SBE (Review of Administration)
[2021] TASGAB 29
•24 May 2021
CITATION: | SBE (Review of Administration) [2021] TASGAB 29 |
HEARING DATE(S): | 24 May 2021 |
DATE OF ORDERS: | 24 May 2021 |
DATE OF STATEMENT OF REASONS: | 16 June 2021 |
BOARD: | Mr A Mihal, Member |
APPLICATION | Review of Administration |
CATCHWORDS: | Statutory review of administration; variation of administration order; unexplained accumulation of cash; promotion of represented person’s best interests; failure to consult with represented person; obligation to actively manage estate; lack of evidence of wishes of represented person; least restrictive means; limited order allowing represented person to manage part estate; plan for administration of estate ordered |
LEGISLATION CITED: | Guardianship and Administration Act 1995 (Tas), ss 6, 51, 57, 67, 68 |
CASES CITED: | T (Administration) [2003] TASGAB 1 |
PUBLICATION RESTRICTION: | The decision has been anonymised for the purpose of publication |
Statement of Reasons
Background
By an Application dated 15 April 2021, the Public Trustee applied for a review of an Order made on 3 June 2016 under which it was appointed as Administrator for SBE until 2 June 2021.
SBE is a 73 year old man who lives with his brother. He owns a third share of his home in Ravenswood and is in receipt of the aged pension. As at 31 March 2021, his estate included around $86,000.00 of cash, which increased by around $9,000.00 in the preceding eleven months. SBE’s sister assists him and his brother with ‘budgeting and shopping’. The Public Trustee has been the administrator of his estate since 2002.
The Applicant sought the further continuation of the Order.
The Board found that the requirements of section 51 of the Guardianship and Administration Act 1995 (‘the Act’) were still satisfied in relation to SBE and that the continuation of an Administration Order was consistent with the principles of section 6 of the Act.
The Board found that a variation of the order was warranted to allow SBE to continue to manage part of his pension income, in order to promote SBE’s freedom of decision and action.
There was limited evidence concerning the promotion of SBE’s best interest given the accumulation of assets and lack of expenditure from his estate during the life of the order and no evidence as to SBE’s wishes in respect of the order or the administration of his estate. Accordingly the Board determined to vary the order to include conditions addressing those matters.
The Board determined that the varied order would continue for a period of six months to allow the Public Trustee time to consider its obligations under sections 6 and 57 of the Act and ensure it is in compliance with the same, and to ensure the Board retains oversight.
The Public Trustee requested a written statement of reasons from the Board on 11 June 2021.
Hearing
The Board heard the Application on 24 May 2021. The Application was represented by Ms Lauren Harvey who appeared by telephone. SBE did not appear before the Board, nor did anyone else.
Ms Harvey could not add much evidence specifically about SBE in addition to the documentary evidence because she was not the person responsible for the day to day administration of SBE’s estate (called the ‘account manager’ by the Applicant), which is no criticism of her personally. The account manager was Ms Glenda Hohl who prepared a short report to which she annexed a statutory declaration verifying two pages of a statement of accounts for the estate for the period 1 June 2020 to 31 March 2021 and a one page statement of assets and liabilities as at 31 March 2021. Those documents were put in evidence at the hearing.
Further documents that the Board considered were a copy of the Administration Order under review, the written Application and a Health Care Professional Report (‘HCPR’) prepared by Dr Teck Teh, SBE’s general practitioner.
Legislation
Section 67 of the Act provides for hearings to review Orders on application by, or on behalf of a represented person or any other person.
Section 68 of the Act provides for the making of an Order as follows:
(1)On a review under section 67, the Board may vary or continue a guardianship order or administration order subject to any conditions or requirements it considers necessary or the Board may revoke the order.
(2)The Board may make such further orders as it considers necessary in order to give effect to an order made under subsection (1).
In exercising the powers on a review, the Board must observe the principles in section 6 of the Act, which are:
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 the proposed represented person's freedom of decision and action as is possible in the circumstances is adopted;
(b)the best interests of the proposed represented person are promoted; and
(c)the wishes of the proposed represented person are, if possible, carried into effect.
On a review of an order appointing an administrator, the Board must consider if the legislative requirements for making the appointment can still be met. In order to appoint an administrator, the Board must again observe the principles in section 6 of the Act, and needs to be satisfied, in accordance with section 51 of the Act, that the proposed represented person, in this case SBE:
(a) is a person with a disability;
(b)is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to all of part of his estate, and
(c) is in need of an administrator of her estate.
Section 54 of the Act provides that the Board may appoint the Public Trustee as an administrator.
In exercising its powers as administrator, the Public Trustee is required to observe the principles in section 6 of the Act. It must also comply with section 57 of the action, which is as follows:
57. Exercise of power by administrator
(1) An administrator must act at all times in the best interests of the represented person.
(2) Without limiting subsection (1) , an administrator acts in the best interests of the represented person if the administrator acts as far as possible –
(a) in such a way as to encourage and assist the represented person to become capable of administering his or her estate; and
(b) in consultation with the represented person, taking into account as far as possible the wishes of the represented person.
In T (Administration) [2003] TASGAB 1, the Board has previously observed that:
Resulting from an order under section 54, an administrator has specific instructions for the performance of his or her duty in section 57(2). These instructions are aimed at encouraging self-reliance in the represented person and enabling consultation between administrator and represented person in all decisions.
Evidence of Disability and Incapacity
The opinion expressed in the HCPR was as follows. SBE has a mild intellectual disability, which has been evident since childhood and is static. By reason of the disability, SBE has deficits in expressive communication, receptive communication, planning and reasoning skills and impulse control. The disability affects SBE’s capacity to make reasonable judgements about day to day financial requirements, complex legal and financial decisions, legal matters, where to live, medical treatment and healthcare, and what support services he should access.
The HCPR writer relied on his ‘overall impression in monthly interactions over the last four years as well as his medical records which clearly attest to his intellectual disability’. Those records were not before the Board.
Evidence as to the Estate and its Management
Ms Hohl’s report, the statement of accounts and statement of assets and liabilities showed that SBE’s estate consisted of a third share in his home at Ravenswood, modest furniture and personal effects and as at 31 March 2021, cash of around $86,000.00, most of which was invested in the Public Trustee number 2 fund.
SBE’s expenditure in the eleven months between 1 June 2020 and 31 March 2021 amounted to around $17,000.00, including $1,100.00 on property expenses, $592.58 on insurance and $1,100.00 on utilities, which were expenses that SBE shared, presumably with his brother. The sum of $1,855.04 was paid to the Public Trustee for fees and commission. The balance was simply described as ‘allowances and maintenance’, which included the $450.00 per fortnight paid directly to SBE by the Public Trustee.
SBE’s income between 1 June 2020 and 31 March 2021 was from the aged pension of around $22,000.00 and interest on securities and investments of around $4,000.00.
Ms Hohl’s report indicated that the Public Trustee paid SBE $450.00 per fortnight from his estate, which it called ‘an allowance’. SBE’s sister has told Ms Hohl that SBE spent those funds mostly on tobacco, leaving ‘little for groceries and incidentals’. The Public Trustee recently ‘agreed to pay’ an additional $250.00 per fortnight for that purpose, but it was not clear to whom those funds were paid.
There was no other evidence as to how SBE spent his ‘allowance’ and Ms Harvey’s evidence was that once the Public Trustee determines to pay an allowance to a represented person, the spending of the allowance is left entirely to the represented person’s discretion without ‘looking for receipts’.
When the Board foreshadowed varying the order to allow SBE to manage $450.00 per fortnight from his aged pension, Ms Harvey agreed that such an order would be appropriate, although ‘not usual’.
There was no evidence as to why it was in SBE’s best interest that so much of his income in the eleven months before 31 March 2021 was not spent nor as to why it was in SBE’s best interest that cash was allowed to continue to accumulate in his estate. There was no evidence as to his lifestyle other than that he lived simply, nor as to whether or not additional spending from his estate could improve his lifestyle.
When asked if there was a plan to expend more of SBE’s funds for his benefit in view of his advancing age, Ms Harvey said,
The funds [SBE] has got here are for his quality of life… to insure he gets the best quality of life that he can and he is doing the things he needs to do and he is enjoying it. There is no reason for us to be building it up but if there is no need for him or no additional requests we don’t go chasing up the family saying here you need to spend some more funds.
Ms Hohl’s report did not disclose that she has had any direct contact with SBE at all, including about his wishes as to the management of his estate. She wrote that SBE’s sister, ‘contacts Public Trustee to request additional funds, which is not very often’.
Decision
The Board found on the basis of the medical evidence contained in the HCPR that SBE is a person with a mild intellectual disability which is static. The Board also found that by reason of that disability, SBE is unable to make reasonable judgements in respect of matters related to his estate including day to day financial matters except to the extent that he is currently managing those matters, and decisions in respect of the management of his not insignificant savings.
Taking into account the evidence about the extent of SBE’s estate and the considerations set out in subsections 51(2) and (3) of the Act, the Board was satisfied in all the circumstances that the need for the appointment of an administrator of SBE’s estate continues. In particular, SBE has invested funds which require management, has living expenses and utilities to be paid, has a one third part ownership in a real property and is in receipt of a pension which needs to be managed.
The means least restrictive of SBE’s freedom of decision and action is to allow him to continue to manage the $450.00 per fortnight that the Public Trustee is currently allowing him to manage informally without any oversight. If he is spending those funds mainly on tobacco, that would indicate a likely packet a day habit or less, which if he wishes to smoke, does not seem unreasonable.
The Board was concerned about the lack of evidence about how the Public Trustee is discharging its obligations under section 57 of the Act. The Public Trustee is required to consider and act in the best interests of SBE at all times, and not just when its account manager hears from a support person for SBE.
Acting in SBE’s best interests not only includes ensuring that he receives maximum income entitlements, that assets are prudently managed and debts and expenses are responsibly controlled. There is also an obligation to actively ensure income and accumulated funds are being expended to improve SBE’s quality and enjoyment of life. It appears on the limited available evidence that SBE’s basic needs are being met but no more, and instead funds are being allowed to accumulate by default.
There should be a proper plan to expend those funds appropriately for SBE’s benefit having regard to his life expectancy, noting his advancing years, or a positive decision made to allow funds to accumulate if that is in fact in SBE’s best interests. It may be that SBE’s wishes are to ensure that he leaves a substantial legacy for the beneficiaries of his estate after he dies, and that he wishes to maintain his current lifestyle to allow that to happen. It may be that an amount should be held back for contingencies.
If there is no direct communication between the Public Trustee’s account manager and SBE, it is difficult to see how the Public Trustee could be discharging its obligation to act in consultation with SBE and to take his wishes into account in relation to the administration of his estate, and thereby acting in his best interests. The Public Trustee should instigate regular communication with SBE that would allow the Public Trustee to understand SBE’s wishes, particularly as to expenditure that might improve his quality of life.
Finally, the administrator has a positive obligation to encourage and assist SBE to become capable of administering his own estate. SBE has a mild intellectual disability. There may be significant steps that the Public Trustee could undertake to improve SBE’s capacity to manage his own estate in furtherance of his best interests, and freedom of decision making and action. Those formulating a plan for the administration of SBE’s estate must consider such steps.
Accordingly, the Board orders that:
1.The Administration Order for SBE made on 3 June 2016 has been reviewed and varied and from this day the Order is:
i.The Public Trustee (Tas) is appointed as Administrator of the estate of SBE.
ii.SBE may continue to be responsible for $450.00 of his pension entitlement each fortnight including any matters relating to the review, management or expenditure of that amount.
2.The Administrator is to prepare and submit to the Board before the expiry of this Order, a plan for the administration of the estate of SBE which includes greater expenditure to promote the represented person’s best interests, having regard to the represented person’s life expectancy and the retention of an appropriate sum to allow for contingencies or an explanation as to why it is not in SBE’s best interest to increase the expenditure from his estate.
3.The Administrator is to submit to the Board on any further Application for the review of this Order, evidence of SBE’s wishes as to the Administration of his estate.
4.This Order remains in effect until 23 November 2021.
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