Facts:
1 This is an application brought by the mother M of the protected person P for orders removing the Protective Commissioner as manager of P's estate and appointing National Australia Trustees Limited (NAT) as manager in his place.
2 P sustained a severe head injury in 1996 when 18 years old. His residual deficits include right hemi paresis and significant cognitive and behavioural deficits. He has reduced ability to learn and retain new information, reduced speed of information processing and an impaired memory. These injuries have left him, at least at this time, dependant on others for care and assistance in certain activities of daily living.
3 In October 1999, this court approved a settlement in the sum of $2 million for damages sustained as a result of the accident. Pursuant to s1165 of the Social Security Act 1991 a preclusion period has been set so that P is precluded from eligibility to receive social security payments until 3 February 2042. In view of the medical evidence available it was ordered that the judgement monies be paid into court pending the appointment of a Manager. In November 1999, P's estate was committed to the Protective Commissioner pursuant to s13 of the Protected Estates Act 1983 (the Act). The affairs of the Protective Commissioner are conducted through his office, generally known as the Office of the Protective Commissioner, which I will refer to in this judgment as OPC, but it is the person, not the office, who has the powers, duties and responsibilities under the Act. The Protective Commissioner, in the administration of his office, allocates various members of his staff to be responsible for the management of the estates of particular protected persons. These people are known as estate managers.
4 At the time the order was made, P was living alone in a flat in his home town of Orange. M was the primary carer and assisted P in his daily needs with minimal assistance from the Mid-Western Brain Injury Unit and community resources. In March 2000, a 2 bedroom property in Orange was purchased from the settlement moneys for $154,000. Later that year the Mid-Western Brain Injury Unit advised they could no longer provide P with the services he required. At the same time P was displaying a number of challenging behaviours relating to his brain injury and the abuse of marijuana and guarana found in energy drinks. This led to P being charged with a number of offences and caused him to be alienated from in his local community. As a condition of judgement at the local court, P was required to submit to management by a specialist carer. The Mid Western Brain Injury Unit and the court referred P to another organisation called Wareemba Community Living (WCL) which could offer further assistance with behavioural management, and continuing rehabilitation and could assist P in efforts to obtain work. WCL reported that they would only be able to provide 4 hours of care per week for P while he is living in Orange whereas, if P was in Sydney, they could provide 20 hours per week. In September 2000, P with the assistance of WCL, moved to a rented house in Sydney.
5 In the following six months WCL provided home-care to P for considerable periods. There were concerns raised by M at this time that P's carers who were provided by WCL were untrained, did not undertake any behaviour modification therapy and rarely took P out of his house, but whether these concerns were founded on fact is not established.
6 A number of incidents occurred during the months of February and March 2001. In February, a fire at P's rented home caused damage to a number of items P relied upon including his mattress, television, and other personal effects. Because of the damage P required emergency accommodation. The alternative accommodation plans were not discussed with M at the time. P was relocated to a Motel nearby where, two days later, he overdosed on medication and was taken to Concord Hospital and later to Banks House for psychiatric assessment then discharged. He continued to be suicidal throughout February and into early March when he suffered from a major epileptic seizure (resulting from his brain injury) while being monitored 24 hours/day at the Motel by WCL staff on the advice of P's treating specialist. He was again admitted to Concord Hospital where his medication was adjusted. On discharge he returned to the Motel where he proceeded to shout everybody at the Motel's nightclub drinks and charged the cost to his room. As a result of this he was then moved from this Motel to another while WCL assisted P to find more permanent accommodation.
7 It was six weeks from the date of the fire before suitable accommodation was found. When the time came for P to move to the new flat he still did not have basic provisions including a mattress, fridge, microwave, bed linen, pillows, toaster, kettle, stereo or video. At this time there was a change of manager for P. The new manager was unfamiliar with the file and stated that, as there was no contents insurance, no claim was made. Later, his estate manager stated that while contents insurance had been arranged, "it just wasn't documented in the file" so she did not know about it. An insurance claim was eventually lodged by the OPC. M, however, was never advised as to how much if anything was recovered under the insurance policy in relation to the damage caused by the fire. It took three weeks after the accommodation was secured for the OPC to approve the purchase of the replacement items. This meant that when a house was found for P he did not have the items he required for independent living including, a mattress, fridge, and microwave.
8 Private health insurance was arranged for P by M in February 2000. Although the details of this insurance were forwarded to the OPC, M is unaware if any claim for medical expenses has ever been paid from the fund. The private health insurer has refused to meet expenses arising directly from the accident - but it is not clear whether the insurer has met, and or has been asked to meet, any medical expenses not relating to the accident. The medical expenses which appear not to have been claimed include ambulance trips and treatment relating to a stabbing incident that occurred in June 2001.
Court Visitor's Report - November 2001
9 The Protective Commissioner, pursuant to section 79 of the Act, directed a court visitor to report on the services provided to P by WCL. The court visitor reported on 6 December 2001 that, at that time, P was benefiting from the support he was receiving from WCL and that it was in his best interests not to decrease the support hours any more than had already been done until P had demonstrated a consistent ability to manage aspects of his life such as housework, shopping, accessing the community and so on, without incident. P had at that time been able to manage public transport independently to and from Liverpool to attend the Head2Work program.