DM – Application for the appointment of an administrator by Optia Inc.
[2013] TASGAB 17
•15 August 2013
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
DM – Application for the appointment of an administrator by Optia Inc.
Neutral citation: DM (Administration) [2013] TASGAB 17
REASONS FOR DECISION
Anita Smith (President)
Date of hearing: 15 August 2013
Administration – principles of the legislation – appointment of an administrator – proposed represented person in need of an administrator to represent her interests her mother’s intestacy – deemed eligibility of statutory agencies for appointment as administrators – relevance of capacity of statutory agencies to charge fees for administration - relevance of resources of statutory agencies – simple matter unlikely to require legal advice or representation
Guardianship and Administration Act 1995 – s. 6, 54
DM is a 31 year old woman who lives in supported accommodation managed by Optia Inc. Sadly, DM’s mother, the late KM, died intestate on 23 February 2013. DM’s only sibling, ED, is the applicant pursuant to Rule 45A of the Probate Rules 1936 seeking letters of administration for the estate. He and DM are the only potential beneficiaries of the estate.
Optia Inc. made an application for appointment of an administrator when a staff member of that service was asked by ED’s solicitor to serve DM with the Originating Application, but such service was not possible due to DM’s disability. In assessing this application pursuant to section 51 of the Guardianship and Administration Act 1995, the Board must be satisfied that DM is a person with a disability, that by reason of her disability she cannot make reasonable judgments about her estate, and that she is in need of an administrator. If so satisfied, the Board can then appoint an administrator pursuant to the criteria set out in section 54 of the Act.
The Board heard the application on 15 August 2013. The hearing was attended by:
DM – proposed represented person
ED – brother, applicant for letters of administration
KQ – representative of Optia Inc. (applicant)
M – staff member Optia Inc.
Carole Wever - representative of the Public Trustee
Elizabeth Dalgleish – GAB InvestigatorThe Board received a report by Dr. Don McLeod which indicated that DM has an intellectual disability and that she lacks any ability to make judgments about her estate. There was no dispute regarding this at the hearing and it was clear from DM’s presentation at the hearing that she would have no comprehension of the relevant issues. There was also no dispute that DM is in need of an administrator to represent her interests in the proceedings and to acknowledge receipt of DM’s share of the proceeds of the estate, once settled. Accordingly, the Board was satisfied that the application ought to be granted.
The applicant nominated the Public Trustee as potential administrator. The only other ‘interested party’ nominated in the application was ED who is presently ineligible for appointment while proceedings are on foot due to a conflict of interests with his two other roles as potential administrator of their mother’s estate and potential beneficiary (see section 54(1)(d)(ii) of the Act).
Section 54 establishes the means for the Board to select an administrator. If appointing a private person as administrator, there are extensive criteria in section 54(1)(d) and 54(2) for addressing the person’s eligibility and suitability. However in section 54(1)(a),(b) and (c), no eligibility or suitability criteria is set for the appointment of the Public Trustee, the Public Guardian or a trustee company - in essence they are all deemed equally eligible under the legislation. In the absence of specific criteria to select an administrator amongst the three named agencies, the Board relies upon the principles in section 6 of the Act. In this case, the only agencies under consideration were the Public Trustee and the Public Guardian (because the only available trustee company charges higher fees than the Public Trustee making it too expensive for small estates).
The appointment of an administrator is restrictive of DM’s freedom of decision and action, regardless of which agency is appointed. However, she will have greater freedom of decision and action if she has greater resources available to her. If the Board appointed the Public Trustee as administrator, it is likely that they will assume direct control of the funds that she has saved and managed with assistance from Optia Inc. This would not only reduce her freedom of decision and action but it will incur fees for management which reduces the resources available to her. The Public Guardian does not have the same ability to manage funds and does not charge fees. It appears that, with continuing assistance from Optia Inc., the appointment of the Public Guardian would be the least restrictive alternative in this case.
The Public Guardian was invited to the hearing but declined to attend. In a series of emails on 14 August 2013 to the Registrar she stated:
“It surprises me that I’m being considered to fill the role of administrator in circumstances where the Public Trustee has no obvious conflict of interest.
Unlike the Public Trustee I don’t have in house counsel at my disposal to undertake litigious estate matters which will necessitate engaging the DPP at direct cost to the estate (and consequently the client) which I note is only relatively small in value to begin with. I would also note that this Office doesn’t have the skill and expertise that the Public Trustee has in handling estate matters.”
Registrar:
“I have no idea what the Board will decide tomorrow, but I thought I should give you fair warning just in case. If you can’t attend would you like to give some written submissions that I can present to the Board”
Ms. Warner:
“I know - sorry didn’t mean to take it out on you – just frustrated as we are truly working so hard with no spare capacity – while TPT can charge fees to recover for their time and have DOZENS of staff to deal with clients. Sorry no time to do any written submissions b4 tomorrow!!”
In terms of DM’s best interests, the Public Guardian is correct that the Public Trustee will recover fees for legal services and for the management of the file. These are fees that will not necessarily be incurred with the appointment of the Public Guardian. This represents an advantage in the appointment of the Public Guardian.
This is not a complex litigious matter requiring the level of expertise and skill asserted by Ms. Warner. There is a small estate and two beneficiaries with an entitlement to 50% each. There are no unusual features of this case, no allegations of hidden assets and no conflict about entitlements. If DM did not have a disability, it is most likely that, like most beneficiaries in intestacies, she would not seek any legal representation in this case. The Public Guardian and another member of her staff are legally qualified. It is difficult to see why Ms. Warner assumed that she will have to brief the Director of Public Prosecutions to represent DM in such a simple matter. It concerns the Board that this approach is a waste of the Director’s and DM’s resources when the main tasks will be to accept service of the Originating Application on DM’s behalf and to sign a receipt for DM’s share of the funds.
The Board considers that appointing the Public Guardian as administrator in this case meets DM’s best interests as it is possible that the Public Guardian can perform that role at no cost to DM.
Consistent with the level of her disability, DM did not express any wishes with regard to the identity of an administrator. Therefore, in assessing the potential for appointment of the Public Trustee and the Public Guardian against the principles in the Act, the Board is satisfied that appointment of the Public Guardian best reflects the principles in the Act.
As my fellow Board member said in a decision written this week on a similar matter:
“The failure of the Public Guardian to attend [the hearing] is a pity, as it seems the Public Guardian made her response based on the circumstances of her office and not based on [DM’s] circumstances. The Board has no facility under section 54(1) to consider the resources of the potential appointees, so that submission was misguided.”
It is a function of the Public Guardian to act as administrator when so appointed by the Board pursuant to section 15(1)(h) of the Act. Again that provision is not subject to a sufficiency of resources.
Noting that the Public Guardian has no established means to manage estates as administrator, the Board gave advice to ensure that DM still has access to necessary funds but not requiring the Public Guardian to actively manage the accounts. However, there are currently 7 named signatories on DM’s credit union account, presumably all members of Optia Inc. staff. A prudent administrator would review that arrangement to ensure that all signatories are currently required and, if not, to reduce that number in the interests of DM’s financial safety.
The Board was satisfied that, absent the current conflict of interests, ED would be suitable for appointment as administrator. Therefore the Board created a ‘cascading-style order’ such that when the estate has been settled and therefore conflicts have been resolved, ED can assume the role of administrator with full powers subject to having provided the Board with a current Police Check.
Conclusion:
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, subject to paragraphs 2 and 3 hereunder, the Public Guardian be appointed as administrator of the estate of the represented person.
Pursuant to section 51 of the Act, the administrator is advised to review the number and status of signatories to the represented person’s account with Mystate but to otherwise give authority to Optia Inc. staff members to continue to assist the represented person to manage income and accounts in a manner similar to that which has occurred prior to the making of this order.
When the Board receives a written report from the Public Guardian notifying the Board that any legal proceedings regarding the estate of the late KM have concluded by settlement or by order of the Court and the proceeds have been deposited in the represented person’s access account with Mystate, then ED shall be appointed as administrator of the estate of the represented person and continue as such until the conclusion of the order.
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 order remains in effect until 14 August 2016.
Anita Smith
PRESIDENT
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