EU (Guardianship and Administration)
[2008] TASGAB 3
•6 March 2008
Guardianship and Administration Board
Hobart
Mr E.U. on the application of SPEAKOUT ASSOCIATION OF TASMANIA INC.
Neutral Citation: EU (Guardianship and Administration) [2008] TASGAB 3
REASONS FOR DECISION
Anita Smith (President)
Leon Peck (Member)
Wendy Beveridge (Member)
Decision: March 2008
Administration – incapacity – person with a disability an unsecured creditor in his sister’s bankruptcy – person owned property in joint tenancy with bankrupt sister and mother – accumulation of funds while basic needs not met – suitability of a bankrupt or her solicitor as administrator – consideration of requisite expertise.
Guardianship – withdrawal of person from external accommodation and day support services – reliance on mother and sister for socialisation and support – impact of family hostilities on socialisation.
Guardianship and Administration Act 1995, ss. 3, 6, 20, 51, 54
On 12 September 2007, the Board received an application for the appointment of a guardian and administrator for Mr E.U. The applicant was Speakout Association of Tasmania Inc. who provide advocacy services for him. Such application was made pursuant to sections 20 and 51 of the Guardianship and Administration Act 1995 (‘the Act’).
Mr E.U. was 44 years of age at the time of the application and the hearing. He lives with his mother, Mrs Q.U. and sister, Miss K.U. in Northern Tasmania and they own the house jointly. His only source of income is Centrelink benefits.
In accordance with the usual procedures of the Board, the hearing was conducted by the Chair as an informal discussion, all parties being present at the same time and able to contribute to that discussion where their evidence was relevant to a particular question.
A central issue in the application concerned the fact that Mr E.U. had allegedly loaned approximately $21,000 to his sister, Miss K.U., who had subsequently become bankrupt, nominating him as a creditor. Another significant issue is the deterioration in family relationships which have seen a breakdown between the household members named above and Mr E.U.’s sister, Mrs N.C. Legislative provisions relevant to the Board’s decision are set out in Appendix B.
The hearing:
The Board had available to it the documents listed in Appendix A. The Board heard the application on 9 November 2007. There was a very significant delay in commencing the hearing to enable Mr E.U. and his mother and sister, Miss K.U. to attend, due to their vehicle running out of petrol on the journey to the hearing. The applicant’s representative, Ms K.G., was unable to attend the hearing due to bereavement. The following persons (with reference to their relationship to Mr E.U.) attended the hearing:
Mr E.U. – proposed represented person
Mrs Q.U. – his mother
Miss K.U. – his sister
Mrs N.C. – his sister
Mr T.C. – his brother in law
Mr Peter Moore – his service coordinator from Disability Services
Ms Zie Devereaux – representative of the Public Trustee
Mr Kevin Preece – representative of the Public Guardian
A request for a statement of reasons was received almost 4 months out of time from Mr C, on behalf of Mrs Q.U., on 29 February 2008. The Board sought reasons for the delay by letter dated 4 March 2008 and received Mr C’s reply on 11 March 2008. The Board exercised its discretion to provide a statement of reasons out of time because explanation of the reasons for the decision may assist the parties to act in Mr E.U.’s best interests with the appointed guardian and the administrator.
Evidence of Disability and Incapacity (sections 20(1)(a) and (b) and 51(1)(a) and (b)):
Dr V.C. Powell supplied a completed pro forma Health Care Professional Report in support of the application. He stated that Mr E.U. has a disability and described that disability as Down’s syndrome and schizophrenia. He indicated that Mr E.U. has limited ability to make reasonable plans and follow them through and described him as impulsive and susceptible to undue influence. In particular he stated:
“I believe his sister Miss K.U. has a significant influence in his life.”
He rated Mr E.U.’s capability to handle finances very poorly on every count and indicated significant deficits in Mr E.U.’s ability to make personal decisions, noting:
“In consultation with Mr E.U. my impression is that he functions at the level of a 3-4 year old.”
Mr E.U.’s sister, Mrs N.C. described his abilities as follows:
“It is my belief that Mr E.U. does not have the cognitive ability to give permission for any loan. Mr E.U. has no concept of monetary value, seeing more value in a large quantity of coins as opposed to notes. He does trust family members, though, and would be kind hearted enough to agree to any proposition of a loan on the basis that he would be “helping out.””
There was no dispute that Mr E.U. has a disability and that he lacks capacity to make reasonable judgments with respect to all or part of his estate. His mother and sister, Miss K.U., were of the opinion however that Mr E.U. did have capacity to make decisions about his person and circumstances. They disputed the findings of Dr Powell on the basis that he had insufficient time to have made the necessary assessments and that Mr E.U. is capable of making personal decisions, particularly about contact with his sister, Mrs N.C. Miss K.U. stated that it was natural that she has influence over Mr E.U., as she lives with him.
Mr E.U.’s presentation and behaviour at the hearing confirmed for the Board the contents of Dr Powell’s report. He made repetitive comments throughout the hearing, mostly of a negative nature regarding his sister Mrs N.C., comments that served Mrs Q.U. and Miss K.U.’s views about Mrs N.C.. His comments struck the Board as a learned response to his immediate environment, where his mother and sister are in conflict with his other sister, rather than displaying an ability to make reasonable judgments.
The Board was satisfied that Mr E.U. is by reason of his disability incapable of making reasonable judgments about his estate or his person and circumstances. The Board was also satisfied that Mr E.U. is highly influenced by the opinions of his mother and sister, Miss K.U.. While the Board noted that any statement of wishes Mr E.U. made was consistent with their views, the Board was also of the belief that such statements reflected little of his genuine emotional response and more of an environmental influence.
Need for an administrator (section 51(1)(c)):
The applicant stated that Mr E.U. needs an administrator to protect his share in the family home and to represent his interests in a bankruptcy claim against his sister, Miss K.U.. She noted that Mr E.U. was listed as an unsecured creditor in Miss K.U.’s bankruptcy. The application disclosed that Mrs Q.U. had not responded to any correspondence from the trustee of the bankrupt estate because she had been advised by Miss K.U. that ‘everything was going to be alright’.
The application included copies of the following documents:
· Letter from Paul Cooke and Associates to Mrs Q.U. dated 29 May 2007
· Letter from Paul Cooke and Associates to Mrs Q.U. dated 30 July 2007
· Letter from Paul Cooke and Associates to Ms K.G. (applicant) dated 15 August 2007
· Notice to Creditors of Bankruptcy dated 3 August 2007 (which notes Mr E.U. as a creditor to value of $21,000 and Mrs Q.U. as a creditor to the value of $7,500.00 and includes supporting information)
· Copy of an email from Mrs N.C. to Ms K.G. (applicant)
(Evidence from Miss K.U. was that the loaned amount was in fact $19,000.00 and this figure has been corrected with the trustees. The difference has little effect for the Board’s decision and we shall adopt the trustee’s sum of $21,000.00 for convenience.)
Mrs Q.U. and Miss K.U. made the decision for $21,000.00 to be paid from Mr E.U.’s estate to Miss K.U. to support her in a business venture. The business failed when Miss K.U. ‘had a cancer scare’. This loan was, according to Miss K.U., recorded in a document written by a lawyer ‘so as to protect Mr E.U.’, but such document was not produced to the Board. Although at one stage there was discussion of the house being sold to pay Miss K.U.’s debts, the Board was informed at the hearing that this was not an option and that Mrs Q.U. would buy out Miss K.U.’s share rather than allow that to occur.
According to the Public Guardian, the trustees (Paul Cook and Assoc) and Mrs N.C., the shared house and land is in poor repair. There is no hot water. The trustee’s information is that the value of the house is $40,000.00 ‘based on the condition of the property and the presence of asbestos’. Mrs N.C. was extremely concerned that given the rather strict circumstances in which Mr E.U. lives, the mere accumulation of a sum as large as $21,000.00, without applying such funds to necessary maintenance and support, constituted an unreasonable denial of Mr E.U.’s basic needs.
The Board held serious concerns about the decision by Mrs Q.U. to apply a significant proportion of Mr E.U.’s funds to Miss K.U.’s business as an unsecured loan and the result that such funds now appear to be unrecoverable.
Ultimately, while there was dispute about some of the evidence, there was not a dispute about Mr E.U.’s need for an administrator. It was unclear on the evidence whether there was any further role for any of the creditors to play in recovering debts from Miss K.U., however it seemed highly unlikely, but possible. It is also unlikely, but possible, that Mr E.U.’s share in the house and land may need to be protected in future transactions, such as his mother buying his sister’s share of the home. It was clear that an administrator would need to investigate (i) the possible recovery of the loan moneys and (ii) the possibility of the sale of the family home as part recovery of those loan moneys. Such decisions involve a degree of financial and legal complexity. These more complex tasks should not overshadow the administrator’s basic role in addressing Mr E.U.’s need for his funds to be applied towards maintaining an adequate lifestyle.
The primary need for an administrator was ultimately to ensure that his funds are applied towards maintaining an adequate lifestyle with appropriate external support rather than being accumulated into accounts and used for the benefit of others. Given these factors, the Board was satisfied that there was a need appointment of an administrator for Mr E.U.. The Board was also satisfied that these needs could not be met by a limited order.
Appointment of an administrator (section 54):
The main objection raised at the hearing by Mrs Q.U. and Miss K.U. with regard to the application for administration was in relation to who might be appointed. Miss K.U. said that her lawyer was not confident that the appointment of the Public Trustee would be appropriate. The Board did not consider Miss K.U. as an appropriate administrator because she is presently bankrupt. The appointment of a bankrupt as administrator was previously considered in a decision of the Board in file no. XXXX on 31.7.07 and we adopt those reasons as follows:
“9. The Board needs to decide in light of the above between appointment of the applicant and the appointment of the Public Trustee. The decision in Holt v Protective Commissioner (1993) 31 NSWLR 227 is relevant to the application of section 54(1)(d) as against section 54(1)(a). In that case, while he was careful not to be seen as setting down guidelines, Kirby P stated at page 242:
“When weighing up the competing advantages of appointing a family member or the Protective Commissioner to manage the estate of a protected person, the court may take into account as relevant:
(a) to the appointment of the Protective Commissioner, the following advantages:
i. the manifest independence of his statutory office;
ii.the advantages of a dispassionate and neutral approach where there is a potential for family conflict and sharply divided views concerning the best interests of the protected person;
iii.the expertise of his staff, their experience in managing estates, the know how accumulated by them and their impeccable reputation; and
iv. the security provided to the estate against loss or damage; and
(b) to the appointment of a family member, the following advantages:
i.the size and complexity of the estate: in a smaller estate it may often be appropriate to appoint a family member who will be entirely familiar with the assets and liabilities and readily able to manage them with greater economy and possibly free of cost to the protected person. The Protective Commissioner is entitled to and ordinarily does recover fees under the Act.
ii.The capacity of the protected person, if disabled, to interact with his or her manager so that, so far as possible, within the disability which has lead to the appointment, such person may remain in charge of, or at least able to influence, the broad directions of the estate;
iii.The ingredient of love and affection and unquestioning devotion to the protected person which an appropriate family member can add to the task of management. Whilst the office of manager is, by definition, concerned with proprietary and financial matters and involves the prudent control of the property and like interests of the protected person, in the nature of things the manager of the estate of a protected person is more likely than a general trustee or receiver to become involved in decisions which affect the protected person’s quality of life. A lifetime of knowledge of the person and a devotion to his or her interests may contribute to that quality. It may more readily be secured by the appointment as manager of a family member with the requisite knowledge and motivation
iv.Any special feature of the case which may require particular attention. …
v.Any special qualities of the applicants to act as managers will be relevant. Although professional training does not necessarily guarantee good management, that fact that one of the present appellants of a chartered accountant and the other a medical practitioner suggests, at least, the possibility that they would not be unfamiliar with the management of large sums of money.
… The Protective Division of the Court must respond, as statute envisages, with a proper mixture of compassion, vigilance and efficiency.”
Kirby P’s description of the role of the Protective Commissioner is extremely similar to the role of the Public Trustee in this case and the manager of a protected person’s estate is extremely similar to the role of an administrator under the Act. Therefore I take each of those matters into account. …
There is no doubt that having proceeded through a bankruptcy, the applicant is entitled to assume responsibilities in business and finance the same as any other person. The following statements are relevant:
“The overriding intention of the legislation in all Bankruptcy Acts is that the debtor on giving up the whole of his property shall be a free man again, able to earn his livelihood, and having the ordinary inducements to industry.”[1]
And
“The law should enable the debtor to be freed from the burden of accumulated debts so that the debtor can make a fresh start.”[2]
[1] Re Gaskell[1904] 2KB 478 at 482.
[2] Lewis’ Australian Bankruptcy Law 11th Ed. D. Rose QC, LBC Information Services 1996
However, the assumption of responsibilities as an administrator, a position of trust, is a particular responsibility over and above the management of one’s own business and finance. The responsibility of the Board in considering appointment as administrator is to give priority to the best interests of the proposed represented person over the rights of the applicant. In Miller v Cameron (1936) 54 CLR 572, Latham CJ said:
“It has long been settled law that, in determining whether or not it is proper to remove a trustee, the Court will regard the welfare of the beneficiary as the dominant consideration. (Letterstedt v Broers(1))”
It is relevant that:
“There is no legislation in Australia preventing a bankrupt from being a trustee, although at common law a bankrupt is unfit to act as a trustee and bankruptcy constitutes grounds for removal.”[3]
And
“A bankrupt is unfit to act as a trustee.”[4]
[3] Jacobs’ Law of Trusts in Australia 7th Ed. JD Heydon and MJ Leeming, Lexis Nexis Butterworths Australia 2006 at [1413].
[4] Ibid at [1517].
Two distinctions arise from these statements and the present application. One is that the applicant has been discharged from bankruptcy, and therefore is no longer a bankrupt, and the other is that it is a case of appointment rather than removal as a trustee or administrator. It is relevant, however, to consider potential grounds for removal of an administrator in weighing up whether to make an appointment.
In Miller v Cameron (above) a case which proceeded 7 years after the bankrupt had assigned his estate, the Chief Justice also stated:
“Perhaps the principal element in the welfare of the beneficiaries is to be found in the safety of the trust estate. Accordingly, even though he has been guilty of no misconduct, if a trustee is in a position so impecunious that he would be subject to a particularly strong temptation to misapply the trust funds, the Court may properly remove him from his offices as trustee. … A trustee who becomes bankrupt is removed almost as of course. (Bainrigge v Blair(2)). There may be exceptions under special circumstances to this rule, but the rule is generally applied. (In re Baker’s Trust (3)). If bankruptcy is explained by financial misfortune without moral fault and the trustee has recovered from pecuniary distress he may be allowed to retain his office (In re Adam’s Trust (4)).
Further in Chambers v Jones (1902) 19 WN (NSW) 248 the court found that:
“With reference to the main question, bankruptcy was prima facie evidence of the unfitness of a trustee, and the Court of Equity would always at the instance of the beneficiary remove or require a trustee to retire who had been recently bankrupt, unless the trustee proved (1) that his bankruptcy was due to misfortune and not imprudence, and (2) that he was at the time of the hearing of the suit possessed of sufficient capital, not income, as would afford sufficient security to the estate against possible breaches of trust into the future.”
Some facts about this application appear to be relevant in light of the above considerations. One is that the failure of the applicant’s business resulted in the proposed represented person’s own bankruptcy and the loss of her home. The second is that the proposed represented person may be, if she is entitled by the onset of disability to make an early claim for her superannuation, entitled to a significantly greater estate than the applicant. Thirdly, even without the payment of superannuation funds, the funds from the proposed represented person’s mother’s estate will occasion a significant disparity in the relative wealth between the applicant and the proposed represented person.
I cannot escape the conclusion that the applicant’s previous financial behaviour resulted in significant losses for the proposed represented person. The estate that she is now entitled to is particularly personal and the Board must take every step to ensure that it is secure and available for her future needs. I have considered whether the appointment of the applicant could deliver the same level of security if certain reporting conditions and directions were embodied in the order. This would require a higher than usual level of scrutiny by the Board of this account. However, the main consideration is that if the Board subsequently discovered a disallowable expense during such scrutiny pursuant to section 63(6) of the Act then the applicant has little or no personal estate from which to reimburse such an expense.
Therefore, even though there is no evidence of misconduct or intended misconduct by the applicant, in considering the best interests of the proposed represented person, on balance, I am satisfied that the compassionate, vigilant and efficient course is to appoint the Public Trustee as administrator.
Miss K.U. stated that her lawyer may be an appropriate person for appointment. The Board did not consider this nomination because (a) no consent had been received for appointment as required by section 54(1)(d) and (b) such a person would have a conflict of interest in acting both as legal representative for the bankrupt and administrator for one of her creditors.
Although the uncontested evidence was that Mrs Q.U. had maintained full control of Mr E.U.’s accounts, she did not nominate herself for appointment as administrator. If she had, the Board would not have appointed her because her decision to advance an unsecured loan of $21,000.00 from Mr E.U.’s estate to Miss K.U.’s estate was entirely imprudent and lacking in any understanding of the need to apply a fiduciary duty in the management of money on behalf of a vulnerable person. Further, the accumulation of such large sums of money when basic needs, such as the provision of hot water, are denied means that she lacks sufficient expertise for the purposes of section 54(1)(d)(iv).
The Board was of the opinion that appointing an independent authority as administrator would (a) encourage Mr E.U.’s independence in the community and his ability to access appropriate services thus representing the alternative that is least restrictive of his freedom of decision and action and (b) be in his best interests as it would ensure flexibility and accountability in financial transactions on his behalf. With regard to the other principle in section 6 of the Act, however, appointment of the Public Trustee is unlikely to be consistent with Mr E.U.’s wishes. In this case Mr E.U.’s best interests and the need to promote his freedom of decision and action outweigh his likely wishes.
Need for a guardian (section 20(1)(c))
From 1983 to 1997 Mr E.U. lived in supported accommodation run by “residential care provider” Enterprises. In 1997 he returned to living with his mother. According to notes from Speakout Association and Disability Services, it was also in 1997 that Mrs N.C. had a significant falling out with her mother and sister which has not been reconciled. According to the historical documents listed in Appendix A and evidence at the hearing, an application made about this time for accommodation with Disability Services resulted in two places being offered and then refused by Mrs Q.U. and Miss K.U. on Mr E.U.’s behalf. Disability Services had no further contact with the family from 2002.
The applicant stated that Mr E.U. had more recently withdrawn from a series of activities away from his home such as day programs and Speakout meetings. Mrs N.C. identified that Mrs Q.U. and Miss K.U. have medical conditions which impact upon their ability to provide care for Mr E.U.. She also identified that Mr E.U. is in the centre of hostility between her mother, her sister and herself.
Mrs Q.U. and Miss K.U. responded in writing to the Board as well as giving evidence at the hearing. They stated that Mr E.U.’s care, welfare and quality of life were their priorities. They accused “residential care provider” of having exposed Mr E.U. to unhealthy conditions, a lack of financial accountability and assault from other residents. In contrast they indicated that he had ‘gone ahead in leaps and bounds as far as his communication skills, social integration, personal happiness etc is concerned’ since leaving “residential care provider”.
Mrs Q.U. and Miss K.U.’s written statement also notes that Mr E.U.’s attendance at Day Support ended when he refused to attend, apparently sharing his mother and sister’s concern about the financial accountability of the Day Support provider. The Day Support programs are still available to him but he chooses not to attend, according to his mother and sister, due to concerns about back problems and falls and difficulties with his impaired eyesight. Mr E.U. apparently enjoys collecting, going for walks with his mother, going for drives with his sister and her dog and staying with a friend who lives an hour or so away. According to Mrs Q.U. and Miss K.U. they have tried to foster the relationship between Mr E.U. and Mrs N.C. but this failed due to Mrs N.C.’s failure to make herself available and Mr E.U.’s fear of her since witnessing a family dispute.
The written submission from Mrs Q.U. and Miss K.U. included a reference by a Pharmacist in support of Mrs Q.U.’s caring abilities.
Peter Moore from Disability Services confirmed that Day Support provider and other disability support services have the capacity to safely deliver services to persons with multiple disabilities, including vision impairments. He was also sceptical about Mrs Q.U. and Miss K.U.’s reasons for refusal of the accommodation and day support places that had been offered to Mr E.U., stating that it was likely that they would continue to find problems with any place that was offered because it might change the status quo.
Mrs N.C. stated that she had made efforts to maintain a relationship with Mr E.U. despite her falling out with her mother and sister, but that they have gradually made such contact more and more difficult. Mrs N.C. is very concerned that Mr E.U.’s life has become so limited and that he lacks external stimulation and support.
The Board preferred the evidence of Dr Powell, Mr Peter Moore from Disability Services and Mrs N.C. to the evidence of Mrs Q.U. and Miss K.U.. Mr Moore and Mrs N.C. impressed the Board as having an understanding of Mr E.U.’s capabilities and his need for external support and stimulation. Mrs Q.U. and Miss K.U. did not impress the Board as selfless carer’s of Mr E.U. in the manner that they may have wished, nor of being particularly competent to care for him.
The Board does not believe that it is likely in these circumstances that either Mrs Q.U. or Miss K.U. would be capable of assessing, at arm’s length, whether Mr E.U.’s continued residence is in his best interests or not, nor whether his attendance at community or rehabilitative services or re-establishment of his relationship with Mrs N.C. will be of benefit to him. Given the contents of Dr Powell’s report and the Board’s observations during the hearing, the Board was not satisfied that Mr E.U. is capable of expressing any independent wish with regard to these matters. At the hearing he repeated words said by his mother or sister, Miss K.U. and it is likely that if they were positive in their expressions about attending Speakout meetings, then he would be also. It appeared to the Board that the many excuses (e.g. travel difficulties, lack of adjustment for his impaired eyesight, his lack of enthusiasm) why Mr E.U. did not have external support and activity might all be surmounted if there was a genuine desire to promote his interests outside of the home.
In essence, the Board had concerns that Mr E.U., being strongly influenced by his mother and sister, has been incrementally withdrawn from any external positive influences to the extent that he is now entirely reliant upon them for all of socialisation and support. The level of control that they exert over him is disproportionate for a man of his age and abilities and has been to his detriment at the very least with regard to poor financial decisions on his behalf and the maintenance of a long running dispute with his other sister. It is in Mr E.U.’s best interests, in the opinion of the Board, to reduce the stultifying effects of his relationship with his mother and sister by increasing the levels of external support (including Mrs N.C. and her family) and examining future accommodation options for him. Again Mr E.U.’s stated wishes conflict with the Board’s assessment of his best interests and his freedom of decision and action.
The Board believed that the appointment of an independent guardian would facilitate an assessment of the most suitable options for accommodation, the support services that Mr E.U. may access outside of his home and access to all of his family. Such appointment can be suitably limited to these areas and a full order is not warranted.
THE BOARD ORDERS
That The Public Trustee be appointed as the represented person’s administrator.
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 Public Guardian be appointed as the represented person’s guardian.
That the powers and duties of the guardian are limited to decisions concerning:
accommodation,
access to support services,
access to Mrs N.C. and Mr T.C. and other family members and arrangements for meetings with those persons.
That the order remains in effect to 8 November 2010.
Anita Smith Leon Peck Wendy Beveridge
PRESIDENT MEMBER MEMBER
APPENDIX A
Documents available to the Board:
Application with annexures listed in paragraph 12 above
Pro forma Health Care Professional Report completed by Dr V Powell dated 20.9.07
Report by Senior Investigation and Liaison Officer, Anne Perks dated 5 November 2007
Facsimile from Applicant including:
·Letter from Speakout to ‘X’ dated 19 October 2001
·Client Update notes dated 26 October 1998
·Client Update notes dated 4 November 1997
·Client Update notes dated 7-10 November 1997
·Client Contact Notes dated 4 July 1997
·Letter from Legal Aid Commission to “residential care provider” dated 28 August 1997
Report by Disability Services dated 11 October 2007
Emails between Anne Perks and Peter Moore, Disability Services between 9.10.07 and 12.10.07
Statement by Mrs N.C. sent 23 October 2007
Report by Office of the Public Guardian dated 2 November 2007
Reference for Q.U. by Pharmacist dated 12 October 2007
Response to application by Mrs Q.U. and Miss K.U. dated 7 November 2007
APPENDIX B
Provisions of the Guardianship and Administration Act 1995:
Section 3 Interpretation:
"disability" means any restriction or lack (resulting from any absence, loss or abnormality of mental, psychological, physiological or anatomical structure or function) of ability to perform an activity in a normal manner;
Section 6 Principles to be observed
A function or power conferred, or duty imposed, by this Act is to be performed so that –
(a) the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and
(b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
(c) 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.
Section 20 Guardianship order
(1) If the Board, after a hearing, is satisfied that the person in respect of whom an application for an order appointing a guardian or an order appointing an administrator is made –
(a) is a person with a disability; and
(b) is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his or her person or circumstances; and
(c) is in need of a guardian –
the Board may make an order appointing a full or limited guardian in respect of that person and any such order may be subject to such conditions or restrictions as the Board considers necessary.
(2) In determining whether or not a person is in need of a guardian, the Board must consider whether the needs of the proposed represented person could be met by other means less restrictive of that person's freedom of decision and action.
(3) The Board must not make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the proposed represented person.
(4) The Board must not make an order appointing a full guardian unless it is satisfied that an order for limited guardianship would be insufficient to meet the needs of the proposed represented person.
(5) Where the Board makes an order appointing a limited guardian in respect of a person the order to be made is that which is least restrictive of that person's freedom of decision and action as is possible in the circumstances.
(6) Two or more guardians of a person, each with different functions, may be appointed under one or more limited guardianship orders.
Section 51 Administration orders
(1) If, after a hearing, the Board is satisfied that the person in respect of whom an application for an order appointing an administrator or an order appointing a guardian is made –
(a) is a person with a disability; and
(b) is unable by reason of the disability to make reasonable judgements in respect of matters relating to all or any part of his or her estate; and
(c) is in need of an administrator of his or her estate –
the Board may make an order appointing an administrator of that person's estate.
(2) In determining whether or not a person is in need of an administrator of his or her estate, the Board must consider whether the needs of the proposed represented person could be met by other means less restrictive of the person's freedom of decision and action.
(3) The Board must not make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the proposed represented person.
(4) Where the Board makes an order appointing an administrator of a person's estate, the order is to be that which is the least restrictive of that person's freedom of decision and action as is possible in the circumstances.
(5) An order made under subsection (1) –
(a) may be made subject to such conditions and restrictions as the Board thinks fit; and
(b) may be expressed to take effect when the represented person is aged 18 years.
(6) The Board may exercise its powers under this section on an application under Part 4 of Powers of Attorney 2000.
Section 54 Persons eligible as administrators
(1) The Board may appoint as an administrator of the estate of a proposed represented person –
(a) The Public Trustee; or
…
(d) any other 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.
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