BI (Administrator) - [2011] TASGAB 16

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

BI – Application for Appointment of an Administrator by Optia Incorporated.

BI (Administrator) [2011] TASGAB 16

REASONS FOR DECISION

Anita Smith (President)

Date of hearing 21 July 2011

Administration – need for an administrator – proposed represented person may have claim under Testator’s Family Maintenance Act – other beneficiaries have conflicts of interests
Guardianship and Administration Act 1995 sections 6, 51, 54
Testator’s Family Maintenance Act section 3A
Doddridge v Badenach [2011] TASSC 34 considered

BI is a 48 year old woman with a very happy disposition and a penchant for pretty clothes and jewelry who, by reason of an intellectual disability, has never attained the ability to speak. She lives in a specialised facility run by Optia Incorporated (Optia). Optia is a not-for-profit organisation based in Hobart which provides support services for people who have disabilities, within a community setting.
On 17 May 2011 Optia applied to the Board for the appointment of the Public Trustee as an administrator for BI. In assessing an application for the appointment of an administrator pursuant to section 51 of the Guardianship and Administration Act 1995 (the Act), the Board must be satisfied that BI is a person with a disability, that by reason of her disability she lacks the ability to make reasonable judgments with regard to her estate and that she is in need of an administrator of her estate. The Board must also observe the principles in section 6 of the Act which require the Board to exercise its powers in the manner which imposes the least restriction upon BI’s freedom of decision and action, promotes her best interests and, wherever possible, carries her wishes into effect.

The Application:

The applicant noted in response to the italicized questions below:
Please explain why you are making this application:
“BI’s parents are recently deceased and concerns have been raised as to her entitlement to a share of the family estate. BI does not have the capacity to understand this process as she has an intellectual disability.” (page ADM A1)
Briefly outline why administration is needed. E.g. the financial needs of the person you are applying about that are not being met:
“BI’s parents recently passed away (with little contact from any of her family for many years and Optia staff only discovering her father’s death by reading it in the newspaper). BI’s mother used to visit weekly (without her father’s knowledge) and her father had no contact with BI for most of her life. BI has 3 sisters (one of whom visited her on one occasion). Optia is unsure as to whether BI has been included in her parents’ wills and division of family estate” (page ADM B1)
Explain why an administrator is needed to manage the person’s financial affairs:
“Optia does not have the knowledge or capacity to follow through on these proceedings (associated with her family estate) (page ADM B1)
Financial information in the application indicated that BI is in receipt of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BI (Administrator)

Details

AGLC: BI (Administrator) [2011] TASGAB 16
Case: [2011] TASGAB 16
Decision Date: 21 July 2011

CaseChat Overview and Summary

The case involves BI, a 48-year-old woman with an intellectual disability, who resides in a facility run by Optia Incorporated. Optia applied for the appointment of an administrator for BI's estate due to concerns about her potential entitlement to a share of her parents' estate and her inability to manage her financial affairs. The Guardianship and Administration Board (GAB) was tasked with determining whether BI needed an administrator and, if so, who should be appointed. The legal issues included whether BI had a disability that prevented her from making reasonable judgments about her estate, whether she required an administrator, and if so, who should be appointed to that role.

The Board found that BI was indeed a person with a disability who lacked the capacity to make reasonable decisions about her estate. The Board was also satisfied that BI needed an administrator to manage her estate, particularly to investigate her entitlement under her parents' wills. The Board considered the possibility of a Testator's Family Maintenance Act claim, noting that BI might have been left without adequate provision for her maintenance and support. The Board concluded that it was in BI's best interests to appoint an administrator to pursue any entitlement from her parents' estate and to manage her estate generally. The only suitable nominee for the role of administrator was the Public Trustee, as other potential appointees had conflicts of interest. The Board granted the application and appointed the Public Trustee as BI's administrator.

The final orders of the Board were that the Public Trustee be appointed as administrator of BI's estate, with the powers and duties conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995, and that the order remain in effect until 20 July 2014. The Board's decision was based on the need to protect BI's interests and ensure that her financial needs were met.

Orders