Nasser v NSW Trustee and Guardian

[2023] NSWCATAD 221

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Nasser v NSW Trustee and Guardian [2023] NSWCATAD 221

Hearing dates:

24 February, 3 April 2023

Date of orders:

17 August 2023

Decision date:

17 August 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Leal, Senior Member

Decision:

1) The decision by the NSW Trustee and Guardian on 5 April 2022 not to pursue legal action against Ms Habashy is affirmed.

2) The decision by the NSW Trustee and Guardian on 4 March 2022 not to take legal action against Mrs Nasser’s travel insurer is affirmed.

3) The decision by the NSW Trustee and Guardian on 29 June 2022 to reduce the legal service fee from $2470 to $2242 and to reimburse the difference of $228 to Mrs Nasser’s account, along with any applicable interest, is affirmed.

Catchwords:

Financial Management Order – Financial manager - Repatriation costs – Medical costs – Travel insurance – Failure to declare pre-existing medical condition - Decision by NSW Trustee not to take legal action against travel insurer – Decision by NSW Trustee not to take legal action against the former financial manager – Legal fees charged to managed person’s estate.

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Act 2013

Guardianship Act 1987

NSW Trustee and Guardian Act 2009

NSW Trustee and Guardian Regulation 2017

Cases Cited:

McDonald v Guardianship & Administration Board [1993] 1 VR 521

Category:

Principal judgment

Parties:

S Nasser (Applicant)
NSW Trustee and Guardian (Respondent)

Representation:

M Long (Applicant)

Solicitors:
NSW Trustee and Guardian (Respondent)

File Number(s):

2022/00099600

Reasons for decision

Summary

1. Mrs Nasser is an 85-year-old woman with vascular dementia who resides in an aged-care facility and is under the financial management of the NSW Trustee.

2. Through her agent and daughter, Ms Margaret Long, Mrs Nasser has applied for a review of the following decisions made by the NSW Trustee:

1. not to take action against Mrs Nasser’s travel insurer for refusing to accept her claim for repatriation and medical expenses incurred whilst on holiday;

2. not to take action against Mrs Nasser’s daughter, Ms Gladys Habashy, to recover repatriation expenses incurred by Mrs Nasser;

3. to charge Mrs Nasser for legal advice obtained by the NSW Trustee.

3. For the reasons that follow, I have affirmed each of these decisions.

Background

4. Between December 2018 and February 2020, Ms Gladys Habashy managed her mother’s financial affairs and was appointed by the Public Guardian to make decisions about her mother’s services.

5. This changed on 13 February 2020 when, having made a finding that Mrs Nasser had vascular dementia in addition to other medical conditions, the Guardianship Division of this Tribunal appointed:

1. the NSW Trustee and Guardian to be Mrs Nasser’s financial manager; and

2. the Public Guardian to make decisions about Mrs Nasser’s accommodation and what services she should access.

6. Following allegations by Ms Long that her sister, Ms Habashy, had misappropriated their mother’s money, officers from the NSW Trustee investigated withdrawals made from Mrs Nasser’s account between 8 April 2019 and 13 February 2020. They concluded that Mrs Nasser’s money had been accounted for and that any funds used for Mrs Nasser’s living expenses were reasonable.

7. Having also investigated withdrawals from Mrs Nasser’s account following its own appointment as financial manager, the NSW Trustee found that any large expenses were associated with Mrs Nasser’s medical emergency while on holiday and that other smaller expenses between 14 February 2020 and 21 February 2020 were for:

a series of small debits for miscellaneous purchases. They appear routine in nature and the amounts aren’t significant enough to warrant further enquiry. No further action required.

8. I have referred to Ms Long’s allegations against Ms Habashy for context only and have not made any findings on them. This is because these allegations do not form part of the decisions under review and so fall outside my jurisdiction.

9. On 22 February 2020, Mrs Nasser and Ms Habashy went on a cruise that had been booked by Ms Habashy before the NSW Trustee became Mrs Nasser’s financial manager and before the Public Guardian was appointed to make decisions in relation to Mrs Nasser’s accommodation and services.

10. Whilst on the cruise, Mrs Nasser became ill, requiring her to be taken by helicopter to hospital in Noumea. Medical expenses were incurred on board the cruise ship and in Noumea and there were additional accommodation and travel expenses to return Mrs Nasser to Australia. In all, the costs were over $60 000.

11. Although Mrs Nasser had taken out travel insurance, the insurer refused to cover the medical and repatriation costs incurred. This was because Mrs Nasser’s pre-existing medical conditions had not been disclosed to the insurer. Had Mrs Nasser disclosed her pre-existing medical conditions, the travel insurer would have refused to cover her for the cruise.

12. Ms Long requested the NSW Trustee take action to recover these medical and repatriation costs. The NSW Trustee’s decision not to take action either against Ms Habashy or the travel insurer was affirmed on 1 April 2022 by internal review.

13. In reaching this decision, the NSW Trustee and Guardian acted on internal legal advice that:

1. any action taken against Ms Habashy would be unlikely to be successful given that she had not been her mother’s guardian when the application for travel insurance had been made; and

2. there was no evidence that Mrs Nasser had disclosed her medical conditions to the insurer.

14. When she was charged for the legal advice prepared by the NSW Trustee and Guardian, which was slightly reduced on internal review, Mrs Nasser (as represented by Ms Long) sought a review of that decision.

15. Although Ms Habashy had originally been the second respondent in these proceedings, her application to be removed as a party was granted by the Tribunal on 2 August 2022. (s 44 of the Civil and Administrative Act 2013)

16. The Tribunal also allowed Ms Long’s application to represent her mother in these proceedings. (s 45(1)(b)(i) of the Civil and Administrative Act 2013)

17. At Ms Long’s request and contrary to the usual practice of the Tribunal in guardianship matters, Mrs Nasser’s name has not been anonymised in this decision.

18. In addition to the written material relied on by the parties, I have taken into consideration the recording of the hearing that took place on 13 February 2020 in the Guardianship Division of this tribunal. The recording was tendered by Ms Long and played during these proceedings. As that guardianship hearing did not deal with the specific issues before me, I have given the recording little weight.

Relevant Legal Matters

19. As set out above, on 13 February 2020, the Guardianship Division of this Tribunal found that Mrs Nasser was incapable of managing her affairs. As such there was a need for another person to manage her affairs and for a financial management order to be made. A financial management order was made pursuant to the provisions of Part 3A of the Guardianship Act 1987 and Mrs Nasser’s estate was committed to management by the NSW Trustee.

20. Chapter 4 of the NSW Trustee and Guardian Act 2009 is concerned with 'management functions relating to persons incapable of managing their affairs.' Under s 56(a) of the NSW Trustee and Guardian Act, the NSW Trustee may exercise all the functions necessary and incidental to management and care of the estate of the managed person.

21. In managing a person’s estate, the NSW Trustee is empowered to exercise a series of powers under s 16 of the NSW Trustee and Guardian Act, which include bringing legal actions. On this basis, I accept that it is within the power of the NSW Trustee to consider whether to take legal action against Mrs Nasser’s travel insurer or, indeed, against a family member.

22. In accordance with s 62 of the NSW Trustee and Guardian Act 2009, I am satisfied that Mrs Nasser is an ‘affected person.’ She is therefore entitled to apply to this Tribunal to review the NSW Trustee’s decisions not to take legal action against the travel insurer or Ms Habashy and to charge Mrs Nasser for legal advice received in relation to these issues.

23. In reviewing these decisions, the Tribunal ‘stands in the shoes’ of the NSW Trustee and is required to make the ‘correct and preferable decision’ having regard to any relevant factual material and any applicable written or unwritten law. The Tribunal may set aside, vary or affirm a decision before it. (s 63 of the Administrative Decisions Review Act 1997).

24. The review is to be conducted ‘without any presumption as to the correctness of the decision’: McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530.

25. On review the Tribunal may exercise all of the functions vested in the NSW Trustee, which includes giving paramount consideration to the interests of the applicant.

26. In accordance with section 39 of the NSW Trustee and Guardian Act, the following principles must be observed:

(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.

Issues

27. The following issues arise in this matter and are considered below:

1. Should the NSW Trustee and Guardian have sought to recover repatriation expenses from Ms Habashy?

2. Should the NSW Trustee and Guardian have taken action against the travel insurer for failing to reimburse Mrs Nasser for her medical and repatriation expenses?

3. Should the NSW Trustee and Guardian have charged legal fees for advice sought in relation to possible actions against Ms Habashy and the travel insurer?

Should the NSW Trustee and Guardian have sought to recover repatriation expenses from Ms Habashy?

28. According to the Legal Unit of the NSW Trustee and Guardian, any claim against Ms Habashy required proof that:

1. she had a duty to disclose her mother’s pre-existing medical conditions;

2. she had failed to disclose her mother’s pre-existing medical conditions; and

3. her mother had suffered as a result of the failure to disclose.

29. According to the NSW Trustee and Guardian:

1. Ms Habashy was not her mother’s guardian at the time of the cruise;

2. the Public Guardian only had functions in relation to accommodation and services; and

3. because the travel insurer’s medical questionnaire was an online document, there is no conclusive proof as to how the document was completed or by whom.

30. On this basis, the Legal Unit of the NSW Trustee and Guardian advised that there was:

minimal merit in commencing proceedings against Ms Habashy as it [is] unlikely that there are reasonable prospects of success which is vastly outweighed by the significant risks of the legal costs of the proceedings exceeding the repatriation costs or an adverse costs order being made against [Mrs] Nasser resulting in even greater monetary loss.

31. On 4 March 2022, the NSW Trustee and Guardian decided to take no further action against Ms Habashy in relation to the expatriation and medical costs incurred by Mrs Nasser while on the cruise ship vacation.

32. The following question remains, however: how was Ms Habashy able to access her mother’s bank accounts after the NSW Trustee had become Mrs Nasser’s financial manager?

33. Ms Brouwer, who appeared for the NSW Trustee in these proceedings, told the Tribunal that when the NSW Trustee is appointed financial manager for an estate, the handover is not immediate: it may take two to three months to get an account in order. Inter alia, a client information form needs to be completed and banks contacted before a client’s assets can be deposited in a new account managed by the NSW Trustee.

34. In this case, while the financial management order appointing the NSW Trustee and Guardian as financial manager was made on 13 February 2020, it wasn’t registered on the system until 18 February 2020, and the required bank information was not provided until 16 April 2020. Only after this information had been received could a bulk withdrawal of Mrs Nasser’s funds then occur, to be deposited into a new account managed by the NSW Trustee.

35. On the evidence before me and for the reasons set out above, I am satisfied that the failure to declare her pre-existing medical conditions voided Mrs Nasser’s travel insurance. I accept the legal advice prepared by the NSW Trustee and Guardian’s Legal Unit that, on the available evidence, there is no proof as to how the application for travel insurance for Mrs Nasser was completed or by whom.

36. I also accept that, as Ms Habashy was not her mother’s guardian at the time of the cruise, it may be difficult to prove she had a duty to disclose her mother’s pre-existing medical conditions. The likelihood of any legal action being successful would then be slim. Furthermore, I accept that the cost of any legal proceedings against Ms Habashy might well exceed the amount sought to be recuperated.

37. For these reasons, I am satisfied it would not be in the interest or welfare of Mrs Nasser to commence legal action against Ms Habashy and that the decision of the NSW Trustee and Guardian not to do so was the correct and preferable one.

Should the NSW Trustee and Guardian have taken action against the travel insurer for failing to reimburse Mrs Nasser for her medical and repatriation expenses?

38. On 22 February 2020, Ms Habashy accompanied Mrs Nasser on an international cruise. The cruise had been booked prior to the NSW Trustee being appointed as Mrs Nasser’s financial manager and travel insurance purchased for Mrs Nasser.

39. Ms Long submits that the NSW Trustee should take responsibility for ‘allowing Saide Nasser to be taken on a cruise trip when we had told them to not allow her to go with Gladys Habashy as her medical heart condition was placed on notice as she suffered a heart attack while on their watch.’

40. Whilst the Public Guardian had been appointed as guardian to Mrs Nasser on 13 February 2020, its functions were limited to making decisions about Mrs Nasser’s accommodation and what services she should have. This means that the Public Guardian did not have the power to make decisions in relation to travel undertaken by Mrs Nasser.

41. On the evidence before me and for the reasons set out above, I am satisfied that the failure to declare Mrs Nasser’s pre-existing medical conditions voided her travel insurance. I accept the legal advice prepared by the NSW Trustee and Guardian’s Legal Unit that, due to this failure to declare her pre-existing medical conditions, any legal action taken against the insurer would be unlikely to succeed. On this basis, I am satisfied it would not be in the interest or welfare of Mrs Nasser to commence such legal action and that the decision of the NSW Trustee and Guardian not to do so was the correct and preferable one.

Should the NSW Trustee and Guardian have charged legal fees for advice sought in relation to possible actions against Ms Habashy and the travel insurer?

42. On the evidence before me, I am satisfied that a solicitor in the NSW Trustee and Guardian’s Legal Unit completed thirteen hours of legal work at an hourly rate of $380 to provide advice in relation to proposed legal action against Ms Habashy and the travel insurer to recuperate repatriation and medical costs incurred by Mrs Nasser.

43. Whilst Mrs Nasser was initially charged for all thirteen hours, this was later reduced to $2470 to include only six and a half hours of legal work, with the remaining six and a half hours held not to be billable. The decision to charge Mrs Nasser for this advice was varied on internal review, with the amount being reduced to $2242 to account for a duplicate entry and a second entry for which the internal reviewer determined Mrs Nasser should not have been charged.

44. I accept that, in its capacity as financial manager, the NSW Trustee and Guardian is obliged to investigate and consider Mrs Nasser’s rights in respect of the possible recovery of funds. (s39(a) and s39(b) of the NSW Trustee and Guardian Act.)

45. I also accept that the NSW Trustee and Guardian has the authority to charge a fee for legal advice or for legal proceedings conducted by NSW Trustee in connection with an estate for which the NSW Trustee is the financial manager; and that the costs may be charged on a for profit basis. (section 111 of the NSW Trustee and Guardian Act; clause 10 of the NSW Trustee and Guardian Regulation 2017)

46. Ms Long claims that Mrs Nasser was never advised that legal fees would be charged to her estate. If Ms Long is correct and the advice was not provided, this is of concern, for that information may well have impacted the decision to commence these proceedings.

47. In considering whether the legal fees should be waived in accordance with section 111(3) of the NSW Trustee and Guardian Act, the internal reviewer made the following finding:

As the matters being investigated on behalf of Saide Nasser occurred prior to NSW Trustee and Guardian’s appointment as financial manager, did not involve an assessment of any action or inaction by NSW Trustee and Guardian and legal fees have been charged in accordance with those publicly available on the NSW Trustee and Guardian website, I do not find a potential or actual conflict of interest to arise in this case that would support a waiver of legal fees charged.

48. On the evidence before me, I accept the NSW Trustee was entitled to charge fees for the legal advice sought, that the amount charged was reasonable and required to enable the NSW Trustee to decide whether to take legal action against Ms Habashy and the travel insurer. For these reasons, I am satisfied that, on the evidence before me, the decision made by the NSW Trustee and Guardian on 29 June 2022 in relation to legal fees charged to Mrs Nasser’s estate was the correct and preferable decision.

Conclusion

49. For the reasons set out above:

1. the decision by the NSW Trustee and Guardian on 5 April 2022 not pursue legal action against Ms Habashy is affirmed;

2. the decision by the NSW Trustee and Guardian on 4 March 2022 not to take legal action against Mrs Nasser’s travel insurer is affirmed; and

3. the decision by the NSW Trustee and Guardian on 29 June 2022 to reduce the legal service fee from $2470 to $2242 and to reimburse the difference of $228 to Mrs Nasser’s account, along with any applicable interest, is affirmed.

Order

1) The decision by the NSW Trustee and Guardian on 5 April 2022 not to pursue legal action against Ms Habashy is affirmed.

2) The decision by the NSW Trustee and Guardian on 4 March 2022 not to take legal action against Mrs Nasser’s travel insurer is affirmed.

3) The decision by the NSW Trustee and Guardian on 29 June 2022 to reduce the legal service fee from $2470 to $2242 and to reimburse the difference of $228 to Mrs Nasser’s account, along with any applicable interest, 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: 17 August 2023