Holt & Anor v Protective Commissioner

The hearing

1. 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.]
2. This application for the appointment of a financial manager and an application for the appointment of a guardian for MZI, both submitted on 15 May 2020, came before the Tribunal on 21 May 2020.
3. On 21 May 2020 the Tribunal ordered that MZI be separately represented and adjourned the hearing of both applications to 28 May 2020 to allow the assignment of this matter to the separate representative and to afford BAI procedural fairness, he having only received notice of the hearing and the applications on the evening before the hearing. He wished to seek legal advice.
4. Liz Turnbull from Legal Aid Wollongong has been assigned as the separate representative for MZI.
5. On 28 May 2020 the Tribunal gave leave for BAI to be legally represented in the hearing of the applications for guardianship and financial management with respect to MZI. Lucinda Knapp is his lawyer.
6. On 28 May 2020 the Tribunal appointed the Public Guardian as MZI's guardian for a period of six months with the functions of accommodation, health care, medical and dental consent and services.
7. On 28 May 2020 the Tribunal adjourned the hearing of the application for financial management with respect to MZI because there was insufficient time on that date to deal with the application.
8. On 8 July 2020 the Tribunal adjourned the hearing of the application for financial management with respect to MZI because BAI was unable to attend the hearing as he was undergoing dialysis on that date. He had sought legal advice from Mr X, solicitor, who was also unable to attend the hearing on that date.
9. The hearing today is the hearing of the financial management application submitted on 15 May 2020.

Settlement

1. The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. There was significant conflict in this matter and the Tribunal was not able to assist the parties to reach agreement.

Does Illawarra Shoalhaven Local Health District have standing to bring this application?

1. The application for financial management was made by the Illawarra Shoalhaven Local Health District in accordance with a guideline issued by the Ministry of Health, which recommends that applications to this Tribunal for financial management orders be made in the name of the Local Health District or Specialty Network, rather than the name of an individual health professional. This is a departure from the usual practice of individual practitioners such as social workers making applications for orders.
2. Section 25I(1)(b) of the Guardianship Act 1987 (NSW) ("the Act") provides that an application for a financial management order can be made by "any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person who is the subject of the application".
3. The Tribunal found that Illawarra Shoalhaven Local Health District has standing to make the application for a financial management order because the Illawarra Shoalhaven Local Health District is able to and does have a genuine interest in MZI's welfare (see NEJ [2017] NSWCATGD 1 (27 January 2017).

What did the Tribunal have to decide?

1. The questions to be considered by the Tribunal are:

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

1. The medical reports considered by the Tribunal on 28 May 2020 are listed at [19] of the Tribunal's Reasons for Decision. Those Reasons for Decision should be read for completeness in understanding the background to this matter.
2. On 28 May 2020 after considering all of the evidence which was unchallenged, except by BAI, the Tribunal decided that MZI was a person with dementia and cognitive impairment and some mobility impairment. The Tribunal was satisfied that MZI's disabilities prevented her from making some important life decisions and that she was a person for whom the Tribunal could make a guardianship order. The Tribunal went on to make an order appointing the Public Guardian as MZI's guardian for a period of six months.
3. The medical evidence before the Tribunal today was a report dated 14 May 2020 prepared by Dr W, Consultant Geriatrician. The Tribunal also considered the contents of a report dated 14 May 2020 prepared by Mr Z, Social Worker.
4. Dr W reports that "On further assessment [MZI] presents with a moderate to severe cognitive impairment with a mixed picture of Alzheimer's and vascular dementia. Her MoCA score during the admission, in the absence of a delirium, was 16/25 (allowing for hand dysfunction secondary to a chronic inflammatory arthritis) with global deficits. Her Addenbrooke's Cognitive examination revealed a score of 59/90 which suggests moderate to severe cognitive impairment with deficits in all domains of cognition."
5. At the time of Dr W's report MZI was said to be medically stable with no acute medical issues. Dr W concludes "Due to her cognitive impairment, I do not feel that she has capacity to make decisions in her best interests regarding discharge planning, nor the financial management related to this."
6. The medical evidence was unchallenged.
7. The Tribunal is required to consider MZI's functional management capacity in handling her finances rather than her mental capacity or the particular reasons for her incapacity for self-management.
8. The Tribunal asked MZI to give us some information about her financial affairs.
9. MZI could not recall when she was discharged to the nursing home. She commented that she liked living there, they were nice people and nice facilities. MZI told the Tribunal she was worried about her outstanding fees to the nursing home and the pharmacy. Ms V from the nursing home told us that the fees owing to the nursing home were $3,709.80 after Centrepay and that a pharmacy account of $620.35 was unpaid.
10. MZI said that she would use what she described as her credit card to pay those fees. When asked how she would repay the credit card debt MZI told the Tribunal that she did not know. She commented "It just comes in, as far as I know." When asked what it was that comes in MZI replied "The money".
11. MZI could not recall, without prompting from BAI, where she had her bank account. MZI could not recall the balance in her bank account. She said that she used her card and a PIN if she wanted to withdraw cash. She did not recall the PIN but looked in her purse to see the number when she needed to use it. After some prevarication MZI told the Tribunal that she thought there was about $2,000.00 or $3,000.00 in her bank account.
12. Ms Turnbull, the separate representative for MZI, told the Tribunal that she had spoken to MZI on the Tuesday preceding the hearing. During that conference MZI had told Ms Turnbull that she thought it was a good idea for someone to help her with her finances.
13. BAI told the Tribunal that MZI banked with a financial institution. He did not know the balance in her account saying that he did not have access to that account. BAI told the Tribunal that he had attempted to enquire about MZI's account with that financial institution but they would not deal with him. BAI banks with another financial institution.
14. BAI had recently obtained a phone number to contact Centrelink to enquire about her pension payments and whether he was her Centrelink nominee. At the time of the hearing he had not yet made contact with Centrelink.
15. BAI told the Tribunal that MZI manages things very well at home but it was difficult for her to continue to do that in the nursing home where she is "… without her things around her. She manages very well at home. She always could at home."
16. The Tribunal accepted the medical evidence and took into account MZI's inability to accurately describe her financial position and the arrangements which she would put in place to manage payment of her fees at the nursing home.
17. The Tribunal noted the evidence of Ms V that the nursing home receives $131.90 a fortnight from Centrepay on account of MZI's fees, a sum which falls short of her actual fees. MZI has been a resident at the nursing home since 15 June 2020 yet in that time no arrangements have been made by MZI for payment of the shortfall in her fees or for payment of her pharmacy fees.
18. In an Occupational Therapy Report dated 7 May 2020 Ms U, Occupational Therapist, reports that MZI "… was not able to describe to OT how she would pay a water or electricity bill, she advised she would pay for items with her card if going grocery shopping." After assessment the Occupational Therapist concluded that "[MZI] demonstrates global cognitive impairments which raises concerns related to her ability to manage her medications, make choices about her self care and financial decision."
19. In Re D [2012] NSWSC 1006, White J assessed the history of case law in relation to financial management and noted that initially the issue of capability was approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Court now assesses the person's own capacity to do what they are proposing to do [58]. White J used a "rational appreciation" of assets test to determine a person's capability to manage his or her affairs. He adopts the reasoning of Barrett J in P v R [2003] NSWSC 819 who said that the task of the Court in these circumstances: "… is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person's property…the requisite judgment is to be made in the light of objective physical facts concerning the relevant person's property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter [26]."
20. In PB v BB [2013] NSWSC 1223, Justice Lindsay confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at [7]: "Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack 'mental capacity' or be 'mentally ill'; or (b) particular reasons for an incapacity for self-management."
21. 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."
22. In considering whether the person is "able" in this sense, consideration may be given to:

• past and present experience as a predictor of the future course of events;
• support systems available to the person; and
• the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498, at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, at [309].

1. The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86). See Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [20]:
2. Each case must, of course, be considered on its own facts, including not only actual facts presently known but also, so far as they can be known, prospective developments.
3. After weighing all of the evidence the Tribunal finds that MZI does not have a reasonably sound understanding of her assets and liabilities and what needs to be done to preserve them. The Tribunal finds that MZI lacks the ability to identify situations where others may be attempting to benefit from her assets.
4. The Tribunal finds that because MZI does not have a reasonably sound understanding of her assets and liabilities and lacks the ability to identify circumstances where people may take advantage of her, she is incapable of managing her affairs.

Is there a need for a financial management order?

1. The Tribunal was satisfied that there is a need to appoint someone to manage MZI's affairs. The Tribunal notes that the Centrelink contribution paid directly to the nursing home on behalf of MZI falls well short of the fees being charged. Clarification of MZI's Centrelink entitlements and daily fees calculation is required. Arrangements must be made for payment of MZI's outstanding fees at the nursing home and arrangements made for ongoing payment of her fees at a care facility, for payment of her pharmacy account, the provision of money for her personal needs and general management of her affairs.
2. In this context the Tribunal notes the content of a letter written ostensibly by BAI and MZI addressed to the Public Guardian asking for consideration to be given to relocation of MZI to a care facility closer to where other family are living in Sydney and at a location where BAI can also be accommodated with MZI.
3. The Tribunal notes that MZI has been on respite at the nursing home for approximately 60 days. She is nearing the end of the respite period of 63 days allowed by the Government. A decision needs to be made quickly as to whether she is going to remain at the nursing home on a permanent basis or relocate to another care facility which is BAI's preference. That decision will be made by MZI's guardian in consultation with her financial manager regarding the financial implications of a relocation.

Is it in MZI's best interest that a financial management order be made?

1. The Tribunal was satisfied that it is in the best interests of MZI that a financial management order be made.

Who should be appointed as financial manager?

1. In appointing a financial manager, as in making all other orders under the Act, 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 Act.
2. Section 25M of the 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.
3. 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 NSW Trustee and Guardian now exercises the role of the Protective Commissioner.
4. 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.
5. The advantages of the appointment of a family member were more economic management of smaller estates (that is, reduced 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.
6. 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.
7. 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."
8. The matters or "guidelines" that should be considered when determining who to appoint as financial manager, as established in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, are discussed and expanded upon by Lindsay J in M v M [2013] NSWSC 1495 at [50].
9. There is reference in the reports of Dr W, Mr Z and Ms U to what is described as MZI's concern not to upset her husband. He is described in the reports as someone who could coerce his wife and who had been observed to upset her. It has been reported that he had kicked her, that other physical abuse had been observed and that on one occasion he cut MZI's hair on the ward causing her significant upset.
10. During the hearing MZI unequivocally stated a number of times that she wanted her husband to be the person to manage her financial affairs. The Tribunal notes that BAI and MZI were at different venues during the hearing which was conducted by telephone link. There was no evidence that caused the Tribunal to think that MZI's will was being overborne by BAI during the hearing or that her stated wish for BAI to manage her affairs was not a true expression of her current thinking.
11. In deciding this matter the Tribunal must observe the principles in s 4 of the Act including giving due regard to the importance of preserving family relationships, taking account of MZI's views and giving paramount consideration to her welfare and interests.
12. Ms Knapp submitted that the least restrictive option for the Tribunal would be to appoint BAI as MZI's financial manager. Ms Knapp told the Tribunal that Mr and MZI's finances were intertwined. She said that BAI had studied financial management at TAFE. Further, Ms Knapp submitted that there was no risk to MZI's finances if her husband were to be appointed as her financial manager.
13. BAI listened to the Tribunal's explanation that as a private financial manager he would be subject to the authorities and directions of the NSW Trustee and Guardian who would supervise his financial management of MZI's affairs. When asked whether he was prepared to comply with the authorities and directions of the NSW Trustee and Guardian BAI said "Yes of course."
14. BAI went onto say that in his early 30's he had completed a four-year financial management degree course at a technical college at a suburb in the city of Sydney. He said that he handled all of the household finances. He said that MZI had been financially dependent on him, she having what he described as "… her own little account." MZI receives a part pension and as a hobby "… dabbles in stocks and shares". BAI said that he had never looked at his wife's money.
15. Ms Turnbull submitted that the Tribunal should appoint the NSW Trustee and Guardian as MZI's financial manager noting that in the past BAI has expressed dissatisfaction with the Guardian's decisions.
16. During the hearing today BAI acknowledged his wife's need for care. Submissions have been made to the Public Guardian to consider relocating MZI to a facility which could also accommodate BAI.
17. The applicant supported the appointment of the NSW Trustee and Guardian.
18. During the hearing the Tribunal made enquiries of BAI to ascertain whether he is a "suitable person," for the purposes of the Act, to be appointed as MZI's financial manager. BAI confirmed that:

• he is not and has never been bankrupt;
• he has not been convicted of any offences involving dishonesty;
• there is no intermingling of his funds with those of MZI.

1. The Tribunal carefully considered all of the evidence and was satisfied that BAI was a suitable person to be appointed as financial manager for MZI subject to the authorities and directions of the NSW Trustee and Guardian.

Should a reviewable financial management order be made?

1. The Tribunal may determine that a financial management order should be reviewed within a specified time.
2. The Tribunal notes that the Guardianship Order made on 28 May 2020 is to be reviewed prior to 27 November 2020. It remains to be seen whether BAI in his role as financial manager will work cooperatively with the guardian to ensure funding is in place for accommodation and services that will meet MZI's needs. The Tribunal notes BAI's request that the guardian give consideration to relocating MZI to a care facility where he can also be accommodated.
3. The Tribunal is satisfied that the financial management order made today should be reviewed. It would be appropriate for that review to take place at the same time as the review of the guardianship order that was made on 28 May 2020.

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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: 11 October 2021