FDJ v NSW Trustee and Guardian

[2022] NSWCATAD 243

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FDJ v NSW Trustee and Guardian [2022] NSWCATAD 243

Hearing dates:

7 April 2022

Date of orders:

21 July 2022

Decision date:

21 July 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

The decision made by the NSW Trustee and Guardian on 7 September 2021 is affirmed.

Catchwords:

ADMINISTRATIVE LAW – review under section 62 NSW Trustee and Guardian Act 2009 (NSW) – Trustee and Guardian - interests and welfare of protected person – whether to sell a protected persons property – financial management order.

Legislation Cited:

Administrative Decisions Review Act 1997(NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Guardianship Act 1987

NSW Trustee  and Guardian Act 2009 (NSW)

Cases Cited:

McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530

Category:

Principal judgment

Parties:

FDJ (Applicant)
NSW Trustee and Guardian (First Respondent)
RST (Second Respondent)
TXU (Third Respondent)
ZRX (Fourth Respondent

Representation:

Solicitors:
Mackinson d’Apice Lawyers (Applicant)
NSW Trustee Legal department (First Respondent)
Second Respondent (Self-represented)
Third Respondent (Self-represented)
Fourth Respondent (Self-represented)

File Number(s):

2021/00283633

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant and the second and third respondent’s, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for Decision

1. This is an application, filed on 5 October 2021 for administrative review of an internal decision made by the NSW Trustee and Guardian (the “Trustee”) on 7 September 2021 (the “Reviewable Decision”). The applicant is referred to as ‘FDJ’. The Trustee is the first respondent. The Trustee is the financial manager of the estate of FDJ’s mother, who is referred to as ‘CDE’.

2. FDJ has three siblings. On 8 February 2022, each of them was joined to these proceedings. Pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act), each of FDJ’s siblings have also been given a pseudonym. Her two sisters are given the pseudonyms RST and ZRX and her brother TXU. They are the second, third and fourth respondents.

3. Essentially, the proceedings concern the Trustee’s decision to sell properties owned by CDE in the northern suburbs and greater western Sydney.

Background

4. On 22 February 2019, the Guardianship Division of this Tribunal made a financial management order pursuant to Part 3A of the Guardianship Act 1987 (the Guardianship Act). The Trustee was appointed as the financial manager of CDE’s estate pursuant to s 25M(1)(b) of the Guardianship Act.

5. At the same hearing, the Guardianship Division made a guardianship order concerning CDE pursuant to Part 3 of the Guardianship Act. The Public Guardian was appointed as the guardian.

6. In making the financial management and guardianship orders, the Guardianship Division found that CDE had a diagnosed cognitive impairment rendering her incapable of making informed decisions in both the areas of lifestyle and financial matters. Due to the nature of her disability, CDE did not participate in this hearing.

7. In exercising the functions granted to the Trustee pursuant to financial management order, the Trustee decided on internal review, to sell two properties jointly owned by CDE and FDJ as set out below. It is this decision that FDJ seeks the Tribunal to review.

8. Relevantly, CDE owns two properties as joint tenants with FDJ. One of those properties ‘property A’ is located in the northern suburbs of Sydney. The second property ‘property B’ is in greater western Sydney.

9. At the date of hearing the estimated value of the estate was as follows:

Assets	Liabilities
Property A total value $5 million (CDE’s share $2,500,000)	Aged care facility liability $113,096.25
Property B total value $400,000 (CDE’s share $200,000)	Aged care refundable accommodation deposit $962,869
Motor vehicle $17,100
NSWTG Trust Account $46,720
Westpac Bank Account $3,307.32
Total assets - $2,767,127.32	Total liabilities - $1,075,965.25

10. It is not in dispute that CDE’s income at the date of the hearing was approximately $71,322 per annum. Her income is derived from a Department of Veteran Affairs pension and a State Superannuation pension. CDE’s current expenses at the date of hearing were approximately $103,535 per annum. Her expenses included aged care fees of $75,500. It was also not in dispute that there is a negative cashflow when deducting CDE’s expenses from her income. The negative cashflow results in CDE’s inability to pay outstanding liabilities and ongoing expenses. This, in part, was a reason for the decision made by the Trustee to sell both property A and property B.

11. On 15 July 2021, the Trustee made a decision as follows:

1. Lease property A for a period of twelve months (with review at that time) to current occupant/s at market rate. This future property decision to be reviewed in twelve months from the date of this decision.

2. Sell property B.

3. Sell the motor vehicle (offer at fair market value to interested stakeholders).

12. The Trustee provided the following reasons for its decision. The sale of property A was made because it is not presently receiving any rental income and incurs costs in terms of outgoings and maintenance. By retaining the property and leasing it, additional income is generated which will allow CDE to benefit from any future capital appreciation.

13. The decision to sell property B included facts such as alleviating risks associated with the ownership of the property and it being uninsured. Following the sale of the property there would be no ongoing property expenses and aged care fee arrears could be paid.

14. After doing so, the balance of any refundable accommodation deposit would be refunded to CDE when leaving the facility or to the client’s estate.

15. This decision was provided to each of CDE’s four children.

16. By email of 4 August 2021, TXU requested the Trustee to internally review its 15 July 2021 decision. Similar requests were made by RST on 12 August 2021 and ZRX on 22 August 2021. In summary, each of the three siblings submitted to the Trustee that properties A and B should be sold in the best interests of their mother.

17. After internal review, the Trustee decided in August 2021 to set aside the decision to lease property A and make a new decision also to sell that property. The decision, therefore, was that both property A and property B be sold. The internal review decision was notified to the parties on 7 September 2021. It is this decision that FDJ seeks the Tribunal to review. I have referred to this decision as ‘the Reviewable Decision’.

The Evidence

18. The evidence relied upon by each party consisted of:

Evidence of FDJ

• Bundle filed 3 December 2021 (A1)

• Bundle filed 25 March 2022 (A2)

• The applicant filed written submissions.

Evidence of the Trustee

• s58 bundle filed 26 October 2021 (R1)

• s58 bundle filed 25 February 2022 (R2)

• The Trustee filed written submissions

Evidence of RST

• Bundle filed 4 April 2022 (R21)

• Email 7 December 2021 (R22)

19. RST, TXU and ZRX gave oral evidence. RST and TXU were cross-examined.

20. Similarly, FDJ gave oral evidence and was cross-examined.

The Issue

21. I am to determine whether the Reviewable Decision is the correct and preferable decision having regard to any relevant factual material and any applicable written or unwritten law.

The Relevant Legislation

22. As set out above, on 22 February 2019, the Guardianship Division of this Tribunal found that CDE was incapable of managing her financial affairs.

23. 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.' Pursuant to s 56(a) of the Act, the Trustee may exercise all the functions necessary and incidental to the management and care of the estate of the managed person.

24. In managing CDE’s estate, the Trustee is empowered to exercise a series of powers under s 16 of the Act. Relevantly, these powers include buying, selling, realising and mortgage (with or without a power of sale) of real and personal property (s 16(1)(g)) and paying rates, taxes, assessments, insurance premiums, debts, obligations, costs and expenses and other outgoings (s 16(u) of the Act).

25. I am satisfied that the Reviewable Decision is a power which the Trustee has (s 16(g) of the Act).

26. Section 62 of the Act empowers an ‘affected person’ to apply to this Tribunal for administrative review of a decision made in connection with the exercise of the Trustee’s functions under the Act.

27. An ‘affected person’ includes:

1. a managed person in respect of whose estate the decision was made,

2. the spouse of a managed person in respect of whose estate the decision was made,

3. (c)   any other person whose interests are, in the opinion of the Tribunal, adversely affected by the decision.

28. It is not in contest that FDJ is a child of CDE. As FDJ is an owner of property A and property B, the sale of the properties will affect her. I am satisfied that FDJ falls within the definition of an affected person.

29. In determining this application, the Tribunal ‘stands in the shoes’ of the 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 (s 63 of the Administrative Decisions Review Act 1997) (the ADR Act).

30. 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 Trustee.

31. In exercising its functions under the Act, the Trustee, and, on review, this Tribunal must give paramount consideration to the interests of CDE. 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.’

The Evidence of FDJ

32. FDJ provided a statement made 2 December 2021. FDJ does not agree that the sale of both property A and property B is the correct and preferable decision and in the best interests of her mother. She asserts that the information used by the Trustee to make that decision contains many factual errors. FDJ contends that she will personally meet any shortfall in payments that relate to her mother’s aged care fees and she can do so without either of property A or property B being sold.

33. FDJ disputes the finding of the Trustee that property B is not a property that is able to be insured. She annexed to her statement a Certificate of Insurance which is entitled ‘Farm Insurance’ and dated 22 July 2021. The Certificate of Insurance is issued by Insurance Australia Limited and includes the names of both FDJ and CDE as named insured. However, the Certificate of Insurance does not, at least in the document provided to the Tribunal, include the address of the property. I give this evidence limited weight.

34. FDJ says that she has been meeting the payment of all expenses relating to both property A and property B on behalf of her mother. This is so, apart from a single quarterly payment made for council rates for both properties which the Trustee paid in April 2020. FDJ asserts that to date she has paid approximately $23,275 in outgoings for both property A and property B.

35. FDJ disputes and allegation that she was using rent received from property A paid by a tenant for her own benefit. I accept that an agreement was reached between the Trustee and FDJ on or about 29 April 2020, or sometime before that date, for FDJ to collect all the rent on behalf of CDE to make payments towards ongoing property expenses for that property. This is evidenced in a file note contained in the Trustee’s documents of the same date. FDJ contends that she had collected $29,040 in rent and the Trustee collected $4,760 before the arrangement was put into practice.

36. In FDJ’s documents at tabs 4 and 5 is a list of payments made for rent both to the Trustee and to her directly in those amounts. There is also a list of payments made for maintenance costs totalling $13,024.46. In this regard FDJ states: “I have spent much more than is covered by the rent but have not made and did not intend to make any claims for reimbursement. I am continually improving the property and with my family have put in countless hours of work. Due to our efforts to the work costs carried out are a fraction of what they would normally be. Professional work has been carried out by a licenced builder and licenced electrician.” FDJ asserts that the costs exceed rental income by more than $7,000. I accept this evidence.

37. It is not in contest that FDJ’s son has been residing at property A for over 5 years.

Estimated and actual expenditure of CDE’s estate

38. FDJ refers to the findings contained in the Trustee’s Statement of Financial Advice dated 19 March 2021 prepared by Mr Chau. The annual total recurring expenses are stated to be $156,350.

39. FDJ disputes that the means tested fee contained in that document, being $23,700 is correct. She asserts that it is $0 as contained in an email of 14 September 2021 from the Trustee entitled ‘Aged care means test fee’. Given my overall findings below, whether this contention is correct, is not material. However, I have accepted FDJ’s argument in considering the overall ongoing estate expenses, which, even at its highest, leaves CDE with a negative cashflow.

40. FDJ disputes that an amount of $16,000 for medical and personal costs is correct. She says that that amount has been carried across from a previous statement of advice made on 7 February 2020, when, her mother was not yet in aged care. I note CDE was placed into aged care on 6 November 2020. FDJ asserts that her mother’s Veteran Affairs Gold Card covers all ambulance and other health care treatment. She says there is no evidence that this figure of $16,000 can be maintained. FDJ estimates that the more likely expenses would amount to $103,500 for various reasons as set out in her evidence. Given my findings below, whilst I accept that there may be a difference in the estimated ongoing fees and charges to the estate, even taking FDJ’s contention at its highest, there remains a significant deficit in CDE’s cashflow that must be met to ensure her financial position can be maintained.

41. In meeting the shortfall, FDJ says that she will personally pay approximately $80,000 per annum to pay CDE’s ongoing expenses. She will also pay the current outstanding aged care fees (approximately $113,000) and provide an ongoing fund for the shortfall between her mother’s income and ongoing expenses until her death. Whilst I accept FDJ’s evidence as being truthful, this proposal, for the reasons set out below, does not sufficiently satisfy the matters in s 39 of the Act and is not in CDE’s best interests.

42. FDJ has also included in her documents the effect of the sale of both property A and property B would personally have on her concerning a Capital Gains Tax event that she would be required to meet. In that regard she said, “It is an unfair and significant unnecessary financial strain for me to be burdened with, that has not been considered by NSWTAG in their decision to sell the property.”

43. It is not in contest that in about 2004/2005 FDJ was transferred an interest in both properties as joint tenants with her mother. FDJ said that at that time her parents met with her at property A. FDJ’s parents indicated to her that they wanted her to sign a Transfer and become a joint tenant of both properties. FDJ said in answer to a question put by her solicitor to explain the circumstances surrounding this transaction. “I have always been intertwined with mum. I don’t yell and scream and stand over people. I don’t ask mum to sign paper.” FDJ said that she was not surprised that she was made a joint tenant as she had a good relationship with her mother.

44. In cross-examination FDJ said she was unsure whether CDE obtained legal advice about the Transfers. She said, “but she bought and sold properties all her life. She would not have needed to”. FDJ said that she also did not obtain legal advice about the transfer as “it is just a transfer”. FDJ agreed that she did not think about the implication of any Capital Gains Tax that may arise when the properties are sold. FDJ said that she did not pay the transfer duty on either of the Transfers. CDE attended to that. She said the witnesses to the transfers were a friend of CDE and a tenant who lived at Property A. I find that FDJ did not obtain any legal or financial advice about the transfer of the two properties and any capital gains tax liability. I also find that it is highly unlikely that CDE obtained any legal advice about the transaction from a solicitor or accountant based on FDJ’s evidence which I accept. Particularly so, where the transfer was witnessed by a friend and a tenant. It is also more probable than not, that CDE did not obtain any financial advice about how to fund her future, particularly, how she would meet aged care and other fees in circumstances where her expenses exceeded her income. It also appears that no reasonable consideration was given by CDE to meeting these expenses when she decided to transfer property A and property B to FDJ.

45. My findings are supported by FDJ’s evidence that there is no document in writing between herself and her mother as to how the payment of those fees would be met, she said words to the effect, “it was just something that she knew she could rely on me to do”.

46. Whilst I accept FDJ’s uncontested evidence that her mother had for many years dealt with the sale and purchase of many properties, I am not satisfied that the evidence reveals that CDE considered the effect of the transfers and her need for a fund to support her in her older years. Particularly, the interaction of the aged care system, funding of aged care placements and the payment of refundable accommodation deposits and aged care fees.

The evidence of RST, TXU and ZRX

47. Each of CDE’s children provided statements and various documents which form part of the evidence in this matter. A significant part of that evidence relates to allegations of either neglect, self-interest or poor decision making over a number of years by FDJ about CDE. As indicated to each of the witnesses during the hearing, these proceedings relate to a review of the Reviewable Decision. In that regard much of the evidence provided by each of CDE’s children who support the decision of the Trustee relate to matters which might ordinarily be seen as relevant to applications before the Guardianship Division when deciding who would be an appropriate, and suitable person, to be appointed as either a guardian or a financial manager for CDE.

48. I have considered each of the submissions made by RST, TXU and ZRX and as their evidence relates to matters not relevant to the Reviewable Decision, I have given it little weight.

Findings of the Guardianship Division

49. The Guardianship Division published reasons for its decision on 22 February 2019. I note in the reasons for decision, and it is not in dispute, that FDJ had been appointed as her mother’s Power of Attorney in July 2008. The reasons disclose an acrimonious relationship between FDJ and her other three siblings. Particularly, the Tribunal noted “Firstly, it was apparent to the Tribunal that there is a long-term and entrenched conflict between FDJ and CDE’s other three children which would make it very difficult for FDJ to consult with and seek the views from the other children” if appointed as a decision maker about lifestyle and financial matters. I also find that there remains entrenched conflict between those siblings as described by the Guardianship Division.

50. The Guardianship Division’s findings include the following, which are relevant to this application:

“Considerations and Tribunal findings

The Tribunal considered the evidence of FDJ.

Her evidence was, as her mother’s Attorney she continued to use the joint account and continued to use all her mother’s income as a ‘family income’ to pay all the family’s expenses. From her evidence and the bank statements, the Tribunal finds that it is likely the clear majority of the expenditure from the joint account did not relate to or benefit her mother.

FDJ appeared to have taken a literal and broad interpretation of the wording in the Enduring Power of Attorney that authorised the Attorney to give reasonable gifts and confers benefits on the Attorney to meet the Attorney’s responsible living and medical expenses. However, such expenditure outlined in her evidence and the statements cannot be deemed to be reasonable and authorised under the Enduring Power of Attorney instrument.

It is also of concern that on the evidence of FDJ, her mother, CDE could not meet any unexpected expenses on the day of the hearing given the balance of the joint account was $5. FDJ told the Tribunal that to pay any unexpected expenses she would have to access her personal superannuation account. This is further evidence against any suggestion that the expenditure was reasonable and therefore authorised.

FDJ does not appear to have been aware of her fiduciary duty she owed to her mother as her Power of Attorney.”

51. The Tribunal went on to find that FDJ had failed in her duty as the Power of Attorney for her mother by:

1. continuing to have a joint account with her mother which placed her in a position of conflict of interest;

2. failing to keep any records of expenditure paid from her mother’s account; and

3. failing to understand or consider whether expenditure from her mother’s estate would benefit her mother and further, whether expenditure from her mother’s estate that benefitted her or her family was reasonable and authorised.

   52. The Tribunal found that it should make a financial management order as the Power of Attorney appointment was not able to be operated by FDJ appropriately and also to protect CDE from neglect, abuse, or exploitation.

   53. In view of the adverse findings made by the Guardianship Division the Tribunal, and despite a proposal that FDJ be appointed as the financial manager for her mother’s estate, the Tribunal committed management of that estate to the Trustee.

   54. The findings of the Guardianship Division, which were not challenged on appeal, are in my view significant. The findings do not in my view enable a reliable, or workable, arrangement as proposed by FDJ in personally meeting her mother’s ongoing costs that would allow the Trustee to meet the principles as set out in s 39 of the Act (at paragraph [31] above). For similar reasons which are set out below, I find the proposal of FDJ to meet all her mother’s ongoing expenses does not ensure CDE’s welfare and interests are given paramount consideration. It is not the correct and preferrable decision. Also, particularly given the Guardianship Division’s findings, such an arrangement does not protect CDE from neglect, abuse, and exploitation. Simply put, the proposal by FDJ does not sufficiently secure the ongoing health, wellbeing and safety of CDE from a financial perspective. The proposal leaves CDE open to neglect, abuse and exploitation. Events that are either within the control of FDJ or matters outside of her control could negatively affect CDE. This could include FDJ becoming significantly unwell, losing capacity and through no fault of her own be unable to meet the obligations which she proposes. Matters outside of her control could include, but are not limited to, an unfortunate event where FDJ injures another person, or their property and is the subject of an adverse negligence action which could lead to her impecuniosity or bankruptcy. The uncertainty of any of these types of matters could mean that FDJ has no access to additional funds which would lead to the accumulation of debts and liabilities.

The evidence of the Trustee

55. The residential care agreement securing CDE’s aged care placement was entered into on or about 5 November 2020 by the Trustee. The agreement includes that a refundable accommodation deposit (“RAD”) is to be paid in the amount of $962,869. Without the sale of at least property A, the RAD cannot be met based on the current available cash assets of CDE. I accept, and it is not in contest, that at the date of hearing there is approximately $113,000 in outstanding fees due to the residential aged care facility for CDE’s accommodation. The arrears have accumulated in part, because the RAD has not been paid. This is an amount which will need to be met to secure CDE in her current accommodation. Whilst I accept FDJ’s evidence that she said that she will meet the outstanding payment of these fees, FDJ has not filed any evidence of her capacity to make that payment and ongoing fees and expenses. This is material in my view, but not in itself conclusive.

56. The most recent statement of advice provided by Mr Chau from the Financial Planning Division of the Trustee is dated 12 January 2022. It is this advice that FDJ refers to and disputes part of the expenses which are included in that assessment. On whatever view is taken, it is apparent to me that there is a significant shortfall in CDE’s current income which allows her to meet her expenses. That shortfall on the Trustee’s view is $82,500 and less on FDJ’s view. Without the sale of one or both of properties A and B, CDE’s estate will not be able to meet that expense in the future. Further, absent a contribution from FDJ and without the sale of the properties, the current outstanding debt of $113,000 will also not be able to be met. More importantly, the RAD cannot be paid based upon the value of CDE’s estate without the sale of one or both properties. If the RAD is not paid, CDE cannot afford to pay her current aged care fees.

57. Even when discounting the expenses as argued by FDJ, CDE without significant contribution from FDJ, cannot meet her ongoing expenses. It is mathematically impossible.

My consideration

58. I am not satisfied that the proposal by FDJ that she meets her mother’s outstanding accommodation fee arrears and ongoing payments is the correct and preferrable decision. The proposal does not ensure that the principles as set out in s 39 of the Act can be met. The welfare and interests of CDE are not given paramount consideration, particularly where there is no security in FDJ being able to meet those payments, and, especially given the vicissitudes of life. FDJ has not filed any evidence of her current financial ability to meet both the outstanding arrears, the RAD and ongoing payments. However, even if she had, through no fault of her own, FDJ may become incapable, extremely ill, infirm, or unfavourable economic conditions could lead to her financial incapability to meet the obligations she proposes. In my view, there is no certainty or guarantee the Trustee can rely upon to meet the ongoing liabilities and debts if FDJ’s proposal is accepted.

Section 39 principles

59. In considering CDE’s welfare and interests, paramount consideration must be given to her financial security, which is not maintained the uncertainty of FDJ being able to meet her mother’s expenses (s 39 (a)). CDE’s freedom of action in being able to meet her expenses is restricted where the Trustee is beholden to FDJ in providing a source of funding to meet CDE’s arrears and ongoing liabilities (s 39 (b)). FDJ’s proposal does not provide financial flexibility for CDE. Without financial flexibility, CDE will not be able to live a normal life in the community as there is a possibility that FDJ may not meet her obligations and the Trustee cannot exercise its functions in an unfettered manner (s 39 (c)). Due to the nature of CDE’s disability, I have not been able to take into consideration her views (s 39 (d)). There is little to no evidence before me about the preservation of the family relationships. The evidence reveals that the relationship between FDJ and her siblings is already fractured (s 39 (e)). I find that without affirming the decision of the Trustee, and particularly in considering FDJ’s proposal, CDE is unable to be self-reliant in matters relating to her personal, domestic and financial affairs (s 39 (f)). CDE cannot be protected from neglect, abuse and exploitation, particularly given the Guardianship Divisions findings set out above, if the proposal of FDJ is implemented. To protect CDE in this respect, I find the decision of the Trustee should be affirmed (s 39 (g)).

60. I reject the argument of FDJ that the Tribunal should set aside the decision of the Trustee on the basis that she may suffer a negative financial position because of a CGT event if either of the properties A and B are sold. Whilst this is unfortunate, the CGT event would no doubt arise at some stage into the future if the properties are sold. This is a matter that should have been considered at the time the transfer of the two properties was made. In my view, it is not a matter that outweighs the principles in s 39 of the Act and in determining the correct and preferable decision.

61. In oral submissions, I asked Ms Evans to identify the evidence which establishes FDJ’s capacity to meet the payment of CDE’s expense shortfall. She said that that document was missing from the s 58 material and Mr McCarthy would provide it. I have not been provided that document. Even if I had, it does not in my view affect the decision I have made. That is because there remains no security that FDJ will continue to meet her mother’s ongoing accommodation fees and other expenses. It also, in my view, does not satisfy the s 39 principles.

62. I have considered Ms Evans submission that a loan agreement could be entered into between the Trustee and FDJ to provide security. In my view this is not a suitable and appropriate arrangement as it places significant complexity around the ongoing management of CDE’s estate. There will also be additional liabilities to the estate and costs in drafting a loan agreement which, in my view, is not in the best interests of CDE.

My findings

63. In relation to the decision of the Trustee to sell property A, I find that that decision should be affirmed. In my view, for the reasons set out above, the proposal put forward by FDJ to enter into loan agreements, promises to meet her mother’s ongoing aged care fees and other expenses and to pay outstanding current liabilities is not one which protects the best interests of CDE and satisfies the principles set out in s39 of the Act. Due to many uncertainties and complexities which, will no doubt, in one way or another, attract additional liabilities and costs in the management of CDE’s estate, I reject that proposal. I have also considered whether property A should be leased. I find that the proposed rental (estimated at $19,200 p.a.) received from that arrangement is insufficient to make a material difference in CDE meeting her ongoing expenses. This arrangement would also require additional funding from FDJ to enable CDE to pay her ongoing expenses. For the same reasons as set out above, FDK funding her mother’s expenses directly is not satisfactory. I find the correct and preferable decision is to affirm the decision to sell property A to meet the current and future costs of the estate.

64. As it relates to the sale of property B, I find that it is in the best interests of CDE that that property also be sold. The property is currently not tenanted, it is not earning an income and it is a drain on CDE’s estate given her liability to meet 50% of expenses, maintenance, repairs, insurance and other costs. Given CDE’s current parlous financial position, the correct and preferable decision is that that property should also be sold.

65. The sale of both properties A and B will provide for the financial independence of CDE and it avoids a situation where she is unnecessarily dependent on FDJ to fund her ongoing and unexpected needs and expenses. Ensuring the funding of CDE’s accommodation and her ongoing expenses is a paramount consideration in ensuring the welfare and interests of CDE. CDE will be self-reliant in matters relating to her personal, domestic and financial affairs and the exposure to abuse, neglect and exploitation is significantly reduced.

66. I find the Reviewable Decision should be affirmed.

ORDERS

1. The decision made by the NSW Trustee and Guardian on 7 September 2021 is affirmed.

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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: 21 July 2022