UE & UD v NSW Trustee and Guardian & Guardian [2011] NSWADT 150

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: UE & UD v NSW Trustee and Guardian & Guardian [2011] NSWADT 150 Hearing dates: 28 March 2011; 14 June 2011 Decision date: 21 June 2011 Jurisdiction: General Division Before: S Leal, Judicial Member Decision: The decision of the NSW Trustee and Guardian & Guardian is varied Catchwords: NSW Trustee and Guardian and Guardian - protected person - Commercial Management Plan Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW) Guardianship Act 1987 (NSW) NSW Trustee and Guardian and Guardian Act 2009 (NSW) Guardianship Regulation 2005 (NSW) Category: Principal judgment Parties: UD (Applicant) UE (Applicant) NSW Trustee and Guardian & Guardian (Respondent) UA (Respondent) Representation: McCooe & McCooe (Applicants) NSW Trustee & Guardian (Respondent) File Number(s): 103278 Publication restriction: Section 126 of the Administrative Decisions Tribunal Act 1997 applies.

REasons for decision

Introduction 1ADP is an 85 year old woman with a diagnosis of dementia who lives at the Windsong facility at Manly Nursing Home. Her husband, with whom she had four children UE, UD, UA and ADQ, died in 1992. 2On 4 February 2010, UE applied to the Guardianship Tribunal for a guardian and financial manager be appointed for ADP under the Guardianship Act; 3UA subsequently made the following applications to the Guardianship Tribunal: * that the appointment of UD as enduring guardian for her mother, ADP, be reviewed; * that the enduring power of attorney made by ADP in favour of UD be reviewed. 4Each of the above applications were dealt with at a hearing before the Guardianship Tribunal on 7 April 2010 and the following orders were made: * The Tribunal appointed the Public Guardian as ADP's guardian for a period of 12 months to make decisions on her behalf about her accommodation, health care, medical and dental treatment and services as set out in the Tribunal's Order; * The Tribunal appointed the NSW Trustee and Guardian as ADP's financial manager; * The Tribunal revoked UD's appointment of an enduring guardian; * The Tribunal determined not to carry out a out a review of the operation and effect of the power of attorney made by ADP in favour of UE and UD on the basis that the effect of the financial management order made by the Tribunal appointing the NSW Trustee and Guardian is to make any Power of Attorney made by ADP inoperative during the term of the financial management order. 5On the basis of reports submitted at hearing which stated that ADP was suffering from dementia, depression, anxiety hypertension, AF and non-insulin dependent diabetes, the Guardianship Tribunal found ADP to be a person with a disability in need of a guardian and that it was in her best interests that a financial management order be made. 6On 1 September 2010, the NSW Trustee and Guardian made a decision to approve a Commercial Management Plan to address ADP's commercial assets, including her interests in the Goldston Family Trust, for whom she and her four children are beneficiaries, and in Sunsit Pty Ltd, for which UD and ADQ are directors and ADP and ADQ are shareholders. Following an internal review, this decision was affirmed on 11 October 2010. 7On 8 October 2010, the applicants, UE and UD, lodged an application with this Tribunal for review of the internal review dated 11 October 2010. 8On 14 December 2010, UA was joined as a party to the proceedings. As UA lives in the United Kingdom, was unrepresented and participated in the subsequent Tribunal hearings by telephone, the Tribunal allowed ADQ, who attended the hearings in person, to act as UA's agent in accordance with s71 of the Administrative Decisions Tribunal Act 1997.