GTC v NSW Trustee and Guardian and GWH and GXF [2025] NSWCATAD 174

1. The Respondents submitted that the First Respondent made the correct and preferable decision in the circumstances, and that their decision to sell the Property should be affirmed by the Tribunal, for the reasons briefly outlined as follows:

(a) The Protected Person has been suffering from moderate dementia and psychosis for a number of years, such being confirmed by medical professionals in 2021 and as recently as May 2025;

(b) The Protected Person has been living with the Applicant for some years, and is unable to live independently;

(c) The Property remains uninhabited, has been locked up and its condition has observably deteriorated since September 2024;

(d) The Property was occupied rent free by the Protected Person's grandson for 2-3 years after she moved in with the Applicant, and the First Respondent was obligated by law to report the change in residency of the Protected Person to Centrelink, once this was discovered; and

(e) The First Respondent obtained a Statement of Advice assessing the Protected Person's financial position and needs, and noted that the recommendation to sell the Property based on the Protected Person's liquidity and cashflow shortfall problems, predated the Centrelink debt.

1. The First Respondent submitted that they complied with the full suite of their obligations pursuant to the Act, and that the Property must be sold in order to fund the Protected Person's needs and clear her debts.
2. The Respondents submitted that they believe the Property has been unoccupied since September 2024, and has not been occupied by the Protected Person since a few years prior.
3. The First Respondent submitted that the Protected Person was not medically fit enough to provide meaningful input into the decision, and that her family had been given the opportunity to provide their views on the proposed sale.
4. The Respondent called the Protected Person's grandson M to give oral evidence under oath, who spoke to his belief that the Property remains vacant. He asserted that he lives less than 100 metres from the Property and walks past it regularly, and has taken photographs and knocked on the door occasionally, and is of the belief that neither the Protected Person nor anyone else is currently residing in the Property.

1. The provision relied on by the First Respondent, in forming the decision to sell the Property, was that they had given adequate consideration to s 39 of the Act in deciding that the sale of the Property was necessary to meet and reduce the expenses, satisfy the liabilities, and finance the ongoing care and support needs of the Protected Person.
2. The Tribunal must apply the principles set out in s 39 of the Act and then determine whether the decision to sell the Property is the correct and preferable decision. This task necessitates deciding "what is now the correct and preferable decision on the material before us, not what might have been the correct and preferable decision at some earlier point in time" per NSW Trustee and Guardian v FYV [2024] NSWCATAP 243 at [93].

1. A number of peripheral issues were raised during the hearing which fall outside the scope of this decision, but are important to briefly address.
2. The parties substantially agree that the Protected Person has a Centrelink debt exceeding $80,000. The Applicant believes that this was caused by the First Respondent's mismanagement, and submitted that Centrelink had advised her that no interest would be charged nor would the debt be pursued before October 2025, or possibly until after the death of the Protected Person. The Applicant was unable to provide any evidence or material substantiating these alleged discussions or promises, and the First Respondent considered that they were unable to act in reliance thereon.
3. In any event, the recommendation to sell the Property is based on the financial situation of the Protected Person prior to incursion of the Centrelink debt, so the point is potentially moot.
4. The Applicant's submissions that the Protected Person was entitled to a Portuguese pension in the amount of $30,000 were not substantiated by any documentation. In the Tribunal's decision dated 22 April 2021 [2020/00187945] appointing the First Respondent as financial manager of the Protected Person, it was noted at [25] that the family had delayed in applying for such pension. The parties' submissions in these proceedings contained a file note showing that enquiries had been made regarding such pension, with the result noted that "Client is Not entitled to a Portuguese Pension." In the absence of any further evidence, no weight can reasonably be given to this alleged entitlement.
5. The Applicant has asserted that the First Respondent has mismanaged the Protected Person's financial affairs, however this issue is beyond the scope of these proceedings. The Applicant has separately filed an application with the Tribunal to remove the First Respondent as the financial manager of the Protected Person, in favour of the Applicant's son-in-law. That matter is scheduled to be heard in September 2025, and has no relevance to this one.

What is the Protected Person's current financial status?

1. The records submitted by the First Respondent indicate that the Protected Person currently has liabilities of (i) council arrears of $8,827.22 (ii) pharmacy arrears of $768.09 (iii) water arrears of $1,218.69 (iv) trustee fee arrears of $11,815.37; and (v) Centrelink debt of $81,253.95.
2. There is potentially a further liability in the form of an alleged loan of $28,000 outstanding to the Protected Person's granddaughter in respect of funeral expenses incurred in 2016, although no documentation has ever been provided to the First Respondent or the Tribunal in respect of such loan. In the Tribunal's decision dated 22 April 2021 [2020/00187945] appointing the First Respondent as financial manager of the Protected Person, it was noted at [32-33] that a caveat was placed on the Property on 27 August 2020 in respect of this alleged loan.
3. The records submitted by the First Respondent indicate that the current assets of the Protected Person are less than a thousand dollars in a bank account, and otherwise only the Property which is unencumbered and estimated to be worth up to $1.75 million. The ongoing expenses for the Property include insurance, council rates and utilities which amount to an additional $6,000-7,000 per year, and this does not account for additional property maintenance costs which may arise. No rental income has been earned during the vacancy (nor during any alleged occupancy) of the Property.
4. If the Property were to be rented out at the projected $650 per week, even if no work were required to bring the Property up to a leasable standard, the net income would not generate sufficient funds to cover the Protected Person's ongoing accommodation, care and medical expenses, nor would it assist in reducing her debts.
5. I accept the findings of the Financial Planning unit of the First Respondent dated 22 March 2022, that leasing out the Property is not a viable option, even if it were found to be in a fit condition immediately and even if it obtained above market rent.
6. Even with receipt of a pension, and no Centrelink debt, her income was calculated to be, and remains, well short of the amount needed to service her expenses in the Statement of Advice previously obtained in March 2022. The Applicant noted that an updated Statement of Advice has not been procured for these proceedings, however, it is clear that the Protected Person's financial situation has significantly worsened since that advice, and will continue to deteriorate as her liabilities continue to accrue, without any income to offset them.
7. In the Tribunal's decision dated 22 April 2021 [2020/00187945] appointing the First Respondent as financial manager of the Protected Person, it was noted at [21] that there were already significant arrears ($5,244 as at December 2020) in council rates, with no payment plan in place, whilst interest charges continued to accumulate on the debt. The lack of rigorous and considered financial management by the family, together with the difficulties resulting from serious rifts within the family, were instrumental in the appointment of the First Respondent at that time.
8. The Applicant has offered no submissions or evidence with respect to a viable alternative financial management plan, if the Property is not sold, to secure adequate income to address the Protected Person's current day-to-day needs and reduce or eliminate her substantial debts.
9. The Applicant has asserted that the Protected Person's current health, capacity and mobility are far greater than as understood by the First Respondent, and that there will be time in the future to sell the Property if her health should deteriorate. Realistically, taking into account her age and existing medical diagnoses, together with the fact that the potential for a sudden downturn in health is increasingly likely for a person aged 95 years old, it cannot be argued that it is in her best interests to stay in the Property with no formal care arrangements in place, and no ability to pay her debts and meet her ongoing expenses.

Is the sale of the Property the correct and preferable decision, for protecting the Protected Person's financial position and future, taking into account s 39 of the Act?

1. Section 39(a) of the Act requires the welfare and interests of the Protected Person to be given paramount consideration. To this end, it is of paramount importance that the Protected Person access sufficient funding to cover her accommodation, her care and her medical expenses, all of which are vital to her day-to-day survival.
2. The importance of seeking the views of the Protected Person pursuant to s 39(d) of the Act is acknowledged, however the material submitted to the Tribunal supports a finding, on balance, that the Protected Person does not have sufficient capacity to contribute to this decision. Evidence from medical professionals from the time the First Respondent was appointed in 2021, and again from the medical professionals who treated the Protected Person for a recent infection, all support a finding that the Protected Person suffers from, at least, moderate dementia and psychosis. In the Tribunal's decision dated 22 April 2021 [2020/00187945] appointing the First Respondent as financial manager of the Protected Person, it was noted at [18] that the Tribunal could not obtain her views as her capacity to participate was impacted by her dementia.
3. In that decision, it was noted at [14] that the Protected Person suffered from paranoid delusions and hallucinations. It was further noted that these had begun some years earlier, but had worsened after the Protected Person's husband died in October 2016. At [15] it was noted that her memory had suffered a marked decline, and she suffered a general cognitive and functional decline. At [49] it was noted that the medical professionals had submitted that she lacked the capacity to make decisions about financial matters, and that this was acknowledged and not contested by the family members who had participated in the hearing.
4. No medical professional assessment or other evidence has been adduced by the Applicant to support her vehement assertions that the Protected Person no longer has incapacity issues, and is perfectly capable of making decisions. It is highly unlikely that the serious medical conditions the Protected Person suffered from as a 91 year old, would be significantly or radically improved or resolved four years later. Accordingly, I find that the Protected Person does not have the capacity to participate in this decision and provide her views on the sale of the Property.
5. The material and submissions provided to the Tribunal, by both parties indicates that the Protected Person has a devoted family who participate actively in her care. The decision to sell or not sell the Property would not have any bearing on this, and I consider the obligations pursuant to s 39(e) satisfied accordingly.
6. The proposal to sell the Property should assist in ensuring the principles espoused in sections 39(f) and 39(g) of the Act, are able to be met, by ensuring the Protected Person has sufficient financial means for her needs to be fully and appropriately met.
7. Given the above, I find that the only viable option to resolve the Protected Person's current financial issues and secure her financial future, is to sell the Property.
8. I accept that it may not be what the Protected Person would prefer, and it is certainly not what the Applicant and her branch of the family want. However, on the evidence before me, I am satisfied that the financial imperatives and the paramount consideration of ensuring the Protected Person has the funds to be properly cared for in her remaining years, must take precedence.
9. As per LK v NSW Trustee and Guardian [2009] NSWADT 224 at [35], the Tribunal can be sympathetic to the Protected Person's views, whilst not holding them to be determinative.

1. In determining whether or not to sell the Property, one of the factors informing the decision was the First Respondent's belief that the Protected Person was no longer residing in the Property.
2. The parties and their witnesses gave directly and vehemently opposing evidence in this respect.
3. The Applicant asserts that they changed the locks again after the First Respondent changed them in September 2024, and that the Protected Person moved back into the Property in December 2024 and has resided there since, with the support of her grandchildren.
4. The Applicant was unable to produce any photographs or utility bills or any other material to substantiate this assertion. However, the Applicant's witnesses (T and B) gave evidence under oath that they had regularly visited the Protected Person at the Property and believed her to be living there.
5. The First Respondent submitted photographs together with evidence of locked gates and dilapidation in the external parts of the Property. The Respondents submitted that the Protected Person had been living with the Applicant for some years and that she continues to do so.
6. The First Respondent submitted emails and text messages indicating that, despite the Applicant's claim, the Protected Person's grandson (K) may have never resided in the Property, rent-free or otherwise, and that this was a ruse to prevent the sale of the Property which has in fact sat empty for several years.
7. The First Respondent asserts that the evidence of the state of the Property supports the reasonable conclusion that the Property remains uninhabited. The witness (M) who was called by the Respondents, and is the Protected Person's grandson, lives nearby and confirmed his belief that the Property is unoccupied.
8. On balance, the evidence of the Respondents and their witness, when considered through the prism of the significant existing medical diagnoses, suggests that the Protected Person does not have the capacity to live alone, and probably does not currently reside at the Property. However, given the conclusion drawn in paragraph 60 above, it will not be necessary to reach a concluded view on this matter. The Protected Person's financial situation is untenable and will continue to deteriorate without the sale of the Property, regardless of whether she is currently residing there or not.
9. I am therefore satisfied that it is in the Protected Person's best interests that the sale of the Property proceed and therefore affirm the decision under review.

(1) The Trustee's decision to sell the subject property is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

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.