Re G and the Protected Estates Act

[2008] NSWSC 722

CITATION:	Re G and the Protected Estates Act [2008] NSWSC 722
HEARING DATE(S):	14/07/08
JURISDICTION:	Equity Division Protective List
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	14 July 2008
DECISION:	Suspend further operation of the order made by Windeyer J on 6 February 2003 that the parents of the protected person be appointed as managers of the estate of the protected person. Management of the estate of the protected person committed to the Protective Commissioner.
CATCHWORDS:	MENTAL HEALTH [8]- Management of protectetd person's estate- Court requires very strong evidence before concluding that a protected person who has suffered permanent brain damage has made a complete recovery- Interim orders made.
PARTIES:	The names of the parties are suppressed in the Protective List.
FILE NUMBER(S):	SC P74/02
COUNSEL:	G George (for Protected Person/Managers) T Tunbridge (S) (for Protective Commissioner)
SOLICITORS:	DTA Lawyers (for Protected Person/Managers) Office of Protective Commissioner

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST

YOUNG CJ in EQ

Monday 14 July 2008

P74/02 – RE G AND THE PROTECTED ESTATES ACT

JUDGMENT

1 HIS HONOUR: The protected person was severely injured as a result of falling from a moving train. The evidence which was before the court in this matter when managers were appointed showed that he had a severe brain injury, he was unlikely ever to get better, he has lost a significant bulk of his brain, and that he was unable to manage his own affairs. However, the evidence also suggested that the protected person was in denial that his mental faculties were affected and that his parents, who were appointed the managers, were also in denial.

2 One of the medical witnesses, a doctor whose evidence in these sort of matters is well accepted because of his expertise, reported that "the patient thought that he had a good memory". Further, "this seems to be a situation in which the parents have as much denial of disorder as the patient. When this happens the advocate has a major problem conveying to the court a correct picture of the full handicap. The parents may be correct in claiming that their son has done so well."

3 The doctor then pointed to the literature and said, amongst other things:

“Among the severely injured the lack of insight or denial of disability tends to conceal mental symptoms and although denial gradually diminishes in most cases with the passage of time, it remains a significant hazard to assessment for years after the injury. Like victims, close relatives may in the face of abundant evidence to the contrary underestimate the severity of major mental and physical deficits and that denial may persist for protracted periods. They may persist in unrealistic fantasies of complete recovery.”

4 The Protective Commissioner has sought for some time to be assured that the management of the estate is being carried out under his directions, that security is given, that the title deeds to the property where the protected person is living are secured and the investments are safe. It would appear that the investments may well be safe, but there is no evidence at all as to where the title deeds are. Moreover, the parents of the protected person who are the managers are uncontactable on a trip around Australia and no one knows when they are going to be back. The Protective Commissioner seeks to remove the managers and to have himself appointed and to have consequential orders made with respect to the managers filing accounts.

5 Mr G George, who appeared for the protected person, has a counter-motion to have his client declared no longer in need of protection. That is supported by an affidavit from a doctor in the locality where the protected person lives, but that doctor obviously has not seen the evidence that was before the court in 2003.

6 In view of the passages from that report which I have quoted, the court would need to have very strong evidence that there was no longer any need for protection. It is difficult enough to convince a judge in this Division that a person who has received substantial damages because of permanent brain damage has made a complete recovery; it is extremely difficult when one has the state of denial which has been noted by an eminent doctor.

7 Accordingly, in the absence of evidence, I am very concerned that these managers have taken the view that their son is well able to deal with his estate as he sees fit without supervision and that his affairs are under no supervision at all. There are indications that there is no problem, but the potential for problem is great.

8 Accordingly, it seems to me that whilst an opportunity should be given to the protected person to obtain proper medical evidence and for the managers to return to their residence so that they can give the court details as to their management of the estate, in the interim the management should be suspended and the management committed to the Protective Commissioner.

9 I suspend further operation of the order made by Windeyer J on 6 February 2003 that the parents of the protected person be appointed as managers of the estate of the protected person. I suspend that order until further order.

10 I commit the management of the estate of the protected person to the Protective Commissioner.

11 I stand the balance of the notice of motion over to the Protective Judge's list on 15 September 2008. I stand the motion of the protected person over to the same day.

*********************