Division 1 Making of financial management orders
In this Part:financial management order means an order referred to in section 25E, and includes an interim financial management order.
protected person means a person whose estate (or part of whose estate) is subject to a financial management order that is in force.
25E Tribunal may make financial management orders
(1) The Tribunal may, in accordance with this Part, order that the estate of a person be subject to management under the NSW Trustee and Guardian Act 2009.(2) The Tribunal may exclude a specified part of the estate from the financial management order.(3) (Repealed)
25F When financial management order may be made
The Tribunal may make a financial management order subject to and in accordance with this Part:(a) in connection with its making a guardianship order under Part 3 in respect of the person concerned, or(b) following (or in the course of) proceedings under Part 3 in respect of the person, being proceedings in which it decided not to make a guardianship order, or(c) if an application for such an order has been made to it under section 25I in respect of the person (whether or not an application for a guardianship order has also been made in respect of the person), or(d) following (or in the course of) proceedings under section 36 of the Powers of Attorney Act 2003 in respect of an enduring power of attorney given by the person, being proceedings in which it has decided not to make an order under that section.
25G Grounds for making financial management order
The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person’s capability to manage his or her own affairs and is satisfied that:(a) the person is not capable of managing those affairs, and(b) there is a need for another person to manage those affairs on the person’s behalf, and(c) it is in the person’s best interests that the order be made.
25H Interim financial management orders
(1) Despite section 25G, the Tribunal may, in relation to any proceedings before it under Part 3 or this Part (including proceedings arising out of the operation of section 6K (3) or section 37 (1) of the Powers of Attorney Act 2003), make a financial management order for a specified period not exceeding 6 months (an interim financial management order), pending the Tribunal’s further consideration of the capability of the person to whom the order relates to manage his or her own affairs.(2) An interim financial management order may be made only in respect of a person:(a) who is under guardianship, or(b) who is the subject of an application under Part 3 or this Part.(3) If the further consideration of the capability of the person to whom the interim financial order relates to manage his or her own affairs is not completed before the expiry of the period specified in the order, the order is taken to be revoked on that expiry.
25I Application to Tribunal for a financial management order
(1) An application for a financial management order may be made by:(a) the NSW Trustee, or(b) any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person who is the subject of the application.(2) An application must specify the grounds on which it is claimed that the person the subject of the application is not capable of managing his or her own affairs.(3) As soon as practicable after making the application, the applicant must cause a copy of the application to be served on each party to the proceedings.(4) Before conducting a hearing into the application, the Tribunal must cause a notice specifying the date on which, and the time and place at which, the Tribunal will conduct the hearing to be served on each party to the proceedings.(5) A failure to serve a copy of an application, or a notice, in accordance with this section does not vitiate a decision of the Tribunal on the application.
(1) A person may be the subject of an application under section 25I whether or not the person has previously been the subject of such an application.(2) The Tribunal may make a financial management order in respect of a person whose capability to manage his or her own affairs has previously been considered by the Tribunal even though there may have been no change in that capability since it was last considered by the Tribunal.
25K Tribunal cannot make financial management order in certain circumstances
(1) The Tribunal does not have jurisdiction to make a financial management order other than an interim financial management order in respect of a person if the question of the person’s capability to manage his or her own affairs is before the Supreme Court.(2) The Tribunal does not have jurisdiction to make any financial management order (including an interim financial management order) in respect of a person if an order made under the NSW Trustee and Guardian Act 2009 or the Mental Health Act 2007 is in force in respect of any part of the person’s estate.
25L Tribunal may refer proceeding to Supreme Court
The Tribunal may, if it considers it appropriate to do so, and with the concurrence of the Supreme Court, refer a proceeding relating to a person’s capability to manage his or her own affairs to that Court.
25M Tribunal may commit estate of protected person to management
(1) If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may, by order:(a) appoint a suitable person as manager of that estate, or(b) commit the management of that estate to the NSW Trustee.(2) Despite section 68 (1), an order under subsection (1) (a) does not authorise the person appointed as manager to interfere in any way with the estate concerned unless:(a) such directions of the Supreme Court as are relevant to the management of the estate have been obtained, or(b) the NSW Trustee has, under Division 2 of Part 4.5 of the NSW Trustee and Guardian Act 2009, authorised the person to exercise functions in respect of the estate.(3) However, the person appointed as manager may take such action as may be necessary for the protection of the estate (including action specified by the Tribunal) pending the directions of the Court or authorisation by the NSW Trustee.
Division 2 Review and revocation of financial management orders
25N Review of financial management orders
(1) The Tribunal may order that a financial management order be reviewed within a specified time.(2) The requirement for a review may be contained in the financial management order or in a subsequent order.(3) The Tribunal must begin any required review within the time specified in the relevant order.(4) The Tribunal:(a) may, at any time on its own motion, and(b) must, on an application under section 25R for revocation or variation of the order,review a financial management order.(5) If a financial management order would cease to have effect before the completion of such a review, the order is taken to be extended until the completion of the review.(6) Before carrying out the review, the Tribunal must cause a notice specifying the date on which, and the time and place at which, the Tribunal will carry out the review to be served on each party to the proceedings. The review is taken to have commenced on the issue of such a notice.(7) A failure to serve notice in accordance with this section does not vitiate the decision of the Tribunal on the review.
25O Requested review not required in certain cases
Despite section 25N (4) (b), the Tribunal may refuse to review a financial management order on an application under section 25R if:(a) in the opinion of the Tribunal, the application does not disclose grounds that warrant a review, or(b) the Tribunal has previously reviewed the order.
(1) On reviewing a financial management order under section 25N, the Tribunal must vary, revoke or confirm the order.(2) The Tribunal may revoke a financial management order only if:(a) the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or(b) the Tribunal considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her affairs).
(1) If a financial management order is revoked (or varied so as to exclude from the order a specified part of the estate previously subject to it), the person appointed as manager of the estate is to pay over or hand over the estate (or the relevant part of the estate):(a) to the owner of the estate, or(b) to a person (designated by the Tribunal) on behalf of the owner of the estate.(2) If:(a) the appointment of a person as the manager of an estate is revoked under Division 3, and(b) the relevant financial management order is not revoked,the person concerned is to pay over or hand over the estate to the person appointed under section 25U (3) as manager of the estate in substitution for that person.(3) A person who pays over or hands over any part of an estate in accordance with this section does not incur any liability for doing so.(4) The paying over or handing over of any part of an estate in accordance with this section does not operate to change the ownership of the estate.
25R Application for revocation or variation of financial management order
The following persons are entitled to apply for an order revoking or varying a financial management order:(a) the protected person concerned,(b) the NSW Trustee,(c) the manager of the estate, or part of the estate, of the protected person,(d) any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the protected person.
Division 3 Review of appointment of manager
25S Review of appointment of manager
(1) The Tribunal:(a) may, on its own motion, and(b) must, at the request of:review its appointment of the manager of the protected person’s estate.(i) the NSW Trustee, or(ii) any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the protected person,(2) Subsection (1) applies even if the person appointed as manager is the NSW Trustee.(3) Before carrying out the review, the Tribunal must cause a notice specifying the date on which, and the time and place at which, the Tribunal will carry out the review to be served on each party to the proceedings. The review is taken to have commenced on the issue of such a notice.(4) A failure to serve notice in accordance with this section does not vitiate the decision of the Tribunal on the review.
25T Requested review not required in certain cases
Despite section 25S (1) (b) (ii), the Tribunal may refuse a request under that subparagraph to review the appointment of the manager of a protected person’s estate if:(a) in the opinion of the Tribunal, the request does not disclose grounds that warrant a review, or(b) the Tribunal has previously reviewed the appointment.
(1) On reviewing its appointment of the manager of a protected person’s estate, the Tribunal may:(a) revoke the appointment, or(b) confirm the appointment.(2) The Tribunal may also review the financial management order under which the manager was appointed, and may take any action in respect of that order that it may take on a review of such an order under Division 2.(3) If the relevant financial management order is not revoked under subsection (2), the Tribunal is to appoint another person as manager of the estate subject to the order in substitution for a person whose appointment as manager has been revoked under this section.(4) The Tribunal may revoke the appointment under review only if:(a) the person appointed seeks the revocation, or(b) the Tribunal is satisfied that it is in the best interests of the protected person that the appointment be revoked, or(c) the financial management order in respect of the estate concerned is revoked.Note. Section 25Q provides for the disposal of the estate on revocation of a financial management order.