NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NKN [2018] NSWCATGD 9 Hearing dates: 15 February 2018 Date of orders: 15 February 2018 Decision date: 15 February 2018 Jurisdiction: Guardianship Division Before: J C Simpson, Senior Member (Legal) Dr M J Wroth, Senior Member (Professional) M Watson, General Member (Community) Decision: 1. The estate of Mr NKN is subject to management under the NSW Trustee and Guardian Act 2009. 2. The management of the estate of Mr NKN is committed to the NSW Trustee and Guardian. 3. The following specified part of the estate is excluded from this financial management order: Mr NKN's insurance income from a financial institution and his bank account into which it is paid. RECOMMENDATIONS The Tribunal recommends that the Trustee should work with Mr NKN promptly to sell his Car B and make any necessary spending on his Car A and caravan so that he is able to use them. Catchwords: FINANCIAL MANAGEMENT – application for financial management order – capability to manage own financial affairs – need for order – vulnerability to self-mismanagement – best interests of the subject person – part of estate excluded from management – NSW Trustee appointed Legislation Cited: Guardianship Act 1987 (NSW), s 4 Cases Cited: P v NSW Trustee and Guardian [2015] NSWSC 579 Re X [2016] NSWSC 275 Texts Cited: Nil Category: Principal judgment Parties: 002: Financial Management Application Mr NKN (the person) Mr CZD (applicant) NSW Trustee and Guardian Representation: Nil File Number(s): NCAT 2018/00037986 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 Background 1. Mr NKN is a 55-year-old man who has recently been in mental health treatment at a public hospital and then at a private hospital. Prior to that, he was staying with a friend. 2. Mental health professionals had major concerns about Mr NKN's financial management and Mr CZD, social worker, applied for a financial management order. What did the Tribunal have to decide? 1. We had to decide: 1. Is Mr NKN incapable of managing his affairs? 2. Is there a need for another person to manage Mr NKN's affairs and is it in his best interests that we make a financial management order? 3. If so, who should we appoint as financial manager? 1. In considering these issues, we could obtain guidance from the general principles in s 4 of the Guardianship Act 1987 (NSW). These say Mr NKN's interests should be given paramount consideration and also emphasise consideration of Mr NKN's views, minimum restriction on freedom, encouragement of self-reliance and a normal life in the community, preservation of family relationships and cultural and linguistic environments and protection from neglect, abuse and exploitation (P v NSW Trustee and Guardian [2015] NSWSC 579 at [207]) 2. Guided by the s 4 principles of the Guardianship Act, we could also consider excluding part of Mr NKN's estate from management. 3. A person's capability to manage his or her affairs is considered in the context of the person's particular circumstances and the purpose of the Guardianship Act as reflected in the section 4 principles of that Act. We look at whether the person is "reasonably able to manage his or her own affairs in a reasonably competent fashion". A focus is whether the person is able to make and implement decisions about his or her 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". The availability of family or community support is relevant. The concept of capability focuses on the reasonably foreseeable future as well as the present time. A disability may underpin incapability but the focus is the person's functional capacity to manage his or her affairs, not the disability. (P v NSW Trustee and Guardian [2015] NSWSC 579 at [301], [307]-[310]; Re X [2016] NSWSC 275 at [29]) The evidence 1. From the report of Ms Z, occupational therapist, and Mr NKN's evidence in the hearing, his assets and income are as follows: 1. Car A purchased for $150,000. 2. A caravan purchased for $45,000. 3. Car B purchased for $60,000 and now worth about $40,000. 4. An undocumented investment of $60,000 in tourist shops in Nepal. 5. Income of $2,640 a month received from disability insurance with a financial institution. An equal amount goes to his ex-wife by agreement between her and Mr NKN. 6. Superannuation of $400,000 which cannot readily be accessed until Mr NKN reaches 65 years of age. 1. Mr NKN said that his vehicles are currently located on the property of his friend, Mr Y, at regional NSW. Mr NKN also noted that he pays private health insurance. 2. Mr NKN told us that he has a partner coming from Korea. He got to know her on Facebook and they previously stayed together for five days. He also said that he has plans to travel a lot in his caravan but only in a way that is consistent with continuing to have access to his medication. 3. The consistent medical evidence was that Mr NKN has long-standing bipolar disorder and has suffered financially in a number of manic episodes. 4. Again drawing on the report of Ms Z and evidence from Mr NKN in the hearing, he sold his home in another suburb in regional NSW in March 2017 for $770,000 and paid off a $100,000 bank debt. After allowing for the above purchases and investments, this leaves approximately $350,000 unaccounted for. In the hearing, Mr NKN said that this money had gone into travel. He said that this spending had been related to his not taking his medication. 5. Mr NKN said that he is expecting repayments of debts from friends shortly being one amount of $2,000 and another of $5,000. 6. Mr NKN also acknowledged a past incident of organising a party for 500 people. He said that he was manic and does such things when he is off medication. 7. He said that he is now feeling so well. He has learned about needing to take his medication and from now on will continue to do so. 8. His plan is to keep Car A and the caravan but to sell Car B. He would put the proceeds into some work needed on his other vehicles and the rest into savings. He also has an insurance claim to process in relation to one of the vehicles. 9. Mr NKN said that he did not want to reopen his arrangement with his ex-wife where they equally share the monthly disability income. He also volunteered that she was worth about $6 million. 10. From assessments on 30 on 31 January 2018, Ms Z reported that Mr NKN recognised that he had been spending too much when he was manic but felt that he would be able to manage his finances independently as long as he kept taking his medications. 11. Dr X has been Mr NKN's treating psychiatrist at the private hospital. He said that Mr NKN's illness has now settled enough for him to be discharged. However, he noted that Mr NKN has had six relapses in the past because of non-compliance with medication. 12. Dr W is Mr NKN's long-time psychiatrist. Ms Z reported that in 2016 there had been consideration of an application for a financial management order but Dr W felt Mr NKN could manage with one on one therapy from him. 13. We spoke to Dr W who now supported the making of a financial management order. He said that Mr NKN had had a sequence of manic episodes leading to a lot of financial harm. He tends to stop his medication when he travels and rapidly becomes manic. Dr W was sceptical about Mr NKN's determination now to maintain his medication saying that he had heard this before. There are many times he has relapsed. If he did stay on his medication, the chances of relapse would reduce from 70% to 10%. 14. Mr NKN had expressed strong concern about the humiliation and intrusion of a financial management order. Dr W said that he understood this but emphasised that Mr NKN gets so unwell so quickly. Dr W also had not seen the intrusion of a financial management order having a negative impact on a mental illness. 15. We raised the possibility of safeguarding Mr NKN's assets but excluding from management his current income and Dr W felt this was a reasonable approach. 16. As the hearing went on, Mr NKN became open to a financial management order as long as his monthly income was excluded and Car B. 17. Mr NKN agreed that he becomes unwell quickly and does not recognise that this is occurring. He said that he feels good and forgets to take his medications and then feels really good. 18. Ms Z occupational therapist said that her main concern was to protect Mr NKN's assets and superannuation. Decision 1. In weighing the evidence, we were very conscious of the intrusion and humiliation that Mr NKN saw in a financial management order, at least until the hearing. An order would intrude on his freedom and self-reliance. We also saw scope to at least partly address this intrusion through an exclusion of Mr NKN's income from management. 2. However, we accepted that Mr NKN has a history of manic episodes with resultant financial loss, in particular a fundamental depletion of his estate since sale of his home. 3. Despite Mr NKN's current good intentions about maintaining his medication, his history of not doing so and the scepticism of Dr W satisfied us that it is likely that he will again have periods of non-compliance, mental health relapse and then major risks of depleting his assets. 4. In these circumstances, we accepted that Mr NKN is incapable of managing his affairs and needs someone else to do so. 5. In view of the considerable depletion of Mr NKN's estate and the danger that this will be further depleted, we were satisfied that it was in his best interests that we make a financial management order. 6. Balancing Mr NKN's need for protection, the desirability of minimum intrusion and his best interests, we accepted that we should exclude from management Mr NKN's income. 7. We also considered whether we should exclude from management Car B but felt that there was too great a risk that Mr NKN would quickly deplete proceeds from selling it. 8. In the absence of any clear alternative, we appointed the NSW Trustee and Guardian as financial manager. The order can be reviewed in future 1. The financial management order will operate for the indefinite future. However, Mr NKN or another concerned person can apply for a review if there are circumstances calling for one. 2. The Tribunal can revoke the financial management order if it is satisfied that Mr NKN is capable of managing his financial affairs or that it is in in his best interests to do so. The Tribunal can also consider varying the financial management order, for example by changing the exclusion or changing the identity of the financial manager. ********** 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 July 2018