HKM (Administration and Guardianship)
[2012] TASGAB 8
•20 April 2012
GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON
HKM on the application of SK and on the application of LC
Neutral citation: HKM (Administration and Guardianship) [2012] TASGAB 8
REASONS FOR DECISION
Rowena Holder (Chair)
Rodney Lester (Member)
Sue Hill (Member)
Date of hearing: 20th April 2012
Guardianship and administration – dispute about care and accommodation for person with dementia – decision by Public Guardian previously made as to accommodation – not ‘in need of a guardian’ – sale of PRP's home – appointment of an Administrator
Guardianship and Administration Act 1995 s 20, 51, 54
HKM is an 85 year old man who lives at the XXXX. He has dementia and was unable to participate in these proceedings due to his medical condition. He became the subject of an emergency guardianship order on the 20th March 2012 when family members sought to move him from the XXXX to an aged care facility in Launceston. On the 23rd February the Board received an application from SK, niece of HKM, for the appointment of an administrator and guardian. On the 11th April 2012 the Board received an application from LC, Social worker with XXXX for the appointment of an administrator and guardian.
Before appointing an administrator, the Board must be satisfied that HKM is a person with a disability, that his disability renders him incapable of making reasonable judgments about his estate and that he is in need of an administrator (section 51 of the Guardianship and Administration Act 1995 (the Act)). If satisfied of each of these matters, the Board can appoint an administrator according to the criteria in section 54 of the Act.
Before appointing a guardian, the Board must be satisfied that HKM has a disability that renders him incapable of making reasonable judgments about his person and circumstances and is in need of a guardian (section 20 of the Act). If satisfied of these criteria, the Board must assess the eligibility of any proposed guardians according to criteria in section 21 of the Act.
The Board heard the application on 20th April 2012. The hearing was attended by:
SK -niece/applicant 1
BM - brother
LC -social worker/applicant 2
DD -niece
ET -niece
David Symons - Public Trustee
Kylie Hillier -Public Guardian
The Board had available to it the following documents:
a) Application filed by SK dated 22 February 2012
b) Health Care Professional Report by Dr. Clarke dated 21st February 2012
c) Application filed by LC dated 10 April 2012
d) Health Care Professional Report by Dr. Lyall dated 30th March 2012
e) Request for Emergency Order dated 20th March 2012
f) Decision of the Board dated 20th March 2012
g) Report by the Public Guardian – Emergency Orders 10th April 2012
h) Aged Care Assessment Team Report dated 8 October 2010
i) Report of GAB Investigator dated 16 April 2012
j) Letter from Commonwealth Bank dated 6th March 2012
k) LIST property information sheet
l) Letter from Clarke and Gee Lawyers dated 30th March 2012 enclosing statutory declaration and will of HKM dated 3rd February 2012
m) Letters forwarded from SK addressed to SN and letters of response from SN.
Does HKM have a disability?
The Board assessed notes and reports from Dr. Clarke and Dr Lyall and the ACAT Report as being genuine diagnoses of dementia. Accordingly, the Board was satisfied that HKM is a person with a disability within the meaning in section 3 of the Act and for the purposes of sections 20 and 51 of the Act.
Does HKM’s disability render him incapable of making reasonable judgments?
Dr. Clarke noted that HKM was not capable of making reasonable decisions in relation to his real or personal property. Dr Clarke stated that HKM’ dementia affects his ability to manage day to day financial requirements and make major financial decisions. Dr Lyall stated that HKM is unable to operate a bank account or manage his own financial affairs. He stated that HKM is aware that he will have to dispose of his real estate but would be unable to manage this process himself.
Dr Clarke stated that HKM would be unable to make reasonable decisions about where he should live or other lifestyle matters. He noted that HKM did not fully understand the nature and effect of medical treatment. Dr Lyall however noted that HKM stated that he wanted to remain at XXXX and with explanation could understand the nature and effect of medical treatment.
The Board noted that no witness at the Hearing indicated that HKM had capacity, despite opportunity to comment being afforded to all present.
Accordingly, the Board was satisfied that HKM is incapable by reason of his dementia of making reasonable judgments about his person and circumstances and his financial estate.
Is HKM in need of a Guardian?
The Applicant, SK raised concerns about the appropriateness of the accommodation HKM was in. SK was concerned that appropriate medical treatment was not always organised for HKM in a timely manner, or at all. She cited the example of a delay in X-rays being organised for HKM’s shoulder after he sustained a fall. Further SK indicated that it was hers and her family’s preference that HKM is in an aged care facility in Launceston which would provide family members a greater opportunity to visit HKM on a more regular basis, given most of HKM’s extended family lived in Launceston. SK also submitted that HKM had indicated he was not happy in his current accommodation. Another witness submitted that HKM did not show any recognition of his accommodation when he returned from a visit away and therefore submitted that he could be just as happy in an aged care facility in Launceston.
The Applicant, LC did not identify any guardianship issues, if HKM was to continue living in his present accommodation. She noted that HKM appeared happy and content in his current accommodation and had previously expressed a wish when he was in better health, to reside at XXXX. LC indicated that HKM’s access to medical treatment at XXXX was as good as any aged care facility in Launceston.
The Board noted that an Emergency Order had been made, appointing the Public Guardian as guardian for HKM, limited to decisions as to where he should live. This was a 28 day order that had lapsed by the time this matter came on for hearing. During the period of this order, the Guardian had made the decision that HKM should stay at XXXX and had communicated that decision to both Applicants. Further the Public Guardian noted there is no need for a further guardianship order given a decision had been made as to accommodation. At the hearing, the Office of the Public Guardian submitted that HKM had lived a reclusive lifestyle at Greens Beach for many years and had been accessing assistance from the XXXX for the last few years. It was submitted that the accommodation he was now in was familiar to him and he was residing in the community he had chosen to reside in. Evidence was also submitted that HKM appeared settled in his current accommodation and while it was difficult to determine HKMs’ wishes, he did not appear uncomfortable with the decision to live in his current accommodation. Further the Office of the Public Guardian did not raise any concerns as to the medical treatment and/or its timeliness that HKM was receiving.
The Board was satisfied that HKM was appropriately accommodated and had access to appropriate medical treatment at the time of the hearing. The Board concluded from the evidence that there was no current need for a guardian to be appointed on HKM’s behalf.
Is HKM in need of an Administrator?
The Board heard evidence that HKM’s estate consists of a property at XXXX, a car, home contents and a Commonwealth Bank savings account and term deposit. The property is currently vacant and evidence was received that it is very basic and not appropriate for rental. The power and telephone are still connected.
The Board heard evidence that it is unlikely that HKM shall ever return to his property at Greens Beach and therefore a decision would need to be taken as to the sale of this property. The sale of HKM’s motor vehicle is also probably necessary, given he is unable to drive.
There was evidence before the Board that HKM would be unable to manage his day to day finances and pay his accounts, which include accommodation fees, pharmacy accounts, and accounts relating to the property such as telephone, power and rates.
The Board was satisfied that HKM was in need of an administrator to look after his financial estate. No less restrictive option would have been capable of protecting HKM’s financial estate, and meeting HKM’s day-to-day needs.
Nominations of appointee
The Board was presented with two alternatives: appointment of the applicant SK or the Public Trustee, as administrator.
Section 54(d) and 54(2) provides the criteria the Board must be satisfied of when appointing a person as Administrator. The Public Trustee is named in section 54(1)(a) as an approved administrator. The Board’s consideration of the factors in section 54(1)(d) and section 54(2) therefore relate only to the possibility of appointment of the applicant SK, as administrator.
The applicant has consented to act as administrator. The Board has to be satisfied pursuant to section 54(1)(d)(i) that SK will act in the best interests of HKM. The Board heard evidence from the Applicant that she would proceed to deal with the estate by paying any overdue accounts, getting the property at XXXX in appropriate order and then retaining a real estate agent to sell it. She indicated she would bank the net sale of property proceeds. The Board considered that it would be prudent for an Administrator to get an independent valuation of the property and to give consideration to more advantageous investments than a bank account. The Board was not satisfied that SK description of what she would do as an Administrator really meets what is in HKM’s best interests.
The Board has to consider section 54(1)(d)(ii), that is whether SK interests conflict or may conflict with the interests of HKM. There was no direct evidence before the Board that SK interests conflict or may conflict with the interests of HKM, except that in the recent Will made by HKM on the 3rd February 2012, SK’ father, BM, is the sole beneficiary and if he does not survive HKM, then it is distributed in accordance with BM’s Will. The Board considered that there was the potential for conflict, given it was likely that SK would be a beneficiary under BM’s Will.
Pursuant to section 54(1)(d)(iii) the Board has to consider whether SK was an appropriate person to act as administrator of the estate of HKM. In this regard, the Board took into account the poor relationship and ongoing conflict that exists between some members of staff of the XXXX and SK and other members of HKM’s extended family. The Board also took into account that HKM had indicated he did not want his property at XXXX sold, as he was hoping to move back. The sale of the property therefore may well create conflict between HKM and the Applicant, which would be a pity seeing she is a supportive family member.
The Board has to consider section 54(1)(d)(iv) that is whether SK has sufficient expertise to administer the estate. SK indicated she has not worked in the last 17 years but has managed her own household finances and has not had any money problems. The Board believed that the duties of the Administrator in the first 12 months of Administration would be relatively onerous given the need to sell the property at XXXX and all that involves and then the need to invest the net proceeds, in addition to the day to day management of finances.
The Board also considered Section 54(2)(a) which requires examination of HKM’ wishes. Evidence was received that HKM had on numerous occasions requested that the Public Trustees manage his financial affairs, rather than family members. The Board considered that so far as HKM’s wishes could be ascertained they showed a preference for the financial advice of qualified professionals Trustees, namely the Public Trustees.
Given these matters, the Board determined that an independent appointment would best suit the interests of HKM.
Conclusion
The Board was satisfied that the represented person
is a person with a disability, and
is unable by reason of the disability to make reasonable judgements in respect of his estate, and his person and circumstances; and
is in need of an administrator
THE ORDER:
That The Public Trustee be appointed 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 19 April 2015.
AND FURTHER, the Board being satisfied that there is no need for the appointment of a guardian, the application for guardianship is dismissed.
Rowena Holder Rodney Lester Sue Hill
Board Member Board Member Board Member
30th April 2012
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