Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DYH v NSW Trustee & Guardian, FFQ & FFZ [2022] NSWCATAD 297 Hearing dates: 24 February 2022 Date of orders: 5 September 2022 Decision date: 05 September 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: S Leal, Senior Member Decision: The decision of the NSW Trustee and Guardian dated 10 November 2021 is affirmed. Catchwords: ADMINISTRATIVE LAW – NSW Trustee and Guardian – Financial management order - Interests and welfare of protected person – Whether applicant is 'an affected person' – Alleged misappropriation of protected person's funds - review under NSW Trustee and Guardian Act 2009 Legislation Cited: Administrative Decisions Review Act 1997 Guardianship Act 1987 NSW Trustee and Guardian Act 2009 NSW Trustee and Guardian Regulation 2017 Cases Cited: McDonald v Guardianship Administration Board [1993] 1 VR 521 Texts Cited: Nil Category: Principal judgment Parties: DYH (Applicant) NSW Trustee and Guardian (First Respondent) FFQ (Second Respondent) FFZ (Third Respondent) Representation: Solicitors: Applicant (Self-represented) NSW Trustee and Guardian (First Respondent) Second Respondent (Self-represented) Third Respondent (Self-represented) File Number(s): 2021/00302041 Publication restriction: The publication or broadcast of the name of DYH, DIV, FFQ and FFZ and the name of any individual officers acting for the NSWTG is prohibited (s64(1)(a) of the Civil and Administrative Tribunal Act 2013) REASONS FOR DECISION Summary 1. The NSW Trustee and Guardian is the financial manager of an elderly woman who, to preserve her privacy, I will refer to simply as 'the mother.' Her daughter and grandson requested the NSW Trustee and Guardian to seek recovery of monies allegedly misappropriated from the mother. When the NSW Trustee and Guardian refused to do so, the daughter and grandson applied to this tribunal to review the decision. 2. At the commencement of the hearing in this matter, which was held by telephone, I granted the grandson's request to be removed as a party to these proceedings. Soon afterwards, the daughter, who I will refer to as 'the applicant', advised that she no longer wished to take part in the hearing and asked the tribunal to instead determine the matter on the papers. The NSW Trustee & Guardian did not oppose the applicant's request. Accordingly, I have determined the matter on the written material before me. For the reasons set out below, I have affirmed the decision of the NSW Trustee to take no further action regarding the applicant's allegations of misappropriation of her mother's money. Background 1. On 29 May 2019, the Guardianship Division of this Tribunal ordered that the NSW Trustee and Guardian manage the mother's financial affairs. A guardianship order, also made on 29 May 2019 and affirmed on 15 December 2020, appointed the Public Guardian to make decisions for the mother regarding access, accommodation, health care, medical/dental consent, services and legal services. 2. The applicant's sister, who I will call 'the sister' is the mother's carer. The mother and the grandson are tenants in common of the property where the mother currently resides together with her son, who I will refer to as 'the brother'. At the time of these proceedings, the property was being listed for sale. The property was previously owned by the mother and her husband who is the father of the couple's son and two daughters and who has lived overseas for many years. 3. The mother has two sources of income: the age pension in Australia and a small overseas spousal pension she has been receiving since 2004. The mother holds, in her name, an overseas bank account into which her overseas pension is deposited. She also has an Australian savings account. Until 2018, the mother also held a credit card account in her name and until 2016, she had a second Australian bank account. 4. During the 2019 hearing before the Guardianship Division, the applicant claimed that her sister and brother had been financially exploiting their mother by misappropriating funds from her bank accounts. On 13 October 2021, the NSW Trustee and Guardian made a decision to take no further action in relation to these allegations of misappropriation. In making this decision, the NSW Trustee and Guardian accepted the explanations and receipts provided by the sister in relation to the alleged misappropriation, finding that the receipts were consistent with the queried withdrawals and that there was no evidence of misappropriation. 5. This decision was affirmed by internal review on 10 November 2021 and the following reasons provided: 1. No evidence has been provided, or has been found, to confirm that there was misappropriation from the [Australian savings account] or the [overseas account] by [the sister] or any other person; 2. The NSW Trustee has carried out reasonable investigations on [the mother's accounts] and there is no evidence that further investigation would prove to be in [her] best interests; 3. [The mother] had management of her own accounts until October 2018 when she appointed her son as enduring power of attorney. In the period prior to and after the power of attorney it appears from all the available evidence that the funds in the bank accounts were used for [the mother's needs], both in transactions she independently managed, and in those where assistance was provided by the brother and sister. 1. On 25 October 2021, the daughter and grandson lodged an application for review to this Tribunal. The mother, sister and brother were subsequently joined as parties to the proceedings and on 24 February 2022, a hearing by telephone was commenced. In attendance were the legal representative for the NSW Trustee, the applicant, the sister and the grandson. 2. On the evidence before me, I am satisfied that the mother, who did not attend the hearing, has advanced dementia and would not have been able to assist in the proceedings. Although the Tribunal had requested a guardian ad litem for the mother, this application was refused by the Legal Aid Commission. Accordingly, the mother did not have separate representation at these proceedings. 3. During the proceedings, the applicant became agitated and requested that the hearing be ended and the matter instead be heard on the papers. The other parties did not oppose the applicant's request. On this basis, the hearing was concluded and I have made my decision on the basis of the written material before me. 4. The applicant seeks the following: 1. That the Tribunal make orders to return the money unaccounted for and allegedly misappropriated by the sister from the formerly linked Australian account, to be returned to the mother's estate; 2. That money withdrawn from the Australian savings account be returned to the mother's estate; 3. That the $8000 credit card debt be returned to the mother's estate; 4. That the Tribunal make orders that all the contents, furniture, other valuable items, including jewellery belonging to the mother be returned to her estate. 1. In written correspondence to the tribunal, the applicant foreshadowed that, at hearing, she would be calling the relevant bank teller to provide evidence of how the sister 'had access to withdraw funds, and other activities which are not in the nature of our mother's interest, [and] of the substantial withdrawals, which are incorrect and need to be returned to her two accounts.' 2. As the hearing was dispensed with at the applicant's request, no oral evidence was given, including the bank teller the applicant had foreshadowed calling. No statement from the bank teller is contained on file. Relevant Legal Matters 1. As set out above, on 29 May 2019, the Guardianship Division found that the mother was incapable of managing her affairs. As such there was a need for another person to manage her affairs. A financial management order was made pursuant to the provisions of Part 3A of the Guardianship Act 1987 and the applicant's estate was committed to management by the NSW Trustee and Guardian. 2. Chapter 4 of the NSW Trustee and Guardian Act 2009 is concerned with 'management functions relating to persons incapable of managing their affairs.' Under s 56(a) of the NSW Trustee and Guardian Act, the NSW Trustee may exercise all the functions necessary and incidental to management and care of the estate of the managed person. 3. In managing a person's estate, the NSW Trustee is empowered to exercise a series of powers under s16 of the NSW Trustee and Guardian Act, which include the power to bring and defend actions, suits and other proceedings as well as to do or omit all things, and execute all documents, necessary carry into effect the functions of the NSW Trustee. (ss16(s) and ss16(y)) 4. On this basis, I am satisfied that it is within the power of the NSW Trustee and Guardian to make a decision in relation to the recovery of monies allegedly misappropriated from the mother. 5. In reviewing the decision, the Tribunal 'stands in the shoes' of the NSW Trustee and Guardian and is required to make the 'correct and preferable decision' having regard to any relevant factual material and any applicable written or unwritten law. The Tribunal may set aside, vary or affirm a decision before it. (s63 of the Administrative Decisions Review Act 1997). 6. The review is to be conducted 'without any presumption as to the correctness of the decision': McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530. On review the Tribunal may exercise all of the functions vested in the NSW Trustee and Guardian. 7. The NSW Trustee and Guardian and, on review, this tribunal must give paramount consideration to the interests of the protected person who, in this case, is the mother. In accordance with section 39 of the NSW Trustee and Guardian Act, the following principles must be observed: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation. 1. Under section 62 of the NSW Trustee and Guardian Act, an affected person may apply to this tribunal for the administrative review of a decision of the NSW Trustee and Guardian that is made in connection with the exercise of the NSW Trustee and Guardian's functions under this Division and is of a class of decision prescribed by the regulations for the purposes of s62 of the Act. Regulation 45 of the NSW Trustee and Guardian Regulation prescribes all decisions made by the NSW Trustee in connection with the exercise of its powers under the Act. 2. In addition to the managed person and his or her spouse, included in the definition of an affected person is any person whose interests are, in the opinion of this tribunal, adversely affected by the decision. 3. According to the NSW Trustee and Guardian, the applicant is not an affected person under s62 of the Act: The Applicants' interests in the decision are not evident. Neither of the Applicant's interests are adversely affected by the decision. The decision of NSW Trustee relates to the estate of [the mother] and any recovery of monies that may or may not be pursued is a matter for [the mother's estate] which will not have any impact on the affairs or estates of the Applicant. We invite the Tribunal to consider the legal right of the Applicants' to bring these proceedings in circumstances where their interests are not adversely affected by the decision of NSW Trustee to pursue the recovery of monies. NSW Trustees assert that the interests of the Applicants are not adversely affected in the requisite sense as set out in section 62 of the [NSW Trustee and Guardian Act.] 1. It is not disputed that the applicant stands to benefit from the mother's estate in the event of her death. As a future beneficiary of her mother's estate, I am satisfied that the applicant meets the definition of an affected person for the purposes of s 62 of the NSW Trustee and Guardian Act. On that basis, she is entitled to apply to this tribunal to review the decision by the NSW Trustee and Guardian to take no further action regarding the applicant's allegations of misappropriation of her mother's money. Issues 1. The following issues arise in this matter and are considered below: 1. When did the mother lose the capacity to manage her finances? 2. Do the statements from the mother's savings account show a history of reasonable expenditure for the mother? Were the large cash withdrawals from the mother's savings account used to benefit her? 3. Were the funds in the mother's overseas account dealt with suspiciously or improperly? 4. Were funds misappropriated from the mother's credit card account? 5. Were jewellery and other valuables stolen by the brother and sister? When did the mother lose the capacity to manage her finances? 1. The mother had travelled overseas for some months in 2018 and the sister and brother first noticed a decline in their mother's cognitive abilities on her return in September 2018. By contrast, it is the applicant's view that by 2016, her mother had already begun 'to lose mental capacity and showed signs of memory loss and could no longer understand her finances.' 2. When, however, the mother sought to appoint her son as her enduring power of attorney in October 2018, the solicitor executing the document was satisfied that she appeared to understand the effect of the instrument. Furthermore, in their decision on 19 May 2019, the members of the Guardianship Division of this tribunal were not satisfied that the mother had lacked capacity to execute the power of attorney. 3. In his report dated 8 March 2018, the geriatrician, Dr Cordato, agreed that the mother had the capacity both to understand her financial affairs and the concepts relating to enduring power of attorney: [I] examined her understanding of how her financial affairs are currently arranged as well as her ability to understand the concepts of Enduring Power of Attorney and Guardianship. Based on these discussions as well as my assessment of her cognition, it is my opinion that [the mother] presently retains capacity to understand the concepts relating to these issues, although in the somewhat simple fashion. It is my suspicion that this does not differ greatly from her premorbid abilities to understand these issues although of course I cannot be certain of this. 1. By 22 May 2019, however, when Dr Cordato prepared a subsequent report for the mother he found, on the basis of his own assessments and the mother's neuropsychological report, that she now had an 'impaired capacity to make informed decision that are in her best interests about her financial affairs.' 2. I have given weight to the reports by Dr Cordato and the finding of the Guardianship Division and am satisfied that, despite evidence of some cognitive impairment, in October 2018 the mother remained both capable of managing her financial affairs and of understanding the effect of the enduring power of attorney she had granted her son. Do the statements from the mother's savings account show a history of reasonable expenditure for the mother? Were the large cash withdrawals from the mother's savings account used to benefit her? 1. It is the applicant's allegation that, between, March 2017 and January 2019, over $15000 was withdrawn from the mother's savings account for the sister and brother's personal gain. 2. Furthermore, it is the applicant's view that the weekly allowance of $250 provided to the mother by the NSW Trustee is excessive – having been raised from $100 per week at the sister's request - and is being used by the sister for her own personal gain. 3. According to the sister, who is her mother's carer: When mum was in control of her money, she would withdraw all her pension and spend it, however when my brother was Enduring Power of Attorney, he let it build up and only withdrew [it] when bills were needed to be paid. After [the NSW Trustee] took over, she was given an allowance of $250 a week to live on. I've managed this amount since the end of 2019. I buy her groceries, clothing, new small kitchen items, laundry and hygiene items, entertainment and gifting to birthdays, weddings she is invited to and I've still managed to save some for any emergencies. 1. According to the sister, $100 per week is not enough to meet these expenses, particularly as her mother likes to be social and entertain her friends and neighbours. 2. The mother's social nature and the care provided by the brother and sister are highlighted in the social work report prepared for the mother in 2019: [The mother] was mobile and continent and her son and daughter were able to assist with meals and medication management, as well as prompting for her shower and dressing..[She] also received visits from nearby friends and neighbours. 1. Similarly, during a hospital assessment on 15 October 2020, the mother emphasised that she 'enjoys spending the day going across to see neighbours or friends for coffee. She perseverated on this at different times during the interview, expressing her happiness at seeing her friends and neighbours.' 2. On the evidence before me, I do not accept that a weekly $250 allowance for the mother is too generous. Furthermore, there is no evidence before me to substantiate the applicant's allegation that the sister uses the mother's allowance for her own personal gain. Given that the applicant has not lived with her mother for some years, she is less well placed to accurately estimate her mother's weekly expenses than her sister, who is the mother's carer. 3. According to the applicant, her brother 'never paid rent all his life, never contributed to house bills, never supported his mother financially.' 4. It is, therefore, not in dispute that that the mother had always paid the house bills and supported herself financially. On this reasoning, any deductions for household expenses from the mother's savings account would be routine and expected rather than an indicator of financial misappropriation. 5. The following concerns were expressed, however, by the Guardianship Division in its decision on 29 May 2019 to appoint the NSW Trustee as financial manager to the mother's estate: The Tribunal considers that [the applicant] has raised legitimate concerns regarding her brother's management of [the mother's] estate…[The son] was unable to adequately explain or account for a number of large withdrawals from his mother's [Australian] account. 1. As set out above, the applicant's allegation is that over $15000 was misappropriated from the mother's savings account. In response to this allegation, the sister has provided receipts and detailed explanations to account for the relevant withdrawals. 2. This includes a cash withdrawal of $5200 by the mother at a time when she was still managing her own finances, money withdrawn to replace the carpet in her home and an overseas airline ticket. 3. Included in the receipts provided by the sister are those for the following household expenses: 4. fencing costs of approximately $700; 5. the purchase of a new refrigerator in 2017 for approximately $1000; 6. the purchase of a new stove in 2017 for approximately $2000; 7. the purchase of a new lounge in 2018 for approximately $1500; 8. television set up costs, locksmith costs and miscellaneous purchases totalling approximately $400; 9. television subscription agreement made in 2018 and costing approximately $500; 10. Receipts are also contained on file for utility payments for electricity, council rates and water rates. 11. On the evidence before me, I am satisfied that between 2017 and 2019, the mother's money was also used to pay: 1. council rates of approximately $2000 per annum; 2. electricity expenses of over $1000 per annum; 3. water rates of approximately $300 per annum. 1. I am similarly satisfied that the mother's money was used to pay for legal fees totalling approximately $4000. 2. Although the applicant accepts that the new refrigerator, sofa and stove were purchased for the mother's house, the airline ticket was purchased for her mother's travel and that legal fees were, in part, for the execution of the mother's power of attorney, it is the applicant's view that her mother 'would never have allowed a new sofa, refrigerator, oven or huge legal bill if she had mental capacity….we note that [the sister and brother] were generous with purchasing new items with their mother's money.' 3. In a statement prepared for these proceedings, the applicant's former partner shares the applicant's view that the mother should have been able to meet all her expenses from her pension. 4. The applicant believes that her mother 'has been financially exploited, put in financial despair and both [the sister] and [brother] continued to use her during the past 3 years for their own needs, all expenses paid by their mother…They have made no financial contributions even though they were both profiting from not paying rent, food, any other outgoings, bill, all paid by [the mother].' 5. According to the applicant: [My brother] has resided at the home most of his life making no financial or non-financial contributions to weekly expense, or assist with utility bills…In the best interest of my mother and her financial management, she needs to be protected from further money extortion, and her future interest regarding her finances and the ongoing costs of services and facilities. 1. Medical reports make it clear, however, that the son and daughter have provided, and continue to provide, substantial assistance to their mother who requires constant supervision. 2. In a social work report dated 27 May 2019, it is noted that the mother 'was mobile and continent and her son and daughter were able to assist with meals and medication management, as well as prompting for her shower and dressing..[She] also received visits from nearby friends and neighbours.' 3. On 16 November 2021, Dr Cordato assessed the mother as exhibiting 'significant cognitive impairment with severely impaired insight into her medical, functional, accommodation and financial matters. Based on my observations she is unable to make independent informed decisions regarding these matters. Regarding her functional needs, I believe she requires constant supervision and/or support to adequately attend to her functional needs.' 4. Given the assistance provided to the mother by the sister and the brother, which has allowed the mother to remain in the family home and be cared for there, I do not accept that, by allowing the mother to continue to pay for the household expenses, they have behaved in an exploitative way. 5. Furthermore, it is not disputed that the mother's house has required substantial maintenance. In a letter dated 21 June 2019, the applicant described the following problems with the house: plumbing issues, kitchen sink, inside and outside toilet, roof leaking in bedrooms, mould issues, concern for mum's health.' Given the maintenance and upkeep requirements for the house, I accept that it is reasonable for the mother's money to have been spent on items including new carpet, fencing, locksmith repairs and a new stove and refrigerator, 6. On the evidence before me and for the reasons set out above, I accept that the statements from the mother's savings account show a history of reasonable expenditure for the mother and that the large cash withdrawals from the mother's savings account were used to benefit her. Were the funds in the mother's overseas account dealt with suspiciously or improperly? 1. For over fifteen years, the mother has been in receipt of a small monthly overseas pension which is deposited into her overseas bank account. I accept the sister's evidence that, while still in control of her finances, whenever the mother required money, she would request that it be deposited into an Australian account at a bank at some distance from her house. For convenience, all transfers from the overseas bank account were, from 2013, deposited directly into the mother's savings account at a branch closer to the mother's house. 2. According to the sister, her mother last requested a transfer from the overseas account 'in early 2017 and nothing has been transferred since.' 3. Whilst the applicant asserts that the manager of the overseas bank assured her that the statements for the mother's account from 2013 to 2021 were being sent to the NSW Trustee and Guardian, I have received statements only for the period from 29 May 2019 to 12 July 2021, during which time there were no withdrawals from the mother's overseas account. In the course of these proceedings, the NSW Trustee and Guardian confirmed that no further statements have been provided by the overseas bank. 4. According to the Operations Officer for the bank where the mother has her savings account, 'there are no large withdrawal transactions inconsistent with the normal deposits of the [overseas] social security. In 2013, an amount of $5000 is withdrawn and in 2014, an amount of $4000 is withdrawn.' 5. According to the applicant's statement dated 31 January 2022: On speaking with the [overseas bank] directly both myself [and my father] ascertain that the withdrawals became consistent when [my sister] took over [our mother's] accounts. For the start of the deposits no withdrawals were being made, and then large substantial withdrawals were being made, without any supported documentation provided by [my sister]…The..documents provided by the trustee and [my sister] do not relate to the large withdrawals from the [Australian bank] connected to the [overseas bank]. 1. It is the applicant's submission that the wishes of her mother were that no money be touched from the overseas account which was to be used for the mother's funeral expenses and for her three grandchildren. 2. No passbook entries or proof of any withdrawal from the overseas account prior to 2019 are before me, despite efforts by the NSW Trustee and Guardian and the applicant to secure statements from the overseas bank itself. 3. Before me are two applications for the execution of payment in relation to the mother's overseas account, the first in 2013 and the second in 2014. Beside the line left for the applicant's signature, the mother's name is printed in handwriting. Although the applicant alleges that the mother's name was written by the sister, she has not provided any evidence to substantiate her allegation. 4. Furthermore, both applications are stamped and signed by the overseas relations manager for the relevant bank. 5. Also contained on file is a draft bank statement confirming the withdrawals in 2013 and 2014. At the top of the statement is the mother's name and address. An official bank statement shows further withdrawals for 2017. This statement is also addressed to the mother at her residential address. Also contained on file is a letter addressed to the mother at her home residence confirming the transfer of funds in March 2014 from the overseas bank to the mother's now closed Australian account. 6. Assuming the bank statements were sent to the mother, as per andard practice, the mother would have been aware of the withdrawals and in a position to take action should they have caused her concern. 7. For the reasons provided above, I am satisfied that the mother was capable of managing and did manage her own finances until October 2018. On this basis and in light of the evidence before me, I cannot be satisfied that any withdrawals from the overseas account between 2013 and 2018 were done without the mother's authorisation. Nor, on the evidence before me, can I be satisfied that the funds in the mother's overseas account were dealt with suspiciously or improperly. Were funds misappropriated from the mother's credit card account? 1. It is not in dispute that by 2018, a credit card debt of approximately $8000 had been accrued in the mother's name. It is also not in dispute that the debt was paid off in February 2018 after which, I am satisfied, a request was made to close the account. 2. In its decision of 19 May 2019 to appoint a financial manager to the mother's estate, the Guardianship Division expressed the concern that it was not clear how the mother 'managed to accumulate an $8000 credit card bill, although that has now been repaid.' 3. There is no evidence before me that someone other than the mother opened the credit card account, for which, by 2013, as confirmed by bank statements contained on file, there was already a debt of $4000 on the account. 4. A note by the sister stating '9/2/18- Paid $200 by ATM by mum with her money' is handwritten on the mother's credit card statement for 2 February 2018. I give some weight to this note, which I accept to be contemporaneous, as evidence that the mother was aware of the credit card account and had paid $200 towards the accrued debt. 5. For the reasons set out above, I am satisfied that the mother was in charge of her finances in 2013 and continued to manage her finances until October 2018. On this basis and on the evidence before me, I cannot be satisfied that the mother was unaware of the transactions made on her credit card account, statements for which were in her name and addressed to her home residence. 6. In her email dated 8 December 2021, the sister confirmed that her brother had paid off the mother's credit card with his own money. Although the applicant queries whether the brother had in fact used his own money to pay off the debt, she has provided no evidence in support of her assertion. Accordingly, I give no weight to this allegation. 7. I have considered the applicant's submission that: [t]he purchases of cosmetics, makeup and nail products, TAFE fees, car insurances, mobile phone purchases and all other transactions made on this credit card were not related to our mother nor have I even seen her use the card, [either for] online purchases or at a store. 1. I have also considered the concerns raised by the grandson that: [w]hat is in question reviewing the documents is that the credit card debit of $8000 incurred is [the sister's] personal costs, and/or [the brother's] insurance bills for his bike..care insurance for his [car], and other expenses related to [the sister's] side businesss…online cash sales, make up, nails, etc..I cannot see any reason for my grandmother's extravagant spending since 2016, needing to overdraw and use excessive amounts of money without any supported documents to confirm where the money was being spent and the appropriate time period…My grandmother was stern with her accounts and did not need extra money. Her annual expenses were being met, for over 40 years, and her circumstances had not changed to support such extravagant outgoings with no evidence or facts to justify any additional costs.'' 1. I accept that the international transaction for cosmetics totalling close to $400 is unlikely to have been executed by an elderly woman apparently unfamiliar with internet transactions. There is, however, no evidence before me that the mother did not authorise this and the other transactions. While I accept that some payments seem to be for car insurance even though the mother did not have a car, it is not disputed that the mother has been reliant on the sister for her transportation. For the mother's credit card to have been used to pay for the sister's car insurance is not, in my view, evidence of exploitation. 2. It is not clear from the transactions relevant to the sister's business whether these were for products purchased by the mother for her use or to be used by others or whether the purchases – which I accept were on eight occasions for amounts in excess of $400 - were to be used by the sister for her business. Notwithstanding this lack of clarification, I am satisfied that the purchases took place at a time when, it is agreed, the mother was managing her finances. On this basis I cannot be satisfied that the mother did not authorise those payments herself. 3. In any case, given that the brother has now paid back the credit card debt and that, for the reasons set out above, I cannot be satisfied that he used his mother's money rather than his own to do so, I am unable to find that any funds were misappropriated from the mother's credit card account. Were jewellery and other valuables stolen by the brother and sister? 1. Whilst the applicant has alleged that the brother and sister stole jewellery and other valuables from the mother, no cogent evidence is before me to substantiate this allegation. On this basis, I cannot be satisfied that any of the mother's jewellery or other valuables were stolen by the brother and the sister. Conclusion 1. For the reasons set out above and on the evidence before me: 1. I am satisfied that the mother had the capacity to manage her finances and did so until October 2018; 2. I am satisfied that statements from the mother's savings account show a history of reasonable expenditure; 3. I am satisfied that the large cash withdrawals from the mother's Australian savings account were used to benefit her; 4. I cannot be satisfied that funds in the mother's overseas account were dealt with suspiciously or improperly; 5. I cannot be satisfied that funds were misappropriated from the mother's credit card account; 6. I cannot be satisfied that any of the mother's jewellery or other valuables have been stolen by the brother and sister. 1. For these reasons, I find that the decision by the NSW Trustee to take no further action regarding the applicant's allegations of misappropriation of her mother's money was, and remains, the correct and preferable one. 2. Accordingly, I affirm the decision of the NSW Trustee dated 10 November 2021 to take no further action regarding the applicant's allegations of misappropriation of her mother's money. ORDER 1. The decision of the NSW Trustee and Guardian dated 10 November 2021 is affirmed. ********** 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: 05 September 2022