HFO (Review of Administration) - [2012] TASGAB 6

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…

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: [2012] TASGAB 6
Decision Date: 30 March 2012

CaseChat Overview and Summary

The case involves the application for a review of an administration order concerning HFO, a 79-year-old man suffering from severe dementia, by the Public Trustee. The order was due to expire on 29 March 2012, prompting the Public Trustee to apply for a review. The represented person's wife, KO, sought to be substituted as the administrator. The dispute centred on the suitability of the Public Trustee as the administrator and whether KO was a suitable alternative. The Guardianship and Administration Board was tasked with determining the continuation of the administration order and the appropriateness of the current administrator.

The primary legal issues the Board had to address were whether HFO remained a person with a disability, incapable of making reasonable judgments concerning his estate, and whether the continuation of the administration order was in HFO's best interests. The Board also needed to consider whether KO met the criteria for appointment as administrator under section 54 of the Guardianship and Administration Act 1995. The Board had to assess whether any changes in circumstances warranted the appointment of a different administrator.

The Board found that HFO continued to suffer from severe dementia and remained unable to make significant life decisions, thus meeting the criteria under section 51(1)(a) and (b) of the Act. The estate remained under active management, with income from investments and expenses being paid, justifying the need for an administrator under section 51(1)(c). KO's complaints regarding the Public Trustee's fees and the bathroom renovations did not appear excessive, and no significant changes were observed in her eligibility as an administrator. The Board was not satisfied that KO was suitable due to previous concerns about her professionalism, conflict of interest, and relationship with HFO's children. The Board concluded that the Public Trustee, being a professional and independent body, was better suited to continue as administrator in HFO's best interests.

The Board ordered that the Public Trustee continue as the administrator of HFO's estate, with the powers and duties conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995. The order would remain in effect until 29 March 2015. The Board suggested that KO raise her grievances with the Public Trustee for resolution.

Orders