CCQ v NSW Trustee and Guardian

[2016] NSWCATAD 23

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CCQ v NSW Trustee and Guardian [2016] NSWCATAD 23
Hearing dates:	30 November 2015
Date of orders:	10 February 2016
Decision date:	10 February 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	NSW Trustee and Guardian – Deed of release – Sale of house – accommodation costs - best interests of protected person – financial management order
Legislation Cited:	Administrative Decisions Review Act, 1997 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Guardianship Act 1987 NSW Trustee and Guardian Act 2009 Succession Act 2006
Cases Cited:	McDonald v Guardianship Administration Board [1993] 1 VR 521 YG & GG v Minister for Community Services [2002] NSWCA 247 at [25]
Category:	Principal judgment
Parties:	CCQ (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	Solicitors: CCQ (Applicant in person) NSW Trustee and Guardian (Respondent)
File Number(s):	1510453
Publication restriction:	S64 Civil and Administrative Tribunal Act 2013 – prohibiting the publication of the names of the witnesses, applicants and the person under the management of NSW Trustee and Guardian.

Reasons for decision

1. This is a case about an elderly woman, who, in order to protect her identity, will simply be called ‘the mother.’ She has been living in an aged care facility (‘the care facility’) after moving out of her home in 2012. In 2013, the NSW Trustee and Guardian (NSWTG) was appointed as her financial manager, following a finding by the Guardianship Tribunal that she lacked mental capacity on the basis of dementia. There has been no challenge to this finding. In 2014, the NSWTG made a decision to sell the mother’s house to enable her to meet her outstanding accommodation costs so she could continue to reside in the care facility. The mother has four adult children, one of whom was living with his mother prior to her move to the care facility and who continued to live there afterwards. For the purposes of this decision, he will be referred to as ‘the younger son.’ Following his opposition to the sale of the house, the NSWTG commenced proceedings to have him evicted from the property.

2. To encourage the younger son to vacate the house, the NSWTG decided to gift $100 000 from the mother’s estate to each of her four children. This gift would be made upon both the vacating of the property by the younger son and the signing of a deed of release by all four children agreeing to waive their rights to dispute their mother’s will.

3. Following the younger son’s refusal to sign the initial deed, a second deed was drafted, which similarly gifted $100 000 to each of the four children upon the vacating of the property by the younger son. The remaining three siblings requested the NSWTG to make amendments to the deed before they would agree to sign it. Instead of amending this second deed, the NSWTG entered into a separate agreement with the younger son, offering him a $100 000 advance on his inheritance from his mother’s estate if he agreed to vacate his mother’s home. This decision was confirmed on internal review on 23 June 2015.

4. It is this decision which is now to be reviewed, following an application for review lodged by the applicant, CCQ, on 10 August 2015. It is common ground that the applicant was not notified of the internal review decision until 14 July 2015. Accordingly, the application for review has been lodged within time. (see rule 24(3) of the Civil and Administrative Tribunal Rules 2014)

5. Specifically, the decision under review is the decision of the NSWTG to execute a Deed of Release containing the following provisions:

• That the younger son agrees to vacate his mother’s property within 60 days of the date of the deed;

• That the property is to be sold;

• That from the sale proceeds, the younger son will be paid the sum of $100 000 as an advance on his inheritance.

6. This matter was heard by the Tribunal shortly after the sale of the mother’s house. Part of the proceeds of the sale were then used to pay monies owed by the mother to her care facility.

7. The applicant, who is the mother’s older son, was unrepresented at the Tribunal. The mother’s younger daughter and older daughter (‘the daughters’) support the application and attended the Tribunal hearing. The younger son did not attend. The daughters support the decision of the NSWTG to sell their mother’s house but have concerns about the deed of release signed by the younger son.

8. The applicant and the daughters are of the view that the NSWTG did not adequately consider their requested amendments to the earlier (second) deed of release, most importantly that a clause be retained requiring court approval of the deed. The applicant and the daughters wished to retain this clause to prevent their mother’s will from being contested after her death. They are of the view that the NSWTG should not have abandoned this second deed in favour of entering into a separate deed of release with the younger son.

9. The applicant told the Tribunal that he wrote to the NSWTG on 24 April 2015 with his requested amendments to the second deed. The applicant told the Tribunal that he did not receive a response to this request, instead discovering that on 11 May 2015, a decision had been made by the NSWTG to enter into a deed of release solely with the younger son. It is the applicant’s submission that NSWTG should have first considered the applicant’s requested amendments to the second deed before entering into a separate deed of release with the younger son, which provided him (and not the other three children) with an advance on his inheritance to the amount of $100 000. The applicant also submitted that, prior to executing this deed of release, his mother’s views should have been taken into account: namely that her children be treated equally.

10. Ms McMillan, for the NSWTG, emphasised the urgency in having the younger son vacate his mother’s house so that the house could be sold and the mother’s outstanding accommodation costs paid to the care facility. Ms McMillan told the Tribunal that, prior to the sale of the house, there had been a real risk of the mother being removed from the care facility for failure to pay her accommodation costs. For this reason, it was in the best interests of the mother that the younger son vacate the house as a matter of urgency. Ms McMillan conceded that the NSWTG should have advised the applicant that the younger son was not prepared to sign the (second) deed of release that required a court’s approval.

11. When asked what he was requesting from the Tribunal, the applicant said that he wanted this ‘error to be noted.’ Now that the house has been sold, the applicant would like a payment of $100 000 be made by the NSWTG to each of the remaining three children (namely the applicant and the two daughters). This, he submits, would ensure that, in keeping with their mother’s wishes, each of her children would be treated equally. It would also avoid any perceived sense of unfairness by the younger son when, on distribution of the mother’s estate, he receives less money than his siblings (because of the earlier advance of $100 000). The applicant is concerned that this may cause problems for him and the older daughter, who are joint executors of their mother’s will.

12. Ms McMillan advised the Tribunal that NSWTG would be prepared to consider an application by the three remaining children (that is, the older son, the older daughter and the younger daughter) for a payment of $100 000 to each of them as an advance on their inheritance from their mother’s estate.

COnsideration

13. In reviewing the subject decision the Tribunal ‘stands in the shoes’ of the NSWTG and is required to make the ‘correct and preferable decision’ having regard to any relevant factual material and any applicable written or unwritten law (s63 of the Administrative Decisions Review Act 1997). This includes any material that postdates that decision (YG & GG v Minister for Community Services [2002] NSWCA 247 at [25]).

14. The review is to be conducted ‘without any presumption as to the correctness of the decision’: McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530. On review the Tribunal may exercise all of the functions that are vested in the NSWTG.

15. Chapter 4 of the NSW Trustee and Guardian Act 2009 (‘the Act’) is concerned with 'management functions relating to persons incapable of managing their affairs.' Under s.56(a) of the Act, the NSWTG may exercise all the functions necessary and incidental to management and care of the estate of the managed person.

16. In force is an order from the Guardianship Tribunal committing the management of the mother’s estate to the NSWTG. In managing that estate the NSWTG may exercise any of the powers vested in it by s.16 of the Act. Relevantly, these include selling the protected person’s real and personal property.

17. It is not in issue that in exercising its functions under Chapter 4 of the Act, the NSWTG, and the Tribunal in exercising its power on review, must give paramount consideration to the interests of the mother. Section 39 of the Act provides that it is the duty of everyone exercising functions under Chapter 4 of the Act (management functions relating to persons incapable of managing their affairs) to observe the following principles:

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation.’

18. The decision in question is the decision to execute a deed of release containing the following provisions:

• That the younger son agrees to vacate his mother’s property within 60 days of the date of the deed;

• That the property is to be sold;

• That from the sale proceeds, the younger son will be paid the sum of $100 000 as an advance on his inheritance.

19. The question for the Tribunal is whether this is the correct and preferable decision.

20. It is undisputed that the mother has been living in her care facility since 2012. Since that time she has been unable to pay her accommodation costs. For this reason, she has been at risk of being evicted from the care facility. It is common ground that her only asset is her home. It is also common ground that the younger son, who continued to live in the house after the mother moved to her care facility, had refused to comply with eviction notices. The evidence before the Tribunal was that significant legal expenses would be incurred to the mother’s estate to compel the younger son’s removal from the house.

21. The Tribunal agrees with the NSWTG that a more practical solution was to try secure an agreement with the younger son to vacate the premises by way of the initial deed, which would distribute $100 000 to each of the mother’s four children upon sale of house and which would include a provision that each of the children waive their right to contest their mother’s will, with a requirement for court approval pursuant to section 95 of the Succession Act 2006.

22. On the evidence before it, the Tribunal finds that the younger son did not sign this initial deed.

23. The Tribunal is satisfied that the younger son did sign a second deed of release, which did not require court approval pursuant to s95 of the Succession Act 2006. The Tribunal accepts that the applicant and the daughters requested amendments to this deed, which they believed was still subject to negotiation with the NSWTG. The Tribunal accepts that the applicant and the daughters were still awaiting a response from NSWTG to their request to amend the second deed of release when they discovered that a third deed, to which they were not party, had been signed by the younger son.

24. Given the difficult circumstances in which the mother found herself, namely threatened eviction from her care facility for failure to pay her accommodation costs, I am satisfied that it was in her best interests for the younger son to vacate her house as a matter of urgency. Given the need for the younger son vacate his mother’s house so that it could be sold and the mother’s accommodation costs paid, the decision of the NSWTG to execute a deed of release solely with the younger son to secure his agreement to vacate the premises was the correct and preferable one and should be affirmed. In reaching this conclusion, I have had regard to the principles under the Guardianship Act, in particular the welfare and interests of the mother.

25. There is no dispute that the applicant and the older daughter are the executors of their mother’s will and that in the will, each of the four children are to inherit in equal shares. It is also agreed that in accordance with the deed of release between the younger son and the NSWTG, $100 000 has been paid to the younger son as an advance on his inheritance. To give effect to this deed of release, the younger son will therefore receive $100 000 less than his siblings on the death of his mother. I understand the concerns of the applicant, as one of the executors, that this may cause friction between the children. I also understand the force of the applicant’s request that, to avoid possible friction at that time, the NSWTG should now consider an application by the applicant and the daughters that they each be given $100 000 from their mother’s estate, as an advance on their inheritance. Upon their mother’s death, this would then leave all four children on an equal footing and enable them to inherit from their mother’s estate in equal shares, as has been their mother’s expressed wish.

26. The Tribunal does not have jurisdiction to consider the applicant’s request – this is a matter for the applicant and the daughters to raise with the NSWTG. Ms McMillan has indicated that NSWTG would be prepared to consider such a request.

ORDER

27. The decision under review, namely that of the NSW Trustee and Guardian dated 23 June 2015, is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 February 2016