HWN – Application for review of administration order by ST

[2013] TASGAB 15

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

HWN – Application for review of administration order by ST  

HWN (Review of Administration) [2013] TASGAB 15

REASONS FOR DECISION

Anita Smith (President)

Date of hearing: 27 July 2013

Administration – review of order – allegations of incompetence by administrator – relevance of family consensus in selection of an administrator – no duty upon an administrator to share information with other family members -  no duty upon administrator to make decisions about accommodation – administrator pursuing reasonable but unsuccessful options to generate rental income for the estate – family members adopting a misguided monitoring role over administrator’s activities – gifts to meet represented person’s spiritual needs

Guardianship and Administration Act 1995 s. 6, 54, 67

1. HWN, also known as HWN became the subject of an administration order on 5 October 2013. At that point, the Board was satisfied that HWN was a person with a disability, that he was incapable by reason of that disability of managing his estate and that he was in need of an administrator. The Board was also satisfied that his son, SWN was eligible for appointment according to the criteria established in section 54 of the Guardianship and Administration Act 1995. 

2. Because there was some concern amongst HWN’s family members about whether property owned by HWN should be rented out or sold, the Board included in the order the following conditions:

   1. That the administrator is directed to seek three real estate appraisals evaluating the option of an immediate sale of the represented person’s property at XXXX versus leasing the property with an option to buy, and provide copies of the appraisals to his siblings and the represented person.
   2. The administrator is to report to the Board within 6 months that the direction in clause 3 above has been completed.

3. In December 2012, the administrator provided copies of three real estate appraisals to the Board each obtained in October 2012.   On 5 February 2013, the administrator advised the Board’s Compliance Officer that he was in negotiations to let HWN’s property. 

4. In early February 2013, HWN’s son-in-law and the administrator’s brother-in-law, ST contacted the Board’s Compliance Officer with complaints that the administrator was refusing offers of help from family members, had not been sufficiently active in clearing the property ready for sale or rental and that there had been delay in entering into a rental arrangement.  ST also indicated that HWN’s condition had improved and it was possible he now had recovered capacity possibly to manage his estate or to execute an enduring power of attorney.  The Compliance Officer gave advice about how ST might seek a review of the appointment of the administrator.

1. By 25 April 2013 (6 months and 20 days following the order), the administrator reported that (i) real estate agents had been reluctant to give appraisals in the manner required by the Board, (ii) a tenant, F Company, who rents a hot house had expressed interest in renting the whole property with an option to buy, (iii) Centrelink staff had advised the administrator to continue to rent the property in separate lots to avoid paying an Aged Care accommodation bond, (iv) F Company withdrew from negotiations in January 2013 and continue to rent only the hot house, (v) the administrator requested Raine and Horne to find a tenant and rent the property in mid-February 2013, and (vi) he was in the process of drawing up a lease for F Company.

2. Following ST’s intervention, the Board received a completed Health Care Professional Report from Dr. Rachel Goodwin relating to HWN’s capacity to manage his estate.  Dr. Goodwin reported that HWN had showed significant improvement but she was equivocal about his capacity because reports from staff of the nursing home where he lives suggested to her that his capacity fluctuates during the day. She suggested a specialist assessment of his capacity. 

3. The Board’s Compliance Officer arranged for HWN to be assessed by Old Age Psychiatrist, Dr. Martin Morrissey. 

4. On 15 May 2013, the Board received an application to review the order from ST.  ST was seeking substitution as administrator. 

5. The Board received a report from Dr. Morrissey on 5 July 2013.  His reports stated:

   “Although there has clearly been some improvement in HWN’s overall level of functioning since the time of his head injury last year, he has significant ongoing cognitive impairment.  Given it is now 12 months down the track from the time of the head injury, any further cognitive improvement is likely to be minimal.  Of particular note is the fact that HWN has impairment relating to executive functioning implying dysfunction in areas of the brain that are also used for planning, reasoning and judgment.  HWN appears to have complex financial dealing which would require a higher level of cognitive skills to manage than, say for example, were he just to have a pension and no other financial assets.  In light of HWN’s ongoing cognitive impairment particularly with regards to his executive functioning and the complexity of his financial affairs, I believe that he is unable to manage his financial affairs himself.  Given his apparent inability to recognize even the possibility that he might need assistance with his financial affairs, I believe that HWN also lacks the capacity to appoint a valid Enduring Power of Attorney.”

6. Prior to the hearing, the Board received written submissions from other members of HWN’s family, LWCW and BWCW, who did not support a change in the administration order.   

1. The hearing was convened on 26 July 2013 and attended by:

   HWN – represented person
   SWN – administrator
   ST – applicant for review and son-in-law
   JT – daughter
   XWN – son
   LWCW – daughter (by phone)
   Danielle Landsdell – Public Trustee representative
   Lee Perry – Board’s Compliance Officer

2. At the hearing, the Board first sought the represented person’s views of the administration.  He stated that he believed he was capable of managing his own estate but otherwise said that  he believed that his estate was reasonably well organised and he had no problems at present. He indicated that SWN was ‘going well’ although there is ‘some communication lacking.’ 

3. The applicant indicated that, in light of Dr. Morrissey’s report, the basis of the review was the suitability of the administrator and not a recovery of capacity by the represented person. 

4. The Board asked ST to particularise his concerns about the administrator, these were:

   1. The administrator had been appointed by consensus amongst the family members and now that such consensus had failed, he was no longer eligible for appointment.
   2. The administrator had not met the applicant’s requests copies of bank statements relating to HWN’s affairs.
   3. The administrator had not acted quickly enough in transferring HWN to an improved Aged Care facility.
   4. The represented person’s property had been untenanted for 8 months.
   5. The lease over the hot houses is informal and should be formalised in HWN’s best interests. 
   6. The administrator is ‘stingy’ with respect to HWN’s spending, leaving him short of funds on a weekly or fortnightly basis.
   7. On two occasions, HWN’s accountant, XXXX had contacted ST because they were unable to obtain relevant documents from the administrator to complete HWN’s taxation return.
   8. The administrator had failed to sell HWN’s motor vehicle quickly enough. 

1. For reasons set out below, the Board sought the administrator’s responses only to issues in paragraphs 14 (d), (e), (f), (g) and (h).  The administrator responded as follows:

   d.He had considered a lease of the whole property to existing tenant F Company, with an option to buy, would serve HWN’s best interests.  However it was most unfortunate that, after 4 months, the directors of that company decided not to proceed.  Then an employee of that company expressed an interest in renting the house, but she also changed her mind.  He had responded to that disappointment by engaging Raine and Horne shortly after negotiations ceased, but the property was not let until June 2013.  He had to reduce the advertised rental to attract a tenant to the property.

   e.F Company are long term tenants, who have never missed paying their rental.  The administrator had received advice which suggested that an informal rental arrangement may be advisable because a formal agreement may result in HWN having to pay an Aged Care bond.  He had drafted but not executed a lease agreement. 

   f.The administrator has been depositing $400 per month to HWN’s account to which he has keycard access.  HWN only spends between $250 and $300 per month and at present he has accumulated about $700 in the account.  HWN has few needs and, as was evident at the hearing, his main enjoyment from his money is to assist other persons in financial need. 

   g.Some documents were missing from HWN’s estate.  The administrator found them by accident in a bag of rubbish while clearing HWN’s property.  They were delivered to the accountant and the taxation return was submitted within the required time frame. 

   h.The motor vehicle is currently advertised on the Gum Tree website.  There were technical difficulties in emailing photographs of the vehicle which delayed the placement of the advertisement. 

1. With respect to issues raised in paragraphs 14(a), (b) and (c), the application was misconceived in the following respects:

   1. While a family consensus at the time of the administrator’s appointment was a convenient and positive factor, it is not one of the elements for eligibility in section 54 of the Act and a failure of consensus at a later point does not disqualify an administrator.
   2. ST had no more right to demand copies of HWN’s financial documents than a stranger.  An administrator must protect the privacy of the represented person and is under no obligation to supply documents to other family members.
   3. Unless an administrator is also appointed as a guardian (which this administrator was not), he is under no obligation and has no special authority (other than the payment of a bond, board or rent) to decide where a represented person lives.   JT was effective in bringing about an improvement in HWN’s living environment, but the fact that it was she who made these arrangements, not the administrator, does not amount to a failure by the administrator.  

1. With respect to issues raised in paragraphs 14 (d), (e), (f), (g) and (h) the Board noted that some mishaps had occurred which had impeded the progress of the administration.   Most of these mishaps had been dutifully reported to the Board in the April report.  The administrator’s explanations were reasonable and there had been no effect on HWN’s quality of life or access to funds.  Delays in renting the property might appear to have cost the estate approximately $12,800 in rental but it is unlikely that the property could have been rented immediately in any event.   It was reasonable to pursue a rental arrangement for the whole property with the existing partial tenants, and then with another person known to the parties, as the outcome would have been convenient and be reflective of the manner in which HWN had conducted his affairs prior to his unfortunate loss of capacity. It would also have been reflective of his wishes.  Sadly those arrangements failed, but the negative outcome does not justify a finding that these possibilities should never have been pursued. 

2. The applicant was keen to convey a sense that the administrator was ‘muddling along’ and not attending to the affairs of HWN’s estate with sufficient expertise. He did not assert any conflict of interest or any lack of suitability as defined in section 54 of the Act. In essence, he wished to demonstrate that the administrator had not acted in the best interests of HWN or had insufficient expertise to administer the estate. The Board was not satisfied that this was established.

3. The Board noted that the applicant and his wife had very high expectations of the administrator, some of which were borne of a misunderstanding of an administrator’s role.  The Board also noted that the applicant and his wife had meddled to a high degree in HWN’s affairs.  They had assumed a misguided monitoring role over the administrator’s activities, thereby producing some of the confusion and delay in some of the transactions about which they complained.  HWN and other members of HWN’s family did not share ST and JT’s misgivings about the administrator’s competence, alacrity and motivation. 

4. Given the applicant’s misunderstanding about the role and responsibilities of an administrator the Board did not consider him a suitable alternative to the current administrator. 

5. During the hearing, it became clear that HWN has very little interest in material things.  As stated above, his only interest in money is his ability to use it to benefit another.  The administrator indicated that he had continued to gift money to Help a Child and the Theological College.  These gifts obviously meet a spiritual need for HWN and were appropriate, however they were lacking in the approval of the Board as is required by section 58 of the Act.  Accordingly, the Board approved of the gifts of its own motion to ensure that such donations are lawful for the purposes of the legislation. 

Conclusion:

After hearing an application by ST in respect of the administration order dated 5 October 2012 appointing SWN as administrator of the estate of HWN  (hereinafter called the ‘represented person’) the Board was satisfied that the order should continue, therefore THE BOARD ORDERS that the application is dismissed.

THE BOARD HEREBY APPROVES the expenditure of funds from the represented person’s estate for the following charitable organisations:

(i)        Help a Child, $150.00 per quarter, and

(ii)       Theological College, $50.00 per quarter.

AND that the expenditure of the funds is in the administrator’s absolute discretion and is subject to there being sufficient funds in the represented person’s estate.

Anita Smith
PRESIDENT

Request for statement of reasons received:  1 August 2013
Statement of reasons delivered: 7 August 2013