DNP v NSW Trustee and Guardian [2018] NSWCATAD 212

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DNP v NSW Trustee and Guardian [2018] NSWCATAD 212 Hearing dates: 6 September 2018 Date of orders: 11 September 2018 Decision date: 11 September 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy LCM, Deputy President Decision: The decision to approve the sale of the property is affirmed. Catchwords: ADMINISTRATIVE LAW – merits review – where NSW Trustee and Guardian decided to approve the sale of property owned jointly by a person who is the subject of a financial management order and one of her sons – where son disagreed with the decision to sell the property – where paramount consideration is the welfare and interests of the person subject to the financial management order – correct and preferable decision Legislation Cited: Administrative Decisions Review Act 1997 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Category: Principal judgment Parties: DNP (Applicant) NSW Trustee and Guardian (Respondent) Representation: Solicitors: DNP (Self-Represented) J McCarthy (NSW Trustee and Guardian (Respondent) File Number(s): 2018/00241574 Publication restriction: The publication of the of the name of the applicant or any other person mentioned in these reasons for decision is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2014 (NSW).

REASONS FOR DECISION

Overview 1. Ms X is an elderly woman who has been a permanent resident in an aged care facility since February 2016. A year earlier, in March 2015, the Tribunal appointed the NSW Trustee and Guardian as her financial manager. Exercising its powers as financial manager, the NSW Trustee and Guardian has decided to sell a property Ms X owns as a tenant in common with her son, DNP. The reason for the sale is that Ms X owes fees to the aged care facility which amounted to $132,099.35 as at 15 August 2018. Ms X is also incurring monthly fees of $7,305.60. DNP opposes the sale and has applied to the Tribunal for a review of the decision. 2. The issue for the Tribunal is whether selling the property is the 'correct and preferable' decision: Administrative Decisions Review Act 1997 (NSW), s 63. In deciding that issue I must observe the principles in s 39 of the NSW Trustee and Guardian Act 2009 (NSW) including the principle that "the welfare and interests of (Ms X) . . . should be given paramount consideration." 3. Ms X has been a resident of the aged care facility for 2 ½ years. She has paid the Refundable Accommodation Deposit (RAD) of $540,000 but has not paid the ongoing daily fees. The aged care facility intends to take steps to recover the debt if it is not paid. Her accommodation is at risk. Ms X has no significant assets other than the property she owns with DNP. 4. At the hearing, DNP suggested various ways in which the debt could be paid including by the liquidators of a family trust, by his brother or from the RAD of $540,000. After some discussion about these options, DNP agreed that the only practical way in which the debt could be paid in the short term would be for him to obtain a loan of $140,000 which he said he could organise within a month. 5. Mr McCarthy, representing the NSW Trustee and Guardian, submitted that DNP has been given a reasonable opportunity to pay the debt and arrange for future fees to be paid, but has not done so. DNP did not disclose his income or assets to the Tribunal and has not made any arrangements for the payment of daily care fees. I am not satisfied that DNP will be able to secure a loan. Given that Ms X's accommodation is at risk and there is no practical short-term alternative to paying her debts, the decision to sell the property is the correct and preferable decision. 6. I am satisfied that it is desirable to make an order prohibiting the disclosure of the name of the applicant or any other person mentioned in these reasons: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 64(1)(a). It is an offence to publish or broadcast the name of any person to whom any proceedings in the Guardianship Division relate: NCAT Act, s 65. Although these proceedings are not in the Guardianship Division, it is desirable to maintain the privacy of people subject to financial management orders.