Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AGI v Commission for Children and Young People [2012] NSWADT 31 Hearing dates: 14 November 2011 and 12 December 2011 Decision date: 01 March 2012 Jurisdiction: General Division Before: L. Goodchild, Judicial Member Decision: The decision of the NSW Trustee and Guardian dated 4 August 2011 is affirmed. Catchwords: Review of decision of NSW Trustee and Guardian Legislation Cited: Administrative Decision Tribunal Act 1997 Category: Principal judgment Parties: AGI (Applicant) The NSW Trustee & Guardian (Respondent) AGK (2nd respondent) AGL (3rd respondent) Representation: Applicant (In person) Ms Phung (Respondent) File Number(s): 113286 REASONS FOR DECISION INTRODUCTION 1 Mrs AA, an elderly woman in her 96th year, currently resides in a nursing home facility in Bathurst. She moved to this facility in February 2007. Prior to moving to this facility she had been residing in her own home in Bathurst ("the property"). Her son GK was residing with her in her home. GK had been residing with his mother in the property since the early 1990's. Since his mother's move to the nursing home, GK has remained living in the property. 2 Mrs AA has five children by her first marriage. GK, (to whom I have referred above), GR, (a daughter, who lives near Bathurst), AGI (a son, the applicant in these proceedings), MK (a daughter) and RK (a son). AGI, MK and RK live some distance from Bathurst. 3 In February of 2007, Mrs AA had signed an appointment of enduring guardian, appointing GK and GR jointly and severally. 4 By order dated 2 October 2008 the Guardianship Tribunal ordered that the Estate of Mrs AA be subject to management under the provisions of the Protected Estates Act 1983 (now repealed). On that date the Guardianship Tribunal dismissed an application for a guardianship order. 5 By order dated 19 January 2010, after review of the appointment of enduring guardian, the Guardianship Tribunal confirmed the appointment without variation. THE DECISION UNDER REVIEW 6 On the 4 August 2011, the NSW Trustee & Guardian ("the respondent") made a decision approving GK to continue to occupy the property for up to twenty four months under formal lease arrangements and with a rent review in twelve month's time. The rental as determined by the respondent was $110.00 per week. The respondent determined that such rent would effectively meet the property outgoings for council rates, water rates and insurance and was projected to maintain the current positive cash flow for Mrs AA's estate. 7 That decision is contained in correspondence from the respondent to Mrs AA. The correspondence was attached to AGI's application and discloses that at the time of making the decision, the respondent undertook an inspection of the property and reported the following: - (a) "The house is a fibro cottage with a tin roof and appears representative of the houses in that street. (b) The inside of the building retains the furniture, belongings and mementos of the owner, Mrs AA that appeared to have been left in situ since her departure. (c) The interior is a little cluttered but not overly so and in a state consistent with a building of this age, I did not observe any deterioration that could be attributed to the occupant. (d) I observed a series of mowers obviously being repaired or used as spare parts in the backyard of the property, however the remainder of the backyard was in a reasonably tidy and well maintained state". 8 The applicant in these proceedings requested an internal review of that decision. The respondent undertook an internal review and the outcome of the internal review was to affirm the original decision to allow GK to reside in the property. 9 On the 7 October 2011 the applicant filed an application for a review of that decision pursuant to s 55(1) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). On the face of the application for the review the applicant states as the reason for seeking a review of the decision the following: - "The decision was not made according to law with respect to the Power of Attorney under which the Office of Protective Commissioner is constrained". 10 On 14 October 2011, the first return date of the application before this Tribunal, a stay was granted. On that day, GK and GR were joined as parties. The matter was set down for hearing on 14 November 2011. 11 When the matter came before me on 14 November 2011, the applicant sought an adjournment of the proceedings on the basis that the respondent had been late in providing some material to the applicant and that the applicant had an appointment with solicitors on 21 November 2011. The adjournment was granted with orders made allowing the applicant to file further material and providing the respondents and other parties an opportunity to file and serve material in reply. The matter was set down for hearing on 12 December 2011. 12 On 12 December 2011, the applicant appeared in person, Ms Phung appeared for the respondent, GK appeared in person and GR and MK attended by telephone. JURISDICTION 13 This is an application for review of a decision made by the respondent, NSW Trustee and Guardian, approving the applicant's brother, ("GK") to continue to occupy a residential property at Bathurst for up to twenty-four months under a formal lease arrangement with a rent review in twelve months time. Pursuant to ss 16(1)(a) and 16(1)(b) of the NSW Trustee & Guardian Act 2009, the NSW Trustee can exercise functions with respect to the granting of leases of property when acting in a trust capacity or protective capacity. Section 62 of the NSW Trustee and Guardian Act 2009 and regulation 43 of the NSW Trustee and Guardian Regulation 2008 provides that an application may be made to this Tribunal for a review of a decision of the NSW Trustee that is made in connection with the NSW Trustee's functions. 14 In reviewing the NSW Trustee decision the Tribunal 'stands in the shoes' of the Trustee and is required to make the 'correct and preferable decision' having regard to any relevant factual material and any applicable written or unwritten law (the ADT Act, s 63(1)). This includes any material that postdates the decision under review (YG & GG v Minister for Community Services [2002] NSWCA 247 at [25]). The review is to be conducted 'without any presumption as to the correctness of the decision': McDonald v Guardianship & Administration Board [1993] 1 VR 521 at 530. On review, the Tribunal may exercise all of the functions that are vested in the Trustee. 15 The Applicant, AGI, is the son of Mrs AA. As referred to above, by order dated 2 October 2008, the Estate of Mrs AA was subject to management under the provisions of the Protected Estates Act 1983. At the time that the order was made, the Guardianship Tribunal gave detailed reasons for its decision. Those reasons were relied upon by the respondent in its bundle produced pursuant to s 58 of the ADT Act. I will refer to aspects of those reasons in further detail throughout this decision. EVIDENCE The evidence relied upon by the applicant 16 The applicant relied upon a considerable amount of material that will, for ease of reference, be identified as the 'first submissions' and the 'second submissions'. The first submissions, received from the applicant in November 2011, included typed written submissions entitled "Power of Attorney (signed off on 22/9/2006)", dated 4 November 2011, a typed written document responding to the respondent's material including Mrs AA's hospital records and a USB containing video footage of Mrs AA recorded by the applicant in 2011. The second submissions relied upon by the applicant include 19 pages of closely typed material, further hospital records, a USB containing further images taken by the applicant in November 2011 and a document referred to as attachment "B", being a letter from the Guardianship Tribunal to the applicant dated 29 September 2009. 17 The first submissions are confined almost exclusively to matters referable to Mrs AA's appointment of GK and GR as enduring guardians in February 2007. The applicant's submissions assume that the respondent made the decision under review in the exercise of a power of attorney and that the respondent, in exercising powers under a power of attorney, had a duty to take various matters outlined into account, including allegations that GK failed in his duties of attorney, that investigations should have been made regarding payments of rates form Mrs AA accounts, that Mrs AA has made consistent pleas for respite from the nursing home to her own home and that GK had effectively been squatting in the property for a period of 3 years. The applicant in these submissions identifies the various medical assessments undertaken of Mrs AA, and makes the submission that any diagnosis of his mother is unclear. 18 The conclusion made by the applicant in these first submissions is that he, the applicant, should be offered the tenancy agreement in place of GK because, amongst other matters, he would offer higher financial reward, he would offer an opportunity for Mrs AA to use her home as a place of respite, that it would be in Mrs AA's best interests, that he has no criminal record, that GK has been squatting in the home, that he moved from Newcastle to be closer to his mother, that he visits her on an average of 3 times per month, that he contacts her by phone, that he supplies care needs and that he has taken her to appointments. The applicant provides further responses to the material filed by the respondents. I have had regard to that material. 19 In considering the material relied upon by the applicant referred to as the 'second submissions', I have determined that this material is in a similar vein to the material contained in the first submissions. In summary, the applicant complains in the second submissions that his mother was not adequately assessed by medical professionals, that she is a 'compound victim', that the decisions made by the respondent places unwarranted emphasis on Mrs AA's physical problems and that the respondent has conflated and exaggerated Mrs AA's health conditions, that Mrs AA deserves an opportunity to test her aspirations knowing her own strengths and weaknesses, that if there is a conflict, the rental question should be decided on the questions of advantage and disadvantages of either tenancy and Mrs AA's 'best interests'. The evidence relied upon by the respondent 20 The respondent exhibited documents obtained by operation of s 58 of the ADT Act. These documents included the financial management orders made by the Guardianship Tribunal in 2008, the order confirming the appointment of the enduring guardian made by the Guardianship Tribunal in January 2010, various correspondence, the Residential Tenancy Agreement made on 6 April 2010 which provided that Mr CK pay $80.00 per week for the tenancy of his mother's home, and electronic file notes from the offices of the NSW Public Trustee & Guardian. 21 The respondent tendered correspondence from its office evidencing that on 13 October 2011 (prior to the stay hearing on 14 October 2011), the Bathurst real estate agent obtained the signature of GK on the lease agreement with respect to his mother's property for payment of $110.00 per week. The evidence of the other parties 22 GK relied upon a bundle of documents that included a number of photocopies of handwritten notes. One note purportedly made in 2008 and which is purportedly in the hand of Mrs AA states that; "I want Gordon to handle all my affairs. AA in the event I pass away. Mum". 23 There is a further undated note purportedly in the hand of Mrs AA, which states as follows: "I gave Gordon permission to put money into investment banking to pay for rates and upkeep of the house". These notes are of little relevance in these proceedings. 24 GK has responded to a number of the allegations raised by the applicant in his submissions. This response includes GK diary entries from December of 1997. 25 GR, the eldest daughter of Mrs AA relied upon 2 one page handwritten documents attesting to her views with respect to the application. In both documents she stated her view that her mother had expressed 'wishes' on more than one occasion that GK "take care of everything". Mrs GR in both of those documents expressed her sadness at what she sees as an attempt by the applicant to "malign" GK and to accuse GK of doing anything to "harm or impede mum's best interest". In her oral evidence, she stated that "Mum doesn't know about this….Mum loves all her children". She also gave evidence that GR had stated that GK should stay living at Mrs AA's home "to look after everything" and that her mother had expressed that wish to her. She stated that if GK was forced to move, that would impact on his ability to visit his mother every afternoon. 26 Mrs MK, whose request to be joined as a party to the application was granted, relied upon a three page handwritten document received by the tribunal in November 2011, expressing her views regarding the application. Her submissions covered a brief history of the deteriorating relationship between the members of the family, dating back to an incident between the applicant and GK in 2005. It seems that any accord between the children of Mrs AA could not be brokered after this point. MK was critical of GK's care of his mother when she was still residing in the property. She made a number of allegations about GK's behaviour around the time Mrs AA moved into nursing home accommodation. MK spoke highly of the applicant and his love and care and support for his mother. In her oral evidence, she spoke of the applicant being disadvantaged. She considered that her mother was still able to go back to the home and she hoped that this would be possible. She stated that she did not consider that GK and GR were "looking at Mum's views". 27 GK also relied upon another series of handwritten documents received by the tribunal on 28 November 2011, which responded to the material filed by the applicant. GK submitted that it was his mother's wish for him to remain in the house and to look after everything and that he had been his mother's primary carer for 15 years. He further submitted that he takes his mother to appointments as required. 28 GK annexed to his material an updated report from Dr Dutton dated 21 April 2011. This report states that Mrs AA is a very elderly, frail, mildly demented woman who seemed to be quite happy and remains moderately mobile with the help of her walker, has a good appetite, denies any chest pain, undue breathlessness or indeed joint pain. 29 GK submitted that the applicant is using Mrs AA as a pawn to gain tenancy of the property. The Guardianship Tribunal decisions 30 The Guardianship Tribunal's reasons for decision identified Mrs AA as a 92 year old woman, who lives at Bathurst in a nursing home, was twice married and has five children from her first marriage - GK who lives in the home in Bathurst, GR her eldest daughter who lives near Bathurst, the applicant who lives near Bathurst and MK and RK who do not live locally. 31 The Guardianship Tribunal in 2008 found that Mrs AA had a disability restricting her in life activities and that she was partially incapable of managing her person; that she was psychically frail and residing in high care aged accommodation. The Tribunal was told that Mrs AA mobilises with a frame but still needs full help with her self-care. 32 The Tribunal stated in its reasons that in February 2008, Dr Suzanne Davis, Clinical Neuropsychologist, assessed Mrs AA's decision-making capacity and reported that despite some difficulties making an assessment because of Mrs AA's chronic anxiety in a test situation, she considered that Mrs AA's presentation suggested that she had adequate cognitive capacity to make decisions about her personal life. 33 The Tribunal reported that Michelle Wallis, a social worker from the aged care assessment team reported that at the time of Mrs AA going into the nursing home in February 2007, she showed adequate cognitive capacity to make that decision. 34 The Tribunal considered that Mrs AA was content with her current situation, having expressed satisfaction with her current care and accommodation at the nursing home. 35 At the hearing, Mrs AA told the Tribunal that the nursing home was beautiful and that everyone was so kind. The Tribunal asked whether she envisaged ever going home again and she said it depended how her health held up. The tribunal asked whom she trusted most in her life and she said her son, "GK". The Tribunal asked whom she would like the doctor to talk to about her health and she said her son, "GK". She said that he sometimes takes her out for a drive and he has always looked after her. 36 The tribunal was not satisfied that it should interfere with the decision-making and living arrangements that Mrs AA chose for herself and which appeared to be working well for her. The tribunal considered whether or not Mrs AA was incapable of managing her financial affairs. After consideration of the evidence, they determined that her memory impairment, physical dependence and the limited awareness she showed of her finances, meant that she was incapable of managing her financial affairs. 37 It is recorded in the reasons that Mrs AA spoke very positively to the tribunal about her son, GK, as a person she trusted most in her life. She was not able to say who she would like to look after her money. At that hearing, the director of nursing stated that GK was very reliable and quick in meeting any needs that Mrs AA has. The tribunal accepted that there was a positive relationship between GK and his mother and that he was very attentive to her needs. 38 It was apparent at the 2008 hearing that there was considerable conflict between members of the family. This is still the case and this conflict, sadly, pervades these proceedings. 39 In view of the family conflict and the degree of conflict of interest that faces GK, the tribunal determined that a financial management order be made and it appointed the Protective Commissioner for that purpose. 40 The applicant in these proceedings, GK, GR and MK all participated in the hearing in October 2008. Mrs AA herself also gave evidence by telephone, as did the director of nursing at the Bathurst Nursing Home where Mrs AA had been residing. 41 As indicated above, Mrs AA had appointed GK and Mrs GR as enduring guardians on 1 March 2007. On 19 January 2010, after consideration of an application made by the applicant in these proceedings to review that enduring guardianship appointment made by Mrs AA, the Guardianship Tribunal made an order confirming that appointment. 42 The tribunal's decision to confirm Mrs AA's appointment of enduring guardians was made without variation. 43 The applicant in these proceedings, GK and GR attended the hearing and gave evidence to the tribunal. MK was linked by teleconference and the tribunal also spoke by telephone to Mrs AA and also the director of the nursing home at Bathurst. 44 The evidence presented in those proceedings as reported in the Reasons for Decision of the Guardianship Tribunal were that Mrs AA was a 'delightful 93 year old woman with a medical history of CVA, occasional ischemic attacks, hypertension, anxiety and depression, generalised osteoarthritis and deafness'. 45 A Dr Geoff Chu reported that the major issue that Mrs AA had, as evidenced before the Guardianship Tribunal in 2009, was that she was a frail aged lady, confused at times, not always orientated as to time, place or person. She tends to get lost in her nursing home and has to be reminded where her room is and where the dining room is. She walks with a walker and needs help to get out of a chair. She needs assistance with all of her activities with daily living. Dr Chu reported that she was prone to episodes of confusion and he could not see the situation changing in the future. 46 At this review hearing, Mrs AA was unable to have significant discussion about the application. She indicated to Dr Chu that she would choose GK to make the decisions for her. The applicant in the Guardianship Tribunal proceedings gave evidence in the proceedings saying that he thought the guardianship should be transferred to someone else and that Mrs AA did not need a guardian, that the tribunal never received a true picture of GK and that he considered his mother had been wretched out of her home under circumstances that were not in her interests and that Mrs AA does not want her house sold. 47 The evidence of the enduring guardians detailed the care that GK provided to his mother at home, prior to her moving into the nursing home, that he visits his mother every day and that he takes her to medical appointments. 48 The evidence of MK before the Guardianship Tribunal was that her mother loves being in the nursing home and that she is well looked after. It was her view that Mrs AA did not want to leave the four walls of the nursing home, and that her mother had deteriorated and that she could not be her mother's guardian. 49 After consideration of all of the evidence, the Tribunal could not be satisfied that it was in Mrs AA's best interest to revoke the appointment of the enduring guardians and accordingly, the Tribunal confirmed the appointment of the enduring guardians under review. FINDINGS 50 The decision under review was a decision made by the respondent exercising its powers as trustee of the property of Mrs AA in accordance with the terms of the appointment by order of the Guardianship Tribunal on 2 October 2008. It is not a decision made by virtue of a power of attorney. The management of the estate of Mrs AA was, on 2 October 2008, committed to the Protective Commissioner pursuant to the Guardianship Act 1987 ("the former Act"). That Act has now been repealed with effect from 1 July 2009 and replaced by the NSW Trustee and Guardian Act 2009 ("the Trustee Act"). Among other things, the Trustee Act abolished the office of Protective Commissioner and replaced it with the office of NSW Trustee and Guardian, which is referred to in that Act as the 'NSW Trustee'. 51 The savings and transitional provisions of the Trustee Act provide that anything done prior to the commencement of the Trustee Act under a corresponding provision of the former Act is taken to have been done under the new Act. Similarly anything done by the Protective Commissioner is taken to have been done by the NSW Trustee and Guardian (Sch 1, cls 4 and 5 of the Trustee Act). 52 Having regard to the evidence relied upon by the applicant, little of the material contained in the first submissions are directly relevant to the matters required for determination in this review (i.e. standing in the shoes of the decision-maker, what is the correct and preferable decision in respect of the decision to allow GK to remain as a tenant in the property). 53 Further, the matters referred to in those submissions, being the purported allegations regarding payments from accounts and submissions with respect to health issues of Mrs. AA, are of direct relevance in this application to review the decision made by the respondent to lease Mrs. AA's property to GK. The applicant is seeking to raise in these proceedings matters that have properly been determined by the Guardianship Tribunal in the proceedings before it in 2008, when an order was made committing the estate of Mrs. AA to management. 54 Having regard to section 63 of the ADT Act and the general principles set forth in section 4 of the Guardianship Act 1987 I find that the correct and preferable decision in these proceedings is to confirm GK's right to reside in the property. He has been living there for a number of years, while his mother was still in the property and subsequent to her relocation to the nursing home in which she currently resides. The decision the subject of this review did not, on its face, suggest that the applicant was doing anything other than maintaining the property appropriately, and that his mother's possessions, despite her absence from the home, were in situ. The evidence before me discloses that he visits his mother on a daily basis, that he assists his mother to attend various appointments. His mother executed an enduring power of attorney to him and his sister which the Guardianship Tribunal determined in 2010 should not be disturbed. 55 Mrs GR supports her brother staying in the property. There was no evidence before me to suggest that GK was in any way opposed to any respite of Mrs AA to the home, should that be appropriate at any time in the future. On the evidence before me, there appears to be no practical reason why a change of the current arrangements is required. This is especially so since the arrangements now in place appear to have worked well in the past. 56 There also does not appear to be any reason why the current tenancy arrangement should not be maintained. There is no evidence before me that the current arrangement would not continue to meet the property outgoings and maintain a positive cash flow for Mrs AA's Estate. 57 To express this conclusion in the terms proffered by the applicant, there is no evidence of any disadvantage to Mrs AA in maintaining the current arrangement. I make no findings as to the applicant's motive in making this application. The applicant clearly cares for his mother. There is no evidence that he is not able to visit his mother while GK remains living in the property. On the contrary, the evidence was that he currently maintains regular contact with his mother and attends to some of her needs when he is able. ORDERS 58 I make the following order: The decision of the NSW Trustee & Guardian dated 4th August 2011 is affirmed. 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: 01 March 2012