AAK v NSWTG and ABH [2011] NSWADT 161

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AAK v NSWTG and ABH [2011] NSWADT 161 Hearing dates: 3 March 2011 Decision date: 01 July 2011 Jurisdiction: General Division Before: J Millar, Judicial Member Decision: Decision affirmed Catchwords: Protected Estates - review of NSWTG's decision not to investigate Power of Attorney, not to pursue recovery of monies Legislation Cited: Administrative Decisions Tribunal Act, 1997 Guardianship Act, 1983 Cases Cited: Commissioner for Children & Young People v. FZ (2011) NSWCA 11 Category: Principal judgment Parties: AAK (Applicant) NSW Trustee & Guardian (First Respondent) ABH (Second Respondent) Representation: AAK (Applicant in person) NSW Trustee & Guardian (Respondent) ABH (Respondent in person) File Number(s): 103316 Publication restriction: S126 of the Administrative Decisions Tribunal Act 1997 applies

REASONS FOR DECISION 1GENERAL DIVISION (J MILLAR (JUDICIAL MEMBER)): AAK is the applicant for review a decision by the NSW Trustee & Guardian (NSWTG) to take no further action in regard to further investigation of a power of attorney given by his mother and recovery proceedings against ABH or AAK. The NSWTG and ABH both oppose AAK's application and seek that the decision under review be affirmed.

HISTORY 2On 29 July 2009 the Guardianship Tribunal made an order that the estate of AAK's and ABH's mother be subject to management under the provisions of the NSW Trustee & Guardian Act, 2009 and that management of her estate be committed to the NSW Trustee. On the same date the Guardianship Tribunal, on the application of ABH that the Tribunal revoke an enduring power of attorney dated 15 January 2008 which appointed AAK as attorney for their mother, reviewed the making and the operation and effect of the power of attorney and determined not to make any order. On the same date, in respect of an application by AAK requesting the Guardianship Tribunal to revoke an enduring power of attorney dated 11 October 2001 by which ABH was appointed attorney for their mother, the Tribunal reviewed the making an operation and effect of the power of attorney and determined not to make any order in respect of it, and instead in all of the circumstances, treated the application for review as an application for a financial management order pursuant to Part 3A of the Guardianship Act, 1987. 3At the time of making those orders the Tribunal found that AAK's and ABH's mother was not capable of managing her financial affairs, that she needed to have a financial manager appointed and that it was in her best interests that such an order be made. Management was committed to the NSW Trustee. An application for appointment of a financial manager made by AAK did not need to be determined in view of the other orders made by the Guardianship Tribunal and accordingly it was dismissed. 4At the time of the hearing before the Guardianship Tribunal AAK's and ABH's mother was aged 86 years and was residing in a nursing home at Pendle Hill where she had been located since 2004. 5It is evident from the reasons for decision of the Guardianship Tribunal concerning the orders made on 24 July 2009 that the Tribunal was provided with a substantial quantity of evidence by AAK concerning his brother's dealings with their mother's finances over recent years following the execution by their mother of the power of attorney dated 11 October 2001 by which ABH was appointed attorney by their mother. 6Following the appointment of the NSW Trustee as financial manager for their mother, AAK provided correspondence to the legal department of the NSW Trustee in which he set out in detail his requirements with regard to having his brother account for his conduct in relation to the dealings in which he had engaged concerning their mother's money. 7On 3 May 2010, Ms C Phang of the NSW Trustee decided to take no further action in regard to further investigation of the power of attorney or recovery proceedings from either AAK or ABH. 8On 15 November 2010 AAK requested an internal review of the decision made by Ms Phang on 3 May 2010. I note from the s.58 documents provided to the Tribunal that document D17 acknowledges receipt of AAK's letter dated 15 November 2010 seeking an internal review of the decision made on 26 October 2010. It appears that this decision is in similar terms to the decision of Ms Phang of 3 May 2010. 27 October 2010 is the date of the letter written by Ian Irwin, Legal Officer of the NSWTG to both AAK and ABH in which Mr Irwin gives an explanation of the decision made not to undertake further action in the matter. Essentially, it appears the decision was made upon the basis of a cost benefit analysis. Mr Irwin noted that there were funds in the estate of approximately $106,000.00 at the time and a DVA pension being received which gave an operating surplus for the coming 12 months of about $10,000.00. The implication of these statements is that AAK's mother was sufficiently provided for. Mr Irwin urged both AAK and ABH to allow the matter to rest in view of the fact that it was unlikely, in his opinion, to serve any real advantage to their mother. 9Upon the internal review of the decision conducted by Ruth Pollard, Acting Assistant Director Legal Services, the decision was made on 2 December 2010 to affirm Ms Phang's original decision that no further action be taken to investigate the power of attorney given in favour of AAK and that no further action be taken in relation to recovery proceedings from either AAK or ABH. 10On 14 December 2010, AAK filed an Application for Review of a Reviewable Decision in the Tribunal. On 8 February 2011 ABH applied to be joined to the proceedings in view of the fact that his interests were potentially affected by the proceedings. On 15 February 2011 the Tribunal ordered that ABH be joined as a party to the proceedings.