NI v NSW Trustee and Guardian

CITATION:	NI v NSW Trustee and Guardian [2009] NSWADT 179
DIVISION:	General Division
PARTIES:	APPLICANT NI RESPONDENT NSW Trustee and Guardian
FILE NUMBER:	093118
HEARING DATES:	12 May 2009, 21 May 2009, 3 June 2009, 15 June 2009, 1 July 2009
SUBMISSIONS CLOSED:	1 July 2009
DATE OF DECISION:	8 July 2009
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Protected Person – Decision by Trustee to sell major asset – Stay sought – Alternative Options – Best Interests – Stay refused
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 NSW Trustee and Guardian Act 2009 Protected Estates Act 1983
CASES CITED:	KV v Protective Commissioner [2004] NSWADTAP 29 Protective Commissioner v D (2004) 60 NSWLR 513
REPRESENTATION:	In person T Tunbridge, solicitor
ORDERS:	1. Application for stay of decision of Trustee refused. Interim stay order vacated. 2. Registrar to list the application for review for directions.

1 A member of the family of a protected person (the applicant) has applied to the Tribunal for review of a decision by the Protective Commissioner to sell the protected person’s main capital asset in order to generate sufficient funds to provide for his care and other financial needs. The decision was made by the Protective Commissioner in February 2009, and confirmed following internal review in March 2009.

2 The protected person is Mr A, aged 81 years. Mr A became a permanent resident in an aged care facility at Croydon in April 2007. He is suffering from dementia, and there are no prospects of improvement in his condition. His estimated life expectancy is about 8 years.

3 This judgment deals with an interlocutory application to have the Protective Commissioner’s decision to sell stayed pending the hearing of the review application.

4 When applications mentioned were filed (7 May 2009), the Tribunal’s jurisdiction was conferred by the Protected Estates Act 1983, s 28A. That Act (the former Act) has been repealed with effect from 1 July 2009. It has been replaced by the NSW Trustee and Guardian Act 2009, No 49 (the TG Act). The office of Protective Commissioner is abolished, and replaced by the office of NSW Trustee and Guardian, also referred to in the Act as ‘NSW Trustee’.

5 The Tribunal’s jurisdiction in matters of the present kind is preserved, and is now found in s 70 of the TG Act. The savings and transitional provisions provide that anything done prior to the commencement of the TG Act under a corresponding provision of the former Act is taken to be done under the new Act and similarly anything done by the Protective Commissioner is taken to have been done by the NSW Trustee (Sched 1, cll 4 and 5). In the reasons which follow, I will use the term ‘Trustee’, compendiously, to refer to both the old and new office.

6 The Guardianship Tribunal appointed the Trustee as Mr A’s financial manager on 17 February 2006. The asset which the Trustee has decided to sell is Mr A’s interest in land…