March 2017

Dementia Incapacity – Court allows husband to manage wife’s affairs despite domestic violence claim

An aging population has resulted in an increase in age related illnesses such as dementia. You are often faced with the issue of who is best to manage an elderly person’s affairs as a result of that person’s legal incapacity. The issue becomes complicated when the elderly person claims domestic violence and/or financial mismanagement by family members who appear best placed to manage their affairs.

A sad example of such a complicated situation was the recent NSW Supreme Court decision in The Husband v The Public Guardian [2016] NSWSC1720.

Facts

The husband asked for judicial review of orders made by the Guardianship Division of the NSW Civil and Administration Tribunal (Tribunal) regarding his wife who was diagnosed with frontal lobe dementia.

On 19 March 2015, the Tribunal appointed the NSW Trustee and Guardian (NSW Trustee) as the wife’s financial manager and the Public Guardian as the wife’s guardian.  The initial orders were made after the wife was hospitalised in October 2014 where she advised hospital medical staff that her injuries were a result of her husband’s acts of domestic violence.

On 23 February 2016, the Tribunal dismissed the husband’s application to review and vary the initial financial management and guardianship orders.

The husband appealed to the Court for judicial review of the Tribunal’s decision pursuant to clause 14 of Schedule 6 of the NSW Civil and Administrative Tribunal Act 2013 (the NCAT Act).  The NSW Trustee, the Public Guardian and the Tribunal filed submitting appearances and took no active part in the appeal.

The husband’s case was well presented and well argued.  The appeal identified a number of alleged errors in the Tribunal’s decision on questions of law in relation to both the financial management and guardianship orders.  Careful submissions and a detailed statement from the husband about the history of the relationship and refuting the domestic violence allegations were important factors in the Court making its decision.

Court decision

The Court decided to deal with the appeal by way of a new hearing for both the financial management orders and the guardianship orders.  The statutory basis for that decision was clause 14(3) of Schedule 6 of the NCAT Act.

The Court ordered that the decision under appeal be quashed and another decision be substituted for that decision.  The Court also ordered that the husband be appointed financial manager and guardian for the wife in place of the NSW Trustee and Public Guardian.

Court reviews statutory law and appeal process

The  judgment of Justice Slattery is very helpful.

It identifies the statutory basis and general principles that apply to financial management orders and guardianship orders.  Principles relevant to the wife in this case were her welfare and best interests as well as the importance of preserving family relationships.

The judgment also examines the jurisdiction of the Court to grant administrative law remedies and the operation and basis for rights of appeal under the NCAT Act.  It referred to the earlier Court decision in C v W [2015] NSWSC 1774 where the case law was comprehensively reviewed and the structure of the appellate provisions explained.

Family first

In this case, good and careful preparation resulted in previous evidence being discredited and the Court favouring the family first (the husband) as financial manager and guardian for the wife.  The failure of the NSW Trustee and the Public Guardian to take an active part in the appeal and file submissions assisted the Court to make its decision.

If you are unsure about who best to manage a person’s financial affairs and health and well being, please contact Gerard Basha to discuss.

Author: Gerard Basha