Mr FLC seeks the review of decisions by NSW Trustee and Guardian (NSW Trustee) in respect of the managed estates of his parents, who I shall refer to as "the mother" and "the father" and collectively as "the parents".
The parents' estates are managed under the NSW Trustee and Guardian Act 2009 (TAG Act) by NSW Trustee, pursuant to the orders of the Guardianship Division of this Tribunal made on 1 August 2019.
The parents are permanent residents in separate aged care facilities. NSW Trustee's decisions which are under review were, in summary, to sell the family home and to use the proceeds to pay a part refundable accommodation deposit (RAD) of $110,000 and have the unpaid RAD balance of $100,000 paid as a daily accommodation payment (DAP) drawn down from the part RAD payment.
On 1 August 2019 the Guardianship Division also made guardianship orders for each of the parents, under which the Public Guardian was appointed as the guardian. Relevantly, the Guardianship Division found that each of the mother and the father was in need of a guardian and unable to manage their person, in the mother's case because of a major neurocognitive disorder which makes her heavily dependent on care and support and in the father's case because of a major neurodegenerative disorder which had resulted in his cognitive impairment across several domains, his lack of insight into his own care needs and his inability to continue to meet is wife's high care needs.
There is nothing before me to indicate that there has been or is currently any material improvement in the cognitive ability or the mental health condition generally of either the mother or the father.
The mother is now 82 and the father 85 years of age. The mother is a resident in an aged care facility in Bexley and the father is a resident in a nursing home in North Parramatta. They were moved into those care facilities on or shortly after 19 November 2019 from the home unit which they jointly owned in Lakemba, Sydney (the Lakemba property), which had been the family home. At that time the Public Guardian, as guardian of each of them, reported that the mother's health was seriously deteriorating and that the father was having immense difficulties in caring for the mother at home.
The parents continue to be joint owners the Lakemba property. In March 2020 the Financial Planning Unit of NSW Trustee assessed the financial situation of each of them and indicated that that the Lakemba property needed to be sold to prevent further liabilities accruing, to ensure the parents' continued access to the aged care pension and to repay at least part of their refundable accommodation deposits. The Financial Planning Unit rejected the possibility of renting the Lakemba property because that was not seen as a sustainable way of meeting the parents' growing debts under their mortgage and from strata levies and aged care fees. The Financial Planning Unit's views were not altered by the father's permanent move to the North Parramatta facility in the following month.
The NSW Trustee's decisions which are now under review were those made in reliance upon that assessment by the Financial Planning Unit. NSW Trustee decided that:
1. the Lakemba property be sold;
2. using the net proceeds of that sale, a part RAD payment of $110,000 be paid in respect of each of the parents; and
3. the unpaid RAD balance, being $100,000 for each of them, be paid as a DAP of $13.64 per day and drawn down from the part RAD payment.
Those decisions were included in Statements of Advice to each of the parents dated 25 March 2020. The decisions were based on the NSW Trustee's assessment that:
1. based on their current income and expenses, neither of the parents had sufficient financial assets to fund their estimated recurring cashflow shortfall of $15,000 per annum and also to fund the discharge their existing CBA home loan;
2. leasing the Lakemba property was not an option as the rent would be insufficient to fund their recurring shortfall; and
3. when the exemption on the Lakemba property ceased for Centrelink purposes, that would impact the parents' respective incomes and create a larger shortfall.
The NSW Trustee concluded that in order for each of the parents to fund their ongoing accommodation costs, the Lakemba property needed to be sold, and that a part payment of RAD should be made and the unpaid balance paid as a DAP as set out above. The NSW Trustee decided to act on the basis of those conclusions.
Mr FLC is dissatisfied with those conclusions and decisions. He says that the conclusions and decisions are wrong, that they were made without considering the best interests of each of his parents and that they do not accord with their wishes. He also asserts that NSW Trustee, in administering the protected estates of his parents, has acted in breach of its statutory obligations and in an unlawful manner.
For the reasons which follow, I have concluded that the each of the NSW Trustee's decisions was the correct and preferable decision and that each such decision is affirmed.
[2]
Jurisdiction
I am satisfied that the Tribunal has jurisdiction to hear and determine the Application by operation of section 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and section 70 of the TAG Act.
[3]
The parties' documentation
Mr FLC's documentation comprised firstly a bundle of documents, comprising mainly email exchanges with covering emails of 6 June 2022, 19 July 2022 and 27 January 2023 (the last being sent from someone called "Melissa", apparently on Mr FLC's behalf) and also a separate folder of materials with tabs 1-15 headed "Limited Evidence and Limited Submissions", received at the Registry on 6 February 2023. That folder included 56 pages of written submissions by Mr FLC (Mr FLC's submissions), which I considered in detail. It also contained documentation comprising correspondence, previous Tribunal orders, photos; screenshots of complaints by various parties about NSW Trustee's operations and services and a USB stick.
The USB stick contained:
1. a video of Mr FLC's brother engaging in a martial arts training bout;
2. a short video of approximately 3 minutes (which I have referred to below as "the father's statement") of an elderly gentleman, who identified by Mr FLC as his father, speaking in what I understand to be the Greek language and answering questions put to him (again in Greek) by a person who I understand to be Mr FLC;
3. a transcript of that video, in English. The translator is not identified and the transcript is not otherwise verified; and
4. what purports to be a printout of Volumes 1 to 4C of the Final Report of the Royal Commission into Aged Care Quality and Safety, which is usually known as "the Aged Care Royal Commission" (Final Report) comprising 2,672 pages.
I viewed the videos described at (1) and (2) and considered the transcript of video being item (3). As to the Final Report, because there was no indication as to the importance of or the emphasis to be given to any section of it and Mr FLC's submissions did not explain the relevance of the Final Report nor draw my attention to any particular part of it or extract from it and as I am in any case aware of the major recommendations of the Final Report, I did not read the 2,672 pages submitted.
NSW Trustee's documentation consisted of:
1. written submissions received on 18 August 2022; and
2. a folder of documents (the s 58 documents).produced in accordance with section 58 of the ADR Act .
Except as noted above as to the Final Report of the Aged Care Royal Commission, I considered all the documentation made available.
[4]
Mr FLC's case and his Grounds
Mr FLC devoted 56 pages of his submissions to describing his case. I have done my best to distil particular grounds from those submissions. That has not been easy. Many of Mr FLC's assertions are expressed in convoluted, hyperbolic and sometimes bellicose language, some stray from the point and appear to address different issues to those initially addressed and issues which are not pertinent to the case before the Tribunal. In considering and determining such an application the Tribunal's role is not to conduct a general inquisition into the actions, practices or competence of the decision-maker..
Nevertheless, I have done my best to identify from Mr FLC's submissions discrete grounds (Grounds) upon which he seeks the setting aside or variation of NSW Trustee's decisions under review.
Mr FLC's Grounds appear to be these:
1. NSW Trustee has failed to obtain the views of either the mother or the father as to the proposal for the sale of the Lakemba property and the proposed adjustments and treatment of the RAD and DAP applicable to the parents.
2. There was no adequate or proper assessment of the parents' assets and in particular the valuation made of the Lakemba property is unreliable.
3. The sale of the Lakemba property is commercially inappropriate because market conditions do not support a sale.
4. NSW Trustee has failed to file all relevant documents and so has failed to comply with its obligations under section 58 of the ADR Act.
5. NSW Trustee has failed in its duty to preserve the protected estates of the parents, in particular because NSW Trustee took no steps to rent the property after the parents were admitted to care facilities.
6. The appointment of NSW Trustee and thereby all its decisions are in any case invalid because each of the parents signed a form of "general power of attorney" appointing Mr FLC as attorney on 16 November 2018.
7. NSW Trustee has failed to fulfil its statutory role and generally acted dishonestly, with malice, in a misleading and deceptive way, in breach of trust, has engaged in unconscionable conduct, misconduct, mismanagement and has caused the parents, as protected persons, loss and damage and has failed to mitigate their losses.
[5]
NSW Trustee's case
NSW Trustee's case is simply put. It is that its decision accords with and was made in accordance with the advice of qualified and experienced financial planners from its Financial Planning Team to the effect that neither the mother nor the father can meet their expenses with their current assets and that the Lakemba property needed to be sold to prevent further liabilities accruing, to ensure the parents' continued access to the aged care pension and to repay at least part of their refundable accommodation deposits. The Lakemba property should not be rented out, because that is not a sustainable way of meeting the parents' substantial and growing debts under their mortgage and from strata levies and aged care fees.
NSW Trustee says that its decision is the correct and preferable one.
[6]
The section 39 principles
Section 39 of the TAG Act is in the following terms:
39 General principles applicable to Chapter
It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles--
(a) the welfare and interests of such persons should be given paramount consideration,
(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,
(c) such persons should be encouraged, as far as possible, to live a normal life in the community,
(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,
(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
(g) such persons should be protected from neglect, abuse and exploitation.
Each of the parents is and was at all relevant times a protected person for the purposes of the section.
Principles as to the application of the section 39 principles emerge from the cases, including WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22 (WL) and most recently FNL v NSW Trustee and Guardian [ 2023] NSWCATAD 46. The other relevant authorities are ZWA v ZWB [2022] NSWCATAP 113 at [51]- [55], DYH v Public Guardian [2021] NSWCATAD 136 (DYH) and DCA v Public Guardian [2017] NSWCATAD 364 at [56], each of which involved application of the principles set out in section 4 of the Guardianship Act, which are in almost identical terms to and otherwise analogous with those in section 39.
The following of those principles are relevant here.
1. A decision-maker is bound to observe any relevant principle in the section: WL at [75]
2. The principles in section 39, in common with those in section 4 of the Guardianship Act, are not stated in absolute terms. Phrases within the statement of principles such as "as little as possible" and "as far as possible" make it clear that where a discretion exists the decision-maker is not bound to make a particular decision: WL at [76].
3. The section only requires that the decision-maker "observe" the principles. Satisfaction or observance of a particular section 39 principle does not automatically produce a particular decision: WL at [76], DYH at [82].
4. Nor does it follow from observance of a particular principle that a particular decision is the only possible correct decision: DYH at [82].
5. Any decision reached on the basis of the application of any one or more of the principles in paragraphs (b) to (g) of the section cannot be considered as the correct decision unless it satisfies what was colourfully described in DYH as "the final filter" of paragraph (a). As was said in that decision at [84]:
It cannot be the correct decision unless it is made as the result of the decision-maker having given paramount consideration to the welfare and interests of the person..
[7]
The central issue
The central question is whether each of NSW Trustee's decisions is the correct and preferable one. In this context a decision will be correct if it reflects a proper application of the law and in particular of the section 39 principles to the facts; that is, to the factual findings I have made based on the material before me, which is described at [14]- [17] above.
[8]
Findings of fact
I make the following findings of fact:
1. The assets and liabilities of the father and the mother as stated in NSW Trustee's Statement of Advice were properly calculated and properly relied upon.
2. Based on their income and expenses, neither of the parents have sufficient financial assets to fund their estimated recurring cashflow shortfall of $15,000 per annum and also to fund the discharge their existing CBA home loan.
3. Leasing the Lakemba property is not an option as the rent would be insufficient to fund the recurring shortfall.
4. When the exemption on the Lakemba property ceases for Centrelink purposes, that will impact the respective incomes of the parents and create a larger shortfall.
5. There is no evidence of any substantial material increase in the net assets, the RAD balance or the DAP balance of either the father or the mother.
6. The valuation of the Lakemba property made at the time of the decisions under review, although it apparently did not involve an internal inspection of the property, could reasonably be relied upon by NSW Trustee for the purpose making the decisions under review.
7. There is no evidence that the value of the Lakemba property has materially diminished since the date of that valuation so as to affect the validity of NSW Trustee's recommendation that the property be sold.
8. There is nothing before me to suggest other than that the benefits of the NSW Trustee's recommendations to each of the father and the mother continue to apply; namely that upon implementation of the recommendations:
1. each of the father and the mother will be eligible for the maximum available Centrelink pension;
2. each of them will have sufficient funds to meet their ongoing cashflow shortfall;
3. neither of them will be asked to pay the means tested care fee; and
4. depletion is not a concern.
I find accordingly.
1. Any decision to implement the NSW Trustee's recommendations would promote and preserve the welfare and interests of both the father and the mother.
2. The protection of the parents from neglect, abuse and exploitation and the minimisation of any restrictions on their freedom of decision and freedom of action will be furthered by implementing NSW Trustee's recommendations.
[9]
Mr FLC's Grounds
In light of those findings I turn to deal with Mr FLC's Grounds, using the numbering of them adopted at [21] above.
[10]
Ground 1 (Failure to obtain the views of the parents)
The principle that the views of the person under management should be taken into account is but one of the elements of the principles in section 39. It is not a "compulsory" factor, for the simple reason that in many cases it will not be possible to obtain that person's views.
This appears to be such a case, given the diagnosed disabilities of the father and the mother established to the satisfaction of the Guardianship Division, as outlined at [3] above. In short, the father is reported to have a major neurodegenerative disorder and lack of insight and the mother to have a major neurocognitive disorder.
In light of their very limited cognitive capability at relevant times, it would have been and would continue to be difficult or impossible for NSW Trustee to obtain their views at all on the relevant issues. Neither parent expressed a current view. There is nothing before me to indicate that there has been any material improvement whatsoever in the cognitive capability of the father or the mother.
I give very little weight to the video evidence produced by Mr FLC as to his father's views, referred to at 13 above, firstly because it does not appear to include any views of the father as to the specific proposal being the sale of the Lakemba property and the proposed treatment of the RAD and DAPs, secondly because there is no proper verification of the translation of what the father is saying, and thirdly because it has not been established that the father's views as recorded are his current views. Additionally the few expressions by the father of his views are given by way of responses to "leading" questions put by Mr FLC; that is, the expected answer to each question is implicit in the way the question itself is put.
The Ground is not made out.
[11]
Ground 2: (Valuation of the parents' assets)
I find that the assessment of the value of the Lakemba property was, in all the circumstances, reliable and that the valuation has not been demonstrated to have been unreasonable or substantially mistaken. I have found that the valuation could reasonably be relied upon, the overall assessment having been made by the members of the Financial Planning Unit with appropriate experience of such matters.
This Ground is not made out.
[12]
Ground 3: (Sale of property commercially inappropriate).
This Ground is also not made out. The Lakemba property appears to have been the largest asset in the estate of the managed persons and "waiting on the market" (that is, delaying the sale until the market value increased) would deprive the protected persons of the benefits to be derived from the Financial Planning Unit's proposal and so could not be in their best interests. There was no evidence before me of the current value of the Lakemba property.
[13]
Ground 4: (Failure to comply with section 58 requirements).
Mr FLC has not specified or otherwise provided a description of the documents which have not been produced or the matters which they cover. Paragraph 58 (1)(b) limits the obligation of the administrator (here, NSW Trustee) to provide:
..every document or part of a document that the administrator considers to be relevant to the determination of the application by the Tribunal.
(Emphasis added)
I am satisfied that NSW Trustee has complied with the section. This Ground is not made out.
[14]
Ground 5:(Failure in duty to preserve the estates).
As my findings indicate, I have concluded that this assertion is not made out. This Ground also fails.
[15]
Ground 6: (NSW Trustee's actions invalid because of existence of a power of attorney).
This ground is of no substance and fails.
I doubt whether the document produced by Mr FLC purporting to be a "power of attorney" from each of his parents is in fact valid as a power of attorney. But even if I am mistaken as to that, section 50 (3) of the Powers of Attorney Act (NSW) provides that the effect of any power of attorney is suspended while the estate of the principal (here, each of the father and the mother) is a "managed estate". That term is defined in section 50 (1) to mean an estate subject to management under the TAG Act. The estates of both the father and the mother were subject to management under that Act at all relevant times including in particular at the time the decisions under review were made.
[16]
Ground 7: (General failure of duty by NSW Trustee, dishonesty, malice misleading and deceptive behaviour and damages).
This ground also must fail.
Even if any of Mr FLC's broad-ranging salvo of accusations and complaints were found to be of any substance, nothing in them goes to the issue presently before the Tribunal; namely, whether the decisions under review here were or were not the correct and preferable ones. The focus of the Tribunal's attention is particular decisions by the NSW Trustee, not the manner on which NSW Trustee has acted, or any course of conduct which NSW Trustee or its officers are alleged to have undertaken. Any nexus between this set of accusations and assertions and the issues for determination in these proceedings is simply not established.
[17]
Conclusions
I conclude that in the circumstances of the case the mother's and the father's welfare and interests are protected and preserved, and such of the other section 39 principles as are relevant are observed, by the sale of the Lakemba property, by making a part RAD payment of $110,000 in respect of each parent and by paying the unpaid RAD balance as a daily accommodation payment of $13.64 per day drawn down from the part refundable accommodation deposit payment.
It follows that each of the decisions under review is the correct and preferable decision and should be affirmed.
[18]
Order
Each of the decisions under review is affirmed.
[19]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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: 30 May 2023