YBT v NSW Trustee and Guardian

NCAT Appeal Panel|2022-12-20

REASONS FOR DECISION

YBT appeals against the decision made by the Guardianship Division of the NSW Civil and Administrative Tribunal (Tribunal) on 7 September 2022 (the decision under appeal) to decline to revoke a financial management order in respect of YBT. As a result, the estate of YBT remains subject to management under the NSW Trustee and Guardian Act 2009 (NSW) and the management of her estate is committed to the NSW Trustee and Guardian (NSWTG).
At the time of the appeal hearing, YBT was a 68-year-old woman living in private rental accommodation in a Sydney suburb but wishing to purchase her own home.
For ease of reference, in the remainder of these Reasons for Decision, YBT will be referred to as "the Appellant".
For the reasons set out below we now dismiss the appeal.

Publication of the names of the parties

The publication or broadcast of the name of any person, who is mentioned or is otherwise involved in an internal appeal against decisions made by the Tribunal is prohibited under s 65(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act). Being an official report of the appeal proceedings, that prohibition does not apply to these Reasons for Decision due to s 65(3) of the CAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we will not refer to the Appellant by name.

Background

The written reasons for the decision under appeal provide a summary of the history of proceedings involving the Appellant and relevant paragraph numbers from those written reasons are referenced below.
The Appellant has been the subject of a financial management order since 2012. When first made by the then Guardianship Tribunal, family members were appointed as her private financial managers. The order was made in the context of the Appellant having sent significant sums of money overseas as a result of becoming involved in an internet scam after meeting someone online ([14]). The Appellant had to sell her Sydney home to satisfy the terms of a settlement as a result of a loan she had taken out to send the money overseas ([14]-[15]). Subsequent to this, the Appellant sent further funds overseas to a different person and had accumulated significant credit card and other debt ([16]). The Appellant had been diagnosed with bipolar disorder in 2011 and the Tribunal found that that she was vulnerable to exploitation and incurring debts and made a financial management order appointing her son and her brother as her private financial managers ([16]).
At a review conducted in 2019, the NSWTG was appointed in place of the private managers.
In 2021, a further review was conducted at the request of the Appellant, but she was unsuccessful in having the order revoked. The Tribunal remained satisfied that the Appellant should remain subject to a financial management order, that she demonstrated a lack of understanding of the order and the need for oversight of her borrowing and spending, that she was not willing to seek advice or assistance regarding her affairs and, that she remained susceptible to exploitation ([18]-[19]). By the time of the review of the order in 2021, the Appellant was also in receipt of a significant sum of money from the sale of her late-mother's estate that had resulted from Supreme Court proceedings between the Appellant and her siblings ([22]).
In her 2022 application to have the financial management order revoked, the Appellant submitted, in summary: 1. she is an accountant by occupation and is qualified and capable to manage her own financial affairs ([47]) 2. she wishes to purchase a property in a particular area of Sydney, that can accommodate her mobility issues and so that she can have peace of mind and move on with her life instead of losing money by paying rent and fees to the NSWTG ([48]-[49]) 3. the financial analysis conducted by the NSWTG that has resulted in a cap of $680,000 to purchase a property is, according to the Appellant, unsound and her own analysis indicate she can purchase a property in the range of $750,000 and $850,000 ([50]) 4. while agreeing that she had fallen victim to an internet fraudster and that this led to the making of the 2012 order, this was a single mistake, was not related to bipolar disorder and she has never had a mental health condition that impacts on her ability to manage her financial affairs ([56]). The Appellant submitted health professional reports to the Tribunal that supported her wish to manage her own financial affairs describing her mental health as "extremely stable" ([23]-[33]).

Relevant Legislation

Under s 25P of the Guardianship Act 1987 (the Act), 25P Action on review (1) On reviewing a financial management order under section 25N, the Tribunal: (a) must vary, revoke or confirm the order, and (b) if it considers it appropriate to do so-may take such action with respect to the appointment of the manager of the protected person's estate as the Tribunal could take on a review of such an appointment under Division 3. (2) The Tribunal may revoke a financial management order only if: (a) the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or (b) the Tribunal considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her affairs).
When "exercising its Division functions for the purposes of the Act in relation to persons who have disabilities", the Tribunal is under a duty to observe the principles referred to in s 4 of the Act: CAT Act, Sch 6, cl 5(1).
Under s 4 of the Act, it is the duty of everyone exercising functions under that Act with respect to persons who have disabilities to observe the following principles: 1. the welfare and interests of such persons should be given paramount consideration, 2. the freedom of decision and freedom of action of such persons should be restricted as little as possible, 3. such persons should be encouraged, as far as possible, to live a normal life in the community, 4. the views of such persons in relation to the exercise of those functions should be taken into consideration, 5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, 6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, 7. such persons should be protected from neglect, abuse and exploitation, 8. the community should be encouraged to apply and promote these principles.

Reasoning of the Tribunal

In the written reasons explaining the decision under appeal, the Tribunal member identified that the order could be revoked if the member weas satisfied that the Appellant was capable of managing her affairs or if it was in the Appellant's best interests to revoke the order ([10]). The Tribunal member considered each of these issues in turn.
The Tribunal commenced consideration of the appellant's capability by referring to NSW Supreme Court authority in relation to financial management ([64]-[68]). The Tribunal member made specific reference to the statement by Justice Lindsay in P v NSW Trustee and Guardian [2015] NSWSC 579 (P v NSW Trustee and Guardian) at [307]-[308] who articulated the question as follows: "Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests?"
In considering this question, his Honour noted that: "[A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation."
At [67], the Tribunal member made reference to statements made by his Honour in P v NSW Trustee and Guardian (at [309]) and in CJ v AKJ [2015] NSWSC 498, at [38], that when "considering whether the person is 'able' in this sense, attention may be given to: (a) past and present experience as a predictor of the future course of events; (b) support systems available to the person; and (c) the extent to which the person, placed as he or she is, can be relied upon to make sound judgements about his or her welfare and interests."
At [69], the Tribunal member set out the matters she took into account to arrive at the conclusion that she was not satisfied that the Appellant had regained capacity to manage her affairs.
The Tribunal member concluded (at [70]-[71]): "[70] The events leading up to the making of the order in 2012 indicate significant harm arising to [the Appellant] from her financial decision-making within the context of a diagnosed bipolar disorder and her being susceptible to scams and exploitation. [the Appellant] sent sums overseas totalling around $1.38 million subsequent to having become involved in an internet scam and took out a loan for $1.6 million which she could not afford to repaid (sic) and ultimately led to her home being sold. The findings of the Tribunal in 2019 indicated further concerns regarding [the Appellant]'s management of her affairs and ongoing susceptibility. [71] [The Appellant]'s lack of insight renders her vulnerable to similar events being repeated. I consider she remains susceptible to exploitation. Further the inconsistencies in her evidence demonstrate that she does not have capacity to manage her affairs in a reasonable, rational and orderly way with due regard to her present and her future needs and without undue risk of exploitation."
Her reasoning for the finding that it was not in the Appellant's best interests to revoke the order are set out at [72]-[75]: [72] [The Appellant] seeks to be independent and is distressed by the order. She is critical of NSWTG not agreeing to release more funds for her to purchase a property. She is critical of legal fees that have been incurred and NSWTG's fees. [The Appellant] is distressed that her estate is being depleted by rent and these fees. She views the order as preventing her being able to move on and to become settled. [73] I accept however that NSWTG is supportive of [the Appellant] purchasing a property, have engaged with her on the issue and are prepared to work with her to revise her budget and expenditure and taking into account her views. The delay is arising from [the Appellant's] fixed views about what property should be purchased. The decision regarding the purchase of a property is significant and as identified by NSWTG there are significant risks to [the Appellant], arising from a shortfall of recurring cash flow, that [the Appellant's] financial assets will become exhausted and that this will necessitate the sale of the property and financial harm to her. Whilst [the Appellant] seeks stability and sees permanent accommodation as integral to this, the revocation of the order engenders risk of instability in her accommodation. This in turn will likely impact adversely upon her mental health. [74] The risks are exacerbated markedly by [the Appellant's] susceptibility to exploitation and given her lack of insight and her views about medication. I placed greater weight on the factors indicating risk and potential harm to [the Appellant] if the order is revoked and consider that her interests and welfare require an order. [75] In my view it is not in [the Appellant's] best interests that the order be revoked. I accordingly confirmed the order appointing the NSW Trustee and Guardian.

Leave to appeal required

The Appellant confirmed in her oral submissions that she did not assert any error of law in the decision under appeal and we were unable to identify any potential questions of law from her material. As a result, the appellant requires leave to appeal on each of the grounds of appeal: CAT Act, s 80(2)(b).
The principles which govern the granting of leave to appeal pursuant to s 80(2)(b) of the CAT Act are set out in Collins v Urban [2014] NSWCATAP 17 (Collins v Urban) at [84] (citations omitted): "(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such as unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed;…"
The particular considerations relevant to the granting of leave in a protective jurisdiction are explained in a number of decisions (P v NSW Trustee and Guardian, [190]-[198]; F v NSW Trustee and Guardian [2017] NSWSC 1319, [41]; SAB v SEM [2013] NSWSC 253, [8]-[10]; C v W [2015] NSWSC 1774, [44].
As we understood it, the real focus of the appeal, as set out in the Appellant's written and oral submissions, was the contention that the Tribunal member's conclusions - that the Appellant was not capable of managing her affairs and that it was not in her best interests to revoke the financial management order - were based on factual errors of such significance that it would be unjust to allow the decision to stand.
We understood from the oral and written submissions that the asserted factual errors were as follows: 1. The Appellant's decision to loan her sister $5000 and incur a debt on her credit card without the NSWTG's knowledge and contrary to their advice demonstrates a lack of insight, an inability to accept advice and susceptibility to making poor decisions 2. The Appellant's criticism of the NSWTG regarding legal fees from the estate proceedings concerning her mother demonstrates a lack of insight into the contribution of her conduct towards the amount of fees incurred 3. The delay in purchasing a property is a result of the Appellant's fixed views about the property that should be purchased. The Appellant submits that the financial projections made by the NSWTG including the cap of $680,000 for the purchase of a property should not have been accepted by the Tribunal member

Impugned finding (1): Loan of $5000 to sister from the Appellant's credit card demonstrated lack of insight and poor decision making

The Appellant contended that the Tribunal member's finding that the Appellant demonstrated lack of insight and poor decision-making skills by giving her sister $5000 from the Appellant's credit card, was incorrect and unfair to the Appellant. This event occurred in March/April 2020 when the Appellant's sister, who lives overseas, was extremely ill with COVID-19 and needed money for urgent medical treatment. The Appellant did not feel the loan was a risk because she was trusted her niece (her sister's daughter) to repay the money. At the time of the hearing (as reflected in [62] of the written reasons), $2000 was owing on the debt. By the time of this appeal, according to the Appellant, the outstanding loan has been reduced to approximately $1300. The Appellant described herself as acting in "desperation" at the time of the loan in 2020 because her sister was "dying". In oral submissions, she told us that she tried to explain this to the Tribunal member. The Appellant does not agree with the Tribunal member's conclusion that it was a "poor decision" to make the loan as the Appellant was "trying to save [her sister's] life" and it has not cost the Appellant anything so far as her sister's niece is repaying the loan.
The Appellant did not disagree with the Tribunal member's finding that the Appellant had insisted "that there is no risk to her" and that "the debt should not be considered as a liability" ([69(6)]) but disputed that these were indicative (as found by the member) of the Appellant's inability to accept advice and her susceptibility to making poor decisions.

Consideration

The Appellant did not provide an audio recording or transcript of the hearing on 7 September 2022. We were therefore unable to consider any criticism the Appellant made of the manner in which the hearing was conducted.
The written reasons do, however, set out the Tribunal member's understanding of the Appellant's evidence. The Tribunal member's summary of this evidence (at [61]-[63]) is consistent with the Appellant's submissions to us about the issue. The extent of the Appellant's concern for her sister's health and the circumstances, in particular, "that it was a dramatic situation and she was worried and panicked" ([61]) were specifically noted by the Tribunal member.
The Tribunal member's conclusions as to this issue are set out at [69(5)] and [69(6)] of the written reasons. "(5) The evidence relating to [the Appellant] incurring debt on her [bank] credit card is consistent with the findings of the Tribunal in 2019 and her lack of insight and understanding of the need for the order. She incurred the debt to make a loan to her sister without NSWTG's knowledge and contrary to their advice regarding the loan to her sister. (6) Even allowing for [the Appellant]'s conduct being explained by reason of her concern for her sister, her insistence that there is no risk to her and that the debt should not be considered as a liability is indicative of her inability to accept to accept advice and susceptibility to making poor decisions."
We have some sympathy for the Appellant's dissatisfaction with the finding that her decision to incur the debt in 2020 was indicative of a lack of insight and susceptibility to making poor decisions. The Appellant's response to the seriousness of her sister's condition due to COVID-19 by providing funds for medical treatment overseas would seem one that others may well have adopted at the time particularly given the lack of vaccinations at that stage of the pandemic and the serious threat posed by the disease.
The difficulty, however, with the Appellant's contention is that the Tribunal member's reasoning in this respect does not evidence a factual error (in her oral submissions that Appellant agreed that she had told the Tribunal member that there was no risk to her by making the loan and that she did not consider the debt a liability) but rather reflects an interpretation of the actions of the Appellant, albeit that the Appellant disagrees with that interpretation. This was the kind of evaluative judgment (GR v Secretary, Department of Communities and Justice [2022] NSWCA 153, 119 (Brereton J)) that, on a fair reading of the entirety of the written reasons and in the context of the evidence of the past actions of the Appellant and her current situation, was open to the Tribunal member to make.
The Appellant has not demonstrated an error in this finding that would warrant a grant of leave.

Impugned finding (2): Criticism of the NSWTG regarding legal fees from the estate proceedings concerning the Appellant's mother demonstrates a lack of insight into the contribution of her conduct towards the amount of fees incurred

The Appellant asserts that the finding that her criticism of fees charged by the NSWTG arising from the Supreme Court proceedings concerning her late- mother's estate demonstrated a lack of insight, was incorrect and unfair. It was only at the September 2022 hearing that the Appellant learnt for the first time that she had outstanding fees of approximately $24,000 for work done by the NSWTG in relation to the legal proceedings in the Supreme Court.

Consideration

The Tribunal's findings about this issue are set out at [69(14)] of the written reasons. "(14) [The Appellant]'s criticism of NSWTG regarding the legal fees from the estate proceedings also demonstrates a lack of insight into the contribution of her conduct towards the amount of fees incurred. I accept the issue of legal fees is not resolved. [The Appellant] became highly distressed at the suggestion that there were further fees and appeared unlikely to be able to exercise sound judgement with a view to resolution of the fees."
The Appellant disputed the finding that her responses at the hearing demonstrated a lack of insight on her part. The Appellant submitted that she was "shocked" at the hearing upon being told of the bill as she had not previously been told about it. She explained that she had dealt with a number of different people at the NSWTG and had to explain things multiple times to each new person and it was quicker to deal directly with her lawyer. Without monthly billing or a costs agreement, the Appellant was unable to challenge the accuracy of these fees.
Examination of the Tribunal member's summary of the Appellant's evidence about this issue reveals that, in large part, the submissions made to us in this appeal about this issue were also made by the Appellant to the Tribunal member. Paragraphs [53] and [54] bear this out: "[53] Another area of concern for [the Appellant] relates to legal fees incurred relating to the estate of her mother. She is aggrieved that her lawyer, [Mr ZZ], had to check with NSWTG following her discussions with him about the court case. Her evidence is that it was appropriate that she have the extent of communications with [Mr ZZ] that she did because of the information that she necessarily about her affairs and family relevant to the matter and because if she waited for the information from NSWTG she may 'not get an answer for two to three days' but she could get an 'answer straight away' or 'within two hours' from [Mr ZZ]. This was better than dealing with many NSWTG staff. [54] During the hearing, [the Appellant] became very distressed at the suggestion that the issue of legal fees had not been fully resolved. She took issue with [the evidence of the NSWTG officer]. [The Appellant] said that the issue of legal fees 'was done and dusted'. [The Appellant] said she is "shocked" if there are further legal fees, stating that 'it was a mess'."
The Appellant's dissatisfaction with the actions of the NSWTG in this regard was evident from both her evidence at the September hearing and in her submissions at the appeal. She did not dispute, however, that her level of engagement with her lawyer, who then because of the financial management order needed to engage also with the NSWTG, led to an increase in legal fees.
This finding was not unreasonably arrived at or clearly mistaken (Collins v Urban, 84(d)). The Appellant has not demonstrated a factual error that would warrant a grant of leave.

Impugned finding (3): Disagreement with Tribunal member's acceptance of projected financial forecasts of the NSWTG

The Appellant is highly critical of the projected financial forecasts carried out by the NSWTG and, in particular, the $680,000 cap set by the NSWTG reflecting the maximum funds available to her to purchase a property. The Appellant was similarly critical of the Tribunal member's reasoning about this issue, submitting, as we understood her argument on appeal, that the Tribunal member should not have accepted the calculation of the NSWTG in this respect; that the Appellant is an accountant by profession and her calculations as to the correct financial projections should have been accepted; the Appellant plans to return to work as an accountant which would strengthen her financial position but neither the NSWTG nor the Tribunal member took this into account; and the Tribunal failed to have proper regard to the detrimental impact that continuing to rent a property is having on the Appellant.

Consideration

The Appellant sought an internal review of the NSWTG's decision on 20 June 2022 to "approve in principle the purchase of property and associated spending of up to $680,000 only". In a written decision dated 11 July 2022 (which was in evidence before the Tribunal member (see [34] of written reasons), the Internal Reviewer set out his reasons for affirming the original decision. These were summarised in the written reasons of the Tribunal below (at [44]-[45]) and note that the Internal Reviewer took into account a budget and financial analysis prepared by the Appellant.
The Appellant informed us that she had sought administrative review of this decision under the Administrative Decisions Review Act 1997 (NSW). A hearing took place in the Administrative and Equal Opportunity Division of NCAT on 6 December 2002 which was prior to this appeal hearing (we note, for the sake of completeness, that on 6 March 2023 the decision of the NSWTG was affirmed: FNL v NSW Trustee and Guardian [2023] NSWCATAD 46).
The Tribunal member's findings on this issue are found in [69(11)], [69(12)], [69(15)] and [69(16)]: "(11) In 2021, the Tribunal noted [the Appellant]'s 'steadfast refusal to obtain independent advice' and considered this to be of concern given her history of vulnerability to exploitation. My interactions with [the Appellant] were consistent with this earlier finding. [The Appellant] states that if the order is revoked, she will not take into account the advice of NSWTG, refusing to acknowledge that NSWTG has any expertise in financial management. (12) Even allowing for her poor view of NSWTG, her evidence is that if the order is revoked, she will not seek any further advice before immediately purchasing a property. [The Appellant] is 100% that there are no risks to her… … (15) I accept the evidence of NSWTG that they are supportive of [the Appellant] purchasing a property. The delay in purchasing the property is a result of [the Appellant]'s fixed views about the property that should be purchased and [the Appellant]'s choice not to accept NSWTG's advice on the matter. (16) Whilst I take into account [the Appellant]'s qualifications in accountancy, this was outweighed by the other evidence indicating a lack of insight and her susceptibility to not acting rationally and vulnerability to exploitation."
The Appellant describes the Tribunal member's findings about this issue as "unfair" and failing to have proper regard to her skills as an accountant and the forecasting she has undertaken of financial situation, her frugal lifestyle and her plan, as yet unrealised, to return to paid employment as an accountant.
The Appellant's submissions before us make clear that her criticisms of the decision of the NSWTG in the hearing on 6 December 2022 before the Administrative and Equal Opportunity Division of NCAT were precisely the matters ventilated before the Tribunal member below, and again before us in this appeal.
There is no doubt the Appellant disagrees with the findings made by the Tribunal member and the ultimate decision reached by her. We were, however, unable to see findings that were unreasonably arrived at or clearly mistaken. They were open to the Tribunal member on the available material and the Appellant has not demonstrated a factual error that would warrant a grant of leave.
In her written and oral submissions, the Appellant raised similar arguments about other aspects of the Tribunal member's findings including the reference (at [70]) to the events leading to the making of the original financial management order in 2012 and the maintaining of that order after review in 2019. At [71]-[75] the Tribunal member sets out her reasoning as to why she was not satisfied that the Appellant was capable of managing her affairs and that it was not in the Appellant's best interests to revoke the order. The Tribunal member considers the relevant statutory provisions, applies principles set out in relevant caselaw and gave cogent reasons for each finding. There is no doubt that the Appellant is strongly opposed to the existence of the order and the detrimental impact she feels that it has on her life. The Appellant has failed, however, to establish that there is a basis for granting leave to appeal.
Leave to appeal is refused. 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

Amendments 22 May 2023 - Amended Hearing date from '2023' to '2022' 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: 22 May 2023

Trustee and Guardian Act 2009(NSW)

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

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Legislation Cited (4)

Cases Cited (8)

Cited By (1)