SS
[2012] QCAT 375
| CITATION: | SS [2012] QCAT 375 |
| PARTIES: | SS |
| APPLICATION NUMBER: | GAA2457-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 27 July 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Barbara Bayne, Member |
| DELIVERED ON: | 27 July 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for a review of the appointment of an administrator is dismissed. 2. Pursuant to s 155(1) of the Guardianship and Administration Act 2000 the appointment of SP as administrator for SS is suspended for all financial matters. 3. Pursuant to s 155(6) of the Guardianship and Administration Act 2000 the Public Trustee of Queensland is appointed administrator for SS for the exercise of the suspended power. 4. The Tribunal directs the administrators to provide a written account of their actions as administrator to the Tribunal no later than three (3) working days prior to the hearing. 5. Unless the tribunal orders otherwise, this order remains current for three (3) months. 6. The Public Trustee of Queensland is directed to submit an application for the appointment of an administrator for SS to the NSW Guardianship Tribunal as soon as possible. |
| CATCHWORDS: | Where administrator breached legislative requirements – QCAT jurisdiction – where administrator suspended – where PTQ assumed suspended power – direction to the PTQ Guardianship and Administration Act 2000, ss 34-37, 49, 50, 155 |
APPEARANCES and REPRESENTATION (if any):
By telephone:
SS the adult
SP son and administrator
SS daughter
BS appearing for The Public Trustee of Queensland
REASONS FOR DECISION
Mrs SS is aged 69 years of age and was diagnosed with a chronic schizophrenic illness in 2004.
On 8 June 2010 the Queensland Civil and Administrative Tribunal appointed her son, SP, as her plenary administrator for five years and made directions in the order for the provision of various financial returns. SS’s assets at the time were a real estate property in Queensland valued at about $380,000, cash investments totaling about $16,000 and a small motor vehicle; her income consisted mainly of a Centrelink aged pension.
On 28 March 2012 the Tribunal initiated a review of the appointment of the administrator due to an increasing number of concerns in regard to SP’s management of SS’s financial matters. These included:
a) A series, since April 2011, of late, incomplete or inaccurate financial returns to the Tribunal;
b) Numerous loans to the administrator;
c) Use of SS’s funds by the administrator;
d) A lack of accurate record keeping and an inability to explain various transactions, or to give appropriate details of these;
e) The ongoing inability of the Tribunal’s financial assessors to approve the accounts submitted by the administrator.
On 17 April 2012 SP informed the Tribunal that in January 2012 SS’s property had been sold and she had moved to Newcastle NSW to live with him.
On questioning on 27 July 2012 SP informed that:
a)SS’s property had been sold for $430,000; he was unable to provide a reconciliation of the selling price to the funds received;
b)Approximately $200,000 of the funds received had been used to improve SP’s residential property in NSW in order to accommodate SS. The building was incomplete and although no details of costs were available, SP estimated that about $10,000 of work was still outstanding. No consideration had been made of how SS’s interest in the property might be protected;
c)Approximately $210,000 of the remaining funds was currently in a bank account/s in his name. He was unable to provide any further details;
d)He continued to use SS’s funds for his own use; no details were available.
I find that the written and oral evidence supports that SP as administrator has substantially failed in his statutory obligations.
Part 1 of Chapter 4 of the Guardianship and Administration Act 2000 sets out the functions and powers of administrators. Essentially, a substitute decision maker must:
(a)apply the general principles (section 34);
(b)exercise their power honestly and with reasonable diligence to protect the adult’s interests (section 35);
(c)act as required by the terms of the Tribunal order (section 36);
(d)avoid conflict transactions (s 37).
Part 2 of Chapter 4 of the Act sets out the particular functions and powers of administrators. These include that an administrator must:
(a)keep records (section 49);
(b)keep property separate (section 50).
In addition, SP has not complied with the requirements of the prudent person rule (section 24 of the Trusts Act 1973).
[10]Despite being advised of his role and responsibilities as administrator on several occasions, SP has clearly breached the legislation. I consider him inappropriate as the substitute financial decision maker for SS.
Jurisdiction
[11]The Tribunal has jurisdiction to make orders only in relation to adults who are domiciled in Queensland or who have otherwise a sufficient connection with Queensland. As SS is now residing in NSW, has no assets in Queensland or links to this State, the authority of this Tribunal to make another appointment would therefore end upon the completion of a review of the appointment made on 8 June 2010. However the term of the current appointment does not expire until 8 June 2015 or until earlier order of this Tribunal.
[12]I therefore considered that SS’s interests in the short term would be best served not by revoking the current appointment but by dismissing the review application and invoking other provisions of the Act for her protection.
Suspension
[13]Section 155 of the Act provides for the suspension of an administrator. I am satisfied that the appointed administrator is not competent as he has abused his powers and has contravened his statutory obligations.
[14]Under section 155 the Public Trustee of Queensland is taken to be the administrator for SS for the exercise of the suspended power for a period of three months.
Directions
[15]Given that SS is now residing in NSW, I consider that a substitute decision maker with authority in NSW would be most appropriate.
[16]Under the circumstances, I will direct that the Public Trustee of Queensland submit an application for the appointment of an administrator for SS to the NSW Guardianship Tribunal as soon as possible.
[17]Orders are made accordingly.
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