FTF v NSW Trustee & Guardian [2023] NSWCATAD 120

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FTF v NSW Trustee & Guardian [2023] NSWCATAD 120 Hearing dates: 11 May 2023 Date of orders: 24 May 2023 Decision date: 24 May 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: E Connor, Senior Member Decision: The decision made by the NSW Trustee and Guardian on 1 August 2022 is affirmed Catchwords: ADMINISTRATIVE LAW – review under section 62 NSW Trustee and Guardian Act 2009 – welfare and interests of managed person – financial management order – sale of managed person's property Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Guardianship Act 1987 NSW Trustee and Guardian Act 2009 Category: Principal judgment Parties: FTF (Applicant) NSW Trustee and Guardian (First Respondent) Representation: Applicant (Self-represented) R Stormont, Legal Officer, NSW Trustee and Guardian (Respondent) File Number(s): 2023/00080510 Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, a person must not without the consent of the Tribunal, publish, or broadcast the name of any person who appears as a witness in these proceedings, to whom these proceedings relate, or is mentioned or otherwise involved in the proceedings. 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

Background 1. This is an application filed on 9 March 2023 by FTF with the Administrative and Equal Opportunity and Occupational Division of the New South Wales Civil and Administrative Tribunal ('NCAT') (the 'Tribunal') for administrative review of the decision of the NSW Trustee and Guardian (the 'Trustee') on 1 August 2022 to sell a property owned by her mother, who will be referred to as the 'managed person'. 2. The managed person is a widow in her late eighties of Greek background. She has two adult children, her daughter (FTF, the applicant) and a son, between whom there is a history of significant conflict. The managed person has been a permanent resident of an aged care facility since 30 June 2020. 3. On 7 July 2020 the Guardianship Division of NCAT ('Guardianship Division') made a limited guardianship order for the managed person appointing the Public Guardian as her guardian for 12 months with authority to make decisions about her accommodation; health care; medical and dental consents; and services. 4. On 7 July 2020 the Guardianship Division made a financial management order and committed the management of the managed person's estate to the Trustee pursuant to s25M(1)(b) of the Guardianship Act 1987 (NSW). 5. When making the guardianship and financial management orders on 7 July 2020, the Guardianship Division made a finding that the managed person has dementia and is incapable of making informed decisions about either her lifestyle or financial affairs. 6. FTF lodged an application with the Guardianship Division seeking the review and revocation of the financial management order. That application was heard on 16 July 2021, together with the statutory review of the guardianship order. A further guardianship order was made for three years appointing the Public Guardian to make decisions about the managed person's health care and to consent to medical and dental treatment on her behalf. On 16 July 2021 the Guardianship Division also confirmed the financial management order. 7. FTF asserts she made an out of time request for an internal review of the decision made by the Trustee in a letter dated 11 November 2022. The respondent states they did not receive this letter. 8. On or about 23 February 2023 the managed person's property was advertised for sale by auction on 18 March 2023. As a result of this application the Trustee deferred the sale and marketing of the property was ceased. 9. On 9 March 2023 FTF lodged an application for a stay/interim order and as stated above, an application for administrative review of the decision. The application for administrative review was lodged outside of the time allowed. 10. On 13 March 2023 orders and directions were made by the Tribunal. 11. On 16 March 2023 further directions were made by the Tribunal and leave was granted pursuant to s55(4) of the Administrative Decisions Review Act 1997 (NSW) ('ADR Act') for the applicant to bring the application for administrative review of the respondent's decision made on 1 August 2022, despite no internal review being conducted. The application for a stay/interim order lodged on 6 March 2023 was withdrawn and dismissed. 12. The guardianship and financial management orders were again reviewed on 29 March 2023 by the Guardianship Division. A further guardianship order was made and the financial management order made on 16 July 2021 was confirmed. 13. On 8 May 2023 leave for FTF to appear by phone in these proceedings was refused by the Tribunal. 14. On 10 May 2023 a request for adjournment lodged by FTF was refused by the Tribunal and leave was granted for her to appear by audio-visual link. 15. Due to the sensitive nature of these proceedings, at the start of the hearing an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ('CAT Act'), that the name of the applicant and any person involved in the proceedings must not be published or broadcast without the leave of the Tribunal. 16. For the reasons set out below, the decision of the Trustee to sell the managed person's house is affirmed.