QUP (Administration) - [2001] TASGAB 19

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

QUP application by Mental Health Services for the appointment of an administrator

REASONS FOR DECISION

Neutral citation: QUP (Administration) [2010] TASGAB 19

Anita Smith (President)
Lindi Wall (Member)
William Downie (Member)

Hearing: 3 September 2010

Administration – need for an administrator – susceptibility to exploitation, pursuit of possible legal action
Guardianship and Administration Act 1995 sections 6, 51

QUP (hereafter ‘the proposed represented person’) is the subject of an application for the appointment of an administrator made by his case manager in Mental Health Services. The proposed represented person is a 44 year old man, he lives alone in Hobart.
In assessing an application for the appointment of an administrator, the Board must be satisfied of the factors set out in section 51 of the Guardianship and Administration Act 1995 (‘the Act’) which are:
“51. Administration orders
(1) If, after a hearing, the Board is satisfied that the person in respect of whom an application for an order appointing an administrator or an order appointing a guardian is made–
(a) is a person with a disability; and
(b) is unable by reason of the disability to make reasonable judgements in respect of matters relating to all or any part of his or her estate; and
(c) is in need of an administrator of his or her estate–
the Board may make an order appointing an administrator of that person's estate.
(2) In determining whether or not a person is in need of an administrator of his or her estate, the Board must consider whether the needs of the proposed represented person could be met by other means less restrictive of the person's freedom of decision and action.
(3) The Board must not make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the proposed represented person.
(4) Where the Board makes an order appointing an administrator of a person's estate, the order is to be that which is the least restrictive of that person's freedom of decision and action as is possible in the circumstances.
(5) An order made under subsection (1) –
(a) may be made subject to such conditions and restrictions as the Board thinks fit; and
(b) may be expressed to take effect when the represented person is aged 18 years.”
In assessing evidence pursuant to section 51, the Board must adhere to the principles in section 6 of the Act (some of which are replicated within section 51), which are as follows:
“6. Principles to be observed
A function or power conferred, or duty imposed, by this Act is to be performed so that –
(a) the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and
(b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
(c) the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.”
The application was heard on 3 September 2010. In attendance were:
The Proposed Represented Person
The Applicant, NI
Public Trustee Representatives: Edmund Gale and Justin Clifford
MS, Friend of the Proposed Represented Person
Olivia Hill, GAB Investigator
The proposed represented person indicated that he was also expecting a further unnamed friend from Hobart, who did not attend.
The application was accompanied by a pro forma Health Care Professional report dated 29 July 2010 by Dr Anthony Hodge who reported that the proposed represented person is a person with schizophrenia. Dr Hodge indicated that this disability renders the proposed represented person incapable of managing day-to-day financial requirements such as operating a bank account, paying accounts and budgeting and also incapable of making major financial decisions such as negotiating a significant debt. Of particular relevance, he noted that the proposed represented person experiences deficits in his planning and reasoning skills and in susceptibility to influence. Additional reports from Dr Evans (dated 22 April 2008) and Dr Lang (dated 31 August 2009) were also provided to the Board and are consistent with Dr Hodge’s opinion.
The proposed represented person did not dispute Dr Hodge’s assessment of his disability of his capacity to make decisions about his estate. Accordingly, the Board was satisfied of the factors required in section 51(1)(a) and (b).
There were a number of matters put forward as constituting a need for the proposed represented person to have an administrator pursuant to section 51(1)(c) of the Act. These included:
(i)Sometimes people live with him rent-free for extended periods, taking financial advantage of him by not contributing to household costs. The proposed represented person is vulnerable to people, including the boarders, who wish to borrow money from him, to the extent that he sometimes has inadequate food to eat. This is particularly dangerous for the proposed represented person because he is diabetic and therefore a good diet is very important. An administrator would be needed, according to the applicant, to ensure that his money is not diverted to other persons and to ensure adequate funds for good nutrition.
(ii)The proposed represented person tends to spend money on audio equipment and his home is visibly cluttered with such equipment to the extent of resembling Diogenes syndrome. An administrator would be needed, according to the applicant, to ensure that there is some restriction on the amount of money that the proposed represented person spends on audio equipment in favour of essentials such as food, rent, electricity and telephone.
(iii)When the proposed represented person’s parents died, his brother took control of the distribution of the estate. Additionally, he claims that his brother, QP, convinced him to sell an inherited property and diverted money from that sale by convincing the proposed represented person that QP was going to gaol without those funds. The proposed represented person believes that he is owed at least $100,000.00, meaning that the proposed represented person needs an administrator to investigate legal action (including investigation of limitation periods) against his brother to recover sums lost in the division of the estate and the subsequent sale of real estate. Evidence given by the proposed represented person indicated that his brother may have significant personal and business assets in Australia and Dubai which means that there may be a chance of recovery.
(iv)The proposed represented person had on 29 April 2002 appointed his brother QP as his enduring power of attorney and Tasmanian Perpetual Trustees as an alternative. The instrument of appointment has not been registered and therefore is of no current effect. An administrator may be required to arrange a revocation of the power and/or negotiating the destruction of the original document with Tasmanian Perpetual Trustees who hold the original.
The proposed represented person indicated that he had managed to pay traffic fines and household accounts over a long period. He also agreed that the above instances of financial exploitation had occurred, usually with persons with gambling problems. He also volunteered that he has paid a significant amount of traffic fines, for which he was not the relevant driver, but his prior registration had not been transferred after sale of the vehicles.
The proposed represented person had some doubts as to whether he wanted the Public Trustee appointed as his administrator and noted some steps he has taken such as arranging meal vouchers through a Hobart clubhouse as proof of his competence. The proposed represented person was concerned that the Public Trustee has been described as very restrictive in the experience of some of his associates and was worried about an impact on his lifestyle. He did not say whether those associates were also the persons who enjoy borrowing funds from him, but the Board considered that possibility quite likely.
The proposed represented person is correct in stating that recent actions he has taken to protect himself against leakage from his estate are currently working. That said, his account balance on 30 August 2010 was $4.71. He admitted that he could not commence legal action against his brother without the support of an administrator because his brother would easily talk him out of any action if he had the ability to withdraw. It seemed that the proposed represented person is currently very well, but at times when he is unwell, he is highly susceptible to influence and such times have been quite recent.
The Board was satisfied that the appointment of an administrator is in the proposed represented person’s best interests to (i) arrange revocation or destruction of the enduring power of attorney, (ii) investigate legal actions against his brother QP for the recovery of funds and (iii) restrict the opportunities for exploitation from others when the proposed represented person is unwell.
The Board considered that it is likely that over the next 3 years there may be a range of strategies that an administrator could employ. When he is relatively well, like at the time of the hearing, an administrator may leave the proposed represented person to take care of household accounts such as rates and insurance, health and nutrition. However at other times, when the influence from others dominates his thinking, an administrator may be required to impose limits on the amount that such persons may access.
Therefore the Board gave consideration to limiting the order to legal actions (including revocation of the enduring power) but did not believe that such an order would meet the obligation on the Board to protect his best interests over the longer term. The Board also noted that the actions of investigating the debts owed by QP, extending time of the limitation period and commencing action would all take considerable time. Hence the recovery of the debts would not be likely to be resolved within 3 years. However, the Public Trustee was encouraged to negotiate and communicate with the proposed represented person as to the best means to protect his best interests but at the same time respect his intelligence and dignity within the terms of the order.

Conclusion:

After hearing an application by NI in respect of QUP (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 her estate; and
is in need of an administrator

THE BOARD ORDERS

That The Public Trustee be appointed as administrator of the estate of the represented person.
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 until 2 September 2013.

DATED this 3rd day of September 2010.

Statement of reasons delivered 18 October 2010

Anita Smith

Division Chair