KJC [2016] NSWCATGD 9

KJC [2016] NSWCATGD 9 - NSWCATGD 2016 case summary — Zoe

[18]

The submissions of Mr TMC

Mr TMC reiterated the principal grounds on which he sought a change of guardianship arrangements for his mother. These are set out in more substantial detail in paragraph 37 of the Reasons for Decision in respect of the hearing on 8 December 2015, but they are also contained in a lengthy and detailed statement, apparently made jointly by Mr TMC and Mrs LDC, dated 10 October 2015 and its annexures.
In essence Mr TMC's contentions were as follows: 1. Mrs KJC's interests would not be served by the continuation of the appointment of his sister, Ms MVC, as her guardian because his sister's actions had had the effect of isolating his mother from other members of the family including her grandchildren (that is, Mr TMC's children). He claimed that his family had been denied access to Mrs KJC's home by Ms MVC. In this regard, Mr TMC asserted that he had invited his mother to a recent joint celebration of his son's engagement and his brother, Mr DAC's birthday that his mother had been keen to attend but that his sister, Ms MVC, had refused to allow her to attend. This isolation of his family from his mother was exacerbated by the gradual decline in proper communication from his sister, Ms MVC, about their mother's condition, particularly since the Tribunal's hearing in September 2014. 2. Ms MVC had obstructed him in the carrying out of his obligations as financial manager. Although these allegations are more appropriately dealt with and consideration of the review of the financial management order, we understood Mr TMC's contention to be that Ms MVC wrongfully or improperly exercised her power as her mother's guardian to prevent actions which Mr TMC, as financial manager, believed were necessary in the management and protection of her estate. 3. Ms MVC has a conflict of interest which prevents her from acting in the best interests of their mother or in a way which is consistent with Ms MVC's obligations as enduring guardian. Mr TMC asserted that many of his sister's actions indicated that she was motivated by her own interests in securing comfortable and convenient accommodation at Mrs KJC's home, to the possible detriment of Mrs KJC. Mr TMC asserted that this conflict of interest was exemplified by the following incidents: 1. His sister's dealings with a local Council in relation to changes to the home. He accused her of submitting a development application to the local Council in June 2013, without his knowledge as financial manager and in contravention of earlier advice from NSW Trustee and Guardian that such dealings were the domain of the financial manager. Mr TMC asserted that the draft development application of June 2013 included his mother's signature as owner. On Mr TMC's account, which seems to be supported from a letter to him from the local Council dated 24 June 2015, he became aware of the development application and the local Council determination in mid-2014 and then made representations to local Council. These representations resulted in the local Council claiming that they had been led to believe that: 1. Ms MVC as applicant had authority as the appointed attorney of her mother to make the application; 2. the local Council received no indication that the applicant lacked capacity to make the application; and 3. the local Council had not been informed by Ms MVC as applicant that a financial management order had been made for Mrs KJC. 1. The proposed works involved in the development application lodged in June 2013 would have made necessary an updated fire safety certification, which in turn would have involved on Mr TMC's estimation, further building work of at least three months duration. This would have made his mother's continued accommodation at home during that building work difficult if not impossible. Ms MVC had made no appropriate alternative accommodation arrangements for her. 2. Ms MVC had from time to time appeared to regard one of the bank accounts maintained in respect of his mother as belonging to her or at least being under her control. 3. Mr TMC also referred to a proposed deed of settlement which had been submitted to him by mail from Mr Z as solicitor for Ms MVC. A copy of the proposed deed had been provided to the Tribunal. Mr TMC indicated that the contents of the deed and the manner of its presentation to him were not consistent with the attempted conciliation discussions held the time of the previous hearing and he had immediately rejected the deed. He asked us to note that it included provisions for payments by him to Ms MVC in the event that Mrs KJC requires to be accommodated in a nursing home. We noted that clause 2(l) of the proposed deed appeared to impose on Mr TMC a generally-expressed obligation to assist Ms MVC financially in those circumstances until she obtained regular paid employment in locating and paying for temporary private accommodation and for any training Ms MVC might undertake "in order to increase her chances of employment". A further provision required the parties to keep the terms of the deed confidential. We took Mr TMC to be contending that the presentation to him of the draft deed with these provisions demonstrated that Ms MVC was seeking to preserve and advance her own interests, contrary to her obligations as enduring guardian for her mother. 1. Ms MVC had recently taken a holiday or respite leave in circumstances which indicated her disregard for his mother's relationships with himself and his immediate family including her grandchildren and which also potentially placed his mother at some risk. Mr TMC asserted that although Ms MVC had previously indicated that she was in need of some respite, she had not informed him or members of his family of the arrangements which she had made for a recent short holiday in regional NSW. Ms MVC had engaged a paid carer for this period without consultation with him as financial manager, and he and his family could have cared for Mrs KJC during this period if prior notice had been given. 2. Mr TMC also asserted that Ms MVC has on two occasions threatened to stop caring for their mother unless he is removed as financial manager. Mr TMC contends that that this demonstrated his sister's inability test to distinguish her own needs from those of her mother.
Other documentation lodged by Mr TMC outlined further complaints about his sister Ms MVC's actions.
In his submissions on what the Tribunal should order in relation to the guardianship issues, Mr TMC contended that his mother's interests and welfare would best be protected by the following arrangements: 1. a guardian should be appointed to make decisions about access to Mrs KJC; but also to make decisions covering the functions in the existing Appointment of Enduring Guardian 2. his sister Ms MVC should retain her role as carer for Mrs KJC, but she should not be her guardian; 3. Mr TMC himself and his wife Mrs LDC should be appointed jointly as guardians with at least the authority to make decisions about Mrs KJC's access and accommodation.

[21]

Ms MVC's response to Mr TMC's contentions

In relation to the contention that she has isolated her mother, Mrs KJC, from members of Mr TMC's family, Ms MVC denied that she has done anything which was other than in the best interests of her mother. She also asserted that she was prepared to base arrangements for access by Mr TMC and his family to her mother on "professional advice". In many items of correspondence and other documentation Ms MVC has dealt in detail with particular incidents where arrangements for access appear to have fallen through. Ms MVC's position in summary of these matters appears to be that these arrangements fell through due to no fault of hers but rather because of inadequate notification or communication of arrangements by others, particularly her brother, Mr TMC. In her written submissions, Ms MVC asserts that there was an agreed protocol in June 2015 for arranging visits to Mrs KJC and that Mr TMC and others have failed to follow the protocol. Ms MVC also asserted in her written submissions that she has the right of residence in her mother's house as carer and therefore has a right to privacy and quiet enjoyment but that she remains willing to make herself available to provide access by Mr TMC and others to her mother.
In submissions at the hearing, Ms MVC asserted that she has not prevented visits by her brothers or Mr TMC's family to Mrs KJC's home nor has she unreasonably restricted her mother's visits to the home of Mr TMC. In paragraph 27 of her written submission of 30 November 2015 Ms MVC stated: If there has been any so-called "eight-month ban" (that is a ban asserted by [Mr TMC] to have been imposed by [Ms MVC] on visits by him and his family to [Mrs KJC]), this has been purely due to [Mr TMC's] (sic) reluctance or refusal to follow agreed protocols.
Ms MVC denied that she has failed to communicate reasonably with Mr TMC and others about her mother's condition.
Ms MVC denied that she has improperly obstructed Mr TMC in his role as financial manager. She asserted that she has had to arrange or pay for at least some of the necessary maintenance on her mother's home including urgent repairs to a window.
Ms MVC denied that she has placed herself in a conflict of interest; that is, as we surmise, a conflict between her owns personal interests and her duties as the carer and guardian of her mother.
In her written submissions of 30 November 2015, Ms MVC set out details of the care which she has provided to her mother. In a section of the submissions commencing with paragraph 61 she asserts that she should continue as guardian and that her brother, Mr TMC's proposal to replace her is subject to a number of deficiencies, in particular that it gives insufficient weight to Mrs KJC's strong wish to continue to live in a family home.
At the hearing, Ms MVC provided a detailed explanation of her recent respite holiday in regional NSW. It seemed common ground that Ms MVC had not had respite leave for some two and a half years. At the hearing, Ms MVC also denied that the proposed settlement deed contained anything which could reasonably be seen as a conflict of interest and said that many of the provisions reflected suggestions made by her brother, Mr TMC.
Ms MVC asked the Tribunal to allow her to remain as her mother's enduring guardian. She asserted that as carer and guardian she is the best placed person to provide companionship and care for her mother and that this was also in accordance with the wishes of her deceased father. We understood Ms MVC to assert that allowing her to remain as carer and guardian would be the course which would be in the best interests of her mother Mrs KJC. Ms MVC's position appeared to be that there was no necessity to appoint a guardian with a specific access function.

[25]

Submissions by the applicant, Ms MVC

In her detailed written submissions, Ms MVC raised the following issues relevant to the financial management order: 1. She asserted that Mr TMC as financial manager had failed to maintain the family home of Mrs KJC in a manner that provides a safe and comfortable environment for her. She referred particularly to Mr TMC's failure to provide funds or to carry out repairs to a window that presented a safety risk to occupants and remedial work identified by builders on the main structure, windows and doors, to metal roofing over the garage and carport and the need for interior painting and removal of mould. 2. She alleged that Mr TMC as financial manager had attempted to access Mrs KJC's credit card account using the login details and password which she owned as enduring guardian. In her written submissions Ms MVC noted that: It is not beyond the bounds of possibility that the Financial Manager was contacting (sic) a situation where he could falsely accuse the Enduring Guardian of mismanaging [Mrs KJC's] credit card account. 1. She also alleged that Mr TMC as financial manager had failed to cooperate with or facilitate her efforts to arrange respite. 2. In what appeared to be her principal contention, Ms MVC asserted that her brother Mr TMC had engaged in a pattern of behaviour that constituted harassment and bullying and general obstruction of her in her role as enduring guardian and for that reason he is unsuitable to remain as financial manager. She provided as examples of this: 1. Mr TMC's response to the recent cancellation of Mrs KJC's credit cards by the bank. We understood Ms MVC to allege that she as enduring guardian was attempting to protect Mrs KJC's credit card account which, by agreement was used for Mrs KJC's day to day living expenses, but was falsely accused by her brother as financial manager of interfering with the financial management of Mrs KJC's estate. 2. Secondly, as we understand it, she alleged that her brother falsely accused her of attempting to establish two websites without reference to her brother as financial manager. 3. Thirdly, Ms MVC asserted that her brother as financial manager wrongfully accused her of attempting to interfere with the financial management of the estate. 4. There are other specific instances related in Ms MVC's documentation which may also be intended to support her general allegation of obstruction through harassment and bullying.
In her closing submission, Ms MVC observed that the current split of responsibilities between her and her brother, Mr TMC, whereby she is the carer and enduring guardian and he is financial manager "simply won't work". Ms MVC asked the Tribunal to remove Mr TMC as financial manager and instead to commit the management of her mother's estate to the NSW Trustee and Guardian. We note that in her application Ms MVC actually sought the appointment of Mr TMC, Mr DAC and herself jointly as financial managers, and in the alternative commitment of the management to NSW Trustee and Guardian. However during the hearing she confirmed that she would not pursue her proposal for the joint appointment of the three siblings.

[26]

Submissions by the appointed financial manager, Mr TMC

In his written submissions and at the hearing, Mr TMC contended that he was suitable for continued appointment as financial manager, that he had acted appropriately and in compliance with his obligations and NSW Trustee and Guardian authorities and directions and that his continued appointment would be in his mother's best interests. At the hearing, Mr TMC indicated that he and his wife had made financial management of his mother's estate "a major part of our lives" and he asserted that he had gone to substantial lengths to obtain the cooperation of and compliance by his sister, Ms MVC, with his decisions and requests as financial manager.
In response to the particular contentions made by Ms MVC as to his actions as financial manager Mr TMC, in his written submissions and in addressing the Tribunal at the hearing, contended as follows: 1. In relation to his maintenance of his mother's home, Mr TMC said that his father had built much of the house and that as a young man he had assisted him before going into the building trade himself. Mr TMC described himself as "intimately familiar" with the house, its construction and the need for maintenance. He asserted strongly that he had not neglected necessary maintenance work; for example in relation to the repairs to the windows, that he had through his contacts in the industry arranged three different building companies who were prepared to quote for the work, but that his sister, Ms MVC, had only provided narrow timeframes within which she would allow inspection for this purpose. He said that the carport was affected by movement in the garden retaining wall and that its roof would need readjustment but this was not a job requiring urgent attention and could be done within the next 12 months. 2. We understood Mr TMC to contend in relation to the credit card issue that generally, his sister, Ms MVC, had had great difficulty in accepting that the Tribunal by its order had appointed him as financial manager and difficulty in coming to terms with the implications of that. He asserted that his sister did not fully understand the role, responsibilities or rights of a financial manager and that this was behind her attempts to run a separate credit card for their mother's expenses. In his contention his sister did not understand that a financial manager must have ultimate control over all accounts and credit cards. He asserted that he had not wrongfully accused his sister of anything and her lack of understanding of the role of the financial manager was exemplified by the way in which she had gone behind his back to lodge the development application with the local Council. 3. In relation to the contention that he had prevented his sister from taking reasonable respite, Mr TMC denied that this was so. He referred to an early incident where Ms MVC wished to take respite care in Western Australia and had unexpectedly suddenly withdrawn her request. 4. In relation to Ms MVC's allegation that he had harassed and bullied her and generally obstructed her in her role as enduring guardian and carer, Mr TMC denied that this was so. He pointed out that he had attempted to settle differences with his sister and when presented with the draft deed of settlement, whilst he did not agree with it he had written in detail to his sister outlining a compromise proposal, to which there had been no satisfactory response. Mr TMC said that during the period of the various Tribunal proceedings over recent years his sister had on various occasions accused him of being "nefarious" or "fraudulent" and suggested that he had acted contrary to the law. He took great offence at this and believed that his role as financial manager had been made much more difficult by his sister. He denied however that he had knowingly obstructed her in her role and continued to believe that she was an excellent carer for their mother.
Mr TMC's position was that he should be allowed to continue as financial manager.

[29]

The views of the Client Services Officer ("the CSO") of the NSW Trustee and Guardian

The CSO of NSW Trustee and Guardian participated by telephone. He confirmed that based on the reports of his colleagues it appeared that Mr TMC as financial manager had been and was in compliance with the authorities and directions issued by NSW Trustee and Guardian.
The CSO went on to make some general statements about the obligations of a financial manager in circumstances where there is apparent conflict between family members. In answer to a question from the Presiding Member, the CSO confirmed that he was stating general principles rather than making a finding or stating an opinion on behalf of NSW Trustee and Guardian as to Mr TMC's actions specifically. The CSO confirmed that that was so. He confirmed that he was not very familiar with the facts of the case.
He indicated however that what he had heard of the evidence indicated clearly a degree of conflict between family members, including the financial manager.
He said that there was a an expectation from NSW Trustee and Guardian that managers would "make every effort to manage that conflict and that someone in (Mrs KJC's) position would not be disadvantaged by the discussions and proposals, decisions and actions" and that this should be done "without compromising relationships with stakeholders".
The CSO referred to the "Directions and Authorities" document issued to all financial managers and provided the following further comments concerning the obligations of financial managers generally: …They have to make what they do a practical action on their part and that's going to include other parties, other parties' views, and ideally a manager would convince people who were against the manager's overall disposition of any particular event, whether it's got to do with the property or not, they would convince as to why their proposed course of action was reasonable and proper for the person themselves.
Significantly, the CSO went on to provide the following comment specific to this case: So, it's concerning that the daughter is expressing her inability to be the guardian, if that's what's going on. So, it's concerning because a manager should be able to accommodate that role of guardian. They really should align.

[31]

Guardianship issues

We found that Mr TMC and Mrs LDC had standing to bring their application to review the Appointment of Enduring Guardian because in our opinion they had a genuine concern for the welfare of Mrs KJC.
We were satisfied and formally found that Mrs KJC continues to have disabilities which prevent her from making some important life decisions.
The more difficult issue which is strenuously contested is whether the welfare and interests of Mrs KJC would best be served by continuing the appointment of Ms MVC under the Appointment of Enduring Guardian or alternatively whether we should make a guardianship order for her. In this area, as indeed in respect of many aspects of this case our decision is to some extent guided by, and is made in the context of, the substantial ongoing conflict and lack of mutual trust between Ms MVC and Mr TMC. Several attempts have been made to resolve those differences through discussion and conciliation at past hearings. All these have been unsuccessful.
We were ultimately satisfied however that there is a need, in the interests of Mrs KJC, for the current guardianship arrangements to be changed and we were satisfied that we should make a guardianship order and should therefore revoke the appointment of Ms MVC as enduring guardian. We came to that conclusion on the following grounds: 1. We found that there was a clear need for decisions about access to Mrs KJC to be made by a guardian appointed under order of this Tribunal. The Appointment of Enduring Guardian does not extend to such decisions and in any case Ms MVC has a direct interest in these questions and the decision must be made by an independent party. 2. We were satisfied that Ms MVC has great affection for her mother Mrs KJC, which is reciprocated and that Ms MVC has a genuine concern for her mother's welfare. We were also satisfied that she provides ongoing proper care, support and companionship for her mother. 3. We were also satisfied that, by reference to the tests expressed as proscriptions in section 17(1) of the Guardianship Act 1987 (NSW), Ms MVC appears to be the most appropriate person to make decisions about Mrs KJC's health care, medical and dental treatment and services. She appears both willing and able to exercise those functions of the proposed guardianship order. By reason of her close proximity to her mother and her ongoing care, in our view she is more appropriate to be appointed as guardian for those functions than are either Mr TMC or Mrs LDC, who live on the other side of Sydney. We reached that conclusion notwithstanding Mrs LDC's experience in nursing. 4. Anyone in Ms MVC's position as a carer who lives in the same accommodation as the person to whom they are caring must have at least some direct interest if they are also appointed to make accommodation decisions that person. Any such carer is in that sense potentially conflicted in relation to accommodation decisions, but it is not the practice of the Tribunal routinely to deprive a live-in carer of the right to be considered for appointment as guardian on that ground alone, in the absence of what section 17 describes as an "undue" conflict. Having said that, it is undeniable that Ms MVC has a real interest in maintaining her accommodation in her mother's home in some comfort and with some independence and privacy, when she wants it. She has demonstrated that in her evidence concerning the issue of the inter-leading door (although we accept that that dispute is now resolved) and in the exercise of her discretion to make decisions about access by her mother to others. She has been assiduous in protecting her interests in these matters. It is apparent that she has no alternative plans for accommodation. But we do not regard Ms MVC as having an undue conflict between her interests in this regard and her obligation to protect the interests of her mother. To that extent, section 17(1)(b) of the Guardianship Act does not in our view prevent Ms MVC's appointment as guardian. 5. However, it is clear from our assessment of the evidence that Ms MVC has demonstrated that she lacks a complete or adequate or clear understanding of the true extent of the powers, discretions and obligations of a guardian in relation to accommodation decisions, particularly, but not restricted to, the guardian's powers and discretions in exercising his or her relationship with an appointed financial manager. That has been demonstrated to us by: 1. Ms MVC's attitude and the position which she adopted in relation to the dispute concerning the inter-leading door (which we accept is now resolved); 2. her imposition of impediments to reasonable access to the home to enable repairs and renovations work on occasion (and we accept as reliable the evidence of Mr TMC in this regard); and 3. her apparent strategy and her approach to applying for and obtaining Council consent in relation to the "granny flat" and the absence of adequate notice to the parties concerned, including the content of her application and the apparent omission of consideration of fire safety implications. 1. We conclude therefore that Ms MVC is not able to exercise the function of accommodation to be conferred by the proposed guardianship order. It follows that the welfare and interests of Mrs KJC require someone else to be appointed guardian with the authority to make accommodation decisions for her. 2. In our view, the appointment of either or both Mr TMC and Mrs LDC as guardians with the accommodation function would further exacerbate family context and issues and would be likely to result in concern and perhaps distress for Mrs KJC. Accordingly we find that such an appointment would not protect or promote the welfare or interests of Mrs KJC. In our view the role of making accommodation decisions for Mrs KJC could not properly be undertaken by any member of the family in the circumstances and should pass to an independent objective decision-maker. For that reason we grant the accommodation function to the Public Guardian.
In summary, there should be a guardianship order under which the Public Guardian and Ms MVC are appointed as guardians with separate decision-making functions. The Public Guardian should have the decision-making functions of access and accommodation and Ms MVC should have the decision-making functions of health care, medical and dental consents, and services.
We were satisfied that a limited continuing guardianship order should be made and that the appropriate term of the order was two years.

[32]

Review of the financial management order

We were satisfied and make a formal finding that Mrs KJC remains incapable of managing her affairs, that there is a continued need for a financial management order for her and that the appointment of a financial manager under a further order would be in her best interests.
Clearly the central issue is whether Mr TMC should be permitted to continue as financial manager or whether he should be replaced.
We were satisfied and make a formal finding that Mr TMC remains a suitable person for appointment. He has clearly complied with the formal requirements of a financial manager, in the sense that he has complied with the authorities and directions issued by NSW Trustee and Guardian and has apparently complied with any further particular requirements of the NSW Trustee and Guardian.
The evidence is sufficient to persuade us that Mr TMC has acted in what he perceived to be his mother's best interests and welfare. We take into account and accept as genuine and persuasive Mr TMC's account of his strong affection for his mother, his familiarity, both as a builder and the son of a builder, with his mother's home and his intentions to carry out his responsibilities as manager in her best interests. We also find that Mr TMC continues to be suitable in the sense that he has substantial experience in the building trade, that he is familiar with handling and keeping account of other people's money and that in relation to the management and financial recording obligations of a manager he is suitably assisted by his wife Mrs LDC.
A substantial issue in the case was whether Mr TMC as financial manager had engaged in a pattern of behaviour that constituted harassment and bullying and general obstruction of his sister, Ms MVC, in her role as enduring guardian to the extent that he should be regarded as unsuitable for further appointment as financial manager.
It is obvious that some aspects of Mr TMC's behaviour were regarded by his sister, Ms MVC, as harassing or bullying in nature. We accept as genuine Ms MVC's assertions that this was the case and we accept that, if that was so, she may well have been upset and perhaps more defensive about her position as carer and enduring guardian. That is most unfortunate. It is particular unfortunate because it could ultimately impact on the welfare of Mrs KJC. However, we make no finding that Mr TMC intended his action, attitude or reaction to events to be obstructive, harassing, or bullying.
Nevertheless we do concur with Ms MVC's conclusion that against this background of distrust and what she saw as obstruction and harassment, the current apportionment of care, guardianship and financial management responsibilities between her and Mr TMC was unworkable.
Nevertheless, we find that Mr TMC has done nothing to render himself unsuitable for further appointment as financial manager. Although the tests of suitability are not explicitly stated in the relevant Part of the Guardianship Act, the practice of the Tribunal and its predecessors, as approved by cases in the NSW Supreme Court and Court of Appeal, involve a consideration of the manager's compliance with the authorities, directions and accounting requirements of NSW Trustee and Guardian, the manager's ability not to favour his or her own interests over those of the person under management, their ability to report and account for what they had done as manager, their experience in dealing with money and property on behalf of other people and their public record; in particular their bankruptcy and criminal record.
We find that Mr TMC continues to satisfy each of these requirements. In our view it would not be correct or reasonable analysis of the evidence to conclude otherwise. The evidence does not establish to our satisfaction that Mrs KJC's welfare and interests would not be served by Mr TMC's continuation in office as financial manager.
However, we gave substantial consideration to the views of the CSO of NSW Trustee and Guardian, noting that the CSO had conceded that he had no particular previous familiarity with the facts of this case and that the most part he was making general statements about the obligations of a manager rather than observations about Mr TMC in particular. The CSO highlighted the obligation of a financial manager which arises in particular from section 39 of the NSW Trustee and Guardian Act 2009 (NSW) and is annexed to the written directions and authorisations given to every financial manager, to the effect that the manager must observe and recognise: …the importance of preserving the family relationships and the cultural and linguistic environments of (the person under management).
We were satisfied and make a formal finding that this obligation is of particular relevance to the ongoing conduct by Mr TMC's, of his role as financial manager. Accordingly, we make a formal direction to Mr TMC to comply with the requirements of section 39 and in particular to recognise the importance of preserving the family relationships of his mother and of working cooperatively and reasonably with the appointed guardians in his role as financial manager, in a manner which will preserve the welfare and interests of his mother.
We believe that some of the CSO's comments, particularly those cited in paragraphs 60 and 61 above require further observation. The CSO appeared to suggest that a private manager's ability to manage what he called "stakeholder relationships", that is, relationships between various family members, is a proper consideration for the Tribunal in assessing the suitability of a financial manager. That is not quite accurate in one important respect. The proper consideration for the Tribunal is, where appropriate, whether the financial manager has taken into account the importance of preserving the family relationships of the person under management: see section 4(e) of the Guardianship Act and section 39(e) of the NSW Trustee and Guardian Act. There is no express obligation on us to assess the manager's success in maintaining the relationships of family members between themselves in assessing the suitability of the appointed financial manager for further appointment. [Emphasis added.] It follows that any failure by a financial manager to resolve family disputes, that is disputes between family members rather than disputes involving the person under management is, of itself, not relevant in assessing the manager's suitability. We are not sure that the CSO was suggesting that that was the case; but the point is worth making. For completeness, we should add that we recognise that a financial manager does have a general obligation, stemming from his or her duty under sections 4(e) and 39 (e), to try to work constructively with a family member who is a guardian, with a view to protecting and preserving the welfare and interests of the person under management.

At a glance

Court

Decision date

Source

Judgment (39 paragraphs)

Legislation Cited (4)

Cases Cited (1)