EKE (Review Administration)

[2019] TASGAB 12

CITATION:	EKE (Review Administration) [2019] TASGAB 12
HEARING DATE(S):	21 May 2019
DATE OF ORDERS:	21 May 2019
DATE OF STATEMENT OF REASONS:	24 June 2019
BOARD:	Ms K Brown, Member
APPLICATION	Application for Review of Administration Order
CATCHWORDS:	Review of Administration – appropriate person to act as Administrator – Administrator’s lack of understanding of role and her responsibilities as Administrator
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas), ss 6, 51, 54
PUBLICATION RESTRICTION:	The decision has been anonymised for the purpose of publication

Statement of Reasons

1. A review of an Administration Order made in relation to EKE on the 29 November 2018, which was due to expire on the 28 May 2019, was heard by the Guardianship and Administration Board (‘the Board’) on the 21 May 2019.

2. The background to the review is:

   a)EKE is an 80 year old man who is currently a resident at the [the Aged Care Facility].

   b)The Public Trustee was appointed as an Administrator for EKE on the 29 November 2018 and that order remains in effect until the 28 May 2019.

   c)The Board had before it an Application for a Review of the Administration Order.

3. Present at the hearing were:

   -Ms Rosemary Jurs (Public Trustee)

   -GX ([the Aged Care Facility])

   -TE, wife of EKE (by telephone)

4. The Board had the following documents before it:

   -an Application for Review of Administration Order;

   -a Health Care Professional Report from Dr Neuberger dated 9 April 2019;

   -a report from the Public Trustee dated 9 April 2019.

5. When assessing the appointment of an Administrator the Board needs to be satisfied of the matters in section 51 of the Guardianship and Administration Act 1995 (‘the Act’); that EKE:

   ·is a person with a disability; and

   ·is unable by reason of the disability to make reasonable judgements in respect of matters relating to all or any part of his estate; and

   ·is in need of an administrator of his estate.

6. The Board must also observe the principles set out in section 6 of the Act, which legislate the functions conferred by the Act that are to be performed so that the means is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and the best interests and the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.

Is EKE a person with a disability

1. A Health Care Professional Report (‘HCPR’) from Dr Neuberger provided to the Board in relation to EKE, dated 9 April 2019, stated that he has dementia and has a poor prognosis. The Board accepted this evidence.

Is EKE unable by reason of disability to make reasonable judgements about his estate

1. The HCPR of Dr Neuberger stated that EKE is unable to control his finances and has no appreciation of the value of money. This evidence was not opposed.

Need

1. There was no dispute at the hearing about the need for EKE to have an Administrator and the Board was satisfied there was a continuing need for an Administrator.

2. The primary issue for the Board to consider was not whether EKE required an Administrator but who was the appropriate Administrator to be appointed.

Is it appropriate to appoint TE as the Administrator

1. TE indicated she did not want the Public Trustee to be EKE’s Administrator.

2. The Board considered the provisions of section 54 of the Act which sets out factors to be taken into account when assessing whether a person is eligible for appointment as an administrator. Most pertinent was the consideration of whether TE was an appropriate appointment as an Administrator given those factors and the financial history of EKE and TE.

3. There was evidence before the Board that there had been an arrears in payment of monies owed to [the Aged Care Facility] and TE stated if it wasn’t for that, the appointment of an Administrator would not have occurred. She said the arrears was all a misunderstanding and the fault of Medicare. Although the debt had been cleared by the time of the hearing it was evident that it remained a significant focus for TE and there was confusion on her part around the debt and around the role and duties of an Administrator.

4. The responsibilities of an Administrator were explained to TE. As part of that discussion the Board made it clear that funds need to be kept separate.  TE said it ‘doesn’t matter where it comes from as long as they get paid’. The Board explained that there has to be a clear split between EKE’s money and her money. TE said [RM1] that after the money that it costs for the nursing home and chemist there’s nothing left and ‘that’s when I use MY money’ (emphasis added). She said she had been doing it all the time and failed to see the problem. Later during the hearing she asked if being an Administrator was “just a matter of having a name on the account and making sure the bills are being paid”. The Board re-iterated the legislative requirements of an Administrator.

5. The Board raised the issue of EKE also having a financial interest in the assets of the relationship, including an interest in property and in money in the bank accounts.

6. The Board explained if a person is appointed as an Administrator they would have to keep records to show the spending on behalf of EKE and would have to submit the records of the joint account so it would be transparent that large amounts of money weren’t being used and not available to him if they should be. TE indicated she would be willing to open a separate bank account for EKE if that was necessary.

7. After a further discussion about the joint savings TE said they also have a house in Queensland to maintain, a lot of maintenance to be done and she said that is what that money is there for: to bring it back up to speed. She indicated that is where she intends to reside.

8. The Board had before it evidence of two joint bank accounts (one with $47,000 and one roughly $4,000) and during the discussions about EKE’s interest in those funds TE said the $40,000 was her money and that the joint account was the one with $4,000. She said the larger amount was money was left to her.  She did not want to discuss the details of the bequest. The Board informed TE that both accounts were in joint names so on the face of it EKE had an interest in that money. TE said it shouldn’t be in joint names and she would go to the bank to fix that. The Board advised against that in strong terms.

9. The Board raised with TE the potential for someone else to be appointed as EKE’s administrator and she suggested her son but she hadn’t discussed that with him and he wasn’t present at the hearing.

Conclusion

1. The Board is concerned as to the intermingling of the finances of EKE and TE and the potential conflict of interest TE finds herself in. Further, the Board is concerned, after hearing the evidence, about the lack of appreciation by TE of the way in which finances have to be managed and accounted for by an Administrator.  TE’s responses demonstrated a lack of understanding of the role and duties of an Administrator.

2. The Board is mindful that it may be appropriate to appoint an alternate Administrator in the future but currently, given the lack of understanding of the fundamental responsibilities of an Administrator and the comments about the money in the joint account, it is not appropriate to appoint TE as the Administrator.

3. The Board urged TE to work with the Public Trustee to ensure EKE’s interests are protected, particularly in relation to the $47,000 in the joint bank account.

4. Frequently orders of this type are imposed for 3 years. The imposition of a shorter time period in is appropriate in this case to enable forensic investigation to be conducted and to enable interested parties to explore possibility of an alternate Administrator.

Determination

1. After hearing an Application to Review the Administration Order made on 29 November 2018 in respect of EKE (hereinafter called the ‘Represented Person’), 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.

2. The Board Orders:

   1.  That the Public Trustee (Tas) continue as the Represented Person’s Administrator.

   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 20^th day of May 2020.

[RM1]Without this insert word not sure if sentence is grammatically correct.