CM and ors v Protective Commissioner

Court of Appeal (NSW)|2007-11-09

CITATION: CM and ors v Protective Commissioner [2007] NSWADT 287

PARTIES: SECOND APPLICANT CO

RESPONDENT Protective Commissioner

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Guardianship Act 1987

CASES CITED: Protective Commissioner v 'D' & ors [2004] NSWCA 216

In person REPRESENTATION: C Phang, solicitor

ORDERS: The decision of the Protective Commissioner to sell the Granville property by public auction, so that all members of the client's family can compete for the property if they so desire, is affirmed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision. Section 126 provides (1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal, (b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division, (b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983, (b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983 (c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or (b) to whom any proceedings before the Tribunal relate, or (c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of. Maximum penalty: 10 penalty units or imprisonment for 12 months, or both. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION Introduction 1 CX is an 81 year old man with dementia who has been living in nursing home accommodation since April 2005. He has two daughters and two sons. One son, 'CO' and another son 'CM' and his wife 'CN' are the Applicants in this review ('the Applicants'). 2 CX owns a property in Granville NSW ('the Granville property'). Prior to his admission into the nursing home, CX's daughter R had been living with and caring for CX. Following his admission to the nursing home, R had continued to live, rent-free, in the Granville property. Her own neighbouring property is, according to the Applicants, currently tenanted. 3 In June 2005, CX's sons applied to the Guardianship Tribunal for guardianship and financial management orders. The application for guardianship was dismissed and the application for financial management orders adjourned on the basis that R would continue to live in the Granville property and would informally look after CX's finances. R agreed to maintain and pay all outgoings on the property, to pay the shortfall between CX's pension and his nursing home fees and, each three months, to provide to each of her brothers a copy of CX's bank book and an explanation for any depletion in savings. It is common ground between the Applicants and the Protective Commissioner that these conditions were not met. 4 In January 2006, a financial management order was made for CX with the Protective Commissioner being named as the financial manager. 5 Despite the fact he had retained but was no longer living in the Granville property, CX remained eligible for a pension as a 'homeowner' until 14 April 2007. This date signalled the expiry of the two year grace period allowed by Centrelink for the pension not to be assessed on the basis of the value of the Granville property. Had CX been receiving rent for the Granville property, this grace period would, it appears, have extended to five years. The Applicants told the Tribunal that R had been approached to pay rent but had refused to do so. 6 Following the expiry of the two year grace period, CX was assessed by Centrelink as a 'non-homeowner'. Consequently, his pension was substantially reduced with the money in his bank account being used to make up the subsequent shortfall between his income and his expense. By November 2006, $12,095.61 remained in CX's bank account. In June 2005, there had been $26,000 in the account. 7 The Protective Commissioner considered the options of renting or selling the Granville property. R refused to pay rent to remain in the property. On 4 July 2007, the Protective Commissioner made a decision to sell the Granville property. This decision was affirmed by internal review on 21 August 2007 with a clause added that the sale of the property 'is to be completed by public auction so that all members of the client's family can compete for the property, if they so desire.' R has placed a caveat on the property. She has advised the Protective Commissioner that whilst she would not vacate the property to enable it to be leased, she would vacate upon its sale. 8 CM, CN and CO are now seeking a review of the decision by the Protective Commissioner to sell the Granville property. 9 The Tribunal's role is to determine whether the Protective Commissioner's decision is the 'correct and preferable' decision on the basis of all the relevant factual material and the applicable law: section 63 Administrative Decisions Tribunal Act 1997. On what basis should the Protective Commissioner make the decision? 10 Under section 24(1)(a) of the Protected Estates Act 1983, the Protective Commissioner has the power to exercise all functions necessary and incidental to the management and care of the protected person's estate. Those functions include the sale of a person's real property. Section 24(2)(f) of the Protected Estates Act 1983. 11 The Protected Estates Act 1983 does not stipulate any matters which the Protective Commissioner is required to take into account when he exercises his functions under section 24 of the Act. 12 In the Protective Commissioner v 'D' and ors [2004] NSWCA 216, McColl JA (Mason P and Giles JA agreeing) said at 173 that: The manager stands in the shoes of a person who is unable to manage his/her affairs by virtue of circumstances beyond his/her control. The manager exercises a protective and benevolent function, protective in the sense that the manager's task is to ensure the estate is managed in a manner to secure the protected person's estate for that person's continued maintenance. In this respect the 1983 Act and its predecessors reflected the 'parental and protective' jurisdiction historically exercised by the Crown both in exercise of its prerogative and pursuant to the Prerogative Statutes. (my emphasis) Assets, Income and Expenses for CX 13 At the hearing before this Tribunal, the Protective Commissioner called evidence from Mr Peter Facey, who conducted the internal review of this matter, and from Ms Annette Woods, Senior Financial Planner at the Office of the Protective Commissioner. 14 Ms Woods told the Tribunal that since 10 October 2007, there had been insufficient funds in CX's account to meet his expenses. Ms Woods described the situation as critical. Although section 59 of the Protected Estates Act 1983 allows the Protective Commissioner to 'make advances from the trust fund for the purposes of any estate being managed by the Protective Commissioner', it was Ms Woods' view that the Protective Commissioner would be reluctant to do so unless there was some certainty of payback. If the Protective Commissioner were able to sell the Granville property, it would, according to Ms Woods, improve CX's chances of gaining an advance from the Trust Fund in accordance with section 59 of the Act. Without such an advance, CX would be unable to meet his expenses. 15 Ms Woods confirmed that she had prepared the following updated financial statement for CX on 6 November 2007: Assets Granville Property $450,000 OPC Trust Account $385 Income Age Pension $366.13 (Fortnightly payments) $9,519 Expenses Nursing Home fees $17,162 Personal comforts $1,264 Personal clothing $445 Property rates $601 Property insurance $661 OPC fees $4,551 Total expenses $24,684 Total deficit $15,165 pa

16 It is accepted by the Applicants that CX's financial situation means that he cannot meet his expenses, including his accommodation and nursing expenses. 17 While the Protective Commissioner submits that the only way to enable CX to meet his expenses is to sell the Granville property, the applicant has submitted that the property should be leased at market rent, either to R or, if she continues to refuse to pay market rent, to another tenant. The latter option would require R's eviction from the house. 18 The Applicants told the Tribunal that CX would not be in such a dire financial predicament had the Protective Commissioner managed CX's finances properly. The Applicants are of the view that R should have been evicted from the property when it was clear she would not be adhering to the agreement to pay all outgoings for the house and to meet the shortfall between the pension and CX's expenses. Alternatively, the Applicants submit that the Protective Commissioner should have forced R to pay rent, including back rent, for her use of the property. Current options to sell or lease the Granville Property 19 The Protective Commissioner prepared the following document in relation to the feasibility of leasing or selling the Granville property: Income Property Rented Property Sold Rental income $18,200 n/a Investment income N/a $25,800 Pension income $7,840 $6,411 Total income $28,186 $32,211 Expenses Nursing home fees $20,093 $22,334 Personal - comforts & clothes $1,709 $1,709 Property - rates/water /insurance $4,275 n/a /maintenance/ agents fees OPC fees $4,954 $4,730 Total Expenses $31,031 $28,773 Deficit: Surplus: $2,845 $3,438

20 Currently, CX does not have enough money in his trust account to cover his accommodation and nursing fees for November. Findings 21 This is a sad situation. From the evidence provided by the Applicants, which I accept, CX was a man who managed his finances carefully. I can understand the Applicants' distress that CX's savings have been depleted to the extent that he is unable to pay his bills. It is particularly distressing for such a situation to have arisen given the fact that funds could have been generated by the lease of the Granville property. 22 The Applicants have put an enormous amount of work into preparing this matter. I accept that their motivation is to ensure that CX's financial situation is well-managed to enable him to be well-cared for. The Applicants are upset by what they see as the perceived inaction and delays by the Protective Commissioner. They are also upset by the failure of R to honour the agreement made in June 2005 to pay the outgoing for the Granville property and to cover the shortfall between CX's income and his expenses. 23 Whilst I can understand the Applicants' distress, my role today is not to rule on the shortcomings of past actions by either R or the Protective Commissioner but to consider whether the decision of the Protective Commissioner to sell the Granville property is the correct and preferable decision in the light of the evidence before me now. 24 CX has no money in his trust account or, on the evidence, in any other bank account. He is unable to meet any of his expenses, including his accommodation and nursing fees. He needs to be able to meet these expenses. This means, he needs to be able to generate an income to meet his expenses. On the figures provided by the Protective Commissioner, which I accept, the income required to meet CX's expenses can no longer be generated by renting the Granville property. Further, in light of her past actions, it is uncertain that R would meet the shortfall between the CX's income and his expenses. Only by selling the property can a guaranteed income be generated to enable CX to meet his expenses. 25 I accept that the sale of the Granville property may not be straightforward unless R agrees to lift the caveat on the property and to vacate the property once it is sold. However, the sale of the property is the only remaining option to generate the income CX requires for his care. 26 The sale of the Granville property is the correct and preferable decision in this matter, in the sense that it is the only way to ensure CX's estate is managed in a manner to secure it for his continued maintenance and thereby protect his best interests. It is also the correct and preferable decision that the sale of the property proceed by public auction to enable all members of the family to bid for it should that be their wish. Order 27 The decision of the Protective Commissioner to sell the Granville property by public auction, so that all members of the client's family can compete for the property if they so desire, is affirmed.

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.

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