HSJ (Review Administration)
[2017] TASGAB 4
•3 March 2017
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
HSJ (Review Administration) [2017] TASGAB 4
REASONS FOR DECISION
Wendy Hudson (Chair)
Date of hearing: 3 March 2017
Administration – Review of the appointment of a private administrator – obligation of administrator to provide accurate and timely annual reports – non-compliance with the Board’s advice - failure to act in accordance with the role and responsibilities of an administrator
Guardianship and Administration Act 1995 s.6, 51, 54
On 3 March 2017 the Guardianship and Administration Board (the Board) reviewed an administration order for HSJ. HSJ’s neighbour and friend, KXI, has requested a Statement of Reasons in relation to the review of administration.
HSJ has been the subject of an administration order since 26 March 2015 when the Board appointed KXI as his administrator. The order was to remain in effect until 28 March 2018 however as a result of some concerns regarding the contents of the annual report lodged by KXI in March 2016, the Board initiated an own motion review of the administration.
KXI, as well as two other friends of HSJ, FT and TX together with Ms Cassie Hosking from Baptcare, Ms Michelle Sullivan and Ms Alex Johnston from The Public Trustee attended the hearing. KXI advised that HSJ did not want to come and that he had told HSJ that he did not have to attend.
The relevant history leading up to the review includes the following:
· Correspondence from the Commonwealth Bank of Australia (CBA) dated 2 January 2015 advising that HSJ had a cash investment account and a pensioner security account.
· The annual report and statements of accounts from KXI supported by a statutory declaration dated 22 March 2016.
· Mr Lee Perry, Compliance Officer for the Board, reviewed the documentation supplied by KXI, noting that they did not make any mention of the funds held in HSJ’ pensioner security account. The matter was discussed with KXI on 8 November 2016, during which he stated:
- he was aware of the other CBA account; a passbook account, ‘…HSJ has control of it…he uses it for his day to day spending…’ and has resisted all attempts by KXI to transfer some of the money into the other investment account; the issue had caused some angst between them.
· Mr Perry raised concerns regarding the amount of money in the account and the risk of the loss of funds from that account and identified appropriate action to be taken:
- KXI to obtain a statement of the passbook account
- KXI to arrange with the CBA to place a limit on the amount HSJ can withdraw at any one time without approval of KXI.
· Mr Perry wrote to KXI again on 24 November 2016 seeking further documentation which was provided on 29 November 2016. KXI provided a statement of the passbook account which highlighted 15 withdrawals amounting to $14,000 over a period of twelve months. The transaction print out for the other account included a number of reject return fees and some amounts which did not specify what they were for or to whom they were paid. At the time of the email, KXI did not advise whether he had placed a limit on the amount HSJ could withdraw from the passbook account.
· On 3 January 2017, a notice of hearing for 24 January 2017 was issued to HSJ and KXI in relation to the Board’s own motion to review the administration. On 9 January 2017 KXI advised the Board that he was unable to attend a hearing on that date and HSJ would not attend due to his anxiety. KXI also noted that he had recently attended HSJ’ home after an attempted burglary; at which time he had mentioned to HSJ that he ‘…will have to restrict the withdrawals from the passbook account and this met with fierce resistance…’
· On 11 January 2017 the Board advised KXI that the review hearing would proceed.
· On 24 January 2017 no one attended the review hearing, including the administrator, KXI. The hearing was therefore adjourned and on the following day an email was sent to KXI asking when he was available so that the hearing could be relisted. However, no response was received from KXI, and as such the Board reissued the hearing notices for 3 March 2017. The notice was issued to HSJ, KXI, TX, FT and Ms Hosking.
A review of an administration order provides an opportunity for the Board to assess whether the continuation of the order is consistent with the principles of section 6 of the Guardianship and Administration Act (the Act), to determine whether the requirements of section 51 remain, and whether the person appointed as administrator continues to satisfy the Board of the elements contained in section 54.
The Board had not received any medical evidence that HSJ’ disability or capacity had changed and therefore remained satisfied that HSJ continued to require an administrator, however questioned whether KXI should continue as his administrator.
At the review hearing KXI stated that he gave HSJ his passbook account ‘…to get him out and doing things…’ because ‘…he wanted to sleep all day..’ KXI stated that at that time he realised how much money was in the passbook account and noted that on a number of occasions when he had visited HSJ, there had been ‘…cash in the hallway…cash in the cupboard in the kitchen…and he goes to the bedroom and gets more cash…’
FT stated that he and TX would take HSJ to do his grocery shopping; HSJ would always give them $50.00 notes even though HSJ would have received the change from the previous shopping trip. He did not know what HSJ did with the change. They usually spent between $250.00 and $300.00 on groceries and cigarettes for HSJ. TX stated that he had witnessed HSJ open successive pages of a book at his home, and there would be $50.00 notes between the pages. On a couple of occasions Ms Hosking had also seen HSJ’s passbook next to the telephone with cash sitting in it.
When asked what action had been taken since November 2016 when Mr Perry had raised concerns, KXI stated he had obtained the statement from the CBA but he had not taken any other action regarding HSJ’ passbook because ‘…I thought that was HSJ’s decision to really to take an eye on it…’ KXI noted that he and TX had discussed the large amounts which were being withdrawn from the passbook account every two or so weeks, asking HSJ to ‘account for it’ however HSJ was silent. TX noted that they had raised the withdrawals with HSJ at the time of the break-in and described receiving ‘push-back’ from HSJ.
When asked whether he had failed to take steps as HSJ’s administrator because of the impact it would have on their relationship, KXI said ‘I put my hand up, yes’. KXI said he had not put a limit on HSJ withdrawals as he was ‘…thinking of the flack the bank are going to endure if HSJ is put on a limit…’
In response to questioning regarding reject return fees recorded in HSJ investment account, KXI indicated ‘…somehow funds have gone to the wrong account…’. When directly questioned whether he had transferred the money to the wrong account, KXI agreed. In relation to a substantial number of items recorded in the transactions of the investment account where there was no information as to who the money was paid to or what it was for, KXI was able to check his paper file and advise the Board of those details.
KXI informed the Board that if he were to continue as HSJ’s administrator he would action a limit on HSJ’s passbook withdrawals and withdraw the interest from the account so the balance would slowly decrease. When asked whether he would take any other action, KXI said no.
When appointed, KXI had been provided with a copy of the Administrator’s handbook which states, in part:
‘As an administrator you must…:
·Be responsible for the general care and management of the estate and financial affairs of the represented person;
·Take possession of, collect and generally administer the estate of the represented person in a prudent manner;
·Do anything in relation to the financial affairs of the represented person that he or she would have been able to do if he or she did not have a disability’.
KXI has not administered/managed HSJ’s passbook account since his appointment. Although KXI indicated that this inaction was primarily due to his fear that any action taken would negatively impact on his long term relationship with HSJ, it is also clear that KXI did not appreciate or give priority to his role as administrator. Prior to returning HSJ’s passbook, KXI should have considered what reasonable sum would remain in the account to cover the day to day spending required by HSJ and have transferred and managed the substantial balance of the funds. KXI should have also sought advice and directions from the Board in relation to the management of HSJ’s passbook account as was required. Unfortunately KXI did not do so.
Both FT and TX raised concern that if KXI were to continue as administrator and was required to deal with HSJ’s passbook account it would impact on their relationship, ‘…HSJ is hot headed, very stubborn..’; ‘…it could destroy one of the most significant relationships in HSJ’s life…’; and ‘…when HSJ turns, he shuts you out…’.
At the conclusion of the hearing, FT and TX were of the view that an independent administrator should be appointed to ensure that KXI’s relationship with HSJ continued and that this was in HSJ’s best interests. Furthermore they were of the view that KXI would be able to play an ongoing supportive role to work with HSJ and The Public Trustee.
KXI indicated the he would be willing for The Public Trustee to be appointed as administrator and to ‘….see how it works…’ In the circumstances, the Board considered that it was no longer appropriate for KXI to be HSJ’s administrator and that it was in HSJ’s best interests for The Public Trustee to be appointed.
After hearing a review of an administration order made on 26th March 2015 in respect of HSJ (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 their estate, and
·is in need of an administrator;
THE BOARD ORDERS
1. The administration order made appointing KXI is revoked.
2. That the Public Trustee is appointed as the represented person’s administrator.
3. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
4. That the order remains in effect to 2 March 2020.
Wendy Hudson
Chair
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