AHX v NSW Trustee and Guardian and anor [2012] NSWADT 35

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AHX v NSW Trustee and Guardian and anor [2012] NSWADT 35 Hearing dates: 27 February 2012 Decision date: 05 March 2012 Jurisdiction: General Division Before: P. H. Molony Decision: The decision of the NSW Trustee and Guardian is affirmed. Catchwords: Guardianship Act - review of decision of the Public Guardian - accommodation - welfare and best interest Legislation Cited: Guardianship Act 1987 Administrative Decisions Tribunal Act 1997 Category: Principal judgment Parties: Applicant - AHX Respondent - NSW Trustee and Guardian Second respondent - AIV Representation: Applicant AHX - in person Respondent - R Stormont Second respondent (AIV) - in person File Number(s): 113353

REasons for decision

Introduction 1AIW is a 77-year-old widowed woman, with two sons, AHX and AIV. AIW has been diagnosed with moderately severe frontal lobe dementia, which is a deteriorating condition. She is presently a permanent resident of an extra services nursing home, where she has lived since October 2010. She now requires the assistance of a wheel chair to mobilise. 2On 15 June 2011 the Guardianship Tribunal made a series of orders with respect to AIW. Those orders: Appointed the Public Guardian as her guardian for 12 months with an accommodation function. The reasons for decision of the Tribunal indicate that the Tribunal also intended to appoint the Public Guardian as a guardian for VY with a health care and services function, although this is not formally recorded in the order. * Dismissed an oral application by AHX to review an enduring power of attorney made by AIW appointing the Perpetual Trustee Company Limited (Perpetual) as her attorney. The Tribunal instead elected to treat that application as one for financial management orders. * Appointed Perpetual as AIW's financial manager. 3On 21 October 2011 the Public Guardian made a decision to trial AIW living at her own home for two months conditioned upon: * Modification to the home, as determined in an Occupational Therapist's report dated 6 September 2011, being completed prior to the trial. * Attendant care being provided by an approved agency for a minimum of 40 hours per week. * Attendant care from the same agency being provided for at least one week in four for respite for AIV. * Assessment by physiotherapist and weekly input. * Minimum weekly RN/GP visit. * An assessment being undertaken towards the end of the two month period to see whether AIW should continue living at home or return to her nursing home. 4The trial would involve AIW living in her own home with her son AIV, his wife and his young son. AIV would provide care and supervision for his mother in the many hours when professional attendant care services will not be provided. A funding proposal for the trial drawn up by Perpetual envisaged AIV and his family living rent free in AIW's home (as they have for some time) while caring for AIW, and AIV being paid a fee of $1,200 a week while caring for his mother. 5On 14 December 2011 AHX filed an application with the Tribunal to review that decision. At a directions hearing held on 19 December 2011 the Tribunal extended time so that application for review was in time and made a series of procedural directions. At the directions hearing held on 10 February 2012 AIV was joined as a respondent to the proceedings. 6The application for review came before me for hearing on 27 February 2012.