NFI (Review of Administration)

CITATION:	NFI (Review of Administration) [2020] TASGAB 38
HEARING DATE(S):	13 August 2020
DATE OF ORDERS:	13 August 2020
DATE OF STATEMENT OF REASONS:	13 September 2020
BOARD:	Ms L. Wall, Member
APPLICATION:	Review of Order – Administration
CATCHWORDS:	Statutory review of administration – non-compliance with duties of private administrator
LEGISLATION CITED:	Guardianship and Administration Act 1995, ss 6, 51, 54, 63, 67, 68
PUBLICATION RESTRICTION:	This decision has been anonymised for the purposes of publication

Statement of Reasons

Background

The Applicant, TGK, made an Application for the statutory review of the Administration Order for NFI dated 22 August 2019 (‘the Application’).
The Guardianship and Administration Board (‘the Board’) found that the requirements of section 51 of the Guardianship and Administration Act1995 (‘the Act’) were still satisfied in relation to NFI and that the continuation of an Administration Order was consistent with the principles of section 6 of the Act.
The Board was not satisfied that TGK met all of the eligibility requirements set out in section 54(1)(d) of the Act and was thus not suitable to be reappointed as Administrator.
The Public Trustee (Tas), who was not represented at the hearing, was appointed as Administrator in place of TGK. On 31 August 2020 the Public Trustee requested a Statement of Reasons for the Board’s decision.

Hearing

The Board heard the Application on 13 August 2020. NFI did not attend the hearing. The Health Care Professional Report (‘HCPR’) stated that whilst her mental condition would not prevent her attendance, her deafness would.
In attendance at the hearing were:
a.TGK (Administrator).
The Board had before it the following documents:
a.Administration Order dated 22 August 2019;
b.Application dated 1 July 2020;
c.HCPR by Dr Sue Lizner dated 23 June 2020; and
d.Private Administrator’s Annual Report, including extracts of a bank statement for NFI and a bundle of accounts dated 1 July 2020.

Legislation

Section 67(c) of the Act provides for the review of Orders on Application by the Administrator after holding a hearing.
Section 68 of the Act provides for the making of an Order after review as follows:
(1) On a review under section 67 , the Board may vary or continue a guardianship order or administration order subject to any conditions or requirements it considers necessary or the Board may revoke the order.
(2) The Board may make such further orders as it considers necessary in order to give effect to an order made under subsection (1).
Section 54 of the Act sets out who may be appointed as an Administrator as follows:
(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.

Evidence

Medical evidence before the Board comprised the HCPR provided by Dr Sue Lizner and filed by the Applicant. Dr Lizner confirmed a diagnosis of dementia which was diagnosed in 2018, the symptoms of which had then been evident for three or four years. Her cognition and mobility were continuing to decline.
As a result of the disability, it was Dr Lizner’s opinion that NFI remained unable to understand or make executive decisions and that she was thus unable to appreciate the nature and extent of her estate or manage her finances herself.
The uncontradicted medical evidence was accepted by the Board. Taking into account that evidence and the considerations set out in section 51(2) and (3) of the Act, the Board is satisfied in all the circumstances that the need for the appointment of an administrator of NFI’s estate continues.
TGK wished to continue in the role of Administrator for her mother, NFI. The Board therefore considered whether she satisfied the criteria set out in sections (1)(d)(i)-(iv) of the Act.
The Board did not receive an Annual Report from TGK until the day of the hearing. It did not comply with the reporting requirements of section 63 of the Act. It was incomplete and contained very little detail explaining NFI’s financial circumstances. It did not reconcile income and expenditure or assets and liabilities. No work sheets were completed setting out income and expenditure over the period. An incomplete selection of bills and receipts was provided without any explanation of their relevance. A Retirement Benefit Fund statement of pension was provided but was not included as income along with the Centrelink pension in the Annual Report. TGK advised, ‘I didn’t know what to send. I am not computer literate. I just grabbed bills that I could send.’
The Annual Report stated that there had been no significant changes in NFI’s finances during the administration. The Westpac bank statement that was provided, however, showed that there had been substantial withdrawals amounting to $27,000 between 16 June 2019 and 4 June 2020. The total bank account balances reported in the Annual Report amounted to $57,890.71. The balances were not substantiated with documentation. A further Commonwealth account showed a balance of $2,159.27 which was not included in the Annual Report. It was clear that the withdrawals constituted a substantial part of NFI’s estate. When asked about this, TGK was vague in her answers, saying that there was car registration, house insurance and respite care. She went on to say that she was living with her mother 95 percent of the time and had only obtained a carer’s allowance for the last 4 weeks since her husband lost his job through COVID-19. She said, ‘so really I’ve had to pull a wage to live here as well. I’ve just had bills to pay as well as Mum.’ When asked if she had used her mother’s money for ‘a wage’ to pay her own bills she said ‘no, not really. Just food.’ In trying to explain some of the significant withdrawals she volunteered ‘I took $600 a week over 12 months.’ She did a calculation and then said “that’s $9,000 I would have had over the year. That’s what I would have took (sic) out.” The Board noted that a weekly sum of $600 amounts to $31,200 over 12 months, not the $9,000 she calculated. No such sums for ‘wages’ were accounted for in the Annual Report. The Act does not authorise remuneration of a private administrator.
TGK could not identify what the substantial individual withdrawals had been spent on. When asked about a withdrawal of $2,000 on 4 June 2020 she said ‘I can’t remember to be honest. I’ve got paperwork everywhere.’ When questioned about a withdrawal of $12,000 on 16 June 2019 she said ‘I think we had rego, house insurance and bathroom renovations we were going to do.’ She advised that she did not do these works ‘because Mum wouldn’t let me rip it out even though she wasn’t in her right mind.’ When asked to identify other large withdrawals, one of $7,000 and three of $2,000 she said that her mother ‘took some money out and gave my girls $2,000 each when she was really sick.’ When asked if she understood the duty for an administrator to obtain approval for gifts, TGK said, ‘it wasn’t really a gift – just some bills the girls had.’ She said they would pay it back. When asked to comment on the lack of evidence of gifts or loans in her report she said:
I didn’t realise it was important. I thought it was Mum’s money and that it was up to her… Mum’s always helped the girls out. She’s OK in the mornings and knows what she’s doing. In the afternoons she gets a bit delirious – but I didn’t realise that it was such a big problem. It won’t happen again. Look I’m doing the best I can. I am her only child and two granddaughters. We are doing what we can.
Mostly TGK would take her mother to the bank herself in her wheelchair, but sometimes the nurses, who came in three times a week, would take her to get money out. She told the Board that NFI kept $1,500 in the house for paying bills. She added: ‘I shouldn’t tell you this, she would die. She thinks someone will kill her for the money.’
The inadequacy of the Annual Report and TGK’s failure to comply with the requirements of the Board set out in the Act and the Private Administrator’s Handbook; her inability to explain the deficiencies in accounting; the depletion and improper use of her mother’s money under the current Order and her obvious failure to appreciate the role and duties of an Administrator at all satisfied the Board that TGK was not able to act in NFI’s best interests. There was a mingling of her mother’s finances and her own. Her actions indicated a sense of entitlement to use her mother’s money for herself as and when she saw fit because she was caring for her, and because she and her daughters were the only family. This demonstrated a conflict of interest of which TGK did not appear to understand. Her inability to appreciate that there were any deficiencies in her performance as Administrator satisfied the Board that, at best, she did not have sufficient expertise or competence to be considered for reappointment as Administrator.
The Board found that NFI is a person with a disability; is unable as a result of the disability to make reasonable judgments in matters relating to all of her estate and is in need of an Administrator.
Accordingly the Board Orders that:
1. The Administration Order for NFI made on 22 August 2019 has been reviewed and varied and from this day the Order is:
i.The Public Trustee (Tas) is appointed as Administrator of the estate of NFI.
2. This Order remains in effect until 18 August 2023.

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[2020] TASGAB 38

13 August 2020