FTF v NSW Trustee & Guardian

[2023] NSWCATAD 120

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FTF v NSW Trustee & Guardian [2023] NSWCATAD 120

Hearing dates:

11 May 2023

Date of orders:

24 May 2023

Decision date:

24 May 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

E Connor, Senior Member

Decision:

The decision made by the NSW Trustee and Guardian on 1 August 2022 is affirmed

Catchwords:

ADMINISTRATIVE LAW – review under section 62 NSW Trustee and Guardian Act 2009 – welfare and interests of managed person – financial management order – sale of managed person’s property

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Guardianship Act 1987

NSW Trustee and Guardian Act 2009

Category:

Principal judgment

Parties:

FTF (Applicant)
NSW Trustee and Guardian (First Respondent)

Representation:

Applicant (Self-represented)
R Stormont, Legal Officer, NSW Trustee and Guardian (Respondent)

File Number(s):

2023/00080510

Publication restriction:

Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, a person must not without the consent of the Tribunal, publish, or broadcast the name of any person who appears as a witness in these proceedings, to whom these proceedings relate, or is mentioned or otherwise involved in the proceedings. The name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Background

1. This is an application filed on 9 March 2023 by FTF with the Administrative and Equal Opportunity and Occupational Division of the New South Wales Civil and Administrative Tribunal (‘NCAT’) (the ‘Tribunal’) for administrative review of the decision of the NSW Trustee and Guardian (the ‘Trustee’) on 1 August 2022 to sell a property owned by her mother, who will be referred to as the ‘managed person’.

2. The managed person is a widow in her late eighties of Greek background. She has two adult children, her daughter (FTF, the applicant) and a son, between whom there is a history of significant conflict. The managed person has been a permanent resident of an aged care facility since 30 June 2020.

3. On 7 July 2020 the Guardianship Division of NCAT (‘Guardianship Division’) made a limited guardianship order for the managed person appointing the Public Guardian as her guardian for 12 months with authority to make decisions about her accommodation; health care; medical and dental consents; and services.

4. On 7 July 2020 the Guardianship Division made a financial management order and committed the management of the managed person’s estate to the Trustee pursuant to s25M(1)(b) of the Guardianship Act 1987 (NSW).

5. When making the guardianship and financial management orders on 7 July 2020, the Guardianship Division made a finding that the managed person has dementia and is incapable of making informed decisions about either her lifestyle or financial affairs.

6. FTF lodged an application with the Guardianship Division seeking the review and revocation of the financial management order. That application was heard on 16 July 2021, together with the statutory review of the guardianship order. A further guardianship order was made for three years appointing the Public Guardian to make decisions about the managed person’s health care and to consent to medical and dental treatment on her behalf. On 16 July 2021 the Guardianship Division also confirmed the financial management order.

7. FTF asserts she made an out of time request for an internal review of the decision made by the Trustee in a letter dated 11 November 2022. The respondent states they did not receive this letter.

8. On or about 23 February 2023 the managed person’s property was advertised for sale by auction on 18 March 2023. As a result of this application the Trustee deferred the sale and marketing of the property was ceased.

9. On 9 March 2023 FTF lodged an application for a stay/interim order and as stated above, an application for administrative review of the decision. The application for administrative review was lodged outside of the time allowed.

10. On 13 March 2023 orders and directions were made by the Tribunal.

11. On 16 March 2023 further directions were made by the Tribunal and leave was granted pursuant to s55(4) of the Administrative Decisions Review Act 1997 (NSW) (‘ADR Act’) for the applicant to bring the application for administrative review of the respondent’s decision made on 1 August 2022, despite no internal review being conducted. The application for a stay/interim order lodged on 6 March 2023 was withdrawn and dismissed.

12. The guardianship and financial management orders were again reviewed on 29 March 2023 by the Guardianship Division. A further guardianship order was made and the financial management order made on 16 July 2021 was confirmed.

13. On 8 May 2023 leave for FTF to appear by phone in these proceedings was refused by the Tribunal.

14. On 10 May 2023 a request for adjournment lodged by FTF was refused by the Tribunal and leave was granted for her to appear by audio-visual link.

15. Due to the sensitive nature of these proceedings, at the start of the hearing an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act2013 (NSW) (‘CAT Act’), that the name of the applicant and any person involved in the proceedings must not be published or broadcast without the leave of the Tribunal.

16. For the reasons set out below, the decision of the Trustee to sell the managed person’s house is affirmed.

The Hearing

17. FTF and her daughter participated in the hearing together by videoconference. They did not attend in person because they were recovering from an illness. FTF wanted her daughter to give evidence to the Tribunal and, with the agreement of the respondent, and on the basis that no new material was to be presented to the Tribunal by either FTF or her daughter, they participated in the hearing together.

Jurisdiction and Applicable Law

18. As stated above, the Guardianship Division has previously determined that the managed person is incapable of managing her financial affairs and committed management to the NSW Trustee and Guardian.

19. Chapter 4 of the NSW Trustee and Guardian Act 2009 (NSW) (‘TAG Act’) is concerned with ‘management functions relating to persons incapable of managing their affairs’. Section 56(a) of the TAG Act provides that the Trustee may exercise all of the functions necessary and incidental to the management and care of the managed person.

20. The Trustee is empowered to make decisions for the managed person pursuant to s 16(1) of the TAG Act, including buying, selling, realising and mortgaging real and personal property (s16(1)(g)) and paying their debts, costs and expenses and other outgoings (s16(1)(u)).

21. The reviewable decision falls within the power granted to the Trustee pursuant to section 16(1)(g) of the TAG Act.

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

23. An affected person is defined as:

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. any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision.

24. FTF is not the managed person or their spouse. She is FTF’s daughter and a beneficiary and executor of FTF’s will. She is aggrieved by the decision of the Trustee to sell her mother’s home and I accepted that this may adversely affect her. She is eligible to make an application under section 62 of the TAG Act. This was uncontested.

25. The Tribunal has jurisdiction to review decisions pursuant to s30 of the CAT Act and sections 6,7 and 9 of the ADR Act.

26. The role of the Tribunal in reviewing the decision is to determine the correct and preferable decision having regard to the material before it and the applicable law (s63(1) ADR Act). The orders the Tribunal can make on an application for review include an order to affirm the decision of the Trustee, or an order to set aside the decision and in substitution thereof make another decision in accordance with s63(3) of the ADR Act.

27. The Tribunal is guided by section 39 of the TAG Act which sets out the general principles which apply to the management of the estate of persons incapable of managing their financial affairs and how the correct and preferable decision is to be determined. The principles of section 39 relevant to this case include:

1. the welfare and interests of such persons should be given paramount consideration, …

2. the views of such persons in relation to the exercise of those functions should be taken into consideration,

3. the importance of preserving family relationships and the cultural and linguistic environments of such persons should be recognised,

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

5. such persons should be protected from neglect, abuse and exploitation.

The documents before the Tribunal

28. The Tribunal considered the following material filed by the applicant:

1. Application for review filed 9 March 2023 attaching decision made by the Trustee dated 1 August 2022;

2. The Will and Testament of the managed person dated 28 May 1996; and

3. Document titled ‘The Financial Management Report in Management for the managed person’ and correspondence between FTF and the Trustee.

29. The Tribunal considered the following material filed by the respondent:

1. Documents filed by the respondent on 17 April 2023 pursuant to s58 of the ADR Act (46 pages).

30. The respondent also lodged written submissions dated 10 May 2023.

Evidence presented

31. FTF provided a document titled ‘The Financial Management Report in Management for (the managed person)’ which sets out in tabular format her understanding of the managed person’s assets, liabilities and income on 7 March 2023 and in 2021 (‘According to TAG’) and projected figures from ‘2023 Onwards with Proposed Financial Manager FTF’. It includes figures in relation to ‘Profit and Loss due to TAG from 7^th July 2020’ and ‘Further Losses if TAG continue’. FTF proposes in the document that she be given ‘a six month trial as financial manager from 29.3.2023 until September 29^th 2023’.

32. During the hearing FTF said words to the effect that she:

…did not agree to everyone taking over her mother’s affairs. I have a right to say where she goes and what happens to her home. She hasn’t given authority to anyone to sell her house except me and my daughter.

The property should not be sold. I want it out of the Trustee’s hands. It’s not their property to sell. I want it back in my hands. I want to be in charge, not them. My mother was ‘coerced’. She is demented and they are trying to cheat her out of her house. They have cleaned out her bank account.

33. In the letter dated 1 August 2022 from the Trustee to FTF informing her of the decision to sell her mother’s property it is stated that:

This decision was made because:-

•   (the managed person) is a permanent resident of aged care and will not be returning to live in the property

•   (the managed person) has an outstanding Refundable Accommodation Contribution of $453,676.00)

•   (the managed person’s) Centrelink Age Pension has ceased on 19th July 2022

•   Selling will provide a cash flow and flexibility to provide for (the managed person’s) ongoing and unexpected needs.

34. The Trustee included copies of notes relating to communication between them and FTF in the section 58 documents. At page 40, it is reported that the views of both the managed person and her daughter were taken into consideration and it is acknowledged that on 25 July 2022 the managed person said she did not want to sell her property. It is also noted that on 10 June 2022 FTF said to the Trustee that they: ‘are taking the house from under her mother’, that she (FTF) ‘has no where (sic) to live and wants to live in her mother’s house and we need to kick her brother out’. On 22 July 2022 FTF told the Trustee she wanted to move her mother to an aged care facility closer to her but also that she wanted to take her mother back to her property and care for her there, notwithstanding her saying that she is also ‘not well herself’.

35. At page 41 of the section 58 documents it is stated that the managed person’s property is ‘in disrepair’ and that the managed person does not have any funds for repairs. It is noted that the Trustee’s Financial Planning Unit on 29 June 2022 recommended that:

•   We support the sale of your property/home at…

•   Upon Sale of the Property, we support paying the RAC of $453676 in full and any other liabilities in full.

•   Retain the remaining funds of approximately $578000 in your trust account to cover the shortfall and assist your son…with his accommodation expenses.

The ‘desk top valuation’ of the property by the Trustee on 20 May 2022 was $1,100,000 with a rental value of $580 per week.

36. When asked to outline why she believes the property owned by her mother should not be sold to pay the outstanding refundable accommodation deposit (RAD) to the aged care facility, FTF said that the property should be rented out. She and her daughter asserted that a RAD does not need to be paid and that they will pay any amount by which the costs to the aged care facility exceed the rental income from the property, which they estimated to be $750 per week. They also disputed the amount of the RAD said to be owing which they believe is based on the managed person being accommodated in a single room when she is sharing a room with three other people.

37. FTF disputed the valuation of $1,100,000 attributed to the managed person’s house and believe that her son remains living there, asserting that the Trustee has not taken any action to move him out. She also disputed that the property requires repairs prior to being able to be rented out.

38. During the hearing FTF offered to pay the arrears outstanding to the aged care facility if the property is not sold. FTF expressed concern that the managed person’s son will be paid a large amount of money by the Trustee from the managed person’s estate if the property is sold

39. Ms Stormont did not cross examine either FTF or her daughter. The Trustee believes the managed person’s son has vacated the property. He was previously her carer and, after his mother went into the aged care facility, paid the outgoings on the property for the first two years. As he has vacated the property, the managed person is now responsible for the outgoings.

40. Ms Stormont stated that the managed person ceased receiving a Centrelink pension when the two-year exemption period was reached following her becoming a resident at the aged care facility. She has no money and, in addition to being in arrears to the aged care facility, has a debt to the pharmacy supplying her medications and no funds with which to pay any outgoings on her property. Ms Stormont said that if the rates on the property fall into significant arrears, the council may force its sale which may not be in the managed person’s best interest. The managed person is not receiving an allowance for comfort items because she has no liquid funds.

41. Ms Stormont said that the property was listed for auction and an offer to purchase it for $1,050,000 million was received but not accepted by the NSW Trustee and Guardian pending the outcome of these proceedings.

42. In relation to FTF’s concern that the managed person’s son may receive a large payment when the property is sold, Ms Stormont stated that this is not the case and would be outside of the powers of the Trustee. She explained that the Trustee will on occasions pay a modest amount to a previous carer of a managed person when they must vacate a property to assist with expenses such as the bond for a rental property and removal costs. These expenses are sometimes provided from the managed person’s estate to facilitate the former carer moving out and avoid potential litigation to evict them, the costs of which would be significantly greater.

43. Ms Stormont submitted that little weight should be placed on FTF’s offer to contribute financially and pay the arrears owing to the aged care facility. FTF was informed of the decision of the Trustee to sell the managed person’s property on 1 August 2022 and has made no offer to assist prior to the hearing. The Trustee has not, therefore, had the opportunity to seek evidence about FTF’s ability to make such a financial contribution.

44. In written submissions the respondent reports that the managed person’s trust account is in deficit by $1,653.41 and she has not received a pension or any other income since 7 July 2022. No payments towards her nursing home fees have been made since that date and her fees are in arrears by over $14,000. The managed person has not received a comforts allowance since 7 July 2022 and her chemist account is in arrears of $576.03.

45. In final submissions FTF reiterated that her mother’s property should be rented out because the rent would then to go ‘directly to her mother’ and ‘straight to the nursing home’. She believes that the sale of the property ‘is working in the Trustee’s best interest’ and should not proceed. FTF asserted that the decision of the Trustee is ‘illegal’ and was aggrieved that she found out that her mother’s property had been listed for auction on Google. She wants to keep the property because it is her ‘family home’ and ‘nobody should be profiting from it’.

Consideration

46. I am satisfied that the decision made by the Trustee to sell the managed person’s former home is the correct and preferable one.

47. The Trustee has taken into consideration the views of the managed person and FTF. They are aware of the managed person’s stated preference that her property is not sold but have determined that it is in her best interests that the property be sold. The managed person does not have the funds to pay her liabilities unless her property is sold and her accommodation may be at risk if she continues to accrue arrears in her fees.

48. FTF demonstrated a lack of understanding of the roles of the Tribunal and the Trustee, and the protective nature of both entities. She states in her written submission that she wants to be given a trial as financial manager for her mother, an issue that is not within the scope of these proceedings.

49. FTF asserted that the actions of the Trustee and the Tribunal are ‘illegal’. There is no evidence that this is the case. While FTF may be unhappy with decisions made, neither the Trustee nor the Tribunal has exceeded its powers.

50. FTF asserts in her application that her mother ‘does not consent to the sale of her property’. She either refuses to accept, or does not understand, that her mother’s power to manage her own affairs is suspended by the financial management order made by the Guardianship Division, which determined that her mother lacks the capacity to manage her affairs.

51. FTF’s assertions that the Trustee is ‘cheating her mother out of her house’ and that they have ‘cleaned out her bank account’ indicate a fundamental lack of understanding of the nature of the financial management order that is in place to protect her mother. The Trustee used the managed person’s funds to meet her expenses until they were expired and is now owed money by the managed person.

52. FTF’s financial analysis does not take into consideration the impact on her mother’s eligibility for an aged pension if she has an asset worth over $1,000,000 that is being rented out. It does not allow for rental agency fees, pharmacy costs or a comfort allowance for her mother and is based on an unsubstantiated proposed rental of $750 per week.

53. I considered FTF’s proposal during the hearing that she will pay the fee arrears owing to the aged care facility but placed greater weight on the concern of the Trustee that this has never been offered previously and there has been no opportunity for the Trustee to confirm FTF’s ability to make such a payment.

46. FTF did not file any evidence of her current financial ability to meet the outstanding arrears and any ongoing fee gap if her mother does not pay a RAD. I also noted the record of conversations between FTF and the Trustee on 10 June 2022 when FTF said she ‘has no where to live’ and on 22 July 2022 when she informed the Trustee that she cannot visit her mother because ‘it is too far away, she cannot afford the petrol’. It seems unlikely she has sufficient financial resources to make the payments offered, and even if she does, such an arrangement would not sufficiently secure the ongoing health and wellbeing of the managed person from a financial perspective. Events outside FTF’s control might impact her future ability to continue to make such payments and lead to the managed person accruing debts again and her accommodation being placed at risk.

47. FTF’s concern about the possible payment of a large sum of money to her brother, based on the statement that by the Trustee that ‘the remaining funds of approximately $578000’ would be retained in her mother’s ‘trust account to cover the shortfall and assist your son…with his accommodation expenses’ is understandable. I accept that it could be read as meaning that a large amount of money might be transferred to her brother. The issue could, however, have easily been addressed if FTF had sought clarification from the Trustee about this, as was provided during the hearing.

48. I note FTF’s concern about the amount of the RAD stated to be payable by her mother because she believes her mother is being charged for a single room but is sharing with three other residents. This is an issue that should be investigated by the Trustee.

49. 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.

50. Due to the nature of the managed person’s disability, I was not able to take into consideration her views, but I noted she has in the past indicated to the Trustee that she did not want her property to be sold.

51. There is little evidence before me about the impact of actions on family relationships, other than that the relationship between FTF and her brother is already fractured. I am satisfied that the managed person is best protected from neglect, abuse and exploitation by the decision of the Trustee to sell her house being implemented.

Findings

60. After considering all the evidence before me I am satisfied that the decision made by the Trustee is the correct and preferable one. The reviewable decision is affirmed.

61. I find that it is in the best interests of the managed person that the property is sold. It is not in a suitable state to be tenanted and the managed person does not have the means to conduct repairs. She does not have funds to pay her fee arrears or pharmacy debt and is not receiving any comfort allowance. The sale of the managed person’s property will provide her with financial independence; ensure the security of her accommodation; reduce her risk of being subject to abuse, neglect or exploitation; and enable her to have money for comfort items. This will ensure her welfare and is in her best interests

Orders

1. The decision made by the NSW Trustee and Guardian on 1 August 2022 is affirmed.

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

Registrar

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

Registrar

Decision last updated: 24 May 2023