AHB V NSW Trustee and Guardian [2012] NSWADT 76

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AHB V NSW Trustee and Guardian [2012] NSWADT 76 Hearing dates: 15 February 2012 Decision date: 27 April 2012 Jurisdiction: General Division Before: P H Molony, Judicial Member Decision: The decision of the NSW Trustee and Guardian is affirmed. Catchwords: NSW Trustee and Guardian - decision to sell home - best interest Legislation Cited: NSW Trustee and Guardian Act Category: Principal judgment Parties: AHB (Applicant) NSW Trustee and Guardian (Respondent) File Number(s): 113308 Publication restriction: S 126 Administrative Decisions Tribunal Act 1997

REasons for decision

Introduction 1[GENERAL DIVISION (P H Molony, Judicial Member)]. This is a review of a decision made by the NSW Trustee and Guardian to sell the home of a protected person at Gymea Bay. That decision was made on internal review. AHB, the applicant, is the protected person's son. 2The protected person's has been diagnosed with dementia. She has been a resident of the Wollongong Nursing Home since November 2009. She has one son and two daughters. There is a level of conflict among the siblings. 3The Guardianship Tribunal appointed the Public Guardian as the protected person's guardian on 16 July 2010, with the functions of access and accommodation. At the same time the Guardianship Tribunal appointed one of her daughters as her guardian, with healthcare and medical and dental consent functions. The Guardianship Tribunal also converted an application to review an enduring power of attorney appointing the same daughter as the protected person's attorney, to an application for financial management. The Tribunal then made a financial management order and appointed a financial manager, namely the NSW Trustee and Guardian (the financial manager). 4On 20 December 2011, the Guardianship Tribunal reviewed, that guardianship order. It appointed the Public Guardian as the protected person's Guardian for a period of three years with the functions of accommodation, access, healthcare, and medical and dental consents. At the same time, the Tribunal confirmed the appointment of the NSW Trustee and Guardian as financial manager, on a requested review by AHB. 5On 11 September 2011, the financial manager made a decision to sell the protected person's home at Gymea Bay. The decision was based on the view, taken by the Public Guardian, that the protected person should be accommodated in an extra services nursing home. This would require the payment of a bond. Given her assets and income, the financial manager reasoned that the only way in which a bond could be paid and the protected person's future secured, is by the sale of her home. 6AHB requested an internal review of that decision. On 7 October 2011. The decision was affirmed on internal review. 7AHB applied to review the decision on 1 November 2011. 8On 25 January 2012 Public Guardian made a formal decision to place the protected person in an added services facility. It was decided that she should remain living where she is until such time as she can afford an extra services facility. 9In order for the protected person to move to an extra services facility the financial manager says that her home must be sold. AHB is now living there, and was living there, caring for his mother, for approximately 3 years prior to her admission to a nursing facility. He is not paying rent. He is on Newstart allowance. He claims that he is maintaining the property, and has done substantial works, none of which involve cash outlays of any great value. 10AHB's position is that the home should not be sold. He is hopeful that developments in the treatment of dementia will lead to a situation where his mother will be well enough to return home, albeit with support. Even if that is not the case, he would like to see his mother return home. He acknowledges, for that to occur, it would then be necessary to pay for her care. He considered it essential that her home be there for her to return to. 11In the meantime, he agrees that his mother should be accommodated in a higher standard nursing home. He favours Chesalon. In order for her to afford to live there he argued that her home at Gymea Bay should be rented out, and funds borrowed to pay her bond (secured on the house), by way of an accommodation bond loan. He said that $360,000 would have to be borrowed to pay a bond at Chesalon. 12The financial manager's view was that, depending on the nursing home selected; the bond would be in the range of $250,000 to $500,000. 13AHB proposed that he let the house at a rental of $660 per week, to yield an income sufficient to pay his mother's fees at an extra service facility. Such rental would be on a shared rental model, where individual rooms are rented out. He would continue of live at the premises and manage the accommodation. He is unable to rent the home himself, and would have to have boarders or sub-tenants. 14He relied on what he says are his mother's expressed wishes to retain the home. He produced a number of recordings of discussions he has had with her, whereby, he claims, she decided to retain the home. Having listened to those tapes, with the agreement of the financial manager, I am satisfied and that: * AHB did not explain all of the available options, and the full consequences of each, to his mother. * AHB did not provide his mother with figures outlining her financial position. * AHB told his mother it might be possible for her to return home. * The protected person did not demonstrate a full and complete understanding of the options available, nor think them through. * She expressed a desire that her home not be sold, but that was not a reasoned or thought through decision 15I note that Ms Stormont also spoke with the protected person to ascertain her views on 7 February 2012. Her notes of that discussion were tendered. They paint the picture of the protected person being somewhat confused, but not happy with the prospect of paying a lot of interest, if a loan were taken out on her house. 16AHM produced a quick reference guide to accommodation bond loans offered by the Banksia Financial Group. They offer accommodation bond loan between $100,000 and $500,000. If lent for 3 years, the maximum loan to valuation rating is 50%. If lent for 5 years, it is 40%. There are valuation and establishment fees totalling $2,250. According to the quick reference guide, interest is charged at 8.7% pa, is calculated daily and charged monthly. The Banksia Group has a calculator available on its web-site, which enables one to calculate the payout at the end of a loans term. 17The material before the Tribunal indicates one of the protected persons daughter's indicating that she was unwilling to provide a view due to conflict with ABH. The other daughter's views are unknown. 18The financial manager view was that AHB's proposal is not feasible. The protected persons income is limited. The financial manager has difficulty meeting her current expenses. She could not afford to repay any loan at the end of term, other than by selling the house, and would lose a considerable amount in interest paid and potential income foregone. The proposal that AHB let out the house on a shared accommodation basis offers her no surety of income, is reliant on him, and he can offer no method of covering any short fall in rental income. 19As a result the financial manager argued that it was in the protected person's best interest the house at Gymea bay be sold.