A guardian appointed by NCAT is authorised to make lifestyle and personal decisions for the person under guardianship, including where to live, what services to use, and consent to medical and dental treatment. Asking NCAT to appoint a guardian for a person with a decision-making disability is called applying for guardianship.
NCAT can appoint a financial manager to make financial and legal decisions for someone incapable of making these decisions for themselves, including
- operating bank accounts,
- paying bills,
- investing money,
- selling or buying property
Additionally, a financial manager is able to manage a person’s legal affairs including instructing a solicitor to act in legal proceedings.
NCAT does not authorise a guardian to make financial decisions. However, NCAT can appoint a person as a guardian and a financial manager.
When determining whether a person can manage their financial affairs, NCAT’s Guardianship Division considers the individual’s circumstances and their ability to undertake the particular tasks their circumstances require.
- Can a person reasonably manage their affairs competently without the intervention of a protected estate manager charged with safeguarding their welfare and interests?
- Is the person able to deal with (making and implementing decisions about) their affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to their present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation?
In considering whether the person is “able” in this sense, NCAT may give attention to:
- (a) past and present experience as a predictor of the future course of events;
- (b) support systems available to the person and
- (c) the extent to which the person can be relied upon to make sound judgements about their welfare and interests.
Anonymisation
The Guardianship Division has a policy of publishing its decisions without revealing the identity of any party, witness or person involved in the proceedings, except for a statutory party such as the NSW Trustee and Guardian. NCAT Policy No. 2 provides detailed information about published decisions.
The publication of some of its decisions is part of the Tribunal’s efforts to ensure transparency and accountability, to promote public confidence in tribunal decision-making, and to educate litigants and legal practitioners. These published decisions can be found on the NSW Caselaw website and other websites like AustLII and BarNet Jade.
Several sections of the Civil and Administrative Tribunal Act 2013
(NSW) restrict disclosure of information derived from proceedings in the Tribunal. Additionally, the Tribunal generally avoids including or removing personal identifiers such as
- complete residential addresses,
- dates of birth,
- Medicare numbers,
- bank account or loan account numbers,
- tax file numbers,
- licence numbers,
- motor vehicle registration numbers,
- email addresses,
- names of spouses,
- partners and children, and
- similar material unless it is essential to support the decision.
(Decisions of NCAT are anonymised to remove information that may identify anyone involved in the Tribunal’s proceedings under the s 65 Civil and Administrative Tribunal Act 2013 (NSW))
For more information on published reasons for judgment, see NCAT Policy 4 – Access to and Publication of Information. If publishing findings is not a matter of course, the Divisional Head is responsible for selecting decisions for publication.
Background
FNK is an 18-year-old man with borderline personality disorder, ADHD, anxiety, depression and drug addiction. He lives with his mother, WMC, in Northwest Sydney. WMC describes her son as mentally unstable, with a requirement for ongoing weekly therapy. He requires morning and evening medication and often needs PRN medication. WMC helps FNK administer correctly. When left to his own devices, he will often overdose, resulting in multiple hospital admissions. FNK has had several recent hospital admissions in the mental health units of Public Hospital 1 and Public Hospital 2, including most recently for two weeks from 25 December 2022. The hospital admissions were often in the context of suicidal ideation and drug overdose.
FNK was a beneficiary of his late father’s estate in 2019, with the funds ($247,000) held by the NSW Trustee and Guardian (NSWTG) as Trustee until FNK turned 18 in March 2022. WMC suggests that FNK spent about $55,000 of the funds released on various items, including Uber food and transport, alcohol, drugs, phone apps, and general impulse buying. His friends and ex-girlfriend had also taken advantage of the fact that FNK had some funds available.
The matter
In FNK [2023] NSWCATGD 11, WMC applied for a financial management order appointing the NSWTG to manage the remaining funds in FNK’s best interests. He is a danger to himself with a self-destructive personality. He was an inpatient at the time WMC made her application.
FNK submitted that he received $50,000 when he turned 18. He agreed with WMC that he had no idea of the value of money. He spent the money on
“random stuff. My friends kept asking me for money and never paid me back. I wasn’t in the best headspace.”
FNK indicated he now does not want the remaining $200,000 paid to him and would prefer it was released slowly. FNK is currently working as a gardener, earning about $600 per week, and is starting to learn how to budget this money. He is paying $200 per week in rent. FNK has a lot of medical bills, including for a psychiatrist and counselling, and is on a new medication, which is helping him. WMC believes that FNK has been very good since being discharged.
In considering whether a person is or is not capable of managing their affairs:
1. A focus for attention is whether the person can deal with (making and implementing decisions about) their affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to their present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation; and
2. In considering whether a person is “able” in this sense, NCAT may give attention to
(i) past and present experience as a predictor of the future course of events;
(ii) support systems available to the person; and
(iii) the extent to which the person, placed as they are, can be relied upon to make sound judgments about their welfare and interests.
CJ v AKJ [2015] NSWSC 498 (Lindsay J at [38])
NSW Trustee and Guardian
Mr Z of the Estate Administration section of the NSW Trustee and Guardian (NSWTG) submitted that NSWTG manages two trust funds, of which FNK is a beneficiary – the estate of his uncle and father. Under the terms of the trust fund containing the inheritance from his uncle, the NSWTG was obliged to apply the funds for the advancement, maintenance and benefit of FNK.
Whether a person is or is not “capable of managing his or her affairs” will usually depend upon whether:
- They are reasonably able to determine what is in their best interests and to protect their welfare and interests in a standard, self-reliant way without the intervention of a protected estate manager and
- They need protection from neglect, abuse or exploitation.
- The relevant time for considering whether a person cannot manage their affairs is the day of the hearing and the reasonably foreseeable future.
- NCAT took into account FNK’s recent history of unstable mental health, impulsive decision-making, vulnerability to the suggestions and urges of others, and his actual spending since the NSWTG released the lump sum funds to him. NCAT also considered his evidence indicating a need for further protection of his funds. On this basis, FNK is not currently reasonably able to protect his welfare and interests without the intervention of a financial manager, without placing himself at continued risk of exploitation and wastage of funds. FNK is a person for whom NCAT can appoint a financial manager.
The next question was whether it was in FNK’s best interests for the trust funds to remain managed under the terms of the trust created by his uncle or whether a financial manager would better serve his interests.
FNK continues to have substantial funds managed for him under the terms of the trust of Mr X. Given FNK’s unstable mental health and associated vulnerabilities, NCAT was satisfied that there is a clear ongoing need for careful management of these funds on his behalf. The question for NCAT to determine is whether it is in his best interests for these funds to remain managed in the current way under the terms of the trust created by his uncle or whether the appointment of a financial manager would better serve his interests.
The decision
NCAT determined that it is in FNK’s best interests to make a financial management order for the following reasons:
The NSWTG, as trustee, is limited to making decisions about releasing funds to FNK with a view, under the terms of the trust, to release at age 18 (subject to capacity). The trust conditions relate to a minor’s needs and requirements.
A financial management order is unrestricted. The manager can more flexibly respond to changes in FNK’s circumstances as he enters adulthood.
By making a financial management order with a fixed review date, the Tribunal can review the need for a financial management order at a particular time. Financial management provides more certainty than the trustee’s review of FNK’s capacity, which may or may not occur at a specific time or on the same legislative considerations as the Tribunal.
When appointing a financial manager or making any other orders under the Guardianship Act 1987 (NSW), the Tribunal must prioritise the interests of the person concerned based on the principles outlined in s 4 of the Act.
Section 25M of the Guardianship Act allows the Tribunal to appoint a suitable person to manage the individual’s estate or delegate the management of the estate to the NSWTG if it makes a financial management order.
After discussing this option with FNK and WMC, NCAT determined it should exclude FNK’s income and any trust income from the financial management order. WMC confirmed that she is her son’s primary support and can help him manage his income and set up a budget for his regular expenses. WMC is concerned about the lump sum funds from the trust. FNK can better learn how to budget if he has direct access to his income (whether from employment or Centrelink payment).
NCAT noted that WMC was not seeking to be appointed FNK’s private financial manager, and NCAT was unaware of anyone else seeking or suitable to be appointed in that role. In these circumstances, NCAT committed NSWTG to manage FNK’s financial affairs.