BND (Review of Administration) - [2012] TASGAB 3

GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON

Neutral citation: BND (Review of Administration) [2012] TASGAB 3

BND – Application for Review of Administration Order by MS and SD

REASONS FOR DECISION

Anita Smith (President)
Rodney Lester (Member)
Rowena Holder (Member)

Date of Review: 13 March 2012

Administration – review of order appointing Public Trustee – limits to Board’s obligations to review – statutory advantage of Public Trustee over private appointees – alternative courses for grievances against Public Trustee – consideration of alternative trustee company

Remuneration of proposed administrator - meaning of “carries on a business of, or including, the administration of estates, whether under this Act or otherwise”

Duration of orders made on review

Guardianship and Administration Act 1995 s 11, 17, 54, 55, 67
Ombudsman Act 1978 s 14

Singh (by her next friend Singh) v Calvary Hospital ACT Inc and Anor [No 2] [2009] ACTSC 57.

BND (the represented person) is an 81 year old woman who lives in an Aged Care Facility near Launceston. She has advanced dementia and was unable to participate in these proceedings due to her lack of understanding. She became the subject of an administration order pursuant to section 33 of the Powers of Attorney Act 2000 following a review of her enduring power of attorney on 27 August 2010. Whereas the enduring power of attorney appointed her three children (SD, DD and MS) as attorneys, the administration order appointed the Public Trustee as administrator until 27 August 2010. When the Board (differently constituted) made that administration order, it was satisfied that the represented person was a person with a disability, that her disability rendered her incapable of managing her estate, and that she was in need of an administrator. These findings were not challenged in the review. The review, pursuant to section 67 of the Guardianship and Administration Act 1995 (the Act), was conducted solely in relation to the the appointment of the Public Trustee as administrator.

The Board convened a review hearing on 13 March 2012 in Launceston. Some parties attended by telephone conference. In attendance were:

In person in Launceston:
DD (son)
KD (daughter in law)
Gregory Maloney (Public Trustee, Launceston Office Manager)
Timothy Levis (Public Trustee, Corporate Solicitor)
By telephone conference from interstate:
SD (applicant)
MS (applicant)
UC (solicitor for the applicants)
BC (represented person’s former accountant)
KP (nominee for appointment as administrator)

Role of the Board in Review Applications:

Although the Board did not write formal reasons for their decision in August 2010, members’ notes from the decision indicate a very poor relationship, and a lack of cooperation, between the attorneys who each live in different States. It is clear that the Board determined that an independent appointment would best suit the interests of the represented person at that time. It is also clear that the applicants have been unhappy with the appointment of the Public Trustee since that decision by the Board. A review does not take the place of an appeal pursuant to section 76…

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.

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Details

Case: [2012] TASGAB 3
Decision Date: 13 March 2012

CaseChat Overview and Summary

In the case of BND (Review of Administration), the Guardianship and Administration Board (the Board) reviewed an administration order made on 27 August 2010, appointing the Public Trustee as the administrator of BND's estate. The represented person, BND, is an 81-year-old woman living in an aged care facility near Launceston, who has advanced dementia and was unable to participate in the proceedings due to her lack of understanding. The applicants, SD and MS, are BND's children and had initially been appointed as attorneys under an enduring power of attorney. The Board had to decide whether the administration order should be continued, revoked, or varied based on the presented evidence and submissions.

The applicants' primary concern was the perceived inefficiency of the Public Trustee in managing the represented person's estate, particularly regarding the delay in making a decision on whether to rent or sell the represented person's property. The applicants nominated KP as an alternative administrator, but the Board was not satisfied that he met the necessary criteria, particularly in relation to remuneration. Additionally, the applicants proposed Tasmanian Perpetual Trustees as an alternative administrator; however, the Board did not consider it in the best interests of the represented person due to the significant fees and potential delays involved in transferring the administration.

The Board concluded that the represented person's loss of possible rental income was partly caused by the filing of the application for review, which left the represented person's administrator with limited options to address the issue. The Board also noted that the animosity between the applicants and the Public Trustee did not appear to impact the represented person's well-being. Furthermore, the Board considered that the Public Trustee's appointment should continue, as it would avoid duplication of fees and investigative work.

After hearing the review, the Board ordered that the Public Trustee continue as the represented person's administrator and that the administrator seek the views of the represented person's family regarding whether the represented person's property is sold or rented. The administrator must make a decision to either sell or rent the represented person's property within 28 days and communicate that decision and the reasons for that decision to the represented person's family members on the 28th day or as soon as possible thereafter. The administrator is further directed to refrain from advertising or contracting the property for rental or sale for a further 14 days from that communication to enable time to consider any further objection from the represented person's family.

Orders