NIC (Guardianship and Administration)

CITATION:	NIC (Guardianship and Administration) [2019] TASGAB 11
HEARING DATE(S):	10 May 2019
DATE OF ORDERS:	10 May 2019
DATE OF STATEMENT OF REASONS:	4 June 2019
BOARD:	Mr J Otlowski Ms C Wallace Ms A McKenzie
APPLICATION	Application for Guardianship and Administration
CATCHWORDS:	Choice of Administrator - proposed represented person’s wishes
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas) ss 6, 51, 54
PUBLICATION RESTRICTION:	The decision has been anonymised for the purpose of publication

Reasons FOR DECISION

An Application for Guardianship and Administration for NIC was made by Ms Louella Tria, a social worker at the Royal Hobart Hospital (“RHH”). The application was heard on 10 May 2019 and the following persons attended the hearing: the Applicant, Ms Louella Tria, Ms Nicky Targett from the Office of the Public Guardian, Ms Rosemary Jurs from the Public Trustee (Tas), KFH, carer and friend of NIC, KN, a friend of KFH, TD, a support person for KFH, EH, a neighbour of NIC, NIC attended by telephone from the Royal Hobart Hospital, and in the room with her were a social worker at the RHH, Ms Hui-Yu Yao and Dr Samantha Rose.
It became clear after hearing from the Applicant, Ms Hui-Yu Yao and NIC that there was no present need for the appointment of a guardian as NIC agreed with her carer and the treatment team at the RHH that she should be discharged to a residential aged care facility. Accordingly, the Application for Guardianship was dismissed, and this Statement of Reasons concerns the Order made on the Application for Administration.
The Board had before it a detailed application from the Applicant and a Health Care Professional Report (“HCPR”) from Dr Janina Skelton, a medical practitioner with a specialisation in geriatrics, dated 10 April 2019.
The Application and the HCPR establishes that NIC suffers from complex medical conditions and requires several medications and palliative care in respect of some of her medical conditions. NIC has been a patient of the RHH since 13 March 2019 and the team at the Peacock 1 unit at the RHH were planning for her discharge.
The Board is satisfied based on the HCPR that NIC suffers from Alzheimer’s, memory loss, poor insight and functional decline. For the purposes of Section 51 of the Guardianship and Administration Act 1995 (“the Act”) the Board is satisfied that NIC has a disability and as a result of that disability is unable to make reasonable judgements in respect of matters relating to all or any part of her estate.
The Application states that KFH is a friend and carer of NIC who has provided regular care and support and that she has been involved with the management of NIC’s finances. In May 2018 NIC appointed KFH as her Attorney. However, on 26 September 2018 that appointment was revoked. KFH continued to assist NIC with the management of her finances after the revocation of the Enduring Power of Attorney whilst NIC was a patient at the RHH. The Application discloses that NIC’s estate consists of a bank account of approximately ten thousand dollars ($10,000). NIC is in receipt of an aged pension and the administration of her estate involves the payment of outgoings concerning NIC’s rented unit accommodation. The Board notes that upon NIC moving to a residential aged care facility the lease for the unit will have to be surrendered and after that the administration of NIC’s estate will be simplified as there will be no outgoings concerning the rented property. The management of the estate is quite simple.
The Board is satisfied that NIC needs an administrator to take the necessary steps to surrender the lease for her unit, to enable her transition into a residential aged care facility and to pay the facilities fees and any other expenses NIC incurs.
The issue with this application is who should be NIC’s administrator.
KFH advised the Board that she, reluctantly, would like to take on the role as administrator. She said that she was familiar with NIC’s finances because she had managed her affairs before. KFH advised the Board that NIC becomes distressed if she does not have some cash readily available. The Board raised with KFH how she would deal with a situation where NIC wanted cash and there were insufficient funds, and KFH was confident that she could resolve any conflict in that regard. KFH said that she had read up on what was involved with being appointed an administrator and that she understood the process and the need to account for monies spent on NIC’s behalf and the responsibility to make annual reports to the Board.
NIC was asked for her views about who the administrator should be, and she made it clear in very strong terms that she wanted KFH to be her administrator. NIC was aware that they had had some conflict in the past, but she was confident that she and KFH could resolve any differences.
Section 6 of the Act sets out the principles to be observed by the Board when making an Order. Section 6(c) requires the Board to ensure that the wishes of a person are, if possible, carried into effect. It is significant in this case that NIC has strong views about who should be appointed, and more than lip service needs to be paid to the fundamental principle that the wishes of NIC, if possible, should be carried into effect.
The Applicant’s submission was that the Public Trustee should be appointed, and the Applicant referred to the fact that KFH had been appointed as an Attorney and then that appointment was revoked. The Applicant also stated that NIC had a history of giving money away to others and may not understand that movement to an aged care facility would limit the access that she would have to cash and queried whether KFH would be able to deal with this conflict. Ms Hui-Yu Yao stated that friends had raised concerns about missing funds and bills not being paid. Ms Yao also raised as an issue that KFH may be a beneficiary of NIC’s Will and that could result in a conflict.

EH voiced his view that the Public Trustee be appointed and stated that his wife had paid bills that KFH had not paid. In response, KFH said that NIC had left some money in her unit to pay bills, however, another person took the money and that it was not her. KFH also said that she was unhappy with what she had been told that she could and could not do for NIC by the social workers at the RHH.
Whilst it is clear that there has been some uncertainty and confusion about the payment of bills for NIC in the past, it is NIC’s clear wish that she wants KFH to be appointed as her administrator and despite the concerns that were raised by a number of people at the hearing the Board is not satisfied that KFH is unsuitable to be appointed.
Section 54(1)(d) of the Act details what the Board must be satisfied of before appointing a person as an administrator. In relation to each of those matters the Board finds that:
i.KFH will act in the best interests of NIC;
ii.KFH’s interests are not in conflict with NIC’s interests as it is in the interests of KFH, if she is a beneficiary of NIC’s Will, that NIC’s accounts are paid otherwise those accounts and any applicable late charges or penalties would be payable by the Estate and reduce her share of the Estate;
iii.KFH is suitable to act;
iv.KFH has sufficient expertise, it is a simple estate and she is familiar with NIC’s estate.
Importantly Section 54(2) of the Act directs that the Board must take into account NIC’s wishes and their compatibility with the administrator. Whilst there have been some issues between KFH and NIC, NIC was strongly of the view that she wanted KFH as her administrator and they could work out any issues.

Determination

On 10 May 2019 the Board Ordered:
1.That KFH is appointed as Administrator of the estate of the Represented Person.
2.That the powers and duties of the Administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
3.The Administrator is authorised to distribute gifts from the Represented Person’s estate to a maximum of $500.00 per year. Such gifts are subject to the Administrator’s discretion and are only applicable providing that there are sufficient funds in the estate.
4.That the Order remains in effect until the 9th day of May 2022.

[2019] TASGAB 11

10 May 2019