ONT (Administration)
[2012] TASGAB 9
•17 May 2012
GUARDIANSHIP AND ADMINISTRATION BOARD
BURNIE
ONT on the application of MNT (daughter) for an Administration Order
Neutral citation: ONT (Administration) [2012] TASGAB 9
REASONS FOR DECISION
Leon Peck (Chair)
Mary Davies (Member)
Grant Kingston (Member)
Date of hearing: 17th May 2012
Administration – disability and incapacity – need for an administrator for elderly person in Aged Care – eligibility of person’s daughter for appointment - lack of rigour and an apparent lack of due process shown with respect to person’s real estate by nominee
Guardianship and Administration Act, 1995 s. 3, 51, 54
ONT is a 92 year old widow currently residing in an Aged Care facility, having been transferred there from the Hospital on 22nd February 2012. ONT had been admitted to hospital following the suffering of a stroke at home. For the three years prior to hospitalization MNT (daughter and applicant) had been living with her mother in the family residence at the Aged Care Facility. With ONT becoming frail her daughter, had assumed increasing responsibility for her personal care and the management of her finances and has now made an application to be appointed as her administrator
The application was heard at the Burnie Municipal Chambers on the 17th May 2012 at 9.30am. In attendance, initially, was the applicant MNT. It was expected that KX, Director of Nursing at the Aged Care facility would be in attendance. Upon the Board calling an adjournment to consider the application it was found that KX, arriving late, had waited outside.
The Board for reasons that will be detailed later were keen to speak with KX. The hearing was therefore reconvened. During the hearing the legal requirements and principles by which the Board operate were detailed. That is, it had to be established that ONT suffered a disability that prevented her from making reasonable judgements and decisions in relation to the management of her estate. In addition the Board had to be convinced that there was the need for an administration order and finally had to be convinced of the appropriateness and suitability of MNT for appointment as administrator.
Is ONT a person with a disability?
A health care professional report from Dr Jim Berryman, Saunders Street Clinic, Wynyard dated 20th March 2012 disclosed that ONT was suffering from dementia and that her condition was deteriorating. She had also recently fractured her ankle and was suffering congestive cardiac disease.
MNT, a nurse with 30 years’ experience, confirmed the diagnosis describing her mother's disorientation and the difficulties she experienced in swallowing, incontinence, poor vision and lack of mobility.
There was no evidence or information brought before the Board that would have led the Board to conclude other than ONT had a disability, as interpreted in Part 1, Section 3 of the Guardianship and Administration Act, 1995.
Does ONT lack capacity to make reasonable judgments in respect of her estate?
In his report Dr Berryman stated that as the result of the disability, ONT had “reduced ability to manage finances”. He considered that ONT would be “unable to effectively” manage day to day financial requirements or make major financial decisions.
This lack of capacity was also supported by the MNT. She stated that she had helped her mother with her finances for a number of years and ONT was unable to make reasonable decisions for herself.
KX, Director of Nursing also considered ONT incapable of managing her finances.
As no evidence to the contrary was put before the Board, the Board concluded that ONT has a disability and, as a result of the disability, lacks the capacity to make reasonable financial judgements in respect of matters relating to her estate as per Part 7, Section 51 (6) of the Guardianship and Administration Act, 1995.
Is ONT in need of an administrator?
MNT stated her mother's admission to the Aged Care Facility required a bond payment of $150,000 with accommodation fees of $2,530.70 per month.
KX, following questioning by the Board, stated that ONT had been admitted to a new extension at the Aged Care Facility with improved rooms, facilities and extra services to those normally provided to high care patients. As a result their federal licence enabled them to charge a bond and a daily fee over and above the high care standard rate.
MNT acknowledged that this was consistent with her understanding and was very happy with the quality of the accommodation.
MNT confirmed that ONT owned a property at the Aged Care Facility with an estimated value of $374,000. MNT also disclosed that ONT receives a payment of $1,955 per fortnight from a superannuation fund, this being her sole source of income.
MNT stated that ONT had only one bank account. Correspondence from the Commonwealth Bank of Australia advised, as at 16th April 2012, an account balance of $34,780.33.
MNT stated that she had made the application for administration to enable the sale of the above property to meet the Aged Care Facility bond payment.
The Board accepted there was the need for accounts to be accessed and real estate to be sold in order to meet the financial commitments to the Aged Care Facility as per Part 7, Division 2, Section 51 (c), of the Guardianship and Administration Act 1995.
The Board therefore decided it to be in ONT's best interests to grant a plenary administration order for three years.
Is MNT eligible for appointment as administrator?
The Board members were somewhat confused at who had authorized a deduction of $30,000 from ONT’ bank account for the deposit on the bond. Similar concern existed on the authority associated with the monthly direct debit from her bank account of $2,530.70 to pay the the Aged Care Facility accommodation fees.
With regard to the $30,000 deposit payment MNT stated:
“what I assume happened they (the Aged Care Facility) must have done a direct debit somehow or another.”
“had nothing to do with me.”
In relation to the monthly payments MNT stated:
“---- not being paid I don't have access to mother's account.”
Upon examination of the bank statements clearly money was being transferred from ONT's account to pay these fees.
With KX entering proceedings the Board questioned her on what authority or how the Aged Care Facility accessed $30,000 from ONT’ bank account and by what means had access been gained to ONT's account to facilitate the monthly payment of $2,530.70.
KX disclosed that MNT had authorized the withdrawal of the $30,000 and the monthly payments to the Aged Care Facility from ONT's account. She clearly stated that the Aged Care Facility had no authority to access the account unless approved by MNT or an appropriate third party. In response MNT's comments included:
`”I must have signed.”
“Did I sign something?”
“I obviously must have signed something.”
“Now this is starting to come back to me ….. didn't know where the money was going to come from anyway but I signed it.”
“I didn't understand what it really involved.”
The Board was somewhat surprised at MNT’s lack of recollection and understanding of these significant events.
In relation to the property sale, as stated, the Board recognised the probable need to sell to enable the bond payment. MNT stated the value of the house as $374,000, the figure contained on the rates notice. MNT also advised of the need for maintenance on the property. She was unable to provide an estimate of the cost associated with such maintenance. MNT advised the Board that she had a prospective buyer for the property. Her gardener had offered to pay a $150,000 deposit on the property.
Details from MNT were then unclear on when the remainder would be paid and indeed what the quantum was. MNT advised the Board that it was a buyer's market and that if this potential “purchaser” were to be let slip, the property may be on the market for a long time.
It was only when the Board advised that it would be appropriate to get a formal valuation or at least an appraisal from real estate agents, that she stated that it had been her intention to do that.
The Board were concerned at the lack of rigour and an apparent lack of due process that was to apply with the proposed sale of what is ONT's most significant asset.
The Board was also concerned at the scenario associated with the authority to pay the Aged Care Facility the bond deposit and recurrent monthly fees. For MNT to deny any input into the authorization of withdrawals from her mother's bank account but then concede that she must have signed something but did not understand what it really involved led the Chair to state:
“An Administrator requires that level of understanding.”
MNT responded by saying:
“I agree.”
The Board does not question the honesty or integrity of MNT and acknowledges the care and support that she has provided to her mother. The Board also acknowledges that ONT would prefer her daughter to assume the administrator role if she had the capacity to make that decision.
However MNT's confusion over bank authorizations and a lack of apparent process in relation to the proposed property sale left the Board with major reservations on the ability of MNT to make decisions that were in the best interests of ONT. The Board concluded that MNT failed to meet all the criteria detailed in Part 7, Division 2, Section 54 (d) of the Guardianship and Administration Act 1995.
As a result the Board appointed the Public Trustee as administrator. However the Board recommended that with the conclusion of the property sale and settlement of the Aged Care Facility account that the Public Trustee advise the Board accordingly. The intent being to consider a review to determine whether there continued to be a need for an administration order and if so who should continue as the Administrator.
LEON PECK MARY DAVIES GRANT KINGSTON
CHAIR MEMBER MEMBER
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