DZJ v NSW Trustee and Guardian

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DZJ v NSW Trustee and Guardian [2022] NSWCATAD 58

Hearing dates:

30 July 2021, 24 November 2021, 22 January 2022

Date of orders:

21 February 2022

Decision date:

21 February 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Leal, Senior Member

Decision:

The decision of the NSW Trustee and Guardian dated 2 March 2021 to sell the Ashfield property is affirmed.

Catchwords:

ADMINISTRATIVE LAW – review under section 62 NSW Trustee and Guardian Act 2009 (NSW) - NSW Trustee and Guardian – Interests and welfare of protected person – Whether to sell a protected person’s property – Financial management order – Cancellation of Age pension - s16 NSW Trustee and Guardian Act 2009 (NSW).

Legislation Cited:

Administrative Decisions Review Act 1997

NSW Trustee and Guardian Act 2009

Social Security Act 1991

Social Security Guide (version 1.291 - Released 7 February 2022)

Cases Cited:

DOZ v NSW Trustee and Guardian [2021] NSWCATAD 280

McDonald v Guardianship Administration Board [1993] 1 VR 521

P v NSW Trustee and Guardian [2015] NSWSC 579

Category:

Principal judgment

Parties:

DZJ (Applicant)
NSW Trustee and Guardian (First Respondent)
FHE (Second Respondent)

Representation:

Solicitors:
Applicant (Self-Represented)
Ms M Rice, NSW Trustee & Guardian (First Respondent)
FHE (Second Respondent)

File Number(s):

2021/00090257

Publication restriction:

The publication of the names of the applicant, the second respondent and the protected person is prohibited.

Reasons for decision

Summary

1. This is a review against the decision made by the NSW Trustee on 2 March 2021 to sell a property owned by FHF, an 84-year-old woman with advanced dementia who now resides in an aged care facility and who I will refer to as ‘the mother.’ The NSW Trustee has been her financial manager since 6 June 2018 and her son, DZJ, is the applicant in this matter. FHF’s daughter, FHE, who I will simply refer to as ‘the daughter’ is the second respondent in these proceedings. Prior to his mother entering care, DZJ, who I will call ‘the son’, cared for his mother in the Ashfield property which is the subject of these proceedings and where the son still resides. There is no dispute that, in light of the mother’s advanced dementia, she would be unable to contribute to these proceedings.

2. For the reasons that follow, I have affirmed the decision of the NSW Trustee to sell the Ashfield property.

Background

3. The mother was placed in care on 14 October 2015, prior to which the son had been her carer and was living with her in the Ashfield property. For the purposes of calculating the mother’s financial situation, the Ashfield property was exempt from being counted as an asset for two years after the mother went into care, namely until 13 October 2017.

4. On 5 June 2018, the Guardianship Division of this Tribunal ordered that the mother’s estate be made subject to management by the NSW Trustee and Guardian. This decision was made in light of the inability of the son…