DEM v NSW Trustee and Guardian [2018] NSWCATAD 16

DEM v NSW Trustee and Guardian [2018] NSWCATAD 16

The Tribunal affirmed the decision because, on the totality of the evidence, sale of the residence was in the protected person's interests and was the correct and preferable decision. The property produced no income, involved expenses, the protected person's cash reserves were low, sale would convert the property into income-producing assets for ongoing care, the evidence did not establish that sale was now contrary to the protected person's wishes, and there was no evidence of financial mischief, bad faith or detriment to the protected person.

Jurisdiction
Australia
Judgment Date
17 January 2018
Procedural Posture
Administrative Review of a Decision Approving Sale of a Protected Person's Residence / Final Decision After Hearing
Outcome
The first respondent's decision was affirmed and the application was dismissed.
Legal Topics
['administrative Review by Ncat' 'protected Estate Management' "sale of Protected Person's Residence" 'welfare and Interests as Paramount Consideration' 'correct and Preferable Decision']
['administrative Law' 'guardianship and Financial Management' 'protective Jurisdiction'] ['administrative Review by Ncat' 'protected Estate Management' "sale of Protected Person's Residence" 'welfare and Interests as Paramount Consideration' 'correct and Preferable Decision']

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Procedural Posture

Administrative Review of a Decision Approving Sale of a Protected Person's Residence / Final Decision After Hearing

Legal Issues

  1. 1 ["Whether the NSW Trustee and Guardian's decision approving the financial manager's proposal to sell the protected person's residence should be affirmed as the correct and preferable decision." "Whether sale of the property was in the protected person's welfare and interests, having regard to his wishes, financial position, dementia, care needs and family circumstances." 'Whether there was a financial imperative or proper financial basis to sell the property rather than retain it or sell shares.']

Ratio Decidendi

The Tribunal affirmed the decision because, on the totality of the evidence, sale of the residence was in the protected person's interests and was the correct and preferable decision. The property produced no income, involved expenses, the protected person's cash reserves were low, sale would convert the property into income-producing assets for ongoing care, the evidence did not establish that sale was now contrary to the protected person's wishes, and there was no evidence of financial mischief, bad faith or detriment to the protected person.

Court Disposition

The first respondent's decision was affirmed and the application was dismissed.

Orders

  • ['The decision of the first respondent is affirmed.']