KX (Administration)
[2009] TASGAB 26
•19 December 2009
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
KX – Review of Administration Order upon Registration of an Interstate Order
Neutral citation: KX (Administration) [2010] TASGAB9
REASONS FOR DECISION
Anita Smith (President)
Date of hearing 10 December 2009
Administration – review of order post interstate registration – nominated administrator a trustee company but not a trustee company within the meaning of the Trustee Companies Act 1953 – definition of ‘person’ – capital commission and other costs related to the best interests of the person
Guardianship and Administration Act 1995 ss 54, 81
Guardianship and Administration Regulations 2007 reg 11(1)(e)
Acts Interpretation Act 1931 s 41
KX was the subject of an administration order in Victoria, but moved to Tasmania in 2000. In 2009 the order was registered in Tasmania and upon review there was a question as to whether it was appropriate for State Trustees Limited (Victoria) to remain as administrator or whether the Tasmanian Public Trustee ought to be appointed in their stead.
Pre-hearing events:
On 2 August 2007 the Victorian Civil and Administrative Tribunal (VCAT) made an administration order appointing State Trustees Limited as administrator for KX. The terms of the order noted that the administrator would arrange for the administration to be transferred to the State of Tasmania and that the order would be reassessed no later than 30 June 2009. On 22 July 2009 (at which time it appeared that the order had not been reviewed but was still current) the administrator submitted the order to the Board for registration pursuant to section 81 of the Guardianship and Administration Act 1995. The Board registered the order on 3 August 2009, notified the VCAT registry of same and instructed the administrator to complete an application to review the order.
On 11 August 2009 the Board received an application to review the administration order from the administrator. However the application was non-compliant with the regulation 11(1)(e) of the Guardianship and Administration Regulations 2007 in that it lacked a report from a health care professional giving details of any disability of the person in respect of whom the application was made. This incomplete application repeated a statement in the administrator’s original letter to the effect that VCAT had directed that the current administration be transferred to Tasmanian Public Trustee. It is noted that the order only stated that the administration to be transferred to the State of Tasmania (which outcome had been achieved with the registration of the order).
On 17 September 2009 the Board received correspondence from the Public Trustee concerned that they had received notification from State Trustees Limited that the VCAT order had been revoked and asking the method by which they preferred to receive KX’s funds. An investigation officer of the Board intervened to (i) notify State Trustees Limited that they were still the administrator in Tasmania and not the Public Trustee, (ii) noting the health care report was still outstanding from the application and (iii) contacting KX’s nominated general practitioner to provide a report to expedite the review.
On 23 September 2009 State Trustees Limited acknowledged the investigation officer’s letter and supplied a copy of the revocation of the VCAT order dated 2 September 2009.
A pro forma Health Care Professional Report completed by Dr Banks was received by the Board on 9 November 2009. Notices of hearing were sent to parties named in the application and KX’s two sons on 20 November 2009 for a hearing on 10 December 2009.
On 3 December 2009, the Board received a letter from DD, KX’s son, stating that he objected to a transfer of administration from State Trustees Limited to the Public Trustee. He gave the following reasons for that: (i) KX has been a client of State Trustees Limited since 1995 and resident in Tasmania since 2000 and it was only a change of Victorian Government policy that had motivated the change in management, and (ii) the fees of the Public Trustee are greater than those of State Trustees Limited and this would disadvantage KX.
During the investigation the investigation officer visited KX at St Ann’s Nursing Home where she lives to assess her wishes with respect to the application. Her main concern was that the fees for St Ann’s be paid. She re-iterated this with a letter to Mr Perry sent afterwards. She noted that she was not concerned about the fees charged by an administrator, only that someone be appointed to take care of these issues for her.
The hearing:
The hearing on 10 December was attended by DD, Lee Perry (the Board’s investigation officer), James Reid representing the Public Trustee and Dominic Tucci for State Trustees Limited attended by telephone.
At the hearing the Board received Dr Banks’ report as evidence that KX is a person with a disability and incapable by reason of that disability of making reasonable judgments in respect of her estate. Statements provided by State Trustees Limited indicated that KX had an estate with a value of approximately $230,000.00. Together with KX’s own statements, the financial information confirmed that there was a need for an administrator. The main issue at the hearing was the question of who should be appointed as administrator. DD repeated his written statements to the effect that he did not support a transfer to the Public Trustee.
Section 54 of the Act states:
“54. Persons eligible as administrators
(1) The Board may appoint as an administrator of the estate of a proposed represented person –(a) The Public Trustee; or
(b) the Public Guardian; or
(c) a trustee company within the meaning of the Trustee Companies Act 1953; or
(d) any other person, including the guardian of the proposed represented person, who consents to act as administrator if the Board is satisfied that –
(i) the person will act in the best interests of the proposed represented person; and
(ii) the person is not in a position where his or her interests conflict or may conflict with the interests of the proposed represented person; and
(iii) the person is a suitable person to act as the administrator of the estate of the proposed represented person; and(iv) the person has sufficient expertise to administer the estate.
(2) In determining whether a person is suitable to act as the administrator of the estate of a proposed represented person, the Board must take into account –
(a) the wishes of the proposed represented person, so far as they can be ascertained; and
(b) the compatibility of the person proposed as administrator with the proposed represented person and with his or her guardian, if any.”The Board had before it two nominations for appointment as administrator. Firstly the Public Trustee whose possible appointment is available to the Board pursuant to section 54(1)(a). Secondly, DD’s nomination that the State Trustees Limited remain as administrator. Because State Trustees Limited is not a trustee company within the meaning of the Trustee Companies Act 1953, the Board considered that nomination as a nomination under section 54(1)(d) which would require their consent to appointment. The Board considered that State Trustees Limited can be a ‘person’ for the purposes of section 54(1)(d) as defined in the Acts Interpretation Act 1931:
“41. Connotation of certain phrases
(1) In any Act the expressions "person" and "party" respectively shall include any body of persons, corporate or unincorporate, other than the Crown.Section 54 refers to the Public Trustee, the Public Guardian and trustee companies as ‘persons’ when section 54(1)(d) refers to “any other person” (emphasis added).
In the following respect, the Board is at a disadvantage that the request to produce a statement of reasons was received so long after the hearing (29 April 2010) and out of time for the purposes of section 74 of the Act. The hearing, being a simple procedural matter, was not recorded. However, Mr Perry took notes at the hearing consistent with the Board’s recollection of events which show:
“PRESIDENT: Review of Administration to establish who will be the administrator. State Trustees wants to retire – any objection if Board reappointed State Trustees?
MR TUCCI: VCAT recommended that we should apply to GAB to have Tas administrator but would not object to being re-appointed.”
Mr Tucci’s statements at the hearing indicated a consent to appointment pursuant to section 54(1)(d) of the Act on behalf of State Trustees Limited. Once consent to appointment was given, there was no question that State Trustees Limited met the other requirements of an administrator in section 54(1)(d) and 54(2).
In assessing the two competing nominations, the Board took into account that the existing administrator had already charged KX a capital commission for administering the estate. If the estate were transferred to the Public Trustee then a further 4.4% commission would be charged on the first $100,000.00 of her estate and another 3.3% commission would be charged on the next $200,000.00 in addition to an establishment fee of $550.00. None of those additional costs would be incurred if the represented person remained with the existing administrator. Although KX expressed her wishes regardless of any fees charged, the Board has a duty to protect her best interests.
In considering KX’s best interests, the Board took into account that it had two equally competent administrators but to change from the existing administrator to the Public Trustee would result in a loss of approximately $9240.00 from KX’s estate and no apparent personal gain. Such a loss does not represent her best interests.
Although not raised at the hearing, later correspondence has questioned how it can be in KX’s best interests to have an interstate administrator when a local administrator could provide face to face contact. Although it did not form part of the Board’s reasons at the time of the hearing, it was unlikely to have had any bearing because (i) the arrangement with a long distance administrator had been in place for 9 years and no demonstrable disadvantage had been shown, (ii) KX’s main concern was for her nursing home fees to be covered, which can easily be taken care of from interstate using electronic banking facilities, and (iii) the Board frequently appoints private administrators who live interstate, where those administrators are friends or family of the represented person, and such distance does not prove to be any difficulty for a competent administrator, which State Trustee Limited clearly is.
Conclusion:
After hearing a review of an administration order made on 3 August 2009 in respect of KX of St Ann’s Nursing Home (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 State Trustees Limited (Victoria) continue as administrator of the estate of the represented person.
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 order remains in effect until 9 December 2012.
Anita Smith
PRESIDENT
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