Supreme Court New South Wales Medium Neutral Citation: Re C [2012] NSWSC 1097 Hearing dates: Monday, 3 September 2012 Decision date: 14 September 2012 Jurisdiction: Equity Division - Protective List Before: White J Decision: Refer to para [76] of judgment. Catchwords: GUARDIANSHIP - application by daughter of protected person that the Public Guardian be removed as guardian of protected person - application that plaintiff be appointed in his place - consideration of role of Public Guardian in providing accommodation for protected person - no grounds established for removal of Public Guardian GUARDIANSHIP - application by daughter of protected person that NSW Trustee be removed as financial manager of protected person - application that plaintiff be appointed in its place - whether court has jurisdiction to remove NSW Trustee as financial manager of protected person where appointed by Guardianship tribunal - held court has jurisdiction to remove NSW Trustee as financial manager - where grounds for removal of NSW Trustee as financial manager but not appropriate to appoint plaintiff as financial manager - where no other person is proposed as financial manager - directions to be given to NSW Trustee in exercise of its functions - NSW Trustee to provide reports to enable directions to be given Legislation Cited: NSW Trustee and Guardian Act 2009 Guardianship Act 1987 Interpretation Act 1987 Supreme Court Act 1970 Probate and Administration Act 1898 Cases Cited: F v R (Supreme Court of New South Wales, Powell J, 2 May 1986, unreported) Holt v Protective Commissioner (1993) 31 NSWLR 227 Texts Cited: Collinson on Lunacy (George Collinson, A treatise on the law concerning idiots, lunatics and other persons non compotes mentis, (1812), W. Reed, Volume 1) Elmer's Practice in Lunacy (Joseph Elmer, A practice in lunacy under commissions and inquisitions, 7th ed (1892) Stevens & Sons Theobald, The Law Relating to Lunacy (1924) Stevens & Sons Category: Principal judgment Parties: Plaintiff NSW Trustee and Guardian (1st Defendant) Public Guardian (2nd Defendant) 3rd Defendant 4th Defendant Representation: Counsel: In Person (Plaintiff) Dr J Lucy (1st & 2nd Defendants) In Person (3rd Defendant) In Person (4th Defendant) Solicitors: Crown Solicitor (1st & 2nd Defendants) File Number(s): 2012/206438 Judgment 1HIS HONOUR: The plaintiff is the daughter of the fourth defendant ("C"). C is a protected person. On 31 July 2009 the Guardianship Tribunal found that C was incapable of managing his affairs. It appointed the NSW Trustee and Guardian as C's financial manager. It appointed the Public Guardian as C's guardian with the functions of accommodation, health care, medical and dental consent, services and access. 2In these proceedings the plaintiff seeks orders that the NSW Trustee and Guardian be removed as C's financial manager, that the Public Guardian be removed as guardian of C, and that she be appointed in their place. If those orders are not made, the plaintiff seeks directions to be given to the NSW Trustee and Guardian and the Public Guardian in relation to the release of sufficient funds to enable the purchase of accommodation for C and that the Public Guardian consult with and assist the plaintiff to obtain suitable alternate accommodation for C which would enable the plaintiff to continue to reside with C and act as his carer. The plaintiff has provided full-time care for her father since 1 April 2009. 3C's only substantial asset is as the beneficiary of the estate of a Mr Gerald Arendt who died on 29 March 2006. C was appointed as Mr Arendt's executor and is the sole beneficiary under his will. Mr Arendt's principal asset was a share in a property situated at Darvall Road, West Ryde ("the West Ryde property"). Mr Arendt and a Mrs Stimpson were the registered proprietors of that land as tenants in common. Mr Arendt had a seven-tenths share and Mrs Stimpson a three-tenths share. Mrs Stimpson had died on 14 September 1999. Four of her children were executors of her estate. 4The Guardianship Tribunal published reasons for its decisions of 31 July 2009. Its reasons are dated 7 September 2009. It concluded that it was not in C's interest that either the plaintiff or his son (the third defendant) be appointed as C's financial manager. Both the plaintiff and the third defendant had made claims that the other had misappropriated C's property and was otherwise unfit to be C's financial manager. The Tribunal considered an alternative proposal that solicitors who had acted on the instructions of the third defendant and the plaintiff be appointed as financial managers, but rejected that proposal. It appointed the NSW Trustee as financial manager. It recommended that the NSW Trustee use the experience and knowledge of the two solicitors to assist in finalising matters relating to the Arendt estate. The Tribunal stated: "There are now important matters to be attended to for [C]. These include: (a) the investigation of the alleged misappropriation of funds by one or both of [C's] children for their own purposes (b) the finalisation of Mr Arendt's estate in which [C] is the sole beneficiary (c) planning for [C's] future needs, including decisions about his share of the property." 5Mr Arendt's estate has still not been finalised. It was not until 22 March 2011 that the NSW Trustee obtained a grant of letters of administration with the will annexed for the duration of the mental incapacity of C as the named executor. According to a letter from the plaintiff to Mr French of the Office of the NSW Trustee dated 20 January 2011, the application for the grant was only filed on 10 December 2010. 6Prior to its appointment as financial manager of C's estate, the Office of the NSW Trustee (before that, the Protective Commissioner) was aware of an issue concerning the collection of rent for the West Ryde property. According to an email from Mr Smith, a senior legal officer with the NSW Trustee, to another legal officer, Ms Phang, dated 16 July 2012, from as early as 2008 Roberts Mann, solicitors representing the executors of the Stimpson estate, had been communicating with the Office of the Protective Commissioner claiming 30 per cent of rent allegedly collected by C. As this was before a financial manager was appointed to C's estate, I assume that the Protective Commissioner had been Mr Arendt's financial manager until his death. Mr Smith also said that there had been assertions that C's son, the third defendant, had had a hand in the retention of rent moneys which should be accounted for to Mrs Stimpson's estate. He said that claim has continued to be asserted since the administration of Mr Arendt's estate was taken over by the NSW Trustee. 7In its reasons dated 9 September 2009 the Guardianship Tribunal recorded that the plaintiff alleged that her brother had misappropriated the rent from the West Ryde property which should have been paid to C in the three years since Mr Arendt's death. This was a matter that required prompt investigation following the appointment of the NSW Trustee as financial manager of C's estate. 8In oral evidence given by telephone, Mr Smith said that on 5 November 2010 the Office of the NSW Trustee had written to the third defendant seeking general information about the Arendt estate. He said that the correspondence stated that the Office of the NSW Trustee understood that the West Ryde property had been rented and asked for details of the bank account into which rents were paid, details of outgoings, and information as to whether or not the third defendant currently held any sum in respect of rents collected. The correspondence was not tendered. Mr Smith said there was no response to it. 9By a letter dated 9 November 2010 to Mr French of the NSW Trustee, the plaintiff asserted that she had spoken to the tenant of the main house on the West Ryde property, a Ms Kirkwood, who advised her that the rent for the main house was $1,521 per month and that the rent was deposited into an account with the ANZ Bank in the name of Keith Williams. According to the plaintiff, Ms Kirkwood advised that the current tenants had been renting the main house since 2007, that the third defendant had been the person responsible for maintenance and repairs, and that Ms Kirkwood had been given the keys to the property by the third defendant's wife. The plaintiff stated that a tenant in a studio/cottage on the property was paying weekly rent of $145 to the third defendant's wife. 10On 3 May 2011 the plaintiff wrote to Mr Smith advising that Keith Williams was an alias for the third defendant. She asserted that the rent that the third defendant had obtained from the West Ryde property since 2006 was approximately $124,000. She further alleged that the third defendant's daughter was in possession of $16,519 of C's money and a further $6,000 from the closure of two of C's bank accounts. 11The third defendant did not provide any affidavit in answer to the plaintiff's allegations that he had taken the rent from the West Ryde property. When I pointed this out, the third defendant's response was in substance to admit his receipt of the rent, but to assert that he was entitled to the moneys as reimbursement for expenses paid on behalf of C, including, as I understood him, rent paid on behalf of C when C was living in Vaucluse prior to his being taken by the plaintiff to Bilpin. The third defendant did not venture an explanation as to why the landlord named in the 2007 residential tenancy agreement for the West Ryde property was named Keith Williams. As he admitted collecting the rent, I would have expected an explanation as to why he used an apparent alias. 12On 24 May 2011 the plaintiff wrote to Mr Smith of the NSW Trustee asserting that her father needed access to his assets currently held in the Arendt estate and asking for an expeditious distribution of those assets. However, she had earlier written on 20 January 2011 opposing the sale of the West Ryde property asserting that if the rents of that property were collected, that would suffice for his needs at that time. 13It is not clear to me what rents the NSW Trustee collected in respect of the West Ryde property. In an email to Mr John Mann of Roberts Mann dated 19 July 2012 Mr Smith said in reference to the rent for the main residence of $1,521 per month that: "We apportioned to the Stimpson and Arendt subaccounts rent we received over a short period from the last tenant and did the same when we received funds from OPC who collected some rent also." 14Those receipts do not appear in the account of the NSW Trustee as financial manager for C. I was not provided with a full statement of account for the Arendt estate. I was provided with an account commencing on 11 January 2012 which did not show those rents. The Office of the NSW Trustee and Guardian did charge commission of $11,021.44 under the heading "Legal fees for investigating/researching correspondence received [the plaintiff] in relation to dispute over rent." 15It does not appear that the NSW Trustee has taken any step to seek to recover from the third defendant the rent collected by him in respect of the West Ryde property. Nor did the NSW Trustee proffer any explanation as to why no such steps had been taken. It may be that the third defendant has provided a satisfactory account. He suggested as much in questioning Mr Smith, but Mr Smith did not confirm it. 16There was delay in selling the West Ryde property. The reasons for the delay were not investigated at the hearing. The co-operation of the executors of the Stimpson estate was necessary. Contracts were exchanged on 26 May 2012. The sale price was $755,000. Completion took place on 9 July 2012. By an email dated 16 July 2012 Mr Smith advised Ms Phang that "The writer calculates that an amount in the order of $472,000.00 will be available for distribution to [C]. $20,000.00 has been reserved for legal fees over the dispute. This amount is subject to vouching by our accounts branch." Mr Smith stated that distribution to C had not taken place by that date because: "1. The estate requires a full vouch 2. The Stimpson estate has not released NSW Trustee and Guardian as executor from its potential claim for rent. In this regard, we are pressing the solicitors for the Stimpson estate to either release the claim entirely or to confine the claim to [C] personally. In the latter event, the funds may be distributed to NSW Trustee and Guardian as the financial manager of [C] by the Trustee section of NSW Trustee and Guardian as executor. When that happens, the financial manager can make decisions about the proper use of those funds on behalf of their managed client." 17 An interim distribution of $100,000 was made on 20 July 2012. 18There is no obvious reason that the threatened claim by the executors of the Stimpson estate against C for allegedly having collected and retained the whole of the rents should delay the completion of the Arendt estate. There appears to be no allegation that Mr Arendt was liable to account for any rents collected. The foreshadowed claim is not that the deceased owed a debt that should be paid out of the estate, but that C (or the third defendant) is liable to account for a share of the rents collected. C may have been acting in the capacity of executor (if he acted at all, as to which there is no evidence). Nonetheless, any claim against him by the executors of the Stimpson estate would be a personal claim to be met out of any assets that C had. 19Mr Smith does not suggest that a claim has been foreshadowed against the NSW Trustee. I infer that it has accounted to the Stimpson estate for its share of such of the rents as the NSW Trustee or the Protective Commissioner collected. 20The NSW Trustee may be liable to C for not taking steps to prevent the third defendant from collecting rent and not suing the third defendant to recover the estate's share of the rent that the third defendant collected, but is hard to see that this could be the foundation of any claim by the executors of the Stimpson estate against the NSW Trustee. 21The roles of the NSW Trustee as administrator of Mr Arendt's estate and as financial manager of C are conducted by different parts of the organisation. On 3 December 2010 it advised the plaintiff that whilst the Public Trustee and the Office of the Protective Commissioner had been merged in 2009, they still both operated independently at that time. Ms Narelle Potter of the NSW Trustee advised the plaintiff by the letter of 3 December 2010 that: "The Trustee division of the organisation (formerly Public Trustee) have been requested by the financial division (formerly Office of the Protective Commissioner) who have a financial management order over your father, to complete the administration of the estate of Gerald Kurt Max Arendt. As your father is a client of the financial division, we are required to take our instructions from them directly in relation to the finalisation of the estate." 22The NSW Trustee has the same liabilities as administrator of the Arendt estate as would a private person acting in that capacity (NSW Trustee and Guardian Act 2009, s 11(4)). If it has failed to collect the assets of the estate (namely rent taken by the third defendant) it could be liable to account to C for those moneys. Whilst the NSW Trustee in one capacity can sue itself in another capacity (NSW Trustee and Guardian Act, s 21), there is a potential conflict. 23Mr Smith said in oral evidence that there is presently approximately $354,000 held by the NSW Trustee as administrator of the Arendt estate on behalf of C. He anticipated that a decision will be made in the near future that would be likely to lead to a further distribution of approximately $254,000 ($100,000 might be kept in reserve against the possibility of future claims). 24If these figures are right, and I have not seen a full account, then it suggests that the NSW Trustee in its capacity as administrator of the estate might have deducted something in the order of $55,000 plus an amount equivalent to the 70 per cent share of the rents it collected in payment of costs, charges and expenses. (The 70 per cent share of the net proceeds of sale after adjustments and real estate agent's costs was in the order of $509,000 to $510,000. It is said that the amount available for distribution totals approximately $454,000 of which $100,000 might be retained. The difference is about $55,000.) 25It would be the duty of the financial manager for C to be satisfied as to the amount of the charges in relation to the administration of the Arendt estate. Again, the NSW Trustee is in a position of conflict in this regard. 26The plaintiff's application was brought because the lease of the Bilpin property in which she and C reside was terminated. She and C were required to vacate the property by 13 August 2012. I understand they did not do so and there are eviction proceedings on foot against them. The plaintiff says that if the affairs of the Arendt estate had been wound up with reasonable expedition after the appointment of the NSW Trustee as C's financial manager, then C would have had a capital sum available to him which could be used for the purchase of alternative accommodation. To date, the only distribution from the Arendt estate has been of the sum of $100,000. 27Because of the imminent eviction of the plaintiff and C from the Bilpin property, the plaintiff initially proposed that C purchase a rural property at Windellama, New South Wales. Windellama is a town south of Bungonia and Goulburn, east of Lake George and West of Morton National Park. On 16 July 2012 I refused an application by the plaintiff for an order that the NSW Trustee release a sum of $50,000 to enable those moneys to be used to pay a deposit on the purchase of that property. In refusing that application I observed that the Public Guardian had the function of deciding on issues of accommodation. I was told that the proposal for the purchase of that property had not been submitted to the Public Guardian. He had made no decision as to whether or not that would be an appropriate residence for Mr C. I directed that the materials the plaintiff tendered in relation to the Windellama property be released to the NSW Trustee for transmission to the Public Guardian so that he could consider the question. 28On 26 July 2012 Ms Mercieca, who holds the position of Acting Principal Guardian in the Office of the Public Guardian, advised the plaintiff that the Public Guardian was unable to consent at that stage to C's moving to the property called "Takumana" in Windellama. She said that in order for an accommodation decision to be made a full proposal was required, including information on, but not limited to: "How the physical environment will meet the person's present and future needs How the person's care needs are to be met in the proposed accommodation (i.e. the services the person is to receive and how they will be obtained) How the person's contact with family and other important people to the person will be maintained. In this case, please account for how ongoing Access arrangements, whereby [C] is to have monthly weekend access to [the third defendant], will be facilitated." 29The plaintiff responded to Ms Mercieca in peremptory tones. In substance, she asked whether Ms Mercieca had inspected the property, made inquiries about day care centres in Braidwood, Goulburn and Canberra which C could attend and made her own inquiries to determine the suitability of the premises. The plaintiff contended that the property could not be faulted as a permanent residence as it was situated between Canberra and Goulburn, both of which had hospitals and that Goulburn and Braidwood both had day care centres which C could attend up to six days per week. In the same email the plaintiff said that there were "nearby" day centres at Canberra as well. Windellama is not near any of those places. 30The third defendant lives in Sydney. At the time of the hearing in the Administrative Decisions Tribunal he lived in the Eastern Suburbs of Sydney. He has a business at Mount Druitt. The Administrative Decisions Tribunal had determined that whilst C should reside with the plaintiff, there were to be access arrangements between the plaintiff and the third defendant so that the third defendant could have access to his father. The Administrative Decisions Tribunal recorded that C had been consistent in his views that he wished to have close contact with the third defendant and the third defendant's family. It was satisfied that this was in the best interests of C. 31On 31 August 2011 the Public Guardian varied the access arrangements. He decided that the plaintiff was to facilitate access to C by the third defendant and his family on a monthly basis on the last Friday of each month. A third party service provider was to pick up C from his residence in Bilpin and take him to the third defendant's business at Mount Druitt. The third party service provider was to pick up C from Blacktown on the Sunday and return him to the plaintiff's care. The requirement for there to be a third party service provider to provide transport for C came about because of the conflict between the plaintiff and the third defendant. 32It is proper that the Public Guardian take into account the viability of access arrangements in making decisions about C's residence. 33The plaintiff had also proposed to move with C to New Zealand. The Public Guardian did not consent to that move at that stage. He sought further information about the proposal, but that was not forthcoming. 34On 8 August 2012 Ms Mercieca reminded the plaintiff that the Public Guardian had not made a decision on the proposal for the purchase of the Windellama property and required further information. She did not receive any. The plaintiff stated that neither she nor her father would be moving on 13 August. 35Because C was faced with eviction from the Bilpin property and because no proposal had been made by either the plaintiff or the third defendant for suitable alternative accommodation, the Public Guardian requested assistance from the Disability Advisory Service of the NSW Trustee to identify a case management service that could work with C and his family to identify urgent interim accommodation. The Public Guardian retained an organisation called All About Rehabilitation ("AAR") to seek to identify suitable accommodation options for C who was required to vacate the Bilpin property on 13 August 2012. An occupational therapist, Ms Oates, carried out that assessment. 36The plaintiff did not co-operate with Ms Oates. She cancelled an appointment that Ms Oates had made to see C. The plaintiff wrote an intemperate and ill-informed email to Ms Mercieca complaining that $1,875 of C's assets were being spent on this exercise. Showing a lack of civility typical of the plaintiff's correspondence, the plaintiff said that it was inappropriate for the Public Guardian to have allowed Ms Oates, whom her father did not know, to invade her father's privacy where his care had been entrusted to the staff of the day centre without any thought or respect to her father's dignity and the effect of being isolated from the other inmates whilst Ms Oates evaluated him. The notion that such a discussion with Ms Oates would be without respect to C's dignity was unfounded. The email continued with a lecture as to the duty of occupational therapists and an accusation that Ms Oates was acting unprofessionally that were unwarranted. 37Ms Oates stated that AAR had initially investigated accommodation options in the Richmond area with the goal of minimising disruption to C and maximising the likelihood of his being able to continue to attend a day program at Richmond. It appears that AAR looked at Residential Aged Care Facilities in the Richmond area, but there were no current available beds. AAR investigated other accommodation options being short-term motel accommodation. It also investigated an option of private rental accommodation. AAR contacted the current landlord to discuss whether he would provide a tenancy reference for C. The landlord said he would not provide such a reference. Given the timeframes provided AAR did not consider that a private rental property was a reasonable short-term option. It identified an available bed in the Ritz Nursing Home in Leura, which provided dementia-specific services and programs. This report was provided to Ms Mercieca on 13 August 2012. 38The accommodation needs assessment report prepared by Ms Oates was received by the Public Guardian on 13 August 2012. On 16 August 2012 Ms Oates advised that a bed had become available at the Waldock Centre, a facility under the management of Baptist Community Aged Care Services in Carlingford. On 17 August 2012 the Waldock Centre advised Ms Mercieca that a bed was available within the general population of the dementia unit. On that day Ms Mercieca in her capacity as Acting Principal Guardian made a decision to place C at the Waldock Centre. On 23 August 2012 the plaintiff applied to the Administrative Decisions Tribunal for a stay of that decision. On 29 August 2012 the Administrative Decisions Tribunal granted a stay of the accommodation decision until 6 September 2012. The matter was relisted for hearing on 6 September 2012 to determine whether to continue, vary or revoke the stay. 39The bed at the Waldock Centre may no longer be available. 40The hearing of the landlord's application for an eviction order has been fixed on 18 September 2012. 41On 27 August 2012 the plaintiff sent an email to Ms Mercieca advising that a property at Goulburn had become available to lease for a rent of $550 per week. The plaintiff stated that she would be inspecting the property the following day and if it was suitable would be securing the property with a deposit of one week's rent. The plaintiff said that a deposit of her father's funds would need to be made to secure the tenancy. She enclosed brochures from the real estate agency describing the property. It was described as a large property with what was said to be four spacious bedrooms and a fifth bedroom on a downstairs level, and was situated on two hectares with a paddock for horses. The plaintiff also enclosed brochures from the Warrigal Care Day Respite Service in Goulburn describing its services and gave contact details for a centre called the McDermott Centre described as Goulburn's Home and Community Care Centre. 42Ms Mercieca deposed that this information did not meet all of the Public Guardian's requirements which had been outlined in earlier correspondence, in particular her letter of 26 July 2012 in relation to the proposal for the purchase of the Windellama property (see at [28] above). In fact the plaintiff had stated how she contended contact would be maintained. She did not give information as to what care services could be provided during the day from facilities at Goulburn, including whether places would be available. Ms Mercieca also said that the information provided did not address access to transportation services for access visits to the third defendant. 43Ms Mercieca forwarded the information provided by the plaintiff to the NSW Trustee to provide advice about the affordability of the proposal. Ms Nand, from the part of the Office of the NSW Trustee that acts as financial manager for C, advised that the proposal was not affordable and that C could not afford $550 per week of rent as proposed by the plaintiff. Ms Mercieca's file note of that discussion was that C's utilities service payments and grocery bills were very high, unpredictable and had exceeded an agreed budget. Ms Nand advised that half of the proposed expenditure of $550 per week might be possible. Ms Mercieca noted that "[C] has some moneys released from Trustee Services and pension. The majority of the inheritance (totalling $550k) remains held by Trustee Services, with no current knowledge on when it will be released." Ms Nand has stated that her views needed to be vetted with the financial planning unit. 44Ms Mercieca also sought the views of the third defendant. He was opposed to the proposal. He said that C had always resided in a flat in the Eastern Suburbs and was a social person and did not have the will to live rurally and with animals. He said he was concerned that C would be moved to a place that was too cold, that C had not been born and bred in the country and he did not want his father moved to a colder environment. He was opposed to his father having to travel great distance to facilitate access. 45Ms Mercieca said that she would be seeking more information about this rental proposal, but the Public Guardian would need to be assured that in any community-based accommodation proposal, C could readily access services and that the services would be immediately available for him to use. She also said that the distance between C, the third defendant and the plaintiff would be an important factor in making any accommodation decisions. 46Ms Mercieca said that it was not the function of the Public Guardian to ascertain that information itself. She said that the Public Guardian made decisions about where the protected person should reside, but did not have a "case management" function. 47I think Ms Mercieca has taken too narrow a view about the Public Guardian's functions. The order of the Guardianship Tribunal (after its revision on 3 August 2011) was that: "... 3. The Public Guardian is appointed as the guardian for [C]. 4. This is a limited guardianship order giving the guardian custody of [C] to the extent necessary to carry out the functions referred to below. FUNCTIONS 5. The guardian has the following functions: ... (b) Accommodation To decide where [C] may reside." 48Section 21 of the Guardianship Act 1987 provides: "21 Relationship of guardians to persons under guardianship (1) Subject to any conditions specified in the order, the guardian of a person the subject of a plenary guardianship order: (a) has custody of the person to the exclusion of any other person, and (b) has all the functions of a guardian of that person that a guardian has at law or in equity. (2) Subject to any conditions specified in the order, the guardian of a person the subject of a limited guardianship order: (a) has custody of the person, to the exclusion of any other person, to such extent (if any) as the order provides, and (b) has such of the functions of a guardian of that person's person, to the exclusion of any other person, as the order provides. (2A) Subject to any conditions specified in the order, the guardian of a person the subject of a guardianship order (whether plenary or limited) has the power, to the exclusion of any other person, to make the decisions, take the actions and give the consents (in relation to the functions specified in the order) that could be made, taken or given by the person under guardianship if he or she had the requisite legal capacity." 49The order made by the Tribunal was a limited guardianship order, not a plenary order. Counsel for the Public Guardian submitted that even if a plenary order had been made, the function of the Public Guardian was only to make decisions about the protected person's welfare and not to carry out a "case management" function. That is not correct. In Collinson on Lunacy (George Collinson, A treatise on the law concerning idiots, lunatics and other persons non compotes mentis, (1812), W. Reed, Volume 1) the learned author said (at p 248) that: "The committee of the person should always remember, that it is incumbent upon him, to consult, by every possible means, the comfort and advantage of the unhappy person committed to his care; for to this end and this alone, was he appointed committee." 50In Elmer's Practice in Lunacy (Joseph Elmer, A practice in lunacy under commissions and inquisitions, 7th ed (1892) Stevens & Sons at pp180-181) it was said: "The Committee should from time to time ... personally visit the lunatic, if not residing with him; and the two points to which his attention should be particularly directed are, first, to afford to the lunatic everything which the allowance made for his maintenance will provide, and which can contribute to his comfort; and secondly, to see that every care is taken to promote his bodily health and mental improvement." 51In Theobald, The Law Relating to Lunacy (1924) Stevens & Sons the learned author says (at 49-50) that: "The committee of the person has complete control over the person of the lunatic and it is his duty to make all necessary arrangements for his care and treatment." (See F v R (Supreme Court of New South Wales, Powell J, 2 May 1986, unreported).) 52A guardian appointed under the Guardianship Act whether a private guardian or the Public Guardian has not only a power, but a duty to exercise the functions conferred on him or her for the benefit of the protected person. Although the guardianship order in this case was a limited order, it is the duty as well as the power of the Public Guardian to make decisions as to where C may reside. The Public Guardian has a duty to do that which is necessary in the interests of C to enable the decision as to where he may reside to be made in a way which accords with what the Public Guardian assesses to be his best interests. It is clear from subs 21(2A) that even in the case of the limited guardianship order, a guardian (including the Public Guardian) has the power to take the actions that could be taken by the protected person if he or she had the requisite legal capacity. The Public Guardian's power and the correlative duty is not confined merely to a decision-making function, but includes doing those things relevant to the decision-making function that the protected person could do for himself or herself if he or she had capacity. 53On the other hand, as it was the plaintiff who wished to move to Goulburn with her father, Ms Mercieca could reasonably expect that the plaintiff would make the inquiries as to the availability of the services. If the plaintiff failed to do so, as she did, then if the Public Guardian's delegate, Ms Mercieca, were of the view that the Goulburn accommodation was otherwise appropriate, it might well have been her duty to seek to ascertain for herself the availability of such services. However, matters did not get to that point. Ms Mercieca was told by the NSW Trustee that the proposal was not affordable. There are other issues with the proposal which the Public Guardian might reasonably consider would make the proposal not an appropriate one in C's best interests, in particular, the distance of Goulburn from the third defendant and his family. 54In cross-examination of Ms Mercieca the plaintiff challenged her reasons for the decision that C should be accommodated at the Waldock Centre. In those reasons Ms Mercieca had regard to C's expressed view that he would prefer to remain in the community, but noted that he was not aware of his pending eviction. (That was also the position at the hearing.) Ms Mercieca's decision to consent to C's being placed at the Waldock Centre was made on the basis that there was no available alternative accommodation to that proposal. The decision was reasoned. An application has been made by the plaintiff to the Administrative Decisions Tribunal to review the decision. Whatever the fate of that application, the decision of 17 August 2012 in respect of C's accommodation does not provide any ground for the removal of the Public Guardian as C's guardian. 55In my view, the Public Guardian has dealt appropriately with the plaintiff's proposals for alternative accommodation for the plaintiff. 56Counsel for the Public Guardian accepted that the court had jurisdiction to remove the Public Guardian as C's guardian. Section 8 of the Guardianship Act provides that nothing in Part 3 of that Act limits the jurisdiction of the Supreme Court with respect to the guardianship of persons. That jurisdiction extends to the removal and replacement of a guardian. However, in the present case I see no reason to remove the Public Guardian as C's guardian. There was no appeal from the decision of the Administrative Decisions Tribunal of 3 August 2011 extending the appointment of the Public Guardian as C's guardian. The plaintiff has not demonstrated that the Public Guardian has failed properly to carry out his responsibilities. 57The position regarding the NSW Trustee as C's financial manager is different. It is a matter for real concern, that more than three years after the NSW Trustee's appointment, the matters that the Guardianship Tribunal said needed to be attended to are, so far as the evidence reveals, still outstanding. The administration of the Arendt estate is still not finalised. There was no explanation for the delay in application being made for the appointment of the NSW Trustee as administrator of the Arendt estate. The evidence was that although the NSW Trustee was appointed as C's financial manager on 31 July 2009, it was not until 10 December 2010 that it applied to be appointed as administrator to carry out C's functions as executor of the Arendt estate. 58There is no evidence that the NSW Trustee did anything of substance to investigate the claims the third defendant made against the plaintiff or the claims that the plaintiff made against the third defendant and members of his family in relation to alleged improper dealings with C's property. 59The third defendant submitted that the rent from the West Ryde property went into an account from which C's day-to-day expenses, including his rent at Vaucluse and other expenses in relation to the West Ryde property were paid. There was no evidence about that. The third defendant asked questions of Mr Smith in which he asserted that he had provided the NSW Trustee with a list of expenditure and receipts, but Mr Smith said he was not sure what the Office received from the third defendant. Mr Smith said that the NSW Trustee had asked for, but had not received information on the issue of any rent that had been or had not been collected. 60As stated earlier in these reasons, if the NSW Trustee in its capacity as administrator of the Arendt estate failed to collect the assets of the estate comprising its share of the rental proceeds, and if those proceeds were not applied by the third defendant for C's benefit, then it could be required to account to C for its failure to collect the assets. This places it in a position of potential conflict. Similarly, if C has claims against the NSW Trustee as his financial manager by reason of any failure by the NSW Trustee to pursue debts, such as might arise if, for example, moneys of C were taken, as the plaintiff alleges, by third parties, again the NSW Trustee would be in a position of conflict. 61The unexplained delays and the potential for the NSW Trustee to be in a position of conflict between its interest and its duty to C would provide grounds for removing it as C's financial manager if there were jurisdiction to do so. 62Counsel for the NSW Trustee submitted that the court did not have jurisdiction to remove the NSW Trustee as financial manager of C because it had been appointed by the Guardianship Tribunal, not by the Court. Section 47 of the Interpretation Act 1987 provides, amongst other things, that if an Act confers a power on a body to appoint a person to an office, the power includes the power to remove the person so appointed and to appoint another person in his or her place. That power is not available to the Supreme Court because the NSW Trustee was not appointed by order of the Court. (Compare Holt v Protective Commissioner (1993) 31 NSWLR 227 at 237.) The NSW Trustee was appointed as C's financial manager pursuant to s 25E and s 25N of the Guardianship Act. Division 2 of Pt 3A of that Act (ss 25N to 25R) and Div 3 of Pt 3A (ss 25S to 25U) confer power on the Tribunal (but not the Court) to review, vary, revoke or confirm financial management orders and to review the appointment of the manager of the protected person's estate. Part 3A of the Guardianship Act does not include a provision expressly preserving the inherent jurisdiction of the Supreme Court in respect of the management of the estates of incapable persons. This is in contrast to s 8 of the Act that provides that nothing in Part 3, which deals with guardianship orders, limits the jurisdiction of the Supreme Court with respect to the guardianship of persons. Counsel submitted that for these reasons, the court did not have jurisdiction to remove the NSW Trustee as financial manager of C's estate and that any such application would have to be made to the Guardianship Tribunal. 63Part 2.2 of the NSW Trustee and Guardian Act deals with the functions that can be conferred on the NSW Trustee, and, amongst other things, its liabilities and amenability to the control or orders of the court. Subsection 11(2) provides that it can be appointed in the capacity of a financial manager of the estate of a managed person. Subsection 11(4) provides: "11 General trustee and other functions ... (4) The NSW Trustee, if appointed to act in a trust or protective capacity: (a) has the same liabilities, and (b) is entitled to the same rights and immunities, and (c) is subject to the same control and orders of any court, as a private person acting in the same capacity." 64Thus the NSW Trustee is liable to be removed as a financial manager of the estate of a managed person by order of a court in the same way that a private person acting in that capacity could be removed. 65If a private person were appointed as financial manager of a person's estate, he or she could be removed by the Court whether appointed by the Court or by the Tribunal. If appointed by the Court there is the express power of removal in s 47 of the Interpretation Act. If appointed by the Tribunal the Court has power under s 64 of the NSW Trustee and Guardian Act to make such orders as it thinks fit in relation to the administration and management of the estate of the managed person (NSW Trustee and Guardian Act, ss 63 and 64(1)). This would include the power of removal. 66Moreover, I do not think that the Crown's parens patriae jurisdiction in relation to the management of estates of incapable persons which is exercised through the Supreme Court is to be removed by implication, unless the implication is clear. That jurisdiction is conferred by s 23 of the Supreme Court Act 1970 and it would take clear words to remove it. The conferral of powers on the Guardianship Tribunal to appoint financial managers, to review and revoke financial management orders, and to review and revoke the appointment of managers, does not by implication exclude this Court's exercise of the Crown's parens patriae jurisdiction. The fact that that jurisdiction is expressly preserved in the case of guardianship orders does not mean that the jurisdiction is impliedly revoked in the case of the management of the estates of protected persons. The maxim that an express reference to one matter implies that other matters are thereby excluded is applied only with considerable caution. I think it would require clear words, or, at least, a clear implication, before it should be concluded that this was intended. There are no such clear words or clear implication. 67It does not follow from my conclusion that there is jurisdiction to remove the NSW Trustee as financial manager and that there are grounds to do so, that such an order should be made. Such an order should only be made if to do so would be in the best interests of C. It is not disputed that C is incapable of managing his affairs and that there should be a financial manager appointed to manage his estate. I am not satisfied that it would be appropriate to appoint the plaintiff as his financial manager. This is partly for the same reasons that the Guardianship Tribunal declined to appoint her as financial manager in 2009. So far as the evidence reveals the allegations the third defendant made against her in relation to her dealings with C's property have not been investigated. The potential conflict between her duty to C and her own interest remains. 68Moreover, I think there would be a high risk that if the plaintiff were appointed as C's financial manager she would use that position to frustrate any decision that the Public Guardian might make as to C's accommodation if she did not agree with that decision. The tone of the plaintiff's correspondence with the Public Guardian and the NSW Trustee shows her to be a forceful and dogmatic woman prepared to fight for what she perceives to be her father's interests. Her correspondence shows a disdain for the officers of the Public Guardian's office. There are reasonable grounds for thinking that the plaintiff would like to have her father in accommodation with her at a place far removed from the third defendant. The Public Guardian will have to make accommodation decisions having regard to the orders of the Administrative Decisions Tribunal that contemplate continued access between C and the third defendant. If the plaintiff were appointed as C's financial manager, there would be an unacceptably high risk that she would refuse to make funds available to provide accommodation for C, unless it was accommodation which she approved. That would frustrate the performance by the Public Guardian of his functions. 69No other person is proposed as financial manager. It would be possible to appoint a trustee company if a trustee company consented to accept the appointment. That would come at a significant cost and would lead to further potential delays whilst a new financial manager came to grips with the issues. In my view, the better course is to seek to rectify the position, so far as possible, by giving the NSW Trustee directions pursuant to s 61 of the NSW Trustee and Guardian Act to seek to expedite its management of C's affairs. Section 61(1) provides that the Supreme Court may give to the NSW Trustee such directions as the Court thinks necessary with respect to the exercise by the NSW Trustee of its functions in its protective capacities. 70The first step is to seek to finalise the Arendt estate. In acting as administrator of the Arendt estate, the NSW Trustee is not exercising functions in its protective capacities. Section 61 does not authorise the giving of directions to the NSW Trustee acting in its capacity as administrator of that estate. Section 32 provides that where the NSW Trustee is acting alone in relation to any estate, it is not required to file or pass accounts relating to the estate, unless the Supreme Court, on the application by or on behalf of a person interested in the estate, so orders. 71C, as beneficiary of the estate, is entitled to require the NSW Trustee to account for its administration of the estate. The NSW Trustee as his financial manager should require such an account. If necessary, I will give a direction to the NSW Trustee under s 61 of the Act to apply to the Court for an order requiring it to file and pass accounts in respect of the Arendt estate. That should not be necessary. I could also direct the NSW Trustee as financial manager of C to apply for an order requiring distribution or interim distribution of the Arendt estate to it on C's behalf. 72I trust that it will not be necessary to proceed by way of directing the NSW Trustee to make an application to the Court for orders against itself in its capacity as administrator of the Arendt estate. 73The matters the NSW Trustee should attend to, either in its capacity as administrator of the Arendt estate or as financial manager of C are: a) providing an account of the administration of the Arendt estate. This will include a statement of what rents were collected and for what period rents were collected, what charges have been made and the basis upon which the NSW Trustee says it was entitled to make such charges; b) distributing the estate to the NSW Trustee as financial manager for C. If the NSW Trustee as administrator of the estate proposes to withhold any amount by way of distribution it should provide a justification for the amount to be retained. If any amount is to be retained on the basis of a foreshadowed claim against it, it should give details of the claim, and how it is apprehended that it should be entitled to retain assets against such a claim. That will provide the basis for my being able to determine whether or not to make an order pursuant to s 84 of the Probate and Administration Act 1898 or r 54.3 of the Uniform Civil Procedure Rules for the payment of the moneys to which C is entitled; c) the NSW Trustee in its capacity as financial manager of C should provide a report as to what steps, if any, it took to collect the assets of the Arendt estate, and the reasons for the delay in the NSW Trustee's applying to be appointed as administrator of the Arendt estate. It should provide a report on what investigations it has made as to the plaintiff's allegations that the third defendant and members of his family have appropriated C's property to their own use, and as to the third defendant's allegations that the plaintiff had appropriated C's property to her own use, and the outcome of those investigations. 74Depending on the information provided by the NSW Trustee and the advice it provides as to its intentions, I may give further directions. 75These inquiries will not resolve the immediate problem of C's future accommodation. The plaintiff says that it is desirable for C to live in the community in a home he has purchased. She says, and I do not understand this to be disputed, that C's pension will be reduced or removed if the cash funds to which he is entitled remain invested in cash, whereas if they were used to buy a home for C, his pension should be restored. If the Public Guardian considers that C should be accommodated in the community and a suitable residence becomes available, then the need for him to have access to his entitlement to the Arendt estate is urgent. 76I will stand the matter over for a short period in order for the first and second defendants to bring in short minutes of order consistent with these reasons. The short minutes of order are to provide for the dismissal of the claims in paragraphs 1-4 of the amended summons. In lieu of the orders sought in paragraphs 5 and 6 of the amended summons there should be orders to give effect to these reasons requiring the NSW Trustee to provide the reports to which I have referred. The proceedings will be reserved for further consideration pending the provision of those reports. The orders should provide for the prompt provision of those reports. If the NSW Trustee, in its capacity as administrator of the Arendt estate, does not consent to the making of any such directions or orders, the short minutes should provide for the giving of directions to the NSW Trustee in its capacity as financial manager of C's estate requiring it forthwith to commence proceedings against itself as executor of the Arendt estate for an account and for orders under s 84 of the Probate and Administration Act. Any such proceedings will be expedited. Such proceedings should not be necessary. 77On the adjourned date I will hear any submissions as to costs. 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: 14 September 2012