CJ v AKJ

1. The questions to be considered by the Tribunal are:
   • Is Brianna incapable of managing her affairs?
   • Is there a need for another person to manage Brianna's affairs and is it in her best interests for a financial management order to be made?
   • If so, who should be appointed financial manager?

1. 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]."

1. In PB v BB [2013] NSWSC 1223, Justice Lindsay 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."

1. 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."

1. 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].
2. 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, and prospective developments."

1. Brianna was a pleasant and able witness. She was the main witness to the hearing. She told us she had read the papers and did not agree with the application or the allegations made about her. To be fair, we did test Brianna's understanding of her circumstances and reasoning in gifting her life savings to a person she apparently had not met. She told us:

(1) She lives in an Over 55s unit at the retirement village.

(2) She has now stopped sending money to Andre Rieu. Mr Rieu told her he will soon be moving to Australia and they will live together in a home he owns.

(3) She did send him a lot of her money using gift cards through WhatsApp.

(4) She doesn't have much money left - maybe $180 in savings. She estimates she sent Mr Rieu about $20,000 using gift cards. She also sold her jewelry to obtain cash and sent those funds to Mr Rieu.

1. We pause here to note that Brianna's usual GP performed a MoCA screening test in September 2025 and Brianna achieved a score of 27/30. That score falls into the normal range of competence.
2. We asked whether Mr Rieu really needed money given he is a successful musician. Brianna told us her friend is a "copycat" Andre Rieu (not the real Andre Rieu) and that there are many of them on Facebook. She wasn't sure why he asked for money to be sent to him by gift cards instead of using a bank account. She has stopped giving him money as she had "run out". If Mr Rieu asked for more money (if it came to hand) Brianna feels she would probably give it to him if he asked. When we asked why she replied she wants to help her friend.
3. Brianna did agree that she had discussed with her husband, Joel, selling her interest in the Over 55s Unit to free up funds to send to Mr Rieu. She had revisited that idea and thought it was not good as she might end up homeless.
4. Towards the end of the hearing, she accepted it was not a good idea to give her money away and wishes she had "come to my senses 5 years ago". Brianna also accepted that she is now so short of money that she has been unable to buy food. She did spend $100 on food this week, but that is the first time she has spent money on food for a while.
5. Brianna conceded at the conclusion of the hearing that her daughter and granddaughters' concerns about her finances are real. She did wish to emphasis, however, that "Andre is still my friend".
6. Olivia told us her mother used to bank with an Australian bank but they closed Brianna's account as bank staff believed she was being scammed. Brianna opened an account with another (unknown) bank to access her funds to continue to buy gift cards to send to Mr Rieu.
7. We formed the view that Brianna is incapable of managing her affairs. She performed adequately in a cognitive screening test, but she failed the test identified by Justice Lindsay in CJ v AKJ in that she cannot be relied upon to make sound judgments about her welfare and interests. Despite her denials that she would send more money, Brianna later conceded she would do so if asked to help her friend. That indicates a lack of insight into her circumstances and an absolute inability to make sound judgments now or in the future.

Is there a need for a financial management order?

1. The Tribunal was satisfied that there is a need to appoint someone to manage Brianna's affairs. Brianna has given away her life savings. She investigated selling her interest in her accommodation. A financial manager is essential to prevent her depleting the last of her funds and leading to a life of penury and homelessness. For the same reasons we were satisfied it is in her best interests to make a financial management order.

1. In appointing a financial manager, as in making all other orders under the Guardianship Act 1987 (NSW), 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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."

1. 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].
2. Brianna was firm in her view that her daughter and granddaughters should not be appointed as her financial manager(s). We asked whether she would accept the appointment of the NSW Trustee and Guardian, and she thought that "would be good". We agreed. Olivia, Sarah and Mary supported the appointment of the NSW Trustee and Guardian as the financial manager.
3. The Tribunal was satisfied that the estate of Brianna should be committed to 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.