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

1. 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.

2. 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:

1. 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)

2. Financial information in the application indicated that BI is in receipt of a Disability Support Pension from Centrelink.  She owns a chest of drawers and a television to a value of $1000 and has a savings account of approximately $15,000.00.  She pays board and lodgings to Optia of $490.00 per fortnight and spends $150 per fortnight on podiatry, day services, pharmacy and incontinence aids.  She rents a bed (presumably a specialized bed), a motorized wheelchair and a hoist on an annual basis. 

3. The application noted the following interested parties:

   Leanne Brightmore, Residential Coordinator
   Advocacy Tasmania, advocate

4. The application was supported by a completed pro forma Health Care Professional Report completed by Dr. Roger Cox.  Dr. Cox reported that BI has been very severely intellectually disabled since birth.  He stated that her vocabulary is limited to saying “yes”, “hello” and some swear words.  She experiences deficits in a range of areas such as orientation to person, place and time, expressive and receptive communication, capacity for new learning, susceptibility to influence and planning and reasoning skills.  With respect to her attendance at the hearing, he noted that she has a very large wheelchair which requires wide access.

The Investigation Process:

1. Because the application mentioned siblings but did not list them as ‘interested parties’, the GAB Investigator requested contact information from Optia who advised that Ms. LD was their only contact and provided a telephone number.  The Investigator obtained a copy of BI’s “personal profile” compiled by Optia.  This document noted that BI has epilepsy (2-3 seizures per year) and congenital hip dislocation.  In relation to her family background it states: “BI is the youngest of 4 girls to O and GI.  BI resided at Willow Court from the age of 7.  BI receives correspondence from her family and her mother visits on occasions.” 

2. The Investigator then contacted Ms. LD who provided the names and addresses of the following family members:

   DN
   NC
   Mr. EC (Ms. NC’s partner and purported executor of the parent’s wills)

3. LD advised the GAB Investigator that GI predeceased NI within 30 days.  LD also informed her that $10,000.00 had been provided from the late NI and GI’s estates to LD to administer for BI’s use over her lifetime.  However, LD expressed concern that funeral costs might preclude that payment.   The Investigator briefly made telephone contact with Ms. NC when attempting to speak to Mr. EC.  Ms. NC indicated to the GAB Investigator that she thought the telephone contact was inappropriate.

4. Correspondence from BI’s credit union confirmed the financial information in the application.  A title search revealed that NI and GI’s property in
   Hobart had been transferred on 12 April 2011.  Further investigation revealed that the property sold for $525,500.00 and that Mr. EC had been appointed by both NI and GI as their enduring power of attorney on 20 July 2010. 

5. On 22 June 2011, the GAB Investigator wrote to EC informing him of the application and pending notices of hearing and seeking copies of the late NI and GI’s wills. 

6. Notices of hearing were sent to all of the above-named parties on 5 July 2011 for a hearing on 21 July 2011.  An amended notice was sent on 8 July to all parties noting that the venue had changed to Optia’s offices at Mornington because access at the Board’s office was insufficient to accommodate the size of BI’s wheelchair.  Simultaneously with the notice, the GAB Investigator sent a reminder letter to EC seeking a response to her letter of 22 June. 

7. Staff members from Optia stated to the GAB Investigator that BI was not notified by members of her family of either of her parents’ deaths.  Optia staff members were reluctant, after discovering from the newspaper that NI had died, to facilitate BI’s attendance at the funeral for fear that she may be asked to leave. 

8. EC did not respond to the Investigator’s written requests for information.  Neither he, nor Ms. DN or Ms. NC responded to the notices of hearing or the invitation in the notice to contact the Board for further information.

The Hearing:

1. The hearing was attended by:

   BI
   Ms. Jane Blake – Advocacy Tasmania as advocate for BI
   Ms. LD
   Ms. Judy Prodan – Optia, Client Services Manager (as applicant)
   Ms. Leanne Brightmore – Optia, Residential Coordinator
   Ms. Jo Dobson – Optia, Support worker
   Ms. Jessica Watson – The Public Trustee

2. There was no dispute that BI is a person with a disability and that she is incapable of making reasonable judgments about her estate.  There was also no dispute that she is in need of an administrator.  As the Public Trustee was the only nominee for that role, this also was not in dispute. 

3. Optia staff members reported as follows:  Presently Optia manages BI’s finances as a Centrelink nominee.  Staff members of Optia have authority as signatories to her account.  But for the deaths of her parents, Optia would most likely have continued managing her estate in this BI.   BI needs a new wheelchair (which is estimated to cost around $20,000.00) and other equipment. She would benefit from a holiday (which is generally very costly because she requires attendance by two staff members) and has changing health and support needs associated with the process of ageing.  There is currently insufficient money to sustain her future needs.

4. LD confirmed at the hearing that NI. and GI had made wills relatively recently, but she was unsure what legal advice they had when making them. She said that BI was left $15,000.00 in the wills (which conflicted with her earlier statement that it was $10,000.00) and that this was provided to LD to manage on BI’s behalf for the rest of her life.  She had not yet taken receipt of those funds.  She said that all three sisters wanted to ensure that BI was well looked after.  She stated that probate had just been granted and that the sale of some shares had held up the distribution of the estate.  She stated that she did not know the total value of their parents’ estates. 

5. LD sought clarification about the nature of a Testator’s Family Maintenance application and the reasons for the application.  This clarification was provided by the Board. 

6. Ms Blake confirmed that she has been BI’s advocate since she left Willow Court.  She stated that, because of the communication difficulties, she was unable to advise of any particular wishes that BI may have regarding the application or her parent’s estate. 

7. There was some discussion at the hearing about whether the appointment of an administrator could be limited to dealings with BI’s entitlements from her parents’ estates or whether it should be a full order.  Ms. Watson from the Public Trustee outlined a process which exists for current mutual clients of Optia and the Public Trustee to reduce transactions fees for clients. The discussion concluded that it was necessary and convenient to have a full appointment so that the Public Trustee could access funds to pay for legal advice if required. 

8. There were discussions during the hearing about other roles, such as who is the ‘person responsible’ for BI for the purposes of section 4 of the Act, which did not relate to the application but it was in BI’s best interests for the discussions to occur at that time and amongst those persons gathered. 

Findings:

1. The Board was satisfied on the basis of Dr Cox’s reports and observations at the hearing that BI is a person with a disability and unable to make reasonable decisions with regard to her estate. 

2. The Board was satisfied that BI is in need of an administrator.  The informal arrangements in place presently to manage BI’s income and expenses have clearly been convenient and relatively effective, however it is of concern to the Board that she has accumulated $15,000 which is held in a pensioner savings account rather than being more securely and productively invested.  It is also of concern that, other than receipt of the Centrelink benefit as a Centrelink nominee, Optia has had no formal source of legal authority to manage BI’s funds.

3. However, the primary need for an administrator is to investigate BI’s actual entitlement under her parents’ wills and, if it is found to be inadequate or inequitable, to pursue action or mediation to secure an appropriate level of entitlement.  With respect to BI’s need for an administrator, the Board did not consider that an action under the Testator’s Family Maintenance Act was fanciful or futile and therefore the possibility of such an action warranted the appointment of an administrator.   

4. The Board took into account the following matters with respect to the possibility of a Testator’s Family Maintenance Act claim: BI is clearly entitled pursuant to section 3A(b) of that Act to make a claim. On the scant evidence available to the Board it would appear that she has been left without adequate provision for her proper maintenance and support. The funds LD stated BI will receive from the wills would almost cover the cost of the wheelchair that she currently requires. BI’s ongoing financial needs are far greater than a need for a new wheelchair. As the evidence before the Board indicated that probate has only just been granted, it would appear that a claim would still be within time for the purposes of section 11 of that Act.

5. With respect to the alleged lack of relationship between BI and her father, Board notes the recent decision of His Honour Justice Evans in Doddridge v Badenach [2011] TASSC 34 where he stated with regard to an abandoned daughter who did not have a disability:

   “46 I am totally unpersuaded that anything that the applicant did or failed to do could warrant a finding that she forfeited or abandoned her moral claim on her father.
   47 I have no hesitation in concluding that the applicant, being the testator's daughter, coupled with the other matters that have been referred to, in particular his failure to fulfil his obligations to her during her childhood, he was subject to an obligation to provide for her out of his estate. She was his only child. That he had substantially repudiated his obligations to her during her childhood, did not absolve him of the obligation to provide for her upon his death and, if anything, it reinforced that obligation. Although his best opportunity to support her was past by the end of his life, she remained in need of his support, and insofar as he was able to do so, he was obliged to provide it.”

1. It is therefore in BI’s best interests and will promote her freedom of decision and action to appoint an administrator to pursue a benefit from her parent’s estate and to manage her estate generally. 

2. The only nomination for appointment of an administrator was the Public Trustee. The Board considers that this is the only appropriate appointment in any event. The applicant stated that pursuing an entitlement under the wills was beyond the role of any of their staff members to assist. Equally it is not compatible with the role as advocate to take up appointment as an administrator and, quite rightly, Ms. Blake did not seek appointment. The only other people noted in the application were the purported executor and the other beneficiaries under the will. It is clear that all of those persons would be disqualified for appointment by reason of section 54(1)(d)(ii) of the Act, in other words they are each in a position where their interests conflict or may conflict with the interests of BI.

3. The application for the appointment of an administrator is granted.  The Board expresses its appreciation to Optia for bringing this application to the Board’s attention.

After hearing an application by Optia Inc in respect of BI (hereinafter called the ‘represented person’), the Board was satisfied that the represented person:

• is a person with a disability, and

• is unable by reason of the disability to make reasonable judgements in respect of her estate; and

• is in need of an administrator

  THE BOARD ORDERS

1. That The Public Trustee be appointed as administrator of the estate of the represented person.

2. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.

3. That the order remains in effect until 20 July 2014.

   Anita Smith

   PRESIDENT

   Statement of reasons requested 17 August 2011

Statement of reasons delivered 18 August 2011