New South Wales Supreme Court CITATION : FA v Protective Commissioner & Ors [2009] NSWSC 415 HEARING DATE(S) : 18 May 2009 JUDGMENT DATE : 18 May 2009 JURISDICTION : Equity Division Protective List JUDGMENT OF : Palmer J EX TEMPORE JUDGMENT DATE : 18 May 2009 DECISION : Appeal allowed; protective order revoked. CATCHWORDS : PROTECTIVE JURISDICTION – FINANCIAL MANAGEMENT ORDER – Whether Plaintiff had sufficient capacity to manage her own financial affairs – question of fact. - Administrative Decisions Tribunal Act 1997 (NSW) – s 120, s 122 LEGISLATION CITED : - Guardianship Act 1987 (NSW) - Protected Estates Act 1983 (NSW) – s 35 CATEGORY : Principal judgment "FA" (Plaintiff) PARTIES : Protective Commissioner (First Defendant) "FB" (Second Defendant) The Guardianship Tribunal of New South Wales (Third Defendant) FILE NUMBER(S) : SC P39/08 COUNSEL : Dr J. Azzi (Plaintiff) Ms R. Leach (Sol) (Second Defendant) Georgiou & Co (Plaintiff) SOLICITORS : Office of Protective Commissioner (First Defendant) McCabe Terrill Lawyers (Second Defendant) I.V. Knight, Crown Solicitor (Third Defendant) P39/08 "FA" v Protective Commissioner & Ors JUDGMENT – Ex tempore 18 May, 2009 1 In this matter the Plaintiff ("FA") appeals from the decision of the Appeal Panel of the Administrative Decisions Tribunal delivered on 18 June 2008. By that decision, the Panel confirmed the decision of the Guardianship Tribunal to make a financial management order in relation to the Plaintiff. 2 By s 122 of the Administrative Decisions Tribunal Act 1997 (NSW), this Court has jurisdiction to review a decision of the Tribunal by way of reconsideration, re-hearing, appeal or grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order. This application raises only a question of fact, i.e. whether FA lacks sufficient mental capacity to manage her own financial affairs. 3 The Defendants are the Protective Commissioner, the son-in-law of FA ("FB") and the Guardianship Tribunal. The Protective Commissioner and the Guardianship Tribunal filed submitting appearances. FB has filed material in opposition to the orders sought. He appears today by his solicitor but I am now informed that he does not wish to say anything in opposition to, or in support of, the Plaintiff's application. 4 In deciding whether or not to grant the application I have, of course, paid attention to the evidence filed on behalf of FB. The reason is that it is the welfare of FA herself which is the primary concern of the Court and for that reason it is necessary to have regard to all information and evidence which might cast light on that question. 5 I have had the very considerable benefit of seeing and hearing FA herself in Court. She has explained her position and the reasons that she takes the course which she has done. 6 Essentially the question which has troubled her family, and has troubled the Guardianship Tribunal and the Appeals Panel, is FA's decision not to sell certain land which she owns in order to provide for her accommodation in a retirement home. FA's reasons for not wishing to sell the land are that it is of intrinsic historical and ecological value and she wishes to be able to share her experience of that land with her family and friends for as long as possible. 7 She says that she is willing to negotiate with the retirement village to see if some solution can be found for the payment for her accommodation and care other than by recourse to sale of the land. She says that she is willing to consider whatever proposals are put in the course of that decision. One which has been suggested in the course of the hearing this morning is for what is called a reverse mortgage, that is, a mortgage which will provide funds now to be utilised during FA's lifetime upon terms that repayment of principal and interest will not be required until after her death. FA instructs her legal representatives that she is willing to consider such a proposition. 8 The test which I have to apply is not whether FA's decision not to sell the land might be seen by others as unreasonable. FB is of the view that FA should use her own assets to provide for her own care. I cannot describe that view as unreasonable. However, FA has a reason – which she has expressed articulately I may say – for following another course. Her attitude cannot be called so unreasonable as to demonstrate a want of proper capacity to manage her affairs. It is a difference of opinion between FA and FB which has led FB, doubtless in what he sees to be in the best interests of FA, to making the application to the Guardianship Tribunal which resulted in the financial management order. 9 However, having read FA's affidavits, having read the reports of the medical practitioners who have seen her and, most importantly, having seen and heard her myself today in Court, I am convinced that there is no impairment of FA's cognitive faculties and that she has a sufficient reason, good in her own view, for taking the attitude as to sale of her assets which she does. 10 It may very well be that FA has to confront sooner rather than later the financial consequences of the attitude which she takes. However, I have no reason to believe that she will be unable to appreciate the consequences of an unsuccessful negotiation for reduction of accommodation fees or that she will not pay attention to such advice as is given to her as to means by which those difficulties can be solved. 11 The authorities have made it clear that the liberty of the subject is not to be interfered with and restricted under guise of the Guardianship Act 1987 (NSW) or the Protected Estates Act 1983 (NSW) unless there is a strong and cogent reason for doing so, directly founded upon the demonstrated mental incapacity of the subject to care, or make appropriate decisions, for himself or herself. There is a fairly high standard of proof. In some cases medical evidence and the condition of the subject makes it perfectly obvious that some protective order has to be made. In cases like the present, the evidence, as well as my own observations, make it quite clear that FA is a person of sound mind, of strong will, of very varied life experience, and she is well able to make decisions for herself. In those circumstances her independence of financial management ought to be restored. 12 I am satisfied that the Appeals Panel did not pay sufficient regard to the actual state of FA's mental capacity and to the medical evidence in support of her claim that she is fully capable of managing her own affairs. It seems to me, with the very best of intentions, both the Appeals Panel and the Guardianship Tribunal have reached the conclusion that it was in FA's best interests, despite her wishes to the contrary, that her assets be realised to provide for her support and maintenance, and that that view has led them to make and to affirm the order which was made by the Guardianship Tribunal. 13 Pursuant to s 120 of the Administrative Decisions Tribunal Act 1997, I set aside the decision of the Appeal Panel dated 18 June 2008. 14 Pursuant to s 35 of the Protected Estates Act 1983, the Court is satisfied that the Plaintiff, being a protected person, is capable of managing her affairs. Accordingly, the Court revokes any declaration made that the Plaintiff is incapable of managing her affairs. 15 I revoke the order of the Guardianship Tribunal made on 31 January 2008 that the estate of the Plaintiff be subject to the management under the provisions of the Protected Estates Act . 16 I order that the Plaintiff's estate be released from the control of the Protective Commissioner. 17 It is a condition of the grant of Legal Aid to the Plaintiff that the Plaintiff seek an order for costs against the Defendants. In matters of this kind, the broader interests of the parties are taken into account in considering what the proper order for costs should be. The normal rule that costs follow the event is tempered in this regard. 18 In this case it is perfectly apparent that FB has acted in what he genuinely considered to be the best interests of the Plaintiff. The fact that the orders have been reversed does not, I think, reflect in any way adversely on FB or on the genuineness of his concern to see that the Plaintiff is properly cared for and maintained. It would not assist the family relationship, nor would it be fair in the circumstances to impose a costs order against FB. 19 Accordingly, there will be no order as to costs, the intent being that each party bear his or her own costs respectively in the proceedings. – oOo – DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.