HFO (Review of Administration)
[2012] TASGAB 6
•30 March 2012
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
HFO review of administration order
Neutral citation: HFO (Review of Administration) [2012] TASGAB 6
REASONS FOR DECISION
Anita Smith (President)
Date of hearing: 30 March 2012
Administration – Review of administration – Represented person’s wife seeking substitution as administrator - issues surrounding appointment of private administrator – statutory predisposition in favour of Public Trustee
Guardianship and Administration Act 1995 6, 51, 54, 67
HFO is a 79 year old man who has been the subject of an administration order appointing the Public Trustee pursuant to Part 7 of the Guardianship and Administration Act 1995 (the Act) since March 2009, such order having been reviewed and confirmed once on 3 August 2009. Reasons for decision were produced on both occasions, being published as HFO (Administration) [2009] TASGAB 6 and HFO (No2)(Administration) [2009] TASGAB 15. The order was due to expire on 29 March 2012, so on 19 March 2012 the Public Trustee applied for a review of the order before its expiry.
Though not set out in the legislation, a review has a number of purposes. Firstly, it is an opportunity to assess whether the continuation of the order is consistent with the principles in section 6 of the Act. Secondly, the Board can assess whether any of the elements in sections 51 and 54 have altered, such that an order would no longer be appropriate. Thirdly, it can be an opportunity to review how the order has operated in practice and whether any conditions or directions may be required in the future.
A review hearing was convened on 30 March 2012 which was attended by KO, QN, Mr James Nielsen from the Public Trustee and the Board’s Compliance Officer, Mr Lee Perry.
With regard to the elements in section 51, the Board received a brief report dated 3 February 2012 from general practitioner, Dr John Riley, noting that HFO continues to suffer from severe dementia and is basically non-communicative. Dr Riley expressed the view that HFO has no ability to make significant life decisions and requires ongoing protection. None of the parties disputed this evidence and the Board was satisfied, for the purposes of section 51(1)(a) and (b) of the Act that HFO remains a person with a disability unable, by reason of his disability, to make reasonable judgments in relation to all or any part of his estate.
The Public Trustee’s report indicated that HFO’s estate remains under active management. This includes receipt of income from investment securities and a foreign pension, payment of care and medical expenses and payment of property maintenance expenses. HFO has funds invested with the Public Trustee and owns a property in Tasmania as a joint tenant with KO. The Public Trustee report estimates the value of his estate to be in excess of $220,000.00. Given the nature of his estate, the Board was satisfied that HFO remains in need of an administrator for the purposes of section 51(1)(c) of the Act.
KO contended that she is suitable for appointment as administrator pursuant to section 54 of the Act. She handed to the Board a memorandum prepared by Hilary Brown, Aged Care Advocate, setting out some of KO’s concerns about the Public Trustee as administrator. It also suggested that in light of these concerns KO be appointed as administrator.
In essence, KO’s complaints against the Public Trustee were (i) that bathroom renovations were too expensive and based on poor advice, (ii) that the fees charged by the Public Trustee were excessive, (iii) that staff at the Public Trustee had not forged a positive working relationship with her, and (iv) the regular allowance paid to HFO was insufficient for their needs.
After the 2009 hearings, the Board was concerned by KO’s (i) lack of professionalism, (ii) lack of concern for compliance with the law when one is managing the affairs of a person with a disability, and (iii) the level of conflict between her and HFO’s two eldest children. These concerns rendered her ineligible for appointment pursuant to the tests in section 54 of the Act.
The Public Trustee, as a potential administrator, is in a different position to KO. Section 54(1) of the Act deems the Public Trustee to be an approved administrator without the need to prove their suitability. An individual, however, is in a different position and must prove that they have no conflicts of interest, that they are suitable and have sufficient expertise for appointment. The Board was not satisfied that KO was so eligible in 2009. Nothing in Ms Brown’s memorandum or in KO’s statements at the hearing demonstrated significant improvement with respect to any of the Board’s previous concerns.
KO’s evidence was that the bathroom modification cost approximately $20,000 and that three years of Public Trustee fees cost nearly $7000. Neither figure seems grossly unreasonable. There was no suggestion that the Public Trustee has charged anything other than the standard rate for administration. The appointment of the Public Trustee remains appropriate and none the concerns raised by KO required any direction or conditions by the Board. It was suggested that KO raise her grievances with the Public Trustee for resolution.
With respect to the principles in section 6 of the Act, the Board notes that HFO is incapable of expressing any wishes with respect to these proceedings. While it would clearly be less restrictive for KO if she were the administrator, the Board is not satisfied that it would be less restrictive for HFO. In any event, the Board continues to consider that the appointment of a professional and independent body as administrator for HFO serves his best interests.
THE BOARD ORDERS
That The Public Trustee continue as administrator of the estate of the represented person.
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 order remains in effect until 29 March 2015.
Anita Smith
PRESIDENT
Statement of reasons delivered 13 April 2012.
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