HFO (Administration) - [2009] TASGAB 6

GUARDIANSHIP AND ADMINISTRATION BOARD
Hobart

HFO on the application of KKO

Neutral citation: HFO (Administration) [2009] TASGAB 6

REASONS FOR DECISION

Anita Smith (President)

Date of hearing: 30 March 2009

Administration – appointment of an administrator – proposed administrator unable to properly account for proceeds of property transactions – urgent appointment required
Guardianship and Administration Act 1995 s54

HFO is a 76 year old man, married to KKO, the applicant, and father of three adult children, BD, SO and XO. HFO was diagnosed with dementia in November 2007. The application for appointment of KKO as administrator arose because KKO had entered a contract for the sale of joint property and needed authority to effect the transfer and a purchase of a new property.
The applicant and HFO attended the hearing, together with a friend, QN. XO and SO attended the hearing by telephone. BD declined to attend the hearing.
Dr McKenzie, HFO’s General Practitioner, in a report dated 3 February 2009 confirmed the above diagnosis and confirmed that HFO is unable to make reasonable decisions in relation to his real or personal property and is unable to undertake day-to-day financial transactions. In answer to any question asked of him at the hearing, HFO stated “this, that and the other” it was therefore clear that he has no comprehension of the proceedings. None of the parties to the application took exception to the diagnosis. The Board was satisfied that HFO is a person with a disability within the meaning of section 51(1)(a) of the Guardianship and Administration Act 1995 and that he is incapable of making reasonable judgments as required by section 51(1)(b).
The application dated 5 March 2009 states that HFO and KKO and a company of which they are directors together hold approximately $173,000.00 in investment and savings and a property at [Coastal Property] with a value of $365,000.00. They have no significant liabilities. The property at [Coastal Property] was placed on the market prior to HFO’s diagnosis. KKO has entered into a contract for the purchase of a smaller home more suited to their needs. A string of purchase and sale contracts, of which these two transactions are part, was due for settlement on 3 April 2009. Because of the nature of his estate and the pending property transactions, the Board was satisfied that there was a need for an administrator pursuant to section 51(1)(c) of the Act.
The Board was satisfied that appointment of an administrator represented HFO’s best interests and that no less restrictive alternative is available to meet those interests. HFO is incapable of expressing his wishes for the purposes of sections 6 and 54.
KKO proposed herself for appointment as administrator. The Board examined her application according to the tests in section 54(1)(d) of the Act. The Board found that subject to providing some explanations regarding previous dealings with joint properties, KKO would be suitable for appointment. Given the pressing nature of the application, with just 3 days until settlement of the properties, the…

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: [2009] TASGAB 6
Decision Date: 30 March 2009

CaseChat Overview and Summary

The Guardianship and Administration Board of Tasmania was asked to decide on an application for the appointment of an administrator for HFO, a 76-year-old man diagnosed with dementia. The applicant, KKO, HFO's wife, sought the appointment to facilitate the sale of joint property and the purchase of a new home. The hearing, attended by the applicant, HFO, and a friend, was also joined by two of HFO's adult children via telephone. The third child did not attend. The Board had to decide on the necessity of appointing an administrator for HFO, considering his incapacity to make reasonable decisions and manage financial transactions due to dementia. Furthermore, the Board had to evaluate KKO's suitability for the role of administrator, taking into account her ability to account for the proceeds from the sale of joint properties and her fiduciary responsibilities.

The Board concluded that HFO met the criteria for being a person with a disability under the Guardianship and Administration Act 1995, and was incapable of making reasonable judgments. Given the pending property transactions and the need for an administrator to manage HFO's estate, the Board found that the appointment of an administrator was in HFO's best interests. KKO proposed herself as the administrator, but the Board had concerns regarding her ability to account for the proceeds of sale of joint properties and whether any of those proceeds had been used for personal purposes. The Board also noted the children's belief that the properties were intended to be left to them in HFO's will. As such, the Board appointed the Public Trustee as the administrator, with a contingent appointment of KKO subject to her providing satisfactory results from an audit of the previous transactions. The audit would determine whether the proceeds of sale were equitably invested or expended on HFO's behalf.

The Board ordered the appointment of the Public Trustee as administrator of HFO's estate until the completion of the audit. KKO was directed to submit all relevant financial records to the Public Trustee, who would audit those records and report to the Board. If the Public Trustee's report indicated that the proceeds of sale were equitably invested or expended, KKO would be appointed as the administrator in place of the Public Trustee. The order was set to remain in effect until 29 March 2012.

Orders