Pu v Protective Commissioner

[2005] NSWADT 84

CITATION:	PU v Protective Commissioner [2005] NSWADT 84
DIVISION:	General Division
PARTIES:	APPLICANT PU RESPONDENT Protective Commissioner
FILE NUMBER:	053083
HEARING DATES:	29/03/2005
SUBMISSIONS CLOSED:	04/08/2005
DATE OF DECISION:	04/13/2005
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Protected Estates Act - Protective Commissioner - powers as to property - Protective Commissioner - powers as to property
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Protected Estates Act 1983
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT T Tunbridge, solicitor
ORDERS:	The Commissioner’s decision to sell PU’s sister’s property is affirmed

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1 PU is a woman who is concerned about her sister’s financial and personal welfare. PU’s sister is a woman in her late eighties who is a resident of an aged care facility. In 2002 the Guardianship Tribunal appointed the Protective Commissioner to manage her financial affairs. In December 2004 the Protective Commissioner decided to sell the sister’s home because there was a shortfall of approximately $8,000 a year between her expenditure and her income. PU applied to the Tribunal for a review of that decision saying that her sister belongs to herself and her family. While she says she is prepared to support her sister financially, PU is adamant that she is not going to give any money to the Protective Commissioner or anyone else. On 10 March 2005, the Tribunal refused an application to stay the Commissioner’s decision and the property was put up for auction on 12 March 2005. It was not sold at auction but negotiations are underway for a private sale.

Jurisdiction and standing

2 The decision to sell the property is a decision under s 24(2)(f) of the Protected Estates Act 1983 (the Act). The Tribunal has jurisdiction to review the decision under s 28A of the Act. PU wishes to live with and look after her sister in her sister’s home and the Protective Commissioner’s decision would prevent her from doing so. Therefore I am satisfied that PU has standing to apply for the decision to be reviewed as she is a person whose interests are adversely affected by the Protective Commissioner’s decision to sell her sister’s property.

Issues

3 The issue for the Tribunal is whether the Protective Commissioner’s decision to sell the property is the “correct and preferable” decision in all the circumstances. In order to determine that issue I need to take into account matters including:

- the likelihood that she will be able to return to her home to live;

- her financial circumstances; and

- any alternative financial arrangements that are available.

Likelihood of the sister returning home

4 PU wants her sister to return to her own home where PU would be happy to move in to look after her. The Protective Commissioner said that it would not be possible for the sister to live at home since she needs greater care than PU could provide. The evidence was that the sister needs full assistance in daily living activities including showering, dressing and supervision at meal times. The Protective Commissioner was of the view that she would continue to require supported accommodation. We find, on the basis of all the evidence, that it is highly unlikely that PU’s sister will ever be in a position to move back into her home.

The sister’s financial situation

5 The sister’s expenditure currently exceeds her income by around $8,000 per year. On 3 June 2004, the Protective Commissioner provided her with an advance of $5,000 to enable an outstanding debt to be paid and to create funds to meet her accommodation and living costs. She also has a debt for legal fees of about $18,000 and owes Centrelink approximately $1,200. The property in question has a value of approximately $375,000 but has been vacant for over two years. Because her house has been vacant for more than 2 years, her pension will be reduced from approximately $13,103 per annum to $2,964 per annum. The Protective Commissioner has calculated that if the sister’s home is retained and rented there will still be a shortfall of approximately $1,500 per annum between her expenses and her income. By comparison, if the property is sold and the proceeds invested then the sister can expect a surplus income of $7,214 per annum.

6 PU appears to be unaware of the details of her sister’s financial circumstances. She is under the impression that her sister’s pension is sufficient to cover her expenses and that any shortfall is money that the Protective Commissioner has incurred unnecessarily. In particular PU does not appear to understand that because her sister’s home has been vacant for more than two years, her sister’s pension will be drastically reduced.

7 PU submitted that she has sufficient financial resources to care for her sister without the need for her house to be sold. The Protective Commissioner pointed out that PU is not currently using her financial resources to support her sister. PU proposes that any sale of the home be put off until such time as she can no longer support her sister. She points to the substantial increase in the value of real estate in the last four years. She also suggested renting out part of the property as a one bedroom flat to generate income.

Conclusion

8 Based on all the evidence I am satisfied that the interests of PU’s sister will be best met by selling her property. There is no real prospect of the sister returning to her home and her financial needs cannot be met if the property is rented out. Unfortunately, while PU has her sister’s best interests at heart, she is unable to understand that unless she uses her own money to make up the shortfall in her sister’s expenses, the Protective Commissioner has no option but to sell the property.

Order

The Commissioner’s decision to sell PU’s sister’s property is affirmed.