Green v Post - [2014] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
GREEN v POST
[2014] SASC 195
Reasons for Decision of The Honourable Justice Gray
18 December 2014
MENTAL HEALTH - MANAGEMENT AND ADMINISTRATION OF PROPERTY - PROTECTION ORDERS
Application to authorise the payment of funds from a protected estate. Applicant was injured in a motor vehicle accident in 1982. The court approved a compromise in that action and made a protection order over the applicant’s estate. The applicant’s wife had been his carer since the accident but could not longer fulfil that role due to her diminishing physical capacity. The applicant was admitted to respite care and wanted his wife to move into the adjacent retirement village. The applicant’s wife did not have sufficient funds to do so. The applicant and his wife requested that the managers of his protected estate fund the wife’s relocation to the retirement village. The managers and the applicant’s general practitioner agreed it would be in his best interests. The managers’ view was that it would not adversely impact on the estate’s financial position.
Whether it would be in the applicant’s best interests for his estate to provide funds to his wife to enable her to take up residence at the retirement village. Whether the applicant wishes for his estate to provide funds to his wife to enable her to take up residence at the retirement village. Whether the applicant’s estate would be adversely affected by providing funds to his wife to enable her to take up residence at the retirement village. Whether any individual who may have a claim against the applicant’s estate would be adversely affected by the applicant’s estate providing funds to his wife to enable her to take up residence at the retirement village.
Held (allowing the application):
1. The affidavit evidence establishes the applicant would benefit from his wife living nearby to provide ongoing support and assistance.
2. The affidavit evidence establishes that the applicant has capacity to understand the matters that are the subject of this application and that he wishes for his estate to provide funds to his wife to enable her to take up residence at the retirement village.
3. The estate’s financial reports disclose that it is in a strong financial position and its capacity to provide for the applicant’s ongoing care and maintenance will not be diminished by funding the applicant’s wife’s interest in the retirement unit.
4. The applicant’s wife is the primary beneficiary under his last will and testament. Funding the applicant’s wife’s interest in the retirement unit will not adversely affect any individual who may have a claim against the applicant’s estate.
Aged and Infirm Persons’ Property Act 1940 (SA) s 8A, referred to.
Green v Post (Unreported, Supreme Court of South Australia, Judge Bowen Pain, 24 December 1992), considered.

GREEN v POST
[2014] SASC 195
Civil
GRAY J.

This is an ex parte application to authorise the payment of funds from a protected estate.
Background
On 1 January 1987, the plaintiff and applicant, Michael Paul Green, was riding his motorcycle along Gawler Road when he collided with a horse float being towed by the defendant, Leonard Charles Post.
As a result of the collision, Mr Green suffered catastrophic brain injury and was severely physically handicapped. On 31 July 1987, following treatment at the Royal Adelaide Hospital, Mr Green was discharged into the care of the Julia Farr Centre. On 11 February 1988, Mr Green was discharged from the Julia Farr Centre into the care of his then fiancée and current wife, Janice Elva Green.
On 24 December 1992, a Judge of this Court approved a compromise in civil proceedings brought by Mr Green against Mr Post.[1] Under the terms of the compromise, Mr Green was awarded the sum of $2,140,188.40, together with special damages. The Judge made a protection order over Mr Green’s estate and appointed Patrick Digby Holroyd Hill and Ian McFarlane as managers of the estate.[2] The Judge ordered that the sum of $100,000.00 be paid to Mrs Green for past services. It was understood that Mrs Green would act as Mr Green’s carer on a full-time basis. Accordingly, the Judge ordered that Mrs Green be paid an allowance from the managers in respect of services rendered to Mr Green.
[1] Green v Post (Unreported, Supreme Court of South Australia, Judge Bowen Pain, 24 December 1992).
[2] Aged and Infirm Persons’ Property Act 1940 (SA) section 8A.
On 2 March 2012, Philippa Joy Wadham was appointed as a joint manger of Mr Green’s estate in lieu of Mr Hill.
The Application
On 7 November 2014, the managers of Mr Green’s estate filed an application in this Court seeking orders, inter alia, permitting them to provide financial assistance to Mrs Green to acquire a lease or licence to reside in the Golden Grove Lifestyle Village.
The application was supported by affidavits dated 30 October 2014 of the managers, Mr Green, Mrs Green and Dr Christopher Gillis.
In her affidavit, Mrs Green states, inter alia, that she was Mr Green’s primary carer between 1992 and June 2014, when Mr Green was subsequently admitted to respite care at The Viceroy in Golden Grove. Mrs Green ceased to act as Mr Green’s primary carer due to her own diminishing physical capacity. Mr and Mrs Green wish to reside close together so that Mrs Green may continue to provide conjugal support and care to Mr Green. Accordingly, Mrs Green paid a first deposit of $1,000.00 to enter into a residence contract for a retirement unit in the Golden Grove Lifestyle Village, which is adjacent to The Viceroy. She requires a further $405,000.00 to complete the contract. She has savings and investments to the value of approximately $25,000.00 and $30,000.00, respectively, which she keeps for emergencies and special occasions. Mrs Green intends to put some of these funds towards furnishing the unit in the event that she is able to complete the contract.
Mrs Green states that she and Mr Green agreed to sell their home in Greenwith, which they own as tenants in common, to fund her interest in the retirement unit. They have accepted an offer to purchase the property for $485,000.00, which will be divided equally between them. Mrs Green estimates that her share of the net proceeds of the property will be $230,000.00, which will result in a shortfall of approximately $175,000.00 to complete the contract for the retirement unit. Mrs Green is unable to meet this shortfall.
Mrs Green has requested that the managers of Mr Green’s estate contribute approximately $175,000.00 towards the contract for her retirement unit. She has further requested the estate advance her the funds required to move into the unit before the settlement of the Greenwith property as she is required to deliver vacant possession of the property on settlement. Mrs Green has also requested ongoing financial support in the order of $315.00 per week in respect of living expenses, in particular, the ongoing maintenance payments due in respect of the retirement unit.
Mr Green’s affidavit is in substantially similar terms to Mrs Green’s. He states that Mrs Green is his dependant spouse and that, if he had control of his estate, he would make provision for Mrs Green by way of a gift out of love and affection and to provide for their mutual wellbeing.
In their affidavit, the managers exhibit copies of the estate’s financial reports for the years ended 30 June 2013 and 2014. These reports disclose net income to the estate of approximately $91,000.00 in 2013 and $100,000.00 in 2014 and that the estate has a market value of over $4,750,000.00. The managers expect the value of the estate will continue to increase. In their view, the provision of approximately $175,000.00 plus the ongoing fortnightly maintenance fee would not materially affect the capacity of the estate to provide for Mr Green.
In the mangers’ view, it would be in Mr Green’s best interests for the estate to provide for Mrs Green to enable her to reside near him. Although Mrs Green is no longer Mr Green’s primary carer, the managers consider that she continues to provide necessary care and support to him. The managers’ recommendation is for the money to be paid as an unsecured, interest-free loan, repayable upon whichever is the first to occur of Mr or Mrs Green’s death and conditional on Mr Green remaining the primary beneficiary under Mrs Green’s will. The managers note that Mrs Green’s interest in the retirement unit cannot be the subject of a mortgage or charge to secure a loan.
Copies of the last wills and testaments of Mr and Mrs Green were also put before the Court by the managers. Mrs Green is the primary beneficiary under Mr Green’s will. Mrs Green’s will gifts certain chattels, for example her jewellery, to her children and names Mr Green as the residuary beneficiary.
In his affidavit, Dr Gillis states that he is Mr and Mrs Green’s general practitioner and consults regularly with them. He is aware of their desire to have Mrs Green take up residence in the Golden Grove Lifestyle Village as they believe it is important that they reside close to each other. In Dr Gillis’ opinion, Mr Green has become accustomed to Mrs Green’s daily care and support and his wellbeing would suffer if his contact with her diminished.
On the hearing of the application, I requested further information addressing Mr Green’s capacity. Anthony Bernard Fuller, solicitor for the managers, affirmed an affidavit on 18 November 2014. In his affidavit, Mr Fuller describes the process of preparing Mr Green’s affidavit of 30 October 2014. In particular, he states that the affidavit was drafted after taking instructions from Mr Green and that, before swearing the affidavit, Mr Green indicated to Mr Fuller that he understood the contents of each of the paragraphs of the affidavit. In Mr Fuller’s opinion, Mr Green understood the contents of his affidavit of 30 October 2014.
Dr Gillis affirmed an affidavit on 19 November 2014 following a review of Mr Green’s affidavit of 30 October 2014. In this affidavit, Dr Gillis stated that he has been Mr Green’s consulting doctor for over 18 years. Dr Gillis confirmed that the contents of Mr Green’s affidavit of 30 October 2014 reflected his previous discussions with Mr and Mrs Green. In his opinion, Mr Green has capacity to understand all matters contained in his affidavit of 30 October 2014.
The affidavit evidence clearly establishes that it would be in Mr Green’s best interests for his estate to facilitate Mrs Green taking up residence at the Golden Grove Lifestyle Village. I am satisfied that Mr Green has the capacity to understand all of the matters that are the subject of this application and that his wish is for his estate to assist Mrs Green to move into the Golden Grove Lifestyle Village.
The value of the estate is considerable and the provision of funds to Mrs Green in the terms contemplated by this application will not materially impact the ability of the estate to provide for Mr Green’s ongoing care or adversely impact any individual who may have a claim against Mr Green’s estate.
Conclusion
I allow the application to advance funds to Mrs Green to facilitate her taking up residence at the Golden Grove Lifestyle Village on such terms as the managers may reasonably require. I also allow the managers to advance reasonable amounts for the benefit of Mrs Green on terms that they may reasonably require to enable her to reside at the Golden Grove Lifestyle Village so long as she remains the dependant spouse of Mr Green.