GDA (Guardianship and Administration) - [2009] TASGAB 9

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

GDA on the application of LJ

Neutral Citation: GDA (Guardianship and Administration) [2009] TASGAB 9

REASONS FOR DECISION

Anita Smith (President)
Elizabeth Dalgleish (Member)
Kim Barker (Member)

Review of guardianship and administration – role of an administrator in assessing claims under Testator’s Family Maintenance Act 1912 – need for a guardian

Guardianship and Administration Act 1995 – ss 20, 51, 67
Testator’s Family Maintenance Act 1912
The application to review:

On 12 December 2008 the Board, as presently constituted, appointed the Public Trustee to act as administrator for the represented person, GDA, and the Public Guardian to act as her guardian limited to making decisions about GDA’s accommodation. The appointment as administrator was subject to the condition that the “administrator report to the Board within 6 months regarding the feasibility of pursuing a Testator’s Family Maintenance claim or any other claim against the estate of NKA.”

GDA’s son and the applicant in this review, LJ, had notice of the first hearing although he was in overseas. The Board attempted to contact him by telephone but, due to technical difficulties, was unable to do so, and proceeded to hear and determine the matter.

LJ sought a review on the basis that he now nominated himself for appointment as GDA’s guardian and administrator. At the time of the first hearing, this nomination was not available to the Board.

Grounds of the application:

The applicant did not tender any new evidence with regard to the tests in section 20 and 51 for the appointment of a guardian or administrator. The application was brought solely on the grounds that LJ contended that, as her only blood relative, he was a more suitable appointee than either the Public Guardian or the Public Trustee. His evidence in the written application noted his relationship with his mother and their common language. LJ did indicate some dissatisfaction with the environment at the Aged Care Facility where the Public Guardian had decided that GDA should live.

Review of guardianship

In discussion at the hearing, LJ indicated that he was content with GDA’s placement at the Aged Care Facility, but the particular ward where she lives has an unpleasant odour and saw her housed with persons whom he judged to have a more significant level of disability to hers.

The Deputy Public Guardian, Margaret Colville gave evidence that GDA is in a secure ward of the Aged Care Facility because she tends to wander at night. Because of the sedating effect of medication that she takes, it is important that she is monitored and not allowed to wander at night in case she falls or comes to harm outside.

The Board was satisfied that, even if the particular ward does have an unpleasant odour, there was no evidence that this odour was of concern to GDA. There was, however, evidence that the placement in that ward was a response to security needs that she presented with at the time of admission.

Both the Public Guardian…

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.

Continue reading GDA (Guardianship and Administration)

Details

AGLC: GDA (Guardianship and Administration) [2009] TASGAB 9
Case: [2009] TASGAB 9
Decision Date: 2 June 2009

CaseChat Overview and Summary

The Guardianship and Administration Board of Tasmania was presented with an application by LJ to review the decisions made regarding the guardianship and administration of GDA, who is his mother. The Board had appointed the Public Trustee as administrator for GDA and the Public Guardian to act as her guardian limited to making decisions about her accommodation. LJ sought to be appointed as GDA’s guardian and administrator, arguing that as her only blood relative, he was more suitable for the role than the Public Guardian or the Public Trustee. The Board found that the Public Guardian had made a satisfactory decision regarding GDA’s placement at an Aged Care Facility and that the Public Trustee was still the appropriate administrator, given the need to investigate a potential claim under the Testator’s Family Maintenance Act 1912.

The Board considered the application for review of the administration, given that GDA's estate largely depended on the distribution of her late husband's estate. The Board was concerned that GDA may have a significant entitlement under her late husband's will and that it was in her best interests to investigate and pursue a possible contest of the will. LJ, however, seemed more interested in concluding the matter promptly in accordance with the terms of the will, without pursuing a contest. The Board also heard complaints about the Public Trustee, but did not find these complaints significant enough to warrant changing the administrator.

The Board confirmed the appointment of the Public Trustee as GDA’s administrator, given the need to investigate a potential claim under the Testator’s Family Maintenance Act 1912, and the unsuitability of LJ for the role due to his lack of understanding of the need to pursue a contest of the will. The Board revoked the guardianship order and maintained the administration order in effect until 11 December 2011. The Board also indicated to LJ that he may have responsibilities as GDA’s ‘person responsible’ to provide consent to medical and dental treatment on her behalf if required by medical practitioners.

Orders