AFV v NSW Trustee and Guardian [2012] NSWADT 115

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AFV v NSW Trustee and Guardian [2012] NSWADT 115 Hearing dates: 7 December 2011, 27 February 2012 Decision date: 14 June 2012 Jurisdiction: General Division Before: L Goodchild, Judicial Member Decision: Affirm the decision made by the NSW Trustee and Guardian to proceed with the sale of the property. Catchwords: Review of decision under NSW Trustee and Guardianship Act 2009 Legislation Cited: NSW Trustee & Guardian Act 2009 Cases Cited: YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: AFV (Applicant) NSW Trustee and Guardian (Respondent) Representation: Legal Aid, (Applicant) NSW Trustee and Guardian, (Respondent) PC, (Respondent in person) File Number(s): 113273

REASONS FOR DECISION 1General Division (L Goodchild, Judicial Member): The General Division of the Tribunal presently has before it an Application filed 28 September 2011, for review of a decision made by NSW Trustee and Guardian on 18 June 2010, which was affirmed on 23 September 2010, following an internal review by John Neely, Assistant Director, Client Services, Central, NSW Trustee and Guardian. 2The issue of the subject of the decisions of the NSW Trustee and Guardian relate to a decision to approve the sale of property known as "15 Driftwood Court, Coffs Harbour" ("the property"), owned solely by the applicant. JURSIDICTION 3This is an application for review of a decision made by the respondent, NSW Trustee and Guardian, approving the sale of the property owned solely by the applicant. Pursuant to s 16(1)(g) of the NSW Trustee and Guardian Act 2009, the NSW Trustee can exercise functions with respect to realising real and personal property. 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. 4In 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. HISTORY 5The applicant, at the time of hearing, was sixty eight (68) years of age and she resided at an aged care centre at Glenn Innes. She has three sons and two daughters. PC who was residing in the applicant's home at Coffs Harbour, MC, LC, MB and NB. PC was a party to the proceedings. 6On 9 September 2009, the Guardianship Tribunal made a Guardianship Order for a period of one (1) year, appointing the Public Guardian and appointing LC as the financial manager. 7On 19 November 2010, upon a review of the financial management order, the appointment of LC as financial manager was revoked and the NSW Trustee was appointed. 8On 23 September 2011, the Guardianship Tribunal reviewed the previous guardianship order and renewed it for a period of three (3) years. The Public Guardian was appointed as guardian with authority to make decisions for the applicant about her accommodation (authorise others), healthcare, medical and dental treatment, and her access to services. 9Having regard to the Reasons for Decision of the Guardianship Tribunal of 23 September 2011, it is apparent that when previous orders had been made by the Guardianship Tribunal with respect to guardianship and financial management of the applicant, the tribunal found that the applicant had a disability being a mental illness, diagnosed as "Bipolar Mood Disorder" and was unable to make important life decisions. At the time of the end of term review of the guardianship order in September of 2011, the tribunal was satisfied that the applicant at that stage continues to have a disability which prevents her from making important life decisions and the tribunal was satisfied that a further guardianship order be made. 10These proceedings were set for hearing on 7 December 2011. On that day an adjournment was granted to 27 February 2012 to allow the applicant and her family to be given an opportunity to investigate options regarding subdividing the property or obtaining finance as alternatives to the property being sold and to put to the NSW Trustee and Guardian a firm proposal with regard to the payment of the applicants debt which as at December 2011 was $46,000. EVIDENCE 11At the time of hearing in February 2012, the tribunal was advised that the debt to the nursing home was $37,315.00. The mortgage debt was $12,523.00 and the debt to the mechanic was $469.00, making the total debts in excess of $50,300.00. 12The applicant had moved from the property in Coffs Harbour to the aged care facility and it seems to be that the applicant is unlikely to move back to her home. 13The applicant's son, PC, currently resides in the property and has been paying rent of $150.00 per week. PC does not want the property sold, but by his evidence, he clearly appreciates the situation in which his mother finds herself. He is very strongly of the view that a sale of chattels and exhausting other options should be considered before resorting to the sale of the property. 14The material relied upon by the NSW Trustee and Guardian suggests that the sale of the Coffs Harbour property is the most viable financial option for the applicant, both in an immediate sense and long-term sense. The property, other than the weekly rental payments, is of no financial benefit to the applicant and cash needs to be generated for the payment of liabilities of some $50,000.00 and more significantly for funds to meet the ongoing accommodation expenses, ongoing personal needs and other financial requirements for the applicant in the future. 15At the time of hearing, the applicant's income on a fortnightly basis was approximately $1,000.00 from the aged pension and rent. The evidence discloses that the expenditure on a fortnightly basis, including the fees for the aged care centre, cigarettes, chemist, council rates, water rates, property insurance, mortgage and management fees for the NSW Trustee and Guardian, is in excess of $1,300.00 per fortnight. 16The applicant has liabilities in excess of some $50,000.00, which cannot be discharged from any cash reserves that she currently has. 17The NSW Trustee and Guardian determine that the primary goal is to discharge the accumulated debt in arrears, to provide sufficient investment income to meet the applicant's high accommodation costs, and to provide sufficient liquidity for any personal and medical expenses that may arise. The Public Guardian is of the view that in the circumstances of this case the only way that these goals can be met is through the sale of the subject property. 18It is noted that the fortnightly cost of the aged care facility plus cigarettes effectively utilises all of the applicant's pension and the rental income from PC. There is very little else to meet property outgoings, mortgage repayments and other living expenses and there is no capacity to meet the debt of Fitzroy Motors or any council rate arrears. 19Ms Phang, the representative for the NSW Trustee and Guardian informed the tribunal that she was aware that an option was available for the applicant to move to a nursing home in Bellingen. This nursing home would be closer to PC and PC stated in his evidence that it was a lovely facility. Ms Phang indicated that if the property was sold, it would certainly allow more liquidity to assist with and manage the difficulties in the behaviour of the applicant. 20When the proceedings were first set for hearing in December 2011, MC had prepared a document referred to as a Financial Recovery Plan. This document and other documents prepared by MC were accepted into evidence when the matter was heard in February 2012. By this Financial Recovery Plan, MC expressed the view that the sale of the applicant's house was not warranted on the basis that the NSW Trustee and Guardian should absorb some of his mother's current liabilities. MC expressed this view because he considers that the NSW Trustee and Guardian had not prudently managed some of his mother's affairs and as such should absorb some of her debt. I did not have regard to these allegations against the NSW Trustee and Guardian. This is not the appropriate forum for such allegations to be ventilated. The issue for determination is whether or not the NSW Trustee and Guardian can sell the applicant's property in the circumstances. 21MC acknowledged that his mother has a history of mental health issues and was in a current state of denial. He stated that his mother had a deep and emotional attachment to the house as it was designed by her with plans drawn up by her late father and contains a number of unique features and details, not usually found in a modern building, and that it is not just a house for his mother, but it was her home. 22MC, whilst noting that the aged care facility where his mother currently resides is a fine facility, was concerned that his mother, who was not aged but had mental health issues, was not residing in an appropriate housing option for her and he considered that the sale of the house and its resulting grief may do irreversible harm to her mental and physical health. 23MC noted that his brother, PC, had lived in the home for many years. MC considered the sale of the house and the proceeds would preclude the funds being obtained in the future by the applicant's eldest daughter to provide appropriate accommodation for his mother. 24MC was of the view that there was a hope in rehabilitating his mother and he urged the NSW Trustee and Guardian not to proceed with the sale. MC considered it was premature, lacked merit, had severe consequential implications which are not reversible, and is morally wrong. 25In a document dated 23 February 2012, MC provided further material, where he again made allegations that his mother's problems were being exacerbated by the NSW Trustee and Guardian by allowing debts to run up and by not accepting responsibility for this. He reiterated that the real issue was his mother's health and that the current place where she was residing was not a place for a person with a mental health issue and he stated that it is an indication of the poor way that the State looks after its people with mental health issues. MC confirmed that his mother was in denial about her health and her history and he repeated his opinion that her house should not be disposed of. 26With respect to his mother's Mazda MX5, MC was of the view that the vehicle should be sold and he offered to arrange the transaction to occur. He considered that efforts should be made for the Banana Coast Credit Union mortgage debt to be written off on compassionate grounds. It is not entirely clear from the documents the basis of which such writing off may be founded. Further, he considered that additional funds may be made available through the timely and controlled disposal of some of the chattels within his mother's home and he alerted the Public Trustee to the fact that his brother, PC, would be prepared to assist in the sale of these chattels for maximum gain. 27With respect to the Financial Recovery Plan as proposed by MC, the debts at the time of its draft in December of 2011 were noted as $30,000.00 for accommodation. MC considered three scenarios for the financial recovery of his mother's estate. One of those scenarios included the NSW Trustee and Guardian paying out the debts of the nursing home. There is no disclosed basis for this. The other two scenarios included the obtaining of a loan for the payment of the outstanding accommodation debt. Both assumed a sale of assets, achieving around $8,000.00. Scenario 1 provided for a loan to be obtained on rental payments from PC remaining in the home and a pension supplement, including some outgoings of $624.00 per week. The applicant was by this scenario left in a net position. Scenario 2 provided for the obtaining of a loan of $30,000.00 and a sale of assets allowing his mother's estate to have a net income of $60 per week. 28When the matter went to hearing on 27 February 2012, the Applicant provided submissions by way of a document entitled as 'Submissions by Fiona McMullen, Solicitor for the Applicant' and a document from MC dated 23 February 2012 and signed by him. I have had regard to this material. 29PC made an application in October of 2011 to be a party to the proceedings, and he was joined by this application to the proceedings. I have had regard to the written material upon which he relies. PC has been living with his mother since January 2010 and prior to this had been living intermittently with her for many years of his adult life. He understood that his mother was having an extremely difficult time emotionally due to the thought of her house being sold and that his family was endeavouring to implement positive solutions to assist his mother. 30PC was available at the hearing by telephone and he indicated that despite the proceedings being adjourned he was not able to do anything about furthering the option of subdivision as he was on a pension and simply could not afford it. He stated that he was seeking permission from the NSW Trustee and Guardian to sell the goods from the house and he noted that his mother had a number of antiques and other items that he thought were of value. He expressed concern that the NSW Public Trustee and Guardian would simply obtain appraisals from unqualified persons with respect to selling the chattels and he indicated he would like to assist to ensure that the antiques are sold to their value. 31PC indicated that when he had spoken to his mother, she was adamant that she did not want anything sold and she was equally adamant that she did not want her house sold. PC clearly stated that his position with respect to the application was that he opposed the house being sold, but he considered that antiques and jewellery should be sold and that should be a first option that is exhausted initially. PC, when referred to the value of $5,000.00 for the chattels provided by MC in his financial recovery plan, considered that it was grossly undervaluing the items. 32It was conceded that it is unlikely that the applicant would return to any accommodation other than supported care and PC indicated that he wanted to try for her to come back home, but he couldn't afford the care required for her to be cared for in the home. 33At the hearing in February 2012, Ms McMullen, solicitor for the applicant, sought a further adjournment of six (6) months for the purposes of her client investigating other options, other than the sale of the home. I declined the applicant's request for a further adjournment. The proceedings had been on foot for some time and needed to be resolved. The applicant did not present with any tangible proposal as to what could be achieved by the adjournment. 34Ms McMullen informed the Tribunal that she had recently spoken to the director of the aged care facility where the applicant resided and that director indicated there had been no change in the condition of the applicant, that she was difficult to manage, and that the proposal was to move her to an aged care facility in Bellingen. 35Ms McMullen stated that the applicant had applied to an agency to assist her with her debt. Ms McMullen could not give an indication to whom it was that such an application had been made. Ms McMullen further indicated that the applicant was unhappy with the amount of money she was receiving from week to week and that she didn't have the freedom to spend money like she used to. 36Ms McMullen stated that as a result of her conversations with the surveyor, it was likely that a subdivision would take a long time and that it would be costly (in terms of thousands of dollars) and further, upon subdivision, there was no certainty of sale. 37Ms McMullen stated that the surveyor told her that it is not at all apparent that any subdivision application would be approved by council, that the land came with some essential difficulties when considering both subdivision and sale, and that the property itself was right beside a highway requiring a scenic buffer. 38In the circumstances, Ms McMullen concluded both in her written submissions and in the oral evidence given to the tribunal, that it may well be in the best interest for her client, that if necessary, the NSW Public Trustee and Guardian be free to sell her home. REASONS 39In the circumstances, I propose to affirm the decision made by the Public Trustee and Guardian to proceed with the sale of the property. 40There is little doubt that the applicant does not wish her house to be sold, that she wants to return to the property, and that she has expressed threats to kill herself if the property is sold. 41Those considerations are very serious and weigh heavily on this decision. Those matters were one of the reasons why this matter was adjourned from November of 2011 until the hearing in February 2012, to allow the applicant and her family to be given an opportunity to investigate either options of subdividing the property or obtaining finance to assist. Unfortunately, despite efforts, specifically by the legal representative for the applicant, no resolution could be found and it seems that the option of subdivision is firstly too expensive and secondly, given the nature of the property and the time limits involved, somewhat speculative. 42The applicant, through her solicitor, outlined both orally and by written submissions, that she had hoped one or other of her children would be able to pay her debts and she proposed some time to be able to pursue the subdivision. In early 2012, Ms McMullen spoke with Newnham Karl Weir & Partners who indicated that the subdivision would likely cost up to $80,000.00 and take up to a year and that there was no guarantee that council would approve a development application. 43MC also considered that the block of land created by the subdividing may not sell for years, given the state of the property market. He gave evidence he was not willing to pay the $2,000.00 for a site assessment report. 44During the adjournment period, Ms McMullen, having heard nothing from the applicant's family, contacted them again and she was advised that no action had been taken to investigate the feasibility of subdivision. 45Ms McMullen advised by written submissions that MB agreed with the sale of her mother's home. Ms McMullen confirms that her client adamantly opposes the sale of the home. She concedes that nevertheless, given the following factors - her clients disability and needs, her debts, her accommodation costs, her concern over not having enough money day to day, and her inability to return to live in her own house - that it may be in the best interest for her house to be sold, to meet her liabilities and pay for her future care. 46With respect to the concern by PC that the NSW Public Trustee and Guardian would not consult him with respect to the sale of his mother's furniture, Ms Phang, Solicitor for the NSW Trustee and Guardian stated that the accepted process with the Public Trustee is that the family will be consulted about the goods and chattels and appropriate appraisals would be done. 47She further noted that just because a decision may be made to sell the house, if some alternate option comes up which is viable, it does not mean that the house will be sold. This is significant as it means that if the family can come up with a viable option, the sale of the house may not be necessary. Ms Phang confirmed to PC during the hearing that it is proposed that he be involved in the sale of the assets. She gave assurances that as a matter of practice, the family would be consulted with regard to the appraisals and that the NSW Public Trustee and Guardian was required to have regard to the family's wishes. She indicated to the tribunal and to the parties that firstly the Public Trustee and Guardian would have to make arrangements for the appraisal and sale of furniture with the cooperation of the family, including PC, as he is residing in the home, and to allow people to attend for appraisals to be done. 48Having regard to all of the evidence and the circumstances of the applicant, I affirm the decision made by the NSW Trustee and Guardian to proceed with the sale of the property.