FPA v NSW Trustee and Guardian

[2023] NSWCATAD 136

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FPA v NSW Trustee and Guardian [2023] NSWCATAD 136

Hearing dates:

28 February 2023

Date of orders:

06 June 2023

Decision date:

06 June 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member

Decision:

(1) The decision of the first respondent is affirmed.

(2) The application is dismissed.

Catchwords:

ADMINISTRATIVE Law – Protective Jurisdiction -– Welfare and interest- Paramount consideration – best interests of person

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Guardianship Act 1987

Powers of Attorney Act 2003

NSW Trustee and Guardian Act 2009

Cases Cited:

FLC v NSW Trustee and Guardians [2023] NSWCATAD 127

FTF v NSW Trustee and Guardian [2023] NSWCATAD 120

CPE v NSW Trustee and Guardian [2017] NSWCATAD 11

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FPA (Applicant)
NSW Trustee and Guardian (First Respondent)
FPM (Second Respondent)

Representation:

Applicant (Self Represented)
NSW Trustee and Guardian (First Respondent)
Second Respondent (Self Represented)

File Number(s):

2022/00325354

Publication restriction:

Section 64 (1) of the Civil and Administrative Tribunal Act applies to the identity of the applicant and the second respondent.

Reasons for decision

Introduction

1. These proceedings relate to the approval of the Financial Manager of the person under financial management, (the protected person) to sell that person’s residence in order to fund their ongoing care. The Financial Manager is the first respondent, the NSW Trustee and Guardian (the Trustee). The first respondent approved the sale proposal however the applicant, a child (son) of the protected person, (FPA) has sought review by the Tribunal of that decision on the basis that it is not necessary (from a financial perspective) and is contrary to the wishes of the protected person.

2. During the prehearing process another child of the protected person (a daughter) sought to be joined to the proceedings as a respondent as she supports the proposal of the Trustee having previously been unable to reach a satisfactory agreement with her brother FPA. The second respondent is referred to as FPM.

3. After hearing from the parties in the proceedings and considering the general principles that apply to decisions under the NSW Trustee and Guardian Act 2009, with the requirement being that when making decisions under that Act that the welfare and interests of the (protected) person should be given paramount consideration, I have decided for the reasons that follow, consistent with that requirement, that the decision of the Trustee should be affirmed.

Background

4. These proceedings have a long and somewhat complex background, involving applications and hearings before the Guardianship Division of the Tribunal and appeals to the internal Appeal Panel of the Tribunal prior to the commencement of these administrative review proceedings by FPA.

5. On 28 October 2022 FPA filed an application for administrative review with the Tribunal. That application concerned how the first respondent had made a decision to sell the residence / principal asset of the protected person (arising from a financial management order under the Guardianship Act 1987).

6. FPA had sought an internal review of that decision which was unsuccessful. As a result FPA has applied for administrative review by the Tribunal.

7. The protected person is an 86 year old widowed woman. Her husband was deceased in July 2019 and she has two children, FPA and FPM. In July 2016 the protected person and her husband entered into a written agreement (Deed) with FPA concerning living in each other’s respective homes.

8. The subject property owned by the protected person and her husband at that time was a rural (farming) property in the Gunnedah area. FPA’s property was a residence ‘in town’ in Gunnedah. Due to their respective ages and stages in life it made more sense for FPA to ‘take over’ the farm and live there and run it as a going concern while his parents lived in town in his house. A central part of the agreement was (a) no party was required to pay any occupation fee, and (b) as long as the agreement was in force no party could enter into a contract for sale of land of their property. There was a provision that a party could end the agreement with 90 days written notice.

9. In November 2016 the protected person executed an Enduring Power of Attorney (EPOA) appointing FPA as her Attorney. After the death of FPA’s father in 2019 the protected person continued to live in the Gunnedah residence and FPA and his spouse lived at the farm. In recent years the protected person has been diagnosed with a cognitive impairment. As a result FPA began acting as Attorney under the EPOA. Eventually it was necessary for the protected person to leave FPA’s Gunnedah residence and move into residential aged care (also in Gunnedah).

10. In June 2020 the Guardianship Division of the Tribunal conducted a review hearing of the EPOA executed by the protected person in November 2016. That review was conducted under the Powers of Attorney Act 2003 (the POA Act). The review determined to proceed under s 37 of the POA Act and treat the application as a Financial Management Application. Section 37 provides:

37 Review tribunal may treat certain applications for review of power of attorney as application for management order

(1) If, on a review of the making, revocation or operation and effect of a reviewable power of attorney under section 36, the Civil and Administrative Tribunal decides not to make an order under that section in respect of the power of attorney, it may (if it considers it appropriate in all the circumstances to do so) decide to treat the application for the review as an application for a financial management order under Part 3A (Financial management) of the Guardianship Act 1987.

(2) If such a decision is made, the application is taken to be an application for such a financial management order duly made in respect of the principal under that power.

(3) If, on a review of the making, revocation or operation and effect of a reviewable power of attorney under section 36, the Supreme Court decides not to make an order under that section in respect of the power of attorney, it may (if it considers it appropriate in all the circumstances to do so) proceed instead as if an application for a declaration and order under section 41 of the NSW Trustee and Guardian Act 2009 had been duly made in respect of the principal under that power.

(Emphasis added)

11. The Guardianship Division of the Tribunal committed the protected person’s living estate to Financial Management. As a result the EPOA becomes dormant until such time as the Financial Management Order is lifted. Section 50 (3) of the Powers of Attorney Act refers to the EPOA being ‘suspended’ while the person’s estate is under Financial Management. In conducting the review the Tribunal initially appointed FPA as Financial Manager for the protected person.

12. In April 2021 FPM sought a review of the Financial Management order made in June 2020, which appointed FPA. FPM believed that her brother FPA was not a suitable person to be managing their mother’s living estate because of a conflict of interest and other matters. The hearing was focused on the issue which is relevant to these proceedings in that once the protected person was in residential aged care, income was needed to ensure that her care fees were met. The protected person had effectively left FPA’s home on entry into aged care and was not receiving any benefit from her property (which FPA continued to live in), other than FPA meeting some of the expenses associated with that property such as Council Rates and insurance.

13. The Guardianship Division of the Tribunal made a finding concerning a conflict of interest in FPA living in the protected person’s property (largely rent free) and the resultant management strategy adopted by FPA being of greater benefit to him than the protected person. Because the protected person received no rental income under the strategy of FPA then she was required to pay greater accommodation fees than she would otherwise if her asset and income mix was different. The Tribunal decided that the potential strategies / proposals should be examined independently and as a result removed FPA as Financial Manager and appointed the NSW Trustee and Guardian in substitution of FPA as Financial Manager.

14. FPA appealed this decision to the internal Appeal Panel of the Tribunal, who having been unable to find any error of law by the Tribunal below dismissed the appeal on 14 October 2021. No error or relevant matter of the Tribunal misdirecting itself was identified by the Appeal Panel on appeal.

15. The current review now arises in the context of the Trustee as Manager making a decision to sell the property of the protected person.

Legislation

16. Section 70 of the NSW Trustee and Guardian Act 2009 makes specific provision for administrative review by this Tribunal, of decisions by the NSW Trustee and Guardian. The section provides:

70 Administrative review by NCAT of decisions by NSW Trustee in relation to managers

(1) Each of the following persons may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision by the NSW Trustee under this Part in relation to the functions of a person appointed as a manager:

(a) the person appointed as manager,

(b) any other person who, in the opinion of the Civil and Administrative Tribunal, has a genuine interest in the matter to which the NSW Trustee’s decision relates.

(2) Subsection (1) does not apply if the decision by the NSW Trustee was made in accordance with a direction given by the Supreme Court to the NSW Trustee.

17. This decision does not arise as a result of a direction given by the Supreme Court of NSW to the NSW Trustee.

18. I am satisfied that FPA has standing to make his application as a person who has a genuine interest in the matter to which the NSW Trustee’s decision relates. (The Internal Review decision).

19. Subsection 63 (1) of the Administrative Decisions Review Act 1997 (“the ADR Act”) sets out the role of the Tribunal in determining an application for administrative review under that Act. That role is:

“... to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)   any relevant factual material,

(b)   any applicable written or unwritten law.”

20. Subsection (2) of section 63 provides that for the purpose of making my decision I may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

21. Chapter 4 of the NSW Trustee and Guardian Act 2009 (which I will now refer to as the ‘TAG Act’) sets out the management functions relating to persons incapable of managing their affairs. Section 39 provides for the general principles applicable to the exercise of functions under that Chapter. Those functions apply in these proceedings to the Tribunal and how I might arrive at the correct and preferable decision. The section provides:

39 General principles applicable to Chapter

It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients 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.

22. The parties made reference to these principles in their submissions at hearing.

23. It is generally uncontested and accepted by the NSW Trustee and Guardian that in making the original decision and the decision under review it was under a duty to comply with s 39 by observing each of these principles. However it appears that no view of the protected person has been sought since the Tribunal review hearing in the Guardianship Division in April 2021 whereby the protected person advised the Tribunal that she was ‘happy where she was living, that she had no concerns about anything and that she was well looked after at the facility’. She told the Tribunal that her two children ‘look after her well’.

Internal Review

24. The internal review occurred on 7 October 2022. That concerned a review of a decision of the delegate of the Trustee dated 18 April 2022 to sell the protected person’s property (residence). FPA sought the review essentially because of the July 2016 agreement (Deed) regarding the properties. FPA proposed the following:

1. FPA to pay Daily Care Fee of $51.63 per day and Daily Accommodation Contribution of $57.49.

2. FPA and FPM to each pay one half of the means tested fee of $2.56 per day being $1.26 each.

3. FPA and FPM enter into a private agreement to take over management of the protected person’s finances.

4. Items 1-3 inclusive to by documented by way of a Deed of Agreement but would need to be approved by the Trustee prior to FPA and FPM signing.

25. The original decision to approve the sale was based on financial information and practical matters. Primarily the fact that the protected person would not be returning to the property, her outstanding portion of the Refundable Accommodation Contribution (RAC) of $230,000.00 and that the sale would provide cash flow for unexpected needs.

26. The Trustee did not contact FPA to seek his views further, having initially tried through his former Solicitors. The protected person’s views were not sought. FPM supported the sale stating that FPA had had ample opportunity to make monetary contributions via a payment of rent in the years since the protected person entered care and had failed to do so. Importantly FPM does not wish to enter any agreement with her brother FPA and so in that regard items 2,3 and 4 of the proposal are unattainable.

27. The reviewer considered the July 2016 agreement and observed that it created a right of residence in FPA’s home for the protected person and her spouse. With the death of the spouse and the permanent entry into residential aged care of the protected person that right was no longer exercised and their own residence (the farm) was now treated (after two years in aged care) as an asset by Centrelink. An asset which the Trustee found was not producing any income for the protected person.

28. Both the reviewer and FPA agreed that the costs to prepare the property for sale or market rental were substantial ($113,000.00 complete rectification – with $45,800 of that figure marked for urgent necessary ‘Priority 1’ repairs). The Trustee noted the lack of funds to pay for repairs via a lump sum payment, and that borrowing would be problematic with increased interest rates. The Trustee was focused on selling rather than renting the property due to the capital outlay for repairs as well as a view that the balance of the RAC should be settled in full.

29. The Trustee applied the s 39 principles of the TAG Act to note that the protected person’s welfare is not reliant on the retention of her property. The property requires further expenditure and is include in her asset assessment unlike the RAC which is not counted as an asset. The RAC balance will be assessed as an asset for aged care purposes, but not deemed to determine the means tested care fee.

30. The Trustee accepted that FPA’s proposal went some way to addressing the cash flow concerns. However the sales and leasing report of 22 February 2022 values the property at between $520,000.00 and $570,00.00 in the market at that time, with a midpoint of $545,000.00 meaning that as an asset it may impact on the protected person’s Age Pension. The Trustee does not levy fees against a RAC but do so against an untenanted property when a person is under Financial Management by the Trustee.

31. The Trustee’s reviewer determined that applying the paramount consideration (being more important that all other considerations) selling the property meets the needs of the protected person. Therefore upon review the initial decision of the delegate dated 18 April 2022 was affirmed.

Background before the Tribunal

32. FPA lodged his application within time and there is no dispute that the Tribunal has jurisdiction to hear the matter. When the matter first came before the Tribunal the second respondent (FPM) was joined as a party to the proceedings.

Written material

33. FPA lodged the decision under review and the primary decision with his application for administrative review (Exhibit ‘A-1’)

34. FPA also filed a large compendium of material (16 Items) received as Exhibit ‘A-2’

35. The Trustee filed the material required under s 58 of the ADR Act on 5 December 2022 (Exhibit ‘R-1’).

36. The Trustee also filed the Annual Reports of: Stateplus Super for 2019 and Aware Super for 2021 as well as material obtained since the review was commenced. (Exhibit ‘R-2’)

37. All parties filed detailed written submissions with FPM also filing material received without objection which was a mix of evidence and submissions.

38. FPA set out in his application for review the following grounds:

NSWTG’s decisions are not in the best interests of my mother and negatively impact her welfare.

NSWTG’s decision obtains a financial advantage for NSWTG, and causes a financial disadvantage for my mother and her estate. NSWTG has repeatedly made false or misleading statements to protect its interests and obtain a financial advantage. NSWTG has failed to provide the service it advertises, constituting a major failure as a supplier of services. (Reference was made to further grounds attached to the application).

Protected person’s attitude to the proceedings

39. Section 39 of the TAG Act requires me to have regard to their views and to give paramount consideration to the welfare and interests of such persons. No input had been formally sought from the protected person by any party. The evidence of the Guardianship Division attempts to involve the protected person in those proceedings is referred to above. However in respect of the decision under review by this Division of the Tribunal no input had been sought or attempted. Both respondents gave general positions and statements at the beginning of the hearing that the protected person’s contribution would be impacted by her disability and for that reason no input or attempt to obtain her views had been sought.

40. When the Tribunal challenged the relevant parties on this point all parties submitted that they wished to proceed in the protected persons absence and that she would not be taking part in the hearing. However the Tribunal having regard to the paramount consideration noted that in making the initial decision (from page 108 of ‘R-1’) a determination was made that the:

‘client doesn’t have the capacity to provide views. She has been diagnosed with cognitive impairment. She is not expected to provide an informed and well thought out response towards this decision’.

41. As will be seen from the evidence below, not only was this position reached without seeking or attempting to gain a view from the protected person, but the position is at odds with the evidence that the protected person gave during the early stages of the hearing.

42. The Tribunal having identified that s 39 requires at least a consideration of the protected persons position (including views if any), then with the parties agreement proceeded to commence the hearing by contacting the protected person.

The hearing

43. The Tribunal made telephone contact with the protected person and after some technical difficulties over a period of 15 minutes some engagement with the protected person was made. In respect of a specific question about selling the farm the protected person told the Tribunal that she ‘didn’t want the farm sold’. The protected person was asked what they wanted done with the farm by the Tribunal and she advised that she wanted (FPA) to look after it.

44. FPA then asked some question of his mother (the protected person) and asked her ‘who looks after her’. The answer was ’they do’ which the Tribunal inferred to mean the care staff. When asked who comes and visits the answer was ‘me’. When FPA asked who pays the bills the protected person answered that her son (FPA) and daughter (FPM) do. The protected person reiterated that she did not wish to sell the farm.

45. FPM then asked some questions of her mother. When asked how (FPA) is paying money and whether he pays to live on the farm no meaningful response was forthcoming. The protected person was asked in a different way whether FPA pays the protected person to live there. FPM came from a slightly different angle and asked the protected person whether FPA pays for her accommodation at the nursing home. The protected person answered that as far as she ‘knew it (FPA) or (FPM) usually sorts it out’. The protected person concluded her unsworn evidence by stating that ‘usually (FPA) sorts things out’.

FPA’s evidence at hearing

46. In evidence in chief FPA stated that the Trustee had deliberately created a financial situation for his mother of their own doing. FPA said that prior to the Trustee being appointed as managers by the Tribunal there was $180,000.00 cash available which he said would have provided for 18 years of care for the protected person in the nursing home.

47. FPA said that the $180,000.00 was earning 4% and after the part RAD / RAC was paid by the Trustee – which earns the protected person nothing, there was only $20,000.00 - $40,000.00 left over. FPA clarified that he pays some of the outgoings on the farm residence. FPA said that the Trustee pays some of the bills erroneously and fails to pay others. FPA said that he was paying $300 per week to the protected person to assist with the loss of her pension.

48. FPA said that the Trustee failed to respond to the Centrelink information request for over 12 months during the pension loss or reduction period. FPA said that whilst the protected person’s pension had now been restored she was at a financial disadvantage. This was because the protected person’s care fees had not been adjusted accordingly, however her increased income had made the costs easier for her to meet.

49. FPA made various assertions around the Trustee’s general mishandling of the protected persons affairs and that her balance is some $11,650.00 worse off due to their involvement. FPA said that the tenancy agreement (Deed) which he entered into with his parents was initially proposed by his late father in 2016. References were made to the value of the properties with his property in town being valued around $325,000.00 at that time and the parents property valued at $300,000.00 at the time of the agreement and he agreed that one property is currently empty.

50. FPA told the hearing that he was in disagreement over the decision to pay the part RAC rather than leave $180,000.00 in the superannuation account. He also expressed concerns about the Trustee’s purported role in allowing the protected person’s pension to be cut off and a failure to respond to the Centrelink requests for information since their appointment. FPA spent considerable time at the end of his evidence in chief taking about logistical issues with the Trustee’s communication and paying some of the bills for the protected person and not others.

51. Under cross-examination FPA was taken to page 22 of the s 58 documents (Exhibit R-1) being a Services Australia Government letter concerning a change in the protected person’s residential care fees dated 2 July 2022. FPA was asked whether he accepted that the daily care fee charged for the protected person are those set out in the documents as being $1,655.78 per fortnight. FPA was taken to the Trustee ledger at 160 -169 of the s 58’s which noted that fortnightly income was $1,026.00 starting from 13 October 2022. It was put to FPA that this resulted in a shortfall for the protected person of approximately $629.00 per fortnight or $315.00 per week.

52. FPA was asked whether he accepted that the repairs to the protected person’s property were in the vicinity of $113,000.00 to complete. He said that he was in the process of making those repairs himself as set out in the agreement. FPA said that he was unsure as to what the final figure from the Tyrell’s property report was concerning repairs to the farm property.

53. FPA was also asked about the Deed that he made with his parents in 2016 (the agreement) and was taken to cl 10 of that Deed. The Deed stated:

10. In relation to any repairs required to the house at (.. farm address) it is agreed that (FPA) shall arrange for such repairs and pay for such repairs and maintain a record of such repairs and the cost of the repairs shall be a debt owned by (mother and father) to (FPA).

54. In addition under cl 7 of the agreement the protected person is liable for all rates and charges attaching to FPA’s property in town. FPA agreed with these propositions.

55. In respect of cl 12 of the Deed it was put to FPA that due to various events the provision had been enlivened.

12. The parties agree that it is the intention of the parties that (father) and (protected person) shall be entitled to reside at the (Town) property during their lifetime or until death of the survivor of them or until the survivor of them determines that they no longer wish or are no longer able to reside in such property.

The parties agree however that either party shall be entitled to bring this Agreement to an end by giving to the other party 90 days’ notice in writing of the desire of the party giving the notice to end the Agreement. The Agreement shall be at an end 90 days after the date of the notice given. If any such notice is given then the parties shall vacate the respective properties on or before the lapse of the 90 day period.

56. FPA conceded that the protected person was no longer able to reside in his Gunnedah property (the town property) as she required full time care.

57. FPA was taken to page 76 of the s 58 documents whereby he agreed that the current fees charged by the Trustee were $1,233 per annum. When asked how he saw the protected person’s aged care fees as being met FPA told the hearing that the fees would be met by the pension and additional costs paid by him.

58. FPM cross-examined FPA and was asked directly why he stopped making payments for the protected person. FPA said that this was in response to when the Trustee took the superannuation out and placed it in their account and as a result the protected person lost her 4% income.

59. FPM asked FPA whether he was aware of the RAD indexation rate to which he answered 4.25% which was fixed when the protected person entered residential aged care. FPA said that he did not agree with the figures provided in Exhibit ‘R-2’ concerning the Superfund paying a negative 1% return in the last year. FPA said that he was going off the actual figures.

60. In re-examination FPA told the Tribunal that the negative 6.1% return in respect of growth in the aware Superannuation Annual Report (‘R-2’) was a ‘Covid blip’.

FPM’s Evidence and Submissions

61. FPM advised the Tribunal that she did not wish to give any evidence at the hearing and relied on her written evidence which took the form of submissions.

62. FPM submitted that FPA’s application failed to understand that the real issue before the Tribunal was the decision to sell the protected person’s farm (which the protected person no longer lived in) and put the money to her benefit to pay for her aged care fees. FPM submitted that FPA’s application failed to understand this and was more concerned with removing the Trustee as Financial Manager than anything to do with the protected person’s best interests.

63. FPM submitted that FPA confused the terms ‘wishes’ with ‘best interest’ and failed to understand that a decision in the protected persons best interests may at times be contrary to their wishes. The issue being that it is for the decision maker to make that determination, but the Trustee had consulted the family. FPM submitted that contrary to FPA’s lengthy submission the Trustee gains no specific advantage for selling the farm. The management fees as set by the regulations remain the same and the proceeds will be used to pay the remaining RAC or a RAD. FPM submitted that the real and sole basis for FPA’s objections was his desire to remain in the family home at all costs.

64. FPM submitted that various assurances that FPA had given the Guardianship Division of the Tribunal (such as to rent out the property to ensure an income stream), which FPM submitted was why the Tribunal had initially appointed FPA as Manager, were assurances not born out by events. The property had not been rented out by FPA and none of his assurances about generating income for the protected person had come to pass in his period as an Attorney and Financial Manager.

65. FPM responded to each of FPA’s points in his submissions and noted that selling assets would not deplete the estate but change the makeup of the living estate. FPM’s submissions generally were that FPA’s real intention was to keep the farm for himself and that his primary concern was not the protected person.

66. Having regard to the fact that FPM would not agree to the proposals put by FPA as an alternative course to selling the property in my view it is unnecessary to outline FPM’s submissions in any further detail.

67. It was clear that the internal review had in part arrived at the position to affirm the original decision because FPM had (for her own reasons) elected not to agree to the arrangements proposed by FPA – which would have required her involvement.

FPA’s submissions

68. FPA lodged in excess of 700 pages of material with the Tribunal. The submissions (16 Items in Exhibit ‘A-2’ ) went to over 500 pages.

69. Many of FPA’s submissions are expressed in exacting detail and often failed to address the real issue under review in these proceedings. Detailed References to Commonwealth Legislation, the Constitution and matters relating to sovereignty were all in my view unhelpful and irrelevant to the real issues before the Tribunal. FPM’s observations about the Trustee embarking on a particular course for their own benefit come to mind. In addition FPA’s more meritorious assertions are expressed in such a convoluted manner that they sometimes appear not relevant to the case before the Tribunal. In considering and determining this application the Tribunal’s role is not to conduct a general inquisition into the actions, practices or competence of the Trustee as decision-maker, but to determine on the available evidence whether the decision itself is the correct and preferable decision. In this regard the s 39 principles are of most relevance when applied to the evidence and the ultimate decision.

70. FPA submitted Exhibit A-2 in this regard, which I find carries little weight in consideration of this application mainly due to a general lack of relevance to the proceedings for the reasons outlined above.

71. Other than reiterating the protected person’s (understandable) emotional attachment to the property, in my view there was very little in FPA’s submissions concerning issues relating to the protected person’s best interests.

72. Nevertheless, I have done my best to identify from FPA’s submissions discrete grounds upon which he seeks the setting aside or variation of the Trustee’s decision under review. He submits that his approach to financial management preserves the farm in accordance with the protected person’s wishes, allows a reasonable cash flow at least for the coming years allowing the protected person to experience an appropriate level of care and contentment in her remaining years and additionally act in accordance with the Deed concerning the wishes of the protected person and her late husband that as long as one of them lives FPA has a legal right to occupy their farm.

73. As noted above FPA made a significant number of other submissions. As noted these proceedings are not a forensic critique of the general approach and conduct of the NSW Trustee and Guardian, but an application of the facts of the current person under management and the context of the decision under review, as applied to the s 39 principles. In doing so the Tribunal makes the correct and preferable decision having assessed such matters and reached a conclusion.

74. Issues relating to alleged malfeasance, corruption, inappropriate practices and systemic practices contrary to what FPA perceives as the duties and obligations of the Trustee are not matters for the Tribunal. The Tribunal is only dealing with the decision in this case, and any complaints of the nature outlined above should be directed by FPA to the Government. The conduct and actions of the Trustee are oversighted by the Parliament on a broad basis and where necessary the resources of the Auditor General come to bear. Courts and Tribunals will only go so far as to identify or note an anomaly or inconsistency in the manner that functions of the Trustee (or any Agency) are discharged, in so far as they are a matter arising in the evidence adduced in proceedings. However, no finding, orders or recommendations of this sort will be made about such matters. FPA is free as a client and a citizen to ventilate his grievances elsewhere.

Consideration of the evidence

75. As noted above all parties lodged a large amount of written material for the hearing. In respect of FPA’s material, much of it was previously prepared for and submitted in the Guardianship Division application and hearings as well as his internal appeal from those decisions.

76. In my view whilst the evidence of the parties is at times complimentary and at other times in conflict, I do not assess the weight of FPA’s evidence and position as strong. Many of the FPA’s points (such as his alternate financial arrangements to fund the protected persons care) are simply not supported by the available evidence. The proposal is broadly contingent on the agreement of FPM which is not forthcoming, nor is she under any obligation or other requirement to agree to FPA’s proposed arrangements.

77. FPA himself has taken no steps to generate rental or other income for the protected person. Whilst there was much discussion and informal undertakings from FPA in this regard nothing occurred as a result in a practical manner. Whilst FPA claimed to be ‘fixing up’ the farm property, the Property Reports, both with high priority and general make good repair quotations and scope of works details, which were commissioned by the Trustee, were not challenged by FPA.

78. I note that at the conclusion of the evidence and submissions the parties briefly raised the issue of settling the matter along the lines of FPA guaranteeing or providing an income stream for the protected person to cover he current and future shortfalls in care fees. This predominantly arose in the context of the existence of the Deed and the shadow that it cast over the situation concerning the protected person’s legal position. The concession was also aligned with the guiding principle of the Tribunal under the NCAT Act.

79. The parties were effectively given six weeks to resolve the matter without the prospect of the Tribunal determining the matter after hearing. Subsequently the Tribunal was advised that the parties had been unable to resolve the matter between themselves and this decision ensued.

80. FPA had initially engaged legal representation in his dealings with the Trustee. The ultimate position of the Trustee being that as the Financial Manager of the protected person, they could invoke cl 12 of the Deed and provide a 90 day notice period for the deed to be extinguished and FPA give up possession of the property.

81. Whilst FPA may have enforceable rights under the Deed, he would need to explore those rights and challenge the actions of the Trustee before a Court if agreement could not be reached. In my view the Tribunal has no direct jurisdiction in respect of the Deed, and because of the making of the Financial Management Order in its most recent form by the Guardianship Division of the Tribunal, the Trustee effectively becomes the protected person for the purposes of any action under the Deed. By inserting cl 12 into the Deed the parties to the Deed clearly contemplated that it was possible the arrangement might need to come to an end in their lifetime and as such provided a fair and orderly method (with three months’ notice) for such an outcome to take place.

82. The Trustee made the decision to sell the farm property on 18 April 2022. The Internal Review reached the same conclusion. It noted the Deed but did not engage in any great detail with it in the proposal. Both the existence of the Deed and the decision (proposal at that time), to sell were seen as separate but somewhat related matters. Whilst the Deed could clearly be relied upon to prevent any sale, as the Trustee and the Tribunal have noted, clause 12 provides an orderly system to bring the arrangement under the Deed to an end. At present the Trustee in practice is a party to the Deed by force of the current Financial Management Order.

83. The Tribunal is required to apply the s 39 principles to conducting the review and reaching a position. As has been previously noted by the Supreme Court and the Tribunal, the principles must all be considered, but the paramount consideration is not defeated by mathematical application of other principals and considerations weighted against it.

84. As the Tribunal noted in the case of FLC v NSW Trustee and Guardians [2023] NSWCATAD 127 at [24] – [26] the s 39 principles are central and are to be applied to the Tribunal’s reasoning.

24. The section 39 principles

Section 39 of the TAG Act is in the following terms:

39 General principles applicable to Chapter

It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients 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.

25. Each of the parents is and was at all relevant times a protected person for the purposes of the section.

26. Principles as to the application of the section 39 principles emerge from the cases, including WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22 (WL) and most recently FNL v NSW Trustee and Guardian [ 2023] NSWCATAD 46. The other relevant authorities are ZWA v ZWB [2022] NSWCATAP 113 at [51]- [55], DYH v Public Guardian [2021] NSWCATAD 136 (DYH) and DCA v Public Guardian [2017] NSWCATAD 364 at [56], each of which involved application of the principles set out in section 4 of the Guardianship Act, which are in almost identical terms to and otherwise analogous with those in section 39.

..

The central issue

28. The central question is whether each of NSW Trustee’s decisions is the correct and preferable one. In this context a decision will be correct if it reflects a proper application of the law and in particular of the section 39 principles to the facts; that is, to the factual findings I have made based on the material before me, which is described at [14]- [17] above.

85. Consistent with FLC, in applying the principles I find that under s 39 (a) the welfare and interests of the protected person are on balance best served by selling the farm property. The cash flow shortfall will be reduced, and once fully restored, the Centrelink pension will increase to approximately $25,500 per annum. The protected person will no longer be liable for any external property related expenses, some superannuation fees will be reduced and the RAC or RAD contributions can be increased depending on how much is received for the sale.

86. Under s 39 (b) the decision does not limit the protected persons actions and decision making, based on her evidence before the Guardianship Division of the Tribunal that she is settled and content in residential aged care, and her evidence during the hearing that she is looked after by the aged care staff.

87. The s 39 (c) provision that such persons should be encouraged as far as possible to live a normal life in the community is no longer applicable in the current matter. At no time has it been requested or suggested by either FPA or the protected person that they (the protected person) will return to the farm. The decision to sell the farm will not impact on their ability to live as normal a life in the community based on the current uncontroversial circumstances concerning residential aged care.

88. The s 39 (d) principle concerning the protected person’s views are noted. The protected person clearly outlined her view to the Tribunal that she did not want the farm sold. However having regard to the protected person’s diagnosis, the fact that no party in these proceedings saw fit to advise the protected person of the proposal and subsequent proceedings before the Tribunal, and the protected person’s lack of understanding of the context in which the questions were put to her in the proceedings, I find that this provision is of little weight when having regard to the paramount consideration. The protected person’s interests are significantly served by meeting her necessary care needs and quality of life.

89. The s 39 (e) principle is not challenged by the decision. Whilst culturally her life story and farming background is significant, the protected person can no longer take any practical part in these matters. No evidence was put to counter this, nor any challenge to this observation during the hearing. FPA (or FPM) will not be impacted adversely from the protected person’s position, as neither has the authority to make the decision, so any adverse consequence will not be directed at them. If the Deed is brought to an end FPA will still have his own home to live in which was always a possibility and contemplated because of cl 12.

90. The s 39 (f) principle is not applicable here as the protected person is under Financial Management, and the decision does not impact on matters that she can and cannot be self-reliant in. If anything the protected person would be more self-reliant by the decision as she will be able to pay her own way in respect of her care.

91. The final principle under s 39 is item (g) which deals with protection from neglect abuse and exploitation. Whilst none of these issues were enlivened in the matter, the decision would address the issue whereby at the time of the hearing the protected person receives no real current benefit under the Deed. Whist in the past she received a benefit, since the death of her spouse and her entry into residential age care any benefit has been of little significance for her. The arrangement under the Deed has in my view exacerbated the current financial situation for the protected person rather than address and improve it.

92. As I have previously noted, the Tribunal has often observed that when determining how to best assist a family member who might have a disability or relevant condition in the areas of care and financial management, persons with good will often legitimately differ in views and attitudes as to how those needs should be met. The different positions of the family members are noted and understood by the Tribunal in that context.

93. I note the case of CPE v NSW Trustee and Guardian [2017] NSWCATAD 11. That the case involved a more exigent or pressing financial imperative to sell the property. However driving that application was a desire by the third party to keep the house, as any sale would leave them without accommodation. That is not the case in these proceedings as FPA has his own residence in town.

94. Paragraph 27 of that decision sets out how the matter must be approached. When referencing the case of P v NSW Trustee and Guardian [2015] NSWSC 579

27. This protective jurisdiction is governed by the central informing idea that the jurisdiction exists for the care of those who are not able to take care of themselves. The exercise of this jurisdiction must be for the benefit, and in the best interests, of the person in need of protection as an individual, not for the benefit of the state or for the convenience of carers: P v NSW Trustee and Guardian [2015] NSWSC 579

95. In accordance with the principle from P’s case, it is clear that the protected person must benefit from the decision, to the detriment (if necessary) of all others.

96. Turning again to section 39 of the TAG Act, I am satisfied that the sale of the property is now in the interests of the protected person. The evidence indicates that it is in her financial interests, and there are no longer any personal factors relevant to maintaining the property in respect of the protected person. Factors relating to FPA whilst relevant under s 39 (e) must be considered in the totality of the section and the paramount consideration under the Act. I do not doubt the importance of the farm to FPA especially as it was his childhood home and the means of the family’s income for many years.

97. On the totality of the evidence I prefer the evidence supporting the sale.

98. I note the Tribunal observed the final consideration of such matters in the recent case of FTF v NSW Trustee and Guardian [2023] NSWCATAD 120. When balancing the interests of persons when applying the evidence to the proposals the Tribunal identified that the ‘managed person’s’ financial security should be weighted as a factor in that matter when applying the paramount consideration. At [57] of FTF then Tribunal observed that:

57. I was not satisfied that there is any other option other than for FTF’s mother’s property to be sold. Paramount consideration must be given to the managed person’s financial security, not FTF’s. The property in question belongs to the managed person until her death. The managed person is no longer able to reside in it and, given the property is her only asset, it should be liquidated to enable her debts to be paid, her accommodation secured and funds be made available for her other needs or wants. This affords the managed person financial flexibility and freedom of action. The managed person is unable to be self-reliant in matters relating to her affairs unless her property is sold.

99. Like FTF In find that the protected persons financial security, when considered as a paramount consideration, would be best served by the sale of the farm property that she owns, and I so find.

Finding

100. I find that the sale of the property is now in the best interests of the protected person.

Conclusion

101. On the basis of a consideration of all of the material presented to the Tribunal, I am satisfied that the decision to sell the property is the correct and preferable decision.

102. The first respondent’s decision will therefore be affirmed and the application will be dismissed.

Orders

1. The decision of the first respondent is affirmed.

2. The application is dismissed.

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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: 06 June 2023