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Smashing Hearts of Stone: Empathy for the Elderly

"Guardianship financial management, capacity genuine concern welfare NCAT"

Our work in the area of guardianship and estates in particular shows us time and time again that there are family members out there who stoop so low as to use Guardianship and Financial Management proceedings at the New South Wales Civil and Administrative Appeals Tribunal (‘NCAT’) to financially abuse/gain control of their frail parents’ assets for their own selfish use and personal gain (against the genuine concern for the welfare of the person), and even when their parents’ have capacity. Unfortunately, this scenario is not uncommon, but we know how to use and apply the applicable tests to ensure these oxygen thieves don’t get the better of the elderly, and we love doing it!  

‘Genuine Concern for the Welfare of the Person’

For an application for Guardianship or a Financial Management application to succeed, the legal starting point requires the applicant to have a “genuine concern for the welfare of the person”. The common law provides that this means that the applicant is acting ‘in the best interests’ of the person about which the application is made. Obviously, in cases where family members are seeking to gain control of their parents’ assets for personal use, they do not have a ‘genuine concern for the welfare of the person’, meaning their application should fail at the outset. Often the Tribunal will not hear an application for dismissal on this basis early on, so it pays to be prepared in other areas too.

If the applicant establishes that they are acting in the best interests of the subject person (or if that question does not arise until later in the proceedings), the next threshold test to meet is that of ‘capacity’. The legal term ‘capacity’ refers to an adult’s ability to make decisions for themselves and the determination of whether someone has ‘capacity’ is subject to numerous principles, developed through the case law. The first is that a person is always presumed to have capacity unless it is shown otherwise, and where their capacity is contested by the applicant, it is not sufficient to lodge mere opinion or unsubstantiated evidence as to their capacity, but real evidence is required.

Just because a person has little experience in the handling of commercial matters or is affected by a physical or mental disability does not mean they do not have capacity. For example, in one of our recent cases we applied the case of NXO [2015] NSWSATGD 53 to establish the subject person had the requisite capacity as, in that case; the subject person was found to have capacity to handle their affairs irrespective of the fact that they had even been diagnosed dementia, Alzheimer’s and heart disease, a history of stroke, was permanently incontinent and under full 24-hour care. The critical issue was the nature and level of complexity of the decisions they were required to make in their day-to-day lives (which was low, especially with full-time residential care), and the fact that, at that stage, they were more than capable of making those decisions without having to incur the costs of, for example, the NSW Trustee & Guardian to do it for them.


The ‘capacity’ aspect of the process is the most important as it shines light onto the intentions behind why the application was being brought. Where a person is found to not have capacity, it can be assumed that they require the intervention of NCAT and thus an appropriate order will be made for their protection. Where a person is found to have capacity, particularly in light of medical evidence to support such capacity, it raises questions as to why an application was made in the first place.

One of our most recent cases (which we are immensely proud of) involved the son of a sweet elderly lady, who had abused her physically and mentally, and who had clearly made his application firstly, in a misguided attempt to defend AVO proceedings, and secondly, in an attempt to keep control of his mother’s estate, so that he could continue living in her home with his entire family rent-free, have her do all their cooking and housework, and keep his grip on her assets when she died. During the hearing, we tendered undisputed medical evidence, affidavit evidence and precedential arguments to show that this sweet lady had more than the required level of capacity, notwithstanding language barriers and some medical conditions. NCAT dismissed both the Guardianship application and the Financial Management Order application that the son had lodged for failure to meet the ‘capacity test’.

This win wasn’t enough for us, so we applied for him to reimburse our client for her legal costs. These costs applications in NCAT are very difficult, unlike in other civil jurisdictions, and will only be made where there are ‘special circumstances’ that warrant such an award. A few of the factors which contribute to these ‘special circumstances’ include whether a party has unnecessarily disadvantaged another party during the proceedings, the relative strengths of the claims made by each of the parties and whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance. We are confident we will win that application when determined.

We are all too happy to help in these kinds of cases, so keep us in mind if someone you know is being taken advantage of and get in contact with us!

Please note: this is not legal advice to be relied upon, as circumstances in each case will be different. For more information see the Guardianship Division Page on the NCAT Website.


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