He Was Locked in a Nursing Home. Until His Legal Rights Were Restored

‘‘I’ll make you a promise. I can get you out of here. I can give you your freedom, and you will have a great life.”
– Paul Falzon

Key Facts

• Matter Type: Public Trustee Dispute / Financial Management Order / Capacity
• Client: Jim, with support from his nephew
• Estate Value: Approximately $3 million
• Risk: Public Trustee control, placement in a locked dementia ward
• Legal Basis: Financial Management Order, NCAT Guardianship Division
• Strategy: Independent capacity assessment, revocation of Power of Attorney
• Outcome: Jim regained independence; new Power of Attorney, Enduring Guardian, and Will drafted

The Original Situation – When Liberty Was Taken Away

Jim was an older man living independently, with substantial assets and sufficient means to support himself. But, his son raised concerns about his mental wellbeing, and under suspicious circumstances, booked him into a nursing home.

Jim’s mental cognition was formally assessed while he was heavily medicated.

In that drugged state, his ability to think clearly was affected. Yet the assessment still concluded that he lacked the capacity to adequately manage his personal and financial affairs. So, control of his life was passed to the Public Trustee in NSW.

Even though Jim had $3 million in assets, more than enough to afford premium in-home care, he found himself living in a locked ward with advanced dementia patients. It was an environment completely removed from the life he had known, and one he found deeply distressing.

And, to make matters worse, Jim’s original lawyer had abandoned him, leaving him without an advocate to challenge what had happened. Until, that is, Paul Falzon received a desperate 5 am call from Jim, saying just three words …

‘Get me out!’

The Challenge – Proving Capacity Under Tough Circumstances

Jim’s nephew became aware of the situation and stepped in to help. Jim spoke to him and was adamant. He didn’t want to remain in the facility, he was capable of making his own choices, and he wanted to return to living life on his own.

But, the system had already come to a different conclusion.

So, to restore Jim’s freedom, Falzon Legal had to prove that he had the mental capacity to make his own decisions. This was difficult because:

• Medical gatekeeping – the son tried to block access to Jim for medical assessments.
• The original assessment – previous tests had been performed when Jim was medicated, skewing the results toward incapacity.
• COVID-19 restrictions – travel and visitation were restricted, making timing critical.
• The Public Trustee – they had formal control over Jim’s financial affairs under a court-sanctioned order.

Yet, every one of these obstacles could be overcome. Finding and executing those solutions before the window closed required urgency, creativity, and a total refusal to accept the situation as fixed.

Taking Action With Falzon Legal – The Strategic Rescue

The priority was clear … show Jim had mental capacity.

Falzon Legal took a powerfully proactive approach:

• Independent Assessment – we found a geriatrician willing to perform an urgent assessment. Despite the son’s attempts to block this, the assessment proved Jim had mental cognition.
• Revocation of Power of Attorney – since capacity was confirmed, Jim could revoke the old Power of Attorney. Once done, he then had the legal right to live wherever he chose and to make his own legal decisions.
• The Great Escape – in a race against time and pending border closures, we coordinated with Jim’s nephew. While the other side was unaware, Jim was moved out, his car was placed in a shipping container, and he was flown to Cairns just as the borders closed.

‘His lawyer wrote to us and said Jim had to simply accept his circumstances and fate. We disagreed. He was a free man before the other side even knew what had happened.’
– Paul Falzon

The Outcome – A Life Lived in Freedom

Jim spent the rest of his life living happily in Queensland with his nephew, properly cared for, and living on his own terms in the environment he had chosen. Photographs from this time showed Jim as a completely transformed man, vibrant and smiling compared to the ghost he had become in the nursing home.

Before he passed some time later, Falzon Legal had ensured Jim’s wishes were protected. We drafted:

• A new Power of Attorney.
• A new Enduring Guardian document.
• A new Will that reflected his true wishes, not those of the son who had locked him away.

Jim died a free man, having chosen exactly how he wanted to live the remainder of his life and who he wanted to inherit his legacy.

Key Takeaways for You

Capacity assessments, when a patient is medicated, frightened, and disoriented, aren’t infallible. And this can mean life-changing consequences.

Yet, Jim’s situation arose partly because the right legal documents weren’t in place before the crisis hit. A current and properly executed Power of Attorney and Enduring Guardianship appointment means the person you trust is already authorised to act.

The Public Trustee is never involved. The family cannot fight over who is in charge. You have already decided who is in control, while you still could.

What You Should Do

• Create a Power of Attorney to ensure someone you trust looks after your financial affairs if you cannot.
• Appoint an Enduring Guardian to look after your wellbeing decisions if you lack capacity.
• Put these documents in place early while you have full mental clarity, reducing the risk of disputes or challenges about your capacity later on.
• Avoid Public Trustee horror stories by acting today.

‘Sometimes the most important outcome isn’t about money or assets, it’s about giving someone back control over their own life.’
– Paul Falzon

How Falzon Legal Can Help

If you or a loved one is facing a dispute regarding care, capacity, or control of assets, or you want to protect your finances and wellbeing should the unexpected happen, Falzon Legal is ready to act:

• Testamentary Capacity – ensuring Wills are made with a sound mind.
• Power of Attorney – making and revoking appointments.
• Enduring Guardianship – protecting your rights to choose your own medical and lifestyle care.
• Challenging a Will – fighting against Wills made under suspicious circumstances.

Case Related Power of Attorney and Public Trustee FAQs

What’s a Financial Management Order in NSW?

It’s a legal order that’s usually issued by NCAT, which takes the power to manage money away from an individual and gives it to someone else. This happens when a person doesn’t have the mental capacity to look after their own finances.

The court can appoint a family member, but if things are complicated or contested, they often appoint the NSW Public Trustee and Guardian.

Can You Revoke a Power of Attorney in NSW?

Yes, they can revoke the Power of Attorney if they still have the legal capacity. You can stop an Attorney’s authority by signing a Revocation of Power of Attorney. This is what we used to give Jim back his independence.

What’s the Difference Between Power of Attorney and Enduring Guardianship?

Power of Attorney addresses your bank accounts, property, and legal documents. Enduring Guardianship is about you, where you live, who you see, and what medical treatment you receive.

So, for example, without a Guardian, you could have millions in the bank but no say in which nursing home you’re placed in.

Can a Financial Management Order Be Challenged?

Yes! A Financial Management Order (FMO) in NSW can be challenged, reviewed, or revoked. This is done by applying to the NSW Civil and Administrative Tribunal (NCAT) Guardianship Division.

If the original assessment was wrong, done under the wrong conditions, or the order wasn’t in the person’s best interests, it may be overturned.

How Do You Get the Public Trustee Removed in NSW?

If someone regains or is found to still have the mental capacity to manage their own affairs, they can apply to revoke a Financial Management Order through NCAT’s Guardianship Division. This is the process that returned Jim’s independence, once a new, independent capacity assessment confirmed he was capable of managing his own affairs.