KME (Review Administration)
[2016] TASGAB 5
•25 August 2016
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
KME on the application of Review of Administration Order
KME (Review Administration) [2016] TASGAB 5
REASONS FOR DECISION
Carolyn Wallace (Chair)
Date of hearing: 25 August 2016
Review administration – unauthorised gifts – unauthorised loans – failure to understand obligations of administrator – misuse of powers by administrator
Guardianship and Administration Act 1995
On 25 August 2016 the Guardianship and Administration Board (the Board) reviewed the Administration Order for KME. KME’s mother, BE, has requested a Statement of Reasons in relation to the review of Administration.
KME has been the subject of an administration order since August 2013 when the Board appointed his mother, BE, as his administrator. This is the first review of the Order.
The hearing took place on 25 August 2016 and was attended by BE, UE and Ms Elizabeth Dalgleish, Investigator from the Board.
The Board had the following documents before it:
·A Statutory Declaration from BE, dated 10 August 2016. In which she declares that the attached Form of Accounts for the period ending 30 June 2016 are true and correct.
·A letter addressed “to whom it may concern” from BE date stamped as “received” 11 August 2016.
·A Form of Accounts for KME, prepared by BE, added 8 August 2016.
·An Unsecured Loan Agreement Individual to Individual between KME, the Lender, and UE, the Borrower, dated 4 January 2016.
At a review hearing, the Board must consider whether KME remains a person with a disability, that his disability renders him incapable of making reasonable judgments about his estate and that he is still in need of an administrator. If satisfied of each of these matters, the Board can reappoint an administrator.
Disability
The Board received a Health Care Professional Report (HCPR) from Dr Gianni Fantini dated 9 August 2016. The HCPR states that KME has a severe intellectual disability. The disability has been present from birth. The Board was satisfied that KME is a person with a disability within the meaning in section 3 of the Act.
The HCPR states that KME is incapable of making any reasonable decisions and improvement in his capacity is not expected.
The information provided by Dr Fantini led the Board to conclude that KME does not have the capacity to make reasonable decisions.
Is KME in need of an Administrator?
The Board heard evidence from BE that she manages all financial transactions for KME and that due to his disability he does not have the capacity to undertake any of these tasks. This is supported by the information in the HCPR provided by Dr Fantini.
The Board was satisfied that KME was in need of an administrator to look after his financial estate. No less restrictive option would have been capable of protecting KME’s financial estate, and meeting KME’s day-to-day needs.
The Board was satisfied that an administrator should be re-appointed. The Board then needed to consider whether the current administrator was still the most appropriate appointee.
In the letter dated “received 11 August 2016”, BE states that she has closed KME’s term deposit account. This was based on the reasons set out below.
BE lent her elder son, UE, a sum of money from KME’s account to allow UE to complete the building of a house. The loan was made as UE’s funds were unable to be released in time to make a final payment. The Loan was evidenced by a loan agreement.
The Loan Agreement indicates that a loan of $26,000 was made by KME to UE on 4 January 2016. The loan is unsecured. The repayments are $468 each month. The interest rate is 3% per annum paid on the balance of the loan on a monthly basis. The loan is to be repaid by 4 January 2021.
When UE’s funds became available BE allowed the loan arrangement to stand as the interest being paid on the loan is “better” than the interest offered by the bank.
Evidence was also received that BE had made a loan to herself to purchase a small car. The car is registered to BE. BE submitted that the purpose of purchasing the car is to enable BE to run errands on KME’s behalf.
BE states that she “helps (KME) out financially by paying for the car and buying his clothes and most treats he wants.”
The Form of Accounts indicates that a loan of $26,000 was made to UE and a loan of $3,000 to BE. Also indicated is that $1,693.32 of the loan to UE has been repaid and that $1,250.00 of the loan to BE has been repaid.
At the review hearing BE was advised that her provision of gifts without prior approval from the Board was in contravention to the requirements of Section 58 of the Act.
BE initially stated she was unaware of this requirement. The signed acknowledgement of her receipt of the Private Administrator’s Handbook on her appointment in August 2013 was shown to her. The Private Administrator’s Handbook provides direction to administrators that they do not have the power and/or authority of gifting or loaning a represented person’s money without prior approval of the Board.
BE indicated that the loans were not “gifts”. BE stated that currently UE cannot access the necessary funds to repay the entire loan amount. She stated that given “a couple of months” the repayment of the entire loan “could” occur.
The Board concluded that BE does not understand her role and responsibilities as administrator. In particular, she does not understand her responsibilities to use KME’s funds for his benefit only and not for the benefit of others and to seek formal approval from the Board prior to making gifts or loans to others.
In the circumstances, the Board considers that the only appropriate action is to appoint an independent and arm’s length administrator, namely the Public Trustee.
After hearing a review of an administration order made on 28 August 2013 in respect of KME (the represented person) the Board was satisfied that the represented person:
a.Is a person with a disability and
b.Is unable by reason of the disability to make reasonable judgements is respect of his estate, and
c.Is in need of an administrator
Further the Board was satisfied that the Public Trustees was the most appropriate appointment for administrator.
THE ORDER:
That the Public Trustee is appointed as the represented person’s administrator in place of BE.
That the powers and duties of the administrator be those conferred by Division 4 Part 7 of the Guardianship and Administration Board Act 1995.
That the order remains in effect until 24 August 2019.
That the Public Trustee recovers and restores the loan funds to the represented person’s estate.
Carolyn Wallace
Chair
25 August 2016
0
0
1