TLT [2015] NSWCATGD 48

NCAT Guardianship|2015-10-28

d enduring guardian) Mr DTN (joined party)

to the review of the enduring power of attorney: Mrs TLT (principal) Mr MIT (applicant) Mr KTT (applicant) Mr EIT (attorney appointed under the enduring power of attorney being reviewed) Mr DTN (joined party)

to the guardianship application: Mrs TLT (subject person) Mr MIT (applicant) Mr KTT (applicant) Mr EIT (appointed enduring guardian) Mr DTN (joined party) The NSW Public Guardian

REASONS FOR DECISION

The Tribunal refused leave for Mr EIT to be represented by Mr Peter Lofitis, an Australian legal practitioner, in all proceedings pending at the Tribunal.
The Tribunal refused leave for Mr KTT to be represented by Mr Evangelos Patakas, an Australian legal practitioner, in all proceedings pending at the Tribunal.
The Tribunal refused leave for Mr MIT to be represented by Mr James Kelly, an Australian legal practitioner, in all proceedings pending at the Tribunal.
The Tribunal decided, under s 36(1) of the Powers of Attorney Act 2003 (NSW), not to carry out a review of the making of the enduring power of attorney made by Mrs TLT on 7 May 2015 which appointed Mr MIT, Mr KTT and Mr EIT as attorneys and dismissed this application by Mr MIT.
The enduring guardianship appointment made by Mrs TLT on 07 May 2015 appointing Mr KTT, Mr EIT, and Mr MIT as her enduring guardians is revoked.
The application by Mr MIT for a review of the above enduring guardianship appointment is treated as if it were an application under the Guardianship Act 1987 (NSW).
The Tribunal appointed the Public Guardian as Mrs TLT's guardian for a period of 12 months to make decisions on her behalf about her accommodation, health care, medical and dental treatment and services which she should receive as set out in the Tribunal's order.
The Tribunal committed the estate of Mrs TLT to the management of the NSW Trustee and Guardian.

Background

Mrs TLT is an 83-year-old lady who lives in her own house in suburban Sydney. She receives services into her home to assist her with her activities of daily living. Mrs TLT's husband Mr QTT died in October 2014.
Mrs TLT has three sons, Mr MIT, Mr EIT and Mr KTT. For clarity, and for the readability of these Reasons for Decision the Tribunal will refer to those gentlemen as MIT, EIT, and KTT.
Each of MIT, EIT, and KTT are following apparently successful careers in medicine, banking, and international tax law respectively. MIT's career has led him overseas to reside in the United States. KTT predominantly resides in the United Arab Emirates. EIT remains living in Sydney and, of Mrs TLT's three children, sees her most regularly.
On 16 September 2008 Mrs TLT reportedly executed an enduring guardianship appointment which appointed all three of her sons as her enduring guardians with any two of the three able to act jointly. On the same day she appointed all three of her sons to act as her enduring attorneys with any two able to act jointly.
On 7 May 2015 Mrs TLT revoked those instruments and executed a new enduring guardianship document appointing all three of her sons to act jointly. She also signed an appointment of her sons to act jointly as her enduring attorneys.
Mrs TLT is said to have dementia.
On 17 August 2015 the Tribunal received applications in relation to Mrs TLT as follows:

an application submitted by MIT and KTT for the appointment of a guardian;
an application to review the enduring power of attorney dated 7 May 2015 submitted by MIT; and
an application to review the enduring guardianship appointment of 7 May 2015 submitted by MIT.

On 22 September 2015 the Tribunal held an interlocutory hearing to make directions about the conduct of the substantive hearing and to deal with other ancillary issues. MIT and KTT had sought leave to be legally represented. EIT did not attend that interlocutory hearing and so those two applications were adjourned. The Tribunal made directions.
The Tribunal then received a request to be joined as a party from Mr DTN, who is Mrs TLT's youngest brother. Mr DTN lives in England but he had been discussing the issues surrounding these applications with his sister and felt that he could assist. The Tribunal joined Mr DTN as a party to the proceedings.
EIT subsequently applied to be represented in the proceedings by solicitor.
MIT and KTT then advised the Tribunal that they wished to withdraw their applications for legal representation.
Mrs TLT is a native speaker of Punjabi, although she does have an understanding of English. The Tribunal arranged for a Punjabi interpreter to be in attendance at the hearing to assist Mrs TLT.
Mrs TLT has significant property and financial interests including a home in Sydney, other property, savings, and other entitlements through the estate of her late husband which has yet to be administered. It appears that disagreements between MIT, EIT, and KTT have played a significant part in the delays occasioned in the administration of that estate. MIT has lodged a caveat on the grant of Probate.
Some of the assets to which Mrs TLT is beneficially entitled are held in accounts overseas which were arranged by KTT with Mr QTT before his death.
In relation to the applications made by MIT to review the enduring documents signed by Mrs TLT on 7 May 2015, MIT's position was that his mother would not have had the capacity to execute those documents at that time. As it transpired at the hearing, KTT had intended to join MIT as an applicant in those matters and his position was the same as MIT's. There was no objection taken to KTT being treated as an applicant to those applications, and the Tribunal allowed this.
MIT and KTT also raised concerns about how EIT had dealt with the sale of a property previously owned by his parents in 2011 and the subsequent purchase of another property. Mr and Mrs TLT had executed a power of attorney in June 2011 which gave EIT the power to undertake those transactions. MIT and KTT felt that EIT had not properly accounted for the balance of sale proceeds from the first property after the second property had been purchased.
MIT, EIT, and KTT had also all been involved, to a greater or lesser extent, in making arrangements for the coordination of the services which were provided to Mrs TLT, including choosing who provided those services and in arranging for a bookkeeper to keep records about the expenditure involved.
Unfortunately, disagreements between MIT, EIT, and KTT led to dispute about these issues. The care provider to Mrs TLT changed and the bookkeeper's services ended.
Prior to the commencement of the substantive hearing MIT, through his legal representative Mr James Kelly, advised the Tribunal that he sought to have the application for the appointment for the review of the enduring power of attorney dated 15 May 2015 treated as an application for the appointment of a financial manager. He sought that the Tribunal appoint the NSW Trustee and Guardian. That application was supported by KTT.
EIT's position was that, if the Tribunal did appoint a financial manager, the Tribunal should appoint whoever Mrs TLT wanted into that role.
Similarly, prior to the hearing the Tribunal was advised that MIT and KTT felt that the enduring guardianship appointment of 7 May 2015 should be revoked and a guardianship order made appointing the Public Guardian.
Again, EIT felt that if the Tribunal did appoint a guardian it should be whoever Mrs TLT wanted to be appointed.
Mr DTN suggested that if a financial management appointment was to be made that he should be appointed. He took this view purely because that was what Mrs TLT had asked him to do and he wanted her wishes to be respected. Mrs TLT advised the Tribunal at the outset of the hearing that she would prefer Mr DTN to be appointed if the Tribunal made appointments of substitute decision makers, although she felt she could make decisions for herself.

The Hearing

At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing. [Appendix removed for publication]

The Applications for legal representation

Three separate legal practitioners attended the hearing to assist their respective clients.
Mr James Kelly attended, instructed by MIT. MIT was still overseas and attended the hearing by telephone. Mr Kelly confirmed that MIT did not press an application to be legally represented, on the basis that none of the other parties were represented and he could remain in the hearing and assist his client as McKenzie friend.
Mr Evangelos Patakas attended, instructed by KTT who was present at the hearing. Mr Patakas, similarly did not press his client's application for legal representation if none of the other parties were to be represented and on the basis that he would remain in the hearing as McKenzie friend for his client.
Ms Diana Jura attended the hearing instructed by Mrs TLT. Ms Jura did not seek to legally represent Mrs TLT in the hearing but did request to remain as McKenzie friend. Ms Jura was the witness to the May 2015 enduring documents executed by Mrs TLT. On the basis that Ms Jura may be able to provide relevant evidence to the Tribunal it was appropriate that she remain at the hearing and given that she did not seek to represent Mrs TLT the Tribunal felt that it was appropriate that she have the opportunity to assist Mrs TLT as McKenzie friend.
EIT attended the hearing without a solicitor and did not press his application to be represented.
Once all of these issues were clarified, each of MIT, EIT, and KTT confirmed that they consented to the Tribunal dismissing their respective applications for legal representation. The Tribunal did so.

The Application to review the Enduring Guardianship appointment

On reviewing the appointment of an enduring guardian, the Tribunal may

confirm the appointment of an enduring guardian with or without varying the functions of the appointed enduring guardian
proceed as if an application for guardianship or an application for financial management (or both) had been made or
revoke the appointment, with or without then proceeding as if an application for guardianship or an application for financial management (or both) had been made.

The Tribunal must not revoke the appointment of an enduring guardian unless: 1. the enduring guardian requests the revocation; or 2. the Tribunal is satisfied it is in the best interests of Mrs TLT that the appointment be revoked.
The Tribunal was provided with a copy of the Enduring Guardianship document by which Mrs TLT intended to appoint her three sons to act jointly, which was signed by her and appropriately witnessed. Another copy was provided which had been accepted by EIT and witnessed, but it was not a copy executed by Mrs TLT.
It is arguable that the document could never be operated on, unless MIT and KTT signed it to accept the power. Both advised the Tribunal that they would not, citing their views that joint decision making between the three brothers was unworkable, which EIT agreed was correct. To avoid further conflict though, the Tribunal was satisfied that it is in Mrs TLT's best interests that the appointment be revoked, and so ordered.

The Application to review the Enduring Power of Attorney

The Tribunal may, on the application of an interested person, decide to review the making or the operation and effect of a reviewable power of attorney, or not to carry out such a review (Powers of Attorney Act, section 36(1)). As a consequence of reviewing the making or operation and effect of a reviewable power of attorney, the Tribunal may decide whether or not to make an order under s 36 of the Powers of Attorney Act (section 36(2)).

Should the Tribunal conduct the review?

In Susan Elizabeth Parker v Margaret Catherine Higgins [2012] NSWSC 1516, Slattery J stated at [80]: On an application for s 36 review such as this the Court must first exercise a discretion under Powers of Attorney Act, s 36(1) to decide whether or not to conduct a s 36 review. In my view the Court does not have to conduct a full review of all documents associated with the operation of the subject power of attorney to do this. Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review. In the circumstances of this case the Court can glean sufficient information to exercise the s 36(1) discretion by undertaking a general survey of what... (a party )...has produced.
As earlier indicated, prior to the hearing MIT had advised the Tribunal that he sought to have the Tribunal treat this application as the application for the appointment of a financial manager. At the hearing MIT and KTT were not as clear that this was the course they sought to have the Tribunal take. It appeared to the Tribunal that they were, rather, seeking to have any options available to ensure that all relevant matters were considered.
KTT in particular requested that the Tribunal rule on the validity of the document.
The Tribunal noted, though, that whilst the enduring power of attorney dated 7 May 2015 had been, on its face, appropriately completed and executed by Mrs TLT, none of MIT, EIT or KTT had accepted the appointment in that document. Again, EIT had signed to accept the appointment, but on a copy which had not been executed by Mrs TLT. Both MIT and KTT indicated to the Tribunal that they did not feel that appointment under this instrument was appropriate or workable in their mother's best interests. They did not intend to sign to accept the appointment. EIT told the Tribunal that he had no intention of acting on the power.
Similarly to the enduring guardianship appointment, whilst the Tribunal was not required to decide this issue, the fact that the document appointed all of Mrs TLT's children jointly would arguably make it impossible for only one of them to accept the power and use it unilaterally.
Given that none of the proposed attorneys intend to use the power given to them, and noting the dispute between the three proposed attorneys, The Tribunal decided not to conduct a review of the enduring power of attorney.
The Tribunal has the power, where it is warranted, to make a financial management order in connection with its making a guardianship order under Part 3 of the Guardianship Act, or in the course of proceedings under Part 3, even if it decides not to make a guardianship order. As there is an application before it for the appointment of a guardian, the Tribunal may consider making a financial management order. All of the parties were on notice that this was sought by MIT and so the Tribunal was satisfied that each party had an appropriate opportunity to consider the relevant issues and present their case.

The Application for the appointment of a guardian and the Tribunal's consideration of whether it should make a financial management order

Every person who is the subject of an application is presumed to have capacity to make decisions them self, until the Tribunal receives sufficient evidence to rebut that presumption.
The threshold issue for the Tribunal, once an application has been properly made, is whether there is relevant incapacity of the person who is the subject of the application to manage either their person or finances.
If this threshold issue is established, the Tribunal has discretion about whether to make orders. The Tribunal considers all relevant factors. The welfare and interests of Mrs TLT are the Tribunal's paramount consideration.

GUARDIANSHIP

The questions which had to be decided by the Tribunal in relation to guardianship were:

Is Mrs TLT someone for whom the Tribunal could make an order because she has a disability which restricts her in one or more major life activities to the relevant extent and is totally or partially incapable of managing her person?
Should the Tribunal make a guardianship order and if so, what decision making functions should be given to the Guardian? The general principles recognise the importance of freedom of action, self-determination and independence, against which the Tribunal must balance protection from neglect, abuse and exploitation.
The Tribunal considers all relevant factors, including those listed in s 14(2) of the Guardianship Act before exercising its discretion. These relate to the views of Mrs TLT, any spouse or carer, preserving family relationships, preserving cultural and linguistic environments and the practicability of services being provided in the absence of a guardianship order. Where relevant evidence of particular weight about these issues was provided to the Tribunal, or where different factors needed to be balanced it is referred to below.
If an order is to be made; who should be the guardian? and
How long should the order last?

Is Mrs TLT someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

For her part, Mrs TLT was of the opinion that she was able to make decisions for herself regarding important personal matters.
MIT advised the Tribunal that he felt that his mother had in impairment in her judgement for making complex decisions and had poor insight. As a neurosurgeon, he may be regarded as being more qualified to comment on these issues than a lay person who may be involved in an application to the Tribunal but, as an applicant, the Tribunal also took note of his interest in the proceedings.
KTT feels that Mrs TLT is "open to manipulation" when making important decisions and that gets "very stressed" when doing so. He noted a deterioration over time in Mrs TLT's cognition and he said that his father, who was a qualified general practitioner, discussed with him from about the year 2000 onwards, his concerns about Mrs TLT's deterioration in decision making and requested that KTT not allow Mrs TLT to go out on her own.
EIT's position was that Mrs TLT currently has no impairment in her decision-making ability. He felt that she can make decisions for herself, as long as she is fully informed.
Mr DTN also felt that Mrs TLT is able to make decisions about important personal matters.
This view was shared by EIT's partner, Ms FMT.
Ms CAC a friend of Mrs TLT, advised the Tribunal that Mrs TLT is distressed that she feels that she "has to choose" between her sons, who she loves equally.
The Tribunal received four medical reports relating to Mrs TLT's capacity (other than the opinions expressed by MIT).
In an Aged Care Assessment Team report from an interview with Mrs TLT in August 2011, the assessor noted that Mrs TLT has a diagnosis of dementia in Alzheimer's disease, depressed mood and affective disorders and cerebrovascular disease. It noted that Mrs TLT had changes in her memory, becoming increasingly forgetful. She cited examples of locking herself out of the house and leaving the gas on. Mrs TLT noted that she was becoming increasingly forgetful of names and returned a RUDAS score of 19/30, which the assessor reported was indicative of poor planning and memory.
Dr Z, specialist psychiatrist with the ACAT team of a public hospital wrote a separate report in November 2011. She noted that Mrs TLT had been referred by EIT for an assessment of her "cognition and mood".
Mrs TLT returned a score with Dr Z of 23/30 in a MMSE examination, losing points for orientation and language tasks. Dr Z said that Mrs TLT was aware of her cognitive decline, particularly in memory.
The report notes that Mrs TLT suffered an organic brain injury during an intra-operative event in 2001 and was left with predominantly frontal lobe deficits. The Doctor described Mrs TLT's longstanding apathy and decline in spontaneous speech as likely being related to frontal lobe deficits.
The Tribunal also received a report from Mrs TLT's General Practitioner, Dr Y, who advised that he had been Mrs TLT's GP for the last five years.
Dr Y's opinion was that Mrs TLT does not have "any significant physical or mental illness". The Doctor indicated that on the 15th August he gave Mrs TLT a MMSE on which she returned a score of 28/30. Dr Y felt that Mrs TLT was "fit to make any decisions".
Lastly, the Tribunal received a report by Dr X, specialist Neurologist, dated 12 October 2015. As will be dealt with later in these Reasons for Decision, MIT and KTT had arranged for Mrs TLT to attend on Dr X, through a referral from her GP, but she had elected not to attend.
Summarising other reports available to him and applying his own knowledge, Dr X opined that "in general terms, dementia of the sort that she has is gradually and slowly progressive. It is my opinion that it would be almost impossible for her to make any accurate decisions. She certainly would not have the ability to understand and appreciate the consequences of her actions." and "Unfortunately, I do not think her condition will improve."
The Tribunal must treat the medical evidence with some care. Dr Y, for example, makes no reference to Mrs TLT having been diagnosed with dementia in Alzheimer's disease, or having seen Dr Z's report. It is not clear whether him referring to Mrs TLT not having a significant mental illness is intended to dismiss the diagnosis of dementia or is merely an acknowledgement that dementia is a condition of a different nature.
Dr X did not have an opportunity to examine Mrs TLT and his opinion was based solely on a review of the opinion and testing of others. It is not apparent that he had Dr Y's report.
The Tribunal accepts Dr Z's report as accurate. She is a specialist in her field, working in an environment where the assessment of the cognition of patients as they age is commonplace.
The Tribunal is unable to place much weight on Dr Y's report because he makes no reference to being aware of Dr Z's report or diagnosis and it appears that Mrs TLT may not have been as frank with Dr Y as she was with Dr Z about the problems she experiences.
Dr X's evidence about the likely course of progression of dementia in Alzheimer's disease, as diagnosed by Dr Z, is accepted as a statement of general principle, given his specialist qualifications.
The Tribunal noted that all of Mrs TLT's children have taken on some role in arranging many important personal decisions for her, such as the choice of her carers, in recent times. Mrs TLT seems content to allow that to happen, even where the dispute between her sons leads to disruption to her.
She seems to be unwilling or unable to impose her will over that of her sons in that regard.
The Tribunal finds that Mrs TLT has dementia of the Alzheimers type, which impairs her memory and cognition. This disability, the Tribunal finds, restricts her in some of her major life activities to the extent that she requires supervision. That is not to say that the Tribunal's finding is that Mrs TLT has no understanding of any personal, health or lifestyle decisions she may be required to make. The Tribunal accepts that with appropriate information and with consistent support and positive input from her family, there are many decisions Mrs TLT may be able to make.
Unfortunately, as will be dealt with further in these Reasons for Decision that is not the position Mrs TLT finds herself in and her deficits in cognition and memory, in the absence of those protective factors, render her at least partially incapable of managing her person.
The Tribunal is satisfied that Mrs TLT has a disability which prevents her making important life decisions. She is a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order and if so, what decision making functions should be included in the order?

Mrs TLT was able to provide her views to the Tribunal. Given that she felt that she was able to make her own decisions, she did not feel that the Tribunal should appoint a guardian.
Mrs TLT did not however seem to have a full grasp of the issues in dispute between her sons and the various ways in which that impacted on her life. Mrs TLT told the Tribunal "my sons are fighting, I don't know why".
MIT acknowledges that the arrangements for Mrs TLT's accommodation are appropriate and in accordance with her preference. He did however advise that he is building a house suitable for her to come and live with him. He has children, Mrs TLT's grandchildren, and the Tribunal was satisfied that his preference would be that his mother live with him in the United States.
MIT felt that there was a significant risk that Mrs TLT's living arrangements would have to be reviewed in the next 12 months, noting that the cost of having caregivers attending the home is significant and that Mrs TLT's health may well change during that period given the deterioration in her cognition.
He gave, as an example the fact that he and KTT had made arrangements for Mrs TLT to see a specialist (Dr X) through a referral from her general practitioner and that when he first spoke to her Mrs TLT said that she would go to the appointment but by the next day had decided not to.
He acknowledged that Mrs TLT had spoken to her solicitor in the interim and that the solicitor had told Mrs TLT not to attend. KTT felt that this showed that Mrs TLT was easily manipulated, having ignored the advice of her own general practitioner and listening to a non-medically qualified person. KTT also noted an issue about Mrs TLT's agreement to visit him, MIT and her grandchildren (MIT's children) and her decision, which he felt was unwarranted, to cancel that trip based on her apparent misunderstanding of arrangements regarding her travel insurance.
The history of this issue is worthy of mention. Mrs TLT agreed, in about February 2015, to visit KTT in the U.A.E and MIT in the United States. It was, apparently, difficult to arrange travel insurance for her due to her diagnosis of dementia. When insurance cover was eventually offered, MIT chose to take it up for 12 months. He says, and the Tribunal accepts, that it was so further trips could be made under the policy while cover was available.
Mrs TLT subsequently refused the trip and the fares were forfeit. MIT believes that this was because Mrs TLT, after discussing the matter with Mr DTN, formed the view that MIT intended for her to stay for the full 12 months which she did not want to do. He believes that Mrs TLT was subject to "paranoid delusions" that he would put her in a nursing home in the United States if she made the trip.
He and KTT saw this as evidence of Mrs TLT's inability to fully understand information to make decisions. Interestingly, in response, Mrs TLT said she refused to travel until probate of her husband's estate was arranged. She apparently wanted that sorted out first. She denied any confusion over the trip.
The Tribunal can accept neither of these issues as evidence of Mrs TLT's lack of capacity per se. She is entitled to take and rely on the advice of a solicitor in deciding whether to attend a particular medical appointment whilst a party to legal proceedings. She may also, the Tribunal finds, have been using her refusal to travel without Probate being arranged as a lever to facilitate this process, where she saw no better option. Mrs TLT denies this, but described herself as being "at her wits end" and "wanting it resolved" at that point.
The Tribunal does accept, however, that these are examples of how the conflict between MIT, EIT, and KTT affects Mrs TLT and makes her vulnerable in her decision making, given her cognitive and memory impairment.
KTT noted that over the next 12 months Mrs TLT may well be under pressure to decide where she lives and to sell her home. It was not his position that Mrs TLT should move out of her home at this point but he noted that in his view Mrs TLT needs a third party to assist in decision-making about important matters about her welfare. His observation of Mrs TLT was that she gets "extremely stressed" when making important decisions.
EIT's position was that Mrs TLT is very firm in her decision-making around personal issues and that she knows what she wants in relation to her decision to live at home. He did however accept that issues around Mrs TLT's health care may be more complicated and that it would be more appropriate to appoint a guardian. He acknowledged the effect of the dispute between him and his siblings and how this would impact on Mrs TLT.
Given the entrenched conflict between MIT, EIT, and KTT and the potential for each of them to exert different influences over Mrs TLT, the Tribunal decided a guardianship order should be made.
The Tribunal was satisfied that an appointed guardian should have decision making functions in the areas of accommodation, health care, medical and dental consents and services.

Who should be the guardian?

The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can properly be appointed.
In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able to exercise the functions in accordance with the principles set out in s 4 of the Guardianship Act. The Tribunal must also be satisfied that the proposed guardian has a personality which is generally compatible with that of Mrs TLT, that they have no undue conflict of interest and that they are willing to exercise the functions of the proposed order.
EIT did not propose that he be appointed as guardian although he noted that he would accept an appointment if that was his mother's wish.
At the end of the hearing Mr DTN clarified that he had never proposed himself as guardian and felt that the Public Guardian would be more appropriate to be appointed. He agreed that if he was appointed it would be likely to inflame issues between MIT, EIT, and KTT.
After consultation with Ms Jura near the end of the hearing Mrs TLT indicated that whilst she still felt she did not have a decision making incapacity, to the extent that the Tribunal found she could not make decisions for herself she would prefer the appointment of the Public Guardian, noting the conflict between her sons.
There was no private person proposed to be appointed as guardian, therefore, the Tribunal appointed the Public Guardian.

How long should the order last?

The Tribunal decided to make an order for 12 months as this is the first appointment of a guardian for Mrs TLT. The Tribunal should review the need for a guardian, or whether all of the relevant functions are needed at that time.

FINANCIAL MANAGEMENT

The questions which had to be decided by the Tribunal in relation to financial management were:

Is Mrs TLT incapable of managing her affairs? Evidence of how the person is actually managing their affairs is relevant. The Tribunal assesses the subjective circumstances of the person including the support available to them and their ability, within the bounds of that support, to make sound judgements.
Is there a need for another person to manage Mrs TLT'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 Mrs TLT incapable of managing her affairs?

A person is not shown to be incapable of managing their financial affairs unless they are incapable of dealing, in a reasonably competent fashion with their affairs and because of that lack of competence there is a real risk that either they may be disadvantaged in the conduct of such affairs or their money or property may be dissipated or lost.
Mrs TLT notes that she now manages her day to day finances including accessing funds to pay for her carers and do her shopping. She did, however acknowledge the difficulty she had with some of the more complex aspects of her finances. She was able to describe her ownership of her house and another property. She had very little understanding, though, of the nature of funds held in her husband's name, which forms part of his estate of which she is the sole beneficiary.
EIT acknowledges that Mrs TLT has only a basic financial understanding and that she does not deal with the more complex financial transactions involved in managing her affairs. He accepts that issues such as obtaining her entitlement from her late husband's estate and management of the funds from it are complicated, as are arrangements for the payment of her carers.
EIT notes that his mother keeps track of the hours of the carers and the rate that they are to be paid but that he checks those figures.
Since disagreement arose between EIT, MIT, and KTT which led to the termination of the services of the bookkeeper who had assisted Mrs TLT, payment is made by Mrs TLT giving EIT cash she withdraws from an ATM and the carers are paid by him.
Mr DTN felt that Mrs TLT needed assistance with complex financial matters noting that her late husband had always managed those issues while he was alive.
MIT and KTT both felt that Mrs TLT needed assistance to manage her financial affairs.
As discussed below, the Tribunal finds that Mrs TLT's financial affairs are potentially quite complicated.
The Tribunal was satisfied that Mrs TLT is incapable of managing her financial affairs.

Is there a need for another person to manage Mrs TLT's affairs and is it in her best interests for a financial management order to be made?

In addition to property holdings of significant value in Australia, Mrs TLT is the sole beneficiary of her late husband's estate. Her three sons are all named as executors. Probate has not been obtained by them, though, and it appears that this is, in part, due to a lack of agreement between the siblings on the nature and value of the assets which need to be disclosed to the Court.
EIT and MIT have engaged in correspondence, which was provided to the Tribunal, regarding certain overseas accounts which they say KTT should be in a position to account for and KTT complains of a lack of transparency in dealings on a Westpac account in the joint names of Mrs TLT and EIT.
During Mr QTT's life, KTT assisted him in arranging for overseas accounts to be established, including accounts which are now beneficially held for Mrs TLT by some of KTT's clients in Dubai. Accounts were set up in a bank in India and at least one account was used in Dubai. Proceeds of the sale of a farm in India were deposited into those accounts.
KTT initially described the accounts in Dubai as "nominee accounts". It appears that, at least at some stage in the past, those accounts held a balance of about $450,000.00 AUD, although KTT said that some of those monies had been used in the support of the late Mr QTT and Mrs TLT.
KTT, in the Tribunal's view, was not forthcoming in relation to answers to questions about these accounts. Whilst the Tribunal can accept his evidence that he did not have the balances of the accounts available at the hearing, he was evasive when questioned by the Tribunal about how the accounts were set up, by whom they were held the and the nature of the accounts.
After questioning by the Tribunal, KTT described the accounts as trust accounts with "no nomination". He said that he has "some control over them" and that the reconciliation of those accounts was just recently completed by him.
Both MIT and EIT have raised concerns about this issue in the past and KTT has, in correspondence by email with EIT, acknowledged his ability to obtain reconciled balances and, by implication that the monies are held for his mother's benefit. He also acknowledged the last point to the Tribunal at the hearing and in statements dated the 5 and 25 October 2015. (for example, in paragraph 49 of the statement dated 25 October)
Mr Patakas, apparently on instructions from his client, questioned the appropriateness of the Tribunal asking about funds to which Mrs TLT might be entitled which are held in these overseas accounts. This is despite Mr Patakas, on behalf of his client, seeking directions at the interlocutory hearing that EIT provide evidence of dealings made in the sale of the property in Inner West Sydney, which is information of a similar nature.
The nature and extent of Mrs TLT's finances are relevant to an assessment of Mrs TLT's capacity to understand and manage them. Secondly, as pointed out by Ms Jura, one might in any event feel that Mrs TLT is entitled to know about money which is ultimately held for her and she raised no objection about this line of questioning.
Additionally, Mrs TLT's cash resources in Australia are dwindling. If her sons cannot arrange probate and administration of the estate of her late husband, steps may need to be taken to enforce her legal rights.
Mrs TLT also has joint accounts with EIT which may not accurately reflect an intention that the funds are owned jointly.
The Tribunal was satisfied that there is a need to appoint someone to manage Mrs TLT's affairs and it is in her best interests that an order be made. She is vulnerable to exploitation and has complex financial affairs.

Should a specific part of the estate be excluded from any financial management order?

Even though s 25E(2) Guardianship Act permits the exclusion of part of Mrs TLT's estate from a financial management order, the Tribunal was not satisfied that this would be appropriate at this point in time. No Party at the hearing suggested that such an order should be made.

Who should be appointed financial manager?

When 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. Preference is given to the appointment of a suitable person where that is appropriate, before the appointment of the NSW Trustee and Guardian.
MIT felt that it would be most appropriate that the NSW Trustee and Guardian be appointed. He noted the potential difficulty with Mr DTN residing overseas and felt that if Mr DTN was appointed, EIT would be the "de facto financial manager". MIT noted the potential complexity of Mrs TLT's financial affairs and that she has accounts in India and Dubai of unknown value.
KTT felt that the NSW Trustee and Guardian should be appointed. He felt that the siblings disagree on everything which caused his mother a lot of angst. He did not feel that any family member who might be appointed could be perceived to be impartial.
Again, EIT did not seek appointment but indicated that he would agree to be appointed if that is what his mother wanted.
As previously indicated, Mr DTN initially sought appointment, but only on the basis that that was Mrs TLT's stated preference. He indicated during the course of the hearing that he would be quite capable of managing Mrs TLT's known finances but he did not think that he could investigate the issues regarding any overseas accounts or disputed financial issues. He acknowledged that it would be appropriate that someone else investigate those issues.
During the course of the hearing, after having heard the evidence of dispute between her sons, Mrs TLT's view about who should be appointed as her financial manager changed.
When asked at the end of the hearing who she would like appointed, should the Tribunal appoint a substitute decision maker, Mrs TLT indicated that she felt that an independent appointment of the NSW Trustee and Guardian would be most appropriate. The Tribunal had to consider how much weight could be given to Mrs TLT's expressed opinion about this issue. Having decided, though, that Mrs TLT retained capacity for making many decisions in her life and, having given her the opportunity to consult with Ms Jura, who felt that this was an informed decision made by Mrs TLT, the Tribunal gave her wishes significant weight.
Ms Jura indicated that Mrs TLT had told her that she felt that it would be more likely to promote the relationship between her sons and relieve Mr DTN of a difficult role, all of which accords with the general principles applied by the Tribunal.
The Tribunal also noted that Mr DTN and EIT had strongly expressed that they wanted to accede to Mrs TLT's preference as to appointment.
There was no suitable person available or proposed to be appointed as financial manager.
The Tribunal was satisfied that the estate of Mrs TLT should be committed to the NSW Trustee and Guardian.

Recommendations to the NSW Trustee and Guardian

There are a number of accounts to which Mrs TLT may be beneficially entitled in Australia, Dubai, and India.
Each of Mrs TLT's sons complains of a lack of transparency in relation to how those accounts have been dealt with. The overseas accounts, at least, were created or arranged by KTT. He says that in relation to the India account(s), the ability to control or access the accounts was passed on to EIT. As part of gaining control of Mrs TLT's affairs, the financial manager should call on both of KTT and EIT to access and provide statements for those accounts from the date of Mr QTT's death in October 2014 to the present and investigate any apparent anomalies in those accounts.
The financial manager may also have to take steps to ensure the due administration of the estate of Mr QTT, to ensure that Mrs TLT has the funds needed for her ongoing care.

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: 16 May 2016

At a glance

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Judgment (24 paragraphs)

Legislation Cited (3)

Cases Cited (1)