QKF (Guardianship and Review Administration)
[2014] TASGAB 4
•9 April 2014
GUARDIANSHIP AND ADMINISTRATION BOARD
BURNIE
QKF – Application for Guardianship and Review of Administration Order by the Public Trustee
QKF (Guardianship and Review Administration) [2014] TASGAB 4
REASONS FOR DECISION
Anita Smith (President)
Colin McKenzie (Deputy President)
Grant Kingston (Member)
Date of hearing: 9 April 2014
Guardianship – need for a guardian - represented person’s accommodation jeopardized by terms of his late mother’s will – allegations of inadequate care by sister/carer in their mother’s home
Review of administration – Public Trustee appointed as both the administrator for the represented person and executor of his mother’s estate – possible conflict due to possible claim by represented person against the estate – role of Public Guardian as alternate administrator
Guardianship and Administration Act 1995 – s.20, 54, 56, 61, 67
On 22 November 2013, the Board reviewed an enduring power of attorney that QKF had purportedly executed in favour of his sister, FNF. The Board concluded that the document was invalid and appointed the Public Trustee as administrator with full powers for three years from that date.
The applications:
Some of the issues in this application follow from factual matters raised at the 2013 hearing. Firstly, QKF and his sister were amongst six of the seven offspring of the late SNF to be named in her will as equal beneficiaries. The major asset in the estate is the house in which QKF and FNF reside. The assets in the will cannot be distributed unless the house is sold, but some of their siblings desire for QKF and FNF to continue to reside there. Both residents of the house are pensioners. The Public Trustee is the executor of the will, as well as QKF’s administrator. (Application for guardianship dated 21 February 2014.)
Secondly, there were concerns raised about FNF’s standard of care for QKF and concerns that funds applied from the estate and by the Public Trustee through FNF were not being expended for QKF’s welfare. (Letter with application dated 19 February 2014)
Finally, the Public Trustee expressed a concern about their conflict of interests in acting as both the administrator for QKF and the executor of the late SNF’s will. (Letter dated 7 March 2014). This final issue, the Board initially treated as a request for advice and directions pursuant to section 61 of the Guardianship and Administration Act 1995. The Board directed the administrator to seek independent legal advice on behalf of QKF regarding any possible Testators Family Maintenance claim and to submit that advice to the Board. That advice was delivered to the Board on 31 March 2014 and concludes that, while there is not sufficient information to currently provide a definitive answer, there was sufficient information to suggest that such a claim ought to be investigated and therefore the Public Trustee is in a position where its interests as executor and administrator conflict. The Board then treated the letter dated 7 March 2014 and the subsequent opinion as an application to review the appointment of an administrator.
The Hearing:
As the issues were connected, the Board heard the above applications together. The hearing was convened on 9 April 2014 in Burnie. The following persons attended:
QKF
FNF, sister
CF, brother
DC, friend of FNF
Representatives from the Public Trustee and the Public Guardian
The Guardianship Application:
In appointing a guardian, the Board must be satisfied of the elements in section 20(1) of the Guardianship and Administration Act 1995 (the Act) being whether QKF:
(a) is a person with a disability, and
(b) is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his or her person or circumstances, and
(c) is in need of a guardian.
The applicant relied on a report from psychologist, Michael Marriott, dated 16 October 2013 to establish that QKF has an intellectual disability and by reason of that disability he is incapable of making reasonable judgments about his person and circumstances. QKF was distressed at the commencement of the hearing and, although he calmed during the hearing and was able to express wishes about his living situation, the Board’s observations were consistent with Mr. Marriott’s conclusions that he lacks the capacity make a reasoned decision about where he lives, who provides his care, what health care is provided and how. There was no objection from any party about the contents of Mr. Marriott’s report and the Board considered that the elements in section 20(1)(a) and (b) were satisfied.
The applicant outlined difficulties with QKF’s current situation. Firstly, as a consequence of his mother’s death and the terms of her will, QKF may not be able to remain living in his family home, although that is his wish. He lacks the ability to comprehend what the terms of his mother’s will means for his future accommodation. Secondly, reports from members of QKF’s community raised concerns about isolation from the community, a lack of appropriate nutrition, lack of contact with the community, a need for podiatry and better attention to his health needs arising from his diabetes. Serious concerns were raised that large amounts of money from the late SNF’s estate (some $80,000) and cash provided to FNF for QKF’s benefit were not being used appropriately by FNF, leading to concerns that QKF’s welfare has been neglected. Additionally, as funds from the deceased estate are being used to maintain the property, QKF and his sister are receiving an unfair advantage over other beneficiaries in the estate which conflicts with the Public Trustee’s duties as an executor.
FNF’s initial response to the above concerns was one of intense irritation. She eventually argued that QKF has recently commenced working at City Mission (in the two weeks before the hearing), that she had made an arrangement to pay back some of the funds to the Public Trustee and that she had taken steps to address QKF’s diabetes and podiatry needs. DC also spoke in FNF’s defence. It is clear that QKF is dependent on FNF for his care and accommodation and that independent members of their community consider that the care and accommodation she provides is substandard.
The Board was not convinced that the steps FNF has taken have sufficiently resolved the issues raised by the Public Trustee and others. The Board was not satisfied that FNF’s use of funds has been appropriate or that she can reliably provide the level of care that QKF requires. Without a guardian, QKF’s dependence on FNF means that he will most likely continue to experience inadequate care and decisions about his future accommodation and care will continue to be dominated by FNF’s needs and preferences. The Board was satisfied that QKF is in need of a limited guardian to meet those needs set out above.
The applicant nominated the Public Guardian as guardian for QKF. There is no other person who would be eligible for appointment as his guardian as each of his siblings has a conflict of interests due to nature of their parent’s estate. The Board considers that the Public Guardian is the most appropriate person to appoint as guardian for QKF.
The review of the administration order:
The review of the administration order is limited to the identity of the administrator. It was not contested that any other elements in section 51 of the Act have altered since the Board’s last decision.
Having identified that QKF may have a claim that inadequate provision has been made for him in his mother’s will, the Public Trustee’s appointment as both administrator (with responsibilities under section 56(1)(l) of the Act to bring and defend actions on QKF’s behalf) and as executor of the late SNF’s will is now contaminated with a conflict of interests.
Although the Public Trustee would technically remain eligible for appointment as administrator, it is clearly not optimal that it attempts to act in both QKF’s interests and the interests of the estate. Additionally, if the Public Trustee was to take action to extend time and claim under the Testators Family Maintenance Act 1912 as administrator it would be taking legal action against itself as executor. Therefore, despite its technical eligibility, where a viable alternative exists, that alternative is preferable to burdening an administrator/executor with a fundamental conflict of interests.
This situation has arisen before and the arrangement that has been arrived at in such cases is for the Public Guardian to be appointed as an administrator in substitution for the Public Trustee. As the Public Guardian does not have the infrastructure to handle represented person’s funds directly, it instructs the Public Trustee, as agent or much like an ordinary financial institution, to invest the funds and undertake transactions in the estate but decisions about the estate (including legal actions) are the responsibility of the Public Guardian. To the Board’s knowledge such an arrangement has functioned appropriately in past appointments and there is no reason why it would not function appropriately in this case.
Therefore the Board considers it appropriate to vary the administration order to the extent that the Public Guardian is substituted for the Public Trustee.
The term of the orders:
The issues in the late SNF’s estate are complex. It will take some time for the Public Guardian to decide whether QKF should remain in FNF’s care and whether their current home is suitable before then considering what outcomes might be sought from any potential claim for a greater share of the estate. While the Board hopes that such issues are resolved earlier, it is possible that it may take three years to resolve. For administrative purposes, it is simpler to ensure that both orders expire on similar dates, hence the both orders will run for three years from the date of the hearing. Should the issues be resolved within that time, the Public Guardian – or any person - can apply early for a review of the roles and orders.
CONCLUSION:
After hearing an application for a guardianship order in respect of QKF (hereinafter called the ‘represented person’)
The Board was satisfied that the represented person
•is a person with a disability, and
•is unable by reason of the disability to make reasonable judgments in respect of his person and circumstances; and
•is in need of a guardian;
THE BOARD ORDERS
That the Public Guardian be appointed as the represented person’s guardian.
That the powers and duties of the guardian are limited to decisions concerning:
where the represented person is to live either permanently or temporarily, and
(ii)consent to to any health care that is in the best interests of the represented person and to refuse or withdraw consent to any such treatment, and
the provision of any support services that may be required.
That the order remains in effect to 8 April 2017.
After hearing a review of an administration order made on 22 November 2013 in respect of QKF (hereinafter called the ‘represented person’)
The Board was satisfied that the represented person
•is a person with a disability, and
•is unable by reason of the disability to make reasonable judgements in respect of his estate, and
•is in need of an administrator;
THE BOARD ORDERS
That the Public Guardian be appointed as the represented person’s administrator in place of The Public Trustee.
That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.
That the order remains in effect to 8 April 2017.
Anita Smith Colin McKenzie Grant Kingston
PRESIDENT DEPUTY PRESIDENT MEMBER
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