Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZXA v ZXB [2022] NSWCATAP 97 Hearing dates: 11 March 2022 Date of orders: 31 March 2022 Decision date: 31 March 2022 Jurisdiction: Appeal Panel Before: K Ransome, Senior Member (Legal) R Booby, Senior Member (Legal) S Johnston, General Member (Community) Decision: 1. Leave to appeal refused. 2. Appeal dismissed. Catchwords: APPEAL – Guardianship – appeal from decision appointing NSW Trustee & Guardian as financial manager – whether applicant for order had standing – whether decision made without evidence – whether decision against the weight of evidence or failed to take into account relevant considerations – no error – appeal dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 Guardianship Act 1987 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: ZXA (Appellant) ZXB (First Respondent) ZXC (Second Respondent) NSW Trustee & Guardian (Third Respondent) Representation: Solicitor: P Mulherin (Appointed Separate Representative) (Appellant) First Respondent (self-represented) Second Respondent (self-represented) Third Respondent (by her officer) File Number(s): 2021/00343915 Publication restriction: Decisions of the Appeal Panel in respect of orders of the Guardianship Division of the Tribunal have been anonymized to remove any information that may identify any private person involved in the Tribunal's proceedings. The publication of the name of any of the parties or other people referred to in this decision other than the NSW Trustee and Guardian, including the publication of any information or other material that identifies them or is likely to lead to their identification, is prohibited: Civil and Administrative Tribunal Act 2013, section 65. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: N/A Date of Decision: 26 October 2021 Before: J Moir, Senior Member (Legal) S E Taylor, Senior Member (Professional) P J McGirr, General Member (Community) File Number(s): 2021/00115261 REASONS FOR DECISION 1. This is an appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW)(NCAT Act) from a decision of the Guardianship Division of the Tribunal made on 26 October 2021 in which the Tribunal made a financial management order appointing the NSW Trustee and Guardian to manage the estate of ZXA. 2. ZXA appeals from the decision of the Tribunal. For the reasons which follow, we have refused leave to appeal and dismissed the appeal. Background 1. ZXA owned a relocatable home in a relocatable home village for the over 50's in Northern NSW. She lived there until she entered an aged care facility nearby in January 2020 for respite following a period in hospital. In early February 2020 ZXA became a permanent resident of the facility and has lived there since that time. 2. In April 2021 the Care Manager of the facility, ZXB, made an application to the Tribunal seeking the appointment of a financial manager primarily on the basis that ZXA's aged care fees were in arrears and payments were irregular and insufficient. It was stated that the facility had made several attempts to discuss the situation with ZXA's daughter, ZXC, who informally managed her mother's money but the matter was not resolved. In the application it was also stated that ZXA had no access to her own funds and was at risk of financial abuse. 3. The matter came before the Tribunal on 22 June 2021 and was adjourned with directions made for the parties to provide further evidence, including in relation to ZXA's assessed rate of pension and aged care fees and details concerning the sale of her relocatable home. The Tribunal was advised that the relocatable home needed to be sold but required repairs. The Tribunal noted that further information was required to assist it to decide whether appointment of a financial manager was necessary or in ZXA's best interests, if she was to be found incapable of managing her own financial affairs. 4. The matter came back before the Tribunal in August 2021 at which time it was anticipated that the relocatable home would be sold as ZXC had carried out repairs. The sale would be used to pay off debts and allow ZXA to make a decision about where she might live. Further time was also allowed for ZXA and ZXC to comply with the directions that had been made in August 2021. 5. At the next hearing in October 2021, the property had not been sold, although ZXC advised there was an interested buyer, no further payments had been made to the aged care facility and the fees were still in arrears. ZXA and ZXC had not complied with the earlier directions made by the Tribunal. ZXC advised that her mother's pension had been used to pay for the work on the relocatable home and the site fees at the relocatable village. She said she had not had time to obtain relevant information about her mother's rate of pension or aged care fees. 6. In its reasons for decision, the Tribunal noted that neither party had provided any medical evidence in relation to ZXA's physical health or cognition despite this having been requested in June and August 2021. The Tribunal noted that ZXA's financial circumstances had some complexity. It found that ZXA had been unable to take any steps for herself to address her accruing debt, her inadequate Centrelink payments or seemingly excessive aged care fee assessment. This task had fallen to her daughter to resolve and the Tribunal was satisfied that this was because ZXA was not able to make and implement decisions about her own property, capital and income in a reasonable, rational and orderly way. On that basis, the Tribunal was satisfied that ZXA was at least partially incapable of managing her own financial affairs. 7. The Tribunal then turned to whether there was a need for a financial management order to be made and whether it was in ZXA's best interests for a financial manager to be appointed. The Tribunal noted that informal means of assisting ZXA with the management of her financial affairs had not been sufficient to resolve the outstanding matters of her aged care assessment, rate of pension, aged care debt, outgoings on her relocatable home and the sale of that home. Despite the previous hearings and directions no evidence had been submitted in relation to ZXA's financial position or attempts made to regularise her position with Centrelink. The Tribunal expressed concern that ZXA was experiencing some disadvantage as informal means had been unable to regularise her position. 8. The Tribunal was therefore satisfied that it was no longer in ZXA's best interests to rely on this informal arrangement in management of her financial affairs and that there was a need to appoint someone to manage them. The Tribunal appointed the NSW Trustee and Guardian as financial manager for ZXA. The Tribunal also decided that the order is to be reviewed within 12 months. The Appeal 1. ZXA appeals against the Tribunal's decision. ZXA was assisted by a Separate Representative at the hearing of the appeal. A summary of the grounds of appeal as we understand them from the Notice of Appeal and the submissions made at the appeal hearing is as follows: 1. The Tribunal erred in determining that ZXB had standing under s 25I of the Guardianship Act 1987 (NSW) (the Guardianship Act) to bring the application; 2. The finding of the Tribunal that ZXA is not capable of managing her affairs was not based on any cogent evidence; 3. The Tribunal erred in finding that there was a need and it was in ZXA's best interests to appoint a financial manager; and 4. The Tribunal erred in appointing the NSW Trustee and Guardian as financial manager rather than ZXC and failed to take into account the general principles in s 4 of the Guardianship Act. Relevant legal principles 1. Section 80(2)(b) of the NCAT Act provides that an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. In general terms, leave to appeal will not be granted unless an appellant can demonstrate a substantial miscarriage of justice. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [84] that 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 be 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 an 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. Issues 1. The issues to be determined are: 1. Has ZXA established that the decision of the Tribunal to appoint the NSW Trustee & Guardian as financial manager for ZXA involved an error or errors of law? 2. Alternatively, has ZXA established that leave to appeal should be granted? 3. If the appeal is allowed, what orders should we make? Consideration 1. Before making a decision to appoint a financial manager for ZXA, the Tribunal had to be satisfied, in accordance with s 25G of the Guardianship Act, that: 1. ZXA is not capable of managing her affairs, and 2. there is a need for another person to manage those affairs on her behalf, and 3. it is in ZXA's best interests that the order be made. 1. When deciding whether to make a financial management order, the Tribunal is under a duty to observe the general principles set out in s 4 of the Guardianship Act (the general principles). These are: 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. 1. We will deal with each of the grounds of appeal in turn. Did ZXB have standing to make the application to the Tribunal? 1. An application to the Tribunal for a financial management order may be made by the NSW Trustee, the person who is the subject of the application, or any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person who is the subject of the application (s 25I Guardianship Act). ZXA submits that ZXB did not have standing to make the application. As we understand it, ZXA submits that ZXB's interest in the application was purely financial and was solely concerned with the fees owed by ZXA to the aged care facility where ZXB is the Care Manager. As a result, the Tribunal applied a wrong principle or asked itself the wrong question thus making an error of law. 2. In its reasons the Tribunal did not directly address the question of the standing of ZXB to make the application. It is implicit in the reasoning, however, that the Tribunal accepted that ZXB had standing. As no issue appears to have been raised at the Tribunal stage, it is not unusual for the matter of standing not to be explicitly referred to in the Tribunal's reasons for decision and we do not consider there was any error in the Tribunal's approach in not directly addressing the issue in its decision. 3. While the non-payment of fees over a lengthy period appears to have been the catalyst for the making of the application, it is clear from the application form submitted to the Tribunal by ZXB on 26 April 2021, that she expressed concern that ZXA had no access to her own money and that she was at risk of financial abuse. Evidence submitted by ZXB in the proceedings also included correspondence sent by the aged care facility to ZXC in which issues of possible financial abuse were raised. In particular a letter to ZXC from the facility manager dated 7 April 2021 squarely raises concerns of financial abuse. These matters demonstrate that, at the time of making the application, ZXB was concerned that ZXA was disadvantaged in the way her finances were being managed informally. 4. We are satisfied that, on the basis of the evidence before it, the Tribunal made no error in finding that ZXB had standing to bring the application in that she had a genuine concern for the welfare of ZXA. The fact that the Tribunal ultimately found that there was no evidence of financial abuse (see its decision of 22 June 2021), does not detract from its conclusion that ZXB had standing to make the application. Did the Tribunal err in finding ZXA is not capable of managing her affairs? 1. ZXA submits that there was no evidence before the Tribunal upon which it could make a finding that ZXA was not capable of managing her affairs. It is well established that a tribunal which decides a question of fact when there is no evidence in support of the finding makes an error of law (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [91]). However, we do not consider that the decision made by the Tribunal was made without evidence. 2. The Separate Representative on behalf of ZXA stated that in his discussions with ZXA she was able to give a good amount of detail about her financial circumstances, including details of her pension and the sale of her relocatable home. He queried the basis upon which an assessment that she lacked capacity to manage her finances had been made. He noted that an Aged Care Assessment Team (ACAT) Assessment included in the documents before the Tribunal which had been undertaken in January 2020 and which referred to "memory impairment" was undertaken at a time she was recovering from pneumonia and was not well. 3. As noted above, it is accepted that there was no evidence before the Tribunal from medical or health professionals providing an opinion on ZXA's capability to manage her own affairs. The Tribunal's reasons set out the following evidence: * The fees to the aged care facility were in arrears with payments not being made regularly and consistently falling short of what is owed. * ZXA was aware of the arrears but was unable to explain the reason for them; she was unsure of her rate of pension but was aware rent assistance had ceased. * The assessment of ZXA's aged care fees appears too high given her financial circumstances; no progress had been made in addressing ZXA's rate of pension or assessed aged care fees between the first hearing in June 2021 and the final hearing in October 2021. * ZXB expressed a view that ZXA would not be able to understand the more complex financial matters such as payment of a refundable accommodation deposit (RAD). * The accommodation agreement for the aged care facility had been signed by ZXC on ZXA's behalf. * ZXA was dependent on ZXC to try address financial issues and stated she could not have done things without ZXC. * ZXC had been unable to address issues relating to ZXA's pension or aged care fees. * Neither ZXA nor ZXC had thought to negotiate with the owners of the village where ZXA's relocatable home is located for a rent reduction while her home was not occupied and being prepared for sale. 1. The Tribunal's reasons accurately set out the test for determining a person's capability to manage his or her affairs. The Tribunal referred to P v NSW Trustee and Guardian [2015] NSWSC 579 where at [307]–[308] the test was expressed as being: 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? … [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. 1. The Tribunal went on to state that, in considering whether the person is "able" in this sense, consideration may be given to: * past and present experience as a predictor of the future course of events; * support systems available to the person; and * the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests. 1. The Tribunal also noted that the relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86). 2. The Tribunal's findings on ZXA's capability are set out at [26] of its reasons for decision. The Tribunal noted that ZXA was able to express her views and wishes to a certain extent but noted that, throughout the period she had been at the aged care facility, she had been dependent on her daughter to be responsible for all financial matters. The Tribunal records that ZXA had acknowledged that she would not have been able to manage without her daughter's involvement. The Tribunal went on to state that it was apparent that ZXA had been unable to take any steps for herself to address her accruing debt, or her inadequate Centrelink payments or seemingly excessive aged care fee assessment. These were matters that ZXA could have attended to from the aged care facility but that it appeared she had not been able to do these things and it had therefore fallen to ZXC to try and resolve them. The Tribunal was satisfied that this was because ZXA is not able to make and implement decisions about her own property, capital and income in a reasonable, rational and orderly way. The Tribunal was therefore satisfied that ZXA is at least partially incapable of managing her own financial affairs. 3. In P v NSW Trustee and Guardian Lindsay J makes clear that it is not necessary to find that a person has a disability before a finding that the person is not capable of managing their own affairs. The focus is instead on the functionality of a person's management capacity and the question as to whether a person is capable of managing his or her affairs will require a judgment call, based on a close examination of the facts of the particular case, as well as the relevant legislation. 4. It is apparent from the Tribunal's reasons that its assessment of ZXA's capability focussed on her ability to make decisions and to manage her finances. On the evidence before the Tribunal it was reasonably open for the Tribunal to conclude that ZXA had been unable to resolve her financial issues with Centrelink and her aged care fees, including her aged care assessment, and was reliant upon others, particularly her daughter, to do so. 5. As noted above, the relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future. We note the comments of ZXA's Separate Representative as to ZXA's current understanding of her financial circumstances. ZXC also states that her mother is capable of managing her money. However, at the time of the hearing before the Tribunal there was no evidence that, without assistance, ZXA was capable of managing the complexity of her situation at that time or that she would have been able to do so in the reasonably foreseeable future. Indeed, many months had elapsed without the issues being resolved and ZXA herself had told the Tribunal she was reliant upon ZXC for assistance. 6. We find no error in the Tribunal's approach and are satisfied that there was sufficient cogent evidence before the Tribunal for it to reach the conclusion that ZXA was at least partially incapable of managing her own affairs. Did the Tribunal err in finding that here was a need and it was in ZXA's best interests for a financial manager to be appointed? 1. This ground was raised in the Notice of Appeal and at the hearing. The argument appears to be put on two bases: 1. That the Tribunal was misled by ZXB as to the underlying facts; and 2. The decision was against the weight of the evidence then before the Tribunal. 1. Neither of these matters involve an error of law and leave is therefore required to appeal on these grounds. 2. These matters, as expanded upon in the Notice of Appeal and at the hearing, are that ZXA owed no money to the aged care facility shortly before the application for the appointment of a financial manager was made by ZXB; at the second hearing in August 2021 ZXB said that, if the relocatable home was sold, she would withdraw the application but reneged on this at the 26 October 2021 hearing even though a contract to sell the home was entered into a few days after the hearing; and, there was always a plan in place to repair and then sell the relocatable home, pay the arrears and have ZXA's assets reassessed by Centrelink. 3. We are not satisfied that leave to appeal should be granted. There is no issue of principle or of public importance involved in the appeal. We are also not satisfied that there has been any error which would mean it would be unjust to allow a finding to stand or that there is any factual error of the kind envisaged by the Appeal Panel in Collins v Urban. 4. If there were any inaccuracies in the material submitted at the hearing by ZXB, the time to deal with that was at the time of the hearing. In any event, the evidence clearly showed an inability on the part of ZXA, with assistance, to manage her financial situation at the time. 5. There was clearly evidence before the Tribunal that the payment of fees to the aged care facility was irregular and often late leading to a substantial debt. There had been a payment of over $11,000 in January 2021 which had been made by Centrelink. This appears to have been a Covid-19 related hardship payment made by Centrelink. The arrears continued to accrue after this date and at the time of the October hearing were well over $13,000. Despite being given two adjournments and opportunities to regularise ZXA's position, the situation remained the same up until the hearing in October 2021. 6. As the Tribunal made plain in its reasons for decision, informal means to assist ZXA with the management of her financial affairs had not been sufficient, as at the date of the hearing, to resolve the outstanding matters of her aged care assessment, rate of pension, aged care debt, the sale of her relocatable home and the consequent obligation to cover outgoings on that property. While there may have been a plan to address these issues, the plan had not come to fruition and it appeared that ZXA was suffering some disadvantage as a result. We are satisfied that the Tribunal's findings were clearly open to it on the evidence before it and its findings were not unjust or clearly mistaken. 7. We note that the Tribunal acknowledged that once the complex issues associated with the sale of the relocatable home, the payment of her debts, any reassessment of aged care fees and rate of pension and investment of the proceeds of the sale were resolved, ZXA's financial affairs may again be able to be appropriately manage without the formality of a financial management. To that end, the Tribunal directed that the order be reviewed within 12 months. We also note that it is open to ZXA to approach the Tribunal before the expiry of the 12 month period to have the order reviewed on the basis either that ZXA is capable of managing her own affairs or there is no longer a need for any financial management order. Did the Tribunal err in appointing the NSW Trustee and Guardian as financial manager? 1. The Separate Representative submitted that, if there was a need for a financial manager to be appointed, ZXC should have been appointed as financial manager for ZXA. The submissions referred to the fact that ZXC had informally managed her mother's finances for some time and that ZXA valued her independence. It was submitted that the least restrictive option would have been to appoint ZXC which would also have accorded with the wishes of ZXA. In that context, the submissions referred to principle (d) set out in s 4 of the Guardianship Act which provides that the views of the person for whom an order might be made should be taken into consideration. 2. This ground of appeal appears to be that the Tribunal did not take into account a relevant consideration and thus made an error law. 3. The Tribunal's reasons for decision state that ZXC did not suggest that she be appointed as financial manager. It is difficult to understand how the Tribunal could have committed any error in circumstances where ZXC was not wishing to be appointed. In any event, the Tribunal went on to consider whether, if ZXC had proposed that she be appointed, ZXC was a suitable appointee. The Tribunal did not consider that she was suitable as mere formalisation of the existing informal arrangement would not have assisted in resolving outstanding matters. The appeal has not raised any issues with this finding but, for completeness sake, we observe that we can see no error in the Tribunal's approach when it stated that it was satisfied there was a need for a financial manager who had a greater familiarity with the various bureaucratic processes involved, as well as the ability to communicate more constructively and manage ZXA's affairs more objectively. Conclusions 1. ZXA has not demonstrated that the Tribunal fell into legal error or that there are grounds upon which leave should be granted. There was no real possibility or fair chance of a different result on the state of the evidence before the Tribunal. 2. None of the grounds of appeal have been established. Leave to appeal is therefore refused and the appeal is dismissed. Orders 1. We make the following orders: 1. Leave to appeal refused. 2. Appeal dismissed. ********** 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: 31 March 2022