PV v NSW Trustee and Guardian [2011] NSWADT 89 (4 May 2011)

Last Updated: 20 June 2011

Administrative Decisions Tribunal New South Wales

Case Title:	PV v NSW Trustee and Guardian
Medium Neutral Citation:	[2011] NSWADT 89
Hearing Date(s):	9 February 2011
Decision Date:	04 May 2011
Jurisdiction:
Before:	J Millar, Judicial Member
Decision:	Affirmed
Catchwords:	NSW Trustee & Guardian - Powers as to Property - Proposed Sale of Residence
Legislation Cited:	NSW Trustee & Guardian Act, 2009 Administrative Decisions Tribunal Act, 1997
Cases Cited:	Protective Commissioner v. D & Ors (2004) NSWCA 216
Texts Cited:	Nil
Category:	Principal judgment
Parties:	PV (applicant) NSW Trustee & Guardian (respondent)
Representation
- Counsel:
- Solicitors:	In person (applicant) Ms C Phang (respondent)
File number(s):	103193
Publication Restriction:	Nil

Judgment

A. INTRODUCTION

1. These proceedings were commenced on 17 August 2010 by the Applicant, PV, filing an Application for Review of a decision made by the NSW Trustee and Guardian that a residential property in Sydney owned by PV's mother should be sold. The background circumstances to the making of that decision are as follows.

2. PV's mother is approximately 93 of age. She has three sons including PV. PV's siblings took no part in the proceedings. PV.'s mother owns a property in Sydney which was the family home for many years and the home in which she resided before she became resident in nursing home accommodation from 2007. She is presently accommodated at the Garrawarra Aged Care Centre.

3. PV's mother was the subject of guardianship and financial management proceedings in the Guardianship Tribunal of New South Wales as a result of which an Order was made on 24 July 2007 appointing the Public Guardian as her guardian and orders were made placing her estate subject to management under the Protected Estate's Act, 1983 and committing management of the estate to the Protective Commissioner. Following the enactment of the NSW Trustee and Guardian Act, 2009 the NSW Trustee and Guardian is now charged with the management of her estate.

4. On 6 November 2009 the NSW Trustee and Guardian made a decision to sell the residence. On that date a letter was forwarded to PV informing him of the decision and indicating that the decision had been made because his mother was now residing permanently at the aged care centre and the sale proceeds would ensure that she had sufficient funds in order to meet her needs for care and comfort. It was also noted that she had not visited the property since June 2009 and that her care needs may prevent her from having further stays at the property. As it appeared, in the opinion of the Protective Commission, that she no longer derived benefit from her property, the sale of the property was a decision which would be in her best interests.

5. Following the making of that decision, PV and one of his brothers requested review of the decision. The internal review of the decision was undertaken by Elaine Tamblyn, Assistant Director, Client Services Branch, and on 14 December 2009 the Applicant was advised in writing of the decision made by Ms Tamblyn. A Statement of Reasons in detail was provided with notice of the decision undercover of a letter of 14 December 2009. As a result of the internal review, a decision was made to vary the original decision in terms set out in paragraph numbered 5 at the end of the Reasons for Decision. Essentially, the decision was to the effect that upon the basis that PV and both of his brothers agree to the property being leased at full market value, the sale of the property could be reviewed in 12 months' time. Alternatively, all three brothers could agree to accept the risk of their mother's home being uninsured (and presumably indemnify her estate in this regard in the event of loss). It was also proposed that funds of $25,000.00 per annum be deposited to the trust account of their mother to ensure her care needs could be met. If these conditions were not satisfied then the property was to be sold in accordance with the original decision.

6. Following the internal review of the original decision, some months passed by in order to allow the decision of the review officer to be considered and arrangements to be put in place if PV and his brothers agreed to the terms set out above.

7. On 6 August 2010 the NSW Trustee and Guardian decided that the home should be sold as the proposed arrangements referred to in the review officer's decision had not been the subject of agreement. The letter advising the Applicant of the decision dated 6 August 2010 again gave as reasons for decision the fact that this mother was permanently residing at the age care centre, that the sale proceeds would ensure that PV's mother had sufficient funds for her care and comfort needs and that the sale was in her interests given that she was no longer deriving any financial or emotional benefit from the property.

B. APPLICANT'S CASE

8. PV attended at the hearing and represented himself. In addition to making oral submissions to the Tribunal, he provided as evidence a number of documents. The Applicant tendered a letter from Reverend Daniel Morris dated 24 December 2009 which speaks very highly of PV and referred to the fact that PV was a loving son towards his mother and had provided exceptional care to her, that he travels regularly to Sydney to see her and that he has her best interests at heart in the decisions that he makes regarding her care. The basis for these statements in relation to PV's contact with his mother was not stated. That is, it is not clear whether these statements are based upon what PV has told Reverend Morris or whether Reverend Morris has personal knowledge of these matters.

9. The Applicant provided a letter from Reverend Chris Wright dated 4 February 2010 which again spoke highly of PV's character. A further letter dated 9 February 2010 from Charlie Hart, a stock and station agent, was provided by the Applicant which also spoke highly of him in relation to his character.

10. The Applicant provided a report of Lynette Wong and Associates, a speech pathologist, dated 7 February 2011 concerning a language assessment undertaken of PV's mother by Ms Wong on 7 February 2011. This report recorded that PV's mother has a moderate to severe receptive/expressive dysphasia affecting all modalities of communication. The Applicant also provided the Tribunal with two pages of a document from Alzheimers' Australia concerning various aspects of vascular dementia. The Tribunal has taken those documents into account in reaching its decision.

11. In his evidence to the Tribunal, the Applicant stated that his mother lived at home alone until she was 89 years of age, which was about five years ago. Her husband had died in 2000. The home which was the subject of the decision made by the NSW Trustee and Guardian was built by PV's father in 1944 and designed by PV's mother. They moved into the home in 1945. It has been the family home consisting of two parents and three children.

12. In 2005 PV said that his mother had a minor stroke and shortly after that had a massive stroke. He believes that she could recover and that she could be rehabilitated. PV said that some in the family said that he was wasting his time. Nonetheless, in 2006 he took his mother home for one month to the family home and found that she improved upon returning to stay there. He acknowledged that she was dysphasic but found that her speech and cognitive ability improved upon returning home. The original period of one month extended to about one and a half years up to mid-2007. She has been living in supervised accommodation since that time.

13. PV does not believe that her placement in the current aged care centre at which she resides is appropriate for her. At that centre he observed patients screaming and running around in circles. He obtained permission to take her home for seven nights and found that she was very happy when he did so.

14. In 2009 PV's mother broke her leg at the aged care centre which prevented any home visits for some time. She was unable to walk for some time. It had been PV's practice to stay at the home when he came to Sydney, as he lives in country New South Wales, when he would attend at the aged care centre to visit his mother.

15. PV advised that he provided the article concerning vascular dementia to the Tribunal because he perceives that many people do not understand the nature and effect of that condition.

16. PV has keys to the family home and advised that he comes about once a month for four or five days at a time to Sydney. This amounts to about 10 or 11 times a year and he attends upon his mother during these visits to Sydney.

17. It is PV's firm view that his mother obtains a sense of her identity from the home, the location and the neighbours. In his opinion she has an awareness when she is there that it is her home and he notices a clear change in her when she is at the home in that her faculties are enhanced while she is there. Accordingly, even though she does not live there anymore, in his opinion it is very beneficial for her to have the home available to visit when he is able to take her there during times when he is staying in Sydney. PV acknowledged that if his mother lost any cognitive ability there would be little point in taking her to the home, but he believes that she has not reached that stage at present and that she should receive the benefits of regular attendance at the home by him taking her there during his stays in Sydney but these benefits will cease to be available to her if the property is sold.

C. NSW TRUSTEE AND GUARDIAN'S CASE

18. The NSW Trustee and Guardian provided the Tribunal with the documents required by s.58 of the Administrative Decisions Tribunal Act, 1997. The NSW Trustee and Guardian was represented at the hearing by Ms Phang, solicitor. Essentially the case for the NSW Trustee and Guardian was set out in the Reasons for Decision of Ms Tamblyn, a copy of which was forwarded to PV on 14 December 2009 together with a letter dated 6 August 2010 setting out the more recent decision made to sell the property following the period of time allowed to see if PV and his siblings could or would meet the conditions referred to in Ms Tamblyn's original decision which allowed for the sale of the property to be reconsidered after 12 months.

19. Among the documents provided to the Tribunal by the NSW Trustee and Guardian was a memorandum dated 6 October 2010 which provided an up to date financial analysis which determined how much was required in order to meet PV's mother's regular needs.

20. At the hearing, Ms Tamblyn informed the Tribunal that PV's mother continues to receive the age pension as her sole source of income. She advised that debts in her estate are now significant. An amount of $8,789.15 is owed in fees to the aged care centre which increase at $39.50 per day. Council rates are owed in respect of the subject property of $1,748.70, a health insurance premium of $1,053.35 was required to be paid in March 2011, Smart Care was owed $700.00 and the Trustee account has a balance of $705.97. Ms Tamblyn acknowledge that Mr Atkins had paid a sum of $8,000.00 to the account.

21. It was argued for the NSW Trustee and Guardian that a substantial period had been allowed in order to see whether the conditions referred to in the review officer's decision could or would be met by PV and his siblings. This has not eventuated. In view of the debts which have been incurred in the estate and the expenditure required to be met in order to ensure that PV's mother can receive the care and comfort to which she should be entitled, it remained necessary for the home to be sold.

D. REASONS

22. In determining an application for review, s.63 of the Administrative Decisions Tribunal Act, 1997 provides that the Tribunal is to decide what is the correct and preferable decision having regard to the material before it. Such material includes the Application for Review, the s.58 documents provided by the NSW Trustee and Guardian, the documents tendered at the hearing by PV, and the evidence and submissions of the parties made at the hearing.

23. In considering the decision under review, it is important to recognise the position of a manager of the estate of a protected person when making decisions in the course of the management of the estate. In Protective Commissioner v. D & Ors (2004) NSW CA 216, McColl JA (Mason P and Giles JA agreeing) said at 173 that:

"The manager stands in the shoes of a person who is unable to manage his/her affairs by virtue of circumstance beyond his/her control. The manager exercises a protective and benevolent function, protective in the sense that the manager's task is to ensure the estate is managed in a manner to secure the protected person's estate for the person's continued maintenance. In this respect the 1983 Act and its predecessors reflected the "parental and protective" jurisdiction historically exercised by the Crown both in exercise of his prerogative and pursuant to the Prerogative Statutes."

24. The home which is the subject of the decision made by the NSW Trustee and Guardian is a property which, according to documents provided by the NSW Trustee and Guardian, is said to be worth $600,000.00. On 6 October 2010 there was a balance of $798.00 in PV's mother's trust account with the NSW Trustee and Guardian. At the date of the hearing, the evidence was that the balance was $705.97. The income received by the estate is the aged pension which was $9,227.00 per annum as at October 2010. The Applicant had paid to the estate and to its trust account the sum of $8,000.00 on 7 May 2010 in order to assist with the reduction of outstanding fees and which caused fees to be paid up to 21 May 2010.

25. The NSW Trustee and Guardian provided details of projected expenses to be incurred in a year by the estate. These expenses included $14,418.00 per annum for daily care fees at the aged care centre together with additional amounts totalling $8,177.00 per annum for personal needs including health insurance and $2,596.00 per annum for expenses in relation to the property to which should be added an amount of $2,000.00 per annum by way of provision for house maintenance. This latter amount need not be included in the event that such maintenance was carried out by a member of the family. The estate would also incur in a year fees of $6,605.00 for management of the estate by the NSW Trustee and Guardian. Against this level of expenditure the income of the estate is $9,227.00 from the age pension. Clearly, the estate cannot pay its way if the property is retained and there seems to be no prospect for this situation to improve. This is likely to lead to creditors who remain unpaid refusing to provide services.

26. The Applicant took issue with the need for an expense of $4,784.00 per annum for companion care, the cost of which was assessed at about $92.00 per week. In the s.58 documents provided to the Tribunal, it was clear that the need for this service has been considered by the Public Guardian and that the Guardian's view is that the service is beneficial for PV's mother and must be maintained. However, it is clear from the documents provided to the Tribunal that PV does not agree with the Guardian in this regard, or at least has indicated in the past that such an expense was unnecessary since as a carer for his mother, he has, in his opinion, a better understanding of her needs.

27. The Tribunal notes PV's evidence to the effect that his mother obtains great benefit from her visits to the home with him and that he notices that she experiences improvement in her level of impairment by returning to visit the property. On the other hand, a file note dated 23 June 2009 contained in the s.58 documents provided to the Tribunal indicates that the director of nursing from the aged care centre has advised that in her view the visits to the home are of little benefit to PV's mother.

28. In the course of addressing the Tribunal, PV indicated that he may be prepared to meet expenses for his mother which are incurred in respect of her estate in order to ensure that the home is retained provided that he can then be treated as a creditor of the estate. It was indicated to PV that there was no evidence as to the extent of his financial circumstances and whether he was in a position to assure the Tribunal or the NSW Trustee or Guardian that he was in a position to make good any undertakings he gives to meet any or all of the expenses incurred in relation to his mother's estate. PV then gave some detail in relation to his financial circumstances, the effect of which to indicate that he is a person who has considerable assets at his disposal and may be taken to be someone in a position to meet the excess of expenses over income on his mother's estate if he wished to do so.

29. However, as was pointed out by Ms Phang on behalf of the NSW Trustee and Guardian, such an arrangement would only be successful if there were to be no issues concerning the expenses which were being incurred on her estate. Decisions about expenditure are made by the NSW Trustee and Guardian which is charged with the management of her estate by the financial management order originally made by the Guardianship Tribunal in 2007. Decisions concerning expenditure also involve taking into account decisions made by the Public Guardian as the guardian for PV's mother concerning matters such as the need for and type of care which should be provided to PV's mother, including companion care. As has already been recorded, this is a topic about which there has been a difference of opinion in that PV does not see a need for such a service whereas the Public Guardian does identify that need on the part of PV's mother. Further, there appears to be a difference of opinion between PV and the director of nursing at the aged care centre as to whether home visits are of any benefit to PV's mother. The significance of these matters is that they highlight the potential for disputes to arise as to whether particular expenditure should be incurred in the estate with the result that if PV does not accept the decision of the NSW Trustee and Guardian and/or the Public Guardian in relation to services to be provided and paid for out of the estate, this is likely to lead to disagreement as to wherether PV would cover that expense to the extent that the estate itself is unable to do so.

30. This problem is avoided if the home can be sold and realise its substantial value, after paying the costs of sale, such that the funds may then be invested in order to provide interest income out of which estate expenses can be paid.

31. It is important to note that recognising the arguments put by PV originally in response to the first decision made and reviewed by the NSW Trustee and Guardian, the decision was varied upon review in order to provide the opportunity for PV and his siblings to put arrangements in place in order to relieve the financial difficulty in which the estate presently finds itself by the leasing of the home and the provision of funds referred to in the reasons for that decision. Given the time which was allowed for these matters to be considered and given that no such commitment was received from PV and his siblings, the decision was made on 6 August 2010 that the home should be sold.

32. In the Tribunal's view, the financial position of the estate is such that it is now in the best interests of PV's mother for the home to be sold and the proceeds applied to meet the outstanding debts and to provide a fund from which capital amounts may be paid to meet debts and otherwise to provide funds which may be invested to yield income to help defray the regular expenses incurred on the estate.

33. The Tribunal recognises that the sale of the home, which the Tribunal was informed was designed by PV's mother and built by his father, is a sad decision. However, in all of the circumstances, the Tribunal is satisfied that, there having been time allowed for alternative options to be pursued, the only course remaining open is to have the home sold in order that the manager of the estate can continue to manage it in the best interests of PV's mother. This will be done by providing the funds necessary to meet the current debts and the recurrent expenses to the extent the latter are not covered by the age pension.

E. CONCLUSION

34. The Decision under review is affirmed.

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