Administrative Decisions Tribunal New South Wales Medium Neutral Citation: UE and UD v NSW Trustee and Guardian No 2 [2011] NSWADT 200 Hearing dates: 8 August 2011 Decision date: 19 August 2011 Jurisdiction: General Division Before: P H Molony, Judicial member Decision: Set aside the decision under review and instead determine to retain, register and maintain UF's vehicle (at the expenses of UF's estate) subject the following conditions - a) That the vehicle will not be driven until the Trustee advises, in writing, that it has been re-registered and insured. b) That those of UF's children, who wish to drive the vehicle, advise the Trustee, on request, of details necessary to affect insurance. c) That, when the vehicle is not being used, it will be garaged at the UF's family home and not parked in the street in front of the house. c) That, for each trip taken in the vehicle by UF's children, the driver of the vehicle will complete a logbook (to be kept in the glove box of the vehicle) in which will be recorded the name of the driver, starting and finishing odometer readings, a brief statement of the purpose of the trip, and whether UF was in the vehicle. d) That copies of the completed logbook will be sent to the Trustee every six months. e) That UD will arrange for registration inspections of the Corolla and provide the inspection papers to the Trustee (any necessary repairs to be paid for by the estate) f) That the persons who drive the vehicle be responsible for filling it with petrol and oil, at their cost, whenever the vehicles fuel tank shows it is half empty. Catchwords: NSW Trustee and Guardian and Guardian - protected person - sale or retention of motor vehicle Legislation Cited: Administrative Decisions Tribunal Act 1997 NSW Trustee and Guardian Act 2009 Cases Cited: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 UA v NSW Trustee and Guardian, UD, UE and UF [2010] NSWADTAP 62 UE & UD v NSW Trustee and Guardian [2011] NSWADT 150 Category: Principal judgment Parties: UE and UD ( Applicants) NSW Trustee and Guardian (Respondent) UA (Joined Applicant ) Representation: AFA (Applicant, agent) R Stormont, Legal Officer (Respondent) UA (Joined Applicant, in person) File Number(s): 113178 REasons for decision Introduction 1UF is a 85 year old woman who has suffers from dementia. She is a permanent resident of a dementia specific, aged care facility. As a result of a relatively recent pelvic injury, UF's ability to walk any distance is severely compromised. While she can walk short distances, she requires assistance when traversing any distance, and is taken on trips in a wheel chair. 2UF has four children - * UE, a daughter who lives in Queensland; * UA, a daughter who lives in England; * UD, a son, who lives in Sydney in the family home owned by his mother, a few kilometres from the aged care facility; and * ADQ, a daughter who lives in Sydney. 3On 7 April 2010 the Guardianship Tribunal heard a number of applications concerning UF. Following that hearing the Guardianship Tribunal made orders - * Appointing the Public Guardian as UF's guardian for 12 months with the functions of accommodation, health care. medical and dental consents and services; * Appointing the NSW Trustee and Guardian (the Trustee) as her financial manager; * Revoking UF's appointment of UD as her enduring guardian under an appointment of enduring guardian dated 2 December 2009; and * Dismissing an application that it review enduring powers of attorney made by UF; the Tribunal noted that the enduring powers of attorney were suspended while the financial management order is on foot. 4UA subsequently appealed that decision to an Appeal Panel of this Tribunal, but was unsuccessful in doing so: UA v NSW Trustee and Guardian, UD, UE and UF [2010] NSWADTAP 62. 5UF's estate is a sizeable one. Her net assets have a total value of around $6.3 million, comprised of real property, shares, cash, term deposits, personal loans and her accommodation bond. These yield her a substantial yearly income. As already noted, her son continues to reside in her home. 6In May 2001, the Trustee sought the views of UF's children as to whether or not her 2004 Toyota Corolla motor car (the Corolla) should be sold. At that time, it had recently been discovered that the Corolla was unregistered. In response - * ADQ had suggested that its value be ascertained and that '[t]hose who would like to purchase place a bid by silent auction within a know price range.' * UA wrote - [UD] has a car of his own, in fact there are two cars of his in the garage, one is registered. He does use Mum's car to take her to appointments at times. I am not sure if this warrants keeping the car for that purpose, as he could use taxi's and not have the cost or trouble of maintaining the car. * UE said that the Corolla should be registered and retained. She observed that UD uses the car to take UF to appointments, and while he does have a car of his own it is 'unsuitable' and often off the road. She uses the car to visit her mother and take her on outings when she visits her. She considered that given UD's role as his mother's carer, the NSW Trustee and Guardian should consider paying general running cost. * UD made similar submission to those made by UE. 7On 6 June 2011 the Trustee made a decision to sell the Corolla unregistered. 8On 10 June 2011 UE and UD requested an internal review of that decision. 9On 28 June 2011 the decision was affirmed on internal review. The internal review explained - 2. Internal Review The internal reviewer has considered the information, views and reasons relied upon in making the original decision and have considered the recent views of and her children. [UE] and [UD], in their written request for internal review dated 10 June 2011, expressed that they opposed to the sale of the vehicle and believed that the vehicle should be retained for the following reason: The vehicle is used solely for the benefit of [UF]. That the decision was made on the request of two family members who do not need or use the vehicle. That [UD]'s vehicle is often in a state of repair and not always available. That [UF] prefers to be in her own vehicle. [UE] should not have the added expense of leasing a vehicle after paying for airfares to visit [UF]. [UF] does not want the vehicle sold. That the retention of the vehicle would not be a financial impost on [UF]. That the vehicle should not be sold unregistered. 3. The Internal Reviewer's Assessment of Material Facts and Reasoning There is no financial reason for the vehicle to be sold as [UF] has sufficient funds available to ensure that the retention or sale of the vehicle would not impact on the level of comfort and care provided to [UF]. An attempt was made by officers of NSWTG to obtain [UF]'s views on the sale of the vehicle; however, it was found that she was not capable of making an informed decision over its future. The decision to sell the vehicle was prompted by [UF] living in a Nursing Home and, as a consequence, having no obvious use for the vehicle. It is noted however, that the vehicle has been used, assumable in the past 12 months to convey [UF] to doctors, when needed, and on occasional outings. It was also noted that various members of the family used the vehicle for their own personal use. The use of the vehicle for private use is not a concern; however, the fact that the vehicle is being park on the street and has been driven in the last 12 months while unregistered is of concern as such actions could have a financial impact on [UF] if the vehicle was stolen, or was involved in an accident. The concern expressed by members of the family of the added expenses that would be incurred if the vehicle was sold due to them living interstate is reasonable; however, what is of greater concern is the family driving the vehicle unregistered with possible indifference as [UD] would have received the renewal papers for the vehicles registration in March 2010, which is prior to this office becoming involved with [UF], and failed to have the said registration renewed. The use of the vehicle by the family while unregistered and uninsured does suggest a level of indifference to [UF] 's vehicle and, as such, has the potential to negatively impact on [UF]'s financial well being; that is that [UF]could be placed in a position where she is sued by a 3' d party due to accident or injury. Section 39(a) of the NSW Trustee and Guardianship Act states that 'the welfare and interests of , such persons ([UF]) should be given paramount consideration", therefore, the internal reviewer considers that [UF]'s future welfare and interest would be best served by the sale of the motor vehicle. 10On 4 July 2011 UE and UD applied to the Tribunal for a review of the decision. Section 62 of the NSW Trustee and Guardian Act 2009 provides that an application may be made to this Tribunal for a review of a decision of the NSW Trustee and Guardian that is made in connection with the NSW Trustee and Guardian's functions. Such an application may be brought by 'any...person whose interests are, in the opinion of the ADT, adversely affected by the decision.' 11On 15 July 2011 the Tribunal stayed the decision to sell the Corolla pending a final determination of the Appeal. 12The hearing of the review took place on 9 August 2011. UE and UD were represented by UE's husband, AFA, as agent. Ms Stormont represented the Trustee. UA joined as a party 13At the commencement of the hearing UA rang into the hearing from England seeking to be joined as a party to the review. UA explained that she was anxious that the Tribunal have before it all information necessary to enable a decision to be made, and was keen to assist in making sure that all relevant information was considered. UA explained that she had been previously been a joined party and advocated for what she considered to be her mother's best interest in an appeal to the Tribunal by UE and UF against a decision made by the Trustee to approve a Commercial Management Plan relating to the management of UF's assets: see UE & UD v NSW Trustee and Guardian [2011] NSWADT 150. 14Section 67 of the Administrative Decisions Tribunal Act 1997 relevantly provides - (2) The parties to proceedings before the Tribunal for a review of a reviewable decision are: (a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision, and (b) the administrator who made the decision, and (c) if the Attorney General intervenes in the proceedings under section 69-the Attorney General, and (d) any other person who has been made a party to the proceedings by the Tribunal in accordance with subsection (4), and (e) any person specified by or under any enactment as a party to the proceedings. ... (4) The Tribunal may, by order, make a person who is not a party to proceedings (other than proceedings on an internal appeal) a party to the proceedings if the Tribunal considers that the person ought to have been joined as a party or is a person whose joinder is necessary to the determination of all matters in dispute in the proceedings. 15AFA opposed UA being joined as a party on the basis of the lateness of the application and because he believed it would complicate the proceedings. The Trustee, expressed no view, considering it a matter for the Tribunal. 16Given that the decision related to her mothers assets, and was being appealed by her brother and sister, I formed the view that it was necessary for UA to be joined as a party. 17A practical difficulty, which then presented itself, was that UA had not been provided with copies of the documents before the hearing. She indicated that she was content for the hearing to proceed in any case. I did not consider it a matter where she was likely to be disadvantaged as a result of not having all the documents, as she appeared to be attuned to all the relevant issues. The Hearing 18There was agreement about a number of issues. These were - * The Corolla had not been driven since April this year when it was found to be unregistered. * It had been driven, despite being unregistered since April 2010, as a result of a mistaken belief by those who drove it that it was registered. * The vehicle is presently parked in the street outside the family home. 19During the hearing I heard sworn evidence for UE and UF. 20UE told me that she resides in Queensland. She flies down from Queensland to visit with her mother for one week in eight. In the past, when she came down, it was her habit to use her mother's car for some personal use, and whenever she visited her mother at the aged care facility, or took her from there on outings. When visiting her mother it is her habit to take her out of the nursing home on outings every second day. She takes her to familiar places for lunch, coffee and walks, and to visit friends. On Sundays, when she is in Sydney, she takes UF to mass at the church she has attended for many years. UE said mother obviously enjoys these outing and she believes they are good for her. 21Since the Corolla has been unavailable her flexibility to organise outings, and her ability to spontaneously take her mother on outings, has been seriously curtailed. Without access to the Corolla she does not have a car in Sydney. This means that any travel done with her mother has to be by public transport. As her mother needs a wheelchair when they go out, their use of public transport is limited to wheelchair accessible buses. These only run to and from the aged care facility on a limited basis, and to limited areas. This severely constrains the options open to UE when taking her mother out: in terms of the times when they can travel, and possible destinations. It effectively makes visits to see her mother's friends from her tennis and bowls groups impossible, and has put an end to spontaneous outings. 22UE said that she had only become aware that the Corolla was unregistered in April of this year. She has not driven it since. She had driven it before then in the belief that it was registered, but that the registration was due to expire in April 2011. She said that this was why she had written to the Trustee asking that this year's registration be attended to, so that she could continue to take her mother out. Her letter had led to the discovery that it was unregistered. 23UE said that she had not made inquiries about the availability of transport provided by the aged care facility. She commented that it is more convenient and flexible to have a car. She said that she could not afford to hire a car for the weeks she is in Sydney: paying her regular airfares is already a significant impost. 24UD told me that he lives at his mother's home. He tries to visit his mother everyday, usually in the afternoons, as he assists in getting her to take her medications. Most days he tries to get her out of the aged care facility for a while, and takes her for coffee or a short outing. On average he said that he takes her out of the aged care facility three to four times a week. 25UD said he has two cars of his own: one an unregistered Holden that he uses for spare part, and the other a registered Holden that he maintains himself. Both are garaged at the house owned by his mother, which has a double garage. 26UD said that until April of this year, when it was discovered that the vehicle was unregistered, he had used his mother's car on approximately 75 per cent of his visits to her. He had paid for petrol and maintenance. Not having access to her car to visit her has been inconvenient. He has had to use his own car instead. This has meant that he has had to rearrange his plans for working on it. He added that at times his car is difficult to start. He said that his mother had not asked what had happened to the Corolla when he used his car. UD considered getting out of the aged care facility regularly a benefit to his mother. 27I asked UD why his cars were stored in the garage, while his mother's Corolla was left out in the street. He did not have an explanation, and appeared surprised by the question. 28With respect to the fact that the car was not registered from April 2010 to April 2011 UD said that he aware the registration papers had come in for the Corolla. He had arranged a pink slip inspection, which it had passed, and which had been electronically transmitted by the mechanic to the RTA. As his mother has a DVA Gold Card, and is therefore exempt from paying registration fees, he thought that everything necessary had been done. He added that this has all occurred about the same time as the Trustee had been appointed his mother's financial manager. In answer to questions from me as to why the registration had not gone through UD thought the problem was with third party insurance. 29I note however, on reviewing the s 58 documents, that there is a general file note dated 16 May 2011 documenting a conversation between an officer of the Trustee an officer of the NRMA, whereby the NRMA advised - ... the client has paid for the CTP last year and it was paid via a visa card April last year. However the registration papers were not given to the RTA and the car has been unregistered since April last year. 30In the course of the hearing it was apparent that the evidence given by UE and UD as to the number and frequency of outings that they take UF on, was significantly different to that which the Trustee had been advised of by staff at the aged care facility. The Trustee had been told that UD takes + on 'occasional outings'. I noted that both UE and UD said that each time they took their mother form the aged care facility they recorded this in a sign in/sign out book, maintained by the facility. 31Given the discrepancy as to the number and frequency of visits I asked the parties whether they wished me to require production of the sign in/sign out book in order to resolve the conflict. I indicated that without the book, I would accept the sworn evidence given by UE and UD, over the note of inquiries made of staff at the facility. No one asked that I call for the book. Relevant Legislation 32Chapter 4 of the NSW Trustee and Guardian Act 2009 is concerned with the Trustee's 'management functions relating to persons incapable of managing their affairs.' By s 55(a) the Trustee may exercise all the functions necessary and incidental to management and care of the estate of a managed person. This includes all the functions of the managed person: s 56. Managed person is defined in s 38 as including a ' protected person". This, in turn is defined as - protected person means a person in respect of whom an order is in force under Part 4.2 or 4.3 or the Guardianship Act 1987 that the whole or any part of the person's estate be subject to management under this Act. 33There is in force an order to the Guardianship Tribunal committing management of UF's estate to the Trustee. In managing UF's estate the Trustee may exercise any of the powers vested in it by s16. Relevantly, these include - (g) buy, sell, realise and mortgage (with or without a power of sale) real and personal property 34S 39 provides - It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation. 35These mirror the principles of guardianship found in s 4(a) to (g) of the Guardianship Act 1987 . Consideration 36The decision under review is the Trustee's decision to sell the Corolla in an unregistered state. The Tribunal's function under s 63 of the Administrative Decisions Tribunal Act 1997 is to review that decision on the merits and to itself, standing in the shoes of the Trustee, make the correct and preferable decision on the basis of the evidence now before it: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. 37The Trustee submitted that it is not in UF's best interest that the Corolla be retained. The Trustee pointed to a number of matters which were said to inform that view and pointed to the benefits of sale outweighing the risks of retaining the Corolla. These were - * That the vehicle is now unregistered. * That to register the vehicle would require a pink slip and a green slip to be obtained, and CTP and comprehensive insurance paid. * That according to the aged care facility staff UF is taken on occasional outings only. * That UF does not miss her car. * It is likely she will become less mobile in the future and less likely to go on outings. * There are risks associated with retaining the vehicle in UF's name: these include the costs associated with registration and maintenance, the lack of control over the vehicle, and potential litigation in case of accident. 38UE and UD argued that it was manifestly in UF's best interest to retain the vehicle so that she could enjoy the benefit of regular outing and visits to her friends. 39As can be seen from the internal review there is no financial reason why the Corolla should not be retained. UF has ample funds to pay for its retention and maintenance. She will not be financially disadvantaged should it be retained. Similarly, the Trustee has no concerns with occasional private use of the vehicle by the family. 40It is clear that two matters that influence the Trustee's decision to sell the Corolla were the fact that it was parked in the street outside UF's home, rather than garaged, and that it had been driven when unregistered. 41With respect to the latter I am satisfied that when UE and UD drove the vehicle that they did so in the honest and reasonable belief that the vehicle was registered from April 2010 to April 2011. The facts that a pink slip had been obtained, the CTP paid, and that they did not drive the Corolla after they became aware it was not registered, all reinforce this. I am not clear precisely why the registration was not completed, but am inclined to the view that the confusion surrounding the handing over of UF's affairs to the Trustee at that time might explain it. I am surprised that the normal inquiries one would expect the Trustee to make on assuming management of an estate did not turn up the problem. 42I accept that the Trustee's concern about the vehicle not being properly garaged is a legitimate concern, especially when there is a double garage at UF's family home. In my opinion, this difficulty could have been easily overcome by the Trustee determining that the Corolla is to be garaged at the family home. 43I have already indicated that I accept that UD takes his mother on frequent outings from the aged care facility, and that when the Corolla was in use he used it, for those trips, approximately 75% of the time. I also accept that UE visits for one week in every eight. On each visit she used the vehicle to take her mother on three to four outings. 44Since the Corolla has been unavailable UD has used his own vehicle to transport his mother, at some minor inconvenience to him. UE however has had her outing with her mother drastically curtailed, in terms of where they can go, when they go, and who they can visit. This is as a result of being tied to the use of wheelchair accessible buses. I accept that the difficulties inherent in transporting UF in a wheel chair by bus, significantly outweigh the problems associated with doing so by car. 45I accept that having the Corolla available for use by members of the family visiting UF has enhanced her ability, while living in the aged care facility, to maintain contacts with places and people in the community form which she came, and the enjoy and foster her relationships with her children. While there is no direct evidence regarding UF's views relating to retention of her car, the evidence points to her deriving substantial enjoyment from her outings. Certainly, from UD's evidence, she does not appear to be aware it is no longer being used to transport her. 46As there is no financial imperative for her vehicle to be sold, and as she can well afford to keep it, I think that retaining and registering the Corolla for use by her children when visiting her - while she still has the capacity to go on and enjoy outings - is in her best interest. As a result, I intend to set aside the decision made by the Trustee. 47I will instead determine to retain, register and maintain the vehicle (at the expenses of UF's estate) subject the following conditions - a) That the vehicle will not be driven until the Trustee advises, in writing, that it has been re-registered and insured. b) That those of UF's children, who wish to drive the vehicle, advise the Trustee, on request, of details necessary to affect insurance. c) That, when the vehicle is not being used, it will be garaged at the UF's family home and not parked in the street in front of the house. c) That, for each trip taken in the vehicle by UF's children, the driver of the vehicle will complete a logbook (to be kept in the glove box of the vehicle) in which will be recorded the name of the driver, starting and finishing odometer readings, a brief statement of the purpose of the trip, and whether UF was in the vehicle. d) That copies of the completed logbook will be sent to the Trustee every six months. e) That UD will arrange for registration inspections of the Corolla and provide the inspection papers to the Trustee (any necessary repairs to be paid for by the estate) f) That the persons who drive the vehicle be responsible for filling it with petrol and oil, at their cost, whenever the vehicle's fuel tank shows it is half empty. 48The conditions are self-explanatory, I wish to make it clear that that retaining the car requires the co-operation of those of UF's children who wish to use it. 49This decision, while in my view the correct and preferable decision now, is contingent on UF health and her continued capacity to go on and enjoy outings. Given her diagnosis, this is bound to change. When the change occurs I would expect the Trustee to revisit the issue. 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. Decision last updated: 19 August 2011