EPG v NSW Trustee and Guardian

Case •

[2021] NSWCATAD 276

•

22 September 2021

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: EPG v NSW Trustee and Guardian [2021] NSWCATAD 276
Hearing dates: 12 August 2021
Date of orders: 22 September 2021
Decision date: 22 September 2021
Jurisdiction:Administrative and Equal Opportunity Division
Before: S Leal, Senior Member
Decision:

1. The decision of the NSW Trustee dated 2 February 2021 is set aside.

In substitution, the following decision is made:

2. The applicant’s property is to be leased in its entirety (including the self-contained study-cottage and garden shed) from 1 February 2022;

3. The applicant’s friends, MY and JB, are to be consulted in relation to the clearing of the property;

4. If the property is not cleared by 1 February 2022, the NSW Trustee is to make arrangements for the property to be cleared;

5. Prior to bulk storage of all contents, an inventory is to be taken to ensure that the contents of the property are stored in consultation with the applicant. This may be facilitated with the assistance of the applicant’s nominated friend, social worker or facility staff;

6. Documents and photographs required by the applicant to complete her autobiography while resident in her aged care facility should be retained or stored where they may be readily accessible as best as practically possible;

7. When choosing a storage location, the NSW Trustee should ensure that the documents and material required by the applicant to continue her memoirs are easily accessible either by placing all the documents and relevant anthropological material at the front of any storage space leased; or alternatively in a separate storage area to the remainder of the applicant’s household contents.

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 lease a protected person’s property – financial management order – s16 NSW Trustee and Guardian Act 2009 (NSW) – accessibility of property contents.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2014 (NSW)
Guardianship Act 1987 (NSW)
NSW Trustee and Guardian Act 2009

Cases Cited:

McDonald v Guardianship Administration Board [1993] 1 VR 521

Category:Principal judgment
Parties: EPG (Applicant)
NSW Trustee and Guardian (Respondent)
Representation:

Solicitors:
Ms R Sawtell (Respondent)

Guardian Ad Litem:
Dr K Johnson (Applicant)
File Number(s): 2021/00060493
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act, (2013) the publication of the applicant’s name is prohibited.

Reasons for Decision

Summary

  1. A retired anthropologist, the applicant is now in her nineties and has had a particularly fascinating life. She holds a doctorate in anthropology and has spent much of her professional life living in Papua New Guinea among tribal peoples whose lives and customs she has researched and documented. The applicant’s adopted daughter is from Papua New Guinea and over the years, the applicant has returned to live in her daughter’s tribal village. Following travel restrictions imposed in light of the COVID-19 pandemic, her adopted daughter has been unable to travel to Australia to visit the applicant.

  2. Following a fall in 2020 that saw her hospitalised, the applicant has been living in an aged care facility. She wishes to return to live in her own house but, in light of the medical evidence before me, this is unlikely to occur.

  3. The applicant is under the care of the Public Guardian who has the decision-making functions of accommodation, healthcare, medical and dental consents and services.

  4. The applicant has been under the financial management of the NSW Trustee and Guardian since 21 May 2020. On 6 December 2020, the NSW Trustee and Guardian decided to lease the applicant’s house to enable her to meet the cost of her accommodation in the aged care facility where she is currently living.

  5. The NSW Trustee and Guardian found this to be in the applicant’s best interests for the following reasons:

  1. The applicant is in aged care and not expected to return home;

  2. Retaining and leasing the property will provide the applicant with ongoing income;

  3. The property is vacant and not generating an income.

  1. On 2 February 2021, this decision was internally reviewed and the following decision made:

  1. The applicant’s property be leased;

  2. Prior to bulk storage of all contents, an inventory is to be taken to ensure that only sentimental and items of value are stored in consultation with the applicant. This may be facilitated with the assistance of your nominated friend, social worker or facility staff. Important documents and photographs for purpose of your completing your autobiography, while you remain in Aged Care Facility, will be retained or stored where they may be readily accessible as best as practically possible

  1. The internal reviewer made this decision for the following reasons:

  1. NSW Trustee and Guardian has a fiduciary duty and responsibility as the applicant’s financial manager;

  2. Leasing of the property provides an income for the applicant and reduces the risks of deterioration and vandalism if it were to remain vacant;

  3. It appears unlikely that the applicant will be able to return home in the near future in light of health-related concerns;

  4. Leasing the property provides the opportunity for the applicant to return home in the event she is deemed well enough to do so at a later date.

  1. The applicant does not want her house to be leased. Instead, she wishes to return to her house.

  2. In her application to have this decision reviewed, the applicant disagrees that the decision to lease her house is in her best interests because it was based on records that are now a year out of date and because she will be in a position to return home soon.

  3. The applicant was not legally represented in these proceedings. Dr Katherine Johnson was appointed by the Tribunal as Guardian Ad Litem for the applicant (pursuant to s45(4)(a) of the Civil and Administrative Act 2013.) Dr Johnson made sure that the applicant was aware of the material put forward in this matter and had discussed it with her. Following their application, I allowed the applicant’s friends, JB, MY and BY, to take part in the hearing.

  4. As the hearing was held during the COVID-19 lockdown, these proceedings took place remotely with the use of audio-visual equipment. The applicant was assisted with the technology by a nurse employed at the applicant’s aged care facility.

  5. For the reasons that follow, I have determined that the applicant’s house should be leased.

RELEVANT LEGAL MATTERS

  1. As set out above, on 21 May 2020, the Guardianship Division of this Tribunal found that the applicant was incapable of managing her affairs. As such there was a need for another person to manage her affairs for a financial management order to be made. A financial management order was made pursuant to the provisions of Part 3A of the Guardianship Act 1987 and the applicant’s estate was committed to management by the NSW Trustee.

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

  3. In managing the applicant’s estate, the NSW Trustee is empowered to exercise a series of powers under s16 of the NSW Trustee and Guardian Act, which include leasing and selling a managed person’s real property. On this basis, I am satisfied that it is within the power of the NSW Trustee and Guardian to lease the applicant’s property.

  4. In accordance with s62 of the NSW Trustee and Guardian Act 2009, the applicant is entitled to apply to this Tribunal to review the decision of the NSW Trustee to lease her property.

  5. In reviewing the decision, the Tribunal ‘stands in the shoes’ of the NSW Trustee and is required to make the ‘correct and preferable decision’ having regard to any relevant factual material and any applicable written or unwritten law. The Tribunal may set aside, vary or affirm a decision before it. (s63 of the Administrative Decisions Review Act 1997).

  6. 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 vested in the NSW Trustee.

  7. The NSW Trustee and, on review, this Tribunal must give paramount consideration to the interests of the applicant. In accordance with section 39 of the NSW Trustee and Guardian Act, the following principles must be observed:

‘(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.’

Issues

  1. The following issues arise in this matter and are considered below:

  1. What are the applicant’s wishes?

  2. What is the applicant’s financial situation?

  3. What is the applicant’s current health situation?

  4. Should the applicant’s house be leased? If so, when?

  5. What should happen to the contents of the applicant’s house?

  6. How might the applicant be assisted to document her life story?

What are the applicant’s wishes?

  1. Prior to the decision of the NSW Trustee, the applicant wrote to explain why she did not agree that it would be in her best interests for her house to be leased. In oral evidence before me, the applicant said that she remained of this view.

  2. In support of her position, the applicant gave the following reasons as to why it would not be in her best interest for her house to be rented:

  1. She expects to return home when adequately mobile;

  2. Her mental health has been detrimentally affected by her time in the aged care institution where she is now residing and she is concerned her stay will be extended if her house is leased;

  3. She feels she has lost her autonomy since residing in her aged care facility;

  4. She has found it impossible to continue writing her autobiography in the aged care institution and, to complete her autobiography, needs access to the records of her past travels and work which are stored at her property;

  5. She has the financial means to fund her expenses without leasing the house;

  6. There is no security risk to having the house remain empty given that the neighbours keep an eye on the house for the applicant and a long-standing caretaker has continued to maintain the house in the applicant’s absence;

  7. She needs accommodation for her daughter when she is visiting from Papua New Guinea (once the COVID-19 restrictions have lifted).

  1. In oral evidence in these proceedings, the applicant stated that her health is improving and that she will be walking again soon.

  2. If a determination is nevertheless made to lease her house, the applicant has the following requests:

  1. That the tenants not be given access to either the study-building or tool shed in the back garden, which contain the applicant’s documents, to which she needs access;

  2. That the applicant and her friends, JB and MY, be present at the packing of the household goods and be permitted to work on the papers and photographs to be included in the applicant’s autobiography;

  3. That the applicant be permitted to spend time in her study to work on her autobiography;

  4. That any tenancy agreement be short-term (three to four months) and that the applicant be consulted about any subsequent rental agreement;

  5. That she be accommodated in an aged-care facility where she is able to continue writing her autobiography and is able to listen to classical music.

  1. In correspondence from the applicant to the Guardian Ad Litem, Dr Katherine Johnson, dated 26 July 2021, the applicant confirms her wish that her house be neither leased nor sold. This is because she wishes to go back to live in her house as soon as possible and for as long as possible. She concedes that she will ‘probably have to go to another nursing home to finish my days unless my health improves dramatically.’ In relation to nursing home accommodation, she expressed a wish to move to accommodation where she could have a room large enough to enable her to access some of her documents in order to continue writing her memoirs.

  2. Dr Johnson agreed that the applicant’s ‘health and especially her mobility has not improved sufficiently for her to be allowed to return home.’

  3. Although Dr Johnson noted the applicant’s view that she hopes to become more mobile with more focused physiotherapy in order to return home, Dr Johnson noted the views of the director of the applicant’s aged care facility that ‘[EPG]’s mobility is unlikely to improve to the extent required for her to be allowed to go home even with extra physiotherapy.’

. What is the applicant’s financial situation?

  1. The applicant is a non-concessional resident at her aged care facility and is required to pay a refundable accommodation deposit of $200 000.00 which can be paid upfront by way of a refundable deposit or, alternatively, as a daily payment of $22.47 (which incurs 4.10% per annum interest.) This is in addition to a basic daily fee of $52.25 and an extra service fee of $57.00 per day. Given that the applicant has been paying the daily payment fee in lieu of the refundable accommodation deposit, her daily fees to remain at her aged care facility are $131.72.

  2. According to a statement of advice from Mr Kumar, Financial Planner for the NSW Trustee and Guardian, dated 26 November 2020, the applicant’s funds would be depleted within four years if her property is not leased and instead remains vacant. There is no dispute that the applicant’s funds have continued to deplete since then.

  3. In his advice, Mr Kumar stated that:

  1. As the applicant does not wish her property to be sold, repairs to an amount of $20 000 should be undertaken prior to the house being leased;

  2. By selling the applicant’s shares and consolidating her term deposits, she will be able to continue to pay her daily accommodation payment which will make leasing her property (rather than selling it) affordable for approximately five years;

  3. If additional capital funds are required in the future, the property can be sold at that time.

  1. According to the NSWTG’s Financial Planning Unit, it would be affordable for the applicant’s property to be retained and leased for a period of five years.

  2. Leasing the property for a weekly amount of $500 would enable the applicant to afford the fees of her aged care facility with the shortfall to be sourced from her savings.

  3. At the moment, the house is vacant and incurs weekly expenses of $225 to maintain the garden.

  4. The NSW Trustee is concerned that if the leasing of the applicant’s house continues to be delayed, the option to lease the house will become less viable, leaving the sale of the house as the only option to enable the applicant to afford the cost of her aged care facility.

  5. The applicant has a single room in her aged care facility and because she pays the extra services fees, her room is larger and its fittings and furniture superior in standards to those rooms available to residents paying only a basic fee.

  6. Dr Johnson agreed that ‘it is clear from her financial records that [EPG] simply does not have sufficient funds for her to receive the same level of care at home as she is currently receiving in her aged care facility.’

  7. According to Dr Johnson:

[EPG] is and has been a fiercely independent professional who has assisted all manner of communities in her time in [Papua New Guinea] and surrounding islands to the extent that her name is known in these regions. Unfortunately, she does not have the income to support her preferred way of life, namely, to go home and have the time she requires to write her memoirs in the way she can.

  1. The applicant’s friends, JB and MY, who took part in these proceedings, agreed that the applicant simply does not have the income to afford the level of care she needs were she to return home.

  2. Although the applicant expresses a wish to return to her home, on the evidence before me, I am satisfied that the applicant does not have the financial means to afford the level of care she would require. I am satisfied that, despite the issues considered below, the applicant has settled into her single room at her aged care facility. On the evidence before me, it would be in her best interests to be in a financial position that will enable her to continue to receive the extra services offered by her aged care facility.

What is the applicant’s current health situation?

  1. On 7 April 2020, the geriatrician, Dr Jonathan Dent, diagnosed the applicant with dementia.

  2. According to a neuropsychological assessment by Ms Claudia Kraiuhin dated 1 April 2020, in addition to having various physical conditions which contribute to her increased risk of falling, the applicant also has a multifactorial gait disorder and cognitive deterioration. Ms Kraiuhin and her treating team formed the view that the risks to the applicant’s safety are too great for her to return home.

  3. In his consultation letter for the applicant, Dr Dobrohotoff, the Clinical Director of Older Peoples Mental Health Service at the hospital where the applicant was admitted earlier this year, enumerates a list of health concerns for the applicant which include:

  1. dementia;

  2. depressive and anxiety disorder;

  3. gait and balance disorder with a history of fall and a fracture in 2017;

  4. osteoporosis.

  1. Following his review of the applicant on 19 March 2021, Dr Dobrohotoff gave the following opinion:

She reported that she was unhappy living in the facility and that she felt she was capable of living independently in her own home. I understand that she remains functionally impaired following a long hospital admission in 2020 and despite some improvement in her cognition, consistent with a slowly resolving delirium, she continues to have significant motor and cognitive impairments. She said her goal was to be able to write her memoirs and was able to tell us about her life as a nutritionist and then anthropologist working for many years in [Papua New Guinea]. I understand she had a successful academic career and that this has probably contributed to significant cognitive reserve in the face of a likely progressive dementing illness…There were no grandiose ideas, although some of her thoughts about living independently were probably unrealistic..In terms of her situation, I suggested that there could be some further exploration about alternative living arrangements considering her financial position might allow for a lot of supportive care in a more home like situation…Even if alternative accommodation is not found, I feel that she could be supported to write her memoirs with the assistance of a volunteer or aged care worker.

  1. In her submissions, the applicant’s Guardian Ad Litem, Dr Johnson, noted the views of the director of the applicant’s aged care facility that the applicant’s mobility is unlikely to improve to the extent required for her to be allowed to go home even with extra physiotherapy.

  2. Following conversations with the applicant’s psychologist, her mental health team, her former home care team and the director of the applicant’s aged care facility, Dr Johnson also formed the view that ‘it is most unlikely that [EPG] will be allowed home due to her mobility restrictions.’

  1. The Public Guardian holds the decision-making function of accommodation for the applicant. According to Counsel for the NSW Trustee and Guardian (and not disputed by the Guardian Ad Litem), the Public Guardian has decided that the applicant is not in a position to return home.

  2. Early in these proceedings, there was a suggestion that Dr Dobrohotoff would be happy to provide an updated report. As the Guardian Ad Litem, the applicant’s friends JB, MY and BY, the director of the applicant’s aged care facility and the respondent all agree that the applicant is not mobile enough to enable her to return home, I am of the view that I would not be assisted by a further report from Dr Dobrohotoff. I also note that the applicant agreed that she is unable to walk but that she is ‘getting better and will be walking soon.’

  3. On the evidence before me, I am satisfied that the applicant’s health is such that she continues to requires the high level care she is receiving in her aged care facility. I am also satisfied that she would be unable to afford this level of care were she to return home. On the evidence before me, I am satisfied that, while the applicant wishes to return home, it is the view of the Public Guardian, who retains decision-making functions for the applicant in relation to accommodation, that she is unable to do so. This accords with the medical evidence before me.

Should the applicant’s house be leased? If so, when?

  1. The NSW Trustee is of the view that the applicant’s house should be leased as soon as possible to enable an income to be drawn from it. If the property remains unleased, the applicant’s income shortfall will increase and the NSW Trustee will have no option but to sell the property, which the applicant does not wish to occur.

  2. In written submissions, the Guardian ad Litem, Dr Johnson, notes her conversations with the applicant’s friends, JB, MY and BY, and the conclusion they have reached, namely that ‘after many hours of contemplation about what is in [EPG’s] best interests, we have all concluded that a six-month reprieve to emptying [EGP’s] house, until February 2022, will allow for [her] emotional contents to be dealt with more effectively and give space for her household contents to be emptied with [EGP’s] blessings.’

  3. In a letter to this Tribunal, the applicant’s neighbour advised that she and her family have been keeping an eye on the applicant’s house and parking their cars in the applicant’s driveway to give the impression the house is occupied. The neighbour also confirmed that the house is maintained by a caretaker employed by the applicant.

  4. It is the view of the Guardian Ad Litem, Dr Johnson, as well as the applicant’s friends, JB, MY and BY, that the applicant’s house should be leased only from February 2022. This is to give the applicant time to accept she will not be in a position to return home herself and also to give MY and BY time to sort through the documents required for the applicant to continue writing her memoirs. Documents stored in the applicant’s property include diaries of the applicant’s time in Papua New Guinea which, according to the applicant’s friend MY, detail much of the applicant’s life work.

  5. The current COVID lockdown makes it impossible for MY and BY to travel to the applicant’s house to commence sorting through the house. This means they will have to wait until the restrictions are relaxed enough to allow them to do so.

  6. In terms of security, whilst a vacant property can be a risk, I accept the assurances by the applicant’s neighbours that she and her family are keeping an eye on the property. I also accept that the house is well and regularly maintained.

  7. In light of the applicant’s financial situation and health concerns, and for the reasons set out above, I am satisfied that the applicant’s property should be leased.

  8. For the reasons set out below, I am satisfied that the applicant’s property should be leased in its entirety (that is, including the separate cottage used as the applicant’s study and the shed).

  9. In terms of timing, I am satisfied that it would be in the applicant’s best interest if the property were leased from 1 February 2022. Given that the Covid-19 lockdown is still in place at the time of writing but that regional travel is being mooted by the end of October, this is an appropriate amount of time to allow for MY and BY (with JB’s assistance) to determine those documents and material needed to complete the applicant’s memoirs.

What should happen to the contents of the applicant’s house?

  1. The applicant’s friends, JB, MY and BY, attended these proceedings and each gave oral evidence before me.

  2. In her email dated 1 June 2021, JB proposed that the contents of the applicant’s house be stored in the small freestanding cottage and shed on the applicant’s property (separate to the main house).

  3. The NSW Trustee disagreed with this proposal. According to the NSW Trustee, it would be difficult to obtain insurance for the contents if stored in the cottage and shed, particularly as the applicant’s property is situated in a flood-prone area. It would also be difficult to ensure the security of the contents if the main house were leased while the cottage and shed were not.

  4. One proposal was for MY and BY to sort through the contents of the applicant’s house and, as a temporary measure, to put all the material relevant to the applicant’s career as an anthropologist in the freestanding study cottage on the applicant’s property.

  5. BY and MY said they would be happy to contact the authorities to confirm whether, given the current COVID-19 lockdown, they would be allowed to travel to the applicant’s house to sort through the contents of her house. BY told the Tribunal that a letter of explanation from the NSWTG might be of assistance in this regard.

  6. BY and MY advised that documents and material relevant to the applicant’s anthropological work were not currently confined to the freestanding study cottage but were stored throughout her property. It is for this reason they would need access to the house to check through it completely so that all the applicant’s anthropological work could be placed in the freestanding study cottage prior to the remainder of the applicant’s contents being packed up.

  7. JB has the keys to the applicant’s house and study but, given the COVID situation, would not be prepared to come to the house until the situation with the virus was clearer. BY and MY also confirmed their concern with the growing number of COVID cases and were also keen to wait until the situation had improved.

  8. Dr Johnson expressed the view that she appreciates, ‘as do [EPG’s] friends the need to deal with [EPG’s] financial circumstances sooner than later. After many hours of contemplation about what is in [her] best interests, we have all concluded that a six-month reprieve to emptying [her] house, until February 2022, will allow for [EPG’s] emotional contents to be dealt with more effectively and give space for her household contents to be emptied with [EPG’s] blessings.’

  9. The Guardian ad Litem, Dr Johnson, put forward the following advantages of postponing the leasing of the applicant’s property until February 2022:

  1. The funds to be generated by leasing the property are relatively low and will not so improve the applicant’s financial situation as to make it an imperative for the property to be immediately leased;

  2. It will give the applicant time to accept the decision and so be in her best interests in terms of her mental well-being;

  3. It will allow time for the COVID-19 restrictions to be lifted with the possibility that the applicant’s daughter may then be able to visit her mother and assist her to come to terms with the applicant’s situation;

  4. It will give the applicant’s friends BY and MY sufficient time to sort out the contents of the applicant’s house, with direction from the applicant and her daughter. The extra time will increase the likelihood of COVID-19 restrictions being lifted to enable the sorting of the contents of the applicant’s house to be made efficiently;

  5. Sorting through the contents is much easier when they are spread out in a house rather than tightly packed in a storage unit;

  6. The fewer the possessions needing to be stored, the smaller the storage costs and consequently the higher the funds generated by renting the property.

  1. Whilst the option of retaining the shed and the separate cottage as storage had some initial appeal, for the following reasons, I am not satisfied this would be viable:

  1. On the evidence before me, any contents in the shed and in the self-contained cottage would be difficult to insure;

  2. The security of the documents in the shed and the self-contained cottage could not be guaranteed either if the main house were left vacant or were leased out;

  3. Access to the shed and separate cottage would be difficult were the main house leased;

  4. Erecting a fence to separate the main house from the shed and separate cottage would be costly and would not address the issue of the security of any stored contents;

  5. It may be more difficult to lease the property without giving vacant possession of all buildings on the property to the tenants.

  1. For these reasons, I am satisfied that the contents of the applicant’s property should not be stored in either her shed or the freestanding cottage she has used as a study. Rather, all documents and material relevant to the applicant’s anthropological and general academic work should be stored in the freestanding cottage on a temporary basis, in order to separate them from the applicant’s general household contents.

  2. Once the NSW Trustee has secured appropriate storage for the applicant’s contents, all documents and material relevant to her anthropological and general academic work should be stored in an accessible part of the storage, either in an separate compartment or, alternatively, at the very front of an general storage area.

How might the applicant be assisted to document her life story?

  1. It is clear that the applicant has lived an extraordinarily interesting life as an anthropologist and that it would be in the interests of the general public and other anthropologists for her life story to be well and fully documented.

  2. The applicant, who described her memoirs as being fundamentally the stories of people she has met over her life who have shown goodness as human beings, has an adopted daughter who is Papuan and who lives in Papua New Guinea. Prior to the Covid-19 restrictions, the applicant’s adopted daughter would make regular visits to the applicant.

  3. In an email to the NSW Trustee dated 19 January 2021, the applicant’s daughter explains the importance of the applicant’s research and collections:

Her study…is a place she spends most of her time. It’s [of] utmost importan[ce] to her. As an anthropologist, she had her papers and collections of data that she collects as she travelled and most of her collections and study of the Oceania area, most of Melanesian countries. This research documents and datas and pictures/photos are of significance, especially those relating to her stay in Simbu, in Gumine Village PNG in the early 1960s. This is the tribe that had adopted her as a Bomai Tribe Woman of Mian Clan.

  1. It is writing her autobiography that, according to the applicant, keeps her head ‘up and continuing.’ Dr Johnson and the applicant’s friends, JB, MY and BY, also spoke of the importance to the applicant in completing her memoirs and their own efforts to work out a way for the applicant to be able to do so while resident at her aged care facility.

  2. The problem for the applicant is that she doesn’t get any time to herself in the aged care facility and is constantly being disturbed. This lack of undisturbed time alone has been detrimental to her writing process.

  3. The nurse from the applicant’s aged care facility who assisted the applicant to attend these proceedings provided some helpful information in relation to the applicant’s aged care facility. He confirmed that there is no separate quiet space for the applicant to access in order to write her memoirs. The applicant’s bedroom, which she has to herself, is the only space available for her to be alone. The nurse agreed with the applicant that due to the many interruptions by staff during the day, it might well be difficult for the applicant to be able to focus on writing her memoirs. He suggested that staff could be instructed to leave the applicant undisturbed on a daily basis between 10am and 12pm, providing the applicant was able to communicate with staff should she require any assistance. According to the nurse, providing this time for the applicant to continue work on her memoirs would be in keeping with her right to dignity and choice as a resident.

  4. The nurse explained the difficulties in leaving residents undisturbed for long stretches of time given the staff’s duty of care to residents, which requires staff to check on residents, in addition to set times for meals and showering and administering medication.

  5. The applicant gave evidence that residents in her aged care facility must be in bed by 9.30pm. According to the applicant, this is much too early for a writer like herself who finds it hard to write within regular hours.

  6. The applicant spoke of the lack of storage area in her room in the aged care facility, which means she is unable to have documents and material with her that are vital to writing her memoirs. The nurse who assisted the applicant during his hearing agreed that there wasn’t a lot of storage space in the applicant’s bedroom but made the suggestion that part of the wardrobe area be used to store documents. He also suggested that there might be sufficient space for documents on the windowsill area in the applicant’s bedroom and that there might also be some floor space available.

  7. During the hearing, the applicant’s friends, BY and MY, spoke of their hope that a student might be able to assist the applicant with her autobiography. The State Library of NSW has a program to fund the collection of important life stories and BY and MY spoke of their intention to make contact with the State Librarian, Dr John Vallance, to discuss the applicant’s life and to enquire whether assistance might be available to document the applicant’s life story.

CONCLUSION

Determinations

  1. For the reasons set out above, I have determined that from 1 February 2022, the applicant’s house should be leased in its entirety, that is, including the self-contained cottage used as a study by the applicant and the garden shed.

  2. All documents and material relevant to the applicant’s anthropological and general academic work should be stored in the freestanding cottage study on a temporary basis only, in order to separate them from the applicant’s general household contents.

  3. If the applicant’s property has not been cleared by 1 February 2022, the NSW Trustee is to make arrangement for the property to be cleared.

  4. Once the NSW Trustee has secured appropriate storage for the applicant’s contents, all documents and material relevant to her anthropological and general academic work should be stored in an accessible part of the storage, either in an separate compartment or, alternatively, at the very front of an general storage area.

Recommendations

  1. I recommend that the applicant’s friends, MY and BY, contact the NSW State Librarian, Dr John Vallance, to enquire whether the applicant could be considered for the State Library’s oral history project, to enable an oral historian to work with the applicant to document her oral history.

  2. In accordance with the NSW Trustee’s offer of assistance, I recommend that the applicant’s friends, MY and BY, liaise with the NSW Trustee to facilitate access to the applicant’s property, particularly in the light of the current COVID-19 restrictions.

  3. Given the applicant’s strong desire to complete her memoirs and to provide a lasting record of her work as an anthropologist, particularly in Papua New Guinea, I recommend that the director of the applicant’s aged care facility give consideration to the suggestion that the applicant be left undisturbed (but able to contact staff herself should she require any assistance) between 10am and 12noon each day to enable her to focus on her writing.

  4. I also recommend that the director of the applicant’s aged care facility give consideration to using available space within the applicant’s room, including her wardrobe, windowsill area and any appropriate floor space, to store those documents required by the applicant to continue her memoirs.

ORDER

  1. The decision of the NSW Trustee dated 2 February 2021 is set aside.

In substitution, the following decision is made:

  1. The applicant’s property is to be leased in its entirety (including the self-contained study-cottage and garden shed) from 1 February 2022;

  2. The applicant’s friends, MY and JB, are to be consulted in relation to the clearing of the property;

  3. If the property is not cleared by 1 February 2022, the NSW Trustee is to make arrangements for the property to be cleared;

  4. Prior to bulk storage of all contents, an inventory is to be taken to ensure that the contents of the property are stored in consultation with the applicant. This may be facilitated with the assistance of the applicant’s nominated friend, social worker or facility staff;

  5. Documents and photographs required by the applicant to complete her autobiography while resident in her aged care facility should be retained or stored where they may be readily accessible as best as practically possible;

  6. When choosing a storage location, the NSW Trustee should ensure that the documents and material required by the applicant to continue her memoirs are easily accessible either by placing all the documents and relevant anthropological material at the front of any storage space leased; or alternatively in a separate storage area to the remainder of the applicant’s household contents.

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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: 22 September 2021

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