P45/2004
JUDGMENT
1 On 1 October 2004 the Guardianship Tribunal made orders that the estate of the plaintiff (JM) be subject to management under the Protected Estates Act 1983 and committed the management of it to the Protective Commissioner. That order is subject to review within eighteen months.
2 JM appeals against the orders. Under the Guardianship Act 1987 there is an appeal as of right on a question of law. There is an appeal by leave on a question of fact. Insofar as the grounds of appeal raise questions of fact, leave is sought. The Attorney-General provided assistance by briefing counsel to appear as amicus. This was of considerable assistance to the court.
3 The evidence before me included the reasons for decision of the Tribunal, and the written material before the Tribunal, but not the transcript record of the proceedings including any oral evidence. An interim management order had been made on 9 September 2004, but nothing really turns on that.
4 JM was born in 1962. His father died in 1963. He lived with his mother until her death in June 2003. From 1974 on they lived in a rented flat in Hunters Hill. JM still lives there.
5 JM studied law and graduated in Law from the University of Sydney in 1983. He was admitted as a solicitor in 1986 and obtained a masters' degree in 1992. He has suffered from chronic fatigue syndrome since 1987 and from 1987 until 1992 he spent most of his time in bed. He has improved a little, but he still spends far more time than normal in bed and he has some other health problems. He has never worked. His mother supported him during her lifetime. In 2001 he was granted a carer's pension. His mother owned a property at Annangrove said to be worth about $800,000 and it appears that her ownership of this property eventually led to cancellation of her pension. After the death of his mother, JM obtained a disability support pension. This was later withdrawn due to his expected inheritance of the Annangrove property but more recently it has been reinstated.
6 The second defendant was the plaintiff before the Tribunal. She is a community worker employed by Gladesville and District Community Aid and Information Services. She originally sought guardianship and management orders, but at the hearing on 1 October withdrew the application for appointment of a guardian. In her application she gave reasons for the appointment of a financial manager. These can be summarised by stating that JM was unwilling to pursue probate in his mother's estate, that he had no savings, that his occupation of the unit was under threat as tenancy proceedings were on foot, that her centre was providing meals and urgent assistance to pay bills and that JM seemed unable to act so as to better his situation. This was, of course, an application only not evidence.
7 There was evidence before the Tribunal of Dr A R Bowes, a general practitioner at Hunters Hill, that he considered JM suffered from an inadequate personality disorder. He said that since the death of JM's mother JM had been unable to arrange his affairs and that:
He does not have the life skills to manage life decisions, especially in relation to financial and property affairs. (JM) has been unable to fill out basic forms to apply for appropriate pensions with Centrelink. Basically he exhibits signs of gross self-neglect in terms of basic washing of himself and his own clothing. He is grossly malnourished due to his inability to look after his nutrition.
I totally support the application being made to the Guardianship Board to take over JM's affairs.
8 Ms Fraser, a barrister acting for JM, referred him to Miss Suzanne Freeman, psychologist, for a report. She had seen a report from Dr Greenway, psychiatrist, who thought that JM possibly had "negative schizophrenia". A lot of her report was directed towards guardianship matters, but she stated that JM managed his general affairs, paid the rent each month and budgeted his pension money and that she considered that "with appropriate levels of support he is capable of managing his personal and financial affairs". Dr C.H. Greenway is a specialist psychiatrist. In a report dated 9 August 2004 he said of JM:
Thank you for asking me to see this fascinating man. He is in real difficulty and I suspect that it is a result of an undiagnosed disorder. I suspect that he has schizophrenia, although there really does not appear to be any positive symptoms. However, we are looking at a man who is qualified as a solicitor, but has not done the probate of his mother's will (she died approximately one year ago) and has also been unable to organize his situation with the Social Security Department. …
He complains of chronic fatigue syndrome, but he states that this dates back to 1992. Prior to that he had graduated from law in 1984 and completed the College of Law in 1986. He managed to get his Masters in 1992, but had a great deal of difficulty doing this. I suspect that what we are seeing is marked psychosocial deterioration and it would be worth a trial of an antipsychotic (second generation) to see if we can help with his negative symptoms. He is a very pleasant man, but really seems to be in a great deal of difficulty.
9 Mr Mulligan is the owner of the flat occupied by JM. He was alerted to some problems by the occupier of another flat in the building in August 2003 who was concerned with the state of affairs in the premises and also concerned about JM's well-being. On entering the flat to inspect it it became obvious that JM or his mother or both were compulsive hoarders. Newspapers and magazines were stacked two metres high in most of the rooms. He arranged with three companies to move tonnes of paper from the premises, but not all of it. He has wished to sell the premises for some years but had put this off because he knew that JM's mother was suffering from cancer and was seriously ill. He had asked JM to make some arrangements to move out so that the flat could be sold and various dates were agreed, but were postponed. He took proceedings before the Tenancy Tribunal but they were eventually withdrawn on the basis that JM would take steps to administer his mother's estate and then arrange to move out. The arrangements were that a fresh application could be filed, not earlier than one month from 12 July 2004 and that a timetable for vacation of the premises would be provided. He said in a letter to the Tribunal that he had taken no further action, pending the outcome of the Tribunal hearing.
10 It its reasons for decision, the Tribunal reviewed this evidence. It referred to oral evidence from JM as to his sickness, to the fact that he received a disability support pension, including a rent allowance which was credited to his bank account and that twice a month he withdrew most of his pension using it to pay rent and for other expenses. It referred to the fact that the telephone had never been connected, that the hot water service had not worked for many years and there were some other problems in the flat. JM told the Tribunal he did not approach the landlord about these problems because he did not want a rent increase. JM said in oral evidence, according to the reasons, that he had not proceeded to obtain probate of his mother's will because he could not find it. There was about $50,000 owing in land tax on the Annangrove property. There was an insurance policy to pay funeral costs, but these had not been paid. It appears that it was necessary to obtain a grant of probate for that to be done. The reasons go on to say that JM stated that he could make his own decisions, that he planned to arrange the sale of the Annangrove property and purchase accommodation from the net proceeds of sale and invest the remainder. The Tribunal stated that Mrs Bristow said that she had heard about proposals for the obtaining of administration, the sale of the Annangrove property and moving out of the flat before, but that she considered JM did not have the ability to act on his decisions or undertakings. Her organisation could no longer offer support for payment for meals on wheels, the food vouchers and the like. The Tribunal considered the tests in PY v RJS [1982] 2 NSWLR 700, which it stated has been reaffirmed many times. It is not necessary to set this out. It referred to other decisions which to some extent expand on this. It then went on to say:
The evidence before the Tribunal indicates that Mr McDonnell has a diagnosis of chronic fatigue syndrome. He acknowledges that because of this condition he is largely confined to bed during the day. Possibly because of his lack of energy, poor concentration and endurance limitations related to this condition he has been unable to progress his late mother's estate and took no steps to deal with Centrelink's threat to cancel his disability support pension. Nor has he been able to address issues related to his tenancy after being served with a notice of termination of tenancy. Following his mother's death he was not attending to self-care and lost 15 kilos in weight because he was not eating appropriately. This, in turn, exacerbated his condition of chronic fatigue syndrome.