GTD v NSW Trustee and Guardian & GVZ

[2025] NSWCATAD 79

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GTD v NSW Trustee and Guardian & GVZ [2025] NSWCATAD 79

Hearing dates:

19 March 2025

Date of orders:

3 April 2025

Decision date:

03 April 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Smith, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – person under financial management order – sale of property

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Guardianship Act 1987 (NSW)

NSW Trustee and Guardian Act 2009 (NSW)

Powers of Attorney Act 2003 (NSW)

Cases Cited:

BND v NSW Trustee & Guardian [2015] NSWCATAP 219

Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42

Commission for Children and Young People v FZ [2011] NSWCA 111

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

NSW Trustee and Guardian v FYV [2024] NSWCATAP 243

Re Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372

Roberts v Balancio (1987) 8 NSWLR 436

Sterjovski v Director-General, Department of Transport [2002] NSWADT 10

Sullivan v Civil Aviation Authority (2014) 22 FCR 555

YG & GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

NSW Trustee & Guardian: Real Property Sale Policy

Category:

Principal judgment

Parties:

GTD (Applicant)
NSW Trustee and Guardian (First Respondent)
GVZ (Second Respondent)

Representation:

Tiernan Lawyers (Applicant)
Solicitor, NSW Trustee and Guardian (First Respondent)
Second Respondent (self-represented)

File Number(s):

2024/00429651

Publication restriction:

The publication of the name of the Applicant or any other person mentioned in these Reasons for Decision is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

REASONS FOR DECISION

1. The Protected Person in this matter is the parent of the Applicant (GTD) and the Second Respondent (GVZ). The Protected Person currently resides in a residential aged care facility (RACF). GTD currently resides on the Protected Person’s property (‘the property’).

2. The Respondent, NSW Trustee and Guardian (NSWTG) is the financial manager for the Protected Person.

3. GTD has applied to the Tribunal for an administrative review of a decision made by NSWTG about the management of the Protected Person’s estate, primarily to sell the property.

4. For the reasons below, the Tribunal has decided that the correct and preferable decision is to affirm the decision under review.

Material before the Tribunal

5. The hearing was held on 19 March 2025. GVZ was granted leave by the Tribunal to appear via AVL. The other parties appeared in person. No witnesses were called for cross-examination. All parties made oral submissions.

6. The following material was tendered in GTD’s case during the hearing:

1. Administrative review application form filed on 19 November 2024.

2. GTD’s submissions filed on 20 February 2025.

3. GTD’s Affidavit sworn on 7 March 2025.

4. Bundle of eight invoices for work done on the property dated between 7 October 2002 and 26 October 2024.

5. Bundle of screenshots of three emails between GTD and NSWTG during November 2024 and December 2024.

7. The following material was tendered in NSWTG’s case during the hearing:

1. Bundle of documents filed pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

2. NSWTG’s submissions filed on 3 March 2025, attaching:

1. Assets and Liabilities statement for the Protected Person as at 26 February 2025.

2. Overdue Sydney Water account for the property.

3. Overdue Council rates for the property.

3. NSWTG Policy: Real Property Sale, date of effect: 10 October 2019.

4. Assets and Liabilities statement for the Protected Person as at 19 March 2025.

8. The following material was tendered in GVZ’s case during the hearing:

1. Application to be joined as a party filed on 17 January 2025.

2. Statement in support of application to be joined as a party filed on 28 January 2025.

3. Bundle of documents filed on 3 March 2025.

4. GVZ’s submissions, including a document entitled “reasons for submitting each file”, filed on 3 March 2025.

9. The Tribunal ruled that any part of any transcript included in GVZ’s material which was a transcript of a recording by GVZ of GTD, recorded without GTD’s consent, was not admissible and would not be read.

Background

10. On 22 September 2020, the Protected Person appointed GTD as the Protected Person’s enduring guardian and enduring power of attorney, and GVZ as the substitute attorney and alternative enduring guardian.

11. In June 2021, GVZ made an application to the Guardianship Division of the Tribunal seeking appointment as the Protected Person’s guardian and financial manager. These applications were dismissed after hearing.

12. GTD moved into the property in June 2022 to care for the Protected Person.

13. On 11 January 2023, GVZ applied to the Guardianship Division of the Tribunal for a review of the appointment of GTD as enduring power of attorney and enduring guardianship, alleging financial abuse, psychological abuse and neglect of the Protected Person by GTD. GVZ sought that these appointments be revoked.

14. In mid-March 2023, the Protected Person moved from the property into a RACF. GTD continued to reside in the property.

15. During the hearing of GVZ’s application before the Guardianship Division of the Tribunal, the bank statements for the Protected Person for the period between 14 January 2020 and 12 February 2022 were reviewed and showed that the balance had reduced from $55,723.18 to $1,125.76. GTD gave evidence that the Protected Person paid for some of GTD’s expenses. The enduring power of attorney did not authorise the attorney to give reasonable gifts or to confer benefits on the attorney to meet the attorney’s reasonable living and medical expenses. The significant reduction in the Protected Person’s savings and GTD’s evidence that the Protected Person paid for some of GTD’s living expenses provided sufficient evidence for the Tribunal to decide to conduct a review of the enduring power of attorney. GTD had also not been able to pay insurance on the property, which had been uninsured for six months.

16. The Tribunal found that GTD was not fulfilling her fiduciary duty as the Protected Person’s attorney and decided not to make an order under the Powers of Attorney Act 2003 (NSW) but rather to treat the application as an application for a financial management order under the Guardianship Act 1987 (NSW) (Guardianship Act). The Tribunal also decided that it was in the Protected Person’s best interests to treat the application for review of the enduring guardianship appointment as an application for a guardianship order under the Guardianship Act.

17. On 26 March 2023, the Guardianship Division of the Tribunal made orders under the Guardianship Act that:

1. The estate of the Protected Person be subject to management under the NSW Trustee and Guardian Act 2009 (NSW) (NSWTG Act). NSWTG was appointed as the financial manager of the estate of the Protected Person.

2. A continuing guardianship order be made for the Protection Person for a period of 12 months from 26 April 2023. The Public Guardian and GTD were appointed separately as guardians. GTD had the functions of health care and medical/dental consent. The Public Guardian had the function of access and accommodation.

18. On 9 October 2023, GTD paid the Refundable Accommodation Deposit (RAD) for the Protected Person’s RACF after selling GTD’s own property. GTD paid the RAD without the approval of NSWTG.

19. In December 2023, NSWTG obtained financial planning advice, which recommended that the Protected Person sell the property unless GTD was able to:

1. Pay out the Protected Person’s liabilities of approximately $23,000 immediately, and

2. Pay weekly rent of $1,000 for the property, and

3. Make a weekly contribution of $200 to meet cash flow shortfall, which would have to increase to $520 per week from May 2025 to compensate for the Protected Person’s loss of the Centrelink pension (the property having then by May 2025 become an assessable asset resulting in the cessation of the Protected Person’s Centrelink pension).

20. On 14 February 2024, NSWTG advised GTD of these recommendations.

21. On 22 February 2024, GTD advised NSWTG that she required more time, and would likely have to make an application to the Tribunal seeking to remove NSWTG as the financial manager of the Protected Person’s estate.

22. On 20 March 2024, GTD applied to the Guardianship Division of the Tribunal to review the financial management order. GVZ was joined as a party to these proceedings. The Tribunal also conducted an end of term statutory review of the guardianship order.

23. On 26 June 2024, the Guardianship Division of the Tribunal dismissed the application to review or revoke the financial management order. In relation to the issue of the sale of the property, the Protected Person stated during the hearing their wish for GTD to remain on the property and that the property not be sold. The Tribunal noted that although the Protected Person may well be strongly opposed to the sale of the property, the Protected Person required care in a RACF and it was simply not possible for that to continue while also retaining the property. The Tribunal found that the revocation of the financial order may well be in GTD’s best interests, but it could not possibly be in the Protected Person’s best interests.

24. On 26 June 2024, the Tribunal also decided to jointly appoint GTD and GVZ as the Protected Person’s guardians with the functions of health care and medical/dental consent regarding major medical treatment. The guardianship order did not include the functions of accommodation and access. The guardianship order is in place for a period of three years from 26 June 2024.

25. On 2 September 2024, NSWTG made a decision approving the sale of the property on the basis that:

1. GTD continued to occupy the property and had not agreed to pay the RACF arrears, rent or take over all property outgoings as per the financial planning recommendations of December 2023.

2. A safety and compliance report undertaken of the property in August 2023 advised of upcoming maintenance works required totalling approximately $54,000. The Protected Person had insufficient funds to undertake these works or any other emerging property maintenance issues.

3. The Protected Person had insufficient funds to pay ongoing residential aged care fees in terms of the means tested care fee and basic daily fee and had no other way to pay these fees other than the sale of the property.

4. If retained, the property would become assessable for the Protected Person’s Centrelink pension in May 2025, resulting in the cancellation of Protected Person’s only current income stream.

5. The Protected Person had insufficient funds to meet the Protected Person’s current residential aged care arrears, and these were continuing to accrue, potentially placing the Protected Person’s accommodation and care at risk.

26. On 26 September 2024, GTD sought an internal review of the decision for the following reasons:

1. There was an agreement between GTD and the Protected Person that GTD would continue to live in the property without having to pay occupation costs including rent to mind the Protected Person’s dog and to reside there in consideration of GTD having paid the RAD.

2. NSWTG had been charging fees that were too expensive for the Protected Person to afford which should have been avoided by removing NSWTG as the financial manager.

3. There was an alternative source of funds to meet the Protected Person’s current aged care arrears, that being the RAD contributed exclusively by GTD.

27. On 17 October 2024, the internal review was completed and varied the decision made on 2 September 2024 as follows:

1. GTD to pay all current arrears of $22,877.35 for the Protected Person, a weekly rent contribution of $1,000, and $200 towards the Protected Person’s ongoing needs (which would need to increase to $520 per week from May 2025) by 14 November 2024. This was to be reviewed on a three-monthly basis.

2. NSWTG to establish a lease agreement for the property noting that the Protected Person will be the sole tenant on the property.

3. Should GTD not be able to meet any of these expenses then the property is to be sold and proceeds from the sale are to be placed into a second trust account in which the Protected Person’s ongoing expenses will be met from.

4. In the event that the property is sold, then the prior RAD paid by GTD without NSWTG approval is to be returned to GTD.

28. On 19 November 2024, GTD filed an application for administrative review with the Tribunal seeking a review of this decision. The internal review decision is the decision under review.

29. On 17 January 2025, GVZ filed an application to be joined as a party with the Tribunal. On 4 February 2025, the Tribunal made an order joining GVZ to the proceedings as the Second Respondent.

Role of the Tribunal

Jurisdiction

30. As a result of the order made on 26 April 2023 by the Guardianship Division of Tribunal to commit the Protected Person’s estate to the management of NSWTG, NSWTG has, and may exercise, all functions necessary and incidental to the management and care of that estate by virtue of s 56 of the NSWTG Act.

31. The decision under review is a decision made in the exercise NSWTG’s functions under Div 1 of pt 4.5 of the NSWTG Act (Management of estates) of the NSWTG Act.

32. Section 62(1) of the NSWTG Act provides that an affected person may apply to the Tribunal for an administrative review under the ADR Act of a decision of NSWTG that is made in connection with the exercise of NSWTG’s functions under Div 1 of pt 4.5 of the NSWTG Act or is a class of decisions prescribed by the regulations.

33. An ‘affected person’ is defined in s 62(2) of the NSWTG Act and includes a person whose interests are, in the opinion of the Tribunal, adversely affected by the decision.

34. GTD is a person who is adversely affected by the decision under review.

35. There is no dispute in this matter, and the Tribunal is otherwise satisfied, that the Tribunal has the jurisdiction in respect of the decision under review.

Administrative review

36. The task of the Tribunal is set out in s 63 of the ADR Act which provides as follows:

1. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

1. any relevant factual material,

2. any applicable written or unwritten law.

2. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

3. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

1. to affirm the administratively reviewable decision, or

2. to vary the administratively reviewable decision, or

3. to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

4. to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

37. The Tribunal is required to base its findings of fact on logically probative material: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at [62] and [68]; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17]. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

38. The standard of proof applicable to this review by the Tribunal is the balance of probabilities. There is no burden or onus of proof on either party: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28]-[34]. The standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 (NSW) do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89]-[91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10]-[12]. However, these standards provide guidance for the Tribunal’s exercise of jurisdiction.

39. In conducting a review, the Tribunal stands in the shoes of the administrator and makes the correct and preferable decision having regard to all relevant material. The Tribunal may have regard to material that was relevant at the time of the decision as well as any further material that is relevant at the time of the hearing. The issue for determination is what is the correct and preferable decision at the time of the determination, irrespective of whether it was or was not the correct and preferable decision at the time it was originally taken: YG & GG v Minister for Community Services [2002] NSWCA 247, [25].

40. In terms of the Tribunal’s task of reaching the correct and preferable decision, this involves reaching a decision that is correct on the law and evidence. If there is more than one possible decision, the decision must be the preferable one having regard to the limits imposed by the legislation under which the decision is made and the facts of the case: Re Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372, [24].

Principles to apply

41. Section 39 of the NSWTG Act provides that it is the duty of everyone exercising functions under Ch 4 of the NSWTG Act (Management functions relating to persons incapable of managing their affairs) with respect to protected persons to observe the following principles:

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

2. the freedom of decision and freedom of action of such persons should be restricted as little as possible,

3. such persons should be encouraged, as far as possible, to live a normal life in the community,

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

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

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

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

42. In NSW Trustee and Guardian v FYV [2024] NSWCATAP 243 at [93] the Appeal Panel decided to apply the principles in s 39 of the NSWTG Act, in determining whether a decision to sell the property of a protected person was the correct and preferable decision, which instruct that the welfare and interests of the protected person be given paramount consideration and the protected person’s views be taken into consideration.

GTD’s case

43. In GTD’s material she stated that NSWTG should ‘step aside’ and that she be appointed as the financial manager of the Protected Person’s estate or alternatively that she and GVZ be appointed as joint financial managers for the Protected Person’s estate. GTD stated in her material that she was willing to meet the Protected Person’s outgoings if NSWTG resigns or is removed as financial manager.

44. After the Tribunal sought clarification about this position at the commencement of hearing, GTD confirmed that she had not made an application to the Guardianship Division of the Tribunal for a review or revocation of the financial management order. GTD also accepted that the Tribunal in conducting this review was not able to make such an order, and that NSWTG could not resign from an appointment that had been made by an order of the Tribunal. GTD therefore withdrew from this position during the hearing.

43. GTD’s case is that the decision imposes financial hardship on herself and the Protected Person, is not in the Protected Person’s best interests and is not consistent with the Protected Person’s wishes not to sell the property and have GTD reside on the property, rent-free.

44. GTD proposes that the Protected Person be moved to an ‘alternative, cheaper and more conveniently located nursing home’ that GTD had located so that the RAD could be refunded to GTD, which could then be used to pay the RAD on the alternative RACF and the NSWTG outstanding fees.

NSWTG’s case

47. NSWTG confirmed at the hearing that since the internal review, GTD had not paid all current arrears for the Protected Person, had not made any weekly contribution or established a lease agreement for the property. It is therefore NSWTG’s position that the decision to sell the property is the correct and preferable decision on behalf of the Protected Person to ensure all of the Protected Person’s financial needs can be met and the Protected Person’s liabilities are paid. NSWTG contend that there are no other options at this point, given the Protected Person’s limited finances and significant debts, other than selling the property.

GVZ’s case

48. GVZ supported NSWTG’s position and is also of the view that the correct and preferable decision is that the property be sold. GVZ indicated that he intends to contest the Protected Person’s will in due course and is opposed to GTD’s proposed change of accommodation for the Protected Person. GTD raised his concerns that GTD had a long history of inflicting financial and psychological abuse towards the Protected Person, which he believes is consistent with the definition of elder abuse in the NSW Elders Abuse Toolkit (2016).

Consideration

Issues to be determined

49. The following issues are to be determined in considering what is the correct and preferable decision:

1. The current financial position of the Protected Person

2. The options for meeting the Protected Person’s current and future expenses

3. The application of the section 39 principles.

Current financial position of the Protected Person

Assets and liabilities

50. During the hearing, at the Tribunal’s request, NSWTG provided a statement of the Protected Person’s assets and liabilities as at 19 March 2025. This evidence indicated that:

1. The Protected Person’s only asset is the property and is valued at approximately $1.5 million.

2. The Protected Person has one bank account with a balance of $693.40 and a trust account maintained by the NSWTG with a balance of $634.12.

3. The total value of the Protected Person’s liabilities is $45,917.30.

NSWTG fees

51. Included in the Protected Person’s liabilities are outstanding NSWTG fees. In the financial planning advice NSWTG obtained in December 2023 for the Protected Person, it was noted that the outstanding NSWTG fees were $15,120.

52. GTD submits that NSWTG are seeking to recover their own fees and charges by selling the Protected Person’s home. GTD also asserts that NSWTG are charging the Protected Person more for acting as the Protected Person’s financial manager ‘than what is necessary for an old-age pensioner’. In GTD’s material, she does however accept that the NSWTG fees need to be paid.

53. NSWTG submitted that NSWTG is not charging the Protected Person above what is prescribed and have actually prioritised the Protected Person’s immediate needs, such as chemist bills and insurance on property, while essentially remaining unpaid with the outstanding NSWTG fees.

54. There was no evidentiary basis for GTD’s submission that NSWTG are charging the Protected Person more than what is prescribed by way of fees for their service as the financial manager of the Protected Person’s estate. The Tribunal therefore does not accept this submission.

Costs associated with the property

55. Included in NSWTG’s material were copies of unpaid accounts for the property:

1. Sydney Water for usage charges for the period between November 2024 and February 2025 totalling $420.75

2. Council rates of $561.86.

56. During the hearing, GTD produced a screen shot of an email she had sent to NSWTG on 20 November 2024 asking to be an ‘authorised contact’ for the Sydney Water account. GTD also produced a screen shot of an email she then received from NSWTG on 18 December 2024 requesting that GTD arrange payment of the Sydney Water account. This email also indicated that NSWTG are not able to authorise GTD dealing with Sydney Water as this refers to property ownership and GTD is not the owner of the property. It was submitted by NSWTG that there were options for payment on the account, including a BPAY option which GTD could use to pay, and that GTD did not need to be an authorised contact to pay the account.

57. NSWTG submitted that if the council rates are not paid, there is a risk that the council will take action to recover the debt, which could include selling the property.

58. NSWTG submitted that the Protected Person does not have sufficient funds to meet the outgoings of the property which puts the property at risk.

59. GTD submitted that she was ‘ready, willing and able to make good the debt that is outstanding’, however there was no evidence before the Tribunal that these outstanding accounts have been paid by GTD.

60. NSWTG submitted that GTD had not provided NSWTG or the Tribunal with any information or evidence regarding GTD’s financial circumstances or reasons why GTD has not been paying for the outgoings of the property, including water usage, as she had said she would. NSWTG submitted that regardless of the financial position of GTD, NSWTG does not hold sufficient funds to meet the continuing outgoings of the property from funds held on behalf of the Protected Person and therefore the property needs to be sold.

61. Included in NSWTG’s material was an Architect’s Advice Report dated 4 August 2023, the purpose of which was to provide independent expert advice from a registered architect about any building or property related design, construction or maintenance matters in relation to the property. As a result of this assessment, no urgent issues were identified as needing to be attended to. There were recommended but not essential issues, including:

1. External and internal painting - probable cost of $35,000 to $45,000.

2. Re-nailing loose fence palings – probable cost of $600 to $900.

3. Replacement of timber framing of the rear terrace roof structure which is rotting – probable cost of $3,000 to $4,500.

4. Re-nailing loose floorboards on the decking of the rear terrace – probable cost of $700 to $1,000.

5. Installation of guttering to the carport, as none exists – probably cost of $2,000 to $2,800.

62. The Architect’s Advice Report also identified some minor issues that needed to be monitored for future consideration including amongst other matters, minor cracks to the walls and ceiling, and some penetration and rising damp to the walls. Photographs of the issues identified with the property were included in the report.

63. NSWTG submitted that if the property was not sold, the recommended but not essential issues would need to be attended to in the next few years.

64. GTD’s material included copies of paid invoices for some remedial work she had arranged for the property, the most significant of which was $2,475 paid in April 2024 to a roofing company for fixing loose tiles. The date of the most recent of these invoices for work done to the property was 3 May 2024. The work arranged by GTD does not address the recommended issues identified by the Architect’s Advice Report.

Age pension

65. The Protected Person’s sole income is the Age Pension. In the financial planning advice NSWTG obtained in December 2023 for the Protected Person, it was noted that as at 8 December 2023, the Protected Person was receiving the Centrelink Age Pension maximum payment of $1.096.70 per fortnight.

66. One of the reasons for NSWTG’s decision to sell the property was that the property would become an assessable asset for the Age Pension calculation in May 2025 (two years from the time that the Protected Person left the property and entered a RACF) and as a result, given the value of the property (which exceeds the maximum limit for asset value for a single person), the Protected Person’s Age Pension would cease in May 2025.

67. GTD submitted that this is incorrect as the Department of Health and Aged Care had confirmed that GTD qualifies as a ‘protected person’ still living in the property, having lived in the property for over two years. GTD contends that the house cannot be considered as an asset and therefore the Protected Person will not lose the Age Pension as alleged by NSWTG. Other than stating this in an affidavit, GTD did not provide the Tribunal with any independent corroborative evidence confirming that she was deemed a protected person occupying the property or that the property would be exempt from the Centrelink asset test to otherwise take effect in May 2025.

Assessment of the Protected Person’s financial position

68. In BLB v NSW Trustee and Guardian [2015] NSWCATAD 83, which involved an administrative review by the Tribunal of a decision made by NSWTG to sell a protected person’s property, the Tribunal stated at [30]:

While the effect of the decision under review on the protected person’s financial position is not the sole factor to be taken into account, it is nonetheless relevant to the assessment of her interests and welfare. Her financial position will have a direct bearing on her ability to meet the costs of ongoing care and to fund unbudgeted medical expenses and purchase discretionary goods and services. While it is not possible to predict with any degree of certainty what the protected person’s future health needs will be, or the extent to which whether any recommended treatment will be funded by Medicare, a prudent approach demands that she have adequate funds available to fund any future costs.

69. The Tribunal is satisfied, given the evidence of the Protected Person’s financial position as set out above, that there is a clear and pressing need for the Protected Person to be able to access funds to pay for the Protected Person’s past and future expenses.

70. The Tribunal is also satisfied that the Protected Person is facing an unacceptable risk in terms of loss of accommodation, asset and income source, given the evidence of significant debts, unpaid property outgoings, property maintenance costs that will arise in the next few years, and the likely impending loss of the Protected Person’s Age Pension come May 2025.

Options for meeting the Protected Person’s current future expenses

Sale of the property

71. NSWTG submits that after having obtained financial planning advice in December 2023 and allowing significant time for negotiation with GTD to consider other options, it is now at the point where there is no other option but to sell the property.

72. At the Tribunal’s request during the hearing, given the concerns raised by GTD that NSWTG were simply seeking to ‘recover their own fees’ and that there might be a ‘fire sale’ of the property, NSWTG produced a copy of its policy on Real Property Sales. The document indicates that when real property has to be sold on behalf of customers, NSWTG’s objective is to obtain the best-selling price possible for all real properties based on property and market conditions at the time of sale. This policy also notes that NSWTG will consult with customers and key contacts on the sale of the property. NSWTG submitted that this policy would be followed in the sale of the property, including consulting with GTD and GVZ during the process.

Relocation of the Protected Person to another RACF to allow GTD to recover the RAD

73. GTD proposes that the Protected Person be moved to an ‘alternative, cheaper and more conveniently located nursing home’ that GTD had located. In her Affidavit, GTD states that the Protected Person has been experiencing ‘difficulties’ at the current RACF and the Protected Person had expressed to GTD wanting to move to a ‘different nursing home’. GTD states that on 14 February 2025, the current RACF had reported that the Protected Person ‘had been involved’ in a physical altercation. GTD states that the Protected Person ‘fears more confrontations will take place in the future’.

74. Apart from mentioning this proposal briefly in her Affidavit of 7 March 2025 and annexing about one page of general information about the new RACF, there was no other evidence from GTD about whether this new RACF could meet the Protected Person’s needs, the specific costs that would be charged in the Protected Person’s case and the timeframe for relocation.

75. GTD contends that if the Protected Person was to be transferred to the new RACF, this would free up the RAD that GTD paid exclusively from her own funds on 9 October 2023. GTD states that if the RAD was refunded to her, GTD would be able to pay the RAD at the new RACF and pay NSWTG’s outstanding fees.

76. GTD did not provide any evidence as to how the Protected Person’s ongoing needs and other liabilities would be paid (after the new RAD and NSWTG fees were paid by GTD after recovering the RAD from the current RACF), particularly if the Protected Person’s Age Pension did cease after May 2025.

77. The Tribunal was advised during the hearing by the solicitor for GTD that the Protected Person was currently in a single room, but that at the new RACF the Protected Person would be in a shared room.

78. GVZ submitted that he was opposed to the Protected Person relocating to the new RACF. GVZ submitted that he had contacted the new RACF and been told that the only room they had available was one that four people shared. GVZ submitted that in relation to the physical altercation incident, it had been the Protected Person that had assaulted another resident and this is one reason the Protected Person was in a single room, even though the Protected Person was paying for a shared room. GVZ submitted that being in a shared room did not work well for the Protected Person. GVZ submitted that the Protected Person is settled at the current RACF, has access to a garden, walks outside and is in a routine. GVZ submitted that the staff at the RACF are great and he does not wish for the Protected Person to move.

79. GVZ made submissions about these matters rather than providing evidence. GTD’s evidence of a proposed new RACF for the Protected Person was not known to the parties until 7 March 2025 when GTD’s material (in reply) was filed. While GVZ’s submissions about the circumstances at the current RACF were not controverted by the other parties, the Tribunal is not able to place much weight on this information or make any finding, other than to accept that GTD and GVZ are in dispute about the prospect of the Protected Person relocating to the RACF proposed by GTD.

80. NSWTG submitted that GTD had been warned not to pay the RAD and that NSWTG had otherwise not approved GTD paying the RAD for the Protected Person. NSWTG submitted that GTD had now ‘backed herself into a corner’ having paid the RAD and not having access to these funds, which could only be returned on the death of the Protected Person or if the Protected Person moved from the current RACF.

81. NSWTG pointed out during the hearing that the guardianship order does not refer to NSWTG and therefore any decision about the Protected Person’s accommodation would not involve NSWTG, unless there were issues affecting the management of the Protected Person’s estate. NSWTG did not have any concrete proposal from GTD to consider and had not obtained any financial planning advice on a proposed move to another RACF. NSWTG submitted that financial planning advice would need to be sought to consider the financial implications for the Protected Person of a proposed move to another RACF.

82. It was also identified by NSWTG during the hearing that the current guardianship order does not include the function of accommodation. The parties advised the Tribunal that this was because the Protected Person’s accommodation was settled as at the time of the hearing before the Guardianship Division of the Tribunal in June 2024.

83. The Tribunal is not satisfied on the basis of the evidence before the Tribunal and submissions made by the parties that GTD’s proposed relocation of the Protected Person is an appropriate option or a reasonable solution to the Protected Person’s current financial position. There is insufficient evidence before the Tribunal about this option including how the Protected Person’s current and future expenses would be adequately met, and the uncertainty as to whether it would occur given there is no consensus between GTD and GVZ.

Assessment of options

84. For the reasons outlined above, the Tribunal is not satisfied that GTD’s proposal to relocate the Protected Person to recover the RAD and pay part of the Protected Person’s current debts is an appropriate or reasonable option. The parties have not presented to the Tribunal any other reasonable options to address the Protected Person’s current financial position.

85. The other options which NSWTG proposed to GTD during 2024, after obtaining financial planning advice in December 2023, such as GTD paying the Protected Person’s arrears by a certain due date, making an ongoing weekly contribution (which would increase after May 2025) and entering a lease agreement for the property, were not accepted by GTD.

86. The Tribunal is of the view that it is not an option to take no action and let the status quo continue given the concerning and worsening state of the Protected Person’s current financial position which is compounded by the unacceptable risk of losing the property and the Protected Person’s only source of income.

87. The Tribunal is therefore satisfied that the only viable option in the circumstances is the sale of the property.

Application of the section 39 principles

88. In exercising functions under Ch 4 of the NSWTG Act by conducting this review, it is the duty of the Tribunal to observe the principles under s 39 of the NSWTG Act. Administrative review applications relating to decisions concerning protected persons should be conducted in a way that reflects the guiding principles set out in s 39 of the NSWTG Act, and in particular s 39(a), that the paramount consideration in decision-making is the welfare and interests of the protected person: BND v NSW Trustee & Guardian [2015] NSWCATAP 219, [32].

89. For the purposes of this review, the Tribunal notes that the principles in ss 39(b), (c) and (f) are not applicable given the current financial management order in place and that the Protected Person has to reside in a RACF.

Section 39(a) - Paramount consideration of the welfare and interests of the Protected Person

90. The principle in s 39(a) of the NSWTG Act instructs that the Tribunal in this review, should give paramount consideration to the welfare and interests of the Protected Person.

91. NSWTG hold minimal funds for the Protected Person and do not have funds to meet the Protected Person’s ongoing needs. NSWTG submitted that NSWTG has a duty to the Protected Person to meet the Protected Person’s ongoing liabilities and not allow the estate NSWTG are entrusted to manage for the Protected Person to go into deficit. NSWTG propose that if the property is sold in accordance with its policy, the proceeds of the sale would go into a second trust account from which the Protected Person’s ongoing expenses can be met.

92. GTD submitted that NSWTG, by their conduct, are demonstrating an intention not to put the Protected Person’s interests first. GTD, however, did not provide any reliable evidence to support this submission.

93. The Tribunal is satisfied that it is not in the Protected Person’s interests to allow Protected Person’s estate to continue to go into further deficit, and to place the Protected Person at unacceptable risk of losing the Protected Person’s only source of income, their current accommodation and potentially the property if it was kept. There are no other viable options in evidence before the Tribunal that would adequately meet the Protected Person’s ongoing expenses. The Tribunal is therefore of the view that the only viable option that is consistent with the paramount consideration of the Protected Person’s welfare and interests is the sale of the property.

90. The Tribunal must consider the Protected Person’s welfare and interests over and above the welfare and interests of the other parties, including GTD and GVZ. Retaining the property may well be in the interests of GTD, but it is not in the Protected Person’s welfare or interests for the property to be retained.

91. The Tribunal accepts that the sale of the property may adversely affect GTD’s interests as she will likely have to relocate from the property after the sale. With the sale of the property, NSWTG proposes that the RAD will be returned to GTD, which will assist GTD’s own financial situation. GTD’s interests and financial situation however, are not determinative in this matter as it is the welfare and interests of the Protected Person that is the paramount consideration of the Tribunal.

Section 39(d) - Views of the Protected Person

96. The principle in s 39(d) of the NSWTG Act instructs that the Tribunal in this review, should take into consideration the views of the Protected Person.

97. The Protected Person’s will, dated 8 October 2020, was included in NSWTG’s material and provides that ‘any real estate’ owned by the Protected Person as at the date of death, together with all personal effects and jewellery, be given to GTD. At the date of the execution of the will, the Protected Person was still living on the property.

98. It is evident to the Tribunal that since receiving financial planning advice in December 2023 to assist with decision making to manage the Protected Person’s estate, NSWTG has considered and proposed a range of options that were mindful of the Protected Person’s apparent express wish not to sell the property.

99. NSWTG conceded during the hearing that NSWTG had not had any direct contact with the Protected Person to obtain the Protected Person’s current wishes about the sale of the property. NSWTG stated that the Protected Person received a copy of the decision under review. NSWTG accepts that the Protected Person’s wishes were expressed at the hearing before the Guardianship Division of the Tribunal in June 2024, that the property not be sold.

100. The Tribunal notes the comments made by the Guardianship Division of the Tribunal in the decision of 26 June 2024, that in relation to the issue of the sale of the property, while the Protected Person may well be strongly opposed to the sale of the property, the Protected Person required care in a RACF and it was simply not possible for that to continue while also retaining the property.

101. There is dispute between GTD and GVZ as to what the Protected Person’s current wishes are in relation to whether the property should be sold. There is also a dispute between GTD and GVZ about the Protected Person’s capacity.

102. GTD submitted that the Protected Person has been ‘unequivocal’ about not wanting to sell the property because ‘it is our home’ and the home for the Protected Person’s dog.

103. GVZ submitted that in terms of the Protected Person’s wishes, the Protected Person was influenced by GTD. GVZ submitted that the Protected Person had told him during a phone call on 7 November 2022 before the Protected Person was admitted to the RACF that the Protected Person wanted to sell the property. GVZ included transcripts he had prepared of recorded conversations with the Protected Person (prior to June 2024 hearing before the Guardianship Division of the Tribunal) where there was discussion about a fair approach of a 50/50 split of the Protected Person’s estate between GTD and GVZ. GVZ submitted that the Protected Person does not remember or miss the dog. GVZ also submitted that the property was still the Protected Person’s property – not GTD’s property.

104. The Protected Person was not directly involved in these proceedings and the Tribunal is reliant on what evidence the parties have filed in relation to the Protected Person’s wishes, without the benefit of cross-examination. Given the level of acrimony between GTD and GVZ, the Tribunal refrains, in the absence of independent evidence of the Protected Person’s current wishes and capacity to express those wishes, from accepting submissions from either GTD or GVZ about the Protected Person’s current wishes. The Tribunal is not able to determine whether or not the Protected Person currently wishes for the property to be sold or not.

105. The Tribunal does however accept that the Protected Person did make it clear during the hearing before the Guardianship Division of the Tribunal in June 2024, that the Protected Person did not want the property to be sold, and the Tribunal accepts that the Protected Person may still hold that view. While the Tribunal takes this into account and acknowledges the Protected Person’s views as weighing against affirming the decision under review, the paramount consideration is the Protected Person’s welfare and interests in the Tribunal’s consideration of what is the correct and preferable decision.

Section 39(e) - Recognition of the importance of preserving the family relationships and the cultural and linguistic environments of Protected Persons

106. The principle in s 39(e) of the NSWTG Act requires that the Tribunal recognises the importance of preserving the Protected Person’s family relationships as well as the Protected Person’s cultural and linguistic environments.

107. While the relationship between GTD and GVZ involves conflict and they are in dispute between themselves about what is in the Protected Person’s best interests, it appears from the submissions made by both GTD and GVZ that they each have ongoing contact and connection with the Protected Person, and that for GVZ in particular, this has improved in the last few years in terms of his ability to access the Protected Person under the current guardianship order.

108. The Tribunal is satisfied that the sale of the property, which will assist with the Protected Person’s current and future needs being met and promotes the Protected Person’s interests and welfare, should not adversely affect the Protected Person’s ongoing contact and connection GTD and GVZ.

Section 39(g) - Protection of Protected Persons from neglect, abuse and exploitation

109. The principle in s 39(g) of the NSWTG Act provides that the Protected Person should be protected from neglect, abuse and exploitation and this principle should be observed in the function that the Tribunal has of conducting this review.

110. The Tribunal acknowledges that GVZ filed a substantial amount of material about his concerns that GTD is perpetrating financial and psychological abuse against the Protected Person and that this amounts to elder abuse as defined in the Elder Abuse Tool Kit.

111. GVZ submitted that GTD had caused the Protected Person to sign power of attorney and enduring guardian documents without GVZ’s knowledge, had caused the Protected Person to see GTD’s solicitor and change the Protected Person’s will so that GTD is the sole beneficiary, that GTD had isolated the Protected Person from having contact with GVZ and had made the Protected Person believe that GVZ had abandoned the Protected Person. GVZ raised concerns about how GTD had mismanaged the Protected Person’s funds when GTD had access to them, including running the Protected Person’s funds down after GTD become attorney in 2020 with GTD’s own personal expenses. GVZ provided copies of the Protected Person’s bank statements between 2020 and 2023 to support this submission. GVZ submitted that he has irrefutable evidence that GTD has abused the Protected Person, including transcripts of recorded phone conversations and copies of text messages. GVZ submitted that the only reason that GTD wants to move the Protected Person is to try and get her RAD back.

112. GTD stated in her material that she has not replied to GVZ’s material (in relation to the allegations of GTD abusing the Protected Person) as it is ‘false, unsupported and irrelevant.’

113. During the hearing the Tribunal noted that the evidence filed by GVZ in relation to his concerns about GTD, which had also been put before the Guardianship Division of the Tribunal for the June 2024 hearing and considered in the making of the current guardianship and financial management orders, are not of direct relevance to the Tribunal’s role in reviewing the decision that NSWTG had made in the management of the Protected Person’s estate. It is not the Tribunal’s task in conducting this review to determine whether GTD has perpetrated elder abuse against the Protected Person.

114. The Tribunal is, however, required to ensure that the decision that the Tribunal makes in respect of the management of the Protected Person’s estate, is one which will ensure that the Protected Person is not neglected, abused and exploited. In this regard, the Tribunal is satisfied that the sale of the property will avoid the Protected Person’s estate from going into further deficit and avoid the unacceptable risk that the Protected Person otherwise faces with the potential loss of income, residential aged care accommodation and property (if the property was kept).

Summary of application of the s 39 principles

115. The Tribunal has taken into account the views of the Protected Person about the sale of the property which weigh against affirming the decision under review. The Tribunal is satisfied however, that the sale of the property is consistent with the paramount consideration of the Protected Person’s welfare and interests, will not impact adversely on the Protected Person’s relationships with GTD and GVZ which are important to the Protected Person, and will go towards ensuring that there is protection of the Protected Person from neglect, abuse and exploitation.

Conclusion

116. The Tribunal is satisfied that the sale of the property is the only reasonable option from the evidence before the Tribunal that addresses the Protected Person’s clear and pressing need to be able to access funds to pay for the Protected Person’s past and future expenses. If the property is not sold, the Protected Person faces the unacceptable risk of the estate going into further deficit, as well as loss of accommodation, income and the property.

117. For the reasons set out above, including the application of the s 39 principles, the Tribunal is of the view that the correct and preferable decision, which gives paramount consideration to the Protected Person’s welfare and interests, is to affirm the decision made by NSWTG on 17 October 2024.

118. The Tribunal notes that in terms of the Respondent’s decision of 17 October 2024, as 14 November 2024 has passed, the preconditions to avoiding the sale of the property, have not been met. That is GTD has not (as of 14 November 2024) paid all current arrears of $22,877.35 for the Protected Person, a weekly rent contribution of $1,000, and $200 towards the Protected Person’s ongoing needs (which would need to increase to $520 per week from May 2025). As this did not happen, there was also no three-monthly review of this arrangement.

119. Further, NSWTG has not been able to establish a lease agreement for the property with the Protected Person as the sole tenant on the property.

120. The effect of the Tribunal affirming the decision under review, made by the Respondent on 17 October 2024, is that the rest of the decision is now to take effect, specifically:

1. The Protected Person’s property be sold

2. The proceeds of the sale of the property be placed in a second trust account from which the Protected Person’s ongoing expenses can be met, and

3. That the prior paid RAD be returned to GTD from the proceeds of the sale of the property.

Order

121. The decision under review 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: 03 April 2025