IFC (Review of Administration Order)
[2011] TASGAB 27
•2 December 2011
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
Neutral citation: IFC (Review of Administration Order) [2011] TASGAB 27
REASONS FOR DECISION
Anita Smith (President)
Date of hearing: 2 December 2011
Administration - review of appointment of Public Trustee – best interests of the represented person - suitability of proposed alternative administrator
Guardianship and Administration Act 1995s. 67,
Holt v Protective Commissioner (1993) 31 NSWLR 227
IFC is an 86 year old widow who resides in full time residential care.
Upon making the order on 7 May 2009, the Board was satisfied that IFC was a person with a disability, was by reason of that disability incapable of making reasonable judgments about her estate and was in need of an administrator. For reasons set out in the statement of reasons from June 2009, the Board was satisfied that the Public Trustee was the most suitable administrator. A statement of reasons for that decision was produced on 9 June 2009. The Board relies upon those reasons as background to this decision. The order was made for the maximum period of 3 years.
On 6 October 2011 the Public Trustee sought the renewal of that order in an application to review the order pursuant to section 67 of the Guardianship and Administration Act 1995. The application to review the order was heard on 2 December 2011. Notice of the hearing was given to IFC, her son, NL, the Public Trustee and the Director of Care at XXXX. All except the latter attended the hearing.
Dr H provided the Board with a report to the effect that there has been no change in IFC’s disability and she has not recovered capacity to manage her estate. The Public Trustee has provided reports each year as is required of an administrator. These reports showed that an action pursuant to the Testator’s Family Maintenance Act 1925 was resolved in favour of a $15,000.00 payment from the late PC’s estate to IFC. Her estate is now worth roughly $55,000.00 but was recorded as $8116.52 in 2009. Management of the estate requires few transactions as IFC’s pension is deposited directly to XXXX who manage the balance (after deduction of care fees) in a trust account. There are few calls on the funds held by the Public Trustee. However, the Board was satisfied that the criteria set out in section 51(1) of the Act have not altered and it is appropriate to renew the administration order.
NL sought appointment as administrator in place of the Public Trustee. In an email to the Board dated 25 November 2011, NL raised a number of issues which he submitted made the Public Trustee unsuitable for reappointment. The Public Trustee answered these issues in an email the same date. In the view of the Board the issues raised were either misguided or were satisfactorily answered by the Public Trustee.
NL presented two additional reasons for seeking appointment instead of the Public Trustee. Firstly, that as her only family member, he would manage the estate free of charge. Secondly, that the Public Trustee was earning insufficient income from the estate and he believed that he could earn a greater rate of interest in the private market.
In Holt v Protective Commissioner (1993) 31 NSWLR 227 Kirby P set out some of the relative advantages and disadvantages of appointing an independent statutory agency as opposed to family members and the kinds of considerations that might apply noting that the Court (Board) must make the appointment with proper mixture of compassion, vigilance and efficiency. He considered that with regard to an independent statutory agency, the Court (Board) may take into account:
a) the manifest independence of the statutory office;
b) the advantages of a dispassionate and neutral approach where there is a potential for family conflict and sharply divided views concerning the best interests of the protected person;
c) the expertise of his staff, their experience in managing estates, the know how accumulated by them and their impeccable reputation; and
d) the security provided to the estate against loss or damage;
Whereas appointment of a family member may bring the following advantages:
a) the size and complexity of the estate: in a smaller estate it may often be appropriate to appoint a family member who will be entirely familiar with the assets and liabilities and readily able to manage them with greater economy and possibly free of cost to the protected person. The Protective Commissioner is entitled to and ordinarily does recover fees under the Act.
b) The capacity of the protected person, if disabled, to interact with his or her manager so that, so far as possible, within the disability which has lead to the appointment, such person may remain in charge of, or at least able to influence, the broad directions of the estate;
c) The ingredient of love and affection and unquestioning devotion to the protected person which an appropriate family member can add to the task of management. Whilst the office of manager is, by definition, concerned with proprietary and financial matters and involves the prudent control of the property and like interests of the protected person, in the nature of things the manager of the estate of a protected person is more likely than a general trustee or receiver to become involved in decisions which affect the protected person’s quality of life. A lifetime of knowledge of the person and a devotion to his or her interests may contribute to that quality. It may more readily be secured by the appointment as manager of a family member with the requisite knowledge and motivation
d) Any special feature of the case which may require particular attention. …
e) Any special qualities of the applicants to act as managers will be relevant. Although professional training does not necessarily guarantee good management, that fact that one of the present appellants of a chartered accountant and the other a medical practitioner suggests, at least, the possibility that they would not be unfamiliar with the management of large sums of money.
The Board considered these matters in the present application. However, NL did not satisfy the Board that he had any greater appreciation of the role of an administrator than he did on his last attempt at appointment, at which time he stated that he would not pursue an action under the Testator’s Family Maintenance Act 1925 against the estate of the late PC. Had he been appointed at that stage, the estate would be at least 27% poorer for that decision. He did not resile from that decision at the latest hearing. Instead he presented as abrupt, offhand, and not particularly concerned with understanding the detailed response from the Public Trustee to his email. The Board was not satisfied that he is eligible for appointment because he does not appreciate the gravity of the role as administrator or the complexity of acting in the best interests of the represented person.
Conclusion:
After hearing a review of an administration order made 12 December 2008 in respect of IFC (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
That The Public Trustee continue as the represented person’s administrator.
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 administration order remains in effect to 1 December 2016.
Anita Smith
PRESIDENT
Statement of reasons delivered 7 December 2011.
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