Abe v NSW Trustee and Guardian

[2011] NSWADT 208

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	ABE v. NSW Trustee and Guardian [2011] NSWADT 208
Hearing dates:	8 April 2011
Decision date:	31 August 2011
Before:	J Millar, Judicial Member
Decision:	Decision under review affirmed
Catchwords:	Guardianship - accommodation decision
Legislation Cited:	Guardianship Act, 1987 Administrative Decisions Tribunal Act
Category:	Principal judgment
Parties:	ABE (Applicant) NSW Trustee and Guardian (First Respondent) AFI (Second Respondent) AFJ (Third Respondent)
Representation:	ABE (Applicant in person) C Phang for NSW Trustee and Guardian (Respondent) AFI (2nd Respondent) AFJ (3rd Respondent)
File Number(s):	113031
Publication restriction:	S126 of the Administrative Decisions Tribunal Act 1997 applies

REasons for decision

1. General Division (J Millar, Judicial Member); The General Division of the Tribunal presently has before it an application filed 7 February 2011 for review of a decision made by the Public Guardian on 1 December 2010 which was affirmed on 13 January 2011 following an internal review by Ms Frances Rush of the Office of the Public Guardian.

History

1. This matter concerns AFK, who is the mother of ABE, AFI and AFJ. AFK is aged approximately 88 years and resides in Coffs Harbour.

1. On 24 November 2009 the Guardianship Tribunal made a limited guardianship order by which it appointed the Public Guardian as AFK's guardian for a period of 12 months assigning to the guardian functions including the function of making decisions concerning her accommodation. On 29 November 2010 the guardianship order was reviewed by the Guardianship Tribunal and renewed for a further period of three years. The Public Guardian was re-appointed as AFK's guardian with functions including the function of determining her accommodation.

1. On 1 December 2010 the Public Guardian made a decision not to relocate AFK from her home at Coffs Harbour to a home which ABE proposed that should be purchased for her mother at Tweed Heads, being a home in which ABE would reside with her mother. The nature of the home to be purchased is a fabricated relocatable home to be located at a retirement village resort at Tweed Heads.

1. Following the making of the decision by the Public Guardian, on 23 December 2010 ABE sought review of the decision. Internal review of the decision was conducted by Ms Frances Rush who, on 13 January 2011, decided to affirm the decision under review.

1. On 7 February 2011 ABE lodged an application for review of the decision by the Tribunal.

1. On about 18 March 2011 ABE's sisters, AFI and AFJ, applied to be joined as parties to these proceedings. On 25 March 2011 AFI was joined as a second respondent and AFJ was joined as a third respondent by the Tribunal.

ABE's Case

1. In 1999 AFK's husband died. In 2001 AFK sold the family home and purchased a villa unit in Coffs Harbour. In the same year, AFK suffered a stroke as a result of which she was cared for by ABE at the latter's home before returning to her own home. In about 2007 ABE moved in to live with her mother at her villa unit. She has continued to reside with her mother since that time. At the hearing she gave evidence she is in receipt of a carer's pension but also undertakes nursing at a private hospital. She works for about four hours at night.

1. In addition to the application for review, ABE provided a handwritten statement and a copy of the review officer's decision containing highlighted portions which ABE says are incorrect. It is clear from the handwritten statement and many other documents contained in the s.58 documents which have been provided to the Tribunal that there is a very poor relationship between ABE on the one hand and her sisters on the other. Her sisters, AFI and AFJ, are both opposed to their mother being relocated to live at Tweed Heads with ABE. ABE says in her written statement that her sisters are jealous and spiteful and have caused her a lot of misery and stress. ABE explains that she had been taking care of her mother for some nine years and has actually been living with her for over three years.

1. ABE relies heavily in her case on the fact that it is her mother's clear view that her mother wants to move from Coffs Harbour, that she loves the area around the Tweed River and that she has visited the proposed village where the home which is proposed would be purchased is located. ABE says that her mother is very enthusiastic about living at that location. She says that her mother says that the home in which she presently lives is hers and she should be able to sell it. She says that her mother finds it hard to understand why someone else has "guardianship" of her home when it is in fact her home. ABE says that she provides her mother with good care and that the service providers which attend her mother are satisfied that her mother is being well cared for.

1. In addition to the material filed with the application for review, ABE also provided to the Tribunal a copy of a note apparently written and signed by her mother dated 21 March 2011, which is witnessed by another person who says that she witnessed AFK write and sign the document. Several supporting letters were provided from AFK's eldest grandchild and a number of family friends which are in their terms supportive of ABE's position in this matter and which speak highly of the quality of care provided to AFK by ABE.

1. ABE also provided further statements of her own in response to the decision of the review officer pointing out much more limited involvement on the part of her sisters in the daily care of her mother than ABE undertakes and pointing out that the decision which has been made by the Public Guardian demonstrates that her mother's wishes have not been heard.

1. ABE provided a letter from a Coffs Harbour real estate agent dated 15 March 2011 which expresses the opinion that in the current market the home at Coffs Harbour in which ABE presently resides with her mother could sell for between $245,000.00 and $255,000.00. She also provided a letter from a Tweed Heads real estate agent dated 11 March 2011 indicating that a home in the village where it is proposed ABE would live with her mother is on the market with the owner being willing to accept an offer of $219,000.00 to purchase the home. The home was manufactured in October 1989 and has features which are described in the agent's letter. ABE explained that if the present home at Coffs Harbour were sold and the home at Tweed Heads purchased, there would be some funds left over to provide for her mother's support.

AFI and AFJ's Case

1. AFI and AFJ spoke with the Tribunal by telephone during the hearing and provided a letter by AFI dated 5 April 2011 addressed to the Tribunal and a further letter dated 5 April 2011 from AFJ described as a "Response" by AFJ to the submission made by ABE.

1. AFI advised that she lives at Emerald Beach and that it takes her approximately 20 to 25 minutes to drive into Coffs Harbour to the home where her mother resides with ABE. She did not wish to add anything to the document dated 5 April 2011 which she had forwarded to the Tribunal. When asked by the Tribunal she indicated that the travel time from Coffs Harbour to Tweed Heads by car was about four hours. She confirmed that she sees her mother for a few hours about once a fortnight when she generally takes her mother out from her home.

1. AFJ confirmed that she lives in Coffs Harbour and, in her opinion, the travel time by car from Coffs Harbour to Tweed Heads is about three and a half hours. She explained that she sees her mother every second weekend and generally collects her at about 1.30pm or 2.00pm on a Sunday and returns her to her home at about 4.00pm or 5.00pm the same day. She relied upon her Response dated 5 April 2011.

1. The documents provided by AFI and AFJ indicated that there are many factual disputes between ABE one the one hand and her sisters on the other concerning the extent to which ABE's sisters have provided care and services to their mother, that their mother is not left alone by ABE and that their mother has no roots left in Coffs Harbour.

1. A significant matter relied upon by AFI and AFJ is the fact that it will be much more difficult for them to see their mother on a regular basis if she relocated to Tweed Heads having regard to the distance between the home where she would live and where AFI and AFJ presently live.

NSW Trustee and Guardian's Case

1. Ms Phang, solicitor who appeared for the NSW Trustee and Guardian, indicated that she relied upon the reasons provided by the review officer on 13 January 2011 in support of the decision under review and submitted that the decision should be affirmed.

Reasoning

1. Section 63 of the Administrative Decisions Tribunal Act, 1997 provides that in determining an application for review of a reviewable decision the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it. In making its decision, the Tribunal is required to have regard to the general principles set forth in s.4 of the Guardianship Act, 1987 which include that the welfare and interests of the person about whom the decision is being made are to be given paramount consideration, the views of such a person in relation to the decision should be taken into consideration and the importance of preserving family relationships of such a person should be recognised.

1. Having regard to the reliance placed by ABE on her mother's expression of view concerning the decision made by the Public Guardian, that is her view that she wishes to move to Tweed Heads and no longer live in Coffs Harbour, it is important to consider the significance which is to be given to that expression of view. As has been referred to above, the Tribunal was provided with a note apparently written by AFK and dated 21 March 2011 in which she said that she would like to leave her home as soon as possible and would like to move "up north to the Tweed Village near the river. I can't wait to get there and it will be lovely to live there."

1. When the Guardianship Tribunal made the guardianship order on 24 November 2009 by which it appointed the Public Guardian as AFK's guardian, it recorded that at that time there was no dispute between the three sisters that their mother had a disability which prevented her from making important life decisions although ABE apparently was of the view that her mother had a higher level of functioning than was the view of her sisters. The Tribunal also noted written evidence from Dr J O'Callaghan, geriatrician, which described AFK as suffering from moderately severe mixed vascular/Alzheimer's type dementia as a result of which she lacked the capacity to make appropriate decisions regarding her future needs. The Tribunal recorded that Dr O'Callaghan noted that AFK's cognition appeared to have deteriorated during the year and that she had become very reliant upon ABE for personal care and support. He described AFK as a frail, very forgetful lady who scored 13/30 on a mini mental state examination. Dr I Bruce, physician, reported that AFK had moderately severe dementia and doubted her ability to live on her own but noted that she was coping by sharing a house with her daughter. He recorded her score on mini mental state examination as 18/30.

1. Dr Jason Lo Tam is AFK's general practitioner in Coffs Harbour. In the review officer's decision of 13 January 2011 it was recorded that Dr Lo Tam noted AFK's increasing dementia, dependence and disorientation.

1. Although there may be differences of opinion between ABE and her sisters as to their mother's level of cognitive impairment and disability, it is clear from the findings made by the Guardianship Tribunal, having regard to the medical evidence then available, that AFK was suffering from dementia. It is now some two years later and the fact that Dr Lo Tam might report increasing dementia and disorientation would not be at all surprising. It would also be consistent with the opinions of AFI and AFJ given in reliance upon their dealings with their mother. There is other opinion evidence which supports this view. For example, in the s.58 documents provided to the Tribunal at D8, a service provider, Steven Bullock, records comments made by support workers who have attended upon AFK which indicate many problems concerning AFK's welfare as at November 2010 as a result of which the support workers believe AFK requires placement in a residential facility by reason of concerns about her frailty, risk of falls, cognition and ability to perform daily living activities. Without necessarily accepting that these opinions are well founded, the Tribunal is satisfied upon the whole of the available evidence that any expression of view by AFK must be treated with great caution as it seems very likely that she does not have a full appreciation of the ramifications of the move which is proposed for her and the consequences it may have for her continued regular contact with her other two children.

1. There is a further issue which must be considered, namely the fact that for the proposed move to be successful it will be necessary to sell the home in which AFK currently resides and purchase the relocatable home in the village at Tweed Heads. In addition to the guardianship order made by the Guardianship Tribunal, it also made an order that AFK's property and affairs be placed under management and that management of her affairs be committed to the Protective Commissioner, now the New South Wales Trustee and Guardian. While no decision has yet been made in relation to the sale of the Coffs Harbour home and the purchase of the home in Tweed Heads, the Tribunal has in the s.58 documents a copy of an email at document E30 dated 2 July 2010 from an officer of the New South Wales Trustee and Guardian to ABE. This email records that the Financial Planning Unit of the New South Wales Trustee and Guardian's office examined the affordability of the Coffs Harbour home being sold and the relocatable home being purchased at Tweed Heads. It was recommended that these transactions not take place. Concern was expressed at the fact that one relocatable home at the village had been on the market for almost four months and was 15 to 20 years old. It was noted that when one purchases such a home it is the home alone which is purchased, not the land. If different accommodation was to be required in the future for AFK, then she may need to pay an accommodation bond and it may present difficulties in finding appropriate accommodation if she is unable to easily sell the relocatable home located on a leasehold title.

1. Further, if the move to Tweed Heads were to proceed it would be necessary to sell the Coffs Harbour property and then consider the purchase of a property in Tweed Heads in circumstances where it would be necessary for AFK to obtain some temporary accommodation in the meantime. When one has regard to the costs which would be incurred in selling the Coffs Harbour property and the costs of purchasing the Tweed Heads property, then depending upon the sale and purchase prices actually obtained (as opposed to the estimates currently given), there may be very little funds left over and the quality of the title obtained by the purchase of the Tweed Heads property would be less than the quality of the title, namely strata title, which presently exists in relation to the Coffs Harbour property. In short, it appears to be the opinion of the New South Wales Trustee and Guardian, although only a recommendation at this stage, that the sale of one home in order to purchase the other may prove to be a bad investment decision and hence contrary to AFK's best interests.

1. While the Tribunal takes into account as it is required to do, the views which have been expressed by AFK concerning the decision under review, the Tribunal gives them diminished weight having regard to AFK's cognitive impairment by reason of the dementia which she suffers. The Tribunal also has regard to the importance of maintaining family relationships for AFK's benefit. The relationships can be best maintained by regular attendance by all three daughters upon their mother. This is happening at the present time and is made more convenient having regard to AFK's current location in Coffs Harbour. Having regard to the driving distance between Tweed Heads and Coffs Harbour, it is clear that it will be much more difficult for her daughters who remain living in or near Coffs Harbour to visit their mother in Tweed Heads. This means that she is likely to see them less. The maintenance of her relationships with all three daughters is important for AFK's welfare. This is a factor which weighs strongly against changing the decision under review.

1. A further matter to consider is that AFK currently has the benefit of a number of services being provided to her in Coffs Harbour. The s.58 documents indicate services which have been provided to AFK while living in Coffs Harbour. Support workers have had access to AFK and have expressed a view that she could access more services if she wished to do so and was not prevented from doing so. AFK had been attending the Waratah Respite Centre in 2010 but it seems that, according to a letter to the Public Guardian from the manager of the Centre dated 10 November 2010 being document D9, that AFK ceased to be a regular attender at the Centre and her weekly spot had to be allocated to somebody else. The manager expressed the opinion that AFK would benefit from the socialisation and stimulation which could be provided for her by regular attendance at the Centre. The Tribunal notes that ABE apparently has expressed the opinion at the Centre that her mother does not wish to come and that they should not have to attend. Whether or not this is correct the Tribunal's concern is that it is evident that in Coffs Harbour all services which could be of benefit to AFK are readily available and she is already known to the service providers. Whether or not all of these services are so readily available where AFK would live at Tweed Heads is not clear. However, what is clear is that she would need to start over again in becoming familiar with any service providers assuming that she was willing to attend upon or accept service provision and that she was not prevented from doing so.

1. Accordingly, while the Tribunal takes account of AFK's expressed views concerning the relocation to Tweed Heads, it gives greater weight to the ability for her three daughters to be able to maintain regular contact with her while she remains living in Coffs Harbour in a home with which she is now familiar, with a general practitioner with whom she is familiar and having the benefit of service providers to whom she has already become known and who are apparently aware of her needs and ready to assist her. As AFK's welfare and interests are the paramount consideration in the decision to be made, the Tribunal is satisfied that her welfare and interests will be best promoted by remaining living at her home in Coffs Harbour. The Tribunal is satisfied that this is the correct and preferable decision to be made upon this review.

Decision

1. The Tribunal affirms the decision under review.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

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Decision last updated: 31 August 2011