EQX [2019] NSWCATGD 30

NCAT Guardianship|2019-12-13

Background

EQX is 77-years-old and lives in an aged care facility in regional NSW. She has a son, NKX and a daughter, UZD.
On 3 October 2019 the Tribunal received applications from NKX seeking the appointment of a financial manager and a guardian for EQX.

The hearing

At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]
EQX attended part of the hearing but decided to leave during the hearing.

Withdrawal and dismissal of the application

We did not consider the matters listed above in detail because NKX sought to withdraw the application. He said that EQX is well settled at the aged care facility and he is satisfied with the care provided to her. EQX told us that she found the accommodation "OK" though she was not certain if she was to remain there permanently. We were satisfied that there are no current decisions to be made about EQX's accommodation and that services are available to her at the facility.
NKX advised that he visits EQX frequently and is consulted about her health care and medical treatment and that there are more formal quarterly meetings to discuss EQX's circumstances. Ms Z [care manager] indicated that NKX is listed as EQX's contact person for health or medical issues.
NKX indicated that UZD contacts EQX by telephone approximately once per month and has visited her at the aged care facility.
We were satisfied that there was no evidence of lifestyle decisions that need to be made for EQX by a guardian and accordingly consented to the withdrawal of, and dismissed, the guardianship application.

What did the Tribunal have to decide?

The questions to be considered by the Tribunal are:

Is EQX incapable of managing her affairs?
Is there a need for another person to manage EQX'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?

Is EQX incapable of managing her affairs?

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.
An Aged Care Assessment Team assessment of EQX on 22 August 2019 indicates the following: 1. EQX was admitted to hospital on 3 August 2019 having had a stroke. She was assessed by an Aged Care Nurse Practitioner as having moderate to severe vascular dementia. An assessment using the Mini Mental State Evaluation (MMSE) was commenced and EQX scored 0/3 for recall and 2/10 for orientation but then declined to complete that assessment. She was a poor historian and lacked insight into her needs. 2. EQX had wandered on a number of occasions and there were concerns for her safety. She had high care needs and was approved for high care residential placement.
During the hearing NKX said that EQX has had two or three strokes and that she had been displaying symptoms of dementia prior to the strokes. He commented that EQX sometimes forgets that prior to her aged care placement she was living with him on their rural property and she sometimes believes that she had been living in Sydney, where she lived many years ago.
Ms Z said that EQX is housed in the memory Support Unit of the facility and requires constant supervision.
As noted above, EQX was confused when we asked her about her current placement. During the hearing she referred us to her "solicitor" who was in fact Ms Z. When Ms Z explained that she was a nurse, EQX agreed, but said that she was also a solicitor.
We were satisfied that as a result of dementia, EQX is not able to understand and make decisions about her current financial circumstances or to plan for her financial future and implement those plans. Accordingly, we were satisfied that she is not able to manage her financial affairs.

Is there a need for a financial management order and is it in EQX's best interest that a financial management order be made?

NKX advised that: 1. EQX had previously owned a property in regional NSW which she had sold. She used some of the proceeds from the sale to purchase her share of the rural property on which she was living with NKX; 2. She owns 25% of the property and NKX owns 75%; 3. He is unaware of where the remainder of the proceeds from the sale of the home went but believes there were unexplained withdrawals of approximately $80,000 from EQX's bank account. He believes that her current savings are approximately $5000 and she receives an aged care pension of $979 per fortnight; 4. EQX had not advised Centrelink of the sale of the property in regional NSW and had not changed her address; 5. There is a need for a financial manager to clarify EQX's financial circumstances and address fees requirements at the aged care facility.
Ms Y, who is NKX's partner, advised the following: 1. The refundable accommodation deposit (RAD) at the aged care facility is $445,000; 2. She believes that there is a two-year "window" during which EQX's pension will cover her aged care fees but after that time she will need to meet additional fees.
Ms X, the Client Services Manager at the aged care facility advised the Tribunal of the following: 1. The facility is waiting for the Centrelink Income and Assets assessment regarding EQX. Whilst they await that assessment there is a three-month delay on charging the Daily Accommodation Payment (DAP) that is charged where the RAD has not been paid. The three months will expire on 4 January 2020. 2. If EQX were classified by Centrelink as a Fully Supported Resident she would only be charged 85% of her pension plus an additional $5 service fee.
We were satisfied that there is a need to appoint a financial manager and that it is in the best interests of EQX to do so because her financial situation needs to be clarified and arrangements made to meet her care costs to ensure her ongoing placement.

Who should be appointed as financial manager?

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.
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 (NSWTG).
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 NSWTG 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.
NKX proposed that he be appointed as the financial manager. He advised that he has never been bankrupt or convicted of a dishonesty offence. He is currently unemployed but manages the property of 50 acres that he owns with EQX. He has previously worked as mill worker and an Uber driver but gave up those roles to care for EQX. He said that if appointed he would be assisted by Ms Y.
Ms Y said that she had previously worked in a commercial bank and the Post Office in positions where she managed money and had also run her own video shop business.
We carefully considered whether it was appropriate to appoint NKX as the manager. We were satisfied that he has a genuine concern for EQX's welfare. However, we were concerned that he has limited financial management experience and has a potential conflict of interest as he is a part-owner and occupant of property jointly owned with EQX that might need to be sold to meet her expenses.
Ultimately, we were satisfied that: 1. Once EQX's fees liability is established and arrangements made to meet those liabilities, her affairs will not be complex and will not require extensive financial management experience; 2. NKX can seek financial planning advice regarding how best to manage EQX's circumstances, particularly regarding dealing with the real estate and meeting her financial obligations at the aged care facility; 3. It is possible that EQX would be considered a fully supported resident and no dealings would be necessary with the property that she owns jointly with NKX; 4. As the financial manager NKX would be required to submit a manager's plan to the NSWTG for approval and submit accounts for audit on an annual basis. We were satisfied that these requirements could provide some oversight of NKX's management of the potential conflict of interest.
Taking into account the matters set out above as well as NKX's concern for his mother's welfare, we decided that he was a suitable person to be appointed as financial manager for EQX subject to the authorities and directions of the NSWTG.

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: 28 May 2020

Trustee and Guardian Act 2009(NSW)

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