GPQ v NSW Trustee and Guardian

Background

1. On 11 March 2022 the Guardianship Division of the Tribunal appointed the NSW Trustee as the financial manager of the estate of the protected person. On the same date the Public Guardian was appointed as his guardian with various functions. At the time the orders were made GPQ's father was living alone and had a diagnosis of dementia and moderate to severe cognitive impairment. He is now 90 years old and lives in an aged care facility.
2. On 8 February 2024 GPQ made a request that her father gift GVR $5,000 towards the cost of his wedding in 2025. The protected person's estate holds sufficient funds to support the request and the request would have no significant impact on his financial position. The request was, however, declined on the basis that there was insufficient evidence that the gift would be in accordance with the protected person's intentions.

The application for review

1. The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act). Section 62 of the NSW Trustee and Guardian Act 2009 permits an affected person to apply to the Tribunal for an administrative review of a decision made in connection with the exercise of the NSW Trustee's functions and which is of a class of decision prescribed by the regulations for the purposes of that section.
2. All decisions made by NSW Trustee in connection with the exercise of its functions in the management of the estates of persons subject to financial management are reviewable by the Tribunal: regulation 45 of the NSW Trustee and Guardian Regulation 2017. In this matter s 76 of the NSW Trustee and Guardian Act is relevant as it provides for gifts to be made from the estate of a managed person: 76 Gifts (1) A manager may use property of the estate of a managed person for the following gifts - (a) a gift to a relative or close friend of the managed person that is of a seasonal nature or is given because of a special event (such as a birthday or marriage), (b) a donation of a nature that the managed person made when the managed person had capacity to do so or that the managed person might reasonably be expected to make. (2) A manager may make a gift under this section only if the value of the gift is not more than what is reasonable having regard to all the circumstances and, in particular, the managed person's financial circumstances and the size of the managed person's estate.
3. In determining an application for administrative review, s 63 of the ADR Act provides that this Tribunal is to decide what "the correct and preferable decision" is having regard to "any relevant factual material, and any applicable written or unwritten law". It is well established that the Tribunal is not restricted to consideration of the material that was before the decision maker but may have regard to any relevant material before it at the time of the review: see, e.g., Tannous v Commissioner of Police [2011] NSWADT 116 at [25]. In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution, or remit the matter for reconsideration by the administrator: ADR Act, s 63(3).
4. The Tribunal must also observe the principle in s 39 of the NSW Trustee and Guardian Act, which includes the provision that the welfare and interests of the protected person should be given paramount consideration.

Evidence of the parties

1. The NSW Trustee provided documents in accordance with s 58 of the ADR Act and relied upon written and oral submissions. GPQ filed a bundle of documents titled "Response to Section 58 Documents" and a document in response to the submissions of the NSW Trustee. GPQ and GVR both gave evidence at the Tribunal hearing. There is no dispute that the gift in question falls within s 76 of the Trustee and Guardian Act.

Past gifts

1. GPQ states that her father made a similar gift of $5,000 to her daughter in 2015 for her wedding. She has provided a copy of a card from the protected person and his wife (now deceased) to her daughter and her husband for their wedding which states that the protected person gave the couple $600 and his wife gave $5,000. GPQ states the gift was made in cash, which was a common practice.
2. GPQ said at the hearing that her mother and father had separate bank accounts and that her mother would make decisions about gifts. She said that her father agreed with the $5,000 gift to her daughter from her mother. She also said that the gift was a combined gift and the gift reflected her parents shared intent.
3. The reasons for the decision of the Guardianship Division of the Tribunal to appoint a guardian and financial manager for the protected person recorded a history of disagreement between GPQ and her brother John. They have been estranged for some years. John was consulted as part of the NSW Trustee's decision making process and opposed the gift. He stated that, if the gift was made, he would seek similar gifts for his two daughters from his father's estate as his daughters had not received any gifts. GPQ states that the gift is nothing to do with her brother and is a personal arrangement between her father and her son. She also states that she would support any such request from John if the gift to GVR is approved. However, if the gift is denied, she might feel compelled to oppose any gifts to John's children, leading to further family discord.
4. GPQ's mother died in November 2020. GPQ was the sole beneficiary under her will, which included her mother's half share of the family home as tenant in common with the protected person. The NSW Trustee has provided a copy of the will of the protected person in which he bequeaths his estate equally to his two children - GPQ and John.

Views of the protected person

1. The protected person has not provided a view to the Tribunal about the proposed gift to his grandson.
2. Dr Christopher Middlemiss is a geriatrician who has cared for the protected person since he moved into the aged care facility in June 2022. He provided a letter dated 25 March 2024 to the NSW Trustee in which he states he was asked to assess the protected person's capacity concerning the gift. When Dr Middlemiss spoke to the protected person he could not recall that he had a grandson. In addition, the protected person was unaware of his overall financial position and stated that $5,000 is "a lot of money" to give as a gift. In Dr Middlemiss's opinion, the protected person is not able to decide to give such a gift.
3. In addition to Dr Middlemiss's letter in which he states that the protected person did not recall he had a grandson, a staff member at the aged care facility who spoke to him also states he could not recall he had a grandson. An officer from the NSW Trustee spoke with the protected person over the phone and reports he could not recall his grandson, did not know he was getting married and did not wish to gift his grandson $5,000.
4. GPQ states that her father has expressed a clear intent to her, particularly in a phone call on 18 July 2024, that he wishes to make the gift to GVR. GPQ also states that her father's past actions indicate his intention to provide gifts to family members, particularly for significant events. She disputes that he does not know his grandson and also points out that his first language is not English and he may not have understood as no interpreter was provided during the discussions with Dr Middlemiss and staff.

Protected person's relationship with GVR

1. Neither GPQ nor GVR have visited the protected person since he entered the aged care facility in 2022, although GPQ remains in phone contact. GVR said he does not speak fluent Italian and it is therefore difficult to speak with his grandfather. In an email to the NSW Trustee GVR stated that he had a close relationship with his grandfather when he was a child. GPQ said that her grandparents would look after her children when they were young while she was working. GVR said that his grandmother would look after him and his sister but his grandfather drove them where they needed to go as his grandmother did not drive. GVR would receive gifts of money, although not large amounts, from his grandparents on his birthday and at Easter and Christmas. He has not received any gifts since his grandmother died in 2020.

Consideration

1. It is clear that the protected person can afford to make the gift from his estate. At issue is whether the making of a gift of $5,000 to GVR for his wedding is something he would wish to do.
2. The medical evidence which was before the Guardianship Division in 2022 was that the protected person has moderate to severe cognitive impairment and his reduced executive functioning and short term memory loss significantly impact his ability to engage in informed decision making. At the time it was considered by his family and those involved in his care that he was not capable of managing his financial affairs. These views are echoed by his treating geriatrician, Dr Middlemiss, who is of the opinion that, due to his cognitive impairment, the protected person is not currently able to decide to give the gift.
3. GPQ states that her father has expressed in discussions with her a clear desire to make the gift to GVR. She is also highly critical of the context in which her father was questioned by others, including Dr Middlemiss, without an interpreter. The manner and context of the discussion between GPQ and the protected person about the gift is unknown and I place little reliance upon GPQ's statements about her father's intent.
4. Overall, in light of the medical and other evidence dating back to 2022, I am satisfied that the protected person does not have the capacity to provide an informed view about making a gift of $5,000 to GVR. The fact that a person is not presently able to provide an informed and coherent view is not the end of the matter. Their general wishes and intention may be inferred by other events, including their past actions and behaviours.
5. I accept that GPQ's parents looked after her children when they were young and she was working. No doubt they would have developed a relationship during that time. From the evidence of GVR it was his grandmother who provided the care role, although no doubt his grandfather was present for at least some of the time and drove them to where they needed to go.
6. GVR's evidence is also that he received money gifts, although not substantial amounts, from his grandparents for his birthday and at Easter and Christmas. He states there have been no other significant events in his life which may have prompted a larger gift. The evidence of GVR is that all gifts ceased upon the death of his grandmother in 2020. It is clear from the evidence of John that his daughters have not been provided with any significant gifts by their grandfather. While the relationship between GPQ and John has broken down, there is no information before me about the past relationship between John's daughters and their grandfather.
7. The only evidence of a significant gift made to any of the grandchildren is the card from the grandparents to GPQ's daughter and husband for their wedding. The card clearly states that GPQ's mother made a gift of $5,000 and her father made one of $600. GPQ states that her parents had a "combined intent" to make the gift of $5,000 but it is unclear to me how she is able to speak to the intent of her parents at the time in 2015. I also note that her parents had separate bank accounts and it is therefore reasonable to assume that each intended to provide the amount as recorded on the card from their individual monies. The card does not record that there was a single gift from both. The wills of GPQ's parents also indicate that they had different views about how family members should be supported.
8. In substance there is no history of the protected person, when he did have capacity, making or intending to make substantial gifts to his grandchildren on significant occasions. The only evidence is that he made a gift of $600 to one of his granddaughters in 2015, while his wife made a gift of $5,000. In my view, this does not support a conclusion that he would have made a gift of $5,000 to GVR for his wedding. It is apparent from his comment to Dr Middlemiss that he regards $5,000 as a substantial amount of money and would most likely not be inclined to make a gift in that amount.
9. While the protected person has sufficient funds to be able to make the gift, I am not satisfied that, if he had capacity, he would in fact gift GVR $5,000 for his wedding. I am also not satisfied that making the gift would enhance his welfare or protect his interests in any other way.
10. Both parties have raised s 39(e) of the general principles to be observed in the exercise of the financial manager's functions. That principle refers to the importance of preserving the family relationships. It is acknowledged by all that there is conflict between GPQ and her brother John. Indeed, GPQ opposed John being consulted by the NSW Trustee in its consideration of the request made by her that the NSW Trustee approve the proposed gift. As noted above, John opposes the gift and indicates that if the gift is made his daughters would then also seek similar gifts from the protected person's estate.
11. The NSW Trustee noted that the escalation of any existing tensions within the family should be avoided in considering whether the gift to GVR should be made. GPQ and GVR state, however, that approving the gift would preserve family harmony and ensure fairness. It seems from the submissions made by GPQ that the reasoning behind this statement is that she and her family would agree to similar gifts to John's children if this gift is approved, but would oppose them if it is not. It is not, however, up to GPQ to approve any such gifts, that being the role of the NSW Trustee. In my view, it is extremely unlikely that family relationships would be improved by making the gift to GVR.
12. In conclusion, there is insufficient evidence that the protected person would, if he had capacity, make the gift to GVR. Indeed, the evidence points to him not having made such gifts in the past or wishing to now. The making of the gift may exacerbate family conflict and would not necessarily be in the best interests of the protected persons or promote his welfare.
13. I am therefore of the view that the correct and preferable decision is to affirm the decision under review.

Order 1. The decision under review is affirmed.

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: 22 January 2025