FGS [2014] NSWCATGD 30

Overview 7Ms NSM, in her oral and written evidence, states that in 2006, she was living with her family in Australia, while her mother (the subject person) and father, German nationals, lived in Germany. That year, Ms NSM's father and younger brother died, and she travelled to Germany to care for her mother who had a recent history of small strokes and was unable to cope alone. During Ms NSM's time in Germany, a German Court made a guardianship order granting authority for her to look after her mother's affairs, including financial affairs. 8Ms NSM returned to Australia after a year and, up until two months ago, has continued to live in this country. By 2011, her mother had developed Alzheimer's Disease and was unable to live independently. Ms NSM successfully applied for a visa for her mother to live in Australia. In 2011, Mrs FGS arrived in Australia and initially resided with Ms NSM and her family in their home. However, Mrs FGS' mental state deteriorated and her care needs increased. According to an Aged Care Client Record dated 20 July 2011, Mrs FGS had been in Australia for eight weeks and could not look after herself. In particular, she had behavioural issues associated with her dementia, including wandering and physical and verbal outbursts. The ACAT assessment recommended high level residential and respite care, and an EACH dementia package. 9In October 2011, Ms NSM made arrangements for her mother to be placed in aged care facility A. Mrs FGS remained at that facility until her transfer to aged care facility B in April 2014. Mrs FGS does not have any income or assets in Australia, and the Tribunal was informed that she has no entitlement to an Australian pension under the conditions of her residency. She did, however, for a period of time after arriving in Australia, continue to receive a German pension. 10According to Ms NSM, in December 2012 she (Ms NSM) became unwell and was unable to attend to her mother's financial affairs. She said that her illness caused memory loss, and problems with coordination and concentration. She said she fell behind in payments of her mother's nursing home fees, and was also too unwell to attend to her mother's German pension payments, resulting in their cessation in 2013. 11In June 2014, Ms NSM's husband, a professor of surgery in the UK, organised for her (Ms NSM) to travel to Europe for treatment of her illness which had not yet been formally diagnosed. While she has been in Europe, she has been diagnosed with severe temporal lobe epilepsy, for which she is currently receiving treatment and is making improvements. 12The substitute applicant, Mr TJH, told the Tribunal that he has known Mrs FGS for some time, as he was previously a manager of aged care facility A, where Mrs FGS previously resided. Mr TJH said the application for a financial management order was made because the facility has been unable to recover its fees despite a number of attempts to resolve the situation with Ms NSM. In particular, Mr TJH said the nursing home had been assured previously by Ms NSM that the sale of Mrs FGS' property in Germany would enable the fees to be paid. However, this has never occurred and the debt remains unpaid. Mr TJH stated that the amount of fees outstanding in respect of Mrs FGS' current accommodation is $20,500. A further $27,000 remains outstanding in relation to her residence at aged care facility A. A debt collection agency has been involved; however, the monies have not been recovered. 13Ms NSM states that she is presently organising for her mother's German pension payments to be reinstated. She states that her mother is entitled to three types of German pension and also expects her mother to receive $37,000 in back payments. She said the process may take some time, as the German agencies require various forms to be completed, including by the nursing home in Australia. Ms NSM said that once the process is complete, she will arrange for payment of the total debts to the nursing homes in NSW. In respect of the debt amount that will not be covered by the back payment of German pension, she said she would use part of the proceeds of the sale her own property (in Sydney). 14Ms NSM told the Tribunal that she intends to live in the United Kingdom where her husband has secured a position at a University. She said she intends to fly back to Australia in the next couple of weeks to pack up her own house in Sydney and to make arrangements for her mother to travel back to Germany to live permanently. She states she is making inquiries about nursing home accommodation for her mother in Germany. If her mother's health insurance coverage permits, she will also consider placing her mother in a nursing home in the United Kingdom, close to where she will be living with her family. Mr TJH was unaware of those proposals. 15When asked by the Tribunal what arrangements are in place for her mother while she is overseas, Ms NSM informed the Tribunal that her daughter, Ms TSM, has been liaising with the nursing home about Mrs FGS' treatment and care. Mr TJH confirmed that this is the case and agreed that Ms TSM was available to discuss health matters concerning Mrs FGS when contacted by the nursing home.

Tribunal's consideration 16Although the Tribunal was tasked with hearing an application for financial management only, the Tribunal was nonetheless concerned about the general circumstances surrounding this matter. In particular, where a person is in a country foreign to her, with no capacity to manage her affairs and with no current financial support. The Tribunal was also concerned that the proposal for Mrs FGS to travel to Germany in the coming months has not yet been discussed with the health professionals providing care to Mrs FGS, and therefore there has not been an opportunity to consider the health and medical implications of such a plan. 17The Tribunal informed the participants that if the current informal arrangements are not sustainable or became problematic, or if Mrs FGS' accommodation, health or safety is at risk, then a person with a proper interest in the matter could apply to the Tribunal for the appointment of a guardian for Mrs FGS. 18The Tribunal was not satisfied, however, that it was appropriate to make a financial management order in respect of Mrs FGS. The reality is that Mrs FGS has no estate in Australia, and her current status means she is ineligible for an Australian pension. As a consequence, it would be of little or no utility to make a financial management order. Even if appointed, a financial manager would have significant practical difficulties in addressing Mrs FGS' debts. In particular, the financial manager would not have access to funds from which they could draw. The NSW Trustee and Guardian has no reciprocal arrangements with Germany in relation to the management of estates. It is therefore difficult to see how an order in Australia would be effective in securing, for example, the German income and assets to which Mrs FGS may be entitled. 19In Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106, Lindsay J states that the exercise of the protective jurisdiction is not dependent on the existence of property; and that the Court can, as a matter of jurisdiction, appoint a manager to a presently unpropertied estate in anticipation of a protected person's receipt of property for management. However, his Honour emphasises the importance of identifying the practical utility of an order where there is effectively no property to manage: That said, the practical utility of the office of a protected estate manager does generally depend upon the existence of property under management. Without property, or at least the prospect of property, there is no "estate" to manage. [Footnotes omitted] The utility of a management order must, like other features of the protective jurisdiction, be measured by reference to whether it is of benefit to, and in the interests of, the protected person. [Footnotes omitted] Ordinarily, an absence of property under management is likely to tell decisively against the making of management orders, or decisively in favour of an order for revocation of management orders. [Footnotes omitted] 20In the case at hand, the Tribunal was satisfied that there was no practical utility of a financial management order, and should therefore dismiss the application. In coming to this conclusion, however, it should be noted that the Tribunal has considerable sympathy with the applicant's position, and with the facilities that have provided accommodation and care to Mrs FGS without fee. However, it is hoped that Ms NSM does in fact attend to these concerns as a matter of priority, in the interests of her mother, Mrs FGS.

At a glance

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Judgment (7 paragraphs)

Legislation Cited (2)

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