ROBERT and Ruth have been married for 40 years.

They share a son and each have another child from a previous relationship.

Ruth has lost the capacity to manage her financial affairs and is under the financial management of the NSW Trustee and Guardian.

Robert and Ruth’s jointly owned home is sold to fund their placement in full-time care.

The NSW Trustee and Guardian propose to distribute the proceeds of sale equally between Robert and Ruth.

Ruth’s son, to a previous relationship, challenges the proposed distribution and files an application to review the decision in the NSW Civil and Administrative Tribunal (NCAT).

In reviewing the decision of the NSW Trustee and Guardian, the Tribunal considers Robert and Ruth’s needs in light of their current financial position, Ruth’s views (as a “protected person”), whether Robert has a beneficial interest in the proceeds of sale and the “general principles” applicable to deciding the matter.

The Tribunal analyses the cost of Robert and Ruth’s care, including their respective ability to pay a Refundable Accommodation Deposit (RAD), noting that Ruth’s costs are higher.

The Tribunal hears that Ruth purchased a previous home in which they resided, with an inheritance that she received.

The Tribunal also accepts that Robert was the primary wage earner throughout their relationship.

The Tribunal acknowledges that Robert and Ruth had a long and happy relationship and on the basis that they remain married, despite their day-to-day separation due to health issues, are not “separated” for the purposes of an application to the Family Court.

The “general principles”, applicable to the matter in light of Ruth being a “protected person” include a consideration of her “welfare and interests”, the importance of preserving family relationships, the encouragement of “self-reliance” and the protection of her from “neglect and exploitation”.

Ultimately, the Tribunal concludes that Robert is to receive 37.26 percent of the proceeds of sale and that Ruth shall receive 62.74 percent of the proceeds.

Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.

This fictional column is only accurate at today’s date and is not legal advice.

By Manny WOOD, Solicitor