GDA (Guardianship and Administration)
[2009] TASGAB 9
•2 June 2009
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 and the applicant agreed that the Aged Care Facility is an appropriate facility and both agreed that an internal transfer to a different ward may be appropriate, if available. Given that the appointment of the Public Guardian was simply to decide where GDA should live and that decision has been made to the satisfaction of all of the parties, the Board decided that the guardianship order ought to be revoked.
The Board indicated to LJ that he may have responsibilities as GDA’s ‘person responsible’ (which arises by operation of law under section 4 and Part 6 of the Guardianship and Administration Act 1995 (Tas)) to provide consent to medical and dental treatment on his mother’s behalf if this should be required by medical practitioners.
Review of administration
As was evident at the previous hearing, the extent of GDA’s estate rests almost entirely upon the outcome of distribution of her husband’s estate. Her husband’s will, appointing Brian Broadby as his executor, left her only a life interest in their home.
Mr Broadby is a licensed conveyancer with Steven Chopping, Solicitor. At the first hearing, Mr Broadby had proposed that he act as administrator, but the Board declined that appointment due to a conflict of interests with his role as the executor of the will.
That conflict of interest arises because the Board believed that GDA may have a claim under the Testator’s Family Maintenance Act 1912 and therefore an executor cannot also be an administrator for a beneficiary while the terms of the will may be the subject of a legal action. Appointment of Mr Broadby would be contrary to the terms of section 54(1)(d)(ii) of the Act. In light of there being no alternative nomination, the Board appointed the Public Trustee as administrator.
LJ presented his application to review administration as an alternative nomination. He was concerned that the Public Trustee charges fees for administration and the effect this may have of eroding his mother’s estate. There were also concerns, expressed by LJ and Mr Broadby, that inaction by the Public Trustee had cost money in maintenance to the property and decisions about its sale. It was clear from LJ’s evidence that he would prefer that the terms of NKA’s will are complied with and that no legal action proceed.
LJ also mentioned some lack of expenditure, such as a telephone and visual aids which were required by GDA, as evidence that the Public Trustee had not been attending to her needs.
In presenting himself as an alternative administrator, LJ indicated that he runs his own advertising business as evidence that he has sufficient expertise for appointment. He stated that he would allow the executors to sell the property and invest the funds in the trust as managed by the trustees under NKA’s will.
Discussion and conclusions:
The Board is aware of recent decisions in the Tasmanian Supreme Court, such as Adkins v Adkins [2009] TASSC 8 and Woolnough v The Public Trustee [2005] TASSC 50. In those decisions, where testators left their widows a life estate in property, the Court has converted the life estates to gifts. The difference between receiving a life estate in a property and receiving it as a gift is substantial. The Board is satisfied that GDA may have an entitlement to a much more significant estate than she presently has and that a person acting in her best interests will investigate legal action and pursue it if prudent.
As a nominee for appointment as administrator, LJ seemed not to support nor to understand the need to investigate a possible contest of GDA’s late husband’s will. He appeared more concerned that the matter simply be concluded promptly in accordance with the terms of the will. The Board took the view that this approach would be inconsistent with the duties of administrators pursuant to section 57 of the Act, in particular the duty to act in the best interests of GDA.
The Board heard complaints about the Public Trustee hiring contractors who charged too much to clear the property, acting too slowly on requests from parties and charging commission and fees for their own services. However, none of these complaints were significant nor of equal concern to the Board as the prospect that GDA’s entitlements under her late husband’s will might not be pursued, as could be the case if either Mr Broadby or LJ were appointed.
The Board confirmed the appointment of the administrator.
THE BOARD ORDERS
That The Public Trustee continue 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 Guardianship order made on 12 December 2008 is revoked.
That the administration order remains in effect to 11 December 2011.
Anita Smith
PRESIDENT
Request for statement of reasons – LJ 28 May 2009
Statement of reasons delivered – 2 June 2009
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