EMG v Guardianship and Administration Board of Victoria

THE HEARING 10At the end of these Reasons for Decision are lists of the parties to the application and witnesses who participated in the hearing [Appendix removed for publication]. 11The hearing on 3 July 2014 took place by telephone. Mrs TFI did not attend or participate in the hearing. The Tribunal was advised that Mrs TFI was unable to participate in the hearing due to her disabilities. Accordingly, it was not possible for the Tribunal to take account of Mrs TFI's views. There was no dispute in this matter.

Legislative framework 12Part 5A of the Guardianship Act, provides the legislative framework for reciprocal arrangements in respect of corresponding laws in force in another State, a Territory, another country or part of another country that is declared by the regulations to be a corresponding law for the purposes of Part 5A (s 48A). 13Section 48B(1) provides that: "A person, who under a corresponding law, is appointed as: (a) the guardian of another person, or (b) the manager of the estate of another person, may apply to the Tribunal for recognition of his or her status as such." 14Section 48B(2) says: "The Tribunal must recognise the applicant if satisfied that the applicant has been so appointed." 15Section 48B(3) says that: "On recognition, the applicant is taken to be appointed under this Act as guardian or manager of the estate (as the case may be) of the other person." 16Section 48B (4) follows on: "However, the applicant: (a) is not to exercise a function under this Act unless it is a function of a kind authorised by the terms of his or her appointment under the corresponding law, and (b) is not to exercise a function authorised by the terms of his or her appointment under the corresponding law unless it is a function authorised by this Act." 17Section 48B (5) then provides that: "The applicant's recognition may be reviewed, varied and revoked as if it were an appointment under this Act." 18The effect of recognition of interstate orders was further discussed in EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 (28 May 1999). In that decision Young J held (para 26): "The Tribunal must recognise not the order but the applicant and then the applicant is taken to be appointed under this act as guardian." 19And (at para 27): "It is not the foreign order that is recognised, but the applicant's right to represent the alleged incapable person in NSW." 20Young J observed in para 55 of EMG v Guardianship and Administration Board of Victoria (supra) that the applicant in that case: "was a person who came within the description of section 48B (1) and upon recognition the applicant had that power over the assets of EMG in NSW as if an initial order had been made under the NSW Act. The revocation of that order would take away the power to deal with NSW assets, but as the Tribunal ruled it would have no direct effect on the Victorian order." 21According to Young J, and relevant to this application, if the Tribunal exercised its discretion pursuant to s 48B(5), it could only do so in accordance with section 25U(1) of the Guardianship Act, which provides for action on review of the appointment of the manager of a protected person's estate as follows: "On reviewing its appointment of the manager of a protected person's estate, the Tribunal may: (a) revoke the appointment, or (b) confirm the appointment." 22Section 24U(3) provides that if the appointment of a financial manager has been revoked under the section but the financial management order has not been revoked, the Tribunal must appoint another person to manage the subject persons estate. 23Further, subs 25U (4) says that: "The Tribunal may revoke the appointment under review only if: (a) the person appointed seeks the revocation, or (b) the Tribunal is satisfied that it is in the best interests of the protected person that the appointment be revoked, or (c) the financial management order in respect of the estate concerned is revoked." 24The order that the Tribunal makes pursuant to s 48B(2) recognises the appointment of the applicant. Section 48B(5) permits the Tribunal to review, vary or confirm the recognition of the appointment as if it were an appointment under the Guardianship Act. Section 25U(1) does not refer to the recognition, which is the action permitted by Section 48B. Instead, Section 25U refers to a review of "its appointment of the manager." The Tribunal has not itself appointed a manager, but has recognised an interstate appointment. It is therefore not clear if the Tribunal would properly be able to utilise Section 25U to review the recognition of an interstate appointment rather than the broad discretion under s 48B(5). In particular, it is unclear from the observations of his Honour Justice Young whether the Tribunal must apply s 25U when conducting a review of an interstate financial management order so that the discretion in s 45B(5) is thereby proscribed. 25Relevantly, there is inconsistency between the action that can be taken when reviewing recognition of an appointment as provided by s 48B(5) and the action on review provided by s 25U (1), which specifically omits the discretion to vary an appointment. It is unclear if the Tribunal could, for example, replace a manager or whether this would affect the interstate order - there appears to be no direct power to do this as s 48B only refers to the recognition of the appointment, not of the interstate order itself. 26The Tribunal determined to apply s 48B(5) as proscribed by s 25U. The Tribunal as always was informed by the section 4 principles, namely that the welfare and interests of the subject person are to be given paramount consideration.

Consideration 27The ACT CAT ordered that it would review its appointment of a guardian and administrator for Mrs TFI, on its own initiative, before 24 September 2016. It was confirmed that such a review had not yet taken place. 28Mrs SAT advised the Tribunal that she sought revocation of the recognition of her appointment as administrator of the estate of Mrs TFI. 29Mrs SAT, at the hearing and in her written submission, confirmed that her mother does not own any property. Mrs TFI's only income is the Aged Pension, 85% of which is directed to the aged care facility and covers accommodation fees and medication. Mrs TFI's bank account was established at a branch of bank A in the Australian Capital Territory. Mrs SAT told the Tribunal that the local branch of bank A at Regional NSW has accepted Mrs SAT's authority as the administrator under the Australian Capital Territory Civil and Administration Tribunal order of 24 September 2013. There was no evidence to contradict this. Mrs SAT said that Mrs TFI, herself, has access to her pension account for comforts, and Mrs SAT's duties as manager have been simply to ensure that Mrs TFI's accounts are paid including fees, medications, phone and the like. She said, "The bank, under strict conditions, allows me to withdraw funds to pay my mother's bills." 30Mrs SAT told the Tribunal that she complies with the ACT CAT requirements as Manager/Administrator. There is no evidence to the contrary before the Tribunal. She says that she is recognised by the bank and the aged care facility as the person who is able to manage Mrs TFI's affairs, without the need for a financial management order from NSW. Again, there was no evidence to dispute this. Mrs SAT said that it was in the best interests of Mrs TFI to revoke the recognition of her appointment as administrator. 31The Tribunal received a report from the NSW Trustee and Guardian dated 24 June 2014. The report stated that Mrs SAT had failed to comply with the requirements of the NSW Trustee and Guardian. Directions and Authorities were settled on 10 February 2014, the recognition having taken place on 30 January 2014. Mrs SAT had not completed a Manager's Plan for Mrs TFI and thus it was considered that her compliance with the NSW Trustee and Guardian requirements was poor. Mrs SAT had advised the NSW Trustee and Guardian, in accordance with her submission dated 18 February 2014 and her evidence at the hearing, that the authority she has received from ACT CAT meets her needs and allows her the access to her mother's accounts that she requires. 32In exercising its functions under s 48B (5) with respect to Mrs TFI, the Tribunal observed in the circumstances of this matter, the following section 4 principles: (a)the welfare and interests of such persons should be given paramount consideration; (b)the freedom of decisions 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. 33The Tribunal was satisfied that Mrs TFI's estate is sufficiently protected by the continuation of the ACT CAT order and the informal arrangements that have been established. Mrs TFI's estate is not large or complex according to the evidence before the Tribunal. Mrs SAT says that she is recognised on an informal basis in NSW as the financial manager or administrator to the extent necessary to meet her mother's needs. The ACT CAT order is reported to be accepted by the aged care facility and financial institutions. There is no need for the intrusion of the requirements and fees of the NSW Trustee and Guardian in the circumstances of this particular matter that would warrant the continued recognition of the appointment of Mrs SAT where she seeks the revocation of the recognition of her appointment as administrator.

FORMAL FINDINGS 34The Tribunal determined to exercise its discretion to revoke the recognition of the appointment of Mrs SAT as the administrator of the estate of Mrs TFI.

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: 20 August 2014