NU v Office of Protective Commissioner [2008] NSWADT 201

CITATION: NU v Office of Protective Commissioner [2008] NSWADT 201

DIVISION: General Division

APPLICANT NU PARTIES: RESPONDENT Office of the Protective Commissioner

FILE NUMBER: 073382

HEARING DATES: 22 April 2008

SUBMISSIONS CLOSED: 6 May 2008

DATE OF DECISION: 22 July 2008

BEFORE: Britton A - Deputy President

MATTER FOR DECISION: Review of decision of Protective Commissioner not to increase weekly allowance

Protected Estates Act 1983 LEGISLATION CITED : Protected Estates Regulation 2003 Guardianship Act 1987 Administrative Decisions Tribunal Act 1997

CASES CITED: YG & GG v Minister for Community Services [2002] NSWCA 247 McDonald v Guardianship Administration Board [1993] 1 VR 521

In Person REPRESENTATION: T Tunbridge, solicitor

i. That NU's weekly allowance be increased to $150 per week; ORDERS: ii. That at least half of that allowance, or a greater amount if agreed to by NU, be paid into a bank account nominated by NU and considered appropriate for that purpose by the Protective Commissioner; iii. That in the event of any material change in NU's circumstances which would includes a significant increase in NU's accommodation or medical expenses, the Protective Commissioner may decrease the weekly allowance on four weeks notice, after consultation with NU.

REASONS FOR DECISION 1 The appellant who, to protect her privacy, will be referred to in these reasons by the pseudonym, 'NU', seeks a review of a decision made by the Protective Commissioner in October 2007. In that decision the Commissioner decided not to permit NU to manage her finances on a trial period or to increase her fortnightly allowance of $150. 2 NU is in her late fifties and for the past ten years has resided in a nursing home in Sydney's inner west. In a decision dated 21 May 2007 (at p 3) the Guardianship Tribunal recorded that NU suffers from 'epilepsy and from organic brain syndrome, cerebral atrophy, and a personality disorder'. Background to financial management orders 3 NU has been the subject of guardianship and financial management orders since the mid nineties. Her estate has been under the management of the Protective Commissioner pursuant to the Protected Estates Act 1983 throughout that period. 4 In November 2006, the Guardianship Tribunal reviewed an application made by NU to revoke the financial management order made in respect of her. Noting that NU's health had significantly improved and that she was able to give a 'complete account of her financial circumstances' the Tribunal adjourned the proceedings for six months and suggested that NU obtain a neuropsychological assessment of her cognitive abilities, 'especially in relation to financial management'. 5 When the proceedings reconvened in May 2007 NU provided the Tribunal with a report of a neuropsychological assessment together with a report from her treating neurologist. The Tribunal's reasons for decision contained the following extracts from those reports: From a practical point of view, [NU's] current presentation and test results suggest that she is easily overwhelmed by information and her behaviour can be impulsive, disorganised and rigid. She also has reduced insight into her cognitive difficulties and limited understanding of the practical implications for everyday life. From a neuropsychological perspective these factors can all impact on her ability to make sensible decisions regarding her financial affairs. [NU] would currently benefit from ongoing support in complex financial decision-making. (Report prepared by Ms Ali, clinical neuropsychologist, undated, based on an assessment carried out in March 2007.) [I]t would seem that if one could arrange some assistance for [NU], in other words if she could be involved but not wholly in charge of her financial affairs, then the situation might be more settled to her current situation… (Report prepared by treating neurologist, Dr Sharpe, 27 April 2007) 6 The Tribunal noted that since the original decision made in 1995 to subject NU's estate to management, NU has made 'enormous strides'…and '[i]s now able to mobilise with the use of a walking frame and manages most of her activities of daily living'. The Tribunal observed that '[w]ith her increase in function [NU] has felt a corresponding desire to take control of her life and make decisions for herself'. The Tribunal noted that NU's epilepsy was now well managed through medication but that she '[a]cknowledged that a further period of consolidation and support is necessary before she can contemplate leaving the nursing home'. 7 The Tribunal went on to outline NU's wish and plans to move to a retirement village where 24 nursing support and care was available. 8 The Tribunal decided not to revoke the financial management order but to recommend to the Commissioner that '[NU] be trialled managing her income and expenditure for a period of 12 months, so that her capacity to deal with the issues that will arise can be objectively gauged'. Overview of NU's financial position 9 It is useful to set out an overview of NU's financial position. This summary is largely based on a report prepared by Nicholas Kearn, a financial officer employed by the Commissioner, contained in the documents provided to the Tribunal under s 58 of the Administrative Decisions Tribunal Act 1997 ('Tribunal Act'). 10 NU holds assets of just over $260,000. She receives an annual income of about $23,000. Her total annual non-discretionary expenditure is $14,500 of which the major component is accommodation fees of $11,500 levied by the nursing home where she resides. The balance comprises of management fees paid to the Commissioner of just under $3000 and medical expenses of about $1000. 11 Mr Kearn cautioned against any depletion of the funds given NU's relatively long life expectancy — about 30 years. To achieve that end he recommended that NU's annual expenditure should not exceed income. In his opinion, an allowance of up to $170 per week could be paid without depleting NU's funds but recommended that because of the 'potential for error in …projections', a maximum weekly allowance of $150 be paid. Under that arrangement, Mr Kearn stated, NU would need to cover all outgoings other than accommodation and medical expenses. Subject decision 12 In or about July 2007, NU requested the Commissioner to increase her fortnightly allowance of $150 and to pay it directly to her and not through the nursing home. It is unclear from the documents whether that request was made in writing. Apparently at or around that time NU also requested that the Commissioner implement the Guardianship Tribunal's recommendation, namely that she be permitted to manage her income and expenditure on a trial basis. 13 In a decision dated 11 October 2007, a delegate of the Commissioner, Ms Angela Kazonis, decided not to vary the allowance or to implement the recommendation made by the Guardianship Tribunal ('the subject decision'). Ms Kazonis gave these reasons for that decision: Although the Office is cognisant of [NU's] wish for financial independence it could not be demonstrated that it would be in her best interests for the current arrangement to be changed. There was no professional support to suggest that [NU] could manage her income and expenditure appropriately and, in fact, that her medical condition could impact upon her ability to the extent that her accommodation may be placed in jeopardy. [NU's] request to receive her comfort funds direct was deemed to be impractical on the basis that our client cannot access a bank account independently and the nursing home are unable, for practical reasons, to undertake to transport [NU] to the bank on a regular basis. [NU] currently receives $150 per fortnight paid in cash by the nursing home and kept by [NU] in a locker. These funds have been sufficient to provide for everyday needs purchased on [NU's] behalf by nursing home staff and have even allowed [NU] to accumulate funds for the purchase of a computer. There were concerns that the supply of additional cash funds may result in a risk of substantial amounts of money stored in less than ideal security conditions. However if [NU] requires additional goods or services for any purpose, requests can be made to the Office to access funds from her trust account. 14 By letter dated 21 November 2007, NU was advised of her right to seek review of that decision. An internal review has not been conducted or, as I understand, requested. In a directions hearing held on 18 March 2008, before O'Connor DCJ, by consent it was ordered that NU's application to the ADT should proceed to determination notwithstanding that the subject decision had not been the subject of internal review (s 55(2) of the Tribunal Act). Management of allowance 15 It is common ground that there is no evidence to indicate that NU has mismanaged her fortnightly allowance. 16 NU claimed that she has saved a large proportion of her allowance and produced a bank passbook to verify that claim. The passbook showed regular deposits over an extended period. NU claimed that she was prudent in her expenditure and had used the allowance for necessary items such as clothes, taxis etc. In support of her claim that she was more than capable of managing her finances she pointed to her recent purchase of a computer, which she had researched and organised. NU claimed that the computer would further enhance her ability to manage her finances. NU's wishes 17 At the commencement of these proceedings NU claimed that she wanted the fortnightly allowance paid directly to a bank account. She later stated that she was happy with the current arrangement whereby she received her allowance in cash from the Nursing Home. NU stated that she considered the allowance of $150 per fortnight to be adequate to meet her needs. 18 NU stated that ultimately she wanted to sever her ties with the Commissioner and was capable of managing her finances. She pointed to a number of examples of alleged mismanagement and claimed that the management fees charged were excessive. She stated that if Centrelink paid her pension directly into her bank account she would organise for the nursing home fees to be directly debited from that account. Does the ADT have jurisdiction to review the subject decision? 19 The ADT's jurisdiction to review a decision of the Protective Commissioner is conferred by 38(1) of the Tribunal Act and s 28A(1) of the Protected Estates Act. Under the latter an application may be made to the Tribunal for review of a decision by the Protective Commissioner that is 'made in connection with the exercise of the Commissioner's functions' under Division 3 of Part 3 of that Act, providing that decision is declared by the regulations to fall within the class of decisions that may be reviewed. Clause 9 of the Protected Estates Regulation 2003 provides that all decisions made by the Protective Commissioner 'in connection with the exercise of the Protective Commissioner's functions under Division 3 of Part 3 of the Act' may be reviewed under s 28A. 20 NU's application raises the issue of whether the ADT has power to review all parts of the subject decision, in particular, the decision not to implement the recommendation made by the Guardianship Tribunal, a decision made under s 23A of the Protected Estates Act. Under that provision, 'the person managing the protected person's estate may, by instrument in writing, authorise the protected person to deal with so much of the estate as the manager considers appropriate and specifies in the instrument': s 23A(2) ('the authorisation'). Where the person managing the protected person's estate is not the Protective Commissioner, an authorisation must not be given or withdrawn without the approval of the Commissioner: s 23A(5). That decision is reviewable by the ADT: s 23A(6). However the ADT is not empowered under s 23A to review a decision made by the Commissioner to authorise or refuse to authorise, a protected person to deal with the whole or part of their estate, where as in this case the Commissioner manages the estate. 21 As noted, s 28A(1)(a) gives the Tribunal power to review decisions made under Division 3 of Part 3 of that Act. Section 23A is not contained in that Division but in Division 2 of Part 3 of the Act. 22 It follows that the decision not to implement the Guardianship Tribunal's recommendation is not reviewable by the ADT. 23 It is not in issue that the decision not to increase NU's weekly allowance is reviewable, being a decision made under ss 28(1) and 28(1AA) of the Protected Estates Act. Findings and Conclusions 24 In reviewing the decision not to increase NU's allowance the Tribunal 'stands in the shoes' of the Commissioner and is required to make the 'correct and preferable decision' having regard to any relevant factual material and any applicable written or unwritten law (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 (SupCtVic, Appeal Div). When undertaking this task the Tribunal may exercise all of the functions that are vested in the Commissioner. 25 The Protected Estates Act gives no express guidance on the principles to be observed by the Commissioner, when exercising its function under Division 3 of Part 3 of that Act. Given the protective nature of the jurisdiction, in the exercise of its functions, the Commissioner, and on review the ADT, must treat the interests of the protected person whose estate has been committed to management, as paramount. 26 The following extract taken from Fact Sheet Number 3 published by the Commissioner, sets out the principles said to guide the Commissioner's staff when making 'substitute decisions'. They are the protected person's: 1. wishes 2. immediate and long term needs 3. financial resources 4. requests, plans and objectives from their family, close friends or guardian 5. previous, current and desired lifestyle 6. family commitments or obligations 7. previous arrangements 8. rights and views of probable beneficiaries after their death Outlined below are the general principles of the Guardianship Act: 1. The welfare and interests of people with impaired decision-making ability should be given paramount consideration 2. Their freedom of decision and freedom of action should be restricted as little as possible 3. They should be encouraged, as far as possible, to live a normal life in the community 4. Their views should be taken into consideration 5. The importance of preserving family relationships and cultural and linguistic environments should be recognised 6. They should be encouraged, as far as possible, to be self reliant in matters relating to their personal, domestic and financial affairs 7. They should be protected from neglect, abuse and exploitation 8. The community should be encouraged to apply and promote these principles. 27 While not determinative, the starting point in any examination of NU's best interests is her wishes. It is apparent that NU's real complaint is not the quantum of her current allowance but her lack of autonomy over the management of her estate. She sees greater financial independence as an important first step in the realisation of her long held wish to leave the nursing home and buy into a suitable retirement village. 28 A reading of the subject decision indicates that the Commissioner's delegate while respectful of NU's wish to attain financial autonomy believes that no cogent evidence has been provided to support her claim that she is capable of undertaking that role. Underlying the decision is the concern that NU's ability to continue to reside in the nursing home might be jeopardised if she were to take over the management of her estate. 29 Another factor taken into account by the Commissioner's delegate was the need for any increase in NU's allowance. NU's case manager advised that she believed the allowance was adequate to cover NU 'comforts' – an assessment not disputed by NU. A further factor was the attendant risk if the cash allowance were to be increased given the lack of suitable facilities available to NU at the nursing home to safely store the cash and her inability to visit the bank on a regular basis. 30 While not open to the ADT to review the decision of the Commissioner with which NU is especially aggrieved, namely the decision not to allow her to manage her finances, the Tribunal must nonetheless have regard to NU's wish to achieve greater financial independence in the context of the decision the ADT is empowered to review, namely the decision not to increase the fortnightly allowance. 31 An increase in the weekly allowance would provide NU with increased control and further autonomy over her financial affairs. It would also give her the opportunity to demonstrate her claim, albeit on a limited basis, that she is now able to manage her money. It is to be noted that while the weight of medical evidence does not support a finding that NU can make complex financial decisions without support, her treating neurologist is nonetheless cautiously optimistic that she could manage her finances providing total control was not ceded to NU. NU's track record of careful management of her allowance over a not insignificant period provides weight to her claim that she is now better placed to manage her financial affairs. 32 Any increase to NU's allowance however could only be entertained if the objectives of estate preservation and fund security can be realised. As the advice provided by Mr Kearn reveals, in the current circumstances the doubling of the allowance would not deplete the estate, indeed it would provide a buffer against modest increases in accommodation and medical expenses. 33 In respect to the security issues it would seem that these could be addressed by arranging for any increase in the allowance to be paid directly into a bank account nominated by NU. I note that the Commissioner's delegate was concerned that NU might not be able to access funds paid to an account given her restrictions in movement. While apparent that NU is restricted to an extent, her evidence supported by the entries in her bank passbook, indicate that she has been able to arrange to visit the back on a reasonably regular basis. I note also that she attended these proceedings unaccompanied. 34 In my view the Commissioner's delegate erred by giving undue weight to the need for any increase in the allowance. While a relevant consideration it needs to be balanced against NU's clearly expressed wish to take on a greater role in the management of her financial affairs and the desirability of restricting as little as possible, her freedom to make decisions. If that can be achieved without jeopardising her estate or putting her allowance at risk it seems to me that it is in her best interest that this be allowed to occur. 35 For these reasons in my view the correct and preferable decision is that the allowance paid to NU should be doubled. Under this arrangement NU would be responsible for all expenditure other than her accommodation costs and medical expenses up to $1000. For the time being I propose that the current arrangements whereby NU receives a cash allowance of $150 per fortnight should continue undisturbed and the increase in the allowance deposited into NU's account. It may be that under these revised arrangements NU might want to consider decreasing the amount of cash paid to her on a weekly basis. 36 The orders made give the Commissioner the flexibility to decrease the allowance in the event of any unforeseen increase in medical or accommodation costs. 37 Pursuant to s 63(1)(c) of the Tribunal Act I revoke the subject decision and make the following decision: i. That NU's weekly allowance be increased to $150 per week; ii.That at least half of that allowance, or a greater amount if agreed to by NU, be paid into a bank account nominated by NU and considered appropriate for that purpose by the Protective Commissioner; iii.That in the event of any material change in NU's circumstances which would includes a significant increase in NU's accommodation or medical expenses, the Protective Commissioner may decrease the weekly allowance on four weeks notice, after consultation with NU.