Supreme Court case brings into focus challenging aspects of guardianships and family – Case Note by Managing Partner, Hanaan Indari
Published on October 20, 2020 by Hanaan Indari
Carroll & O’Dea Lawyers acted in a matter in the Supreme Court of New South Wales Equity – Protective Division listed for an in-person COVID Safe Hearing for four days in July 2020 before her Honour Justice Williams.
We appeared for the Trustee in a matter brought by a 29-year-old married woman, under the pseudonym SJ, with three young children. SJ had been involved in a terrible high-speed car accident when she was crossing the road at eight years of age.
As a result of that accident she suffered a severe traumatic brain injury in addition to a number of physical injuries from which she subsequently recovered.
Following the accident in March 2000 proceedings were brought by her Tutor, her mother and referred to in these proceedings as KJ, and SJ ultimately received a substantial amount of money for the injuries she sustained in the District Court of New South Wales.
Subsequently in 2013 the Supreme Court made a declaration that SJ was incapable of managing her affairs and as a result, an Order was made that her estate be subject to management under the NSW Trustee and Guardian Act 2009 and an Order that a trust company be appointed manager of her estate subject to the Orders and Direction of the NSW Trustee & Guardian.
In late 2018, SJ filed proceedings seeking to revoke the appointment of the current manager of her estate on the basis that she was no longer incapable of managing her affairs. Evidence was put on by SJ, her family and a Psychologist and Psychiatrist stating that she could now manage her day-to-day as well as her financial affairs.
SJ’s parents and siblings gave evidence to the contrary, indicating from their experiences they had concerns that SJ could not manage her day-to-day affairs, had memory loss and also could not manage her finances. Unfortunately, SJ’s partner and then husband was not well received by her parents and family, and SJ subsequently fell out with her family and had not seen them for a number of years prior to this Hearing.
Due to the contest of the evidence of the party, the Judge placed much weight on the medical evidence.
SJ had presented as a capable, hardworking young woman who was able to juggle work and a young family.
Dr Patricia Jungfer, Psychiatrist, was the last witness in the case and had the benefit of examining SJ on several occasions in 2011, 2013 and 2018. Dr Jungfer was of the firm view that despite SJ’s evidence, she did not consider SJ had the capacity to manage her financial affairs.
Dr Jungfer gave evidence that SJ has substantial difficulties with regards to regulating her funds and, in particular, a large sum of money. Dr Jungfer said SJ was vulnerable to exploitation, had difficulties with regards to learning and has demonstrated, on repeated occasions an inability to learn from experience.
Dr Junger considered that SJ had poor judgement, in decision-making she focused on the now rather than considering the future and could not determine the long-term consequences of her decisions.
On clinical assessment she found SJ did not have the financial knowledge or skills to manage her day-to-day matters competently and did not recognise this; further, Dr Jungfer observed the key issue is how SJ would manage a large sum of money noting SJ lacked the ability to do so and did not have insight into her lack of ability and therefore, she cannot compensate.
In her oral evidence, Dr Jungfer explained after the maximum recovery period for a traumatic brain injury (which Dr Jungfer considered to be a two year period, although the position is less clear in relation to brain injury sustained by children as in SJ’s case), improvements observed are usually adaptions to the impairments rather than recovery from those impairments.
The Judge considered that Dr Jungfer’s evidence provided the most reliable expert assistance to guide the Court in determining whether or not it was satisfied that SJ is capable of managing her affairs.
The Judge concluded that the evidence before the Court did not satisfy her that SJ has that capability of managing her own affairs and that the risk of dissipation of the funds is contrary to SJ’s welfare and best interests which is the paramount consideration of the Court. Property and assets in her estate represent proceeds of the compensation paid as a result of the District Court proceedings which were intended to provide for SJ’s needs over the course of her life.