MMD
[2014] QCAT 191
| CITATION: | MMD [2014] QCAT 191 |
| PARTIES: | MMD |
| APPLICATION NUMBER: | GAA10826-13 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 4 March 2014 |
| HEARD AT: | Townsville |
| DECISION OF: | Member Johnston |
| DELIVERED ON: | 6 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Tribunal appoints the Public Trustee of Queensland for the legal matter of investigating MMD’s entitlement to bring a family provision claim against the Estate of the late ME. 2. The Public Trustee of Queensland is appointed for a period of one year. 3. The Public Trustee of Queensland will provide a report with recommendations to the Tribunal by 4pm on 16 January 2015. 4. The Tribunal directs PG to co-operate fully with the Public Trustee of Queensland. 5. The Tribunal directs PG to promptly provide the Public Trustee of Queensland with any funds requested by the Trustee to undertake the investigation. |
| CATCHWORDS: | Compensation Order in circumstances where the Administrator has breached her duties Guardianship and Administration Act 2000 s 59 |
APPEARANCES and REPRESENTATION (if any):
BL – friend
PS – friend
WM – friend
TJ – Sister
PG – Sister, Guardian and Administrator
FJ – Sister
SP – Centacare
REASONS FOR DECISION
Background
MMD is a 65-year-old woman who suffers from Cri Du Chat syndrome. Her mother ME supported MMD in her own home up until her death on 4 September 2011. MMD was subsequently placed in the Oz Care Villa Vincent Nursing Home which is where she is currently residing.
The Tribunal had on 26 October 2006 appointed ME as MMD’s Guardian and Administrator. Due to ME’s deteriorating health this was changed on 4 August 2010 and her daughter PG was appointed as MMD’s Guardian and Administrator.
ME’s Will left the majority of her assets to her three of her daughters: PG; TJ; and FJ. MMD received a small financial gift ($11,665.61) whilst the proceeds of the sale of ME’s house were distributed to MMD’s sisters equally (the sum of Seventy Eight Thousand each).
ME’s Will nominated PG as one of her executors.
The Tribunal re-appointed PG as Guardian and Administrator on 4 March 2014.
The Tribunal notes that in the Account by Administrator PG states at paragraph 21: MMD's expenses are more than her pension so the money from mum covers the extras plus FJ and I supply a lot of things as well.
The issue for the Tribunal is that no steps were taken to bring a family provision application. MMD who suffered from a significant intellectual disability was clearly dependent on her mother’s support. This would have entitled her to challenge her mother’s Will as it did not provide adequate support for her as a dependent.
PG and her two sisters TJ and FJ sought advice from the legal firm Crosby Brosnan and Creen regarding the administration of ME’s estate. Her lawyer pointed out in his letter of advice that PG had been appointed as the Guardian and Administrator for her sister MMD. He confirmed that the firm would not act for PG in her capacity as Guardian and Administrator. What the lawyer was doing was highlighting to PG that he was only acting in relation to the estate of her mother.
The Tribunal wants to know who is looking after MMD's interests. PG told the Tribunal that she had not asked for any advice about her obligations as an Administrator. She had not received any advice from the Solicitor about MMD's rights to challenge her mother’s Will. She did not get advice regarding her sister’s prospects of success bringing such a claim. She told the Tribunal that she and her sisters would support any of MMD's future needs.
The Tribunal referred to the reference in the solicitor’s letter of advice to the Deed of Agreement that had been drafted to confirm that MMD’s sisters would support her financially. The Tribunal asked PG why this had not been provided to the Tribunal. PG was not able to explain why it had not been provided. The Tribunal asked for a copy of the signed Deed and was subsequently provided with an unsigned copy of the Deed.
The Deed provides in clause 2 as follows: If at any time MMD requires any financial assistance, the parties agree that they will each contribute equally to meet these financial needs. There is no mechanism for the parties’ performance to be monitored independently.
Compensation Application
The Tribunal initiated the application for a compensation order.
The basis for this application was the failure of the Administrator to take steps to protect her sister’s rights to bring a family provision application in relation to her mother’s estate.
PG was required as Administrator to put her sister’s interests before her own interests. An Administrator is required to avoid a conflict between her duty as an administrator and her own interests and any other duty that she owes. An Administrator is required to be diligent in protecting her sister’s interests.
The Administrator had a clear conflict between her role as executrix and beneficiary in her mother’s estate and her role as her sister’s Administrator. When alerted to the fact that she was playing different roles she did not take steps to get adequate advice in relation to her obligations and responsibilities.
The Tribunal accepts evidence of SP from Centacare that the Administrator and her two sisters want to support MMD. The Tribunal accepts that PG; TF and TJ have MMD’s best interests at heart. They did not set out to overlook her rights. They thought as a family that they could support her needs and that the Deed of Agreement that had entered into bound them to support her in the future. The Administrator did not understand her duty as Administrator to her sister. The Tribunal must be satisfied that MMD's interests are being properly protected otherwise a clear basis exists for the Tribunal to make a compensation order.
Whilst the Deed of Agreement can be seen as an attempt to support MMD it needs to be shown that it actually will benefit MMD. It also needs to be established that the Deed is an appropriate means of protecting MMD's interests. The Tribunal is concerned that MMD has lost rights that she had and that the Deed represents promised future support. The practice of contracting out of legal rights is not to be undertaken lightly.
The Tribunal puts PG on notice that the Tribunal will consider making a compensation order against PG personally because of her failure to act in accordance with the provisions of the legislation namely that she acted inappropriately as Administrator. The Tribunal directs PG to explain by written submission to the Public Trustee of Queensland why she should not be asked to compensate her sister MMD. The Tribunal must be satisfied that appropriate measures have been put in place to protect MMD's interests.
The Tribunal has the power under section 59 of Guardianship and administration Act 2000 (the Act) to order an Administrator to compensate the adult where a loss is caused by the actions of the Administrator e.g. failing to comply with the Act.
The Tribunal will appoint the Public Trustee of Queensland to investigate the matter and report back to the Tribunal with recommendations before making a final decision in relation to the making of a compensation order.
Orders and Directions for the further conduct of the matter
The Tribunal appoints the Public Trustee of Queensland for the legal matter of investigating MMD’s entitlement to bring a family provision claim against the Estate of the late ME.
The Public Trustee of Queensland is appointed for a period of one year.
The Public Trustee of Queensland will provide a report with recommendations to the Tribunal by 4pm on 16 January 2015.
The Tribunal directs PG to fully co-operate with the Public Trustee of Queensland.
The Tribunal directs PG to provide the Public Trustee of Queensland with any funds requested by the Trustee to undertake the investigation.
The Tribunal makes the following additional directions:
a) PG is to provide a signed copy of the Deed of Agreement to the Public Trustee of Queensland.
b) PG is to provide to the Public Trustee of Queensland a plan outlining: firstly how MMD’s financial needs will be met from her current resources; and secondly if she has needs outside of the current financial resources how those needs will be funded. How this is to be monitored to ensure that her sister’s interests are protected.
c) PG is to provide to the Public Trustee of Queensland Statutory declarations from FJ and TJ setting out how they propose supporting their sister’s financial needs.
d) PG is to provide to the Public Trustee of Queensland any other information; documents; or other material that the Trustee may request.
The Tribunal will then make a decision on the papers pursuant to section 32 of the QCAT Act.
0
0
0