HKL
[2013] QCAT 713
•10 December 2013
| CITATION: | HKL [2013] QCAT 713 |
| PARTIES: | HKL |
| APPLICATION NUMBER: | GAA3290-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 28 November 2013 |
| HEARD AT: | Maroochydore |
| DECISION OF: | Member McDonald |
| DELIVERED ON: | 10 December 2013 |
| DELIVERED AT: | Maroochydore |
| ORDERS MADE: | 1. That the administration order made by the Tribunal on 26 September 2012 is changed by removing AL as administrator and appointing the Public Trust of Queensland as administrator for HKL. 2. This appointment remains current until further order of the Tribunal. It is reviewable and is to be reviewed in 2 years. 3. The Tribunal dispenses with the requirement to provide a financial management plan. 4. The Tribunal directs the administrator to provide accounts when requested. |
| CATCHWORDS: | Removal of Administrator for breach of statutory duties – Non compliance with Tribunal Orders – Breach of obligations to invest prudently and to act in a timely manner. Guardianship and Administration Act 2000 ss 31, 35, 36, Schedule 1 |
APPEARANCES and REPRESENTATION (if any):
AL (by teleconference)
REASONS FOR DECISION
The Tribunal initiated a review of the appointment of an administrator in this matter due to concerns identified in the accounts of administration and compliance with Tribunal orders throughout the life of this appointment.
The Tribunal conducted this review under s 31 of the Guardianship and Administration Act 2000. The Tribunal firstly satisfied itself of its ongoing jurisdiction in this matter by considering medical evidence of the adult’s cognitive condition. The most recent medical report of Dr Fruelingsdorf received on 6 July 2012 notes HKL has a significant cognitive impairment as a result of Huntington’s chorea. This disease is a progressive degenerative disease and it is not expected that a finding of incapacity will change over time.
The evidence suggests adult continues to have income and expenses and investments which need to be managed, and there is therefore a continuing need for an administrator to be appointed to manage her finances.
The issue before the Tribunal is whether the current administrator is competent or appropriate. Discrepancies and oversights noted by the Tribunal since the administrator’s appointment were addressed and AL explained the circumstances around each concern.
AL was directed under order of 26 September 2012 to provide a financial management plan within three months of the order. He failed to do this. He was granted an extension until 26 January 2013, and again failed to submit the plan. At a hearing on 4 June 2013, AL explained he thought he had filed the plan already, and undertook to do so. The Tribunal was ordered the financial management plan to be submitted by 4 July 2013. A further extension was granted until 11 July 2013 when the plan was finally received in the Tribunal some 8 months late.
AL failed to provide the accounts of administration within the timeframes ordered. The Tribunal received the accounts some three months outside the required timeframe. He indicated that he expected the Tribunal to issue a reminder notice and was awaiting this before he submitted the accounts. AL indicated that he has had a particularly traumatic year and has had difficulties managing his time due to competing priorities.
Once accounts had been submitted the Tribunal notes that they were not accounts for the entire period of the appointment and did not reconcile.
AL indicated that he was not aware that they did not reconcile. He explained that he had been unable to open a bank account for his mother in New South Wales with the Queensland Order, as the local banks would not accept it. AL did not take steps to register the Order in New South Wales to enable him to do this. Instead he waited until he could visit his mother in Queensland.
He explained that because there was no account, the Nursing home held $20,000 in the adult’s funds in their trust account, and transferred this once the adult bank account was operative. AL acknowledged that this was not a prudent action of an administrator, given HKL was deprived of the benefit of investment income from those funds.
AL indicated that he was considering approaching the Tribunal to approve a conflict transaction, but had not yet finally made a decision whether he would make the application. He had been considering purchasing a house jointly with his mother, using all her available funds toward a joint purchase. She would remain living in the nursing home. He would either live in the house or rent it out.
The Tribunal was not satisfied that HKL would obtain any benefit from a house which she would live not in but be paying outgoings and be encumbered by a mortgage.
AL indicated that as her condition progresses, HKL will be likely to have needs for a wheelchair, and funds will likely need to be available for this. AL thought these could be sourced through a reverse mortgage on any property he owned jointly with his mother.
The Tribunal notes that HKL has approximately $16,000 in liquid funds available and that she is likely to have greater medical needs over time. In the Tribunals view she would gain no benefit from a purchase of a house jointly with her son, but experience detriment through the absence of available funds for her equipment needs. This is a clear conflict of interest which should not be approved. The fact that AL had not considered the issues around HKL’s future needs does not assure the Tribunal of his ability to apply the General Principles. In particular Principle 10 requires administrators to exercise their power in ways that are appropriate to the adult’s needs. The Tribunal is not satisfied that AL’s reasoning demonstrates an understanding of this Principle.
Further the Tribunal notes multiple purchases from the Suncorp account for expenses in Balmain and Darlinghurst including Woolworths, Mc Donald’s, taxis, and purchases made at hotels. HKL has been accommodated in a nursing home throughout this period with meals supplied. The Tribunal concludes that these funds have not been applied for the benefit of the adult, in breach of the administrator’s obligations to act honesty and with reasonable diligence.
The ongoing delay in establishing a bank account of the adult, resulting in the loss of investment income is a clear breach of the administrator’s obligations to act prudently contained at section 35 of the Guardianship and Administration Act 2000.
In light of the tardiness in complying with Tribunal orders, in breach of s 36 of the Guardianship and Administration Act 2000 and the inadequacy of the reports submitted, the Tribunal concludes that AL has not acted competently in the role of administrator. His appointment is revoked and the Public Trustee is appointed as Administrator for all financial matters.
0
0
1