Y v Protective Commissioner

Judgment 1HIS HONOUR: The plaintiff (who for the purpose of these proceedings is to be called D) seeks a declaration that she is capable of managing her affairs and an order revoking any earlier declaration that she is incapable of managing her affairs. She seeks the revocation of an order made on 1 December 1989 that her affairs be under the management of the Protective Commissioner (now the NSW Trustee and Guardian). She seeks an order that the NSW Trustee and Guardian deliver to her the certificate of title for a property she owns at Castle Hill and pay a sum of $5,000 to her solicitors for her costs of these proceedings and the balance to an account she has with the ANZ Bank. She also seeks an order that the NSW Trustee and Guardian inform Centrelink that the management of her affairs has been terminated. 2The plaintiff suffered an injury on 28 September 1978 when she was 15. On 25 May 1982 Roden J approved of a settlement of a negligence claim that the plaintiff had brought through her tutor for damages. There was verdict and judgment for the plaintiff in the sum of $519,000. After deducting $29,074.32 for medical and related expenses paid in advance and $9,155.50 repayable to the Department of Social Security, and after paying further medical expenses from the balance of the verdict to be paid into court, a sum of $479,625 was to be paid to Perpetual Trustee Company Limited to be held on trust for the plaintiff. In approving the settlement, Roden J observed that as a result of the accident the plaintiff had suffered brain stem injury with severe intellectual impairment which had brought about a loss of all capacity for all forms of work and need for permanent care. 3In 1987 Perpetual Trustee Company Limited purchased the property in Castle Hill for the plaintiff. She has resided there since. On 31 December 1989 orders were made in the Protective Division removing Perpetual Trustee Company Limited as trustee of the plaintiff's estate. An order was made that management of the plaintiff's estate be committed to the Protective Commissioner. 4On 9 February and 30 March 1990 Perpetual Trustee Company Limited transferred sums of $165,500 and $16,210.30 to the Protective Commissioner for the plaintiff. Apart from these sums, the only funds of the plaintiff that have come under the management of the Protective Commissioner or the NSW Trustee and Guardian have been interest on the moneys invested, tax refunds in 1990, medical refunds and like incidental payments, and pension moneys. 5On 31 August 1995 the plaintiff sought a declaration that she was capable of managing her affairs and an order that her estate be released from management under the Protected Estates Act 1983. That application was dismissed by Hodgson J (as his Honour then was) on 8 February 1996. In his reasons for judgment (Y v Protective Commissioner (Supreme Court of New South Wales, 8 February 1996, unreported), his Honour recorded that by 1996 the money in the plaintiff's estate had been reduced to an amount of about $8,000 so that the estate then consisted of the house and those moneys. His Honour recorded that the plaintiff's evidence indicated that she had made remarkable progress from a very serious accident and was coping remarkably well in the daily tasks of living. His Honour said that she coped reasonably well with budgeting for daily expenditure. His Honour recorded that the plaintiff had given evidence that she knew that the Protective Commissioner was holding $5 million on her account and that any statements to the contrary had to be lies. She asserted that this is what she had been told by God and the Holy Spirit and was not prepared to consider evidence that might suggest otherwise. His Honour was of the opinion that there was a high probability that if the management order was not continued, the plaintiff, firmly believing that she had assets in the order of $5 million, would incur substantial expenses with the almost inevitable result that her house would be lost. His Honour recorded that she had incurred quite substantial expenditure in relation to the house, as well as other matters. His Honour said that: "... the question of capability of managing affairs involves, in my opinion, a willingness to look at practical issues in relation to money in a realistic and practical manner, and in my opinion the evidence shows that, at present, the plaintiff is unwilling or unable to do that." The application was dismissed. 6On 23 December 1997, 12 March 1998 and 14 December 2000 the Protective Commissioner made advances from the common fund to the plaintiff of $590, $620 and $20,000 respectively. A report of the Office of the Protective Commissioner dated 12 December 2000 noted that since June 2000 the plaintiff had been in communication with the Baulkham Hills Shire Council in relation to the retaining walls on her property. She obtained a quote from Turner Design Landscapes to pull down the existing retaining walls on the property and build them again at a price of $35,000. She did this without consultation with the Office of the Protective Commissioner. Turner Design Landscapes commenced work, but stopped when it ascertained that a required 10 per cent deposit had not been credited to its account. The Office of the Protective Commissioner advised the Baulkham Hills Shire Council that the plaintiff had insufficient funds to pay for the work she had requested. On 30 November 2000 the Baulkham Hills Shire Council issued an emergency order directing that the work be carried out to the retaining wall to provide support to unstable land along the north-western boundary of the property. The Protective Commissioner advanced $20,000 because the work was urgently required and the property was dangerous and in an unstable condition. The debts to the Protective Commissioner are secured by a charge over the property and now a registered mortgage. The debt attracts interest but is not repayable prior to the plaintiff's death, or the sale of the Castle Hill property, whichever occurs first. As at 31 December 2011 the amount owed to the NSW Trustee was $47,379.56. 7On 9 October 2001 the Office of the Protective Commissioner wrote to the plaintiff's solicitor. It said that the plaintiff "... has consistently over a period of some years sought to have often unnecessary work performed on her property in circumstances where she has no capacity to meet the cost. This office is aware of the following debts ... ". There then followed a list of nine debts totalling $12,925.70, in addition to the debt owed to the Protective Commissioner. The Protective Commissioner warned that if such debts were incurred, there might be no option but to sell the Castle Hill property. The plaintiff's only source of income was a disability support pension paid by Centrelink. At this time the Protective Commissioner was making payments from the plaintiff's pension of $20 per week for a debt due to Australian Hi Tech Kitchens. 8In or about August 2006 the Protective Commissioner became aware of a judgment entered in the Parramatta Local Court against the plaintiff by a business called Aurora Kitchens in respect of the installation of kitchen benches and cupboards pursuant to a contract dated 11 November 2004. The judgment, including interest and costs, totalled $10,858.87. After some years the Protective Commissioner negotiated a repayment arrangement with Aurora Kitchens whereby Aurora Kitchens accepted a payment of $3,000 together with a further $6,504 to be paid by weekly payments of $15 from the plaintiff until that amount was repaid. On 16 March 2009 the plaintiff was advised of this arrangement and was advised that she should seek agreement from the Office of the Protective Commissioner before signing or agreeing to anything. She was warned that otherwise the Office might be unable to resist proceedings against her which could result in a judgment debt being entered which would ultimately lead to the sale of her house. The sum of $3,000 was paid on 16 March 2009. Weekly payments of $15 continue to be made in reduction of the debt. 9Another judgment was obtained against the plaintiff in the Local Court on 30 July 2009. This was in respect of a debt claimed by Newcombe's Plumbers. The unpaid account was for $1,485. With interest and costs, default judgment was entered for $2,373.04. Another repayment arrangement had to be made in respect of this debt which has now been paid off. Again the debt was incurred without consultation with the Protective Commissioner. 10In 2009 a debt was incurred to the Baulkham Hills Shire Council with the approval of the Protective Commissioner. The Council had given notice requiring the immediate reconstruction of failing retaining walls. The Council agreed to pay for the required work. A second mortgage was given over the Castle Hill property in favour of the Council to secure a debt up to $47,928. I was informed that this debt does not carry interest and is repayable only on the sale of the property or the plaintiff's death. 11On 17 December 2009 a painter, Mr Tony Al Bayeh, provided a handwritten invoice to the NSW Trustee and Guardian requesting payment of $12,600 for painting work undertaken at the plaintiff's home. This work was done without the approval of the NSW Trustee. The request for payment of the invoice was initially refused. On 19 May 2009 the NSW Trustee had agreed to pay and paid $2,300 to cover the cost of the paint used in the work. On 4 November 2010 the Office of the NSW Trustee agreed to pay $1,000 to Mr Al Bayeh and to acknowledge a liability of the plaintiff for a further $2,000 to be honoured either on the sale of the Castle Hill property or the plaintiff's death. I am informed that the sum of $1,000 was paid. I was told there had not been a response in respect of the proposal to acknowledge a debt of $2,000 in satisfaction of the claim. 12In her affidavit of 6 February 2012 in support of her application for a declaration that she is capable of managing her affairs, the plaintiff deposed that she had not received correspondence from the NSW Trustee for a number of years. She said that the Protective Commissioner had refused to state the amounts held for her or to provide her with any investment reports. She said that in May 2011 upon her current solicitor's request, she received brief confirmation that the NSW Trustee holds funds, but no reports or explanation of how her money is managed. 13On 23 February 2005 the Office of the Protective Commissioner provided a printout of what was called "the entire transaction statement" from the time the Protective Commissioner first received funds up to 7 February 2005. A later updated transaction statement was provided on 4 June 2012. It shows each receipt and expenditure. Ms Phang, Principal Legal Officer with the NSW Trustee and Guardian, deposed that statements of account including an asset summary were sent to the plaintiff every six months at the end of December and June each year and a copy of a budget was also sent to her every 12 months. Ms Phang was not cross-examined. I accept her evidence. 14The budget for the period of 1 December 2011 to 30 November 2012 shows budgeted annual income consisting of Centrelink receipts of $18,818.80 and investment income of $322.66, a total of only $19,141.46. The plaintiff has to live within this very limited budget. The NSW Trustee receives on the plaintiff's behalf a fortnightly pension now of $730.50. From this it pays the plaintiff a weekly allowance of $160. It deducts a weekly sum of $15 in reduction of the debt owed to Aurora Kitchens. Until recently it deducted a further $60 every four weeks to meet the debt that was payable to Newcombe's Plumbing. The balance of the pension is applied in the payment of council rates, water rates, building insurance and electricity charges as they fall due. The management fee payable to the NSW Trustee is also deducted from this income. For the 12 months to 30 November 2012 it was budgeted to be $101.82. This means that the plaintiff has only $160 per week with which to buy food and groceries and to pay her telephone accounts and other incidental expenses. The plaintiff says that she has a well-developed plan of saving money. She has an account with the ANZ Bank into which payments from the NSW Trustee are made and from which she makes withdrawals. She lives within these very tight constraints, but struggles financially. 15The cash funds held for the plaintiff by the NSW Trustee as at 31 May 2012 totalled $9,824.31. This cash balance has increased gradually over the last six years. 16In support of her application the plaintiff attached reports of a Dr Peter Hanson and a Dr John Pickering dated 28 June and 28 July 2011 respectively. They had assessed the plaintiff's capacity to be a kidney donor. This was something that she had had in mind doing for a number of years. 17The plaintiff suffers from a physical disability and walks with considerable difficulty using a quadripod. She shops by ordering on the telephone and has someone come in to attend the garden and mow the lawns. Dr Hansen reported that she had scored full marks on a mini mental state examination. Dr Hansen said that the plaintiff: "... has adjusted well to her injury and has been helped by a long term mild euphoria resulting from her brain damage (just as her hemiplegia is also a result of her brain damage) has adopted a lifestyle which is profoundly and deeply religious and her wish to donate a kidney is quite in line with her religious beliefs." 18It was his opinion that: "In my view her cognitive abilities are intact, there is a degree of disinhibition which is in line with the diagnosis of frontal lobe syndrome and I think that her profound faith and her constant euphoria has helped her to cope remarkably well with her injuries. She is aware of what is entailed in kidney donation and she is also aware that she should be able to live as long with one kidney as she would with two. I cannot help but admire the way that she has coped with a severe disability. She seems to bear no ill will, she manages her money quite well although there is a trustee guardian who controls her access to her money which is sourced partly from social security and partly from damages from the original accident." 19It appears this information was given to Dr Hansen by the plaintiff and is accurate so far as it goes. 20Dr Pickering expressed the opinion: "She has some deficits of higher centre function, but overall, these are quite minor. They are more in the area of disinhibition rather than exhibiting chronically poor judgment. She certainly had adequate cognitive function for me to be very convinced that she was capable of making the kind of decision involved in this matter [viz. organ donation]. I did not find any impairment of judgement, and there is nothing to suggest that she has any significant deficits of impulse control. ... The reasons she has for making the decision to become a living donor are altruistic and appropriate. One has to admire the way that [the plaintiff] has coped with life. She is capable of living alone, she has obtained a diploma in bible studies and she manages her life. There is nothing that I could find that would suggest to me that she has any impairment of memory, thinking, or other aspects of cognition that would render her incapable of making a decision about becoming a living donor." 21The plaintiff also annexed to her affidavit a report from a Dr Hughes dated 20 February 2006 who stated that in his opinion the plaintiff was capable of managing her own affairs. He said: "I base this opinion on my observations that she displays more than adequate command of her situation in spite of the difficulties she has suffered in the past and I have noted that she appears to be gaining further control as time passes. Although she does have some physical disability remaining, she has overcome many of these and has lived around the others. Mentally she is alert and intelligent, and gives evidence of sound judgement of her affairs. She has her life really well organised. ... I believe her to be capable of managing her own life affairs and it appears that the only blight on this is the fact that a court ruling has taken financial management out of her hands. This might have been fitting at the time it was decided, but now appears extraordinarily inappropriate." 22Dr Pickering is a psychiatrist. He provided an affidavit dated 15 February 2012. In his affidavit he said: "3. I examined [the plaintiff] on 19/07/11 and conducted a psychiatric assessment specifically with a view to examining her cognitive and higher centre function. 4. In my opinion and based on my detailed history and mental state examination of [the plaintiff] I believe that she has the cognitive ability and judgement of such a degree that she can manage her own finances/banking, ie pay bills herself, attend bank, make an informed decision what to purchase and how to prioritise purchases, she is capable of planning investment strategies." 23A psychologist, Dr John Jacmon, also provided an affidavit. He said: "3. [The plaintiff] was assessed by me on 1 December 11. 4. In my opinion she is capable of managing her own financial affairs. Her cognitive capacity enables her to manage money, pay bills, make an informed decision as to what to purchase, discuss and plan how to spend/invest money eg on food and clothing. Her physical disability impedes her physical movements and requires her to be assisted to travel to attend matters which require face-to-face meetings such as in attending banks and other institutions. She is fully capable of representing her interests in such meetings. 5. My opinion is based on (i) the results of psychometric tests which are presented in the attached report, (ii) observations, and (iii) experience in assessing a large number of individuals over a wide range of cognitive capacities." 24Dr Jacmon had assessed the plaintiff through clinical interview and the completion of psychological tests. In his report of 2 December 2011 he concluded that: "1. Conclusions The assessment by testing and clinical interview has gathered considerable information on [the plaintiff's] functioning including her capacity to manage her finances. On the basis of the results, the research and the background the following can be stated: