Financial managers of protected estates can still obtain remuneration and costs

9-July-2015 Guardianship By admin

The Supreme Court of NSW delivered a significant decision in April 2015 regarding the ability of financial managers of protected estates to obtain remuneration
out of the estate, in addition to the costs involved in applying for the remuneration. 

The case (Application of Martin Fowler [2015] NSWSC 466) appears
to be the first to follow the decision in Ability One Financial Management Pty Ltd v. JB by his tutor [2014] NSWSC 245 and the subsequent
guidelines of the NSW Trustee and Guardian that require private managers to apply to the Supreme Court before they are entitled to remuneration.

What is a protected estate?

Financial managers are typically appointed by the Guardianship Division of the New South Wales Civil and Administrative Tribunal for people who are unable
to manage their financial matters, often because of a cognitive disability. Once such a financial management order is in place, that person is considered
to be a “protected person” and their estate is known as a “protected estate”. The office of financial manager is fiduciary in character and requires
that there is no conflict of interest between the financial manager and the protected person, meaning the work should be performed without remuneration.
Remuneration can, however, be obtained in some circumstances, as this recent case demonstrates.

Circumstances that allow renumeration

Any application for renumeration and costs by a financial manager requires a report from the NSW Trustee and Guardian regarding the following:

  1. the suitability of a private manager
  2. the need for security (such as the payment of money into court)
  3. the terms for the provision of accounts by the financial manager to the NSW Trustee.

While there are a number of matters that need to be canvassed on such an application, the Court stipulated that adequate insurance arrangements need to
be in place by the financial manager seeking reward so that work done for the protected person is adequately covered. Other matters to consider on
such applications relate to the reasonableness of the proposed rates (to be considered by the Trustee on the passing of the accounts), the form of
the undertakings to be given and how to approach the question of legal costs incurred on such an application.

How Streeterlaw can help you

If you are a private manager of a protected estate and require advice about making a remuneration application because you have not agreed to do that work
free of charge and need assistance on how to go about bringing an application, you should contact the Streeterlaw Commercial Dispute Resolution team
for more information. Streeterlaw has broad experience in relation to matters in the Supreme Court’s Equity and Protective List and can assist with
the formulation of the orders, the preparation of the affidavit evidence and drafting of supporting submissions.

Contact Streeterlaw’s Commercial Dispute Resolution Team by phone on 8197 0105 or by emailing advice@streeterlaw.com.au.

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