EKE (Administration)

[2018] TASGAB 37

GUARDIANSHIP AND ADMINISTRATION BOARD

EKE – Application for Administration
EKE (Administration) [2018] TASGAB 37

STATEMENT OF REASONS

Board: Lindi Wall (Chair)

Date of Order: 29 November 2018

Administration - wife managing husband’s finances informally - risk resulting from unpaid accounts - need for appointment of independent administrator
Guardianship and Administration Act 1995

1. The proposed represented person is a 79 year old married man living at [the Aged Care Facility] since 16 August 2017 when he could no longer be cared for at home due to his high level of cognitive disability. The application for the appointment of an Administrator was made by [the Aged Care Facility] because of concerns that the EKE had no capacity to manage his finances, his finances were being managed by his wife, TE, and his nursing home fees had remained substantially in arrears ever since he moved to [the Aged Care Facility]. [the Aged Care Facility] had exhausted efforts to resolve this situation with TE. Arrears of fees put EKE’s tenure at risk and TE could not provide the care he needed if he had to live at home.

2. The application had been adjourned part heard by another Board member on 27 September in order to give TE the opportunity to demonstrate that she could resolve this financial situation and to give her the opportunity to apply for appointment as Administrator for her husband. TE did not make an application for appointment during the adjournment and the matter was listed afresh on 29 November 2018 for the hearing of [the Aged Care Facility]’s application for appointment of the Public Trustee as administrator for EKE.

3. EKE was unable to attend the hearing. Present were:

   ·           MK (Applicant, Director of Care, [the Aged Care Facility])

   ·           MC (Customer Relations Officer, [the Aged Care Facility])

   ·           Rosemary Jurs (Public Trustee Tas)

   ·           TE participated by phone.

1. The Board had reference to the following documents:

·           Application dated 9 August 2018

·           Letter ‘to whom it may concern’ by Dr R. L Peters dated 12 July 2018

·           Myagedcare support plan 26 June 2017

·Correspondence and account statements from [the Aged Care Facility] to TE                   2017 and 2018 filed in support of the application.

·           Notes of Decision dated 27 September 2018

·Letter from [the Aged Care Facility]’s finance Manager Julie Purves, to TE dated 27 September 2018.

Disability and Incapacity

1. The applicant advised that EKE suffers from dementia, paranoid delusions and memory loss. The ACAT assessment confirms that he had suffered from dementia with a progressive cognitive and functional decline over the year to June 2017. He had at that time short term memory loss, language impairment with significant word finding difficulties. The letter from Dr Peters, GP, advised that he had, since August 2013, noted a significant decline in EKE’s mental state and that in his view EKE is incapable of making rational decisions. There was no evidence to the contrary and there was no dispute that EKE is incapable of making financial decisions. The Board was therefore satisfied for the purposes of Section 51 of the Guardianship and Administration Act 1995 that EKE is a person with a disability and as a result is incapable of making reasonable decisions about his finances.

Is there a need for an administrator?

1. The undisputed evidence at the hearing was that TE was managing her husband’s finances informally and that since August 2017 when EKE moved to [the Aged Care Facility] his nursing home fees had been continuously in arrears.  When the application was before the Board on 27 September the arrears amounted to $11910.17. As at 28 November 2018 TE had been in discussions with [the Aged Care Facility] but the arrears were still $5192.29 with no specific arrangement for payment of the debt. EKE’s tenure at [the Aged Care Facility] therefore remained at risk. Additionally there were outstanding pharmacy accounts.

2. EKE’s finances are intermingled with those of his wife. They owned a residence in which neither of them resided and which was likely affecting the payment of daily care fees. EKE also had superannuation according to TE but she did not know its value.

3. EKE’s wishes on the subject could not be ascertained but it was clearly in his best interests to ensure that his accommodation was secured through payment of his fees.

4. The Board was therefore satisfied that there was no alternative to the appointment of an administrator to manage EKE’s finances.

Who should be appointed as administrator?

10.TE did not recognise the need for an administrator and wished matters to continue with her managing her husband’s finances as she had been doing. She held this position despite the fact that the application had been adjourned for two months to give her the opportunity to apply for the role herself, and to be considered for it if she was able to demonstrate her ability to resolve her husband’s financial situation. She had not, in fact, made an application for appointment and she had therefore not provided any details of her husband’s finances. Importantly, she had not been able to resolve the issue of the debt to [the Aged Care Facility]. At the hearing she agreed the account was outstanding but was unable to demonstrate how it was calculated or how she was going to pay it, saying, “Look, I haven’t gone through this. I am trying to pay it off.”

11.She was not able to articulate how she was organising her husband’s finances in relation to her own; she did not provide any explanation of the implications, if any, of the jointly owned real estate on Centrelink benefits and she did not consider the possibility of using other assets such as superannuation to pay debts. She focussed solely on the fact that Centrelink were not responding to her in a timely way thereby causing this situation that was outside of her control.

12.Whilst TE made it very clear that she would not countenance the appointment of the Public Trustee as administrator, seeing it as an intrusion into her affairs, the Board formed the view that an independent administrator was necessary, at least in the short term, to properly ascertain EKE’s assets and liabilities, to deal with Centrelink and Medicare to clarify his entitlements and to ensure that [the Aged Care Facility]’s accounts are paid in order to secure his accommodation.

THE BOARD ORDERED:

1. That the Public Trustee (Tas) be appointed as Administrator of the estate of EKE

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 the 28^th day of May 2019.