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[2020] SACAT 20
respondent. Tribunal affirmed the original decision approving the administrator's request to sell the property to meet the protected person's accommodation costs; original approval conditions (minimum price...
The Tribunal affirmed the administrator's approval to sell an elderly protected person's house so proceeds could pay her nursing home fees. The sale was necessary because the protected person's income was inadequate, funds were tied up in the house, fees were in arrears, and the resident son's promises to pay lacked enforceable guarantees. A will expressing a wish that the resident son live in the house after the protected person died did not prevent sale to meet present care needs.
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1,808 words · generated 12/07/2026
This case concerns an internal review of a Tribunal decision permitting the sale of real property belonging to a protected person, HFF, to meet her nursing home accommodation costs. The administrator of HFF's estate, HCL (her son), obtained Tribunal approval under s 39(4) of the Guardianship and Administration Act 1993 to sell the Fitzroy property. The approval was conditional on a minimum sale price of $1,175,000 based on a valuation (Original decision, para 1). A contract for sale was executed on 2 February 2020 with settlement scheduled for 31 March 2020 (Original decision, para 2).
1 cited instrument linked from this judgment.
The other son, IWT, who occupies the house and claims a life interest under his mother's will, sought review. He argued (1) sale was unnecessary because he could afford to pay the nursing home fees himself and (2) sale would contradict his mother's testamentary intention that he be permitted to live in the house (Original decision, paras 1, 3). The Tribunal, on internal review before President Hughes, gave the original decision appropriate weight, received further submissions and enquiries, and ultimately affirmed the decision approving sale (Internal review, paras 1-3; Decision).
Factual background material relied on by the Tribunal included: HFF entered a nursing home around ten years prior; nursing home fees were approximately $2,450 per month; sons had pooled an $81,000 inheritance into a joint account that had been used to pay nursing home fees and council rates but was depleted in 2019; fees were four months in arrears, totalling $7,339.35; HFF received a small pension (about $167 per fortnight) which was affected by the value of her house and did not cover the nursing home fees (Background facts, paras 1-2).
On the question whether IWT could and would pay the fees, the Tribunal found his evidence insufficiently persuasive or evidentially reliable: he claimed to have funds and ongoing ATO claims, but did not provide bank transaction evidence or a binding mechanism to ensure future payment; he suggested a direct debit or legal arrangements but did not produce enforceable guarantees (Whether the decision should be set aside..., paras 1-3). The Tribunal held that relying on IWT's unguaranteed undertaking was not in HFF's interests (para 4).
On the testamentary point, the Tribunal located a copy of a 2007 will but found it only relevant to distribution after death and not capable of overriding necessary measures to protect HFF during her life. The Tribunal also noted uncertainty whether the 2007 document was current and observed it could not rely on it to prevent sale (Whether the decision should be set aside because it is inconsistent with HFF's testamentary intention, paras 4-5). The Tribunal declined to base its decision on the administrator's stated future intention to purchase alternative accommodation for IWT from sale proceeds, as that was beyond its power to direct (para 6).
Two central legal considerations determined the decision.
Best interests and necessity to secure funds for care. The Tribunal applied the standard that an administrator's decisions under s 39(4) must be appropriate in the protected person's best interests. HFF's funds necessary to pay current and ongoing nursing home accommodation were tied up in the house. The Tribunal emphasised that HFF received only a small pension which did not meet fees, and the joint account previously providing payments was exhausted; fees were four months in arrears. The practical consequence was that without liquidation of the house HFF's accommodation costs could not be guaranteed to be met. That factual matrix made sale an appropriate exercise of the administrator's statutory power (Reasons, para 4).
Inadequacy of informal undertakings and limits of testamentary intention. The Tribunal was not persuaded by IWT's assurances to pay. The decision explains that unbacked promises do not offer a guarantee and are therefore insufficient to protect the protected person's immediate needs (para 4). On testamentary intention, the Tribunal reiterated the temporal operation of wills: they operate on death and cannot override what is necessary to protect someone during their life. A 2007 copy of a will (if it existed) would only express post-death wishes and may have been superseded, therefore it could not preclude the sale now (para 5).
The Tribunal thus concluded that the administrator's choice to sell was an appropriate best-interests decision and that neither the resident son's unguaranteed undertaking nor the asserted testamentary intent displaced that conclusion.
Before this decision, the statutory framework governing administrators' powers and duties in South Australia was set out in the Guardianship and Administration Act 1993, including s 39 which confers authority to administer a protected person's property and make decisions for their financial affairs. The Act requires administrators to act in the protected person's best interests. This decision applies that statutory duty to a fact pattern that is common in elder-care contexts: the need to realise non-liquid assets to pay for care.
After the decision, the practical effect is confirmatory rather than transformational. The Tribunal reaffirmed established principles:
The decision thus reinforces the expectation that tribunals will require objective, enforceable evidence when a third party claims it will assume care costs in order to avoid sale of assets.
"I am satisfied that the decision by the administrator to liquidate HFF's asset by selling her house was a decision that was appropriate for the administrator to make in HFF's best interests." (para 4)
"It is not in HFF's interests to rely upon the undertaking of IWT that he can or will meet the cost of her accommodation when that undertaking creates no guarantee that it will occur." (para 4)
"The significance of the will could only be to confirm what her wishes were in 2007 for IWT after she died. Those wishes could not override what was necessary to do to ensure her own interests were protected during her life." (para 5)
"The approval was conditional upon the sale being for a price not less than $1,175,000, which figure was arrived at after a valuation was obtained and tendered to the Tribunal." (Original decision, para 1)
This decision will be most directly relevant where:
Where these elements appear, the Tribunal will scrutinise the solidity of alternatives to sale; absent enforceable arrangements, sale is likely to be upheld.
This judgment does not itself catalogue subsequent judicial treatment. The decision is an administrative Tribunal decision, and the published reasons contain no references to later cases or appellate treatment. Any assessment of subsequent treatment would require targeted research of reported decisions after 23 March 2020. The present decision should be read as an authoritative application of s 39(4) within SACAT's jurisdiction and persuasive in like fact patterns, particularly where liquidity to pay current accommodation is at issue and testamentary documents are invoked to resist sale.
What constitutes an enforceable guarantee sufficient to displace the need to sell? The Tribunal required more than an undertaking, but did not specify what form of security (eg deed, charge, binding contract) would have sufficed. Practitioners will want clarity on whether a properly drafted and registered charge, enforceable maintenance agreement, or escrow arrangement would meet the Tribunal's standards (See para 3-4).
How should tribunals balance the interests of a resident occupier with an asserted life interest against the immediate needs of the protected person? This decision emphasises the primacy of current care needs over testamentary wishes, but leaves open how competing interests might be accommodated where secure arrangements protect the protected person's care while also preserving the occupier's interest.
What evidentiary threshold should be required from administrators when seeking to sell property that is the protected person's main residence? The Tribunal required a valuation and set a minimum price condition; however, further guidance on evidentiary expectations for valuations, marketing, and timing of sale would assist administrators and affected family members.
The decision noted a copy of a 2007 will but did not determine its effect. If a will purports to confer a life interest existing during the testator's lifetime or creates enforceable trust arrangements, could that alter the analysis? The Tribunal treated the will as post-death instruction only; yet disputes could arise where documents are ambiguous or where lifetime trusts are established. Clarification on the treatment of contemporaneous documents that create enforceable lifetime interests would be useful.
Finally, the decision raises practical estate-planning questions: administrators and families should proactively document and, if appropriate, register enforceable arrangements when parties intend to rely on family members to meet care costs to avoid forced sale. The Tribunal's decision highlights the need for enforceability and certainty rather than reliance on informal family understandings.
Conclusion: Re HFF [2020] SACAT 20 applies core administrative and protective principles: an administrator may liquidate a protected person's non-liquid assets where necessary to pay for current care, informal family undertakings are inadequate unless enforceable, and testamentary intentions are subordinate to present best-interests considerations. Practitioners should ensure that alternatives to sale are evidenced by binding mechanisms if those alternatives are to be persuasive to a Tribunal.
Re HFF [2020] SACAT 20
The son and administrator of a protected person's estate, (HCL) applied to the Tribunal for approval to sell real property. The Tribunal approved the sale, satisfied that the money was needed to pay for the protected person's (HFF) nursing home fees. HFF's other son (IWT), who lives in the subject property, challenged that decision on the basis that sale of the property was not required because he could afford to pay the nursing home costs himself. He also said that sale of the house was inconsistent with his mother's testamentary intention, which was that he be granted a life interest in the property.
The administrator maintained that HFF's nursing home fees were several months in arrears and sale of the property was required for these costs to be met.
Internal review - Administration order - Approval to sell real property - s 39(4) of the Guardianship and Administration Act 1993 - Whether sale of real property necessary to raise funds for protected person's nursing home fees - Sale challenged on basis that funds can be raised elsewhere - Sale challenged on basis of inconsistency with protected person's testamentary intention - Decision by the administrator to liquidate protected person's asset was a decision that was appropriate for the administrator to make in the protected person's best interests
Internal review - Administration order - Approval to sell real property - Relevant factors - Implications for protected person of Tribunal setting aside a contract for sale - Whether sale in best interests of the protected person - Relevance of testamentary intention - Will does not override what is necessary to do to ensure protected person's interests protected during her life
This is an edited version of the Tribunal's statement of reasons issued pursuant to s 81 of the Guardianship and Administration Act 1993. The protected person has been de-identified and allocated a randomly selected pseudonym for privacy reasons. Other details that may lead to the identification of the protected person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.
On 11 March 2020, I conducted a hearing of an internal review and decided that the original decision should be affirmed. These are the reasons for that decision.
Whether the decision should be set aside because IWT can and will pay the nursing home fees
Whether the decision should be set aside because it is inconsistent with HFF's testamentary intention
Tribunal affirmed the original decision approving the administrator's request to sell the property to meet the protected person's accommodation costs; original approval conditions (minimum price $1,175,000) remain operative.