BI (Guardianship and Review Administration) - [2014] TASGAB 19

Guardianship and Administration Board
HOBART

BI - Application for Guardianship and Review of Administration Order by LD

BI (Guardianship and Review Administration) [2014] TASGAB 19
GAB No. XXXX of 2014
REASONS FOR DECISION
Wendy Hudson (Chair)

Date of hearing: 21 October 2014

Guardianship – need for a guardian – person responsible – least restrictive
Review of administration – appropriate administrator – conflict of interest
Guardianship and Administration Act 1995 – s.20, 54, 63, 67
Background:

BI is 51 and lives in a specialist facility run by XXXX (XXXX) which is a not-for-profit organization based in Hobart. On 21 July 2011 the Board heard an application made by XXXX for an administrator. The Board appointed The Public Trustee as BI’s administrator for three years. On 10 July 2014 the Board reviewed the administration order and ordered that The Public Trustee continue as administrator for BI for a period of five years. There have been no previous applications for guardianship for BI.

The applications:

On 19 August 2014 the Board received applications from BI’s sister, LD for the appointment of a guardian and review of the administration order.

The Hearing:

The applications were considered by the Board at a hearing on 21 October 2014. The following persons attended:
BI’s three sisters – LD, NC and DN (by telephone)
LT (LD’s partner)
FD (LD’s daughter)
EC (NC’s partner)
CS and KQ (XXXX)
Representatives from the Public Trustee

The Guardianship Application:

In appointing a guardian, the Board must be satisfied of the elements in section 20(1) of the Guardianship and Administration Act 1995 (the Act) being whether BI:
(a) is a person with a disability, and
(b) is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to her person or circumstances, and
(c) is in need of a guardian.
The evidence contained in the application supports a finding that BI is a person with a disability, and is unable by reason of the disability to make reasonable judgements in respect of all matters relating to her person or circumstances. The question to be determined is whether BI ‘is in need of a guardian’. Subsection 20(2) of the Act provides that:
‘In determining whether or not a person is in need of a guardian, the Board must consider whether the needs of the proposed represented person could be met by other means less restrictive of that person’s freedom of decision and action’.
In a letter to the Board dated 4 September 2014 LD outlined that BI needs a guardian in relation to concerns regarding BI’s future accommodation and future health care, in particular life support options. LD also noted:
‘I have the capacity to fulfil this role better than a ‘person responsible’ in that...BI’s interests will always be better represented by family, rather than an employee’.
LD provided a history of a traumatic upbringing which meant the family was separated from BI’s care and welfare; an inability in the past to be involved in BI’s life and expressed her current ability to undertake the role of guardian. A number of witnesses referred to the wishes expressed by BI’s parents that LD be her guardian and administrator and contended that this was about family unity, preserving existing relationships and that there has always been a need for BI to have a guardian. LD stated that BI would like her sisters to be responsible for her and to be part of her life.
CS stated that BI had resided at the facility since her transfer from XD and that there was no current question in respect of BI’s accommodation. In relation to BI’s health care he noted that LD is to be contacted if an issue arises and recently he spoke with LD and obtained her consent for BI to receive a flue injection. DN stated that LD communicated with her and NC before any decisions were finalized and this was confirmed by LD. CS and LD indicated that they had a good working relationship.
The evidence before the Board indicated that there was no proposed change to BI’s accommodation and that LD was able to make decisions in relation to BI’s health care as person responsible in consultation with DN and NC. In these circumstances BI is not in need of a guardian because there is no current decision to be made regarding her accommodation and BI’s health care needs can ‘be met by other means less restrictive of that person’s freedom of decision and action’ through LD’s role as her sister’s person responsible which includes the ability to consider and make decisions about BI’s end of life choices.

The review of the administration order:

The review of the administration order is limited to who should be appointed as BI’s administrator – LD or The Public Trustee. The other elements of section 51 of the Act were not in contention. LD’s application was based on two arguments:
a)that The Public Trustee had not acted in BI’s best interest or in good faith, and
b)‘as my parents had it in their will that they wanted me to be Guardian and Administrator, both my sisters want me to take on this role and I wish to take it on as her sister as her parents are now deceased’ and ‘I am more suitable as I am best able to identify her needs and requirements - as her sister’.
In a letter to the Board dated 17 July 2014 LD raised a number of concerns regarding the current administration of BI’s estate, they include:
a)a substantial reduction in the estate from $160,000 to $90,000 in less than two years
b)excessive expenditure on such items as a television ($1,000 however $400 could have been spent), sound system ($1,500 however $300 could buy a good quality item), bird cage ($300), and bed raising ($6,000). LD stated ‘I wonder if the purchase of the bed had been more carefully researched, they could have bought a bed that did not need that adjustment – it could have been bought at the appropriate height…’
c)13 out of 15 purchases for the 2013-2014 financial year were made on the same day which indicated ‘…a lack of good-faith…pertaining more to convenience than to BI’s needs’.
On 22 July 2014 the President of the Board, who had conducted the review hearing on 10 July 2014, responded to LD advising that there had not been a reduction in BI’s estate, there had been an increase. At the hearing LD confirmed that point a) above was no longer a concern as it was due to misinformation.
In relation to point b) above LD stated that she had asked for information from The Public Trustee but did not receive any. LD did not seek to clarify her concerns with XXXX. CS stated that it was XXXX’s policy to work closely with families. KQ stated that during the last year there had been very limited involvement by the family in BI’s life but acknowledged that they welcomed the involvement now. The Public Trustee stated that they had in the past been cautious in relation to the information to be provided to BI’s sisters given BI’s Testator’s Family Maintenance (TFM) claim and lack of involvement but acknowledged that they can give information and work with BI’s family now that they are involved.
The Public Trustee stated that they are guided by XXXX in relation BI’s needs and what is reasonable and where necessary rely on advice from experts. CS stated that the television had been bought prior to his involvement with BI however he noted that BI obtained a lot of enjoyment from the sound system and television and that they had purchased a very good quality item that should last 10-15 years rather than a cheaper item that would break down and require replacement after two years. In relation to the bed raising CS clarified that the cost was not in respect of raising BI’s bed but was the purchase of a ‘hi/lo’ bed which can drop to the floor and has an air mattress which minimizes injury to BI. As a result of this information, BI’s family members acknowledged that there had been confusion resulting from a lack of communication and that they agreed that a lot of thought had gone into the purchase of the bed and noted that CS indicated that the bed was state-of-the-art and met BI’s needs. LD had also previously indicated that she did not have an ongoing issue with regards to the cost of the bird cage.
In relation to point c) above CS indicated that the reason why the same date appeared next to the items of expenditure was due to a transfer of records from paper to electronic and the date recorded was the date on which the data was entered on the system. BI’s family members appeared to have no further concerns regarding the dates of the expenditure.
The evidence provided by the staff from XXXX and The Public Trustee was not challenged by LD or other witnesses at the hearing. A review of the statements received from The Public Trustee indicates that BI’s estate has continued to increase despite the expenditure allowed to meet BI’s needs. In any event, the matters of concern raised by LD would not amount to a lack of ‘good faith’ which has a different meaning under section 63 of the Act.
LT expressed concerns that the Public Trustee had delayed the settlement of the Testator’s Family Maintenance action (TFM claim) and that this had caused unnecessary costs in the estate. LT and LD stated that the costs had amounted to $70,000 however the Board was provided with a copy of the letter of settlement which confirmed that the matter settled on 27 September 2012 and the total costs for the four parties amounted to $42,792.65 which included costs of probate and administration with The Public Trustee costs claimed at $10,607.24. The Board considered that costs were a matter that should have been pursued in those proceedings and is not relevant to the current application.
Essentially the criticisms outlined above stem from miscommunication or lack of communication and are really about the relationship with The Public Trustee rather than their competence as administrator for BI. For the sake of clarity, the Board notes that there is no duty on an administrator to share financial information about a represented person with third parties, including family members. An administrator has a duty to protect the privacy of a represented person but may decide to share information where that assists to consult about the person’s needs or their best interests.
If BI dies intestate, which is likely, her sisters will inherit her estate under an intestacy and BI’s unexpended funds from their parents’ estates (and her own income) would most likely pass to LD, DN and NC in equal shares. Therefore, at law, each of BI’s sisters have a potential interest in the preservation of her estate. LD stated that she was not someone who would say ‘no’ if BI needed something. FD stated ‘we believe there is no conflict of interest…BI’s’ interests directly align with LD’s interests; LD has at no point expressed an interest in BI’s funds; its not mum’s interest to expend those funds, its mum’s interest to ensure that they are preserved into the future…’.
In considering whether LD is eligible to be appointed as administrator the Board must consider those matters set out in section 54(1) (d) and 54(2) of the Act. In taking those matters into account the Board does not consider LD is eligible to be BI’s administrator, this is based on the following:
a)unfortunately the family circumstances did not enable LD to have a relationship with BI which provided a lifetime of knowledge of her needs and items that provide enjoyment in her life. LD has become more involved in BI’s life more recently. After spending more time with her sister, LD might establish a stronger understanding by which she can demonstrate knowledge of BI’s needs and wishes,
b)the potential for a conflict of interest where there is a possible disincentive to spend BI’s funds to ensure that they are preserved for the future, and
c)it was argued that the wishes of BI’s parents should be taken into account, the Act does not identify this as a matter for consideration by the Board except to the extent that the deceased testator’s wishes align with BI’s best interests. The Act states that BI’s wishes must be taken into account if they can be ascertained however this was not possible.

CONCLUSION:

After hearing an application for a guardianship order and review of administration 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

That the application for review of administration be dismissed.
That The Public Trustee continue as the represented person’s administrator.
That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
That the administration order remains in effect to 9 July 2019.

AND FURTHER, the Board being satisfied that there is no need for the appointment of a guardian, the application for guardianship is dismissed.

…...........................
Wendy Hudson

MEMBER

Request for statement of reasons received: 21 October 2014
Statement of reasons delivered: 10 November 2014