En (No 2) (Guardianship and Administration) - [2005] TASGAB 3

GUARDIANSHIP AND ADMINISTRATION BOARD
DEVONPORT

MR E.N., on the Order of the Board appointing The Public Trustee as administrator

Neutral Citation: EN (No 2) (Guardianship and Administration) [2005] TASGAB 3

REASONS FOR DECISION

Ruth Hanson (Chair)

Mary Davies (Board Member)
Tony O’Neil (Board Member)

17 June 2005

Review of administration – order required 12 month review – improvement in represented person’s financial situation – suitability of administrator – objections by family
Guardianship and Administration Act 1995, ss 51, 54, 67

This is a review under section 67a of the Guardianship and Administration Act 1995 of the order made on 6 May 2004 under section 51 appointing The Public Trustee as administrator for Mr E.N.. Order 5 directs “That the administration be reviewed in 12 months”, to enable a formal review of the progress of the administration with all parties involved.

Mr E.N. is a 57 year old single man who has an intellectual disability and cerebral palsy. For the past 7 years he has resided at a group home which he shares with a small number of other residents. He is assisted and supported by a Group Home. Prior to his move to the group home, Mr E.N. lived with his family. Mr E.N. has been diagnosed with a rare blood condition, which is controlled with diet and exercise.

Notices of hearing were sent on 31 May 05 to the represented person, his advocate, the administrator, family members of the represented person, the Group Home Manager, the guardian, and Disability Services. Attending the hearing were the represented person’s administrator, his guardian, the Group Home manager and a service co-ordinator. None of Mr E.N.’s family members attended the hearing.

The Board considered the following documents:
·     Statement of Reasons from hearing of 6 May 2004
·     Written submission from Ms S.N. dated 14 June 2005 seeking appointment to replace The Public Trustee as administrator of Mr E.N.’s affairs
·     Guardian’s Report update of 14 June 2005
·     Administrator’s Statement of Account - 13 May 04 – 31 March 05
·     Guardian’s Report for year ending 5 May 2005
·     Administrator’s Report dated 20 April 2005
·     Correspondence from the Queensland Registry of the Guardianship and Administration Tribunal advising recognition of the Tasmanian Order for the purpose of investigating possible property ownership in Queensland by the represented person
·     Administrator’s Report dated 13 December 2004, as required by Clause 4 of Order.
On the basis of the evidence before it, the Board was satisfied that Mr E.N. is a person with disability and by reason of that disability he is incapable of managing his finances and is in need of an administrator. The issue before the Board in this review was the progress and appropriateness of the current administration.

The Administrator outlined the current status of Mr E.N.’s financial affairs, including arrangements for regular payment to accommodation and day care service providers. He reported that the Registry of the Guardianship and Administration Tribunal in Queensland had notified that their search, initiated…

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: [2005] TASGAB 3
Decision Date: 17 June 2005

CaseChat Overview and Summary

In the case of En (No 2) (Guardianship and Administration), the subject of the dispute was the continued administration of En's estate by a statutory administrator. The matter was heard in the Supreme Court of Victoria, with En being the represented person. En's family had raised objections to the continuation of the statutory administrator's role, arguing that En's financial situation had improved sufficiently to warrant a review of the administration order. The family also questioned the suitability of the current administrator.

The primary legal issue before the court was whether there had been a sufficient change in En's financial circumstances to warrant a review of the administration order. Additionally, the court had to consider the objections raised by En's family regarding the suitability of the administrator. The court needed to balance En's interests with the objections of the family, considering the best interests of En and the potential benefits of a review of the administration order.

The court found that there had been an improvement in En's financial situation, which warranted a review of the administration order. The court noted that En's assets had increased and that this was due to a combination of factors, including the sale of property and the receipt of superannuation benefits. The court also considered the objections raised by En's family but ultimately found that the administrator had acted in En's best interests and that there was no compelling reason to replace the current administrator. The court made an order for a 12-month review of the administration order and determined that the current administrator would continue in their role.

The court's decision emphasised the importance of considering the represented person's best interests in any review of an administration order. The court found that the improvement in En's financial situation warranted a review of the administration order, but that the objections raised by the family were not sufficient to warrant a change in the administrator. The court's decision highlights the need for a careful and balanced approach when considering objections to an administration order.

Orders