KNQ (Administration)

[2003] TASGAB 7

Guardianship and Administration Board
Tasmania

Application for Administration-KNQ Ref:XXXX

Applicant: XHT

KNQ (Administration) [2003] TASGAB 7

Present at Hearing on October 2003: WC, BN, XHT, SQ, LQ and KNQ (represented party)

Board members: S. Hill, P.Whyte and M. Lester.

REASONS FOR DECISION

Administration – eligibility of proposed administrators – successful candidate expressed concern for the represented person’s best interests as opposed to the wishes of her deceased husband.

Guardianship and Administration Act 1995 s.51, 54

At the outset it was explained to all parties present that there were three main matters to be considered: -

1. The need for an administrator,

   a)    on a medical basis and;

   b)    on a financial basis.

1. Who would be appropriate as administrator if one were needed?

2. Whether this would be the least restrictive option for KNQ.

It was also explained that these matters would be considered on the documentary evidence the Board members had been given and on the information supplied by those in attendance at the hearing. The Board then proceeded to speak to all parties (except KNQ) who could not take part in proceedings.

THE NEED FOR AN ADMINISTRATOR

From a medical viewpoint i.e. whether KNQ had a disability or was under such incapacity that she could not handle her own finances, all parties were in agreement that this was the case. She has suffered from Alzheimer's disease or dementia for quite a few years now; being firstly cared for by her late husband and then a resident at Masonic Peace Haven for the last three years.  Both the ACAT report and Dr Peachey's report substantiate this and, in addition, it was clear at the hearing that KNQ was unable to respond to those around her. There was no dispute that she was incapable of handling even the most minor of matters.

Financially it was relatively clear and there was no dispute that there are matters arising from KNQ's estate that need attention.

These are listed hereunder:

a) Property at Green's Beach, which is currently unoccupied;

b) DVA pension;

c) Two bank accounts with CBA holding $9542.69 and $16,400.62 which are held jointly with, it is presumed, Ray as executor of his father's estate
d) Island State Credit Union account of $16,000 and fortnightly interest;
e) In addition there are household contents and an old car and perhaps other minor miscellaneous items.

Thus the overall need was clearly established and not in dispute by any of the parties.

THE ADMINISTRATOR

XHT had applied for the order and it was made clear that this did not automatically mean that she would be appointed as the application is really only a tool to bring the situation to the Board's attention. To begin with XHT was questioned as to why she had applied for an administration order.  She responded that at a family meeting of the 5 sibling’s resident in Tasmania she had come away with the impression that this was agreed upon. LQ and BN supported this assertion.

She went on to give details of her work experience and her ability to cope with the administration. LQ and BN also gave details of their qualifications - she is a registered nurse and he works with the disabled. There was quite a deal of discussion about what seemed to be a misunderstanding regarding a trip by BN with her mother to Greens Beach when XHT apparently had the keys. Unfortunately this seems to have generated tensions and ill feeling. Quite sensibly the parties agreed to differ as to this and move on to other matters. The parties then spoke of their father who died suddenly in July. He was clearly a great influence on them and a strong person, having a large family of seven children and caring for their ill mother for as long as he could. This aspect was emphasised not only by SQ, but also by BN and by the other two siblings, KL and CQ both of whom reside in Queensland, but corresponded with the Board.

All emphasised what they believe their father's wishes would have been. In fact it would be fair to say that in the correspondence KNQ's possible wishes were not mentioned to any extent, if at all.  It was as if they were of no account whatsoever. SQ felt that because he was executor of his father's will and knew of his father's wishes and as his father had run the couple's affairs while he was alive he was the logical person to be administrator.  SQ referred to the family meeting they had had. He said that there were differing views about things and did not feel that a resolution had been reached. WC disagreed and said that BN had left early so that she wouldn't necessarily know. Again the parties seemed to agree to disagree about the meeting. A large sticking point for the parties is the home at Greens Beach. BN, XHT and the other siblings have all apparently taken their mother to visit it from time to time. LQ lives nearby and does maintenance on it as required and XHT also owns a house at Greens Beach. LQ and the daughters say that their mother seems to know where she is and gets pleasure out of going to the house.

XHT added that it is nice for any of the family to be able to go there and that it carries fond memories for them of both their parents. Apparently it is two years before a decision needs to be made as to selling the house as things stand.  The parties agreed that they were still grieving over their father's sudden death and XHT thought that the house might help with this as well as giving her mother some pleasure. At present there was no real consensus as to its future.

All parties then concluded by detailing things they had done to help their mother's situation. BN facilitated organising payment of her full war pension. LQ helped organise her accommodation and followed up with the Repatriation Department.  The value of Greens Beach real estate was also discussed given the current property boom, as was insurance because the property is vacant, although LQ lives very close by.

LEAST RESTRICTIVE OPTION

Clearly given KNQ's state of health there was no other option but to appoint an administrator to attend to immediate matters with her bank accounts and insurance and any expenses that she may incur in Masonic Peace Haven

DECISION

The Board had to give this matter careful thought. It was considering what KNQ's wishes may have been against the backdrop of seven siblings who had tragically lost their father very recently and who seemed to be divided on many issues at present. Any of the persons present at the hearing would no doubt have had the integrity and the ability to carry out the duties of administrator.

The possibility of appointing an independent administrator had been raised in XHT's applicaton. The Board considered this an easy option but decided against this option due to the possible charges involved; due to the likelihood of a purely commercial decision being made as to a quick sale of the house at Greens Beach, and due to the loss of some autonomy within what has reportedly been a close family until their father's death. All parties stated that they had got on well up until then.

XHT's appointment was deliberately made for the short period of 12 months so that immediate matters could be attended to. It is hoped that the finalization of Mr Q's estate and the grieving process to which the parties referred could be worked through and they could reach some consensus about, particularly the house, be it to sell it or to make arrangements suitable to all for KNQ and other family members to visit. It was pointed out that this was a "breathing space" and at the end of 12 months or previously, if things did not progress another administrator could be appointed.

In the end it was felt that XHT appreciated that her mother’s perceived wants and needs were paramount Other siblings appeared more focused and vocal as to what their father may have wanted, which was not altogether appropriate in the circumstances. This is not stated by way of criticism and given the history of the marriage and KNQ's dependence, especially in recent years, it is quite understandable. The Board did feel that the unresolved issues raised by the parties since Mr Q's sudden death were still impacting on this family and creating quite a bit of tension, which may pass in time. In the meantime, to ensure that the estate not be diminished a financial plan and a commercial valuation on the Greens Beach property was ordered -this should give all parties peace of mind.

The board decided that XHT was not as closely involved in dealing with her late father's estate and as she realised the urgency involved in now focusing on her mother and was appropriate to act in almost a "caretaker" capacity until hopefully all the side-issues can be resolved.  As stated this bears no reflection whatsoever on any other sibling in what is for the whole family, a difficult and stressful situation as it was related to the Board.

For the Board         S.T.Hill