GCR v NSW Trustee and Guardian

GCR v NSW Trustee and Guardian - [2024] NSWCATAD 130 - NSWCATAD 2024 case summary — Zoe

Background

The NSWTG was appointed by an order of the Guardian Division of the NSW Civil and Administrative Tribunal to manage the estate of Mrs X on 21 April 2017.
In mid-2023 GCR engaged with the NSWTG in relation to the forward budget for Mrs X, at the request of the NSWTG. GCR indicated that Mrs X wants to see GD and GGD1 and GGD2 from the UK in person and wants to pay for their airfares. This was eventually formalised by GCR in writing on 17 September 2023 by way of a written proposal emailed to the NSWTG. Further details of the request, and Mrs X's wishes in relation to it, are detailed further below.
On 20 October 2023 the NSWTG made a decision to decline the request as it was not considered to be in the welfare and interests of Mrs X to approve the proposed use of her funds. This decision was communicated by letter to GCR on 24 October 2023. GCR sought an internal review in a letter to the NSWTG dated 12 November 2023. An internal review was undertaken by the NSWTG's Director of Legal and Professional Services who affirmed the decision under review. This was communicated to GCR in a letter dated 17 November 2023.
The reasons for the respondent's decision provided to GCR by the NSWTG are summarised below. The references to the Act are references to the provisions of the NSW Trustee and Guardian Act 2009 (NSW) ("the TAG Act"). 1. the request being inconsistent with s 59 purposes. Specifically concerning s 59(3) Mrs X's granddaughter and great granddaughters are not dependants. 2. s 76 of the Act prescribes the use of the estate for gifts. Whilst Mrs X's financial circumstances and size of the estate are such that the gift of airfares would be reasonable (s76(2)), the requirement of s 76(1)(a) is not met in relation to a gift to a relative, as it is not of a seasonal nature or a special event. 3. The application of s 39 general principles of the Act were considered: 1. Section 39(d) - the views of Mrs X were taken into account. While Mrs X indicated a strong desire to see her granddaughter and great granddaughters when asked if she would pay the airfares and was advised she had the money to cover this expense she became concerned that this may upset her other children. 2. Section 39(e) - the importance of preserving family relationships. Mrs X expressed concern about the reaction of her other two children and their views were not favourable to the application of funds to payment of airfares. In view of the family conflict, further escalation of tensions should be avoided.
On 11 December 2023 GCR lodged an application for administrative review of the respondent's decision with the Tribunal. The grounds for review cited by GCR include whether the Act has been properly applied (specifically whether the payment of airfares would constitute a gift), that there was a failure to properly consider all relevant information (such as the damage being done to Mrs X's relationship with GD, GGD1 and GGD2 by the decision), consideration of or undue weight given to irrelevant information, inconsistencies and a lack of transparency in the decision-making process, and inappropriate influence by the NSWTG on Mrs X.
The matter proceeded to a hearing before the Tribunal on 12 April 2024.

[10]

The parties' respective cases

In summary, GCR's case, as I understand it, is that the respondent's decision to decline to provide funds from Mrs X's estate to pay the return airfares of GD, GGD1 and GGD2 from the UK to visit her in Australia was not the correct and preferable decision because: 1. Mrs X supports the payment of the airfares from her estate and is in fact the proponent for the request to pay the airfares. Mrs X is close to GD, GGD1 and GGD2 despite them living in the UK and wants to see them in person. 2. The payment of the airfares for Mrs X's granddaughter and two great granddaughters to visit her would bring her much joy and allow for her to belatedly celebrate her 100th birthday with them which had been prevented because of COVID restrictions in 2020. The proposed timing of the trip between December 2023 and January 2024 when the request was under consideration would also coincide with the Christmas season and allow for Mrs X's granddaughter and great granddaughters to visit her for Christmas. 3. Mrs X has helped family members in need throughout her life including paying airfares and other gifts for other great and great-great-grandchildren in the past. The fact she has not provided airfares for these specific relatives in the past does not mean that she would not do so. 4. The NSWTG has not considered all the relevant information, has accorded undue weight to the views of GCR's siblings, who do not support the payment of the airfares, and has not complied with its own Decision Making Policy and Customer Excellence Principles. Mrs X's human rights are being ignored as well as her dignity, choices and wishes as a result.
The NSWTG's case in response, in summary, is that the decision was the correct and preferable decision in all the circumstances because: 1. The NSWTG does not have the power to make the payment because the requirements of s 76 are not met. 2. It was not customary for Mrs X to make such payments for GD, GGD1 and GGD2 when she had the capacity to do so. 3. Little evidence has been provided to the Tribunal that Mrs X has paid airfares and other gifts for other grandchildren and great-grandchildren in the past. 4. The requested payment is not properly characterised as a gift for a special occasion, being the belated 100 birthday Mrs X, because GD, GGD1 and GGD2 had already arranged to visit Mrs X at their own expense for her 100th birthday in 2020. There was no evidence that Mrs X had considered or offered to pay for their 2020 trip (or for transport for any other relatives to be present to celebrate her 100th birthday) or that attempts were made to request the funds as a gift from the funds held by NSWTG for Mrs X at that time.
Both parties referred to the s 39 principles in support of their respective cases. The section 39 principles are dealt with below.
The NSWTG informed the Tribunal that the correct avenue for GCR to press her claim is to apply to the Supreme Court of NSW for an order to consider releasing funds from the estate of Mrs X. GCR argued that the time and costs of taking the matter to the Supreme Court of NSW is disproportionate to the time-sensitive nature of the request and the size of the gift.

[13]

Relative or close friend

The terms "relative" and "close friend" in s 76(1)(a) are not defined in the TAG Act. The Powers of Attorney Act 2003 (NSW) (Schedule 3, Prescribed expressions and authorisations for prescribed powers of attorney, 1. Authority to give gifts) and the Guardianship and Administration Act 2019 (Vic) (s 47) have similar provisions to s 76. Both define the term "relative" to extend to "grandchild" but not to great grandchild of the principal or managed person. It is not clear that the statutory intention of the word "relative" in s 76(1) would extend to great grandchildren. Nevertheless, it follows that the gift of the airfares to GD, as the granddaughter of Mrs X, may be permitted under s 76(1)(a) as she is a relative of Mrs X within the meaning of the term in 76(1)(a).
Noting the above limitation of the term "relative", GCR stated in her submissions that GGD1 and GGD2 are close to Mrs X and therefore they should be considered to be her "close friends" under s 76(1)(a). The Powers of Attorney Act 2003 (NSW) (Schedule 3, Prescribed expressions and authorisations for prescribed powers of attorney, 1. Authority to give gifts) defines the term "close friend" to mean "another individual who has a close personal relationship with the principal and a personal interest in the principal's welfare." The Guardianship and Administration Act 2019 (Vic) includes the same definition in its legislative context (s 3(1)).
GCR provided material to the Tribunal relevant to the extent of the relationship between Mrs X and GD and GGD1 and GGD2 even though they live in the UK. This included 15 videos on a USB (Exhibit 'A-3') and a further video, recording of a conversation (Exhibit 'A-4') and letter from her GD dated 17 March 2024 provided for the consideration of the Tribunal (Exhibit 'A-4'). The letter states that Mrs X has met them in person previously. The last time Mrs X met her GD and the youngest of the two great granddaughters (GGD2) in person was in July 2018. Mrs X last saw the eldest of the two great granddaughters (GGD1) in person in 2016. The videos consist of Mrs X's reactions to video messages from GGD1 and GGD2, a recording of an online video conversation between Mrs X and GD on 24 August 2016, a recording of a video conversation between Mrs X and GGD2 on 12 March 2023 (albeit with sound issues), and recordings of various recent conversations between GCR and Mrs X about GD, GGD1 and GGD2 and whether she wants them to come to visit her in Australia. GCR submitted that Mrs X has seen GD, GGD1 and GGD2 via online means during GCR's regular visits with Mrs X, and also via direct WhatsApp calls when that has been available through the residential care provider. It is difficult to assess the closeness of the relationship between Mrs X and GGD1 and GGD2 in the videos as they do not show direct interactions between them. Despite the limitations of such material in assessing the relationship between them, I would describe Mrs X's attitude towards them as being one of warmth, closeness and affection. However, there is insufficient evidence before the Tribunal for me to be satisfied that they should be considered to be "close friends" of Mrs X. Accordingly, I am not able to make such a finding.
I consider that the gift of the airfares to GD may be permitted under s 76(1)(a) as she is a relative of Mrs X.
It follows from the above reasons that the gift of the airfares to GGD1 and GGD2 does not fall for consideration under s 76(1)(a).

[19]

The section 39 principles

Section 39 states: 39 General principles applicable to Chapter It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles - (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision 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.
Mrs X was and is a protected person under s 39.
The NSWTG specifically referred to principles 39(d) and 39(e) in the reasons for its decision. Although it may have been instructive for the NSWTG to address each of the s 39 principles in the reasons for its decision, it is not required to do so. The failure to do so does not mean that the s 39 principles were not appropriately considered by the NSWTG in making its decision.
The Tribunal was provided with detailed submissions from GCR concerning the various s 39 principles. GCR submitted, in summary, that Mrs X's welfare would be improved by GD, GGD1 and GGD2 visiting her, that Mrs X's wishes to see them are being unduly restricted by the opinions of her other children, that Mrs X seeing them would preserve family relationships, that the respondent has discouraged Mrs X from being self-reliant in relation to the matter by suggesting that she could upset other family members through her wishes, and that the respondent is encouraging and facilitating abuse to prioritise the opinions of her other children. GCR also said that the respondent had exercised inappropriate influence on Mrs X by the way it has approached the matter.
GCR provided the Tribunal with 8 recent videos of Mrs X between 15 November 2023 and 4 March 2024 expressing her strong desire to see GD, GGD1 and GGD2. I accept GCR's submission that Mrs X strongly desires for GD, GGD1 and GGD2 to visit her.
Both of the parties in oral submissions referred me to one of the videos, from 25 December 2023. The video shows a conversation between GCR and Mrs X about which family members Mrs X has seen on Christmas Day. I have transcribed parts of the conversation below: GCR: "You didn't see GD, GGD1 and GGD2." Mrs X: "Well I couldn't go over there." GCR: "You wanted them to come to you. You wanted to pay their airfares so you could see them mum." Mrs X "Right." GCR: "Do you remember that?" Mrs X: "Yes I do." GCR: "But do you know [here GCR referred to her two siblings by their first names] said no, you can't do it? They stopped it." Mrs X: "Oh I didn't know." GCR: "How do you feel about that?" Mrs X: "That's not very nice. It's up to me." GCR: "So if they didn't come for Christmas would you like them to come another time?" Mrs X: "Yes, for Easter." … GCR: "If [here GCR referred to her two siblings by their first names] are upset about the fact that you want to pay for [GD, GGD1 and GGD2] what do you want more, do want to see them or do you want them to stop you from seeing them?" Mrs X: "I want to see them."
GCR provided another video dated 17 January 2024 where Mrs X also suggests, after prompting from GCR, that she would pay for GD, GGD1 and GGD2 to travel to visit her. GCR submits that there are other times when Mrs X has stated this in 2023. In submissions GCR has referred to a video, also provided to the Tribunal, of Mrs X saying on 6 March 2024 that she "won't tell [GCR's siblings]" she wants to bring GD, GGD1 and GGD2 out from UK so she can be with them because it is "none of their business".
The NSWTG confirmed that (relevant to principle 39(d)), when Mrs X was asked if she would pay the airfares and was advised she had the money to cover this expense she became concerned that this may upset her other children. If this is the case - and upon reviewing the section 58 documents (Exhibit 'R-1'), specifically the 6 paged File Note of the NSWTG Senior Client Service Officer dated 13 October 2023, I accept that it is - then it is likely that Mrs X would not show her concern about this in conversations regarding the matter with her daughter GCR, so as not to upset her either. The recorded conversations referred to above between Mrs X and GCR are therefore of limited probative value. In my view, Mrs X stating that she "won't tell [GCR's siblings]" could be interpreted several ways, and not necessarily in favour of GCR's case. In these circumstances there is considerable uncertainty as to the true views of Mrs X in relation to whether she supports the payment of the airfares being made from the estate. The Tribunal was unable to resolve this uncertainty of the basis on the evidence available to it.
The NSWTG maintains (relevant to principle 39(e)) that Mrs X expressed concern about the reaction of her other two children and their views were not favourable to the application of funds to payment of airfares. The NSWTG stated that in view of the family conflict, further escalation of tensions should be avoided.
In oral submissions at the hearing the representative for the NSWTG, Ms Stormont, pointed out that GCR's comments to Mrs X in the video on 25 December 2023 referring to her siblings having "stopped" the requested payment was disparaging of them and illustrative of the significant family conflict present in this case. Ms Stormont informed the Tribunal that the NSWTG gave greater weight to principle 39(e) due to family conflict, acting in the best interests of the protected person. Ms Stormont stated in effect that there is no way everyone would be happy and if the NSWTG gave the gift requested then most likely they would be here before the Tribunal with the other siblings.
GCR submitted that the NSWTG misrepresented the request for the payment of the airfares as being from GCR (rather than Mrs X) which has served to increase family conflict, contrary to principle 39(e). GCR stated that it was not appropriate for the respondent to seek the views of her siblings in such a context. However, as Ms Stormont pointed out in oral submissions, the consultation requirements in s 72 of the TAG Act meant that it was incumbent for the NSWTG to do so.
It is clear from the material in these proceedings (as seen for example in Exhibit 'R-1') that a high level of conflict between Mrs X's children (GCR and her brother and sister) was a significant factor leading to the Guardianship Division of the Tribunal appointing the NSWTG to manage the estate of Mrs X in 2017. It appears that the conflict has continued since that time. GCR referred to the relationship she has with her siblings as being "toxic", and that the NSWTG is "well aware" of this. It is unfortunate that GCR and her siblings are unlikely to ever be in agreement concerning issues involving their mother. In such circumstances it is particularly important for a financial manager on behalf of Ms X to seek to carefully balance competing views about the management of her estate in a manner that preserves family relationships. I agree that for the welfare of Mrs X further escalation of tensions should be avoided.
I did not find GCR's submissions that that the respondent had exercised inappropriate influence on Mrs X by the way it had approached the matter to be persuasive. The NSWTG is required to consult GCR's siblings. Taking their views into account does not mean that Mrs X's wishes to see GD, GGD1 and GGD2 are being unduly restricted. The NSWTG noting Mrs X's expressed concern that that the payment may upset her other children does not mean that the respondent has discouraged Mrs X from being self-reliant in relation to the matter. I do not accept GCR's submission that the respondent has encouraged and facilitated abuse by taking into account of the opinions of her other children. The decision is not to be made by GCR's brother or sister. The decision is not to be made by GCR. The decision is to be made by the administrator under the TAG Act, after taking into account the matters required by the s 39 principles and the ultimate welfare and interests of Mrs X.
I do not accept GCR's submissions that the NSWTG has acted inconsistently with the section 39 principles.

At a glance

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Judgment (23 paragraphs)

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Legislation Cited (7)

Cases Cited (5)