CJ v AKJ

Parties and witnesses

1. The Appendix to these Reasons for Decision identifies the parties to the application and the witnesses who gave evidence at the hearing. [Appendix removed for publication.]

Issues for determination by the Tribunal

1. Under s 25P(1)(a) of the Guardianship Act 1987 (NSW), when the Tribunal reviews a financial management order, it must vary, revoke or confirm the order.
2. By his application, Mr RMK seeks revocation of the financial management order made for Mr QCK. Under s 25P(2) of the Guardianship Act, I can revoke that order only if: 1. I am satisfied that Mr QCK is now capable of managing his affairs. This is often called the "regained capability" ground; or 2. I consider that it is in Mr QCK's best interests that the order be revoked (even though I am not satisfied that he is capable of managing his affairs). This is often called the "best interests" ground.
3. At the opening of the hearing, Mr RMK confirmed that he sought revocation on both these grounds.
4. Under s 25P(1)(b) of the Guardianship Act, when the Tribunal is reviewing a financial management order it can also consider whether to revoke the appointment of the current financial manager if it is appropriate to do so. Obviously that issue will only arise if the original order is to continue; that is, if I decide not to revoke it.
5. It follows that the issues for my determination were: 1. Has Mr QCK regained the capability to manage his own affairs? 2. If he has not, would it nevertheless be in his best interests for the current order to be revoked? 3. If I decide not to revoke the order, should the appointment of Mr RMK as financial manager be revoked, in which case who should be appointed as financial manager? 4. If I decide not to revoke the order, should it be varied in any other way?

Participation in the hearing by Mr QCK and his views

1. We seek to hold our hearings in a way which promotes the participation of the person who is the subject of the application or review and we do our best to obtain the views of the subject person whenever possible.
2. Mr QCK attended and participated actively in the hearing. He confirmed that he wished to have the financial management order revoked. He gave me a reasonably detailed account of his major assets and of the way in which, with assistance, he wished to manage his own affairs in future. Mr QCK's account of these matters is set out in more detail in [25] below.

THE TRIBUNAL'S ASSESSMENT OF THE EVIDENCE AND DETERMINATION OF THE ISSUES

Has Mr QCK regained the capability to manage his own affairs?

The legal principles and authorities

1. The Supreme Court of New South Wales has provided guidance in several decisions as to how the Tribunal should assess a person's capability to manage his or her affairs. In earlier cases, the Court had based its test predominantly on the ability of the subject person to conduct the ordinary everyday affairs of people. It was said that if by reason of a failure to do this there would be a real risk that they would be disadvantaged or that their money or assets would be at risk of dissipation, then they would properly be treated as being incapable of managing their affairs. However, that approach has been reviewed and altered in more recent cases in which it has been emphasised that the Tribunal should not be relying just on hypothetical notions such as "the ordinary affairs of people" but rather should focus on the capability of the particular person to deal with his or her actual assets and to do what he or she is proposing to do with them.
2. Recently, in CJ v AKJ [2015] NSWSC 498, His Honour Justice Lindsay set out his preferred approach to this issue. He said that a Court or Tribunal should focus on whether the person is able to deal with (make and implement 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.
3. His Honour went on to say that in considering whether a person is "able" in this sense, the Court or Tribunal may give attention to: (i) past and present experience as a predictor of the future course of events; (ii) support systems available to the person; and (iii) 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.
4. His Honour further noted: "Consideration of the question of a person's capacity to manage their affairs depends upon an assessment of his subjective circumstances, including the support available to him from his family and the extent to which he, placed as he is within a benign domestic environment, can be relied upon to make sound judgements about his welfare and interests…(and whether) within the community of his family, and with their ongoing support, he is able to take care of himself, his property and his finances" (at [54].)
5. In that case, His Honour declined to make a financial management order.
6. In G v G [2016] NSWSC 511, Justice Lindsay emphasised that in considering what order should be made a tribunal must be mindful of the protective purpose of the jurisdiction; and the need to ensure that whatever is done, or not done, by the Tribunal is in the interests and for the benefit of the person under consideration as a person in need of protection.
7. Disability in the guardianship sense is not an element of the test for incapability for the purposes of considering a financial management application: GW v Protective Commissioner & Ors [2003] NSW ADTAP 51.
8. The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81, [86]). Justice Lindsay accepted that proposition in the recent case of Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106.

Evidence as to Mr QCK's regained capability

1. There were four sources of evidence considered by me in relation to this important threshold issue; namely evidence from Mr QCK himself and from his wife Mrs TDK, evidence from the applicant, Mr RMK, the views of the NSW Trustee and Guardian, and a medical report dated 30 August 2016 from Dr Z, Consultant Psychiatrist.
2. Mr QCK himself was able to provide me with a reasonably detailed account of his assets, including separate accounts at Bank A and Bank B, the major purpose of each such account and the fact that the Bank B account has a greater interest component, general details about his share portfolio and the steps he takes to check the market and to discuss it and obtain advice from his accountant in Adelaide, with whom he apparently has had a long association. Mr QCK indicated that he also discusses his investments with his son, Mr RMK.
3. Mrs TDK told me that she believes that her husband is now able to consider financial issues carefully and that he is a conservative investor; choosing to invest mainly in banks and major industrial companies. Mrs TDK related that, like most people, she and Mr QCK had received their share of telephone calls and other communications from suspicious sources seeking investment but she said that her husband has never been persuaded to invest any of his money in such ventures.
4. Mr RMK observed that since about August 2016 his father's condition had improved substantially and that his father often discusses financial matters with him, particularly his investments and his desire to raise money for charities. Mr QCK confirmed that this was so.
5. Ms Kirsten Lees from the NSW Trustee and Guardian, having heard the evidence of Mr QCK and Mrs TDK and Mr RMK observed that it appears that Mr QCK now knows what he is doing with his money and that the NSW Trustee and Guardian at present could see no warning signs which would cause them to advise against revocation of the order.
6. I also considered the report dated 30 August 2016 from Dr Z, Consultant Psychiatrist. Dr Z assessed Mr QCK on 6 July 2016 and reviewed him on 20 and 27 July 2016 and on those occasions spoke separately to his son and to his wife. Dr Z confirmed that Mr QCK had a cerebral bleed from a ruptured cerebral aneurysm in May 2014, but that in his view Mr QCK's cognitive and mental function had stabilised since that date. Mr QCK presented with some features of cognitive impairment, in that his concentration was at lower levels that might have been expected of a man of his education, but he concluded in the following terms: "However, for real life situations, his cognitions were adequate".
7. In particular, Dr Z observed that Mr QCK appeared to have a good understanding of his finances; he knew the extent of his assets and he appeared to be careful in managing those assets by living off dividends from stocks that he previously invested in. There was no behaviour suggestive of excessive or inappropriate spending. There was no suggestion of inappropriate behaviour which would impact on Mr QCK's ability to manage his finances. Dr Z concluded that he would support an application for appropriate orders to enable Mr QCK to regain full control of his finances.
8. I asked Mr RMK why there had been a delay until late-April 2017 in the lodgement of the application for revocation of the order, given that Dr Z's report had been available in early September 2016. I understood Mr RMK to respond that he had been slow in preparing the application and that there had apparently been some error in the receipt of his application in late-January 2017, and that it had not been until late-April 2017 the final application had been lodged. I accept that were so but I note that there was still an apparent delay of about four months between receipt of Dr Z's report and the lodgement of the initial application.

My conclusions on this issue

1. Notwithstanding the relative age of Dr Z's report, I gave considerable weight to his objective professional conclusions as to Mr QCK's capability to manage his affairs. In my view any concerns as to the reliability of the conclusions in Dr Z's report by reason of its age are assuaged by the clear and consistent lay evidence as to Mr QCK's competence and capability from his wife and son and from Mr QCK himself. I found the accounts given by each of the three family members on this issue to be reliable and persuasive.
2. In the absence of any inconsistent or contradictory evidence I was satisfied that at present and for the foreseeable future, and particularly with the assistance which Mr QCK currently receives in relation to his financial affairs, he appears to be able to deal with and make important decisions about his own affairs, including his person and property and his capital and income, in a reasonable rational and orderly way with due regard to his present and prospective wants and needs. As suggested by Justice Lindsay in CJ v AKJ, in reaching this conclusion I took into account the support systems available to Mr QCK. I found that they will assist him to make sound judgments about his welfare and interests.
3. It follows that I am satisfied that Mr QCK has regained the capability to manage his own affairs.
4. That being so, there is no need to consider as a formal matter whether it would be in Mr QCK's best interests for the financial management order to be revoked. However I record that on the basis of the evidence available I would also have made a positive finding in relation to that issue if required to do so.

Lack of full compliance with the requirements of the NSW Trustee and Guardian

1. As indicated in [6] above, the Tribunal had received from the NSW Trustee and Guardian a report as to the management of Mr QCK's affairs which indicated that the annual accounts for the period 12 January 2016 to 11 January 2017 were outstanding and that no information had been received from the appointed financial manager, Mr RMK.
2. At the hearing Mr RMK readily conceded that this was the case. I understood Mr RMK's explanation to be that at the time of his initial lodgement of the application in January 2017 and indeed for some time after the second (duly registered) lodgement of it in April 2017; he was not sure "how the process worked". I understood him to be suggesting that he operated under the belief that the lodgement of the application exempted a financial manager from completing further financial reports to the NSW Trustee and Guardian. Of course that is not the case and Mr RMK confirmed that he now understood that to be so. I also understood him to indicate his belief that the time that the NSW Trustee and Guardian's annual fee would cease to operate from the date of lodgement of the application and so, by implication, his costs and time incurred in preparing annual accounts would be "thrown away". He now understands that that is not the case.
3. Mr RMK indicated that he could comply promptly with the NSW Trustee and Guardian's requirements, which consist essentially of lodging accounts for the estate in proper form for the year 12 January 2016 to 11 January 2017. I note that accounts were passed for the previous financial year.

The appropriate orders

1. In these circumstances and particularly in light of the outstanding requirements of the NSW Trustee and Guardian, I was satisfied that the proper course of action and the one which would best protect the welfare and interests of Mr QCK was for a revocation order to be formally made, but for the operation of that order to be postponed until the latter of the expiry of three months and the receipt by the Tribunal of the NSW Trustee and Guardian's acknowledgment that the estate's accounts for the year 12 January 2016 to 11 January 2017 had been passed without reservation.
2. Section 58 of the Civil and Administrative Tribunal Act 2013 (NSW) provides that: "The power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision."
3. In my view, the reference to "conditions" in the section is broad enough to allow orders to be made which will only come into effect upon the satisfaction at a future time of the specified conditions.
4. There are obvious regulatory imperatives for insisting that the estate's accounts be prepared properly and approved by the NSW Trustee and Guardian prior to the revocation of a financial management order. Additionally, particularly in light of my conclusion that Mr QCK has regained capability to manage his own affairs, it would be both inefficient and somewhat unjust for the current hearing simply to be adjourned pending receipt of adequate evidence of satisfaction of the NSW Trustee and Guardian's requirements.
5. For those reasons, the making of a conditional order of the type envisaged here would give proper effect to the guiding principle set out in s 36 of the Civil and Administrative Tribunal Act. That section effectively requires me to facilitate the just, quick, and cheap resolution of the real issues in the proceedings. I note that s 36(2) of that Act requires me to seek to give effect to the guiding principle when I exercise any power under the Civil and Administrative Tribunal Act or interpret any provision of that Act. I did my best to comply.
6. On that basis, I made the orders set out in [1] and [2] above.

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 April 2018