SY v Protective Commissioner [2006] NSWADT 17

CITATION: SY v Protective Commissioner [2006] NSWADT 17

DIVISION: General Division

APPLICANT PARTIES: SY RESPONDENT Protective Commissioner

FILE NUMBER: 053340

HEARING DATES: 2/12/05, 16/01/06

SUBMISSIONS CLOSED: 01/16/2006

DATE OF DECISION: 01/18/2006

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Protected Estates Act - Protective Commissioner - powers as to property - Protective Commissioner - powers as to property

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Protected Estates Act 1983

CASES CITED: TY v Protective Commissioner [2005] NSWADT 292

APPLICANT In person REPRESENTATION: RESPONDENT C Phang, solicitor

ORDERS: The Protective Commissioner's decision to sell the property of SY's grandmother is affirmed.

REASONS FOR DECISION 1 SY is the grandson of a 91 year old woman who is living in a nursing home. SY and his two siblings were brought up by their grandmother after their mother died. SY currently lives in his grandmother's house rent free. For the last six years he has been the full time carer for his partner who was suffering from depression. His partner has now left him and SY is not employed at the moment. The Protective Commissioner is the financial manager of the grandmother's property following a decision of the Guardianship Tribunal on 23 June 2004. The Protective Commissioner has decided to sell SY's grandmother's house because her income from the age pension and potential rent on the property is not sufficient to cover her nursing home and other expenses. SY opposes the sale of the house saying that he can arrange for someone to rent the house for $250 per week and he will pay $100 per week to rent a flat at the back of the property. According to the Protective Commissioner if the property is rented out at $350 a week there would be a shortfall of over $10,000 per annum between SY's grandmother's income and her expenditure. 2 SY has applied to the Tribunal for a review of the Protective Commissioner's decision. The Tribunal's role is to determine whether the Commissioner has made the "correct and preferable" decision: s 63 of the Administrative Decisions Tribunal Act 1997. In TY v Protective Commissioner [2005] NSWADT 292 I looked at the basis on which the Tribunal should make its decision. In this case the decision as to whether or not the property should be sold comes down the question of whether it is financially viable for her to keep the house. SY's interests are not directly relevant because he is no longer a dependent of his grandmother. Proposal 3 SY put a proposal to the Protective Commissioner that the house should not be sold. He said that he had a prospective tenant who was willing to pay $250 per week to rent the house. That amount accords with an estimate from local real estate agents, Starr Partners (Merrylands) that a fair market rental for the house would be $250 to $260 per week. He said he was prepared to pay $100 a week to rent the flat at the back of the house. He also said that there was another flat at the back of the house but part of it was infested with termites. He said a friend was going to help him fix that flat so that it could be rented out. The Protective Commissioner queried whether either of these flats had been approved for residential accommodation. I have no evidence either way on that point, but I am satisfied that the property could return a rent of $350 a week at the moment. Income 4 Apart from rent, the only other potential income for SY's grandmother is the age pension. Two years after she moved out of her home into a nursing home, her age pension was cancelled because of the value of her property. Following representations from the Protective Commissioner, Centrelink resumed paying SY's grandmother a part pension of $162.58 a fortnight based on hardship grounds. That amount was based on Centrelink's valuation of the property of $452,849.00. If she receives rental income of $350 per week her entitlement to the pension will cease. Similarly, if the property is sold, it is likely that she would lose her entitlement to the age pension. Her only other asset is an amount of $453.00 which is in the Protective Commissioner's trust account. Expenditure 5 The Protective Commissioner has estimated that if the house is not sold, SY's grandmother will have to pay the following amounts on a fortnightly basis: Nursing home fees (daily care fees) $499.66 Nursing home fees (income tested fee) $ 72.00 Hair care $ 60.00 On going council rates $ 43.33 Water rates $ 48.00 Insurance $ 12.67 Real Estate Agent fee $ 49.00 OPC fees $190.68 Chemist $ 22.00 Income tax $ 26.00 Land tax $ 82.31 TOTAL $ 1105.65 6 On the basis of a rental income of $700 per fortnight and an expenditure of $1105.65 per fortnight, SY's grandmother would incur a deficit of $405.65 per fortnight or over $10,500 in a year. SY said that some of these expenses are not necessary. He said his brother is a hairdresser and is willing to do his grandmother's hair for nothing. He also said that he knows a real estate agent who would not charge him anything for managing the rental of the property. He also says that although he is currently unemployed, he is willing to pay the water and council rates when he gets a job. In relation to the Protective Commissioner's fees, SY says that he is going to apply to the Guardianship Tribunal for a review of its order appointing the Protective Commissioner as the financial manager of his grandmother's estate. If that application is successful, then no fees will be payable to the Protective Commissioner. Debts 7 Because the Protective Commissioner has no funds to pay the nursing home fees, there is currently a debt to the nursing home for $2,437.04. There is also a debt of $22,323.20 for council rates and charges. SY says that he has arranged for a friend to lend him $5,000 to make a contribution to this amount. The Council has said that they are not willing to accept payment by instalments. Findings 8 If the costs of council rates, hairdressing and real estate agent's fees are excluded, there is still a shortfall of $205.32 per fortnight between projected income from rent and expenditure. That calculation does not take into account any amounts for the purchase of clothing or other personal expenses. In making this calculation I cannot exclude the Protective Commissioner's fees because they are fees which he is entitled to charge. SY's grandmother owes a substantial amount of money to the Council for unpaid rates and her debt to the nursing home is growing daily. Despite the fact that SY has organised a tenant to pay $250 rent and he is willing to pay $100 rental on the flat, that is simply not enough to cover his grandmother's ongoing expenses. SY is not in a financial position to pay his grandmother's debts or to provide her with any funds to meet her other expenses. Although SY had a close relationship with his grandmother and would like to remain living in the house in which he was raised, the financial reality is that there is no other option but for the house to be sold. Order The Protective Commissioner's decision to sell the property of SY's grandmother is affirmed.