SWM (Administrator)

[2012] TASGAB 30

GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON

SWM application for appointment of an administrator by COMMUNITY DEMENTIA SERVICE

Neutral citation: SWM (Administrator) [2012] TASGAB 30

REASONS FOR DECISION

Sue Hill (Chair)
Rowena Holder (Member)

Date of hearing: 14^th September 2012

Administration - Public Trustee proposed - nephew applies during hearing - suitability considered - no contact for ten years - interests of represented party

Guardianship and Administration Act 1995

1. This was an application for administration lodged by SWM’s Case Manager, Jennifer Barlow. The Public Trustee was the proposed administrator.

1. The Board heard the application on 14^th September 2012.  The hearing was attended by:

Jenny Barlow  - Community Dementia Service
Jessica Rowlands  - Public Trustee

And participating by telephone:
SWM  - Proposed represented person
Libby Beyerle   – Social Worker Deloraine Hospital
RW   – Support Worker
MM  - Nephew
TM  - MM’s wife

Background

1. SWM is a 77 year old single man who lives alone on his property at Northern Tasmania. Jennifer Barlow is his case manager and has been seeing him twice daily for some months.  Libby Beyerle and RW also have very frequent contact with him. The application was prompted by a number of concerns including overdue municipal rates, the cessation of his pension payments by Centrelink, the non-payment of miscellaneous accounts, his being possibly taken advantage of by his neighbour through a lease agreement and failure to return property, lack of insurance on his property and general vulnerability manifested in his dealings with insurance companies, in particular.

1. Before appointing an administrator, the Board must be satisfied that SWM is a person with a disability, that his disability renders him incapable of making reasonable judgments about his estate and that he is in need of an administrator (section 51 of the Guardianship and Administration Act 1995 (the Act)).  If satisfied of each of these matters, the Board can appoint an administrator according to the criteria in section 54 of the Act.

Does SWM have a disability?

1. The Board received a Health Care Professional Report from Dr. Aami Mahmoud who stated that SWM has an intellectual disability and short-term memory loss overlaid by depression and dementia. This was supported by an Aged Care Assessment Team report from December 2011 which also noted various physical and sensory ailments including deafness, congestive heart failure and the necessity for SWM to use a walking frame. The report also noted that he had been approved for an aged care home but that at present he wished to reside in his own property and hence intensive support worker hours were warranted

1. No-one present at the hearing disputed these matters and therefore the Board found that SWM has a disability within the meaning of section 3 of the Act.

Does SWM’s disability render him incapable of making reasonable judgments?

1. The Health Care Professional Report noted that SWM was not capable of making reasonable decisions in relation to his real or personal property manage day-to-day financial requirements and make major financial decisions.  This was not disputed at the hearing.

1. Accordingly, the Board was satisfied that SWM is incapable by reason of his disability in making reasonable judgments about his financial affairs.

Is SWM in need of an Administrator?

1. All parties agreed that SWM was in a parlous financial situation due to the issues already mentioned and was in reasonably urgent need of an administrator to resolve these and any other matters which might come to light in due course.  SWM indicated that he was not opposed to the appointment of an administrator.

Nominations for appointment as administrator

1. MM through the hearing put himself forward as an alternative administrator and the Board agreed that it would consider his application.  Therefore the Board was presented with two alternatives: appointment of the Represented Person’s nephew MM or the Public Trustee, as administrator. 

1. Section 54(d) and 54(2) provides the criteria the Board must be satisfied of when appointing a person as Administrator.  The Public Trustee is named in section 54(1)(a) as an approved administrator. The Board’s consideration of the factors in section 54(1)(d) and section 54(2) therefore relate only to the possibility of appointment of the applicant MM, as administrator.

1. The Board has to be satisfied pursuant to section 54(1)(d)(i) that MM will act in the best interests of SWM. The Board heard evidence from MM that he and his wife wanted to be involved in his Uncle’s life. When questioned as to what he would do as administrator, it became apparent to the Board that MM had not given satisfactory consideration to the different financial issues of SWM’s estate that were raised at the hearing, or how these issues should be dealt with.   No doubt both MM and his wife TM are genuine in their interest in SWM but with all due respect, the neglect of many years together with the sudden contact about six weeks ago does not fill the Board with confidence that a solid and trusting relationship yet exists. 

1. The Board has to consider section 54(1)(d)(ii) that is: whether MM’s interests conflict or may conflict with the interests of SWM.  There was no direct evidence before the Board that MM’s interests conflict or may conflict with the interests of SWM.

1. Pursuant to section 54(1)(d)(iii) the Board has to consider whether MM was an appropriate person to act as administrator of the estate of SWM.  MM gave evidence that he had reconnected with his SWM (SWM) about 6 weeks previously after having had no contact with him for at least 10 years. He explained this by saying that he always assumed that his brother was looking after SWM and therefore was content with that. He was at a loss to explain why he had never made any enquiries or contacted him over the years reiterating that he assumed all was well. He added that he and his wife, TM, were taking delivery of a caravan in 4 weeks and that they would move down onto SWM’s property. The support workers present confirmed that SWM had no family contact that they were aware of over the years and that he was very much a loner being distrustful of others and not wanting people to know his business.  They referred to the incident with BX who had been a very good friend to SWM, fetching his mail and helping him pay his bills. All agreed that she had done nothing but help him but, nonetheless, there came a time when he abused and got rid of her, fearing that she would know too much about his financial affairs.

1. In summary therefore, the Board gave weight to the fact that appointing MM as administrator may well create conflict between SWM and MM, which would be a great pity. It is a positive thing that MM has rediscovered his uncle.  But the relationship, is extremely brief and the Board is loathe to put it in jeopardy by placing MM in the same position as others in the past.

2. The Board has to consider section 54(1)(d)(iv) that is whether MM has sufficient expertise to administer the estate.  MM informed the Board that he was now retired but had had 35 years’ experience working for Gunns Limited in office work and management roles. MM did not indicate any significant experience in dealing with financial matters but relied on the fact his wife had some experience.  The Board believed that the duties of the administrator would initially be relatively onerous given the current financial issues which have been raised are varied and potentially complex.  The Board believes that the Public Trustee is better placed to deal with them expeditiously and at arm’s length from SWM. It may well be that when SWM’s affairs are in order, and if the move down with the caravan is successful, MM may be seen as suitable to take over as administrator and this was explained to him.  However, it is early days yet in the situation, which differs so starkly from what SWM has been used to that, given his illness and attitudes, it would seem that MM and TM should tread with caution.

1. The Board also considered Section 54(2)(a) which requires examination of SWM’s wishes.  Evidence was received that SWM had on numerous occasions requested that the Public Trustees manage his financial affairs, rather than family members.  The Applicant, Social Worker and Support Worker all said that SWM had expressed to them at various times that he wanted no family members involved in the organization of his affairs, as there were none he had contact with or was at all close to. This was borne out by the Board’s investigation officer’s notes of interview with SWM and the reported lack of any family visitors seen by support workers.

1. Given all these matters, the Board determined that an independent appointment would best suit the interests of SWM.

1. The Board would reiterate that its concern must always be for the represented party and this should not be overridden by the desires of family members, particularly those in situations such as the present.

Conclusion
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 financial estate; and

• is in need of an administrator

THE ORDER

1. That The Public Trustee be appointed as administrator of the estate of the represented person.

2. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.

3. That the order remains in effect until 13 September 2015.

Sue Hill
Chairman

10 October 2012