NTT (Administration)
[2009] TASGAB 20
•27 October 2009
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
NTT - Application for an emergency order by UNU
Neutral citation: NTT (Administration) [2009] TASGAB 20
REASONS FOR DECISION
Anita Smith
President
Administration – emergency appointment – concern about possible financial abuse by persons involved with the proposed represented person – significant assets at stake
Guardianship and Administration Act 1995 s 65
On 12 October 2009 the Board received a faxed application for the appointment of an administrator pursuant to section 65 of the Guardianship and Administration Act 1995 for NTT (‘the proposed represented person’).
The applicant is the proposed represented person’s daughter, UNU. She supplied a completed emergency application form and a four page letter detailing the reasons for her application.
Section 65 states:
“65. Emergency orders
(1) …(2) Where the Board considers it proper to do so, by reason of urgency, the Board may, in respect of a person who is not a represented person but in respect of whom the Board considers that there may be grounds for making a guardianship order or an administration order make an order appointing –
the Public Guardian as his or her guardian; or
(b) The Public Trustee as administrator of his or her estate –
and in either case the Board may make any order or give any direction considered appropriate in the circumstances.
(3) The Board may make an order under this section of its own motion or on request by any person whom the Board considers to have a proper interest in the matter.
(4) In the exercise of its powers under this section –
(a) the Board is not required to give notice to any person or to hold a hearing before making an order but the Board must make such inquiries or investigations as the Board may think appropriate; and
the Board may act on a request made, or information received, by telephone or any other means that the Board considers appropriate in the circumstances; and
…(4A) The powers and functions of the Board under this section may be exercised and performed by one or 3 members of the Board as may be determined in each case by the President.
(5) An order under this section –
remains in effect for such period as the Board determines but not exceeding 28 days; and
may be renewed but only once for a further period not exceeding 28 days.
(6) …”
From the information it received, the Board considered that the proposed represented person’s daughter has a ‘proper interest in the matter’ for the purposes of section 65(3).
Pursuant to section 65(4), the Board considered the contents of the written application and the attached 4 page letter. The Board then sought further information by telephone from the applicant with regard to: (i) whether the non-physical disabilities mentioned in the application had been the subject of a formal diagnosis and by whom and (ii) why the matters were considered by the applicant to be so urgent that they could not wait for the usual application and hearing process.
May there be grounds for making an administration order?
The grounds for making an administration order are established in section 51 of the Act, i.e. that the proposed represented person is a person with a disability and is by reason of that disability unable to make reasonable financial judgments and in need of an administrator. To make an emergency administration order pursuant to section 65(2) of the Act, the Board needs to be satisfied that these grounds may exist.
The applicant described the proposed represented person’s disability as depression with possible bi polar disorder. The applicant was questioned by telephone as to whether this was a diagnosed illness or mere supposition. The applicant confirmed that these are illnesses for which the proposed represented person has been treated by doctors including Dr CF GP and Dr DK GP and for which she has formerly been hospitalised. The Board was satisfied that the proposed represented person may be a person with a disability.
The applicant detailed a range of areas in which the proposed represented person was not managing her financial affairs. However the main issue of concern to the Board was a possible susceptibility to influence from persons who may be seeking to take advantage of her. This was added to by reports from the applicant that family and friends who had recently offered assistance had been rebuffed in favour of the company of persons who had been suspected abusers. The Board was satisfied that the proposed represented person may be incapable of resisting inappropriate influences regarding her estate.
Because the proposed represented person has savings from superannuation and a valuable property which were potentially at risk of abuse, the Board was satisfied that the proposed represented person may be in need of an administrator to protect those assets until such time as a hearing could be convened to determine an application. There was also evidence on the application that the applicant herself had attempted to have control of the proposed represented person’s estate through an enduring power of attorney. It appeared to the Board that there are competing influences in the proposed represented person’s life seeking control of her funds and that this, in itself, may be putting the estate at risk.
The Board noted that the applicant’s demeanour was one of concern for her mother. She gave credible answers to questions and gave a coherent history of concerns about her mother’s management of the estate and susceptibility to abuse.
Circumstances of urgency:
The applicant expressed concern that the proposed represented person had very recently stayed with a person called KN for 3 days. The applicant stated that this person and her now deceased husband had been involved with the proposed represented person approximately 3 years ago and had attempted to have the proposed represented person sign some unspecified documentation with regards to her house. As a result of that incident, police were called to resolve the matter, the proposed represented person changed the locks on her house and she later stated that she was glad that they were out of her life.
The applicant had attempted to discuss her concerns about the reunion with KN with the proposed represented person by telephone while she was at KN’s home but reported that she her words were slurred and she was abusive.
The application also detailed an incident of possible financial abuse 3 months earlier where the proposed represented person had given to her other daughter’s fiancé $11,000.00 and access to her key card and PIN number for a savings account which was subsequently cleared of funds. It was later discovered that the fiancé had a gambling problem. Following this incident, the applicant reported that she had been unable to contact her mother for 8 weeks because she had withdrawn from contact after suggestions that her daughter (the applicant) have a power of attorney. The applicant reported that a new key card and PIN number had arrived the day before the application was made meaning that the funds in that account were again at risk.
The re-introduction to the represented person’s life of a former suspected abuser and the recent incidence of financial abuse caused the Board concern that the proposed represented person’s significant assets may be at risk of abuse. The applicant stated her fear that the proposed represented person “may do something irrational – for example draw more from Super and hide or lose or give it away. She may even become so angry (in her current state of mental health) that it may cause her to act out of anger and confusion to further financial detriment.”
On one hand the Board was aware that there may be an alternative version of events to that put by the applicant and the proposed represented person has a right to defend the application. On the other hand, the applicant suggested that discussion of the application may expose the proposed represented person to an even greater risk of financial abuse in the period between the application being received and the hearing. Because the proposed represented person had allegedly been the subject of two earlier incidents of suspected financial abuse and because of the significant level of assets at stake, the Board decided to err on the side of caution to establish the protective measures of an emergency order before possibly exposing the proposed represented person to greater risk of harm.
The application also detailed outstanding debts and a reluctance to deal with future financial planning. Neither of these issues was considered urgent, but would be relevant to an administration application.
Conclusion:
Taking into account the terms of section 65(2) of the Act and the information presented by the applicant the Board was satisfied that there were circumstances of urgency and that there may be grounds for making an administration order.
THE BOARD ORDERS
That the Public Trustee be appointed administrator of the represented person.
That this order remains in effect for 28 days from this date.
FURTHER THE BOARD DIRECTS:
That on or before the expiry of 25 days duration of this order, The Public Trustee shall report to the Board upon the following matters:
(a) Any decisions or transactions made on behalf of the represented person pursuant to this order,
(b) Whether any matters have come to the attention of The Public Trustee that might indicate whether or not there is need for a continuing administration order,
The Public Trustee is hereby directed to take all reasonable steps to ensure that an application for administration and a Health Care Professional Report are completed by the applicant before the expiry of the emergency order.
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Anita Smith
PRESIDENT
Statement of reasons delivered 27 October 2009
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