ZDQ [2016] NSWCATGD 68

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZDQ [2016] NSWCATGD 68 Hearing dates: 1 December 2016 Date of orders: 01 December 2016 Decision date: 01 December 2016 Jurisdiction: Guardianship Division Before: Mr A Suthers, Senior Member (Legal) Dr H Creasey, Senior Member (Professional) Ms L Porter, General Member (Community) Decision: 1. The applications by Mr ZDP for a financial management order in relation to the estate of Mr ZDQ are dismissed. Catchwords: FINANCIAL MANAGEMENT – application for a financial management order – presumption of capacity – insufficient evidence to rebut presumption – application dismissed Legislation Cited: Civil and Administrative Tribunal Act (2013) NSW, s 38(4) Category: Principal judgment Parties: ZDQ (Subject person) ZDP (Applicant – son) ZDT (Son) ZDS (Spouse) Representation: Solicitors: Ms Joanna Kwan, (Separate Representative) File Number(s): C/61267 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 dismissed the application for the appointment of a financial manager for Mr ZDQ.

Background 1. Mr ZDQ is a 76-year-old man who lives in privately rented accommodation with one of his sons, Mr ZDT, in Sydney. 2. In October 2014, Mr ZDQ had a serious motor vehicle accident. Injured in the accident were Mr ZDQ, his wife Ms ZDS, and Mr ZDT, who was the driver of the vehicle. 3. In the accident, Mr ZDQ received several injuries including complex facial fractures, a traumatic brain injury, a cervical spine and neck injury, clavicle and rib fractures, thoracic and lumbar spine fractures, a right hip displacement and fracture, and a right first metacarpal fracture. His wife was more seriously injured than he was. 4. Concerns were raised by various treating doctors who were assisting Mr ZDQ after his injury, not only about his physical recovery from the accident but whether it had an impact on his cognitive capacity. 5. For example, neuropsychological testing conducted in January 2015 by Dr Z was reported to indicate that Mr ZDQ was withdrawn and difficult to engage. It was reported that he had cognitive defects because of the accident and the doctor felt that this was consistent with his traumatic brain injury. Dr Z was concerned that there was a potential differential diagnosis of dementia because of these issues but noted that the cognitive profile and reported sudden change of personality and apathy was more consistent with a traumatic brain injury than Alzheimer's disease. 6. Dr Z also noted that it had been two months since the accident when she conducted her investigations in relation to Mr ZDQ and said that spontaneous cognitive recovery was 'likely to be slower from here on, although he may continue to improve over the next 12 months or so'. 7. Continuing concerns were raised about Mr ZDQ's cognitive capacity by the treating medical practitioners who assisted him and in reports prepared for the NSW Lifetime Care and Support Scheme, through which Mr ZDQ was obtaining assistance through his solicitors. 8. On 13 April 2015, Mr ZDQ appointed his two sons, Mr ZDT and Mr ZDP, as his joint attorneys under an Enduring Power of Attorney. 9. A dispute arose between Mr ZDT and Mr ZDP, though, about Mr ZDQ's finances. They could not agree on the decisions and Mr ZDQ revoked that appointment on 9 November 2015. 10. Mr ZDP subsequently brought an application to the Tribunal for appointment of a financial manager for his father. 11. It is that application which is being dealt with before the Tribunal. 12. The Tribunal ordered that a separate representative be appointed for Mr ZDQ. Ms Joanna Kwan, solicitor, was appointed as Mr ZDQ's separate representative.