By summons filed 3 July 2024, the plaintiff seeks the following relief:
(1) A Declaration, pursuant to sections 86 of the NSW Trustee and Guardian Act 2009 NSW, that the plaintiff is capable of managing his affairs.
(2) An Order, pursuant to sections 61(1) and 64 of the NSW Trustee and Guardian Act, that the defendant take such steps as may be necessary or expedient to transfer management of the estate of the plaintiff from itself to the plaintiff.
(3) An Order that the costs of the plaintiff and the defendant be paid out of the estate of the defendant on an indemnity basis.
For the reasons set out below, I have determined that the plaintiff is capable of managing their own affairs and that the relief sought in the plaintiff's application should be granted.
[2]
Factual background
The plaintiff was born in 1969 and is currently 55 years old.
In 1989, when the plaintiff was approximately 20 years of age, the plaintiff suffered serious injuries while driving across a level crossing. Subsequently, the plaintiff received a sum of money as compensation in relation to those injuries although the evidence does not permit a firm conclusion as to whether that claim was against the State of New South Wales or the plaintiff's then legal advisors for professional negligence. It is not necessary to reach a firm conclusion but it was likely the latter.
On 13 December 2001, some 12 years after the accident, the Supreme Court made a declaration pursuant to s 13 of the Protected Estates Act 1983 (NSW) (Protected Estates Act) that the plaintiff was incapable of managing their affairs. Consequent upon that declaration, the Court ordered that the plaintiff's estate was subject to management under the provisions of the Protected Estates Act, and that management of the estate be committed to the Protective Commissioner. Pursuant to legislative amendments, the NSW Trustee & Guardian (NSWTAG) is now the financial manager of the plaintiff's estate pursuant to the NSW Trustee and Guardian Act 2009 (NSW) (the Act). Total damages of $1,900,000 were received in two tranches across October 2004 and November 2006.
The plaintiff has explained that they never sought to challenge these orders as a result of their belief that there was nothing they could do about them.
The present application is brought in the context of the plaintiff wishing to relocate to Thailand, to live a life more aligned with their values and preferences.
The NSWTAG has paid a regular fortnightly allowance to the plaintiff since its appointment as manager in December 2001 and the receipt of the damages award. The plaintiff appears to have been very prudent with their allowance to the extent that a balance of $140,447.22 was accumulated to 31 July 2023.
In 2022, the plaintiff identified a home unit at Kallangur in Queensland to live in, which was purchased by the NSWTAG on the plaintiff's behalf (Kallangur Unit).
In around July 2023, the plaintiff travelled to Thailand for surgery "and discovered a better life". Since 31 July 2023, the balance of the plaintiff's bank account has reduced from $140,447.22 to $20,254.65 as at 29 August 2024. Much of the expenditure relates to travel related expenses and surgery, including gender affirmation surgery and dental surgery. There were also regular payments of $66.50 with the details of "BP KALLANGUR4227 KALLANGURQLD" which the plaintiff said was most likely for cigarettes.
The plaintiff wants to relocate permanently to Thailand having spent considerable time over there in the past year where the plaintiff currently lives in rented accommodation. The plaintiff wants to sell the Kallangur Unit and use that money to buy a house in Thailand and put the balance of the money in a fixed term deposit and roll it over.
The plaintiff has "purchased" a block of land and house to live in in Thailand. I say "purchased" because on the evidence of the plaintiff, it was not possible for the plaintiff, as a non-resident of Thailand, to buy land and as such, a contract has been entered into by a long term friend of the plaintiff on behalf of the plaintiff. The plaintiff apparently paid the deposit at the time of purchase and has since been remitting money to that friend in Thailand who has been making monthly payments towards the purchase of the land and house. I was informed that the house is now constructed and the purchase was meant to complete on 16 August 2024 which date has now been extended to 16 September 2024. A payment of some $260,000 is due on settlement.
The plaintiff requested the NSWTAG release monies to the plaintiff to enable the purchase in Thailand to be completed but the NSWTAG did not agree. A further $100,000 is also required by the plaintiff as payment for a long term residency visa.
The refusal by the NSWTAG prompted the present proceedings.
In support of the application, the plaintiff relied on an affidavit sworn by the plaintiff, which in turn attached a number of documents including a reference from a general practitioner who appears to have treated the plaintiff on one occasion and recommends that the plaintiff can have "all the financial assets back as he is capable enough to manage them", together with:
1. Two affidavits from the plaintiff's instructing solicitor, Russell Phair. Mr Phair has over 40 years' experience as a solicitor including in these matters and expressed the opinion that the plaintiff appears to be capable of making the plaintiff's own financial decisions in a manner consistent with his personal self-interest and values and based on his dealings with the plaintiff, that the plaintiff is capable of managing the plaintiff's financial affairs;
2. An affidavit from the branch manager of the Northern Inland Credit Union where the plaintiff has banked for many years - to the effect that the plaintiff is capable of managing the plaintiff's financial affairs;
3. An affidavit from the plaintiff's GP of many years; and
4. Medical reports from three medical professionals:
1. Dr Kelly Bryden (Clinical Neuropsychologist);
2. Ms Debbie Anderson (Clinical Neuropsychologist); and
3. Dr Jane Lonie (Clinical Neuropsychologist).
The plaintiff also gave oral evidence before me and was briefly cross-examined.
The NSWTAG quite properly neither consented nor opposed the relief sought but drew the Court's attention to matters the NSWTAG thought appropriate. The NSWTAG relied on two affidavits of the Senior Client Officer currently assigned to and with access to the plaintiff's files. The first affidavit also included statements from the plaintiff's mother and one of the plaintiff's brothers. Each gave oral evidence before me and was briefly cross-examined. Both were quite strongly opposed to the orders sought by the plaintiff.
[3]
The medical evidence
The plaintiff's treating GP expressed the view that the plaintiff is capable of managing the plaintiff's financial affairs.
Each of Dr Bryden, Ms Anderson and Dr Lonie conducted a series of tests on the plaintiff. Dr Bryden examined the plaintiff over two dates, on 13 and 19 July 2024. Dr Bryden conducted a full neuropsychological assessment, as well as a decision-making capacity interview.
Dr Bryden's opinion, set out under the heading 'Results Summary', is that:
Most of the plaintiff's cognitive abilities were in the "low average to average range" for their age;
Intellectual functioning was "low-average" for their age, but there are no additional difficulties with processing speed, visuospatial ability, fluid reasoning, memory, or executive functioning;
There are some difficulties with "phonological processing and verbal attention span" which affect the plaintiff's ability to "comprehend verbal information in some situations";
No performances were "exceptionally low" such that any areas of functioning would be considered "impaired";
Reading comprehension was "moderately reduced", at a Grade 7 level. Dr Bryden notes that that level of literacy is "a generally accepted level of literacy in the Australian Community";
Mathematical skills were mildly reduced for their age; and
Overall, the plaintiff's presentation is "of a person with low average to average levels of cognitive functioning who may have experienced a mild difficulty with verbal attention span".
Dr Bryden's ultimate opinion was that the plaintiff is capable of managing the plaintiff's own affairs and does not require a substitute decision maker for financial, lifestyle or medical decisions.
Ms Anderson assessed the plaintiff on 16 July 2024. Similarly to the results of Dr Bryden's testing, Ms Anderson found that the plaintiff's general intelligence scored within "the low average range". In relation to the plaintiff's "higher cognitive functions", which are responsible for "abstract thinking, planning and problem solving", Ms Anderson found that:
Mental flexibility and problem solving was in the "low average range";
Planning efficiency was "within the borderline range";
Verbal fluency was in "the low average range"; and
"Semantic retrieval" was in the "very superior range".
Among the conclusions expressed by Ms Anderson are:
1. It appears more likely than not that the plaintiff is presenting with cognitive impairment as a result of acquired brain injury; and
2. Despite apparently good memory, there are some cognitive deficits which may impact on decision making.
The ultimate opinion expressed is in the following terms:
Opinion
Based on the limited information available, it appears that there are ongoing cognitive deficits following [the plaintiff's] traumatic brain injury. He is currently seeking access to all funds under management.
Whilst I appreciate his desire to create a new life and take control of his finances, he has created a situation where there is significant pressure to resolve matters quickly, raising concerns about poor planning and appreciation of consequences. He offered a clear plan, but evidenced limited understanding of some issues. He most likely has limited skills to protect himself, which may leave him vulnerable.
I would accept that he can make everyday financial decisions. However, I have some concerns about his ability to make complex financial decisions.
I would support an alternative solution of investigating a different fund manager to provide independent advice about how his goals could be met, but to also provide ongoing supervision of the funds under management.
Dr Lonie assessed the plaintiff on 1 July 2024 and conducted a number of tests. Again, generally consistent with Dr Bryden's findings, Dr Lonie is of the view that the plaintiff's full scale IQ falls "within a low average range" for a person of the plaintiff's age.
Specifically, Dr Lonie's testing indicated:
Verbal comprehension - average;
Perceptual reasoning - low average;
Working memory - extremely low;
Proceeding speed - average;
Full scale - low average; and
General ability - low average.
Dr Lonie expressed the opinion that the plaintiff has a very limited capacity to hold more than one thought in mind at the one time or to manipulate information whilst holding it in the plaintiff's mind. A further concern of Dr Lonie appears to be the plaintiff's tendency to respond impulsively and impatiently at times, showing little, if any, ability to plan. Dr Louie wondered whether the plaintiff's purchase of a house in Thailand without reassurance around the outcome of this application was a practical reflection of their impulsivity and reduced planning abilities and working memory capacity.
Dr Lonie was not able to concur with the opinions of the plaintiff's treating GP around the plaintiff's "lack of need for any support or supervision; the absence of any chronic medical problems," or the plaintiff's "normal cognition".
[4]
The plaintiff's current assets
As at 20 August 2024 the total value of the assets managed by the NSWTAG for the plaintiff is approximately $1.67 million. The three principal assets are the Kallangur Unit (estimated value $345,000), an amount of $585,181.14 held in a superannuation account with Sunsuper and $660,557.85 in an FM Growth Fund.
[5]
Relevant principles
Counsel for the plaintiff and the solicitor for the NSWTAG helpfully drew to my attention a number of authorities relevant to the Court's assessment of whether a person is capable of managing his or her affairs, including CJ v AKJ [2015] NSWSC 498 (CJ v AKJ) at [27]-[43] per Lindsay J and P v NSW Trustee and Guardian [2015] NSWSC 579 (P v NSWTAG) at [307]-[309] per Lindsay J.
I proceed on the basis that the paramount consideration is the protection of the plaintiff's welfare and interests (s 39(a) of the Act) but also that the plaintiff's freedom of decision and freedom of action should be restricted as little as possible.
As Lindsay J observed in CJ v AKJ:
1. There is no fixed standard of capacity in the general law;
2. The level of capacity that a person requires is relative to the complexity of the financial affairs they need or wish to conduct;
3. There must at least be evidence that a person is incapable of dealing with their affairs in a reasonably competent fashion and as a result there must be a real risk that the person will be disadvantaged in the conduct of their affairs, or that their funds may be dissipated or lost;
4. It is relevant to ask whether the person is able to deal with their own affairs in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, without undue risk of neglect, abuse or exploitation.
Lindsay J also observed in P v NSWTAG, citing CJ v AKJ, that past and present experience may be used as a predictor of the future course of events.
[6]
Determination
I start with the observation that there is nothing in the evidence before me to suggest, putting to one side for present purposes the events of the last year, that the plaintiff has made, or has sought to make, any rash financial decisions or behaved in a financially irresponsible way. The evidence is to the contrary. The plaintiff has been extremely prudent, saving approximately $140,000 of the regular allowances from the NSWTAG. Further, the plaintiff identified a property in 2022 and requested the NSWTAG to purchase it, which in fact occurred.
The plaintiff has, during this period, been responsible for the plaintiff's daily living, including payment of bills etc.
Each of these matters suggest to me an ability of the plaintiff to manage their financial affairs.
The events of the last year, resulting in the present application and the significant reduction in the plaintiff's savings, are the result of the plaintiff's desire to start a new life in Thailand. The present position is that the plaintiff has a strongly held view of having a happy life in Thailand and a desire to live there permanently. The plaintiff's recent decisions - to have gender affirmation and other surgeries and to purchase a home in Thailand - are part and parcel of the plaintiff's desire to live in Thailand. The spending in the last 12 months is obviously conscious spending in pursuit of this new life.
The decision to purchase a house in Thailand prior to becoming a resident there, such that the house could not be purchased in the plaintiff's name, was perhaps not the most prudent of choices and is perhaps attendant with some risk, but in giving evidence before me, the plaintiff was clearly aware of what had been done, why it had been done and the associated risks. As the plaintiff pointed out, the house has been purchased in the name of the person who is now the sole beneficiary named in the plaintiff's will.
The plaintiff also explained to me the need for extra money to pay for a long term visa, together with the plaintiff's desire to invest the remaining funds presently in the control of the NSWTAG in a fixed income investment in Australia. The plaintiff does not wish to invest the money in any financial institution in Thailand, as financial institutions are not regulated there. The plaintiff also indicated a willingness to use the services of a financial planner.
The plaintiff's solicitor put forward an affidavit from a financial planner who was prepared to assist the plaintiff. It emerged in cross-examination that the plaintiff had not met the financial planner and so I do not place too much reliance on that affidavit. To my mind, the more important evidence is the plaintiff's desire to invest the money in Australia with the assistance of advice if need be. It speaks to a capacity to manage financial affairs.
I also have regard to the opinion of the plaintiff's instructing solicitor, a practitioner of considerable experience, which supports the application, as well as the medical evidence.
This medical evidence is, in my view, somewhat equivocal. One opinion, that of Dr Bryden, is clearly in favour of the plaintiff being able to manage the plaintiff's affairs. The other two reports raise some issues of concern. These opinions are part of the evidence I must consider, they are not determinative. In H v H [2015] NSWSC 837 at [36], Lindsay J observed that a determination about capacity is not, in essence, the province of medical expertise but of independent judgment by the Court applying established criteria to particular facts.
As Lindsay J observed in the authorities I have referred to above, capacity must be considered in the context of the affairs of the particular plaintiff. Having carefully considered all of the material, I am satisfied that the plaintiff is capable of managing their affairs. These affairs are relatively simple - payment for a house and living expenses in Thailand and investment of the remainder. The level of spending over the past year is not likely to continue. I place particular reliance on their presentation before me and the evidence which they gave. The plaintiff demonstrated an ability to deal with their affairs in a reasonable, rational and orderly way.
I have not overlooked the evidence of the plaintiff's mother and brother, both of whom obviously hold strong views that the plaintiff has made, and is continuing to make, choices that they do not agree with and therefore remains in need of protection. Both felt strongly enough to provide a statement to the NSWTAG and then to attend Court for the hearing and be cross-examined. I am grateful for this and do not doubt the sincerity of the views they each hold.
It is not the Court's role, however, to pass judgment on the plaintiff's life choices. My decision is whether the plaintiff is capable of managing their affairs. I am satisfied on all of the material that the plaintiff is.
For these reasons, the Court makes the following orders:
1. A declaration, pursuant to s 86 of the NSW Trustee and Guardian Act 2009 (NSW), that the plaintiff is capable of managing their affairs.
2. Pursuant to ss 61(1) and 64 of the NSW Trustee and Guardian Act 2009 (NSW), that the defendant take such steps as may be necessary or expedient to transfer management of the estate of the plaintiff from itself to the plaintiff.
3. That the costs of the plaintiff and the defendant be paid out of the estate of the plaintiff on an indemnity basis.
[7]
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Decision last updated: 12 September 2024
Parties
Applicant/Plaintiff:
MW
Respondent/Defendant:
NSW Trustee & Guardian
Legislation Cited (2)
Trustee and Guardian Act 2009(NSW)ss 39, 61(1), 64, 86