COURT DETERMINES WHETHER THE ORDERS GRANTED TO THE PLAINTIFF ARE PROPER IN ORDER TO PROTECT THE INTEREST OF A WEALTHY OLD WOMAN
Re KA [2020] NSWSC 1696 (27 November 2020)
This case is a review whether the Interlocutory orders by the court designed to facilitate independent medical examination and a visitor’s report to Court are necessary.
Facts:
The fifth defendant is a wealthy, 83 year old, childless widow of Serbian origin, without family in Australia, characterised by NCAT (in terms not disputed by any party to these proceedings) as a person vulnerable to undue influence and exploitation.
Upon an exercise of protective jurisdiction, responsive to a notice of motion filed by the plaintiff, the court made interlocutory orders (including an order for the appointment of the NSW Trustee as receiver and manager of a fund held in the trust account of the fourth defendant, the solicitor on the record for the fifth defendant) designed to facilitate:
(a) an independent medical examination of the fifth defendant, directed towards provision of a report to the Court on her capacity for self-management; and
(b) the appointment of a visitor to attend upon her to understand, and to report to the Court on, her current needs and her views about the conduct of her affairs generally.
The plaintiff asserts an interest in the fifth defendant’s personal welfare as a pastor and as a friend. He maintains that he has no personal interest in her property, and no expectation of any such interest.
Through his counsel, he has informed the Court that should she be found, upon an independent medical examination, to be capable of managing her own affairs and should she, expressing her own independent views, say that she has no desire to continue personal contact with him; and should it be found that she is safe, secure and being properly cared for in her current accommodation, he will not press for further protective orders affecting her.
The defendants’ affidavits in opposition to the plaintiff’s motion emphatically articulate a case to the effect that the fifth defendant is capable of managing her own affairs (with the assistance of her co-defendants and DS); that she is fully able to express her own views (through them); and that (with their active support) she wants to have nothing to do with the plaintiff, members of his church, the NSW Trustee or any independent medical examination.
Issue: Are the orders of the court appropriate?
Law:
Analysis:
The current proceedings involve an exercise of protective jurisdiction in which the welfare of a vulnerable person is the dominant consideration. It is not unusual for a person in need of protective management to express strong opposition to any form of management regime. It is sometimes an indicator of incapacity. Whether it is so in this case remains an open question.
The opposition of the fifth defendant’s co-defendants, and her nephew, to an independent medical examination of the fifth defendant invites doubt about their objectivity. If the fifth defendant is truly able to manage her own affairs, and to express her own independent views, and if the arrangements currently in place for her care are truly satisfactory, a way to demonstrate that is to facilitate her examination by an independent medical expert and to facilitate the work of an authorised visitor. Keeping her in close quarters, under the control of a small group of individuals who resist an independent review of her circumstances, carries a risk to her in management of her affairs that her welfare is not (as it should be) the paramount consideration.
Conclusion: The orders made on were designed to facilitate a review of her personal circumstances, allowing an independent assessment to be made of her capacity, her views, and her needs going forward. As illustrated by the limitation of the Court’s receivership order to a part only of her estate, they were designed to do what appears to be necessary, but no more than presently deemed necessary, to protect her interests and her welfare.
