The publication of the name of the applicants or any other person mentioned in these Reasons for Decision is prohibited pursuant to Section 64(1)(a) of the Civil and Administrative Tribunal Act 2014 (NSW).
[2]
This hearing concerns a request to review a decision of the NSW Trustee and Guardian (the respondent), which refused a request to distribute a gift from the estate of a protected person, who has been given the acronym GZL, to his appointed financial managers, during his lifetime.
GZL is a protected person, because he is the subject of a financial management order, made by the Guardianship Division of the Tribunal, on 9 August 2021, pursuant to Section 25E of the Guardianship Act 1987 NSW (Guardianship Act).
He is a 75-year-old man, who lives in an aged care facility. Until 2021, he lived in his home in Earlwood (the Earlwood property). It is not in dispute that the protected person now lives with a diagnosis of Lewy Body dementia and cognitive impairment.
GZL has two adult children: a daughter, who has the acronym GVW, and a son, who has the acronym GZK. The Guardianship Division of the Tribunal has appointed GVW and GZK, on a joint and several basis, to manage their father's affairs.
This application was initially submitted only by GVW (the first applicant). It was received by the Tribunal on 5 December 2024. On 25 February 2025, the protected person's son, GZK, was joined as an applicant (the second applicant).
The applicants seek an administrative review of a decision of the NSW Trustee and Guardian, dated 4 November 2024, to reject a proposal that the sum of $185,000.00 be distributed to each of the applicants (in total $370,000.00) from the protected person's estate, during his lifetime.
Section 6 of the ADR Act defines "decision" to include any of the following:
[4]
"(a) making, suspending, revoking or refusing to make an order or determination;...
[5]
(a) doing or refusing to do any other act or thing".
[6]
Section 62 of the NSW Trustee and Guardianship Act 2009 (NSW) (TAG Act) provides that an affected person may apply to the Tribunal for an administrative review under the ADR Act of a decision of the respondent in this case that:
[7]
(a) is made in connection with the exercise of the respondent's function under this Division, and
(b) is of a class of decision prescribed by the regulation for the purposes of this section.
[8]
It is not contested that the applicants are affected persons, nor that the decisions made by the respondent in connection with its functions in the management of the estates of a protected person are reviewable by the Tribunal.
The decision, dated 4 November 2024, declining the request to distribute a gift to the private managers from the proceeds of the sale of the protected person's property, is the reviewable decision.
[9]
The applicants tendered a bundle of documents called Applicant Submission Bundle, dated 28 April 2025. This was marked Exhibit A1.
I also considered written and oral submissions of all parties. The applicants provided two written submissions. The first submission (first submission) was received by the Tribunal on 3 April 2025. The second (the second submission) was handed up at the hearing.
Because the bundle of evidence, marked Exhibit A1, was inconveniently unpaginated, I directed the applicants to resubmit the second submission, together with a paginated version of Exhibit A1, with reference to page numbers as required, by no later than 15 May 2025. This was provided.
With that bundle, the first applicant sought to introduce additional evidence, in the form of a letter from a solicitor who drafted the Enduring Power of Attorney that was never executed. Because the hearing had concluded, and I had reserved my decision, I did not accept that material into evidence, and I did not consider it.
The respondent tendered a bundle of documents filed pursuant to the Section 58 of the ADR Act (Section 58 bundle). This was marked Exhibit R1.
There was no objection to the Tribunal considering all of that material.
[10]
The protected person had a career as an accountant. He married twice. His first marriage dissolved in 1986. His second marriage was short and also ended in divorce. The applicants are the protected person's children from his first marriage.
On 6 June 2016, the protected person executed a Will, which appointed his accountant as his Executrix and Trustee. It directed that, after payment of all debts and other obligations, the residue of his estate should be distributed between such of his children as survive him, in equal shares. The Will contained relatively standard survivorship clauses.
Notwithstanding those provisions, F also bestowed the sum of $250,000.00 to be placed in trust for his granddaughter, who is the daughter of the first applicant. His granddaughter was born in 2011.
By way of a first Codicil to his Will, on 18 August 2016, the protected person substituted the clause that bestowed a benefit upon his granddaughter with one that reduced the amount of her benefit to $200,000.00. The copy of the original Will, and that of the Codicil, as seen by the Tribunal, contain handwritten annotations, of uncertain origin, the validity and effect of which will be for others to determine.
The protected person made a second Codicil, dated 26 July 2019, whereby he appears to have again reduced the benefit to his granddaughter to $150,000.00. The question of the validity of any of the documents is not relevant to this Tribunal in these proceedings, except to the extent that they might enable the Tribunal to draw any inference about the protected person's testamentary intentions.
It is not contested that the protected person has bestowed upon both of his adult children certain financial gifts in the past. The extent and effect of his past gift giving is a relevant consideration.
In 2008, the protected person purchased a house in Bundanoon (the Bundanoon property) as an investment. He sold this property in 2010 and gave his adult children a financial gift of $122,000.00 each, from the proceeds of the sale.
On 23 November 2017, the protected person gave the second applicant the sum of $27,300.00, to purchase a car. Three days later, he gave the second applicant $5,000.00 towards a holiday. The applicants submitted that the protected person gave them other financial gifts, over many years, for various purposes. These are set out in more detail in a subsequent paragraph.
In 2021, both applicants report becoming concerned about F's "worrying behaviour". A report of Dr Ming Yong, Psychogeriatrics Registrar from Canterbury Older Persons Mental Health Service (OPMHS), dated 23 June 2021, confirms that the protected person was referred to OPMHS by a neighbour, who was concerned about his behaviour. Dr Yong reviewed the protected person and determined that he likely had Lewy Body dementia, associated with delusions, paranoia, and gross deficits, including deficits of impaired executive function.
A Montreal Cognitive Assessment (MoCA) was conducted, in which the protected person achieved a result of 22/30, a score indicative of cognitive impairment. Dr Yong reported that the protected person also displayed Parkinsonism symptoms and recommended that he be commenced on an antipsychotic medication, Olanzapine.
Notwithstanding that medical evidence, on the following day, 24 June 2021, both applicants signed their acceptance of the role of attorney, pursuant to a Power of Attorney (PoA), purportedly at the protected person's request. The instrument was drafted by Brian Francis Lane, Solicitor, but was never signed by the protected person.
In her oral testimony, the first applicant said that her father had previously advised her of his intention to grant his Power of Attorney to his accountant. She did not know how it had come to pass that she and her brother were nominated in the instrument that they signed. Nevertheless, she conceded that the protected person lacked capacity to sign the instrument at that time. If an earlier Power of Attorney were ever executed, it has not been provided to the Tribunal.
Approximately three weeks later, on 12 July 2021, the protected person was found wandering alone at night and taken to Royal Prince Alfred (RPA) Hospital in an ambulance. He was admitted to the Concord Hospital Mental Health Facility the next day and formally diagnosed with Lewy Body dementia.
On 3 August 2021, the protected person was admitted for respite care at the aged care facility, where he later became a permanent resident and still resides.
On 9 August 2021, the Guardianship Division of the NCAT made findings that the protected person lacked the ability to manage his affairs and appointed both applicants, on a joint and several basis, as his private financial managers, subject to the directions and authority of the NSW Trustee and Guardian. A Guardianship order was also made, appointing both applicants, for one year, to make lifestyle decisions for the protected person.
On 2 April 2022, the private financial managers, with the eventual approval of the respondent, who has the statutory obligation to oversee the private managers' actions, purchased an investment property in Tasmania, with the protected person's funds (the Tasmania property). The Tasmania property is tenanted.
On 2 July 2024, the applicants sought authority from the respondent to sell the protected person's Earlwood property (his principal place of residence). The proposal stated that this would avoid potential capital gains tax liability. This component of the proposal was approved.
However, a second component of the proposal, was that the proceeds of the property would be divided between and the protected person and his two private managers, in equal shares. Approval for this component of the proposal was refused by the respondent.
The respondent advised the first applicant that the respondent cannot authorise distribution of the client's estate while the client is still alive. The outcome of the internal review of decision affirmed the decision to decline the investment proposal, because:
"NSWTG does not have the authority to support the distribution of an Estate while (the protected person) is alive;
the distribution of one third of the sale proceeds to (the protected person) and two thirds to his beneficiaries (the applicants) who are the Private Managers is a conflict of interest;
the Financial Advice obtained by the Private Managers appear to favour the Private Managers as beneficiaries in (the protected person)'s Will;
NSWTG primary consideration is (the protected person)'s welfare and interests;
finally, the property sale proceeds must be sent to (the protected person)'s NSWTG trust account until a suitable investment strategy proposal in line with the managed person's financial interests is supported by the NSWTG".
The first applicant submitted a request for internal review of that decision the following day. The internal reviewer affirmed the original decision.
On 17 August 2024, the Earlwood property was sold, in accordance with the respondent's approval.
On 27 August 2024, the first applicant submitted a Change in Estate (CIE) request, seeking approval to gift a total of $370,000.00 ($185,000.00 to each applicant) from the proceeds of the Earlwood property sale.
The proceeds of the sale of the Earlwood property were deposited into the respondent's trust account on 3 October 2024.
On 4 November 2024, the respondent rejected the first applicant's proposal for the distribution of gifts from the protected person's estate. This was communicated to the first applicant by way of email on 6 November 2024.
The first applicant submitted her application to the Tribunal for an administrative review of the respondent's decision dated 4 November 2024 on 5 December 2024. It is that application which is to be determined at this hearing.
[11]
The Tribunal must determine whether the reviewable decision is the correct and preferable decision, with reference to relevant legislation, on the basis of the evidence available at the time of the hearing.
In order to decide whether that is the case, the Tribunal must observe the principle in Section 39 of the NSW Trustee and Guardian Act 2009 (TAG Act) which includes the provision that the welfare and interests of the protected person should be given paramount consideration.
Section 39 of the TAG Act also provides that:
[12]
"It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:
[13]
(a) the welfare and interest of such persons should be given paramount consideration,
(b) the freedom of decision and freedom of action of such persons should be restricted as a little as possible,
(c) such persons should be encouraged, as far as possible, to live 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 person should be recognised,
(f) such person 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."
[14]
There is no dispute that all parties are exercising functions under the TAG Act.
The Tribunal must also consider the effect of the provisions of the TAG Act, in so far as they empower or restrict the actions of a financial manager.
Relevantly, section 76 of the TAG Act provides that:
[15]
(1) a manager may use property of the estate of a managed person for the following gifts-
(a) a gift to 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 a 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 person's estate".
[16]
Sections 76 (1)(b) of the TAG Act obliges the Tribunal to consider, to the extent that it can be known, the will and preference of the protected person, in so far as the management of his affairs is concerned.
[17]
The applicants seek approval for gifts totalling $370,000.00 to be given to them, comprised of $185,000.00 to each private manager, from the protected person's estate, during his lifetime.
They submit that Section 76 of the TAG Act provides authority for "making a loan or gift from the estate".
In summary, their main arguments are three-fold. Their primary argument, initially, was that the gift ought to be considered to be a donation of the nature that the protected person made when he had the capacity to do so. However, in their second and final submission, the applicants say that they do not directly rely on s76(1)(b).
In their first submission, the applicants argued that the approval sought aligns with the protected person's "previously established pattern of gifting" and "his expressed wishes", and that the suggested gifts are "entirely reasonable given his substantial asset base and secure financial position".
They submitted that the Tribunal should infer that the proposed gift is consistent with the protected person's will and preference, because of his previous generosity to them.
They now rely primarily on the submission that the sale of the Earlwood property was a "special event", as defined in s76(1)(a). They ask the Tribunal to infer that the fact that the protected person distributed gifts to his children when he sold the Bundanoon property, means that he considered the sale of a property to be a special event warranting the granting of a gift.
In their second submission, they also argued that the second applicant's recent marriage and the conclusion of the first applicant's protracted family law litigation constitute special events as contemplated by the TAG Act.
Finally, the applicants assert that the protected person has sufficient assets and income to afford to make the proposed gifts to the applicants, without any financial detriment to his own lifestyle. They provided life expectancy tables to illustrate the likely life expectancy of the protected person and maintained that his available funds are sufficient to provide for his needs for the remainder of his life.
The applicants' submissions are set out more fully, where relevant, in the following paragraphs.
[18]
The respondent argues that it does not have authority to approve the gift, because it does not satisfy the gifting provisions set out in the TAG Act.
The respondent decided, on 4 November 2024, that a gifting proposal should always reflect the governing purpose of the TAG Act, namely the paramountcy of the welfare and interests of the managed person.
In summary, the respondent was not satisfied that the protected person's past history of making one substantial gift to his adult children satisfies the requirements of Section 76, even in the context of several smaller gifts. Nor was the respondent satisfied that the proposed gift was seasonal in nature or a donation as contemplated by Section 76, subsections (1) and (2).
Furthermore, the respondent rejected the proposal, on the basis that the protected person's estate should only be used for his benefit during his lifetime (in accordance with Section 39 of the TAG Act). It also decided that approval of the proposal would give rise to a conflict of interest, because it is the joint private managers who would benefit from the proposal.
The respondent's submissions are set out more fully, where relevant, in subsequent paragraphs.
[19]
Although their second submission appears to indicate that the applicants no longer rely "directly" on this section, the applicants submitted that the proposed gifts satisfy the requirements of Section 76(1)(b) of the TAG Act, because of what they claim is the protected person's established history of making substantial gifts to his adult children.
The applicants submitted that the protected person made the following gifts to them:
[20]
University of NSW tuition fees for a four-year Bachelor of Commerce degree for the first applicant, which the applicants value to be equivalent to $20,000.00
[21]
$122,000.00 to the first applicant after sale of the Bundanoon property
[22]
Remainder of $100,000.00 to the second applicant following sale of the Bundanoon property
[23]
$7,200.00 to the first applicant to pay rental bond and house expenses
[24]
$27,300.00 to the second applicant for purchase of a vehicle
[25]
$3,600.00 to the first applicant and her daughter, for Christmas
[26]
$1,600.00 to the second applicant "towards bills"
[27]
$3,000.00 to the first applicant to assist with moving expenses
[28]
$5,000.00 to the first applicant to assist with expenses for her daughter
[29]
$1,000.00 to the first applicant for Covid assistance
[30]
The applicants submit that the gifts demonstrate that the protected person has "an established pattern of making substantial gifts to his children". They rely particularly on the undisputed fact that in October 2010, the protected person gifted each of his children $122,000.00 from the sale of the Bundanoon property. They submitted email correspondence between the parties, and asked the Tribunal to accept that this confirms the protected person's will and preference at the time.
This gift was given well before there was any suggestion that the protected person lacked capacity. Whilst it is not contested, and I accept that it was the protected person's independent will and preference to gift his adult children a substantial sum in 2010, this isolated generous gesture does not establish a 'pattern of behaviour'.
The applicants asked me to accept that this gift should be viewed in the context of other gifts given to them by the protected person. I considered the respondent's argument that there is no independent evidence to corroborate the applicants' claims, with respect to the several other smaller gifts of money. However, the applicants provided bank statements that tend to corroborate the fact that they each received small financial contributions from their father, over many years. I therefore accept that he did occasionally give them some gifts of money. However, there is no evidence to corroborate the applicant's account of the context in which these gifts were given.
I examined the applicants' evidence about those contributions. In addition to the large gift which the protected person gave to each of the applicants after he sold his Bundanoon property, if the applicants' submissions are to be accepted, the first applicant received total monetary gifts of $29,300.00, plus the university fees, and the second applicant received monetary gifts of $33,200.00 between 1998 and June 2020, which is a period of 22 years.
There was a significant gap of twelve years, between 1998, when the protected person paid for the first applicant's tuition, and when he gave each of his children what I accept was a gift, after the sale of the Bundanoon property, in 2010. There is no evidence of any pattern of gift giving in the intervening period.
After that, there was another seven-year gap, before the protected person gave the second respondent money to purchase a car and the first respondent two sums, allegedly for payment of rental expenses and Christmas, in 2017. In each of the following years, until 2020, the protected person gave each of the applicants money, which they report was for holidays and other expenses.
The majority of the transactions upon which the applicants rely are for relatively small amounts. With a couple of exceptions, they appear to have been made to meet a clearly identified need for assistance.
The applicants argued that the factual circumstances in this matter ought to be distinguished from those in GPQ v NSW Trustee and Guardian[2025] NSWCATAD 26 (22 January 2025), in which the Principal Member affirmed the respondent's decision to refuse a gift. In that matter, the Principal Member found that the protected person, when he did have capacity, did not demonstrate a history of making substantial gifts to his family members on significant occasions. The Principal Member formed the view that this did not support a conclusion that the protected person in that matter would have made the gift that was sought to the applicant's son for his wedding.
I do not accept that the facts in this matter are substantially dissimilar from those set out in GPQ v NSWTAG. I am not persuaded that the protected person's decision to assist his adult children, at times when he had capacity, should be construed as demonstrating an established pattern of making substantial donations, of the nature sought by the applicants.
The respondent referred the Tribunal to Woodward v Woodward[2015] NSWSC 1793. At paragraph 36, Justice White found that the appointed financial manager had no power to make gifts to himself, in part because the gift was not authorised under Section 76 of the TAG Act.
In Woodward, the Court held that Section 76(1)(b) does not enable a manager to make a gift of a managed person's property to him or herself by contending that it is a "donation" that the managed person might reasonably be expected to make. The Court made it clear that Section 76
[31]
"must be construed in its context and having regard to the purpose of the provisions of the Act regulating the management of estates. The context is the establishment of a statutory scheme for the appointment of managers who stand in a fiduciary relationship to the managed person whose estate they control. The avoidance of a sensible possibility of conflict between interest and duty is a fundamental aspect of the duty of loyalty which the manager owes to his or her principal. Section 76, which is expressed as a conferral of power, should not, in the absence of clear words, be construed in a way that would tend to undermine that principle. In my view, the limitation on the power to make gifts in Section 76(1)(a) and the use of the term "donation" rather than "gift" in Section 76(1)(b) indicates that Section 76(1)(b) is not concerned with the making of gifts to the manager. In context, the word "donation" appears to refer to a gift or contribution to a charity (Australian Oxford Dictionary Second Ed). But even if Section 76(1)(b) has a wider operation, it does not extend to the making of a gift of the managed person's property by the manager to him or herself in breach of fiduciary duty".
[32]
The applicants conceded in their second submission, that the Court in Woodward held that the term "donation" referred to charitable giving, as opposed to gifts to an individual, particularly one who has a fiduciary responsibility to the protected person.
I do not see any reason to distinguish the facts in the current matter to those in Woodward. The fact that the protected person gave his children a large gift once, does not satisfy me, on the balance of probabilities, that it is something he would choose to do again.
Therefore, I reject the applicants' submission that the requested gift is "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" and is therefore permissible pursuant to s 76(1)(b) of the TAG Act.
[33]
The Act provides some, albeit limited, guidance about the type of event that is contemplated in the relevant section, by defining it as an event "such as a birthday or a marriage".
The respondent submitted that the Tribunal could not be satisfied that the sale of the Earlwood property should be construed as "a special event", as defined by Section 71(1)(a) the TAG Act. The respondent submitted that there is also nothing seasonal in nature about the proposed gift.
Counsel for the applicants submitted that the Tribunal should find that the correct construction of the Act is to regard the definition of "a special event" as not exhaustive, but inclusive. The applicants submit that the second applicant's recent marriage constitutes "a special event" explicitly mentioned in the legislation and the recent finalisation of the first applicant's protracted Family Law proceedings also represents "a significant life transition".
Counsel for the applicants argued: "The protected person's established pattern demonstrates his tendency to make substantial gifts following the property sales and during significant life transitions for his children". Furthermore, he argued that the protected person always gave the same significant amount to each child regardless of their specific life events.
However, the applicants' own evidence demonstrates that this is incorrect. The use of the plural to refer to the sale of one property is inaccurate. Furthermore, the only time that it has been demonstrated that the protected person gifted both of his adult children the same amount is after the sale of the Bundanoon property.
The question of what constitutes a gift under Section 76(1)(a) was considered in GCR v NSW Trustee and Guardian[2024] NSWCATAD 130 (20 May 2024) which concerned a matter where the applicant had requested funds from the protected person's account to pay airfares for persons other than the protected person to travel to Australia.
In that matter, the Senior Member referred to the second reading speech, before the NSW Parliament, of the Honourable John Hatzistergos, then Attorney General and Minister for Industrial Relations, when he moved the NSW Trustee and Guardian Bill 2009. In that speech, the Attorney General said:
[34]
"The Bill also provides a power for the NSW Trustee and Guardian or private manager to buy gifts of small monetary value for family members for personal, cultural or reasons...the powers will be analogist to those available to an attorney under Section 3 Schedule 3 of the Powers of Attorney Act 2003 (NSW) which include a prescribed form of authority for the giving of gifts. The gift must be to a relative or close friend of the protected person; be of a seasonal nature or because of a special event, for example a birth or a marriage; or a donation of the nature that the protected person made when he or she had capacity or might reasonably have been expected to make; and the gift's value must not be more than what is reasonable having regard to all the circumstances and the size of the protected person's estate".
[35]
Whilst there is no dispute that both applicants are a relative, in GCR the Senior Member made the following observations about the definition of a gift of a seasonable nature.
[36]
"Although the term "seasonal nature" in s76(1)(b) is not defined in the TAG Act, the term "special event" specifically includes a birthday or marriage as examples (s76(1)(b))". The internal review decision undertaken by the Director of Legal and Professional Services of the NSWTAG included in s58 documents...provided helpful assistance, which I quote from here:
[37]
"Section 76 is based on similar wording used in the Powers of Attorney Act 2003. It has been said by Professor Gino Dal Bont in his text on his Powers of Attorney Second Edition 2014 that examples of celebration gifts (gifts of a seasonal nature) would be: a birthday, Easter, Hanukkah, Christmas, and examples of special events would include: birth, marriage, graduation, and anniversary of a birth...or formation of a civil partnership. It has been suggested that "seasonal basis" denotes a temporal basis - something which occurs regularly - birthdays, anniversaries, religious or cultural annual events. Equally "special event" should take the normal usage of the word and be taken to mean a significant life event, such as a marriage/civil partnership, births, graduations".
[38]
The end of a period of Family Law litigation, however protracted, is not something which, in my view, equates to an event of a seasonal nature or a special event such as a birth or marriage.
There is no evidence to contradict the second applicant's submission that he has recently married. However, the second reading speech makes it clear that the section contemplates the bestowing of gifts of small monetary value. The amount sought by the applicants in this instance exceeds a sum which could be characterised as a gift of a small monetary value.
The applicants also argued that the gift may also satisfy Section 76 (1)(a) of the TAG Act, because the sale of the Earlwood property is "a special event". They equate the sale of the Earlwood property to the 2010 sale of the Bundanoon property.
The applicants submitted that, allowing for inflation, the sum of $185,000.00 each is equivalent to the gift that the protected person made to them, in 2010, of $122,000.00.
Whilst this submission provides insight into how the quantum of the proposed gift was devised, the assertion that the sale of the Earlwood property was a special event, as defined by s 71(1)(a) of the TAG Act, is at best, flimsy.
I am not satisfied that the sale of a property to be an event similar to the celebration of a special personal or family occasion, as contemplated by the TAG Act. Nor am I persuaded that the first applicant's family law proceedings is an event such as that contemplated by Parliament when the relevant section was drafted.
Therefore, I reject the submission that the proposed gift is permitted pursuant to s 76(1)(a) of the TAG Act.
[39]
The applicants submit that the proposed gift is reasonable, given the protected person's total assets, which exceed $2.5 million. They assert that he has a total annual income of approximately $95,000.00 and a cash flow surplus, after payment of all expenses, of over $25,000.00. They argue that this surplus "provides a significant buffer for any unforeseen expenses" without the need to dispose of assets.
The applicants argue that the proposed gift is reasonable, because it represents approximately only 15% of the protected person's total estate and would leave the protected person with net assets of over $2 million, of which 61% is available in liquid funds to cover any unforeseen expenses.
They argue that the proposed gifts "would have no material impact on the (the protected person)'s quality of care or financial security and ignores the prospect of capital growth on the Tasmanian property and other assets".
Finally, the applicants submit that the protected person's life expectancy is probably another 2.5 years, based on standard life expectancy tables and his diagnosis of Lewy Body dementia.
The respondent did not submit any evidence to contradict the applicants' submissions that the proposed gift is affordable for the protected person.
However, unless Section 76(1) of the TAG Act is satisfied, consideration of whether the proposed gift is reasonable does not arise. As a matter of logic, the operation of Section 76(2) of the TAG Act is contingent upon the criteria in Section 76(1) having been satisfied. Because I have found that that is not the case, I do not need to make any findings about the affordability of the proposed gift.
In any event, even if I were to find that the proposed gift is one of a reasonable quantum, having regard to the extent of the protected person's estate, affordability is only one factor to be considered. The overarching consideration remains the protected person's welfare and bests interests.
[40]
In his final submissions, Counsel for the applicants highlighted that both applicants live in rental accommodation "creating a pressing housing need". The applicants submitted that the protected person has indicated, by the execution of his Will, and in recent conversations, that he has the desire to help his children with available funds.
The applicants submitted that the Tribunal should accept that the protected person's Will and the Codicils indicate his intention to provide for his family.
The respondent considered the protected person's preferences expressed in his Will and submitted that there are "concerns about the validity of the Will...particularly the amendments made in pencil". One of the amendments appointed the applicants as joint executor and executrix of the estate. For this reason, the respondent did not place any weight on the intentions expressed in the Will.
I accept the applicants' submissions that the protected person's Will and Codicils, to the extent that they are valid, indicate his intention to provide for his family, including his granddaughter, at the end of his life. I cannot be satisfied, on that basis, that that extends to expressing his will and preference that his estate should be distributed during his lifetime.
The applicants also asked the Tribunal to consider the advice set out in what is called a discussion paper, that is undated and unsigned, which opined that "It is reasonable to expect that he would want to see [his assets] being utilised by his family rather than being frozen by bureaucracy". The applicants gave evidence that the author of this document is a financial planner, Mr Simon Liddle. Because the respondent did not dispute this, I accept that Mr Liddle most likely wrote the discussion paper.
I considered the weight to be given to this document. I decided that it should be afforded very little, if any weight. I reject Mr Liddle's assertion about what it might be "reasonable to expect" the protected person's wishes would be if he had the capacity to express them, for the following reasons.
Mr Liddle's paper has not been submitted to, nor accepted by, the Tribunal as an expert report. There is no evidence that Mr Liddle ever met the protected person, nor that he has professional qualifications which would qualify him to express such an opinion. He does not provide any explanation as to how he has arrived at this conclusion. Therefore, his statement that "it is reasonable to expect that he would want to see [his assets] being utilised by his family, rather than being frozen by bureaucracy", is nothing more than unqualified opinion, offered about someone who may be a stranger to Mr Liddle.
The applicants also submit that, during recent visits, the protected person has told them that he would like to distribute some of his estate to them. I considered this submission, in the context of a report, tendered by the applicants to address the issue of the protected person's life expectancy. The intended purpose of the report was to demonstrate that the protected person has sufficient means to permit the proposed gift without any disadvantage to his own financial circumstances.
The report was authored by Dr Maithili Sellathurai, dated 22 April 2025. This very recent report is the best evidence available to me about the protected person's current capacity to express his wishes. Dr Sellathurai wrote that the protected person's capacity and motor ability has significantly declined, since his admission in 2021. Significantly, during 2023 and 2024, the protected person's condition has deteriorated to the point that he struggles to communicate and becomes easily confused.
This uncontested evidence from a suitably qualified treating general practitioner does not lend weight to the applicants' assertion that the protected person has recently expressed that his wishes align with theirs, in any way which could be regarded as reliable. I do not accept that aspect of their submission, for that reason.
In circumstances where the protected person has been diagnosed with a progressively deteriorating cognitive impairment, I cannot be satisfied that his will and preference can be inferred. It cannot, for example, be assumed that because the protected person has, on limited occasions in the past, demonstrated significant generosity to his children, that his preference at this time remains as it was fourteen years ago.
Therefore, I cannot be satisfied that the proposed gift aligns with the protected person's will and preference.
[41]
In Holt v Protective Commissioner (1993) 31NSWLR 227, the Court held that "the governing purpose of the jurisdiction exercised by the Court is the protection of the welfare and interests of the particular protected person concerned". A manager is obliged to act in the person's best interests.
When the applicants signed their acceptance of the Power of Attorney, even though it was never executed by the protected person, they accepted, and added their signature to the following, amongst other things:
[42]
(1) I accept that I must always act in the principal's best interest
(2) I accept that as an attorney I must keep my own money and property separate from the principles money and property.
(3) I accept I should keep reasonable accounts and records of the principles money and property
(4) I accepted unless expressly authorised, I cannot gain a benefit from being an attorney...
[43]
It is clear that the applicants were made aware of the fiduciary responsibility they would assume, if they were appointed with the protected person's Power of Attorney.
Even though that did not eventuate, as financial managers, appointed by the Tribunal, they exercise functions under the Guardianship Act and TAG Act. They have a fiduciary responsibility to uphold the bests interests of the protected person. Nothing in the applicants' submissions addressed the issue of how the proposed gift upholds the paramountcy of the protected person's welfare and best interest, during his lifetime.
Mr Liddle's services were retained by the financial managers, who are the applicants in this matter, rather than by protected person himself. They seek to derive a benefit from the Estate, during the protected person's lifetime. The final paragraph of Mr Liddle's discussion paper, which says: "(The protected person's) assets are in excess of his needs, and his estate would be considerably better off over the longer term if the investment were in growth assets and not in cash investments. The potential disparity over five years would be around $300,000.00 to the detriment of the Beneficiaries", makes it abundantly clear that Mr Liddle's primary focus is the eventual benefit of the beneficiaries, as opposed to what is in the protected person's best interests.
I cannot be satisfied that the report is objective or that it prioritises the protected person's best interests, for that reason.
The applicants' submissions are, in fact, more akin to an argument that the proposed gift will not cause a determent to the protected person, as opposed to an attempt to demonstrate that it is in his best interests for the proposed gift to be exchanged. The cornerstone of this argument is the affordability of the gift.
They submit that the protected person's assets are valued at approximately $2.5 million comprising of the Tasmanian property ($770,000.00), the proceeds of the sale of the Earlwood property ($1,593,000.00), and other cash holdings of approximately $123,000.00. They assert that the protected person has a secure income stream provided by a superannuation fortnightly payment of approximately $65,000.00 annually, and rental income from the Tasmanian property of approximately $33,000.00 annually.
The applicants also argue that should the proposed gifts be made, the protected person would still have $1,223,000.00 in assets which would produce a yearly income of approximately $59,000.00, assuming an interest rate of 4.88%.
The applicants submit that the protected person's annual income exceeds his annual expenses. They estimate that he has a considerable annual surplus, which removes any need for him to draw on his capital.
Even If I were to accept that the protected person could afford the gift, without undue financial hardship to him, I remain unsatisfied that it has been proven that the proposed gift is in the best interests of the protected person.
[44]
It follows from the foregoing that I am satisfied that the reviewable decision is the correct and preferable decision.
[45]
The decision of the NSW Trustee and Guardian, dated 4 November 2024, declining the request to distribute a gift to the private managers from the proceeds of the sale of the protected person's property is affirmed.
[46]
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.