AHB v NSW Trustee and Guardian

[2012] NSWADTAP 37

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

AHB v NSW Trustee and Guardian [2012] NSWADTAP 37

Hearing dates:

8 August 2012

Decision date:

08 August 2012

Jurisdiction:

Appeal Panel - Internal

Before:

Magistrate N Hennessy, Deputy President
L Goodchild, Judicial Member
B Thomson, Non-Judicial Member

Decision:

1. Leave to extend the appeal to the merits of the Tribunal's decision is refused.

2. The Tribunal's decision is affirmed.

3. The appeal is dismissed.

Catchwords:

APPEAL - decision by NSW Trustee to sell property - appeal on a question of law and on merits - no error of law - leave refused to appeal on merits

Legislation Cited:

Administrative Decisions Tribunal Act 1997
NSW Trustee and Guardian Act 2009
Guardianship Act 1987

Category:

Principal judgment

Parties:

AHB (Appellant)
NSW Trustee and Guardian (Respondent)

Representation:

AHB (Appellant in person)
NSW Trustee and Guardian (Respondent)

File Number(s):

129011

Publication restriction:

S126 of the Administrative Decisions Tribunal Act 1997 applies

 Decision under appeal 

Jurisdiction:

9108

Citation:

[2012] NSWADT 76

Date of Decision:

2012-04-27 00:00:00

File Number(s):

113308

REASON FOR DECISION

1. HER HONOUR: AHB, we have been able to come to a decision and the decision is to dismiss the appeal and to affirm the Tribunal's decision.

1. AHB has appealed against a decision of the Tribunal made on 27 April 2012, affirming a decision of the New South Wales Trustee and Guardian, to sell his mother's home.

1. The decision to sell the home came about as a result of a decision by the Public Guardian who has guardianship over AHB's mother, and can make decisions about where she should live. The Public Guardian made a decision that AHB's mother should live in a higher care facility than that in which she currently resides and that in order to do so, a bond of around $350,000 would be required.

1. As AHB's mother's financial manager, the New South Wales Trustee was asked to form a view as to how the money for the bond could be raised. The New South Wales Trustee looked at the assets of AHB's mother and her income and her liabilities and came to a decision that the correct decision was to sell her property. As I have said, the Tribunal below made a decision which affirmed the New South Wales Trustee's decision.

1. AHB has appealed against that decision to the Appeal Panel. He can appeal on a question of law as of right or with leave on the merits: Administrative Decisions Tribunal Act 1997, s 114 and 115. AHB confirmed that his grounds of appeal were as set out in a document dated 1 August 2012 and received by the Tribunal on 2 August 2012. That document sets out three grounds of appeal and I will deal with them each in turn.

1. The first ground is that his mother does have the legal capacity to make a specific decision and that the Tribunal was wrong in assuming that she did not have that capacity. The question of AHB's mother's capacity to make a decision about her financial affairs has been decided previously by the Guardianship Tribunal. The Guardianship Tribunal, applying the principles in the Guardianship Act 1987, came to the view that AHB's mother lacked capacity to make financial decisions and that the New South Wales Trustee should be appointed to make those decisions. Consequently, the issue of AHB's mother's legal capacity to make financial decisions was not an issue that the Tribunal below had to determine. Consequently, the appeal in relation to ground one, fails.

1. The second ground of appeal is that the Tribunal below did not take into account the principles in the NSW Trustee and Guardian Act 2009, as set out in s 39. That Act sets out the general principles applicable to people exercising functions under the relevant chapter, ch 4, with respect to protected persons or patients. Two of those principles were highlighted by AHB, namely the principle in para (b), that "the freedom of decision and freedom of action of such persons should be restricted as little as possible" and para (d) that "the views of such person in relation to the exercise of those functions, should be taken into consideration."

1. We accept that these are principles which the Tribunal below was bound to take into account. In other words, when exercising any discretion under the Act, these principles must be kept in mind. The Tribunal below did keep these principles in mind, as did the New South Wales Trustee in making the decision. That is plain from para 14 of the decision where the Tribunal refers to the evidence of AHB, as to his mother's wishes. AHB told the Tribunal that his mother wished to retain her home and produced a number of recordings of discussions that he had had with her. The Tribunal below listened to those tapes and was satisfied of certain things, including that AHB's mother expressed a desire that her home not be sold. However, the Tribunal also formed the view that that was not a reasoned or well thought through decision. The Tribunal also made reference to the fact that Ms Stormont, who represents the New South Wales Trustee, spoke with AHB's mother to ascertain her views in relation to the option of taking out a loan to pay the bond. That evidence is recorded at para 15 of the decision. Importantly, at paras 52 and 53 of the decision, the Tribunal says:

"On the material before me, I am not satisfied that the protected person has provided or is capable of providing a considered opinion on the benefits or otherwise of selling her home. I do accept that, like most people, she would like to keep her home. That is a wish or desire rather than a considered and calculated opinion reached after considering all the options available to her."

Taking into account, all these factors and the principles in s 39 of the New South Wales Trustee and Guardian Act 2009, I agree that the correct and preferable decision is to sell the protected person's property at Gymea Bay.

1. Given those comments, we are satisfied that both the New South Wales Trustee and the Tribunal below, took into account the principles in s 39 of the New South Wales Trustee and Guardian Act, in particular, the principles set out in paras (b) and (d) of that section.

1. The third ground of appeal relates to the merits of the Tribunal's decision. We refuse leave to extend the appeal to the merits of the Tribunal's decision. The decision that the Tribunal made was inevitable on the evidence provided. AHB agreed at the hearing today that if a bond in the sum of $350,00 was required, he would be unable to finance that amount, even if he were permitted to rent out rooms in his mother's home. He clarified that if the amount of the bond was between $200,000 and $250,000, then it may be possible for him to raise that amount of money but that is not the sum that is envisaged would be needed to pay a bond.

1. AHB has also belatedly suggested today that he may be able to obtain a loan from friends to pay the bond. In our view, this is all too little too late and the Tribunal made the correct decision, taking into account material that was before them at the time. We understand that there is also a possibility that AHB's mother may be able to be assessed for an EACH package which would enable her to return to her home and be provided with services which would allow her to live in her own home. However, whether or not she is assessed as being suitable for such a package and whether or not the Public Guardian decides that that is an appropriate course for her to follow, are matters that are not for this Appeal Panel to decide.

1. The decision is that the appeal is dismissed and the decision of the Tribunal below is affirmed.

**********

Decision last updated: 05 October 2012