PV v NSW Trustee and Guardian [2011] NSWADT 89

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: PV v NSW Trustee and Guardian [2011] NSWADT 89 Hearing dates: 9 February 2011 Decision date: 04 May 2011 Jurisdiction: General Division Before: J Millar, Judicial Member Decision: Affirmed Catchwords: NSW Trustee & Guardian - Powers as to Property - Proposed Sale of Residence Legislation Cited: NSW Trustee & Guardian Act, 2009 Administrative Decisions Tribunal Act, 1997 Cases Cited: Protective Commissioner v. D & Ors (2004) NSWCA 216 Texts Cited: Nil Category: Principal judgment Parties: PV (applicant) NSW Trustee & Guardian (respondent) Representation: In person (applicant) Ms C Phang (respondent) File Number(s): 103193 Publication restriction: Nil

Judgment

A. INTRODUCTION 1These proceedings were commenced on 17 August 2010 by the Applicant, PV, filing an Application for Review of a decision made by the NSW Trustee and Guardian that a residential property in Sydney owned by PV's mother should be sold. The background circumstances to the making of that decision are as follows. 2PV's mother is approximately 93 of age. She has three sons including PV. PV's siblings took no part in the proceedings. PV.'s mother owns a property in Sydney which was the family home for many years and the home in which she resided before she became resident in nursing home accommodation from 2007. She is presently accommodated at the Garrawarra Aged Care Centre. 3PV's mother was the subject of guardianship and financial management proceedings in the Guardianship Tribunal of New South Wales as a result of which an Order was made on 24 July 2007 appointing the Public Guardian as her guardian and orders were made placing her estate subject to management under the Protected Estate's Act, 1983 and committing management of the estate to the Protective Commissioner. Following the enactment of the NSW Trustee and Guardian Act, 2009 the NSW Trustee and Guardian is now charged with the management of her estate. 4On 6 November 2009 the NSW Trustee and Guardian made a decision to sell the residence. On that date a letter was forwarded to PV informing him of the decision and indicating that the decision had been made because his mother was now residing permanently at the aged care centre and the sale proceeds would ensure that she had sufficient funds in order to meet her needs for care and comfort. It was also noted that she had not visited the property since June 2009 and that her care needs may prevent her from having further stays at the property. As it appeared, in the opinion of the Protective Commission, that she no longer derived benefit from her property, the sale of the property was a decision which would be in her best interests. 5Following the making of that decision, PV and one of his brothers requested review of the decision. The internal review of the decision was undertaken by Elaine Tamblyn, Assistant Director, Client Services Branch, and on 14 December 2009 the Applicant was advised in writing of the decision made by Ms Tamblyn. A Statement of Reasons in detail was provided with notice of the decision undercover of a letter of 14 December 2009. As a result of the internal review, a decision was made to vary the original decision in terms set out in paragraph numbered 5 at the end of the Reasons for Decision. Essentially, the decision was to the effect that upon the basis that PV and both of his brothers agree to the property being leased at full market value, the sale of the property could be reviewed in 12 months' time. Alternatively, all three brothers could agree to accept the risk of their mother's home being uninsured (and presumably indemnify her estate in this regard in the event of loss). It was also proposed that funds of $25,000.00 per annum be deposited to the trust account of their mother to ensure her care needs could be met. If these conditions were not satisfied then the property was to be sold in accordance with the original decision. 6Following the internal review of the original decision, some months passed by in order to allow the decision of the review officer to be considered and arrangements to be put in place if PV and his brothers agreed to the terms set out above. 7On 6 August 2010 the NSW Trustee and Guardian decided that the home should be sold as the proposed arrangements referred to in the review officer's decision had not been the subject of agreement. The letter advising the Applicant of the decision dated 6 August 2010 again gave as reasons for decision the fact that this mother was permanently residing at the age care centre, that the sale proceeds would ensure that PV's mother had sufficient funds for her care and comfort needs and that the sale was in her interests given that she was no longer deriving any financial or emotional benefit from the property.