BE (Administration)
[2017] TASGAB 19
•9 November 2017
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
BE – GAB Reference Number: XXXX
BE (Administration) [2017] TASGAB 19
REASONS FOR DECISION
Louise Mollross (Chair)
Lindi Wall (Member)
Juanita Westbury (Member)
Hearing 9 November 2017
Need for an administrator – inability to act in best interest of proposed represented person - insufficient expertise of proposed administrator - independent administrator
Guardianship and Administration Act 1995 s. 51, 54
An Application by EE in respect of Administration for BE was filed with the Guardianship and Administration Board on the 27th of September 2017 and listed for Hearing on 9 November 2017.
In support of that application a Health Care Professional Report from Dr Janina Skelton of the Royal Hobart Hospital was filed. Also available to the Board was a copy of correspondence from the National Australia Bank in relation to Bank Accounts operated by BE and a copy of the Property Information Report in respect of property in Tasmania. At the hearing the Applicant provided her National police report.
The Hearing was attended by:
EE, the Applicant;
Justin McMullen (EE’s solicitor);
JU (an observer from Justin McMullen’s office); and
Rosemary Jurs (Public Trustee).
As a result of the hearing the Board was satisfied that the proposed represented person (PRP) is a person with a disability and she is unable because of her disability to make reasonable judgements in respect of her financial affairs and is in need of an Administrator.
The Applicant has requested a Statement of Reasons in relation to the Board’s decision. Those reasons are detailed following.
Requirements of the Guardianship and Administration Act (1995)
When the Board assesses an application for the appointment of an administrator it needs to be satisfied of the matters in section 51 of the Guardianship and Administration Act 1995 (the Act), namely that the PRP:
(a)is a person with a disability;
(b)is unable by reason of the disability to make reasonable judgement in respect of matters relating to all or any part of his or her financial estate; and
(c)is in need of an administrator of his or her estate.
The Board must also balance the principles in section 6 of the Act, which include
·the means which are least restrictive of a person's freedom of decision and action as is possible in the circumstances; and
·if possible that the best interests of and the wishes of a person with a disability or in respect of whom an application is made under this Act are carried into effect.
Is the proposed represented person a person with a disability?
In considering whether BE has a disability the Board relied upon the Health Care Professional Report (HCPR) of Dr. Janina Skelton dated the 27th September 2017 who details in her report that she specialises in geriatric medicine. Dr Skelton reported that BE suffers from Alzheimer’s disease. She advised that this has been evident for a period of one year and it is a deteriorating illness which will continue to deteriorate over the next month’s/years. The PRP’s RUDAS score was 12/30. (The RUDAS Report referred to is a cognitive assessment used when English is not a person’s first language.)
The report states that BE has dementia with memory loss, word finding difficulties, disorientation and functional decline. Dr Skelton further states the PRP is no longer able to manage her finances or make decisions about her assets.
The evidence of Dr Skelton was unchallenged at the hearing. The Board was therefore satisfied that BE is a person suffering from a disability within the meaning of the Act
Is the proposed represented person incapable by reason of her disability of making reasonable judgements in respect of all or any matters relating to her person or circumstances and/or matters relating to all or any part of her estate?
10. The Heath Care Professional Report from Dr Skelton as referred to above advises that BE is unable to make reasonable decisions in relation to her property, unable to manage her day-to-day financial requirements and unable to make major financial decisions. The HCPR also details that BE is not able to understand a Power of Attorney, her finances or how to sell her home and that her daughter EE has been managing her finances for at least 6 months.
11. Evidence was provided through the course of the hearing that BE relied upon EE to perform all financial transactions on her behalf and had done so for a period of about one year. EE gave evidence that during this period her Mother was unable to manage her finances and was extremely confused (again this evidence was unchallenged at the hearing). There was no dispute at the hearing that the PRP is currently unable to manage her financial affairs.
12. The Board was therefore satisfied that the BE has an incapacity to manage her financial estate as a result of her disability.
13. The Board then considered whether there was a need for an Administrator. As detailed in the Application, in addition to the management of the PRP’s day to day finances there was also a need to sell the home of the PRP because she had moved permanently into a Nursing Home. The applicant advised the PRP was receiving income from Centrelink, RBF and from an Italian pension totaling about $2,600 per month, however in the application it was detailed as $1400 per fortnight. No documentation was provided to clarify this position. The Application detailed the PRP had a bank balance of approximately $2500 while the letter from the NAB advised a balance as $4859.45.
14. The Board was therefore satisfied that it was appropriate to appoint an Administrator for the PRP and that there was no less restrictive alternative available that would meet the PRP’s needs.
The Board then needed to consider who should be appointed as Administrator, noting that the applicant nominated herself as the Administrator.
15. When hearing an application for administration, the appointment of one of the three statutory agencies is a default option for the Board, meaning that the Board does not need to assess the eligibility of the three statutory agencies named in section 54 (1) (a), (b) or (c) nor seek their consent to appointment.
16. The Board can appoint a person other than the three statutory agencies if that person meets the criteria in section 54(1)(d) and 54(2) of the Act. These criteria are:
· That the person consents to act as administrator (s.54(1)(d));
· The Board is satisfied that the person will act in the best interests of the proposed represented person (s.54(1)(d)(i));
· The Board is satisfied that the person is not in a position where his or her interests conflict or may conflict with the interests of the proposed represented person (s.54(1)(d)(ii));
· The Board is satisfied that the person is a suitable person (as defined in section 54(2)) to act as the administrator of the estate of the proposed represented person (s. 54 (1)(d)(iii)); and
· The Board is satisfied that the person has sufficient expertise to administer the estate. (s.54 (1)(d)(iv)).
17. EE advised the Board that in recent months her Mother had told her that she wanted to gift the sum of $30,000 to both EE and her brother, NE. Notwithstanding the PRP’s inability to manage her finances and her confusion surrounding such matters, EE proceeded to gift $30,000 to herself and $30,000 to her brother. Additionally, EE advised the Board that her mother also wanted EE to sell her home and divide the money between herself and her brother.
18. EE acknowledged that the gifts totaling $60,000 would have an impact on her mother’s Centrelink entitlements. During the hearing Mr McMullen advised it would also have a likely impact on the assessment of her refundable accommodation deposit (RAD) payable to the Aged Care Facility.
19. In addition to the gifts of $30,000 each to BE and NE the Board had concerns about the impact the withdrawal of these funds has had on the PRP’s estate. The evidence of the funds in the PRP’s bank account showed on 12 October 2017 the balance of $4,859.45 while EE reported that the daily accommodation payments were approximately $2,400 a month and the mother’s income was approximately $2,600 per month. This provides little available funds after those gifts to enable the PRP to have funds for general enjoyment, the purchase of clothing or nightwear and the purchase of personal items generally e.g. newspaper, magazine’s etc.
20. The Application detailed at paragraph 4:
“My mum is entering aged care and her house needs to be sold”.
In answer to the question regarding the person’s wishes at 5.3 the Applicant stated:
“Mum has request (sic) that my brother and I sell the property and split money”.
This was consistent with the information provided by EE at the Hearing of this matter.
21. After consideration of the evidence, the Board:
a) was not satisfied that the applicant would act in the best interests of the proposed represented person.
b) was not satisfied that the applicant had sufficient expertise to administer the estate.
22. The Board determined that EE lacked the necessary skills to be a suitable Administrator notwithstanding the fact she had managed her Mother’s finances in the past. The Applicant showed a lack of understanding and insight that she would be in a fiduciary position and would need to utilize her Mother’s funds for her Mother’s benefit alone. This lack of understanding is demonstrated by the gift arranged by EE of $30,000 to herself and her brother NE notwithstanding her acknowledgement that her Mother was unable to manage her finances at the time the gift was made and her stated knowledge that it would affect her mother’s Centrelink entitlements. That gift significantly depleted the PRP’s resources and left little funds to meet her needs. Furthermore the Applicant proposed to divide the proceeds of the sale of the PRP’s home because that was also her mother’s express wish, notwithstanding the PRP’S confusion surrounding financial matters.
23. The Applicant did not demonstrate that she understood the importance of applying the PRP’s funds sufficiently to the benefit and enjoyment of the PRP.
24. The Board has often noted that the GAA provides a statutory pre disposition to the appointment of the Public Trustee. In this case such an appointment will have all the advantages referred to by Kirby P in Holt v Protective Commissioner (1993) 31 NSWLR 227 and in particular:
The manifest independence of the statutory office;
The advantages of a dispassionate and neutral approach where there is a potential for family conflict and divided views about the best interests of the donor;
The expertise of the staff of the Public Trustee, their experience in managing estates, the know how accumulated by them and their reputation; and
The security provided to the donor’s estate against loss or damage.
25. The Board made the following orders:
That the Public Trustee be appointed as administrator of the estate of the represented person;
That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995; and
That the order remains in effect until the 9th November 2020.
Louise Mollross Lindi Wall Juanita Westbury
Chair Member Member
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