BFE [2017] NSWCATGD 45

BFE [2017] NSWCATGD 45

Mrs BFE had not regained capability to manage her own affairs because, despite some basic familiarity with her assets and support from family, she remained vulnerable to exploitation, as demonstrated by the transfer of a substantial part of her cash savings to a solicitor on the basis of fanciful representations and the resulting alleged misappropriation. The support realistically available from Ms TED and other family members would not sufficiently protect Mrs BFE, and Ms TED was not suitable to manage the estate because of her role in the loss, her unclear understanding of the financial management order, and the effect of the enduring power of attorney. It was therefore not in Mrs BFE's...

Jurisdiction
Australia
Judgment Date
24 April 2017
Procedural Posture
Application to Revoke or Review a Financial Management Order / Principal Judgment After Hearing in the Guardianship Division
Outcome
The application to revoke the financial management order was refused; the order was varied, the NSW Trustee and Guardian's appointment was revoked, Mrs DAQ was appointed financial manager, and the varied order was made reviewable within 18 months.
Legal Topics
['revocation of Financial Management Order' 'capability to Manage Affairs' 'best Interests' 'risk of Neglect, Abuse or Exploitation' 'appointment of Private Financial Manager' 'conflicting Expert Evidence' 'reviewable Financial Management Order']
['guardianship and Administration' 'financial Management'] ['revocation of Financial Management Order' 'capability to Manage Affairs' 'best Interests' 'risk of Neglect, Abuse or Exploitation' 'appointment of Private Financial Manager' 'conflicting Expert Evidence' 'reviewable Financial Management Order']

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Procedural Posture

Application to Revoke or Review a Financial Management Order / Principal Judgment After Hearing in the Guardianship Division

Legal Issues

  1. 1 ['Whether Mrs BFE had regained the capability to manage her own affairs.' 'Whether, if Mrs BFE had not regained capability, it would nevertheless be in her best interests for the financial management order to be revoked.' 'Whether the appointment of the NSW Trustee and Guardian as financial manager should be revoked if the financial management order continued.' "Who should be appointed as Mrs BFE's financial manager if the NSW Trustee and Guardian's appointment was revoked." 'Whether the financial management order should otherwise be varied.']

Ratio Decidendi

Mrs BFE had not regained capability to manage her own affairs because, despite some basic familiarity with her assets and support from family, she remained vulnerable to exploitation, as demonstrated by the transfer of a substantial part of her cash savings to a solicitor on the basis of fanciful representations and the resulting alleged misappropriation. The support realistically available from Ms TED and other family members would not sufficiently protect Mrs BFE, and Ms TED was not suitable to manage the estate because of her role in the loss, her unclear understanding of the financial management order, and the effect of the enduring power of attorney. It was therefore not in Mrs BFE's...

Court Disposition

The application to revoke the financial management order was refused; the order was varied, the NSW Trustee and Guardian's appointment was revoked, Mrs DAQ was appointed financial manager, and the varied order was made reviewable within 18 months.

Orders

  • ['The financial management order for Mrs BFE made on 18 December 2015 is varied.' 'The appointment of the NSW Trustee and Guardian as the financial manager of the estate of Mrs BFE is revoked.' 'Mrs DAQ is appointed the manager of the estate of Mrs BFE.' 'The NSW Trustee and Guardian is to pay over or hand over the...