Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: FX v NSW Trustee and Guardian [2013] NSWADTAP 19
• Hearing dates: 14 December 2012
• Decision date: 26 April 2013
• Jurisdiction: Appeal Panel - Internal
• Before: Judge K P O'Connor, President; S Montgomery, Judicial Member; B Field, Non-judicial Member

Decision

Appeal Dismissed

• Catchwords: PROTECTED PERSONS - Application by son who was former carer for review of decisions of NSW Trustee as appointed financial manager; and the Public Guardian as appointed guardian - Tribunal affirmed decisions - Appeal - Tribunal's reasons adequate - Procedure fair - Restricted access appropriate - Updated financial statement considered - Sale of home appropriate - Appeal dismissed
• Legislation Cited: Administrative Decisions Tribunal Act 1997
• Cases Cited: FX v NSW Trustee and Guardian [2012] NSWADT 184
• Category: Principal judgment
• Parties: FX (Appellant); NSW Trustee and Guardian (Respondent)
• Representation: In person (Applicant); Mr D French (Respondent)
• File Number(s): 129033

Decision under appeal

• Citation: FX v NSW Trustee and Guardian [2012] NSWADT 184
• Date of Decision: 2012-09-05 00:00:00
• Before: General Division
• File Number(s): 123022 and 123121

reasons for decision

1 Persons with an interest in the welfare of protected persons may apply to this Tribunal for review of administrative decisions affecting those persons made by the NSW Trustee and Guardian where that office has been appointed financial manager or guardian by the Guardianship Tribunal.

2 The appellant, FX, is the son of a protected person, FW. He applied to the Tribunal for review of two decisions, one relating to access to her, the other relating to a decision to sell her home to fund her care needs. The Tribunal upheld the decisions. He now appeals.

Background

3 FW is an elderly woman who has moderate to severe dementia, and other ailments. She was first diagnosed in 1994, and from 1994-2010 she lived at home, with FX as her carer. She first went into an aged care facility on 1 August 2010, on a respite basis. This arrangement ended on 11 November 2010 when FX removed her and took her home, without the knowledge of the care facility.

4 At the time there was an application for a guardianship order before the Guardianship Tribunal initiated by FX's sister, from whom it is said that he is estranged. On 16 November 2010 the Guardianship Tribunal made a temporary order vesting responsibility for her accommodation and related functions in the Public Guardian. The order was extended for six weeks on 14 December 2010, and was extended for a further 12 months on 19 January 2011. It included an additional function allowing the Public Guardian to 'decide what access [FW] has to others and the conditions of access'.

5 In February 2011 the Public Guardian decided to relocate her to a more suitable high care facility located in another town, about 120 km away from the first town, about 50 kms away in the other direction from her home town.

6 The Public Guardian was also given authority under a later order of the Guardianship Tribunal to regulate access to FW.

7 In the case of her financial affairs, they had been subject to a Guardianship Tribunal order since 2001, with responsibility for their management vested in the NSW Trustee.

8 The decisions that FX challenges are:

• To sell FW's home (decision confirmed on internal review by the NSW Trustee on 18 November 2011)
• To confine FX's contact with his mother in these terms: 'The Public Guardian consents to [FX] visiting [FW] within the grounds of the [aged care facility] only. Visits should occur within a communal area of the facility, such as the lounge or dining room, in order to promote [FW's] well being.' (14 February 2012).

9 The Tribunal affirmed the decisions: FX v NSW Trustee and Guardian [2012] NSWADT 184 (5 September 2012). FX lodged an appeal. It was heard on 14 December 2012.

10 The Appeal Panel advised the parties at the conclusion of the hearing that it regarded the submissions on the access decision as completed, but it directed the respondent, the NSW Trustee, to file an up-to-date financial statement, taking note of the matters raised at the hearing, by 11 January 2013. It gave the appellant a further 14 days to file and serve a reply, i.e. by 25 January 2013. There are letters on file from FX dated 26 January 2013 and 15 March 2013, in effect, seeking a delay, while a solicitors' report, responding as we understand it to the financial statement, is filed.

11 We are not disposed to wait any longer to finalise this matter.

Appeal Right

12 An appeal against a decision of the Tribunal in relation to a reviewable decision may be made 'on any question of law' and may, with the leave of the Appeal Panel, 'extend to a review of the merits of the appealable decision': Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2).

Appellant's Case

13 In his notice of appeal, and submissions made at hearing, FX criticised various aspects of the procedure followed by the Tribunal, he considered that he should have had an opportunity to file a medical report (going to the access issue, and the impact or otherwise of a more generous access arrangement), and a reply to the financial case made for the sale of the mother's home. FX has lived at his mother's home for many years, in particular when he provided care directly to his mother. He lives there now under an arrangement where he pays rent.

14 The respondent's reply is that no questions of law are raised, and that FX had ample opportunity to call such witnesses and place such evidence as he saw fit before the Tribunal, both in relation to the access issue and the sale issue.

Limitation on Access to Mother

15 Tribunal's Reasons: The Tribunal summarised the Public Guardian's reasons for imposing on FX the present restrictive access condition: see [38]-[40] of its reasons. It set out FX's case for a more liberal arrangement at [41]-[52]. It gave its assessment of what it saw to be in his mother's best interests in the circumstances at [78]-[87]. We will not recount all that material here.

16 Process: The Tribunal dealt with this and the decision-to-sell disputes in the one proceeding, the main hearing day being 14 August 2012.

17 The Tribunal listed at [28] the body of material it had before it on both issues. The material comprised the documents filed by the Public Guardian in pursuance of the administrator's obligation to file all relevant material with the Tribunal (ADT Act, s 58) and the documents filed by FX. The Tribunal considered a number of FX's documents to be of limited or no relevance: see further [27].

18 A wide body of material was considered. The access decision was a concomitant of the wider assessments provided to the Public Guardian to the best way to manage FW's care needs. The Tribunal had before it relevant medical opinions, including from geriatricians who had dealt with FW. The Tribunal also had three incident reports from employees of the care facility going to FX's conduct.

19 FX considers that a medical report he had, from a Dr Thoo dated 21 January 2011, which includes the statement 'It is not unheard of that this person could not be cared for in the community but it would take a dedicated carer' should have been given more weight and preferred. This report is listed by the Tribunal at [28] as one of the items before it. It did not refer to it further. There is no requirement that each piece of information be analysed and commented upon. In our view it is apparent that the Tribunal's decision is consistent with the overall body of health professionals' evidence that was before it, especially the opinions of the principal professionals.

20 Assessment: In its assessment, the Tribunal referred to the degree of the immediate need for care that FW required, noting the ways in which her mental and physical health was deteriorating. These matters were incompatible with her being cared for from home, as FX has continued to press since her removal to that facility. In our view the matters recounted by the Tribunal at [80] of its decision are compelling. The Tribunal referred to FX's inability to see the obviousness of that in these terms, at [81]:

The reality is that FX cannot or will not see the extent of his mother's disability. He does not, or will not, truly understand the nature and severity of FW's condition. He demonstrates a lack of insight into her disability and needs. His documented history of threats to remove her from care facilities and his persistent attempt to cajole her and those caring for her into agreeing with his view illustrates this.

21 It is unusual, of course, for the loved ones of a person in care to have any formal access conditions imposed on them. Care institutions ordinarily allow access at suitable times, and, if the person in care is sufficiently able in those regards, do not hinder social outings and home visits away from the institution. The condition imposed in this case is very strict. The Tribunal was satisfied that it was guided by two considerations: the best interests of FW; and the related need to keep FX under a degree of surveillance. The Tribunal put it this way at [85]:

Requiring FX to interact with FW in an environment where they can be observed creates a situation in which FW can be protected from being overborne by FX. This will enhance her freedom of decision and freedom of action. At the same time the requirement should prove an active disincentive towards FX removing FW from care, as he has threatened to do on a number of occasions.

22 The Tribunal had regard to the relevant law and relevant considerations.In our view, the Tribunal's decision, and accordingly the Public Guardian's decision to impose the condition, should be left in place.

23 At this point there is no new evidence or fresh consideration that would justify a departure from their conclusions.

24 The Public Guardian can keep under notice FX's conduct, and take advice from the health care facility. It may be that over time there will be increased confidence in trusting FX to be alone with his mother, and to behave in a way that is not seen as damaging to her emotional and mental stability and not putting her physical care needs at undue risk.

Decision to Sell the Mother's Home

25 The basic asset position is that FW owns the home in which she lived, while she and FX each have a 50% interest in the family farm. FX has pressed the view throughout his dispute with the NSW Trustee that there are sources of income (including from the farm's income) sufficient to maintain FW's funds in a state that avoids the need to sell the farm.

26 As in the instance of its review of the access decision, the Tribunal had regard to a wide range of material, listed at [28], including material presented by FX. The Tribunal recorded in its reasons his account of her wishes: see, for example, [72]-[73].

27 The level of FX's involvement in the farm, and the intensity of the farming operation is unclear. The Tribunal noted at [30] that the business is conducted in FW's name only. FX told the Tribunal that the property is share farmed for crops (although the share farmer had quit) and that FX runs stock on it for his mother. Further, the Tribunal recorded that his lucerne crop is used for stock food and he does not charge. The Tribunal returned to this subject at [55]-[58], and expressed concerns over FX's evidence, and over the lack of any formalised arrangements as to the running of the farm, and the handling of income.

28 FX's alternative approach as presented to the Tribunal proceeded on the basis that there would be a care plan that allowed his mother to return to home, with him being the carer. On his submission this would reduce expenditure substantially, and there would be enough in the fund supplemented by income from the farm to manage without having to sell the home.

29 At the appeal hearing, we concluded that it would be helpful to have a more up-to-date financial statement.

30 The updated financial statement (filed 11 January 2013) is as follows: trust account, $17,907.91; investment, Australian Cash, $19,258.22. FW is now 83 years old with a life expectancy of 8 years. The home is valued at $50,000. The 50% share in the farm is valued at $222,500. The statement notes that since 10/01/2008 there has only been one payment to her from the income of the farm, $6,236, from FX. On the other hand since that date FW has paid $6,062 on insurance payments for the farm. FW has a Centrelink pension, since July 2012, and has received in the six months since, a total of $7,552.89. The material referred to the way Centrelink administers its assets test criteria, and estimated that as from 11/1/2013 (two years after vacation of residence) she will have the home's asset value added for benefit assessment purposes, and benefit is likely to decline by $1.50 per fortnight for every $1,000 of asset value. On the material presented, we interpret that to mean a reduction of about $75 per fortnight. Her ongoing expenditure is $38,641. The cash short-fall was estimated at $23,175. The statement attributed zero value to the income stream from the farm, given its unreliability.

31 The statement concluded:

Based upon the above information ... the client will have no cash available to meet budget expenses within 1 year 8 months.

No provision has been made for any one off unexpected expenses which if incurred will accelerate the depletion of the client's cash and necessitate the sale of other assets.

32 The figures before the Tribunal had been similar, the difference now being that the liquid funds had decreased.

33 In this instance we do not see any need to refer at length to the Tribunal's reasoning.

34 It is plain that something needs to be done to bolster access to funds for FW's immediate care needs.

35 This is most easily achieved by selling the home to which there is no likely prospect that she can ever return. A much greater fund would be generated if the farm was sold, but that would require FX's co-operation. There is nothing in the material recounted by the Tribunal to suggest that co-operation of that kind might be forthcoming. The Tribunal noted that FX had a property of his own in a larger town, and said that if FW's home is sold, 'FX will not be homeless'. It went on to note in any event that the guiding consideration in this matter was the best interests of his mother. See [75].

36 As noted we gave directions to FX to respond to the financial statement within 14 days. Nothing has eventuated, other than the two communications referring to an alternative report from solicitors.

37 The new material does not cause us to doubt in any way the persuasiveness of the Tribunal's decision.

38 We dismiss FX's appeal.

Order

Appeal dismissed.

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Decision last updated: 26 April 2013