HS (Review Administration)

[2013] TASGAB 19

GUARDIANSHIP AND ADMINISTRATION BOARD
PERTH, TASMANIA

HS – Application to review an administration order by the Public Trustee

HS (Review Administration) [2013] TASGAB 19

REASONS FOR DECISION

Anita Smith (President)

Date of Hearing: 26 September 2013

Administration – review of order – best  interests of the represented person – costs of Public Trustee using a significant proportion of the estate – suitable alternative – conflict of interests - mitigation of conflicts of interest

Guardianship and Administration Act 1995 s. 54

1. HS became the subject of a 3-year administration order appointing the Public Trustee as administrator on 23 September 2010.   She is a resident of a residential facility at XXXX operated by XXXX.  The initial application arose because XXXX had reviewed a practice where residents’ funds were informally managed by staff at XXXX without an administration order. 

2. The Public Trustee has applied for review because the order is due to expire.  In the annual report accompanying the application, the Public Trustee stated:

“Given HS’s circumstances have not changed, the need for an administrator remains.  HS continues to reside in the XXXX and there continues to be an ongoing need for someone independent to manage HS’s financial affairs, to ensure all her liabilities are met and accommodation secure.”

3. HS declined to attend the hearing, although it was convened at her home in XXXX.   The only attendees were EM, XXXX and a representative of the Public Trustee. 

4. EM confirmed that there has been no change in HS’s capacity to manage her estate other than a deterioration of her understanding of her estate.   

5. According to the Public Trustee report, HS has funds of almost $10,000.  She is in receipt of the Aged Pension.  Her administrator allows for some personal spending money and payment of her accommodation fees.  It is a simple estate because HS’s needs are simple and her funds are limited. 

6. The Public Trustee report states: “As it is not appropriate that XXXX manages HS’s financial affairs, there is no other suitable alternative, other than the Public Trustee to fulfill this role.” 

7. At the hearing, EM indicated that he would consent to appointment as HS’s administrator.  He submitted that it was a small estate and the fees charged by the Public Trustee were eroding the funds available for HS’s spending.  He offered his services without charge indicating this would better suit HS’s best interests.  Between August 2011 and July 2013 the Public Trustee fees have amounted to $1703.53, equal to 17.4% of the current value of her estate.

8. Prior to the internal review of XXXX’s practices in 2010, the Board had appointed EM as administrator for residents of XXXX and he had demonstrated his expertise and ability to manage estates in the best interests of XXXX residents.  Although he could be perceived to have a conflict of interests, because he is CEO of the facility in which she lives, the Board considered that this conflict is not likely to eventuate because:

(i)There is no conflict about where HS lives.  She is settled at XXXX and there is little likelihood of her changing accommodation.

(ii)Accommodation fees for XXXX residents are not subject to significant variation and are currently set at a rate comparable to fees charged in Aged Care facilities, being 83% of the pension. 

(iii)The Board’s role in obtaining and considering an annual report from an administrator each year will be sufficient to monitor and redress the effect of any potential conflicts of interest. 

9. The Public Trustee’s representative was consulted about the change in appointment at the hearing and offered no objection. 

10. The Board considered that appointment of EM as administrator is in HS’s best interests to limit the expenditure on Public Trustee fees. 

Conclusion:
After hearing a review of an administration order made on 23 September 2010 in respect of HS (hereinafter called the ‘represented person’)

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 her estate; and

• is in need of an administrator

THE BOARD ORDERS

1. That EM be appointed as administrator of the estate of the represented person in place of The Public Trustee.

2. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.

3. That the order remains in effect until 25 September 2018.

Anita Smith
PRESIDENT