NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: TQI [2015] NSWCATGD 8 Hearing dates: 29 April 2015 Date of orders: 29 April 2015 Decision date: 29 April 2015 Jurisdiction: Guardianship Division Before: G Moin, Senior Member (Legal) T Ovadia, Senior Member (Professional) F Hilson, General Member (Community) Decision: Guardianship order made for 12 months, private guardian appointed. Financial management order made, private financial manager appointed. Catchwords: GUARDIANSHIP – Apprehended Domestic Violence Orders – elder abuse – eligible witness FINANCIAL MANAGEMENT – interstate manager – form of instruments Legislation Cited: Guardianship Act 1987 (NSW) Cases Cited: Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 HS v AS [2014] NSWSC 1498 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 PY v RJS [1982] 2 NSWLR 700 Re GHI (a protected person) [2005] NSWSC 581. Category: Principal judgment Parties: Mrs TQI (the subject person) Ms ODR (the applicant) Ms SDC (Mrs TQI's carer and daughter, and attorney) Mr MVB (attorney) The NSW Trustee and Guardian The Public Guardian File Number(s): 58849 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)). REASONS FOR DECISION What the Tribunal decided 1. The Tribunal appointed Mr MVB as Mrs TQI's guardian for a period of 12 months to make decisions on her behalf about her accommodation, health care and medical and dental treatment and the provision of services as set out in the Tribunal's Order. AND 1. The Tribunal also appointed Mr MVB as Mrs TQI's financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian. Background 1. Mrs TQI is an 84-year-old woman who normally resides in Regional NSW. It is understood that Mrs TQI had been living in her own home in Regional NSW and with her daughter, Ms SDC, also in Regional NSW until she was admitted to hospital on 27 February 2015. 2. It is reported that Mrs TQI has significant visual impairment and suffers from dementia. 3. On 23 March 2004 Mrs TQI appointed Ms SDC as her attorney and enduring guardian. On 19 March 2015 Mrs TQI appointed her grandson, Mr MVB, as her enduring guardian. 4. An application was received on 11 March 2015 from Ms ODR, social worker at Regional NSW public hospital A, requesting the appointment of a guardian and financial manager for Mrs TQI. 5. On 3 March 2015 a provisional apprehended domestic violence order ("ADVO") was made against Ms SDC (in the ADVO referred to as Ms SDC) and her partner Mr QFN with the protected person being Mrs TQI. 6. When the ADVO issued, Mrs TQI was admitted to Regional NSW public hospital A. Mrs TQI was subsequently transferred to Regional NSW public hospital B where she remains awaiting placement into residential care. THE HEARING The ADVO 1. Prior to the hearing the Tribunal had received a copy of the ADVO. The ADVO referred to the incident in respect of which the ADVO issued. While it is not the intention in these Reasons for Decision to set out in any detail the facts and circumstances reported in the ADVO the Tribunal considers that it is important to note some of the allegations raised in the ADVO. Those allegations include: * Mrs TQI was found by police in a room that was not locked but had damage on all the walls where she had attempted to get out; * there was bruising to Mrs TQI's face, hands and a large bruise to the centre of her chest which the police believed was from a punch; * Mrs TQI informed the police that she was allowed to lie in her own urine and faeces and was not given any water or food. 1. When the police attended Ms SDC's home they knocked on the door and Mrs TQI shouted to them that she was locked in a cupboard and had been held as a prisoner. After some time police were about to break the door down to Ms SDC's home when a person who the police identified as Mrs TQI's "son-in-law" came to the door. The ADVO states that "he was extremely aggressive towards police and blamed all his issues on the victim (Mrs TQI)." 2. One of the terms of the orders set out in the ADVO included "the defendant must not approach or contact the protected person by any means whatsoever, except through the defendant's legal representative…" In other words, the ADVO prohibited Ms SDC and Mr QFN approaching or contacting Mrs TQI. 3. A Tribunal officer was informed by a Senior Constable of a Regional NSW police that the court date for the hearing of the allegations raised in the ADVO on a final basis had been adjourned until 4 July 2015. The Tribunal officer passed this information on to the Tribunal prior to the hearing. Actions taken immediately before the hearing 1. Immediately prior to the hearing of the applications the members forming the Tribunal went into the waiting room outside the hearing room to enquire as to who was present for the hearing concerning Mrs TQI. The members were informed that the persons present in the waiting room included Mrs TQI, Ms SDC, Mr MVB, Mr MVB's partner, and Mr QFN. (Later, at the start of the hearing when the Tribunal sought to identify those participating in the hearing Mr QFN referred to himself as a "friend of the family" rather than Ms SDC's partner or Mrs TQI's "son-in-law"). 2. In light of the term in the ADVO relating to Ms SDC and Mr QFN not having contact with Mrs TQI, the Tribunal requested Ms SDC and Mr QFN move to another room. The Tribunal then obtained a mobile phone number for Ms SDC and informed her and Mr QFN that the Tribunal would contact her at the commencement of the hearing so that she could participate in the hearing. The Tribunal stressed to Ms SDC and Mr QFN that it would not permit them to have contact with Mrs TQI during the course of the hearing. General 1. At the end of these Reasons for Decision are lists of the parties to the applications and persons who attended the hearing [appendix removed for publication]. What did the Tribunal have to decide? GUARDIANSHIP 1. The questions which had to be decided by the Tribunal in relation to guardianship were: * Is Mrs TQI someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions? * Should the Tribunal make a guardianship order and if so, what order should be made? * Who should be the guardian? * How long should the order last? Is Mrs TQI someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions? The statutory provisions 1. Section 14 of the Guardianship Act 1987 (NSW) ('the Guardianship Act') provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she is "a person in need of a guardian." A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person" (section 3(1), Guardianship Act). A person with a disability is a person who is: 1. intellectually, physically, psychologically or sensorily disabled; 2. of advanced age; 3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW) or 4. otherwise disabled; 5. and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation (section 3(2), Guardianship Act). Evidence as to disability 1. The Tribunal had before it a report dated 20 November 2013 from Dr Z, the director of rehabilitation and aged care services at Regional NSW public hospital A. The report stated that Mrs TQI has dementia due to probable Alzheimer's disease. 2. Ms Y from a service provider for Mrs TQI, gave evidence to the Tribunal to the effect that in her opinion Mrs TQI does have a disability namely, dementia. In support of this opinion Ms Y informed the Tribunal that Mrs TQI would ring to say that she had received no service on a particular day when in fact she had received services. On occasions Mrs TQI has not been able to locate her front door when nurses have been knocking due to long-term problems with her eyes. 3. When the Tribunal asked Ms SDC if she thought that her mother had a disability she responded by stating that she thought her mother had dementia stating "it's obvious she has dementia." 4. In light of the above evidence, the Tribunal is satisfied that Mrs TQI has a disability which prevents her making important life decisions. She is a person for whom the Tribunal could make a guardianship order. Should the Tribunal make a guardianship order and what order should be made? The views of Mrs TQI 1. Mrs TQI was able to provide her views to the Tribunal. Mrs TQI did not believe that she needed a guardian. If she was not able to give consent to medical treatment then she thought that either her daughter or grandson, Mr MVB, would be able to give consent. The views of Ms SDC 1. When the Tribunal asked Ms SDC if she believed there was a need for a guardian to be appointed for her mother she said "I think there would be for sure." The elder abuse claims and the ADVO 1. Filed with the Tribunal as part of the application for guardianship were a number of consultation notes recorded by Ms X when Mrs TQI attended a medical centre at Regional NSW together with a letter dated 26 March 2015 from Dr W of that medical centre. 2. Ms X's notes and Dr W's report make reference to "episodes of abuse" and "assault." Dr W makes reference to the notes that he made on 24 October 2014 following a visit by Mrs TQI. The notes include the words "struck by son-in-law Mr QFN Tuesday 21/10/14… Breastbone large bruise, r of centre in a position consistent with assault and unlikely site to be due to non-accidental injury, 8 x 4 cm." 3. As stated earlier in these Reasons for Decision at the time of the hearing an ADVO had issued by the police with the aim of protecting Mrs TQI until such time as the allegations raised in the ADVO could be finally dealt with by a court. 4. Sgt V of Regional NSW police informed the Tribunal that investigations were almost complete in relation to the matters that gave rise to the issue of the ADVO and the police were looking at what action to take. However, at this stage Sgt V could not disclose the details of the investigation. He did state that an interim apprehended domestic violence order remains in place in respect of Mrs TQI. 5. While the Tribunal itself clearly has no power to deal with the allegations raised in the ADVO, it is a matter that quite rightly should be taken into account by the Tribunal in reaching a decision. Such an approach is warranted by section 4 of the Guardianship Act alone. That section imposes a duty on everyone exercising functions under the Act with respect to persons who have disabilities to observe a number of principles. Of relevance in the matter before the Tribunal are the principles that: 1. the welfare and interests of such persons should be given paramount consideration; 2. such persons should be protected from neglect, abuse and exploitation. 1. Until such time as the allegations set out in the ADVO have been fully dealt with by a court the Tribunal considers that it is in Mrs TQI's best interests for her to be protected from neglect and abuse and accordingly that a guardianship order should be made. The effect of an order on Mrs TQI's family relationships/cultural or linguistic environment. 1. Mr MVB informed the Tribunal that his mother had been looking after Mrs TQI for 11 years and that any issues of abuse concerning Mrs TQI "point to Mr QFN" and not his mother. 2. It was clear to the Tribunal that Mrs TQI had a close relationship with her daughter. At one stage during the hearing Mrs TQI stated "I think I want to die if I can't see my daughter." 3. Ms Y in her evidence to the Tribunal stated that Mrs TQI had informed her that she had not given her grandson's telephone number to Ms Y as she didn't want Mr MVB "to know anything" by which Ms Y understood her to mean the abuse that she was suffering. 4. The Tribunal had copies of an enduring power of attorney and form of appointment of enduring guardian signed by Mrs TQI on 23 March 2004 appointing her daughter Ms SDC as her attorney and enduring guardian. 5. It is not unusual for the Tribunal to consider that in circumstances where a valid form of appointment of enduring guardian exists there is no need for the Tribunal to make a guardianship order particularly given the fact that the evidence was that Mrs TQI had been cared for by her daughter for such a long period of time. 6. However, the factual matrix confronting the Tribunal specifically in relation to the issues of elder abuse and the issuing of the ADVO inevitably lead the Tribunal to consider that the close relationship that Mrs TQI had with her daughter, Ms SDC was overridden by the obligation imposed on the Tribunal to consider the principles set out in section 4 of the Guardianship Act. Mrs TQI's March 2015 appointment of an enduring guardian 1. However, as recently as 19 March 2015 Mrs TQI appointed her grandson Mr MVB as her enduring guardian. The Tribunal had a copy of this document. Mr KFP, solicitor, had witnessed Mrs TQI's signature and signed a certificate of witness stating that Mrs TQI appeared to understand the effect of the instrument and in his presence executed it voluntarily. However, although Mr MVB had accepted his appointment by signing the document the certificate of witness for Mr MVB had been signed by a justice of the peace and not "an eligible witness." 2. Section 6C(1) of the Guardianship Act provides that an instrument does not operate to appoint a person as an enduring guardian unless: …(d) the execution of the instrument by the appointor and appointees is witnessed by one or more eligible witnesses, and (e) each witness certifies that the person or persons whose execution of the instrument is witnessed executed the instrument voluntarily in the presence of the witness and appeared to understand the effect of the instrument. 1. An eligible witness is defined in section 5 of the Guardianship Act as meaning a person who: (a) is any of the following: (i) an Australian legal practitioner, (ii) (Repealed) (iii) or a registrar of the local Court, (iv) a person (a person belonging to a class of persons) prescribed by the regulations for the purposes of this subparagraph. 1. Clause 4 of the Guardianship Regulation 2010 provides that for the purposes of paragraph (a)(iv) of the definition of eligible witness in section 5 of the Act the following classes of person is a prescribed person: (a) overseas registered foreign lawyers within the meaning of part 2.7 of the Legal Profession Act 2004; (b) a person: (i) who is employed, in a division of the government service, to enable the NSW Trustee and Guardian or the Office of the Public Guardian to exercise its functions, and (ii) who has completed and approved course of study, and (iii) who has been approved by the Chief Executive Officer of the NSW trustee and Guardian for the purposes of this paragraph. 1. While the person who witnessed Mr MVB's signature is a Queensland Justice of the Peace the Tribunal had no evidence to suggest that she fell into any of the categories referred to in section 5 of the Guardianship Act or clause 4 of the Guardianship Regulation. It follows that the enduring guardianship appointment made by Mrs TQI on 19 March 2015 is not operable at present. Are there decisions which need to be made by a guardian? 1. The most pressing issue confronting a guardian appointed to act for Mrs TQI is where she should live. Ms Y indicated that a permanent placement in a residential care facility is something that she has discussed with Mrs TQI because of the significant concerns she has for her safety. 2. It is Ms Y's opinion that it is in Mrs TQI's best interest for her to move away from any living arrangements with Ms SDC and Mr QFN. It is the view of Ms Y that Ms SDC and Mr QFN have not been doing anything in terms of assisting Mrs TQI in finding appropriate accommodation for her that meets her needs. 3. Ms Y also considers that Mrs TQI is not able to consent to medical treatment and there are ongoing issues concerning her health care. Further, once Mrs TQI does find an appropriate residential arrangement it will be necessary to ensure that she receives adequate services. Ms Y also does not believe that Mrs TQI is able to organise services for herself. Is there a "person responsible"? 1. Given the allegations raised in the ADVO the Tribunal was not satisfied that it was appropriate to consider Ms SDC as her mother's "person responsible" as provided for in Part 5 of the Guardianship Act. 2. Further, in light of the issues raised regarding the validity of Mrs TQI's appointment of her grandson Mr MVB as her guardian as detailed earlier in these Reasons for Decision it is the Tribunal's view that it is in the best interests of Mrs TQI if rather than relying on a "person responsible" a guardianship order is made. Decision regarding guardianship 1. After weighing up: 1. the evidence presented to the Tribunal both orally and the material filed with the Tribunal prior to the commencement of the hearing; 2. taking into account the principles set out in section 4 of the Guardianship Act; and 3. having regard to the matters set out in section 14(2) of the Act, 1. the Tribunal decided that a guardianship order should be made with the appointed guardian having decision making functions of accommodation, health care, medical and dental consent and the provision of services for Mrs TQI. Who should be the guardian? 1. The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed. 2. For the reasons previously stated it is not appropriate to consider Ms SDC as her mother's guardian. 3. However, as recently as March 2015 following the issues that had arisen with Ms SDC and the ADVO Mrs TQI took steps to appoint her grandson, Mr MVB, as her enduring guardian. 4. When the Tribunal considers appointing a person as another's guardian it has to be satisfied that any person so appointed as a private guardian meets the following requirements in accordance with section 17 of the Guardianship Act. He/she must: * have a personality generally compatible with the personality of the person under guardianship, * have no undue conflict of interest (particularly financial) with those of the person and * be able and willing to exercise the functions of the order. 1. Mr MVB impressed the Tribunal as a person who was willing and able to act in the best interests of his grandmother, Mrs TQI. He informed the Tribunal of his preparedness to move his grandmother to an appropriate residential care facility. The Tribunal felt confident that Mr MVB would be able to arrange health care and appropriately give consent to medical and dental treatment and arrange services for his grandmother as and when required. 2. It was evident to the Tribunal that Mrs TQI felt comfortable with her grandson, Mr MVB and had a personality "generally compatible" with that of Mrs TQI. Unlike his mother who jointly owned a residential property with Mrs TQI, Mr MVB did not appear to the Tribunal to have any undue conflict of interest with his grandmother. 3. The Tribunal is satisfied that Mr MVB meets the requirements to be a guardian for Mrs TQI and he should be appointed. How long should the order last? 1. An initial guardianship order can be made for a period of up to one year from the date on which it was made. However, an order of up to three years can be made, if the person the subject of the order has permanent disabilities, is unlikely to become capable of managing his or her person and there is the need for an order longer than one year. The Tribunal decided to make an order for 12 months. The Tribunal considers that within 12 months Mrs TQI should be settled in new accommodation and hopefully she will be receiving appropriate services and health care following on from her move to new accommodation. FINANCIAL MANAGEMENT 1. The questions which had to be decided by the Tribunal in relation to financial management were: * Is Mrs TQI incapable of managing her affairs? * Is there a need for another person to manage Mrs TQI's affairs and is it in her best interests for a financial management order to be made? * If so, who should be appointed financial manager? Is Mrs TQI incapable of managing her affairs? 1. A person's capability to manage his or her affairs was considered by Campbell J in the NSW Supreme Court in Re GHI (a protected person) [2005] NSWSC 581. Campbell J affirmed the approach enunciated in PY v RJS [1982] 2 NSWLR 700 by Powell J, at paragraph 7: "It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears: (a) that he or she is incapable of dealing, in a reasonably competent fashion with the ordinary routine affairs of man; and (b) that by reason of that lack of competence there is shown to be a real risk that either (i) he or she may be disadvantaged in the conduct of such affairs; or (ii) that such moneys or property that he or she may possess may be dissipated or lost ... it is not sufficient in my view merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner..." 1. Young J in H v H (unreported) NSW Supreme Court 20 March 2000, in dealing with the capacity test as it has been enunciated in NSW, said that dealing with the "ordinary affairs of man" does not simply mean being able to go to the bank and draw out housekeeping money. Most people's affairs, his Honour said, "are more complicated than that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one's family and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills." 1. It should be 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. In P v NSW Trustee and Guardian [2015] NSWSC 579 at paragraphs 304 to 309, His Honour Justice Lindsay made comments regarding the concept of a person's capability of managing his or her own affairs as follows: "The expression "capability to manage his or her own affairs" in section 25G of the Guardianship Act should be accorded its ordinary meaning....On an enquiry (under sections 25E and 25G of the Guardianship Act) into whether a financial management order is needed, can be made or should be made, further insight into the meaning of the expression "incapable of managing his or her own affairs" can be had by reasoning backwards from these procedurally ultimate questions to the elements required for a correct decision: Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion without the intervention of a protected estate 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." Mrs TQI's evidence 1. Although Mrs TQI informed the Tribunal that she did not think there was a need for a financial manager to be appointed to manage her financial affairs she stated to the Tribunal that "I can't do too much myself. [Ms SDC] takes care of things for me." 2. Mrs TQI was able to inform the Tribunal that she owned half a home with her daughter Ms SDC however she was not able to give to the Tribunal an approximate value of her interest in the home or the value of the home itself. (Ms SDC indicated to the Tribunal that the value of the property was $200,000). 3. Mrs TQI knew she had a bank account but was unsure of the balance in the account. (Ms SDC stated that her mother's bank balance is approximately $300-500). 4. Mrs TQI stated that she did not have any other assets. Mrs TQI knew that she received a pension but was uncertain as to how much she received from her pension. Ms ODR's evidence 1. Ms ODR informed the Tribunal that she had had a discussion with Mrs TQI concerning her money, bills and the like. Mrs TQI informed Ms ODR that her daughter Ms SDC took care of those matters for her. 2. Ms ODR was concerned however about Mrs TQI being open to exploitation and her vulnerability. The Tribunal's determination 1. At the time of the hearing Mrs TQI was experiencing significant personal change in her life. Her daughter, Ms SDC, had been caring for her for a considerable period of time. On her own evidence Mrs TQI acknowledges that Ms SDC has been taking care of her financial affairs. 2. The evidence suggests that Mrs TQI has not been dealing with her own affairs "in a reasonable, rational and orderly way" for some time. This task has been left to Ms SDC. 3. The existence of the unresolved ADVO and the concerns of Ms ODR regarding Mrs TQI's vulnerability add further issues for the Tribunal to consider regarding Mrs TQI's capability of managing her own affairs. 4. Ultimately after considering the evidence before it and particularly taking into account the possible risk of Mrs TQI being exploited, the Tribunal determined that it was satisfied that Mrs TQI is incapable of managing her financial affairs. Is there a need for another person to manage Mrs TQI's affairs and is it in her best interests for a financial management order to be made? Powers of attorney 1. On 23 March 2004 Mrs TQI made an enduring power of attorney appointing Ms SDC as her attorney. The Tribunal had a copy of that document which appeared to be validly executed. 2. On the day of the hearing the Tribunal received a copy of a document headed Revocation of Power of Attorney made by Mrs TQI on 19 March 2015. However, the power of attorney said to be revoked was a power of attorney dated "23 March 2015" (emphasis added) appointing Ms SDC. It was apparent that the date of the power of attorney that was meant to be revoked was 23 March 2004 not 23 March 2015. The effect of the mistake regarding the date of the power of attorney said to be revoked was that the power of attorney made by Mrs TQI on 23 March 2004 remained valid and subsisting. 3. On top of this Mr MVB gave evidence to the Tribunal that he had signed his acceptance of not only a form of appointment of enduring guardian but an enduring power of attorney both documents of which had been made by Mrs TQI on 19 March 2015. 4. The Tribunal then contacted Mr KFP, solicitor, and requested that he provide to the Tribunal copies of both signed documents which Mr MVB indicated he had emailed to Mr KFP. 5. On receipt of the enduring power of attorney which was faxed to the Tribunal's hearing room by Mr KFP the Tribunal was satisfied that Mrs TQI had made a valid enduring power of attorney on 19 March 2015 appointing her grandson Mr MVB. 6. As the revocation of Mrs TQI's power of attorney in favour of her daughter was ineffectual due to the incorrect date of the power of attorney being stated on the face of the revocation document, Mrs TQI had in fact two valid enduring powers of attorney. The sale of the joint property 1. On 16 April 2015 the Tribunal received an email from the applicant attaching an email from Mr NTQ, solicitor. Mr NTQ's email requested that the Tribunal be made aware of the fact that he acts for both Mrs TQI and Ms SDC in the sale of their jointly owned house at Regional NSW. Contracts for the sale of the house have been exchanged with settlement of the contract due to take place on 18 May 2015. 2. The existence of the ADVO adds a complexity to the sale of the home in that Ms SDC will not be able to contact her mother and discuss any aspect of the sale with her. In addition, Ms SDC will be able to give full instructions to Mr NTQ regarding how the net proceeds of sale of the property are to be dealt with pursuant to the power of attorney on behalf of her mother and in her own capacity. 3. In light of the fact that the half share in the jointly owned home is Mrs TQI's only real asset the Tribunal considered that it was important to ensure the funds collected following the sale of the property were used exclusively for the benefit of Mrs TQI and in her best interests. Until all of the issues surrounding the ADVO had been fully dealt with by a court and the police investigation finalised the Tribunal was not confident that Mrs TQI would not be the subject of exploitation. 4. The Tribunal was satisfied that there is a need to appoint someone to manage Mrs TQI's affairs and it is in her best interests that an order be made. Who should be appointed financial manager? Some preliminary legal considerations 1. In appointing a financial manager, as in making all other orders under the Guardianship Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in section 4 of the Guardianship Act. 2. Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian. 3. In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court's broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the Protective Commissioner and a family member as the manager of an estate. 4. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner. 5. On the side of the Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage. 6. The advantages of the appointment of a family member were more economic management of smaller estates (that is, freedom from fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers. 7. The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be "more apparent than real," should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family. Mr MVB 1. Mr MVB indicated to the Tribunal that he would be happy to act as his grandmother's financial manager. Mr MVB struck the Tribunal as a person who would be able to take into account his grandmother's best interests and act accordingly. 2. The Tribunal was conscious that Mrs TQI's estate was relatively small and that Mrs TQI seemed to get on with Mr MVB in circumstances where there was no apparent conflict of interest. The Tribunal was also satisfied that if it appointed Mr MVB he would utilise Mrs TQI's estate to advance her interests and quality of life. 3. Mr MVB has been a head chef for 15 years and although he had in the past entered into a personal financial agreement all debts that he owed had been fully paid back. Consideration of HS v AS [2014] NSWSC 1498 1. Mr MVB resides in Queensland. 2. In HS v AS [2014] NSWSC 1498 Lindsay J considered issues surrounding the appointment of a financial manager who resided outside of NSW. In the judgement His Honour notes at paragraph 1 that the fact that a candidate for appointment as manager of a protected estate resides outside NSW is not, of itself, a bar to his or her appointment by the Court as a manager. 3. His Honour goes on to note at paragraph 4 that: although modern methods of communication and the sophistication of the global economy may well permit a protected estate to be efficiently managed from outside the jurisdiction in which a protected person is domiciled: a. personal, geographic proximity of a protected estate manager to a person whose estate is under management, coupled with ready access to the protected person as and when necessary, generally remains desirable; and b. the domicile, or at least regular presence, of a manager within the same jurisdiction as both the person and property of a protected person (in this case, NSW) generally remains a prudent, if not necessary, measure in aid of due management of a protected estate. 1. However, as His Honour notes at paragraph 3 of the judgement "each case must ultimately depend upon a consideration of what is in the best interests of, and beneficial for, the protected person." 2. Unlike the plaintiff in HS v AS [2014] NSWSC 1498 who resided overseas (in Samoa), Mr MVB resides in Queensland. If Mr MVB was appointed as his grandmother's financial manager he would be managing an estate of less than $100,000 whereas the estate to be managed in HS v AS [2014] NSWSC 1498 was approximately $1 million. 3. Unlike the position in HS v AS [2014] NSWSC 1498 where there was an appropriate co-manager domiciled in NSW, in Mrs TQI's situation the only family member able to be appointed is Mr MVB. 4. The only alternative available to the Tribunal if Mr MVB was not appointed as Mrs TQI's financial manager was to appoint the NSW Trustee and Guardian. 5. As was noted in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 by Kirby P at paragraphs 238 - 239: it will not have escaped attention that when Parliament enacted [the legislation] it provided first that a "suitable person" should be appointed as manager of the estate of a protected person and only secondly that the management of that estate should be committed to the Protective Commissioner. This is a sensible hierarchy of choices. In many estates of modest size it will be appropriate where there is no risk of conflict of interest and duty, and where a relationship of love or affection is established, to reflect in the statutory appointment the form of management which for millennia, in primitive societies as in civilised communities, has been followed when a family member is found to be incapable of managing his or her affairs. It is normal then for the family to step in. The courts conserved their intervention to cases where there is no family or where no family are willing to act or for special reasons of incompetence or conflict of interest it is unsuitable to appoint a family member. There is a danger in the administration of the Act of overlooking not only this natural order of things but the way in which Parliament has reflected it in the terms of…the Act. 1. Although Mr MVB resides outside of NSW in the neighbouring state of Queensland the Tribunal was satisfied that there was no risk of conflict of interest and duty in respect of Mr MVB's management of his grandmother's estate and that there exists between Mr MVB and Mrs TQI a relationship of love and affection. 2. After carefully reflecting on the issues raised in HS v AS [2014] NSWSC 1498, distinguishing that case on the facts of Mrs TQI's situation and importantly taking into account the interests of Mrs TQI as the paramount consideration the Tribunal was satisfied that Mr MVB was a suitable person to be appointed as financial manager for Mrs TQI subject to the authorities and directions of the NSW Trustee and Guardian. ********** 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 2015