HSBF (Administration)
[2009] TASGAB 3
•6 February 2009
Guardianship and Administration Board
Hobart
HSBF – Review of Administration Order
Neutral citation: HSBF (Administration) [2009] TASGAB 3
REASONS FOR DECISION
Anita Smith (President)
Date of Hearing 6 February 2009
Administration – appointment of administrator – effect of family conflict on appointment of family members
Guardianship and Administration Act 1995 s 54
On 10 February 2006 the Board appointed FIF as administrator for her father HSBF. The 3-year term of the order appointing FIF has expired and FIF has indicated that she does not seek re-appointment. At the time of appointment, FIF assumed administration for both parents. Sadly EIF has since died.
There was no dispute that HSBF has a disability and by reason of that disability lacks the capacity to make reasonable judgments about his estate. The central issue for the Board to determine was the eligibility of his other daughter, TJFC for appointment or the appointment of the Public Trustee.
Background to the appointment:
In 2005 HSBF and his wife executed enduring powers of attorney appointing all three children as attorneys. The Board found that neither donor had the capacity to make that appointment and appointed an administrator instead. There was, at that stage, a significant level of family conflict.
Ms FIF was appointed: “Because of her very careful assessment of the role and her authoritative stance with her siblings (to the effect that she would only accept the role if both of her siblings were committed to supporting her), FIF impressed the Board as a person who would not make reckless decisions and who would exercise authority fairly.” (Reasons for decision: EIF and HSBF (Review Enduring Powers) [2006] TASGAB 3).
It appears that family unity did not last long and soon after her appointment, her brother, EHF, began writing with questions and challenges to her administration. EHF sought a review of her appointment on 27 April 2007, which was rejected pursuant to section 11(13) of the Act. That decision in turn was the subject of a review by three Board members who dismissed that application on 9 July 2007.
TJFC – eligibility for appointment:
TJFC holds a managerial position. She expressed a desire not to re-arrange the investment portfolio significantly if appointed. Because EIF appointed her husband as executor, but he has lost capacity for that role, the Supreme Court recently appointed TJFC to undertake those duties. That appointment appears to have been the subject of some dissenting views amongst the siblings.
But for the underlying conflict between EHF and his sisters, TJFC would be a suitable administrator according to the tests in section 54 of the Act. HSBF views cannot be obtained. It is clear from the previous decision and from statements at the hearing that a preference for management of funds within the family was the preference of EIF, but not necessarily HSBF.
EHF is clearly opposed to the appointment of TJFC. This opposition has, in part, related to what he sees as a conflict of interest with Mr Don Keating being solicitor for TJFC and their parents’ estate. At the hearing in 2005, it was clear that the sibling-conflict was at its highest between EHF and TJFC.
It is particularly relevant that TJFC is the only family member who lives full-time in Southern Tasmania. Therefore she is in a position to attend to minor daily needs, such as dry-cleaning and visits regularly. It is likely that she is called upon for duties as the ‘person responsible’ with regard to consent to medication. Therefore she is already providing important family support for HSBF. There is also the potential for conflict as administrator to undermine the important work she has in providing local family support to HSBF.
Ultimately the Board does not see it as being in HSBF’ best interests to appoint a person who will potentially be assailed with criticism and conflict from a disgruntled party. It appears that this will be the likely outcome of appointment of TJFC.
FIF– eligibility for appointment:
Following the hearing, FIF emailed 2 letters to the Board. In the first, dated 8 February 2009, she indicated that EHF stated at the hearing that he had his affairs managed by the Public Trustee and that this would be a conflict of interest for the Public Trustee.
Firstly, on listening to the recording of the hearing, I understood EHF to be saying that he had his superannuation investment managed by a professional and sees paying fees as a natural consequence of that. I did not hear him to say that the Public Trustee manages his affairs. Secondly, the Public Trustee’s nomination is not excluded because of a conflict of interest. The structure of section 54 is such that a conflict of interest relates to eligibility of a private administrator (in section 54 (1)(d)(ii), but not the Public Trustee who are deemed appropriate by the preceding subsection 54 (1)(c).
In light of these concerns, FIF then emailed again on 9 February 2009 indicating that she would rescind her resignation as administrator and sought reappointment.
To consider FIF reappointment the Board would need to reconvene the hearing to give parties an opportunity to comment on that possible appointment. However, the Board declined to reconvene on the following grounds: (i) the request to rescind the resignation appears to have been based on a mishearing of EHF statements, and (ii) in light of renewed family conflict and EHF calls to review her appointment, FIF suffers much of the same difficulties in reappointment as TJFC.
Appointment of the Public Trustee
The Board is cognisant that appointment of the Public Trustee may involve an initial cost of a possible $20,000.00 in fees or maybe more as well as ongoing management fees. However, in appointing the Public Trustee, the Board can be assured that the conflict between siblings will not undermine the management of the estate.
Upon review 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
is in need of an administrator;
THE BOARD ORDERS
That The Public Trustee be appointed as administrator of the estate of the donor.
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 5 February 2012.
Anita Smith
PRESIDENT
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