DKE (Administration)

[2016] TASGAB 3

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

DKE (Administration) [2016] TASGAB 3

–   Application for the appointment of an administrator   by NE

–   Application for the appointment of an administrator   by The Public Guardian

REASONS FOR DECISION

Sandra Taglieri (Chairperson)
Grant Kingston (Member)
Lindi Wall (Member)

Hearing 8 June 2016

Administration – suitability for appointment – whether expenses for proposed person’s benefit – parental conflict over expenses – the compatibility of the proposed administrator with the proposed represented person’s guardian

Guardianship and Administration Act 1995 – sections 54(1)(d) and 54(2)

Introduction

1. The Board conducted a hearing in relation to two (2) separate applications for Administration in relation to DKE.  DKE’s father, NE made application to be appointed as his daughter’s administrator and The Public Guardian, appointed as DKE’s Guardian by order made on the 30^th October 2015, applied for appointment of the Public Trustee to be DKE’s administrator.

2. All relevant interested parties were heard in respect of each application and the following persons attended and provided information:

   NE (Applicant 1 and proposed Administrator) and his Counsel Mr Greg Barns;
   Liz Love, Public Guardian (Applicant 2);
   Rosemary Jurs from the Public Trustee as proposed Administrator nominated by Applicant 2;
   DE, mother of DKE and her partner, DC.

3. During the hearing, NE acknowledged that there was a degree of “costs sharing” between himself and DKE, and that without this he would be in straightened financial circumstances. This raised a potential conflict of interest, which may render him unsuitable for appointment as an administrator.  As such, the Board considered it appropriate to invite written submissions to assist in appraising the capacity of the proposed administrators to objectively approach the question of DKE’s costs of living, depending on whether she resided in a group home or continued to reside with NE.  Consequently a direction was made for written submissions about this topic.  Written submissions were received from all the parties who appeared at the hearing.

The written submissions, information provided orally by persons at the hearing and documents     before the Board[1] were all taken into account for the purposes of the determination that follows.

Whether an administrator ought to be appointed?

[1] Documents identified in annexure “A”

1. Section 51 of the Guardianship and Administration Act 1995 empowers the Board to appoint an administrator for a person if:

that person is a person with a disability; and  

a)is unable by reason of the disability to make reasonable judgments in respect of matters relating to all or any part of his or her estate; and

b)is in need of an administrator of his or her estate.

1. It was common ground that DKE was a person with a disability and unable to make reasonable judgments in respect of her estate because of that disability.  The parties were also agreed that DKE was in need of an administrator and the only question for determination at the hearing was whether the Public Trustee or NE ought to be appointed.

2. Given the ambit of the issue to be determined at hearing, Section 54 of the Guardianship and Administration Act 1995 is relevant and has been considered. Sections 54(1)(d) and 54(2) provide as follows:

   (1)The Board may appoint as an administrator of the estate of a proposed represented person –

   (d)any person including the guardian of the proposed represented person who consents to act as administrator if the Board is satisfied that -

   (i)the person will act in the best interests of the proposed represented person;     and

   (ii)the person is not in a position where his or her interests conflict or may conflict with the interests of the proposed represented person; and

   (iii)the person is a suitable person to act as the administrator of the estate of the proposed represented person; and

   (iv)     the person has sufficient expertise to administer the estate.

(2)In determining whether a person is suitable to act as the administrator of the estate of a proposed represented person, the Board must take into account –

(a) the wishes of the proposed represented person, so far as they can be ascertained; and

(b)the compatibility of the person proposed as administrator with the proposed represented person and with his or her guardian, if any.

1. It was not possible to ascertain the wishes of DKE given the extent of her disability which is described by Clinical Associate Professor Wallace in a report of 9 April 2014 as intellectual disability cerebral palsy.  Associate Professor Wallace identifies that DKE does not have speech but has some vocalisations.  In view of Associate Professor Wallace’s opinion generally, the Board was satisfied that DKE lacked capacity to comprehend the nature of the administration applications, form judgments about them and convey those to the Board. 

2. In view of the nature of the applications and the areas of agreement, the primary considerations to be weighed up, are those in Section 54(d)(i) and (ii) and 54(2)(b) of the Guardianship and Administration Act.

3. As the Public Trustee is a professional and independent trustee there is no doubt in the Board’s view that it meets the necessary requirements for appointment as an administrator.  If however NE also meets the requirements for appointment it will be necessary for the Board to determine which of the two (2) ought to be appointed.

Acting in the best interests of DKE/Conflicts of interest?

10. The Board had before it a bank account statement recording NE’s informal management and operation of DKE’s income for the period 4 February 2016 to 30 May 2016.  The statement is representative of the way NE has expended DKE’s money for a much longer period, since she has resided solely in his care.

11. The transactions shown in the account statement demonstrate that NE has regularly applied sums of DKE’s income towards shared expenses, such as rent, insurance and power.  Further they demonstrated that irregular sums were withdrawn and applied towards fuel, groceries and other expenditure, but if was not always readily apparent that the sums were solely for DKE’s benefit.  There are other withdrawals shown in the account statement which on their face cannot be seen to relate to expenditure for DKE’s benefit[2].  NE was questioned by the Board in relation to these matters and some answers were not satisfactory.  NE’s Counsel acknowledged that there was ambiguity about what some expenditures were for and submitted that NE would be willing to have assistance in relation to better recording and reporting.

[2] Numerous online or mobile withdrawals for varying sums, without reference to the topic expenditure

12. NE told the Board that he was interstate in Victoria between 23 March and 30 March 2016 as he had taken some respite and visited his son.  During this period DKE resided with her mother.  The bank account statement evidences however that on 21 March a cash withdrawal was made from DKE’s account from the Handybank Pakenham.  DKE could not have made the withdrawal given her disabilities and NE was in Victoria with his son in the Pakenham area. 

13. At worst, the above matters tend to suggest that NE operates the account for purposes other than those relating to DKE.  At best, if the transactions are for DKE’s benefit, the recording and verification of the expenditure is not satisfactory.

14. At the hearing and in written submissions received following the hearing, NE conveyed that he would not entertain DKE residing in a group home.  It was clear that he wished that she continue to live with him and that he remain her primary carer.  In the written submissions dated 20 June 2016 it was said that “we note that the Board has assured NE there is no intention to remove DKE from his care and place her in a group home.  If the guardian wishes to make such an application it will be strongly opposed”.  This statement together with the concession about the benefit to him from cost sharing with DKE, reflects lack of independence and potential compromised ability to assess what is objectively in DKE’s best interest.

15. During the course of the hearing NE’s Counsel made submissions implying that the Public Guardian had acted inappropriately in some way by making an application for appointment of the Public Trustee as administrator.  The inference made was that The Public Guardian had “taken sides” with DKE’s mother.  The various statements during the course of the hearing demonstrated that the relationship between NE and DKE’s mother and The Public Guardian (at least since Ms Love was assigned), was lacking trust and co-operation. It conveyed an unconstructive arrangement for facilitation of DKE spending safe time with her mother, exposing DKE to risk to her health and well being.  Despite this, NE’s Counsel submitted that he would work and co-operate with the Public Guardian, which was considered unlikely.

16. It was apparent during the hearing that NE disputed much of what was asserted by the Public Guardian and DKE’s mother.  The theme of the disputation involves amongst other things, who is to pay for and what is to be paid for in respect of  DKE’s needs during visits with her mother, provision of sufficient number of continence pads, feeds, clothing and suitable wheelchair. NE and DKE’s mother have differing perspectives but it is apparent each concedes that conflict exists and has continued for a significant time. Because expenditure on needs are relevant to DKE’s financial affairs and estate, they necessarily implicate issues of Administration.  It is unnecessary to reach any final view about the specific facts in contest between NE and DKE’s mother.  The fact of continuing disagreement regardless of the specific nature of it and who if anyone is to blame, demonstrates compellingly the need for independence in the administration of DKE’s financial affairs.

Compatibility?

17. The Board also is obliged to consider whether NE is “compatible” with DKE’s Guardian.  The view of the Board is that there appears to be a degree of lack of compatibility and this too detracts from NE’s suitability for appointment as DKE’s administrator. 

18. It is likely that DKE’s estate and the amount of surplus funds available to meet her discretionary needs or wishes will be influenced by the expenses incurred for provision of accommodation, care and support to her.  Therefore, the comparative cost of various living arrangements are a serious matter to be considered by a suitable administrator.  NE has demonstrated a lack of willingness to give this issue independent consideration and that causes the Board to be concerned of his ability to act in DKE’s financial interests.  This is not to say that the Board formed any adverse view about the quality of personal care he provides to DKE.

19. In its written submission dated 23 June 2016, the Public Trustee provided informative comparative estimated costings in relation to alternative living arrangements and needs for DKE. The submissions demonstrated complete objectivity and identified means by which her estate could be managed differently for the sake of transparency should the Board grant NE’s application.  There will be some transactional costs involved if the Public Trustee is appointed, but overall they are not considered prohibitive.

20. The Board was referred to the authority of FHT (Administration) [2007] TASGAB 7 at [13] by Counsel. However the Board considers that more relevant to the facts in this matter was what the Board referred to at paragraph 10 of the decision, citing with approval Holt v Protective Commissioner (1993) 31 NSWLR 227.

21. Weighing the various considerations to which Kirby P referred to at page 242 of the Holt decision, the Board considers it preferable and in the best interests of DKE that an independent statutory officer be appointed as administrator.

22. In written submissions provided for the hearing NE’s Counsel stated “It is submitted that there is no necessity for appointment of the Public Trustee given the absence of any evidence that NE is not capable of or has mismanaged DKE’s financial affairs.  Further we submit that NE’s record is one of giving priority to the best interests of DKE”. 

23. The Board rejects the above submissions given its findings concerning lack of transperancy in the bank records, conflict which exists regarding expenditure on DKE’s needs, NE’s lack of objectivity regarding the costs of DKE’s living arrangements and his lack of compatibility with her guardian.

24. The Board therefore orders that the Public Trustee of Tasmania be appointed as the administrator of DKE for a period of three (3) years.

Conclusion

The Board was satisfied that the represented person:

• is a person with a disability;

• is unable by reason of the disability to make reasonable judgements in respect of their 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 17 July 2019.

DATED this 18^th day of July 2016.

Sandra Taglieri

Board Member