ZOB appeals against the decision made by the Guardianship Division of the NSW Civil and Administrative Tribunal (Tribunal) on 13 September 2019 to revoke the appointment of ZOB as the private financial manager of her mother, ZOC. The Tribunal replaced ZOB with the NSW Trustee and Guardian.
At the time of the appeal hearing, ZOC was an 86-year-old woman living in regional NSW in an aged care facility. ZOC has another daughter, ZOD, the second respondent, and a daughter-in-law, ZOE, the third respondent.
For ease of reference, in the remainder of these Reasons for Decision, ZOB will be referred to as "the appellant", ZOD as "the daughter" and ZOE as "the daughter-in-law".
For the reasons set out below we now dismiss the appeal.
[2]
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 parties by name but use the descriptors as previously noted.
[3]
Background to appeal
On 14 January 2015 ZOC appointed the appellant as her attorney pursuant to an enduring power of attorney (2015 enduring power of attorney). On the same date ZOC appointed the appellant as her enduring guardian.
The daughter and the daughter-in-law lodged applications for guardianship and financial management.
Following a hearing on 28 September 2018 (September 2018 hearing) the Tribunal made a financial management order for ZOC and appointed the appellant as her private financial manager subject to the oversight of the NSW Trustee and Guardian. The 2015 enduring power of attorney was suspended as a result: s 50(3) of the Powers of Attorney Act 2003 (NSW).
On 29 October 2018 the Tribunal dismissed the application for a guardianship order.
On 20 March 2019 ZOC revoked the 2015 enduring power of attorney and made a new enduring power of attorney that appointed the daughter as her attorney.
In April 2019 ZOC, the daughter and daughter-in-law lodged an application (2019 review application) requesting a review of the financial management order made on 28 September 2018. The application requested that the financial management order be revoked. If the order was not revoked, the application requested that the order be varied by removing the appellant as the private financial manager and replacing her with the daughter and daughter-in-law as private financial managers.
The hearing of the 2019 review application commenced on 20 June 2019. The Tribunal appointed a separate representative for ZOC, made directions and adjourned the hearing on a part heard basis.
Following the resumption of the hearing on 13 September 2019, the Tribunal decided not to revoke the financial management order. The Tribunal was not satisfied that ZOC had regained the capacity to manage her own affairs. Nor was it satisfied that it was in ZOC's best interests to revoke the financial management order.
The Tribunal decided, however, to vary the order by revoking the appellant's appointment as ZOC's private financial manager and committing the management of ZOC's estate to the NSW Trustee and Guardian.
[4]
ZOC's participation and views
This appeal was to have been heard in the regional area in which ZOC lives so that ZOC could attend the appeal hearing in person. However as a result of the COVID-19 pandemic, the appeal was heard by telephone. ZOC took part in the appeal from the aged care facility and participated throughout by telephone in the company of the Director of Nursing.
ZOC told us that she did not want the appellant to be her financial manager but nor did she want the NSW Trustee and Guardian to be her financial manager as she was not happy with the way they are looking after her affairs. ZOC told us that she wanted her daughter and daughter-in-law to manage her financial affairs.
A differently constituted Appeal Panel had appointed a separate representative for ZOC. The separate representative appointed by the Tribunal also took part in the hearing by telephone. The separate representative's submissions are outlined below.
[5]
Preliminary matters
The appellant initially requested an adjournment of the appeal hearing. This was because the daughter was present in the same room as ZOC and the Director of Nursing. The appellant submitted that this was unfair to the appellant as she had been told that she was not able to be with her mother for the appeal hearing and that the daughter would influence ZOC if she was allowed to be with her during the appeal hearing.
The separate representative submitted that the hearing of the appeal should proceed as it was in ZOC's interests for these issues to be finalised particularly because of the stress caused to her by the conflict between family members.
With assistance of the Director of Nursing arrangements were able to be made for the daughter to participate in the appeal hearing from a different room in the aged care facility. The appellant withdrew her request to adjourn the hearing.
Shortly after the commencement of the appeal it also became evident that although directions had been made by the Tribunal that all documents filed in the Tribunal were to be served on each other party, this had not occurred. As a result, and without objection, the substantive content of the following two documents were read aloud by a member of the Appeal Panel:
Reply to appeal filed by the daughter and daughter-in-law
March 2020 report of the NSW Trustee and Guardian
The appellant prepared an informal transcript of the proceedings on 13 September 2019 ("Transcript"). The other parties to appeal confirmed that they had received a copy of the Transcript and had no objection to its contents.
[6]
The appeal
The Notice of Appeal set out 10 grounds of appeal, some containing within them numerous sub-paragraphs. The Notice of Appeal also contained 10 grounds upon which leave to appeal was sought.
As the appellant was unrepresented by the time of the appeal hearing and given the overlapping nature of some of the grounds, we assisted her to refine her grounds of appeal following further clarification by the appellant in her written and oral submissions: see Neill v Nott [1994] HCA 23. As a result, the appellant confirmed that her appeal grounds were that:
1. The Tribunal erred in finding that the appellant's interests as ZOC's private financial manager were in conflict with those of ZOC because:
1. All of the matters found at the 13 September 2019 hearing to constitute a conflict of interest had already been considered at the 28 September 2018 hearing when the appellant was first appointed as ZOC's private financial manager. Any conflicts of interest were addressed by the Tribunal on 28 September 2018 when it stated in its Reasons for Decision that the "oversight of the NSW Trustee and Guardian provides sufficient protection against any further breaches of fiduciary duty of the type that we have found to have been made by [the appellant]" (at [79]); and
2. In any event, no conflict of interest existed in relation to the appellant's rent free occupation of ZOC's regional NSW property. ZOC had requested that the appellant and her family move into ZOC's regional NSW premises; had never asked them to leave the property and had never asked the appellant to pay rent
3. (Grounds 1, 2, 3, 5, 6, 7, 8) - the "Conflict of interest" ground;
1. The Tribunal failed to give sufficient weight to the evidence that the appellant had advised the NSW Trustee and Guardian that she and her family were continuing to live at the regional NSW premises and to the evidence that the NSW Trustee and Guardian had not provided any advice that this was inappropriate
2. (Ground 4) - the "Oversight" ground;
3. The decision to appoint the NSW Trustee and Guardian as ZOC's financial manager was unfair to ZOC because the Tribunal did not inform ZOC of the significant costs associated with having the NSW Trustee and Guardian appointed and her views on the issue were not canvassed
4. (Ground 9) - the "Unfairness" ground;
5. The Tribunal did not have proper regard to the evidence that ZOC was subject to undue influence and coercion by the daughter and daughter-in-law. This influenced the views expressed by ZOC at the hearing including her statements that she did not want the appellant to be her financial manager
6. (Ground 10) - the "Undue influence and coercion" ground.
[7]
Replies to appeal
The daughter and daughter-in-law each took an active role in the appeal. Their position was that the Tribunal had not made any error by revoking the appointment of the appellant. However, they wished to be appointed as ZOC's private financial managers rather than the NSW Trustee and Guardian. We note that neither the daughter nor the daughter-in-law had filed an appeal or cross appeal seeking this outcome. Accordingly we did not consider this aspect of their response.
A representative of the NSW Trustee and Guardian participated in the appeal by telephone but did not express a view about the grounds of appeal.
The separate representative's written and oral submissions were to the effect that the Tribunal had not erred by revoking the appointment of the appellant or in appointing the NSW Trustee and Guardian in the appellant's place. The separate representative submitted that the evidence before the Tribunal indicated that the appellant continued to receive personal benefit as financial manager in terms of the rent free occupation of the regional NSW property when she was clearly put on notice by the findings of the Tribunal on 28 September 2018 that, as attorney, she was in breach of her fiduciary duty to ZOC. The separate representative submitted that "it is of concern that these behaviours continued and that the appellant failed to obtain formal approval from the NSW Trustee and Guardian despite being aware that she had been found to be breaching her fiduciary duty". The separate representative also submitted that the oversight of the NSW Trustee and Guardian required correct information from the appellant and that was not given and that this was further justification for the revocation of the appellant's appointment.
The separate representative's view was that the appeal should be dismissed.
[8]
Leave to appeal required
We were unable to identify any potential questions of law from the appellant's 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 at [84]. 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 [2015] NSWSC 579, [190]-[198]; F v NSW Trustee and Guardian [2017] NSWSC 1319, [41].
In SAB v SEM [2013] NSWSC 253, White J considered the principles which applied to an appeal to the Supreme Court from a decision of the then NSW Guardianship Tribunal:
[8] Without intending to be exhaustive, the considerations governing a determination as to whether leave should be given will include whether or not a question raised involves a matter of administration or policy which might have general application, whether or not the Tribunal's decision has been arrived at after the Tribunal members have directed themselves properly and fairly on the facts and not gone wrong in law, whether there is an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand, and whether the factual error was unreasonably arrived at and clearly mistaken. (See K v K at [14] and Slinko v Guardian Administration Tribunal at [9]-[16]).
[9] Underlying these constraints is the need to recognise that Parliament has entrusted to the Tribunal the primary function of making the factual determinations required for a guardianship order, and that the Court should not grant leave to appeal unless the Tribunal has gone about that fact finding process in a way which is so unorthodox as to be likely to produce an unfair result. It is not enough that a judge might consider that he or she would have reached a different conclusion on the facts from the conclusion reached by the Tribunal.
[10] The grant or withholding of leave is to be exercised having regard to the general principles in s 4 of the Act, including the principle that the welfare and interests of the person with disabilities is to be given paramount consideration. But that is not to say that the gateway requiring leave to appeal can be emasculated by the Court's too readily engaging in a detailed review of the facts with a view to detecting possible error.
In C v W [2015] NSWSC 1774, when discussing the principles relating to the granting of leave by the Court under cl 14(1)(b) of Sch 6 to the CAT Act, Lindsay J (at [44]-[46]) stated, relevantly, that
[44] Secondly, if leave is to be granted pursuant to clause 14(1)(b) for an appeal on a ground other than a question of law, the Court generally needs to be satisfied that there is a question of principle or policy, or a manifest error in the decision or decision-making process under review, which merits a grant of leave: Collins v Urban [2014] NSWCATAP 17 at [82]-[84], qualified, in cases involving an exercise of the Court's protective jurisdiction, by observations made in P v NSW Trustee and Guardian [2015] NSWSC 579 at [191].
[9]
Conflict of interest ground
The appellant put to us that the issues raised by the applicants for review at the hearings on 20 June 2019 and 13 September 2019 were the same as those that had been raised at the 28 September 2018 hearing when the appellant was appointed as the private financial manager. The appellant specifically referred to the following:
1. That the appellant was occupying the regional NSW premises without paying rent was known to the Tribunal when it made the decision on 28 September 2018 to appoint the appellant as the private financial manager.
2. The use by the appellant of ZOC's motor vehicle was known to the Tribunal when it made the decision on 28 September 2018 to appoint the appellant as the private financial manager.
The appellant also drew our attention the following references in the Reasons for Decision relating to the 28 September 2018 decision about the role of the NSW Trustee and Guardian in overseeing the role of the appellant as private financial manager:
78 We were of the view that in using [ZOC]'s assets and some of [ZOC]'s funds for her own benefit, [the appellant] had breached the fiduciary duty owed to [ZOC]. We were of the view that this breach is such that [the appellant] should not manage [ZOC]'s affairs as her attorney. However private financial managers have access to advice from the NSW Trustee and Guardian about management of the affairs of a protected person and are required to submit a financial plan of management and to submit accounts for audit. In respect of [ZOC]'s [regional NSW] home, a financial plan will need to address how any proposed occupation of the home or expenditure on its maintenance or improvements will be in the best interests of [ZOC]. A proposed budget would need to take into account [ZOC]'s needs against her income and an annual audit of accounts will monitor expenditure.
79 We are the view that the oversight of the NSW Trustee and Guardian provides sufficient protection against any further breaches of fiduciary duty of the type that we have found to have been made by [the appellant].
80 We are also satisfied that the record keeping obligations of a financial manager and monitoring of those records by the NSW Trustee and Guardian will address the record keeping issues that contributed to the decision of the Tribunal that the financial management order should be made despite the appointment of [the appellant] as the attorney.
The appellant submitted that by focussing on her ongoing rent free occupation of the regional NSW premises, and thereby finding that there was a conflict of interest between ZOC's interests and those of the appellant as private financial manager, the Tribunal in the 13 September 2019 decision failed to place appropriate weight on all of the circumstances that led to that arrangement including the close and loving relationship that had existed between ZOC and the appellant. According to the appellant, ZOC had never previously asked her to pay rent or to leave the property.
[10]
Consideration
The Tribunal may only revoke the appointment of a financial manager if, relevantly, the Tribunal is satisfied that it is in the best interests of the protected person that the appointment be revoked: Guardianship Act 1987 (NSW) ("the Act"), s 25U(4)(b).
When exercising any function under the Act, including when considering whether to revoke the appointment of a financial manager under s 25U of that Act, the Tribunal is under a duty to observe the principles set out in s 4 of the Act giving primacy to the welfare and interests of the protected person: C v W [2015] NSWSC 1774 at [82]-[100]; P v NSW Trustee and Guardian [2015] NSWSC 579 at [320].
In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court of Appeal rejected an argument that the person applying for a change of manager bears the onus of demonstrating a "clear and convincing" case that the form of management proposed would better advance the interests of the protected person than the existing arrangements. The Court put it no higher than saying that, generally, a person who seeks the removal of a manager needs to show "some reason" why the Court should so order (at 241).
These principles were applied by the Appeal Panel in KW v Protective Commissioner and Ors [2008] NSWADTAP 5 (at [12]-[13]) when it stated that the correct approach in considering s 24U(4)(b) of the Act is to:
start from the proposition that the Tribunal has a broad discretion to revoke the appointment of a financial manager: section 25U(4). Before doing so, the Tribunal must be satisfied that it is in the best interests of the protected person: section 25U(4)(b). If it comes to that view, the Tribunal is "duty bound" to revoke the order.
The discretion should be exercised in accordance with the purposes of the Guardianship Act and the general principles in section 4. The person applying for the revocation should generally provide "some reason" for revoking the order. That reason may be that the manager has acted incompetently, improperly or unlawfully. If the person applying for revocation has a conflict of interest with the protected person, that would ordinarily preclude him or her from being appointed as the manager, but it does not present an absolute bar to that appointment. Finally, the pros and cons of appointing a public or a private manager should be weighed up before determining whether it is in the best interests of the person that the order be revoked.
See also P9/2000 [2011] NSW SC 49, [19] (Hallen AsJ) and M v M [2013] NSWSC 1495, [49]-[50].
In the Reasons for the 13 September 2019 decision, the Tribunal identified four allegations made by the daughter and daughter-in-law to justify the revocation of the appellant's appointment as ZOC's financial manager. These allegations were (at [28]):
(1) The existence of a number of unexplained withdrawals from [ZOC]'s bank accounts
(2) Concern that [the appellant] is living in [ZOC]'s most expensive property without paying rent
(3) [The appellant] is using [ZOC]'s motor vehicle (a Lexus)
(4) The fact that [ZOC] receives only $50.00 a week allowance, which is insufficient and causes her distress
We considered whether or not each of these allegations were matters that, according to the appellant, had already been addressed and determined by the earlier Tribunal on 28 September 2018.
In relation to the allegation concerning unexplained withdrawals, the Tribunal on 13 September 2019 confined its attention to financial transactions since 28 September 2018 which was the period after the appellant was appointed as ZOC's private financial manager (at [29]-[30]). The Tribunal on 13 September 2019 did not therefore address allegations that had already been raised and determined in the 28 September 2018 decision.
In relation to new allegations relating to withdrawals by the appellant from ZOC's account after 28 September 2018, the Tribunal found that there was no evidence to suggest that these transactions were "inappropriate" or "problematic" ([31]-[35]).
Similarly, the Reasons for Decision indicate that the allowance given to the ZOC by the appellant, which was alleged by ZOC, the daughter and daughter-in-law to be insufficient and causing distress to ZOC, was an issue that also arose after the appellant was appointed as private financial manager on 28 September 2018. It was therefore not an issue that the earlier Tribunal on 28 September 2018 had already determined. In relation to this new allegation, ultimately the Tribunal on 13 September 2019 did not make a finding, but rather made what could be described as an observation that "…it may not be unreasonable for [ZOC] to have additional allowance" ([58]).
The Tribunal did not reach any conclusions adverse to the appellant about these two issues and they did not form part of the basis upon which the Tribunal revoked the appellant's appointment as ZOC's private financial manager.
The Tribunal did, however, make findings that were adverse to the appellant in relation to the issue of payment of utility bills for the regional NSW property in May and July 2019; the appellant's rent free occupation of the regional NSW property; and the appellant's use of ZOC's motor vehicle.
In relation to these issues the Tribunal's Reasons for Decision on 13 September 2019 state as follows:
36 The applicants noted that there were a lot of withdrawals for payments for utilities and other expenses associated to the property in which the financial manager lives, which shall be referred to in these Reasons for Decision as the "[regional NSW] property". These included bills for the home and internet package, [energy] bills and other bills associated with that property.
37 The financial manager initially said that she did not occupy the property until April 2019. She maintained that since she occupied the property on a fulltime basis, she has taken over the payment of the utilities.
38 However, a perusal of the accounts reveals that this is not entirely correct. There is evidence of payments having been made by [ZOC] herself in May and July of 2019. The financial manager conceded that this was the case.
39 It is clear, therefore, from the evidence, and the Tribunal accepts that the financial manager has used [ZOC]'s funds to pay for utilities associated with the [regional NSW] property during the period in which the financial manager and her family have occupied the property, despite the fact that [ZOC] is not deriving any benefit from that asset.
Living rent-free in the property
40 The fact that the financial manager lives in the [regional NSW] property without paying rent is not in dispute. She told the Tribunal that she occupied the property with the consent of [ZOC].
41 Her husband, [Mr Z], told the Tribunal that the financial manager and her family have had to disrupt their lifestyle to move to [regional NSW] from their farm in [another area of regional NSW], in order to care for [ZOC] and that that is why they now live in her property.
42 The financial manager said that [ZOC] has never asked her to move from the property or to pay rent. Furthermore, she said that she spoke to the NSW Trustee and Guardian on 22 March 2019 and was advised that it was permissible for her to remain in the property rent-free, provided that she paid all the utilities.
43 Mr Wu from the NSW Trustee and Guardian attended the hearing by telephone. He said that there is no record of the Trustee having formally approved such an arrangement. It appears that this may have been the result of a misunderstanding, in that the financial manager believed that she had believed verbal authorisation, and was unaware of the necessity to submit an application to the Trustee for approval.
44 Be that as it may, it is now clear that [ZOC] does seek to derive some benefit from her major asset. Her separate representative submitted that she made this clear to him.
45 The Tribunal took the opportunity to speak to [ZOC], in the absence of her family members. She confirmed to the Tribunal Member in those circumstances that she would like to rent her property out. She estimated that it would attract approximately $600.00 to $700.00 a week rent, were she to rent it "to an outsider". However, she would be content to receive $300.00 a week from family members.
46 It is clear, therefore, that the financial manager and her family are deriving a financial benefit from [ZOC]'s estate, contrary to the expressed wishes of [ZOC]. The financial manager submitted that [ZOC] originally asked her to occupy the property. She expressed the view that [ZOC]'s change of opinion may be due to undue influence. She denied that the current arrangements represented a conflict of interest.
47 The Tribunal finds that this situation, however, it arose, has now placed the financial manager in a situation where, contrary to [ZOC]'s expressed wishes, she is deriving a financial benefit and [ZOC] is not benefiting from one of her major assets.
48 In those circumstances, it is clear that the financial manager's interests are in conflict with those of [ZOC].
[ZOC]'s motor vehicle
49 It is not disputed that the financial manager has access to and drives [ZOC]'s Lexus motor vehicle. [ZOC] told the Tribunal that the car is approximately five to six years old. She purchased it for approximately $45,000.00 and believes it would be worth $20,000.00 now.
50 The financial manager disagreed with that valuation, Ultimately, the valuation of the vehicle is not the relevant issue. The financial manager said that she has kept the vehicle because she cannot fit [ZOC] into her own car. She indicated that she would be prepared to sell the car, but maintained that she had kept possession of it with [ZOC]'s full approval. Whilst that may be the case, it is now clear that [ZOC] no longer approves.
In relation to the issue of ZOC's payment of utility bills for the regional NSW property in May and July 2019 the Tribunal accepted evidence that the appellant had "used [ZOC's] funds to pay for utilities associated with the regional NSW property during the period in which the financial manager and her family have occupied the property, despite the fact that [ZOC] is not deriving any benefit from that asset" ([39]).
We understand from the Reasons for Decision of 13 September 2019 that this finding formed part of the basis of the ultimate finding that there was a conflict of interest between the appellant and ZOC (at [64]), and was reached on the basis of evidence about events arising after the date on which the appellant was appointed as ZOC's private financial manager.
The appellant's argument that the Tribunal on 13 September 2019 made findings about conflicts of interest between ZOC and the appellant that had already been considered and determined by the earlier Tribunal on 28 September 2018 is therefore not supported in relation to this issue around the payment of utility bills.
On this finding alone the Tribunal was entitled to reach the conclusion that there was a conflict between the interests of ZOC and the appellant as ZOC's financial manager.
The other two issues - the rent free occupation by the appellant and her family of the regional NSW property and the use by the appellant of ZOC's motor vehicle - were matters that had been ventilated during the hearing on 28 September 2018 and the Tribunal on that occasion made findings adverse to the appellant when the appellant was acting as ZOC's attorney. Those Reasons for Decision formed part of the material that was submitted in this Appeal. The Tribunal on 28 September 2018 found that:
by "using [ZOC's] funds and assets to benefit herself [the appellant] has placed herself in a position where her interests have been in conflict with those of [ZOC]" - [61]
"[the appellant] has breached the fiduciary duty she owes to [ZOC] as her attorney and has failed to keep records as required of an attorney - [63]
The Tribunal on 28 September 2018 nevertheless appointed the appellant as the private financial manager subject to oversight by the NSW Trustee and Guardian for the following reasons:
because ZOC "trusted her" - [38(7)]
ZOC "expressed a wish that her affairs be managed by [the appellant] and not by the NSW Trustee and Guardian - [76]
"the advantages of the appointment of a family member and the wishes of [ZOC]" - [84]
The Tribunal on 13 September 2019 found, however, that by the time of the 2019 review hearings, circumstances had changed. As is evident from the extract from the 13 September 2019 Reasons set out at [47] above, ZOC no longer wished for the arrangements that had been in place concerning the regional NSW property and the use of her motor vehicle by the appellant to continue and ZOC no longer wished to have the appellant remain as her financial manager.
The Tribunal's conclusions were as follows:
64 The Tribunal is satisfied that there is a conflict of interest between the financial manager and [ZOC]. Furthermore, the Tribunal has a statutory obligation to take [ZOC]'s wishes into account. Whilst the Tribunal is not obliged to give effect to those wishes, it is significant in this case that [ZOC] is adamantly opposed to [the appellant] remaining as her financial manager.
65 The Tribunal notes that [the appellant] has had a long history of caring for [ZOC] in circumstances where one of the applicants, [the daughter], has been estranged from [ZOC] for many years. However, it is the current situation, which the Tribunal must assess and the Tribunal is of the view that the conflict of interest and the distress that the current arrangements are causing to [ZOC] mean that it is in her best interests that the appointment of [the appellant] as financial manager should be revoked.
66 The Tribunal acknowledges that [ZOC]'s current views may be influenced by her cognitive decline and may be inconsistent with long held views. However, the fact that the current arrangements are currently causing her to stress is a most significant factor.
The Tribunal's conclusion that it was in ZOC's best interests for the appellant's appointment to be revoked was not confined to the finding that there was a conflict of interest between the appellant and ZOC. It was also made on the basis of "the distress that the current arrangements are causing to [ZOC]" ([65]). We understood that this distress was a reference to the appellant's appointment as her private financial manager, the conflict between family members and ZOC being "adamantly opposed" to the appellant remaining in that role ([64]).
In arriving at its view as to the outcome that would be in ZOC's best interests, the Tribunal had regard to the principles set out in s 4 of the Act. This requires a balancing exercise but is one that requires the Tribunal to give paramount consideration to ZOC's welfare and interests: the Act, s 4(a). In this particular case the Tribunal had evidence about ZOC's views and had regard to these views as it was required to do pursuant to s 4(d) of the Act. ZOC expressed views about how she wished her property at regional NSW to be managed and her motor vehicle to be utilized and that she did not wish the appellant to manage her affairs. The Tribunal correctly noted that it was "not obliged to give effect to those wishes" ([64]) but regarded it as significant that ZOC "is adamantly opposed to [the appellant] remaining as her financial manager" ([64]). The Tribunal found that a significant factor in revoking the appellant's appointment was that "fact that the current arrangements are currently causing her to stress".
[11]
Oversight ground
The appellant submitted that the Tribunal on 13 September 2019 had failed to give sufficient weight to the fact that the appellant had made contact with the NSW Trustee and Guardian after her appointment as the private financial manager, had informed the NSW Trustee and Guardian that she and her family were living in the regional NSW property and had been informed that she could continue to do so. As we understood the appellant's argument, had the Tribunal placed appropriate weight on this evidence the finding that there was a conflict of interest could not be supported and the appellant's appointment as ZOC's private financial manager would not have been revoked.
[12]
Consideration
In making the decision on 13 September 2019 to revoke the appellant's appointment as ZOC's financial manager, the Reasons for Decision indicate that the Tribunal took into account the following:
The appellant's evidence that "she spoke to the NSW Trustee and Guardian on 22 March 2019 and was advised that it was permissible for her to remain in the property rent-free, provided that she paid all the utilities" ([42])
Evidence by an officer of the NSW Trustee and Guardian that "there is no record of the Trustee having formally approved such an arrangement" ([43])
The Tribunal noted that this "may have been the result of a misunderstanding in that the financial manager believed that she had verbal authorization, and was unaware of the necessity to submit an application to the Trustee for approval" ([43]).
We understand from the Tribunal's discussion of this issue at [42]-[44] that the Tribunal accepted that as far as the appellant was aware, she was acting in accordance with the oversight provided by the NSW Trustee and Guardian and had not been provided with any advice to the contrary.
Even though the Tribunal accepted the appellant's evidence of her understanding about her interaction with the NSW Trustee and Guardian about the regional NSW property, it is clear from the conclusions reached (at [64]-[66]) that the basis upon which the Tribunal revoked the appellant's appointment was twofold, namely the finding of conflict of interest but also "the distress that the current arrangements are causing to [ZOC]". As discussed in relation to the "Conflict of interest" ground of appeal, the Tribunal placed weight on ZOC's views that she was "adamantly opposed" to the appellant remaining as her private financial manager ([64]) and the distress that these arrangements and conflict between family members resulting from these arrangements was causing her.
We do not accept that the Tribunal gave insufficient weight to the appellant's evidence of her understanding of the verbal authorization she believed that she had received from the NSW Trustee and Guardian. The Tribunal accepted the appellant's account of this but gave greater weight to ZOC's welfare, interests and views.
We conclude that there was no question or principle or policy raised, or manifest error in the decision or decision-making process under review, which merits a grant of leave (C v W [2015] NSWSC 1774, [44]; Collins v Urban [2014] NSWCATAP 17, [82]-[84]).
Leave to appeal on this ground is refused.
[13]
Unfairness ground
The appellant submitted in written and oral submissions that at the 2019 review hearings, the Tribunal did not properly raise with ZOC the financial cost of revoking the appellant's appointment and replacing her with the NSW Trustee and Guardian. Nor was any reference made in the Reasons for Decision on 13 September 2019 to the Tribunal having regard to that additional cost in arriving at its decision. According to the appellant, ZOC would experience a significant financial burden as a consequence of the decision to revoke the appellant's appointment and appoint the NSW Trustee and Guardian. Given that there was no evidence that the appellant had misappropriated any funds or had acted contrary to any directions by the NSW Trustee and Guardian, the prospect of incurring significant fees should have been considered by the Tribunal and ZOC's views on that issue should have been ascertained.
[14]
Consideration
The Tribunal's reasoning in relation to the issue of who to appoint as ZOC's financial manager is set out at [67]-[87] of the 13 September 2019 Reasons for Decision. The Tribunal had already determined that the appellant's appointment as financial manager should be revoked. It proceeded to consider the suitability of the daughter and the daughter-in-law to be appointed.
For the reasons outlined at [75]-[85], the Tribunal concluded (at [86]) that it was not satisfied that they were suitable persons to appoint as ZOC's financial managers and also that "to appoint [the daughter and daughter-in-law] would not ameliorate the conflict in [ZOC's family], which is causing her distress".
The Tribunal then stated (at [87]) as follows:
There was no other person proposed. The Tribunal decided to appoint the NSW Trustee and Guardian because there is no suitable private person and because the Tribunal believes that this will be in [ZOC]'s best interests as there are decisions to be made about [ZOC]'s properties and the use of her assets which would, in all probability, further inflame family dispute in the absence of an independent financial manager.
Given its findings about the appellant, the daughter and daughter-in-law and in the absence of any other person seeking to be appointed as ZOC's private financial manager, the Tribunal was left with no option but to appoint the NSW Trustee and Guardian. We note from the transcript that the issue of costs arising from the potential appointment of the NSW Trustee and Guardian was raised at the hearing by one of ZOC's family members (Transcript, p 44, [Mr Y]). This did not involve a detailed discussion and, from the transcript, it appears that the Tribunal did not raise with ZOC the costs associated with direct management by the NSW Trustee and Guardian. However, even if ZOC had been provided with an opportunity to provide views about the prospective appointment of the NSW Trustee and Guardian, had knowledge of the costs associated with such an appointment and had objected, it is difficult to see what other course of action was open to the Tribunal given its findings that there was no other suitable person to be appointed as a private financial manager.
In any event, ZOC did not appeal the Tribunal's decision. Nor did the daughter or daughter-in-law. It is not a matter for the appellant to allege unfairness for ZOC by having the NSW Trustee and Guardian appointed as her financial manager.
We conclude that there was no question or principle or policy raised, or manifest error in the decision or decision-making process under review, which merits a grant of leave (C v W [2015] NSWSC 1774, [44]; Collins v Urban [2014] NSWCATAP 17, [82]-[84]).
Leave to appeal on this ground is refused.
[15]
Undue influence and coercion ground
The appellant argues that the Tribunal did not take proper account of evidence that the views expressed by ZOC about the appellant were the result of the undue influence and coercion by the daughter and daughter-in-law. The appellant asserted that in considering the weight to be given to the views expressed by ZOC the Tribunal should have had greater regard to the following matters:
ZOC had been diagnosed with dementia
Numerous allegations of impropriety against the appellant were made by the daughter and daughter-in-law, none of which were found to be established by the Tribunal
ZOC repeated these allegations at the 2019 review hearings but when asked to particularise them was unable to do so
The daughter and daughter-in-law had significant involvement with ZOC after the appointment of the appellant as ZOC's private financial manager
The daughter had arranged for ZOC to make an enduring power of attorney and new will that benefited the daughter
[16]
Consideration
A review of the transcript of proceedings before the Tribunal indicates that the Tribunal was clearly on notice of the appellant's argument that ZOC's views about the appellant's ongoing role as private financial manager were the consequence of the influence of the daughter and daughter-in-law on ZOC.
That the Tribunal was cognisant of these matters is evident in its reasoning not to appoint the daughter and daughter-in-law as ZOC's private financial managers. This includes, but is not limited to, references the evidence at the 2019 review hearings that ZOC's wish to have the daughter and daughter-in-law appointed to manage her affairs were in "conflict… with her previously long held views" ([76], [84]-[85]); action taken by the daughter that led to ZOC in early 2019 revoking existing enduring documents and making a new enduring power of attorney with the daughter and daughter-in-law appointed as decision makers despite the existence of the financial management order made on 28 September 2018 and other material that raised doubt about ZOC's capacity to make such documents ([78]-[83]); and ZOC's inability to recall at the hearing on 13 September 2019 that she had signed those documents or what the documents were ([81]).
In its reasoning pertaining to the revocation of the appellant's appointment as financial manager, the Tribunal can be inferred as acknowledging ZOC's general vulnerability in noting that the appellant "has had a long history of caring for ZOC in circumstances where [the daughter] has been estranged from ZOC for many years" ([65]) and acknowledging that [ZOC's] current views may be influenced by her cognitive decline and may be inconsistent with long held views" ([66]). The Tribunal described the "fact that the current arrangements are currently casing her to stress" as "a most significant factor" ([66]).
Taking into account the findings both in relation to the revocation of the appellant's appointment as the private financial manager and the reasons for not appointing the daughter and daughter-in-law as ZOC's financial managers and reading the Tribunals' Reasons for Decision as a whole, we do not accept the appellant's submission that the Tribunal gave insufficient weight to the assertions put by the appellant that ZOC's views may have been the result of influence by others.
Noting that the Tribunal appears to have taken only relevant issues into account in the exercise of its discretion to revoke the appellant's appointment, and weighed those issues to reach a conclusion that was clearly open to it, we are not satisfied that is appropriate to give leave to appeal on this ground.
We conclude that there was no question or principle or policy raised, or manifest error in the decision or decision making process under review, which merits a grant of leave (C v W [2015] NSWSC 1774, [44]; Collins v Urban [2014] NSWCATAP 17, [82]-[84]).
[17]
Orders
Leave to appeal is refused.
The appeal is dismissed.
[18]
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: 30 June 2020
Given the principles set out in s 4 of the Act, it was open to the Tribunal to have regard to the distress felt by ZOC as a result of the appellant's appointment as financial manager, whatever the factual basis of that distress may be.
We conclude that there was no question or principle or policy raised, or manifest error in the decision or decision making process under review, which merits a grant of leave (C v W [2015] NSWSC 1774, [44]; Collins v Urban [2014] NSWCATAP 17, [82]-[84]).