AMG v NSW Trustee and Guardian
[2012] NSWADT 254
•04 December 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: AMG v NSW Trustee and Guardian [2012] NSWADT 254 Hearing dates: 30 November 2012 Decision date: 04 December 2012 Jurisdiction: General Division Before: Magistrate N Hennessy, Deputy President Decision: The decision of the NSW Trustee and Guardian to sell AMG's property is affirmed.
Catchwords: MERITS REVIEW - decision to sell house - applicant in nursing home and debts accumulating - negligible possibility of returning home to live independently - correct decision to sell house Legislation Cited: Administrative Decisions Tribunal Act 1997 Category: Principal judgment Parties: AMG (Applicant)
NSW Trustee and Guardian (Respondent)Representation: A Savva, (Agent for AMG)
Ms R Stormont (solicitor for Respondent)
File Number(s): 123304 Publication restriction: S126 of the Administrative Decisions Tribunal Act applies
REASONS FOR DECISION
Introduction
Ms Savva, AMG's agent and former neighbour, has asked the Tribunal to review a decision of the NSW Trustee and Guardian to sell AMG's house. AMG is living in an aged care facility but says she is being held against her will and wants to return home. According to the NSW Trustee and Guardian, AMG has schizophrenia and is unable to live independently at home. She also has substantial debts to the aged care facility. During the hearing, which AMG was not able to attend, I explored options other than selling the house. Unfortunately, there is no realistic alternative and I have affirmed the NSW Trustee's decision. One effect of my decision is that the Tribunal's previous order staying the decision to sell the property is no longer in place.
Background
As well as the NSW Trustee having power over AMG's financial affairs, the Public Guardian has been appointed to make decisions about where AMG should live and the services she should receive. The decision to sell the house is partly based on the opinion of the Public Guardian that AMG will never be well enough to return home and live independently. That opinion is supported by Robyn McGregor, the Staff Specialist of Psychiatry of Old Age at the Concord Centre for Mental Health. Ms Savva disagrees with that opinion but does not have any medical or other evidence to back up her view.
On 5 November 2012, AMG asked the Public Guardian to provide written reasons for the decision that she should reside permanently in an aged care facility. Ms Savva has not seen a reply to that letter by 30 November 2012, the day of the hearing. If the Public Guardian provides reasons for its decision that AMG needs to remain in an aged care facility, Ms Savva may apply for a review of that decision as agent for AMG. For such an application to have any prospects of success, she would have to provide evidence that AMG is capable of living in the community with appropriate services. The only medical evidence before the Tribunal at the moment is the report from Robyn McGregor which expresses a definitive view that AMG will not be returning home at any time, but will remain in residential care.
The Tribunal has power to review the decision of the NSW Trustee and Guardian to sell the house: NSW Trustee and Guardian Act 2009, s 16(g) and s 62. The Tribunal does not have power at the moment to review any decision the Public Guardian has made about where AMG should live.
When reviewing the decision to sell the house, the Tribunal must decide what the "correct and preferable" decision is having regard to any relevant factual material: Administrative Decisions Tribunal Act 1997 (ADT Act) s 63(1).
Concerns
Ms Savva represented AMG as her agent at the hearing. Her husband, Mr Savva, also spoke to the Tribunal. They had several concerns including that:
(1) AMG has not had her voice heard in relation to decisions made by the NSW Trustee and Guardian;
(2) The current aged care accommodation is not suitable for AMG and her needs are not being met;
(3) The NSW Trustee and Guardian has spent money unnecessarily on upkeep and repairs to AMG's house and on other expenses that it should not have paid;
(4) AMG should be given a 6 month trial of returning home with services so that an assessment can be made as to whether she can live independently. In the meantime, the house should not be sold.
Consideration
AMG's financial situation is that she owns her own home which is worth approximately $270,000. Her furniture and personal effects are estimated to be worth about $1000. She receives a pension of $772.60 per fortnight and has $1836 in the NSW Trustee and Guardian Trust account. Her liabilities are a debt of $6,403 to the nursing home and ongoing payments for nursing home fees of $590.94 per fortnight. During the period from September 2011 to September 2012, her income from a pension and investments was $19,806.80. Her expenditure for the same period was $21,122.32 leaving a shortfall of $1315.52. The cost of renovating the property for the rental market has not been assessed but the appraisal by a real estate agent suggests that the property is due for a complete renovation. No funds are available for that purpose.
Ms Savva agreed that unless AMG returns home to live she cannot afford to keep the house. As I have said, the current evidence is that there is no prospect of AMG returning home to live independently, even for a trial period. That conclusion means that the correct and preferable decision is that the house be sold. The remaining concerns of Ms Savva and her husband, while important in themselves, are not relevant to the issue of whether the house should be sold. I will deal with each of them briefly.
Mr and Ms Savva provided evidence that mail is not being brought to AMG's attention by the aged care facility. I had no evidence from the aged care facility as to whether that is the case and it is not a matter that is relevant to my decision. But if that allegation is correct, the Public Guardian may wish to give the aged care facility some advice about that matter.
If Ms Savva is not satisfied with the quality or standards of the aged care facility in which AMG is living, she should make those concerns known to the Public Guardian.
Mr and Ms Savva's concerns about whether the NSW Trustee and Guardian have spent AMG's money unnecessarily are not matters which I can comment on in these proceedings. I would urge Ms Savva to advise the NSW Trustee and Guardian and/or the Public Guardian in writing of her concerns if she has not already done so.
Finally, AMG's welfare and best interest require that her property be sold. While the sale will mean that AMG will not be able to live in that home again, the existing evidence points firmly to that not being a realistic option.
Orders
The decision of the NSW Trustee and Guardian to sell AMG's property is affirmed.
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Decision last updated: 04 December 2012
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