month.

BACKGROUND

Mr HWS is an 87-year old man who lives in his own home which he jointly owns with his two sons, Mr NBT and Mr TMV.
Mr HWS is widowed. It is reported that Mr HWS's sons arrange for their father's home care services, payments of bills, and trips to the doctors.
On 9 February 2015, the Tribunal dismissed applications for guardianship and financial management for Mr HWS.
On 21 June 2016, the Tribunal received an application from Mr NBT seeking guardianship and financial management orders in respect of his father, Mr HWS. In his application Mr NBT states that his father has dementia and a mental illness and was reported missing but has been located by the police who state that his last known location was in the United Arab Emirates ('UAE').

Preliminary procedural issues

A number of procedural issues and introductory matters needed to be dealt with prior to proceeding with the hearing itself. The procedural issues were as follows:

As Mr HWS is reportedly in the UAE, where is Mr HWS's domicile?
Does the Tribunal have jurisdiction to hear the applications given Mr HWS is reportedly in the UAE?
Should the Tribunal proceed with the application without Mr HWS being present?

Where is Mr HWS's domicile?

It is important to note that the Guardianship Act 1987 (NSW) does not make reference to the domicile or residence of a person the subject of an application for either a guardianship order or a financial management order.
The issue of a person's domicile in respect of applications before the Tribunal has been addressed in earlier decisions before the then Guardianship Tribunal of New South Wales (see JAK [2007] NSWGT 23 (31 October 2007), KDT [2010] NSWGT 5 (20 January 2010), and NGM [2011] NSWGT 7 (11 March 2011)).
However, each of the above cited cases provide a different factual matrix to that presented at this hearing.
NGM involved the review of a guardianship order which was allowed to lapse following the subject person moving from NSW to Western Australia and in circumstances where the person was no longer psychotic and where an application could be made for a guardianship order in Western Australia.
KDT was a matter involving a 30-year old woman who was an involuntary patient of a psychiatric facility overseas and as with NGM involved a review of an earlier guardianship order. The subject person had a disability associated with paranoid schizophrenia. The Tribunal determined to renew and vary the order to provide for the Public Guardian to continue as the subject person's guardian.
JAK was a matter where the guardians of a 68-year old man suffering from Multiple Sclerosis and Alzheimer's disease moved him from NSW to a nursing home in South Australia to be close to his sister who subsequently was appointed the subject person's guardian in South Australia. An application was then made for guardianship of the subject person in NSW. Ultimately the Tribunal determined that it did not have jurisdiction to deal with the NSW application.
The purpose of the above three paragraphs was to do nothing more than give an extremely brief glimpse of some of the facts of the cases to which reference is made. The Tribunal makes reference to them for no other reason other than to highlight that those cases in terms of their factual matrix are different to the facts of the matter before the Tribunal.
In addition to the above cited cases the Domicile Act 1979 (NSW) provides assistance to the Tribunal in terms of determining the domicile of a person. Section 7 of that Act provides: 1. A person is capable of having an independent domicile if: 1. the person has attained the age of 18 years, or 2. the person is, or has at any time being, married, and not otherwise. 1. Subsection (1) does not apply to a person, who, under the rules of law relating to domicile, is incapable of acquiring a domicile by reason of mental incapacity.
Mr HWS has been the subject of an earlier guardianship and financial management application. The Reasons for Decision in respect of the previous matter concerning Mr HWS in February 2015 note that the Tribunal was satisfied that Mr HWS has a disability which prevents him making important life decisions. In making this finding the Tribunal made reference to a medical report from Dr Z which stated that Mr HWS's medical history included "dementia of a mixed type (vascular and Alzheimer's)". (Dr Z's report was also filed with the present application).
Further, the Tribunal notes that Mr HWS's home is in Northwest Sydney. His two adult sons live in Sydney. There was no evidence to indicate that Mr HWS has left Australia permanently.
The Tribunal notes that Mr HWS's diagnosis of dementia would inevitably lead to doubts being raised about his ability to acquire a domicile away from NSW.
The Tribunal proceeded on the basis that Mr HWS's domicile is NSW.

Does the Tribunal have jurisdiction to hear the applications given Mr HWS is reportedly in the UAE?

There are two applications each raising different jurisdictional questions. The issue of jurisdiction is a threshold question.
In respect of the guardianship application, the Tribunal noted the following:

Mr HWS is domiciled in NSW;
Mr HWS's two sons reside in NSW and care for their father at their jointly owned property in Northwest Sydney;
both of Mr HWS's two sons believe that their father left Australia in unusual circumstances;
both of Mr HWS's two sons seek their father's safe return to Australia and his home in Sydney;
Mr NBT gave evidence that large sums of money have been withdrawn from his father's account for which his father could not give an explanation;
without any notification to his sons, Mr HWS has left Australia and travelled to the UAE;
both Mr NBT and Mr TMV hold concerns about the physical and mental well-being of their father particularly given the "constant care" he has been receiving of late (further details of which will be set out below).

His Honour Justice Young considered whether the Guardianship Act applied to persons physically outside of NSW in EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501. His Honour noted that the Guardianship Act does not define the persons who are subject to its operation. However, His Honour did not determine conclusively the question.
The Tribunal was conscious though of the common law presumption against the extraterritorial operation of State legislation (see Jumbunna Coal Mine v Victorian Coal Miners' Association (1908) 6 CLR 309 per O'Connor J at 363. See also s 12 of the Interpretation Act 1987 (NSW)). However, the presumption is rebuttable.
In Mobil Oil Australia Pty Limited v Victoria (2002) 211 CLR 1, Gaudron, Gummow and Hayne JJ stated at footnote 145: "it is clear that legislation of a state parliament should not be held invalid if there is any real connection - even a remote or general connection - between the subject matter of the legislation and the state."
In that same case, Chief Justice Gleeson at 26 stated "the idea that all transactions and relationships giving rise to legal consequences can be located "in" one particular state or territory is unrealistic".
As was pointed out in JAK [2007] NSWGT 23 (31 October 2007) at [35], the Tribunal: "decides applications in relation to particular people and, in doing so, must act in accord with its establishing legislation. Only a court can determine the meaning of legislation authoritatively."
The Tribunal was conscious of the fact that its paramount consideration in exercising any functions under the Guardianship Act is the welfare and interests of Mr HWS as a person with a disability (see s 4 of the Guardianship Act).
The Tribunal took into account the evidence presented to it and determined that there was a very "real connection" between the subject matter of the Guardianship Act (to benefit and promote the welfare and best interests of people with disabilities) and the evidence before the Tribunal concerning Mr HWS.
In Professors Pearce and Geddes, Statutory Interpretation in Australia, (4th Ed 1996, Butterworths), the authors, when discussing the presumption against the extraterritorial operation of statutes, state at 132, "the presumption against legislation having extraterritorial operation can be fairly readily rebutted if circumstances so demand". In the Tribunal's view the evidence presented to it in relation to Mr HWS so demand for the Guardianship Act to operate extraterritorially.
Accordingly, the Tribunal concluded that after taking into account the evidence in relation to Mr HWS the presumption that the Guardianship Act does not apply extraterritorially in respect of Mr HWS is rebutted. The Tribunal determined that it does have jurisdiction to deal with the guardianship application.
In relation to the financial management application, the evidence before the Tribunal of which more will be stated below included that:

Mr HWS has assets in NSW;
large sums of money have been withdrawn from Mr HWS's account for which no explanation can be given;
Mr NBT has been informed by police that his father is in the UAE;
the reasons for Mr HWS being in the UAE are unknown;
it is unknown how Mr HWS will be able to return to Australia and what financial resources he has access to while away from his home;
it is also unknown if any third parties have access to Mr HWS's funds;
Mr HWS may be vulnerable to exploitation.

In light of the matters referred to above the Tribunal considered that there is a need and it would be in Mr HWS's best interests for the Tribunal to deal with the financial management application. It is thus appropriate for the Tribunal to consider that in relation to the financial management application the Guardianship Act applies to Mr HWS given his circumstances and notwithstanding the fact that other than reportedly in the UAE his whereabouts are unknown. It follows that the Tribunal determined that in relation to the financial management application the presumption that the Guardianship Act does not apply extraterritorially in respect of Mr HWS is rebutted.

The absence of Mr HWS from the hearing

The Tribunal was conscious of the fact that it is required to afford procedural fairness to a person whose interests may be affected by the Tribunal's decision. Clearly, as the person who was the subject of the application, Mr HWS's interests may be affected by any decision that the Tribunal makes.
One aspect of procedural fairness requires the Tribunal to hear a person before making a decision affecting his or her interests. What this means is that a person who would be affected by a decision is entitled to attend the hearing in order to give evidence, make submissions and call witnesses.
The Tribunal must take such measures as are reasonably practicable "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings": Civil and Administrative Tribunal Act 2013 (NSW), s 38(5). That provision is a statement of the common law "hearing rule". That rule requires that a decision maker hear a person before making a decision affecting their interests. The obligation is flexible and depends, among other things, on the statutory context: Kioa v West [1985] 159 CLR 550 per Mason J at 585.
One of the primary aims of the Guardianship Act is to protect vulnerable people from neglect, abuse and exploitation: Guardianship Act, s 4(g). Another is the preservation of family relationships: s 4(e). In exercising any function, "the welfare and interests" of the subject person "should be given paramount consideration": Guardianship Act, s 4(a).
However, this aspect of procedural fairness must be applied in a way which is "appropriate and adapted to the circumstances of the particular case" (Kioa v West [1985] CLR 550 at 585).
The evidence presented at the hearing, which will be detailed below, indicated that Mr HWS could be the victim of exploitation, he did not inform his sons of his travel plans, he is reportedly not well and is reliant on medication to maintain a satisfactory level of health.
After applying the relevant legal principles to the evidence before it and taking into account the welfare and interests of Mr HWS as the paramount consideration, the Tribunal determined that the proceedings should continue notwithstanding his absence.

What did the Tribunal have to decide?

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

Is Mr HWS someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?
Should the Tribunal make a guardianship order and if so, what order should be made?
Who should be the guardian?
How long should the order last?

Is Mr HWS someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she is "a person in need of a guardian." A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person" (s 3(1), Guardianship Act). A person with a disability is a person who is: 1. intellectually, physically, psychologically or sensorily disabled; 2. of advanced age; 3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or 4. otherwise disabled; and 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 (s 3(2), Guardianship Act).
Filed with the Tribunal was a Discharge Referral dated 13 January 2015 from a public hospital written by Dr Z. The Discharge Referral made reference to Mr HWS's admission being as the result of "mental health problem/antisocial behaviour" and being "scheduled under the Mental Health Act for Mental Disorder".
Dr Z notes that Mr HWS's background medical history included "dementia mixed type (vascular + Alzheimer's)".
Also filed with the Tribunal is an ACAT Assessment dated 14 October 2015 in respect of Mr HWS. The Assessment notes that Mr HWS is approved for permanent residential care, residential respite care at a high level and a home care package Level 3 and 4. The Assessment notes that Mr HWS:

needs personal assistance, individual attention, individual supervision and/or physical assistance to perform the activities of daily living; and
requires assistance to make decisions about his living activities and arrangements.

Finally, filed with the Tribunal were Progress/Clinical Notes dated 5 January 2015 written by Dr Y, a psychiatry Registrar, during the time that Mr HWS was a patient at a public hospital. Dr Y states that Mr HWS "has dementia and an antisocial personality disorder".
The Tribunal has previously found that Mr HWS has a disability which prevents him making important life decisions. The condition Mr HWS suffers from is progressive in nature with such a finding being supported by Dr Y's notes and Dr Z's Discharge Summary. Based on this evidence and the previous finding the Tribunal is satisfied that Mr HWS has a disability which at least partially prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order and what order should be made?

The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a guardianship order: 1. the views (if any) of: 1. the person, and 2. the person's spouse, and 3. the person's carer and 1. the importance of preserving the person's existing family relationships, and 2. the importance of preserving the person's particular cultural and linguistic environments, and 3. the practicability of services being provided to the person without the need for the making of such an order.
These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2). When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

The evidence of Mr NBT

Mr NBT gave evidence to the Tribunal that he and his brother were concerned about the welfare of their father. Mr NBT described how his father was "under the constant care of me and my brother".
Mr NBT stated that he had engaged with an aged care service provider to attend his father's home twice a week to monitor his father's medication and diet, to clean and attend to other tasks on behalf of his father. Mr NBT stated to the Tribunal that he has asked the aged care service provider to report to him anything that is "untoward" in relation to his father's situation. Mr NBT has placed his father's name on a waiting list to receive additional care in line with the approval granted under the ACAT assessment undertaken in October 2015.
Mr NBT attends his father's home weekly on Saturdays and Sundays to ensure that his father's hygiene is maintained and to monitor his medications. Mr NBT takes his father on outings and as and when required to the doctors, where he acts as an interpreter.
When Mr NBT last saw his father on 12 June 2016 they went for a walk together. On their return he noticed that his father's legs and feet had swollen to "unprecedented levels". At the time he suggested to his father that they go to the hospital to have him examined by a doctor. Mr HWS was not willing to go to the hospital that night but indicated that he would go the following day. Mr NBT agreed to meet his father the next morning and asked him to call if he was unwell overnight.
That night Mr NBT received a call from his father's neighbour, Mr X. Mr X informed Mr HWS that his father had visited him asking that police be notified that his car had been stolen. During the conversation Mr X told Mr NBT that his father had shown Mr X an itinerary for a trip to Italy departing the next day.
When Mr NBT returned to his father's home the next morning at 6:30 AM to take him to the hospital he reported to the Tribunal that his father "was gone".
During his verbal evidence to the Tribunal Mr NBT sought to rely on a statement that he made which accompanied his application for guardianship for his father. Given the time of the hearing was now after 5 PM the Tribunal agreed to his request. The statement set out a number of matters which relevantly included:

His father had met a woman who was about 40 years younger than him;
His father had complained to Mr NBT that he felt scared and intimidated by this woman;
On 12 May 2016, a stranger appeared at the home of Mr NBT who did not wish to be identified as she was fearful of the women who she called "[Ms W]";
During the conversation with this stranger she informed Mr NBT and his wife that "[Ms W]" had been given a watch and a ring valued at $15,000, "[Ms W]" had taken his father to the bank to withdraw cash on several occasions and that she was about to have cosmetic surgery which she expected his father to pay for;
The stranger gave to Mr NBT the mobile number of "[Ms W]";
Mr NBT contacted "[Ms W]" by text message and urged her not to travel overseas with his father as he has health issues and the last time he went to Italy about four years ago he spent months in a convalescent home recovering;
Mr NBT pleaded with "[Ms W]" not to put his father's life at risk by travelling on an airplane to which she replied "f..k off now don't message me";
On 15 June 2016, Mr NBT sent "[Ms W]" a text message expressing concern about his father's wellbeing and requesting information about his state of health and his location;
A further text message was sent by text to "[Ms W]" on 16 June 2016 but no reply was received.

On 18 June 2016 Mr NBT filed a missing person's report with the NSW Police. Mr NBT gave evidence to the Tribunal that the Police informed him that they had tracked his father's last known location to the United Arab Emirates.
The Police, both NSW Police and Australian Federal Police, have indicated to Mr NBT that they would be more "relaxed" talking to him if an order was in place as the Police have concerns about protecting Mr HWS's privacy. Mr NBT indicated that an order would give him "more powers to take charge" of his father's level of care.

The evidence of Mr TMV

Mr TMV gave evidence to the Tribunal that in the month leading up to his father's leaving the country he had noticed "quite a significant change" in his father. He described his father's conversation as being "fragmented" and "distant". Mr TMV was also very concerned that his father was taking his regular, necessary and correct medication.
Mr TMV supported the evidence given by his brother.

Public Guardian's view

A representative of the Public Guardian expressed concern to the Tribunal that if Mr HWS was not in the country, the Public Guardian would find it very difficult to agree to an order, noting that there was no report from the aged care service provider or Mr Mr HWS's GP.
The representative of the Public Guardian stated that if Mr HWS's diagnosis was established then on the facts a guardian would only be able to undertake some form of advocacy on behalf of Mr HWS communicating with authorities to establish his welfare.

The Tribunal's determination

In making any decision the Tribunal has a duty to take into account the principles set out in s 4 of the Guardianship Act. The Tribunal must also have regard to the matters set out in s 14(2) of the Guardianship Act.
Several of the principles enunciated in section 4 are relevant in relation to the determination of the application before the Tribunal. Those principles are the welfare and interests of Mr HWS should be given paramount consideration, the freedom of decision and freedom of action of Mr HWS should be restricted as little as possible, the views of Mr HWS in relation to the exercise of those functions should be taken into consideration, Mr HWS should be encouraged, as far as possible, to be self-reliant in matters relating to his personal, domestic and financial affairs and Mr HWS should be protected from neglect, abuse and exploitation.
The principles referred to above then need to be applied to the facts as presented to the Tribunal at the hearing. In addition, issues such as procedural fairness need to be taken into account.
The Tribunal was satisfied that Mr HWS has a disability which impacts on his ability to make decisions about important life matters. However, Mr HWS was not present at the hearing and therefore could not express his views to the Tribunal. It may be that Mr HWS did wish to travel to Italy but the Tribunal can only speculate in this regard.
Further, although there was evidence that a younger woman may be adversely influencing Mr HWS, neither the woman concerned nor Mr HWS himself was able to present their views on this aspect of the matter.
The paramount consideration is the welfare and interests of Mr HWS. The evidence indicated that Mr HWS does have dementia. The Tribunal accepts the evidence of his sons Mr NBT and Mr TMV that they have a close relationship with their father and note that despite this relationship they were not informed of their father's intentions to travel overseas.
The evidence indicated that Mr HWS is overseas, whether he remains in the UAE or travelled to some other location is only speculation. The Tribunal can, though, understand the concerns of Mr HWS's sons about their father's wellbeing. Naturally, they want to ensure that he is well and safe. The Police quite properly do not want to disclose to Mr HWS's sons information which in the normal course would be private without some order being in place.
The Tribunal carefully considered all of the evidence before it and weighed up the utility of an order given Mr HWS is overseas. The Tribunal also took into account the issue of affording Mr HWS procedural fairness. Ultimately, the Tribunal was persuaded that it was appropriate to make a guardianship order albeit a short order with a limited function.
The Tribunal considered that it was appropriate for a guardian to have an advocacy function to be able to liaise with government authorities in respect of the Mr HWS's status and situation as a resident of NSW currently overseas.

Who should be the guardian?

There is a proposal that Mr NBT be appointed guardian for Mr HWS. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Guardianship Act. He/she must: 1. have a personality generally compatible with the personality of the person under guardianship, 2. have no undue conflict of interest (particularly financial) with those of the person and 3. be able and willing to exercise the functions of the order.
In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Guardianship Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, [66]).
In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.
The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed (s 15(3), Guardianship Act).
The Supreme Court has held 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, [25]).
During the course of his evidence Mr NBT demonstrated to the Tribunal that he had a loving and caring relationship with his father. He regularly visits him and plans and organises his care. He was articulate and calm in the evidence he gave to the Tribunal. The Tribunal felt that he would have no difficulty in exercising the advocacy function.
On the basis of this evidence, the Tribunal was satisfied that Mr NBT meets the requirements to be appointed as the private guardian for Mr HWS.

How long should the order last?

An initial guardianship order can be made for a period of up to one year from the date on which it was made.
The Tribunal decided to make an order for one month because this should be sufficient time for Mr NBT to make necessary enquiries to locate his father through liaising with relevant authorities. Once Mr HWS is found the Tribunal will hopefully be able to obtain his views on his situation.

What did the Tribunal have to decide?

The questions to be considered by the Tribunal are:

Is Mr HWS incapable of managing his affairs?
Is there a need for another person to manage Mr HWS's affairs and is it in his best interests for a financial management order to be made?
If so, who should be appointed financial manager?

Is Mr HWS incapable of managing his affairs?

Difficulties inevitably arise for the Tribunal in addressing this question and making a determination in circumstances where the person, the subject of the application, is not present at the hearing and in circumstances where there is no expert evidence available for consideration by the Tribunal on the issue.
The Tribunal had already determined that Mr HWS had a disability which impacted on his ability to make important life decisions. The Tribunal is satisfied that Mr HWS has dementia. What cannot be determined is the extent to which this diagnosis renders him incapable of managing his own affairs.
In these circumstances the Tribunal looked to the evidence available to it and applied it to the applicable law.
Mr NBT gave evidence to the Tribunal to the effect that he would normally assist his father with his banking and other financial affairs. Mr NBT would take his father to the bank, where his father would draw from his account sufficient cash to pay for bills that had arisen such as utilities, and for the aged care service provider. Mr NBT would then attend to paying these bills on behalf of his father using the cash that had been withdrawn by his father.
Mr NBT informed the Tribunal that he was concerned that the woman "[Ms W]" was accompanying his father to the bank and withdrawing large sums of cash. The Tribunal questioned Mr NBT as to what proof he had of these withdrawals. Mr HWS responded by stating that he had seen his father's bank statements for the months of April and May 2016 which showed several large cash withdrawals ($4,000 to $5,000 at a time).
Mr NBT stated to the Tribunal that when he raised these large withdrawals with his father his father stated that he had no knowledge of the withdrawals. The Tribunal asked Mr NBT if his father offered any explanation at all about the withdrawals. Mr HWS stated that his father said that he had not withdrawn the money.
The Tribunal considered carefully the evidence that Mr NBT gave to the Tribunal against the background of Mr HWS not being present at the hearing, and there being no recent medical or other expert evidence going to the issue of whether Mr HWS was capable of managing his affairs. The Tribunal took into account the evidence that Mr NBT gave to the Tribunal in respect of the guardianship application referred to earlier in these Reasons for Decision including the visit to his home of the unnamed woman expressing concerns about the influence on his father of "[Ms W]" and the genuine concerns that both of Mr HWS's sons held for their father.
In Re D [2012] NSWSC 1006, White J assessed the history of case law in relation to financial management and noted that initially the issue of capability was approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Court now assesses the person's own capacity to do what they are proposing to do [58]. White J used a "rational appreciation" of assets test to determine a person's capability to manage his or her affairs. He adopts the reasoning of Barrett J in P v R [2003] NSWSC 819 who said that the task of the Court in these circumstances: …is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person's property…the requisite judgment is to be made in the light of objective physical facts concerning the relevant person's property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter [26].
In PB v BB [2013] NSWSC 1223, Lindsay J confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at [7]: Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack "mental capacity" or be "mentally ill"; or (b) particular reasons for an incapacity for self-management.
The test for determining a person's capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]): Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests? … [A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.
In considering whether the person is "able" in this sense, consideration may be given to:

past and present experience as a predictor of the future course of events;
support systems available to the person; and
the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498, at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, at [309].

The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at [86]). See Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [20]:
Each case must, of course, be considered on its own facts, including not only actual facts presently known but also, so far as they can be known, prospective developments.
Up until a week or so prior to the filing of the application Mr HWS, based on the evidence before the Tribunal, was reliant on his sons to assist him with his financial affairs. They appear to be the ones that provide to him a support system. They were the ones that took him to the bank and paid his bills.
The extent to which Mr HWS organised the visits to the bank and directed his sons to pay accounts was not canvassed directly at the hearing. However, it appeared to the Tribunal that the outings to the bank came about as a result of the efforts of Mr HWS's sons not the other way around.
The Tribunal was very concerned about the withdrawals of large sums of cash from Mr HWS's account in circumstances where he was not able to inform his sons about the reasons for the withdrawals. Against the background of the evidence regarding "[Ms W]" the Tribunal was concerned as to whether Mr HWS was the subject of financial abuse or exploitation.
Although the Tribunal was conscious of Mr HWS's vulnerabilities, his dementia diagnosis and the possibility of him being exploited it was not satisfied that he is not capable of managing his own affairs as the Tribunal was not able to speak to him nor had filed with it any expert evidence addressing this point.
However, s 25H of the Guardianship Act provides that despite s 25G (which sets out the grounds for making a financial management order) an interim financial management order can be made "pending the Tribunal's further consideration of the capability of the person to whom the order relates to manage his or her own affairs".
The Tribunal has as a core jurisdictional purpose, as set out in the Guardianship Act, the care and protection of those persons who have disabilities. Section 4 of the Guardianship Act imposes a duty on everyone exercising functions under the Act to observe a number of principles. Those principles include - the welfare and interests of persons with disabilities should be given paramount consideration (s 4(a)) and such persons should be protected from neglect, abuse, and exploitation (s 4(g)).
The facts of the matter before the Tribunal when applied to the s 4 principles led it to the conclusion that it would be in the best interests of Mr HWS for an interim financial order to be made pursuant to section s 25H of the Guardianship Act. There seemed to the Tribunal, based on the evidence, a real risk that Mr HWS could be the subject of financial exploitation. An interim financial order would ensure that the Tribunal could at a subsequent hearing properly consider the question of whether Mr HWS is incapable of managing his own affairs. The interim financial order is made for one month.

Who should be appointed as interim financial manager?

In appointing an interim financial manager, as in making all other orders under the Guardianship Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Guardianship Act.
Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian.
In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court's broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.
On the side of the then Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage.
The advantages of the appointment of a family member were more economic management of smaller estates (that is, freedom from fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers.
The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be "more apparent than real", should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family.
In Application by AMAM; Re SAM [2011] NSWSC 503, Hallen AsJ stated: [34] It would be unwise to attempt any definition of the matters that may legitimately be enquired into to determine whether the applicant is suitable. Each case must depend on its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager's character, honesty and ability to manage, diligently, the managed person's property in the managed person's best interests.
The matters or "guidelines" that should be considered when determining who to appoint as financial manager, as established in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, are discussed and expanded upon by Lindsay J in M v M [2013] NSWSC 1495 at [50].
Mr NBT is a chartered accountant who runs his own accounting practice. He has regularly and consistently assisted his father with the management of his financial affairs. He struck the Tribunal as a person who would be able to diligently and capably undertake the task of his father's interim financial manager. Mr NBT has a genuine concern for his father and the Tribunal considered that he would have the best interests of his father at heart when discharging his duties as the interim financial manager.
The Tribunal was satisfied that Mr NBT was a suitable person to be appointed as interim financial manager for Mr HWS subject to the authorities and directions of the NSW Trustee and Guardian.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 23 December 2016

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