PD v NSW Trustee

[2010] NSWADT 58

CITATION:	PD v NSW Trustee [2010] NSWADT 58
DIVISION:	General Division
PARTIES:	APPLICANT PD RESPONDENT NSW Trustee
FILE NUMBER:	093182
HEARING DATES:	25 September 2009
SUBMISSIONS CLOSED:	23 September 2009
DATE OF DECISION:	25 February 2010
BEFORE:	Leal S - Judicial Member
CATCHWORDS:	NSW Trustee – powers as to property
LEGISLATION CITED:	NSW Trustee and Guardian Act 2009 Administrative Decisions Tribunal Act 1997 Protected Estates Act 1983
CASES CITED:	YG & GG v Minister for Community Services [2002] NSWCA 247 McDonald v Guardianship Administration Board [1993] 1 VR 521
REPRESENTATION:	APPLICANT In person RESPONDENT C Phang, solicitor
ORDERS:	The decision of the NSW Trustee approving a monthly allowance payment to PD and stipulating the completion of a needs assessment report for TD is set aside. In substitution for that decision, a decision is made that:-100% of insurance premiums for TD’s property be paid by the NSW Trustee on behalf of TD and that a copy of all receipts and certificates issued following the payment of insurance premiums for TD’s property be sent to PD;-100% of council rates for TD’s property be paid by the NSW Trustee on behalf of TD and that a copy of all receipts for council rate payments for TD’s property be sent to PD;-the NSW Trustee request an updated needs assessment report for TD which should take into consideration the letter dated 17 August 2009 by Joy Walsh, Executive Director of Nursing for the Catholic Care of the Aged.

REASONS FOR DECISION

1 TD is a 90 year old woman who is living in nursing home accommodation. She suffers from dementia. Her husband of 25 years, PD, continues to live in the family home, which is held in the sole name of TD. On 28 August 2007, the Guardianship Tribunal committed the management of her estate to the Protective Commissioner (now the NSW Trustee, and referred to hereafter as ‘the Trustee’).

2 On 20 April 2009, PD requested that the Trustee meet 50% of all property outgoings in respect of the family home. On 5 May 2009, a decision was made by the Trustee for all insurance premiums relating to the family home to be met by funds administered by the Trustee on behalf of TD, and for all outgoings, rates, expenses and maintenance costs to be met by PD.

3 On internal review, this decision was set aside. In its place, the internal reviewer approved a monthly allowance payment to PD that equates to 50% of the cost of water, council and insurance premiums each year (reflected in 12 equal payments) but adjusted to reflect that 100% of insurance premiums will continue to be paid by PD. Under the decision, the payments would commence once PD provided evidence of the current annual cost of water and council expenses. The internal reviewer made the additional stipulation that an updated needs assessment report be prepared for TD and that the recommendations be implemented subject to affordability.

4 On 14 July 2009, PD applied to this Tribunal for a review of the decision.

Jurisdiction

5 When the application for review was lodged by PD, the Tribunal’s jurisdiction to review the decision to sell the property was conferred by s28A of the Protected Estates Act 1983. That Act has now been repealed with effect from 1 July 2009 and replaced by the NSW Trustee and Guardian Act 2009 (the Trustee Act). Among other things, the Trustee Act abolished the office of Protective Commissioner and replaced it with the office of NSW Trustee and Guardian, which is referred to in that Act as the ‘NSW Trustee’.

6 The savings and transitional provisions provide that anything done prior to the commencement of the Trustee Act under a corresponding provision of the former Act is taken to be done under the new Act. Similarly anything done by the Protective Commissioner is taken to have been done by the NSW Trustee and Guardian (Schedule 1, clauses 4 and 5). As stated above, in this decision, the Tribunal will refer to both the old and the new office as ‘the Trustee.’

7 In reviewing the subject decision the Tribunal ‘stands in the shoes’ of the 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 (Administrative Decisions Tribunal Act, s 63). This includes any material that postdates that decision (YG & GG v Minister for Community Services [2002] NSWCA 247 at [25]). 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. On review the Tribunal may exercise all of the functions that are vested in the Trustee.

8 Section 62 of the NSW Trustee and Guardian Act 2009 provides that an application may be made to this Tribunal for a review of a decision of the NSW Trustee that is made in connection with the NSW Trustee’s functions. Such an application may be brought by the spouse of a managed person in respect of whose estate the decision was made. One such function of the NSW Trustee is to ‘pay taxes, assessments, insurance premiums, debts, obligations, costs and expenses and other outgoings.’ (section 16 of the NSW Trustee and Guardian Act 2009).

Evidence

9 On 1 May 2009, the Trustee wrote to PD in relation to a meeting which had earlier taken place with a representative of the Trustee and PD. In that letter, concern was raised that both the Trustee and PD had been making insurance payments in relation to the family home. In this letter, the Trustee wrote to advise that as TD’s financial manager, the Trustee has a responsibility to make sure that the insurance on the property is paid and that it was the Trustee’s policy to pay insurance on clients’ properties to ensure that appropriate insurance is in place. The Trustee noted that in light of the double payments that had been made, TD’s insurance company had refunded $2164.35 to her. In response to a request by PD that the Trustee pay 50% of all expenses, outgoings and rates for the family home, the Trustee decided that all insurance premiums would be met by the Trustee on behalf of TD and that PD would be required to meet all outgoings, expenses and rates for the family home.

10 On 20 July 2009, the Trustee conducted an internal review of this decision, which was then set aside. In its place, the Trustee approved a monthly allowance payment to PD that equates to 50% of the cost of water, council and insurance premiums each year (reflected in 12 equal payments) but adjusted to reflect that 100% of insurance premiums will continue to be paid by TD. The payments were to commence upon PD providing evidence of the current annual cost of water and council expenses. The Trustee also stipulated that a needs assessment be completed for TD and that its recommendations be implemented subject to affordability. The decision stated that Mr Papas was to note ‘that any such recommendations will take precedence over any assistance being offered to him if the estate cannot afford to do both’.

11 An earlier Disability Advisor’s Report dated 23 March 2004 had made the following recommendations in relation to TD: that a customised wheelchair and comfort chair be purchased for her; that funds be allocated for her to have her hair done on a regular basis and that she would benefit from regular massages and the purchase of a CD player and some relaxation tapes. The report also noted TD’s need for hip protectors and recommended that a sum of $800 be set aside for funeral expenses.

12 In accordance with the internal review of the Trustee, an updated needs assessment was provided for TD on 7 September 2009.

13 Rosanna Wong, who completed the assessment, expressed the following views:

[TD’s] need for full time high level care remains unchanged. Her children raised no concerns in regard to the nursing home or the care she is receiving.

From a care perspective I would not regard [PD’s] involvement as indispensable I would however say that it adds value to her wellbeing in general. In keeping in contact with [TD] on a daily basis he has incurred extra travel expenses which can be a financial burden to him. I am of the view that recognition should be given to [PD’s] continued involvement in [TD’s] life. Nonetheless, [TD] will continue to require adequate finds to pay for the following

Nursing home fees ($467.74 per fortnight)

Pharmaceutical expense ($260 allocated in current budget)

Comforts ($25 per fortnight)

Clothes, toiletries and footwear

Haircut (every 6 weekly at about $10)

Dental and health services in the private sector if there is a long waiting list within the public system

NSWTG management fees (about $8 per month)

I still maintain that there is a need to set some funds aside for the purchase of customised aids and equipment (for example, customised chair and pressure mattress subject to affordability) for [TD’s] comforts, pain management and maintenance of skin integrity. I have requested Ms Smith to arrange a physiotherapist assessment and make a recommendation in regard to a customised chair for [TD] to sit in as she is now spending a lot of time in a chair.

Lastly, [TD] deserves to have a decent funeral like most people do. This cannot be fulfilled if her funds are depleted completely when the time comes.

14 A fortnightly personal budget for TD based on expenditure between 18 April 2008 and 19 April 2009 shows TD’s fortnightly income to be $585.80 and her fortnightly expenditure to be $592.31, assuming repairs and maintenance to her house are not included. With repairs and maintenance added to the budget, her fortnightly expenditure is shown to be $650.01. According to notes as the bottom of the budget, this would result in TD’s funds being exhausted in ‘approximately four to five years.’

15 In a statement of transactions for TD from 1 January 2009 to 25 September 2009, TD is stated to have an amount of $9374.00 in her trust account.

16 A report by the Trustee dated 24 September 2009 found TD’s property expenses to be as follows:

Council rates - $1055.65 per annum with $631.65 in arrears. If [PD] were to pay the rates directly, a monthly allowance of $44 would amount to a 50% contribution by [TD];

Water rates – there was some doubt as to whether water rates were charged to [TD’s] property. If so, an estimate of $600 per annum was given. If [PD] were to pay the water rates directly, a monthly allowance of $25 to [PD] would amount to a 50% contribution by [PD];

Insurance – is being paid by [TD] and [PD] is not expected to makes a contribution towards the insurance expenses

Repairs/maintenance – was not an expense previously requested by [PD] and so is not part of the current decision;

Utilities – under the internal review decision, [PD] is solely responsible for electricity, gas, phone and any other utilities except for council and water rates.

17 A letter dated 17 August 2009 from the Executive Director of Nursing of Catholic Care of the Aged states in part:

[TD] was admitted to Lourdes nursing home 05/10/200.[sic] She relocated to our Emmaus site 01/05/2008. During the eight years that [TD] has resided with us, and despite her no longer recognising him, [PD] has continued to visit twice every day, morning and evening, just to make sure [TD] is well cared for and comfortable.

[PD] has told me that the Protective Commissioner now known as the NSW Trustee and Guardian has written to inform him, at this request of review of decisions regarding the financial management of his wife’s affairs, that they need a new assessment for his wife and have recommended purchase of the following things:

Customized wheelchair - $8000 -$10000

Water chair $3000

CD player $250

TV $280

Hip protectors per annum - $890

Masseur per month - $280

Hairdressing per month - $200

I would like to inform you that [TD] does not require these things as they have already been provided for by either [PD] or the facility. I have advised the Protective Commissioner according. [sic]

18 In a submission dated 27 August 2009, PD made what he referred to as his demands. Relevant to the review, these are as follows:

The Trustee and Guardians must, from now on, stop charging to my wife’s account false insurance premiums to your home. This is robbery. I have already paid the insurance for the house (and have the documents to prove it) and I will continue to do this. It is my home, which I live in and the furniture is mine too. That is why I insure the house and its contents. I also pay for house maintenance – many thousands of dollars up to now! I want to protect what is mine. I have always sent copies of my paid insurance premiums. But the Trustee and Guardians ignore that and pretend to pay insurance for our home and charge it to my wife’s account – a diabolical scam to make money for themselves.

I want from now on the Trustee and Guardians to pay the Council rates all 100% of them – if they want to pay something for the house. Because I will continue to pay the insurance and not the other way around. Or they can send me the money and I will pay the Council rates.

They must stop claiming fictional charges for advance interest to my wife’s s59 account. My wife owes money to no one! And stop fabricating evil scheme to defraud my wife. I have documents to prove this is being done.

The Trustee and Guardians must stop charging for fake (or real, for that matter) evaluation fees for my house. If they want an evaluation I will provide one free of charge.

They must stop fabricating another evil scheme, that they need expensive chairs etc for my wife. I have and will continue to provide everything my loving wife needs. The Nursing Director has also sent you a letter to state that my wife does not need anything from the Trustee or guardians.

You must stop pretending that you need thousands of dollars for my wife’s future funeral. I am her loving husband and I, and only I, will decide what funeral my wife will have and how much money will be spent on the funeral – if and when my wife dies!

From now of you must send me, not my wife, the 6-monthly account. As my wife cannot read, write or speak. And stop asking her if she has anything to declare. You consider yourselves fit to manage my wife’s life and you ask someone who cannot read, write or speak to answer your questions. This brings into question your qualifications to do this intelligently and sensitively.

On my wife’s last bank statement the balance was $8,496.05. I want you to give me $6000 to save for her future funeral expenses. I do not trust you to hold that money.

Finally, I want everyone to know that I have spent over $23 000 for the maintenance of the family home between 2001 and 2008 plus more for 2009. I do not have any more money to spend! Yet the house needs more work on it. So I desperately need more money for the house but my pension is not enough to cover all of my expenses and to support my living costs. So the Tribunal must consider all these things and make the right decision in our best interest.

19 Included in PD’s written documents to the Tribunal is an excerpt from the religious journal The Watchtower, religious papers entitled ‘Can you distinguish both right and wrong?’, ‘A proper view of right and wrong’ and ‘What does God require of us?’ in addition to handwritten notes attaching lessons from the scriptures. In attaching these notes, PD wrote, ‘If you believe in God and fear his commandments, these scriptures will help you, when you make a Judgment.

20 A statement of account for TD for the period 1 January 2009 to 30 June 2009, showed an insurance payment of $636.54 on 2 April 2009. It also gives the total value of TD’S assets as $9133.20.

21 A rate notice from Port Macquarie Hastings Council dated 15 July 2009 shows an amount owing of $1050.50.

22 A Tribunal hearing was held on 25 September 2009. At hearing, PD told the Tribunal that he had lodged a review to the Tribunal because the NSW Trustee ‘don’t do what I want.’ PD initially told the Tribunal that he wanted the Trustee to pay the council rates ‘and nothing else.’ In relation to the expenses for a funeral for his wife should she die, PD told the Tribunal that he wished to decide what funeral for her to have. He is of the view that the NSW Trustee need to lock the money in a trust account.

23 PD was also distressed that his wife was continuing to receive 6 monthly trust account statement even though she is no longer able to read, speak or write. Ms Phang of the NSW Trustee gave an undertaking to instead send a copy of the statements of account to PD.

24 Ms Phang told the Tribunal that the NSW Trustee was happy to pay all the insurance for TD’s property in addition to 50% of Council rates.

25 PD told the Tribunal that there are no water rates payable on the property as they have tank water on the property. PD then told the Tribunal that he was happy to do the repairs and the maintenance. He then told the Tribunal, ‘if they send the insurance receipt, I will be happy.’

26 PD requested $6000 be given to him to put aside for his wife’s funeral, in the event of her death. Ms Phang told PD and the Tribunal that she was unable to do that it would not be not affordable and would be contrary to the charter of the NSW Trustee to manage a client’s estate.

27 It was at this point that it became clear that attempts to settle the matter at hearing would not be successful. The hearing was ended soon after this discussion.

Findings

28 For the reasons that follow, the Tribunal sets aside the internal review decision of the Trustee dated 20 July 2007.

29 PD and TD have been married since 1975. Although the property in question is in TD’s name, it has been the family home for both PD and TD since their marriage. The Tribunal accepts PD’s evidence that prior to TD’s estate being under management by the Trustee, he met the insurance premiums and all outgoings on the family home.

30 At hearing, PD spoke of repairs and maintenance needed to the house and gave evidence that although the home needs more work, his pension is not enough to cover those expenses in addition to his own living costs. As the Trustee has noted, a request for the Trustee to pay for repairs and maintenance to the family home was not the subject of the internal decision which is now the subject of review before this Tribunal. Furthermore, there was no evidence before the Tribunal in relation to the repairs and maintenance required in relation to the family home. An allowance of $1500 per annum for repairs and maintenance to the family home would, according to the figures provided by the Trustee, deplete TD’s estate within 4 to 5 years. On these figures, allowances have been made for the purchase of medical equipment for TD, the necessity of which has been disputed by the Executive Director of Nursing from the Catholic Care of the Aged. More accurate costings would be required before any decision could be made on the affordability of repairs and maintenance to the family home and on how these costs should be met. For these reasons, the Tribunal will not deal with the question of the family home’s potential repair and maintenance requirements.

31 Although PD stated at hearing that he wished to continue to make payments for the insurance premiums for the house, the Trustee stated that it wished to make the payments itself. The Tribunal finds that, in order to manage TD’s estate effectively, and given PD’s evidence as to his financial situation, it would be preferable for the NSW Trustee to continue to pay the insurance premiums for the family home. For these reasons, the Tribunal is of the view that the Trustee should continue to pay the insurance premiums for the family home.

32 From the evidence, the Tribunal has formed the view that PD wishes to make the insurance premiums for the family home so that he can be sure that the insurance is being kept up to date. At hearing, the Trustee undertook to send copies of the insurance certificates and receipts to PD. The Tribunal is of the view that PD’s concerns may well be allayed if he were provided with ongoing confirmation of the payment of insurance premiums for the family home.

33 PD gave evidence that there are no water rates for the family home because only tank water is used. The Tribunal accepts PD’s evidence in this regard and finds that as no water rates are payable for the property, no order should be made in this regard. According to the Trustee’s figures, this would represent a saving of $600 per annum.

34 According to figures provided by the Trustee, council rates for the family home are $1055.65 per annum. If this amount were to be split between PD and the Trustee, they would each pay $527.83 per annum. The Tribunal is of the view that given the strained relationship between PD and the Trustee, any arrangement involving council rates being split between the parties could lead to further conflict and complications. The Tribunal is of the view that the preferable solution would be for the Trustee to pay 100% of Council rates and to forward a copy of the receipt for payment of the rates to PD. Such an arrangement would leave PD with more funds with which to manage small repairs and maintenance to the family home. Should he experience difficulties in managing the costs of such repairs and maintenance to the property, he could then make a new request to the Trustee for consideration to be given to his request in this regard.

35 According to Ms Joy Walsh, Executive Director of Nursing for the Catholic Care of the Aged, a number of medical expenses factored into the budget for TD as prepared by the Trustee are not required to be met by PD and are instead met by the Nursing Home. They are a customised wheelchair at an estimated cost of $8000 -$10000; a water chair at an estimated cost of $3000; a CD player at an estimated cost of $250; a television at an estimated cost of $280, hip protectors at an estimated cost of $890 per annum; a masseur at an estimated cost of $280 per month and hairdressing at an estimated cost of $200 per month. In light of the evidence of these savings to TD’s estate, the Tribunal is satisfied that TD’s estate would be able to afford to pay 100% of Council rates for the family home.

36 The Tribunal agrees with the Trustee that an updated needs assessment report should be prepared for TD. This assessment should give consideration to the letter by Ms Joy Walsh, Executive Director of Nursing for the Catholic Care of the Aged dated 17 August 2009 in relation to those items covered by the nursing home rather than by TD, as set out in the previous needs assessment report. This would give the Trustee a better idea of TD’s current financial situation when considering the question of repairs to or maintenance of the family home.

Orders

37 The decision of the NSW Trustee approving a monthly allowance payment to PD and stipulating the completion of a needs assessment report for TD is set aside. In substitution for that decision, a decision is made that:

-100% of insurance premiums for TD’s property be paid by the NSW Trustee on behalf of TD and that a copy of all receipts and certificates issued following the payment of insurance premiums for TD’s property be sent to PD;

-100% of council rates for TD’s property be paid by the NSW Trustee on behalf of TD and that a copy of all receipts for council rate payments for TD’s property be sent to PD;

-the NSW Trustee request an updated needs assessment report for TD which should take into consideration the letter dated 17 August 2009 by Joy Walsh, Executive Director of Nursing for the Catholic Care of the Aged.