NT (Administration)

[2004] TASGAB 7

Guardianship and Administration Board
Hobart

NT on the application of HH

NT (Administration) [2004] TASGAB 7

GAB No. XXXX of 2004

REASONS FOR DECISION

Kereth West (Chair)
Paul Mayne (Board Member)
Kim Barker (Board Member)

19 November 2004

Administration – ‘in need of an administrator’ – proposed represented person’s estate being informally managed by her son, care provided by her daughter, lack of communication between son and daughter – needs not being met – informal manager of estate unable to comply with requests for information about the estate

Guardianship and Administration Act 1995 s.51, 54

1. This is an application under section 50 of the Guardianship and Administration Act 1995 for appointment of an Administrator.  The applicant was HH, a nurse in the employment of the XXXX.  The matter was heard in Hobart on 19^th November 2004.

1. The proposed represented person is a 91 year old widow who resides with her daughter, MN, and her son-in-law.  She was diagnosed with dementia in 2000 and attends the Shore Street Day Centre for respite 3 days per week.

2. The application was received on 30 September 2004.  The application specified that while NT resided with her daughter, her finances were managed informally by her son, KT.  The application described difficulties in communication between NT’s children meant that NT was unable to be placed on a nursing home wait list because of the inability of her principal carer to specify her financial situation.

3. Documents before the Board:

   ·Application for Administration – HH, Applicant

   ·Health Care Professional Report – Dr Donald Potter, GP

   ·Aged Care Assessment Report – Colleen Harkness, Assessor

   ·Summons to Attend and Produce Documents to KT

   ·Report to the GAB – Anne Perks, Senior Investigation Officer, GAB

   ·NT’s Will provided by The Public Trustee

   ·Statement of Accounts held with Commonwealth Bank

   ·List of expenses submitted by MN at the hearing

Disability

A Health Care Professional Report was received from Dr Donald Potter on the 7^th October 2004.  Dr Potter, who has known NT for 23 years, stated that she has been diagnosed with dementia for the past 4 years and continued deterioration in her cognitive functioning was expected.  He reported that she is disoriented, has poor recent mentor, impaired learning capacity, unable to determine cause and effect relationships and is susceptible to undue influence by others.

The applicant, a registered nurse, confirmed the progressive deterioration and added that NT was now frequently incontinent and her physical capabilities were also deteriorating such that she required increasing levels of assistance.

Parties present at the hearing did not dispute that NT had dementia.  KT did comment that his mother was being monitored by Dr Potter and that he had expected to hear from Dr Potter with a view to initiating an Enduring Power of Attorney.  KT stated he had had no contact with Dr Potter for 18 months.

The Board determined that NT is a person with a disability.

Incapacity

In the Health Care Professional Report, Dr Potter stated that NT was aware that she owned a house but had no appreciation of the nature and extent of her estate beyond this.  He reported an inability to make reasonable decisions in regard to her assets and was of the opinion that NT was incapable of managing any part of her finances.  KT has been managing NT finances informally since the death of her husband 39 years ago.  All parties present agreed that NT is now incapable of managing her estate.

The Board determined that NT is in capable of making reasonable financial judgements.

Need

• Basic Needs

The applicant identified NT current need for clothes, shoes, incontinence aids, spending money and a tilt chair.  She stated that whilst MN cared well for NT, she appeared to have difficulties accessing NT resources to purchase new clothes, pay for day centre activities and meet her requirements in terms of physical aids.

MN stated that her brother controlled all her mother’s assets including her pension.  There was no regular arrangement between KT and herself to provide for NT care, board and extraordinary needs.  MN stated that she needs to ask for reimbursement and that NT makes a lump sum payment.  The arrangement is complicated by the fact that MN and her brother do not directly communicate but through KT wife who acts as an intermediary.  MN is uncomfortable asking and has reportedly suffered financial hardship as a consequence.

MN submitted a statement of expenses claimed for NT and lump sum payments she has received from KT for the period from 14 June 2000 to 16 November 2004.  MN submitted expenses of $3175.00 for items such as day centre fees, chemist bills, underwear, hairdressing, medical expenses and the like.  She stated that she had received total reimbursement of $2300.82 (including $874.18 for day care fees) from NT during the 4.5 year period.  It was apparent that MN has not received regular moneys for board including food, power, clothing and personal items over this period.

KT confirmed that MN had to ask for funds.  KT was unable to provide the Board with any documented records of his management of his mother’s funds.  KT felt he was given insufficient time to prepare despite being sent a notice of hearing on 20 October and a summons to produce documents on 10 November 2004.  He stated that he expended approximately $7300 per annum of her annual pension of $11,760.00.  He did not account for the discrepancy between MN’s statement and the $7300.  KT did acknowledge the communication breakdown and reinforced that it was not his fault.

• Assets

The Commonwealth Bank advised on 18 November 2004 that NT had 4 accounts containing approximately $33,000 held in her name and 1 account with $3227.63 held jointly with another party.

NT is the owner of a house in XXXX.  The house is next door to KT.  The house is, according to the Board’s Senior Investigation Officer, in a state of disrepair and is vacant.  KT apparently lives in the house sufficiently to ensure that he satisfied the requirements for insurance.  The house appears to be depreciating and is not generating an income for NT.  KT stated an intention had been to sell the house at a “date to be decided” when he got an EPA.

• Other considerations

MN reported increasing difficulties in managing her mother on a full time basis and would like to place her mother on a waiting list for nursing home care.  MN is unable to complete the necessary paperwork as it requires the provision of a comprehensive financial statement with details that she does not have access to.

The Board was satisfied there were difficulties in ensuring that NT’s assets were accessed easily to maximise the quality of her life on a day to day basis.  The Board felt that additional issues associated with the significant assets being held by the Commonwealth Bank without a clear financial plan and the concerns surrounding NT major asset not being utilised in her best interests confirmed the need for the appointment of an Administrator.

The person’s wishes

NT expressed the desire for her daughter MN to manage her money to the Board’s Senior Investigation Officer as she felt that MN and her husband were always good to her.

Least restrictive alternative

NT level of incapacity means that she cannot execute an Enduring Power of Attorney.  The current informal arrangement with KT managing his mother’s affairs has not adequately met her needs.  The Board was of the opinion that there was no less restrictive alternative than the appointment of a formal administrator.

Best interests

The Board was satisfied that to maximise Mrs Steven’s comfort and lifestyle together with the maintenance and maximisation of her assets were in NT’s best interests and to do what would require the appointment of an Administrator.

Appropriateness of the guardian or administrator

The Applicant and MN were both of the opinion that the most appropriate Administrator would be the Public Trustee.  KT confirmed his interest in being appointed as his mother’s Administrator during the hearing.  The Applicant and MN were both concerned that should KT be appointed there would be a continuation of the status quo where NT’s daily needs were not met from her own resources.  KT stated that he has an understanding of the role of an Administrator and was capable of managing NT’s affairs in a manner that would pass the scrutiny of others.

The Board was not satisfied that KT would be an appropriate Administrator of this mother’s estate for the following reasons:

• His inability to provide the Board with the requested documents relating to the estate and his management of his mother’s finances, together with his inconsistent reasons for non-production throughout the hearing did not give the Board confident in his ability to undertake the role;
• KT’ apparent neglect of NT’s principal asset, her house, to the extent that it is poorly maintained and not generating any income from which NT could benefit did not give the Board confidence in NT’s abilities;
• NT did not appear to have regular contact with his mother and was seemingly unaware of dismissive of her immediate needs as specified by her primary carer and the nursing representative of the day care centre.  Comments made by NT such as “…one pair of shoes is sufficient; she’s not walking so much so they won’t wear out…” and “last time I saw her she could get out of a chair with not much trouble – if she can’t now it’s because she’s not getting much exercise and getting lazy” demonstrated clearly to the Board that KT is unable to appreciate the real needs of an elderly dementing and incontinent woman and there would be a reasonable probability that he would deny her personal items and aids that would increase her comfort and care were he appointed Administrator.
• The clear conflict between KT and the primary carer, MN has resulted, in the Board’s opinion, in NT not receiving the full benefit of her pension over recent years.  It was apparent throughout the hearing that this conflict would not be readily resolved.  The Board was not satisfied that the appointment of KT as Administrator whilst the conflict continued could be in the best interests of NT.

The Board therefore considered the appointment of Public Trustee as the most appropriate Administrator to act in NT’s best interests.

Board Notes

The Board noted the dedicated care given to NT by her daughter MN and the apparent financial strain providing a home for her mother has placed on her.  The Board suggested to MN that it would be appropriate to discuss reimbursement for board and other items with the appointed Administrator.

Conclusion

The Board was satisfied that NT is suffering dementia and clearly meets the criteria for disability under the Act.  The HCPR and parties present at the hearing confirmed NT’s incapacity to manage her estate because of her deteriorating mental state.  The Board was satisfied that the current informal assistance provided to NT by her son was not meeting her daily needs in that there are difficulties in NT’s primary carer accessing her funds to maximise her quality of life and that her principal asset was depreciating and not generating income.  The Board considered the appointment of KT as his mothers’ Administrator but, because of the reasons specified above, opted for the appointment of the Public Trustee to ensure that NT’s best interests are paramount.

THE BOARD ORDERS

1. That the Public Trustee be appointed as administrator of the estate of NT.

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. That the order remains in effect until 18 November 2007.

Kereth West
CHAIR