IJN (Guardianship and Administration)
[2019] TASGAB 20
•26 July 2019
FILE: | IJN (Guardianship and Administration) [2019] TASGAB 20 |
HEARING DATE(S): | 26 July 2019 |
DATE OF ORDERS: | 26 July 2019 |
DATE OF STATEMENT OF REASONS: | 5 August 2019 |
BOARD: | Mr R Lester Mr S Roberts Ms E Clippingdale |
APPLICATION: | Application for Guardianship and Administration |
CATCHWORDS: | Appointment of private Administrator - eligibility for appointment as Administrator - expertise of potential Administrator. |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas), ss 3(1), 20(1)(a)-(c), 21, 51(1)(a)-(c), 54(1)(a), 54(1)(d)(iv) |
PUBLICATION RESTRICTION: | The decision has been anonymised for the purpose of publication |
STATEMENT OF REASONS
Background
The hearing was in respect of IJN, an 80 year old woman, who at the time of the hearing was in the Launceston General Hospital, (‘LGH’), awaiting discharge. IJN had been admitted to the LGH early in June suffering from severe personal neglect. At the time of the hearing her health had improved to the stage where she was ready for discharge, however her residence at [the place] had been condemned by the local Council, and there was no safe place for her to be discharged to. The Application for Guardianship and Administration was made by Ms Katie Noble from the Social Work Department at the LGH. The Applicant proposed that the Public Guardian be appointed as Guardian and the Public Trustee be appointed Administrator.
At the commencement of the hearing the processes that the Board would follow were outlined, and the criteria that needed to be established for appointment of Guardian and an Administrator were explained. The information and reports available to the Board were also detailed.
The hearing was held at the Magistrates Court in Launceston on Friday, 26 July 2019.
In attendance at the hearing were:
a.the Applicant Ms Katie Noble;
b.Ms Louisa Truscott, also from the LGH;
c.Ms Emma Curbishley from the Public Trustee;
d.Ms Kylie Hillier from the Office of the Public Guardian; and
e.QT and NT, who were friends of, and had been assisting IJN prior to her admission to the LGH.
Disability – sections 3(1), 20(1)(a) and 51(1)(a) of the Guardianship and Administration Act 1995 (‘the Act’)
The Board had a Health Care Professionals Report (‘HCPR’) from Dr Philip Driver of the LGH. Dr Driver had diagnosed ‘presumed vascular dementia’, which he stated had probably been evident for 3 to 5 years. There was also a neuropsychology opinion, from Dr Emma-Jane McCrum, which stated
Throughout her LGH admission IJN has refused cognitive assessment, and has been tangential and paranoid about people’s motivations…MRI revealed significant white matter changes and a diagnosis of probable vascular dementia was made.
It was clear that IJN had been somewhat uncooperative when attempts had been made to conduct formal assessments of her condition, however there was no evidence presented that would suggest a diagnosis of dementia was incorrect, and indeed all at the hearing that had had contact with IJN supported the conclusions of the HCPR.
Incapacity – sections 20(1)(b) and 51(1)(b) of the Act
Dr Driver stated in the HCPR that IJN’s capacity for new learning, planning and reasoning skills, and the likelihood that she would be susceptible to influence, had all been negatively impacted by her disability. Dr McCrum stated in her opinion
…IJN does not have the capacity to make lifestyle decisions or financial decisions given the context in which she views people’s behaviours and actions. Whilst a formal cognitive assessment was unable to be conducted the extent of her paranoid thinking would impair her ability to use a rational thinking process.
There was no evidence introduced that challenged the proposition that IJN lacked capacity in a range of areas, and that this incapacity was a direct result of her disability.
The Board was of the view that the only reasonable conclusion was that IJN had a disability, and as a result of this disability lacked the capacity to make reasonable decisions in relation to matters concerning her estate, her accommodation, her health care and her general circumstances.
Need – sections 20(1)(c) and 51(1)(c) of the act
IJN’s circumstances were that the pressing need for guardianship was to facilitate the discharge from hospital by making a decision about the appropriate longer term accommodation for IJN. Whilst it appeared almost inevitable that this would be some form of residential aged care facility, this would ultimately be a determination that a Guardian would need to make – what was certain, however, was that returning to her house at [the place] as she appeared keen to do, was not an option. With the appointment of a Guardian the issue of there not being an obvious person responsible would be solved and this then would address any identified decision making powers required for medical treatment issues.
The need for an Administrator was also quite evident. There were some significant decisions required about the property at [the place]. Whilst it appeared probable that it would need to be sold, a determination needed to be made about the appropriate approach to dealing with the condemned residence before and during any sale process, in order to maximise the return to IJN. There were also the ongoing costs associated with holding the property as well as the day to day living costs of IJN that needed to be managed and paid for. There would also be quite a deal of interaction with the Guardian and IJN’s future accommodation provider, at least in the short to medium term, and if that provider was to be a residential aged care facility, there would be a short term need to provide reasonably complex financial information to enable an assessment of the correct level of fees at the facility.
It appeared clear to the Board that a real need existed for both the appointment of a Guardian and an Administrator. This view was supported by all present at the hearing.
Eligibility for appointment - sections 21 and 54 of the Act
The Application before the Board was for the appointment of the Office of the Public Guardian as IJN’s Guardian. There was no suggestion to the Board that there would be any alternative appointment that would be appropriate, and when asked if they would be interested in appointment as Guardian both QT and NT indicated that they were not prepared to take on that role. The Board was left with no alternative other than to appoint the Public Guardian as IJN’s Guardian, with the order limited in both powers and time.
The subject of this Statement of Reasons is, however, the appointment of an Administrator, and why the Public Trustee was appointed in preference to a private Administrator.
The Application before the Board was to appoint the Public Trustee as IJN’s Administrator. Subsequent to the Application being received the Board had received an email from QT and NT, dated 17 July 2019 which says, in part;
We, QT & NT would like to be considered as Private Administrators only for IJN… My Husband and myself have been paying bills, getting groceries for the last 12 months… and she has advised us she wishes for us to look after her finances and affairs, she definitely does not want any Government Trustees involved as she had issues with her late father’s estate.
When asked at the hearing both QT and NT confirmed that they would like to be appointed as IJN’s Administrator. When informed by the Board that that would not be possible, and only one of them could be Administrator at any one time, they nominated NT as their preferred appointment.
Section 54 of the Act sets out who the Board may appoint as an Administrator. The potential Administrators include the Public Trustee and any other person who consents to act as Administrator of IJN’s estate if the Board is satisfied that:
a) The person will act in the best interests of IJN; and
b) The person is not in a position where his or her interests conflict or may conflict with the interests of IJN; and
c) The person is a suitable person to act as the Administrator of the estate of IJN; and
d) The person has sufficient expertise to administer the estate.[1]
In determining whether a person is suitable to act as an Administrator the Board must take into account:
a)The wishes of IJN, so far as they can be ascertained; and
b)The compatibility of the proposed Administrator with IJN.
[1] Guardianship and Administration Act 1995 (Tas), s 54(1)(d)(iv).
As stated at paragraph 10 there were some significant short term complexities with the management of IJN’s estate. There were the issues of making a range of choices with respect to the probable disposal of the property; the implications those decisions may have on care fees; the possible taxation implications of the disposal of a property that was too large to be considered wholly a place of principal residence, as well as the normal day to day management of a person’s affairs during a time of upheaval in their life.
The Board took evidence from NT about her involvement with IJN, and experience she may have had in management of financial matters in her family business. It appeared that NT participated, quite competently, in the management of the family business, which consisted, at least in part, of the management of a number of rental properties. Notwithstanding this there was nothing presented that allowed the Board to be satisfied that NT had sufficient expertise to administer the estate, particularly whilst the short term complexities discussed above existed.
The Board was unable to satisfy itself that the condition in section 54(1)(d)(iv) of the Act was met and therefore had no alternative other than to consider NT ineligible to act as Administrator of IJN’s estate.
Due to the failure of the proposed Administrator to meet one of the four conditions the Board did not need to make a determination on her eligibility under the other three conditions. In delivering its decision, the Board did stress that when the shorter term complexities facing the estate had been dealt with, it may be that an Application for Review of Order can be filed considering the appointment of a private Administrator.
Having determined that the proposed Administrator was ineligible for appointment, the Board’s only option was to appoint the Public Trustee as Administrator of IJN’s estate. This power is conferred to it by section 54(1)(a) of the Act, and no determination is required as to the eligibility of this appointment.
the Board’s Decision
After hearing an Application for Administration in respect of IJN (hereinafter called the ‘Represented Person’), the Board was satisfied that the Represented Person:
a.is a person with a disability;
b.is unable by reason of the disability to make reasonable judgements in respect of their estate; and
c.is in need of an Administrator.
Accordingly the Board Orders:
(i)That the Public Trustee (Tas) is appointed as Administrator of the estate of the Represented Person.
(ii)That the powers and duties of the Administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
(iii)That the Order remains in effect until the 25th day of July 2022.
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