NSFT (Administration)
[2019] TASGAB 9
•26 April 2019
CITATION:
NSFT (Administration) [2019] TASGAB 9
HEARING DATE(S):
26 April 2019
DATE OF ORDERS:
26 April 2019
DATE OF STATEMENT OF REASONS:
30 May 2019
BOARD:
Mr W Lester
Ms S Aylett
Mr C Partridge
APPLICATION
Application for Administration
CATCHWORDS:
Administration Order – evidence of disability – no contradicting evidence – appropriate person to act as administrator
LEGISLATION CITED:
Guardianship and Administration Act 1995 ss 6, 51, 74
PUBLICATION RESTRICTION:
The decision has been anonymised for the purpose of publication
Reasons FOR DECISION
1.On 26 April 2019 the Guardianship and Administration Board (‘the Board’) heard an application for administration for NSFT. The Application was filed by
LX, one of NSFT’s daughters, seeking that EM, another of NSFT’s daughters be appointed as his administrator.2.NSFT attended the hearing with his legal representative, Ms Rebecca Irwin.
3.Also attending the hearing were:
·LX – NSFT’s daughter and Applicant (by telephone)
·EM - NSFT’s daughter and proposed administrator (by telephone)
·UT - NSFT’s sister in law, and the attorney for his wife (by telephone)
·EN – carer from [the Aged Care Facility], where NSFT resides
·Mr Phillip Heaton - representing the Public Trustee (by telephone)
4.The Board had the following documents before it:
a)Application for Administration dated 12 March 2019
b)Health Care Professional Report from Dr Jane Tolman dated
12 March 2019c)Medical report of Dr Jane Tolman dated 25 February 2019
d)Medical report of Dr Jane Tolman dated 27 February 2019
e)Medical report of Dr David Dunbabin dated 12 September 2018
f)Medical Report of Dr Andrea Lees dated 21 December 2017
g)ACAT MyAgedCare Report dated 10 October 2017
h)Enduring Guardianship executed by NSFT on 11 November 2017
5.As a result of the hearing the Board was satisfied that NSFT is a person with a disability and, because of his disability, he is:
·unable to make reasonable judgements in respect of his financial affairs; and
·is in need of an administrator.
6.Full details of the Orders appear at the end of this Statement of Reasons.
7.NSFT, through his legal representative, has requested a Statement of Reasons in relation to the Board’s decision. This Statement of Reasons deals with appointment of NSFT’s daughter, Danielle, as his administrator. Clearly NSFT is a person ‘aggrieved’ by the determination of the Board and is therefore entitled to a statement of reasons under section 74 of the Guardianship and Administration Act 1995.
Requirements of the Guardianship and Administration Act 1995
8.When the Board assesses an application for the appointment of an administrator it must be satisfied of the matters in section 51 of the Guardianship and Administration Act 1995 (‘Act’), that the proposed represented person:
a)is a person with a disability;
b)is unable by reason of the disability to make reasonable judgements in respect matters relating to all or any part of his estate; and
c)is in need of an administrator.
9.The Board must also balance the principles in section 6 of the Act, which include:
a)adopting the least restriction of the proposed represented person’s freedom of decision and action as is possible in the circumstances;
b)promoting the best interests of the proposed represented person; and
c)that, if possible, the wishes of the proposed represented person are carried into effect.
Is NSFT a person with a disability, and if so, is NSFT incapable by reason of his disability of making reasonable judgements in respect of matters relating to all or any part of his estate
10.As mentioned above, the Board had the benefit of a Health Care Professional Report (‘HCPR’) from Dr Tolman and also further reports of Dr Tolman and
Drs Lees and Dunbabin.11.In her HCPR Dr Tolman notes under the heading ‘disability of the person’ that NSFT suffers from vascular dementia and post traumatic stress disorder. She notes that the dementia has been present for two years and that the prognosis is that it ‘will continue to deteriorate’.
12.The HCPR, dated 12 March 2019, is supported by Dr Tolman’s reports of 25 and 27 February 2019. Relevant, the 25 February report notes that:
Dr Dunbabin, as far back as August [2018], felt [NSFT] was not capable of making decisions about his accommodation. The cognition has only declined since then, so this opinion would stand. I concur with the opinion of Dr Dunbabin; and
Dr Dunbabin addressed the issue of financial administration in September, and noted that there were gaps in his understanding of what he owns and earns.
13.Further, Dr Tolman’s 27 February report notes:
1. I do not think that he has the cognitive capacity to manage his finances and base this opinion on:
a)The vast discrepancy between what his family and carers all say about his care needs and management skills, and his own opinions about this
b)The alleged state of his home and finances prior to placement
c)His lack of awareness of how his finances are currently organised and how bills are being paid
d)His poor executive function:
e)He demonstrated little ability to think in the abstract
f)His poor problem-solving
g)He is not likely to be able to plan independent living (or an escape from the nursing home for that matter)
h)His distractibility
i)His history or needing support for daily living
j)His exaggerated sense of his own abilities
2. I concur with Dr Dunbabin that he needs a surrogate decision-maker for finances
14.Dr Dunbabin’s report of 12 September 2018 deals mainly with Guardianship issues, where he says ‘… I think [NSFT] has some significant cognitive impairment precluding him from making consistent and appropriate lifestyle decisions for himself…’ However, these comments are made in the context that around that time a power of attorney was in place and which appointed two of NSFT’s daughters as attorneys. That power of attorney has since been revoked on 17 January 2019.
15.The reports of Drs Tolman and Dunbabin lead back to the original diagnosis of dementia, which appears to have been made by Dr Lees, geriatrician at the Royal Hobart Hospital, in her report of 21 December 2017 where she lists ‘Dementia’ under NSFT’s ‘problem list’ at the top of her report and notes that ‘I explained to [NSFT and his wife] that he has evidence of a dementia-type process’. While it would seem that these comments were made in the context of his ability to drive, the Board finds that they are still relevant in determining disability.
16.The legal representative for NSFT advised that she would not make any submissions as to the medical evidence on disability, however both she and NSFT noted that he wished to seek his own medical opinion. The Board advised NSFT that he was able to seek a medical report and, if he wished, may seek a review of any order were he to receive such a report. No application was made for an adjournment in order to obtain such a report.
17.Further to the Board advising NSFT as to his right to obtain further medical evidence, the Board also confirmed with his two daughters, who are his guardians under enduring guardianship, that they would not prevent him from obtaining an other medical opinion if he wished – they both confirmed that they would assist to facilitate this.
18.No other medical evidence was provided to the Board, specifically no medical evidence that contradicted the opinions of Drs Tolman, Dunbabin and Lees as to NSFT’s dementia and his impaired capacity to make reasonable decisions with respect to his financial affairs.
19.The Board is satisfied that NSFT is a person with a disability within the meaning of the Act, and that by reason of his disability he is incapable of making reasonable judgements in respect of matters relating to all or any part of his estate.
Is NSFT in need of an administrator?
20.In the application, it was stated that NSFT ‘does not have the cognitive capacity to manage his finances’. During a period prior to the revocation of his enduring power of attorney on 17 January 2019 NSFT’s two daughters LX and EM had control of his finances and noted a number of unpaid bills and loans that they discovered during that period.
21.EM noted that NSFT has ongoing financial obligations, including payments to Regis for his residential aged care facility, pharmacy, Telstra and newsagency bills. The Board was also made aware in the papers that NSFT has significant assets and income that will require ongoing management.
22.The need for ongoing management of NSFT’s finances, in the context of his disability and incapacity and the revocation of his enduring power of attorney, clearly demonstrate a need for the appointment of an administrator.
Appropriate administrator
23.NSFT and his legal representative submitted that he would like to nominate a friend to act as his administrator if the Board was minded to make such an appointment. Neither he nor his legal representative were able to provide any details, or indeed a name, of any such person. No application for an adjournment was made in order to investigate such a matter. The Board did advise that if an appointment were made NSFT may seek a review if he believed that there was a more appropriate person.
24.The application requests the appointment of NSFT’s daughter, EM, as administrator. EM has worked as a payroll officer for a number of years and has previously acted as NSFT’s administrator for a period. She clearly has the qualifications to act. While she does reside in Albury, New South Wales, she is able to be in contact with residential aged care staff and believes that she will be able to acquit the role of administrator from New South Wales. EM has provided a national police certificate which does not disclose any offences at all.
25.Further to her suitability, EM had previously been appointed as a joint attorney for NSFT and is presently one of his joint guardians. This indicates that, at the very least at some point, NSFT did trust EM to act in a similar role and to make decisions for him. The Board finds that although NSFT advised that he did not want his daughters to manage his finances, this wish is likely influenced by his dementia and is also likely out of a desire not to have anyone manage his financial affairs.
26.The Board did suggest to NSFT and his legal representative that it was also possible to appoint the Public Trustee, however his legal representative advised that NSFT would not like to have the Public Trustee appointed.
27.On balance, the Board determined that even though NSFT (both directly and through his legal representative) had expressed the view that he wanted neither his daughter nor the Public Trustee to act, it is appropriate for EM to be appointed as administrator.
Conclusions
28.In considering this matter, the Board did consider NSFT’s wishes:
a)That no administrator be appointed; or
b)That if an administrator is appointed, he nominate another friend to fill that role.
29.With respect to not appointing an administrator, this is not a reasonable option for the reasons set out in this statement of reasons. Further, given that neither NSFT nor his legal representative were able to give the name or details of any alternative administrator, this was also not an option.
Given, the ongoing need for financial management of NSFT’s affairs and his reasonably significant assets and ongoing income the Board determined that the appointment of an administrator was clearly in his best interests and that there is not less restrictive alternative than a plenary administration order.
31.The Board also determined that given the nature of NSFT’s condition and the fact that it is unlikely to improve there is no reason to depart from the usual order that the appointment should be for three years.
32.In relation to the application, the Board Ordered:
1. That EM is appointed as Administrator of the estate of the Represented Person.
2. That the powers and duties of the Administrator are those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
3. That the Order remains in effect until the 25th day of April 2022.
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