TKH (Advice and Direction)

[2021] TASGAB 50

CITATION:	TKH (Advice and Direction) [2021] TASGAB 50
HEARING DATE(S):	-
DATE OF ORDERS:	13 October 2021
DATE OF STATEMENT OF REASONS:	13 October 2021
BOARD:	Mr A Mihal, Member
APPLICATION	Application for Advice and Direction by Administrator
CATCHWORDS:	administration; role of administrator; plan for accumulated funds; section 57, best interests and wishes of the Represented Person; consultation with the Represented Person
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas), ss 54, 57, 61
CASES CITED:	T (Administration) [2003] TASGAB 1
PUBLICATION RESTRICTION:	The decision has been anonymised for the purpose of publication

Statement of Reasons

1. By an Application received by the Board on 26 August 2021, the Public Trustee as administrator of the estate of TKH (the ‘Represented Person’) has made a request for Advice and Direction from the Board pursuant to Section 61 of the Guardianship and Administration Act 1995 (‘the Act’).

2. The Application arises from Orders made by the Board in respect of the Represented Person on 24 May 2021, which were as follows:

   1.    The Administration Order for TKH made on 2 June 2016 has been reviewed and Public Trustee continues as Administrator of the estate of TKH.

   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 TKH 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 TKH’s best interests to increase 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 TKH’s wishes as to the Administration of his estate insofar as he is able to express such wishes.

   4.    This Order remains in effect until 23 November 2021.

3. The Public Trustee’s request begins as follows:

   In reference to Order 2, the Public Trustee as administrator is unsure of the Board’s expectations and/or requirements in what it requires in its direction that “a plan for the administration of the estate [of the Represented Person] which includes:

   (a)  greater expenditure to promote the represented persons best interests

   As best interests is a lifestyle issue, does the Board expect the Public Trustee to make an application for a guardian to be appointed, to assist in establishing what is required to promote [the Represented Person’s] best interests.

4. The Board’s advice is that Section 57 of the Act requires that an Administrator act in the Represented Person’s best interest at all times. Doing so is not ‘a lifestyle issue’ or a matter for a guardian. It is an administrator’s duty.

5. 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.

6. The decision to allow the Represented Person’s funds of just under $200,000.00 as at 1 March 2021 to accumulate is similarly a decision which must be made only if it is in the Represented Person’s best interests, which must be positively established by the administrator including by consulting with the Represented Person.

7. The reason for the direction was that the Board was concerned about the lack of evidence about how the Public Trustee was discharging its obligations under section 57 of the Act. The Public Trustee is required to consider and act in the best interests of the Represented Person at all times, and not just when its account manager hears from a support person for the Represented Person.

8. Acting in the Represented Person’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 the Represented Person’s quality and enjoyment of life.  It appears on the limited available evidence that the Represented Person’s therapeutic needs are being met by the NDIS but otherwise only his basic necessities of life are being met from the Represented Person’s estate but no more, and instead funds are being allowed to accumulate by default. 

9. There should be a proper plan to expend those funds appropriately for the Represented Person’s benefit having regard to his life expectancy, noting he is middle aged, or a positive decision made to allow funds to accumulate if that is in fact in the Represented Person’s best interests.  It may be that the Represented Person’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, or even the entire amount, should be held back for contingencies.

10. If there is no direct communication between the Public Trustee’s account manager and the Represented Person or if that is not possible a support person, family member or advocate for the Represented Person, it is difficult to see how the Public Trustee could be discharging its obligation to act in consultation with the Represented Person 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 the Represented Person (or his representative) that would allow the Public Trustee to understand the Represented Person’s wishes, particularly as to expenditure that might improve his quality of life.

11. Finally, the administrator has a positive obligation to encourage and assist the Represented Person to become capable of administering his own estate.  The Represented Person has a mild intellectual disability.  There may be steps that the Public Trustee could undertake to improve the Represented Person’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 the Represented Person’s estate must consider such steps and include them in the plan.

12. The Public Trustee’s request for advice and direction continues as follows:

    (b)  Life expectancy of [the Represented Person]

    Can the Board please advise what it requires to meet its direction that we take into account TKH’s life expectancy (how does the Board want us to determine the Life expectancy? I.e. tables, doctor’s report?

13. The Board advises that the Public Trustee should consult with the Represented Person and his care providers to determine if he is diagnosed with a condition that might lessen his life expectancy.  If so, a report from a doctor might be appropriate to guide the Public Trustee, and if the Represented Person’s life expectancy is short, that might point to funds being expended at a greater rate than might otherwise be prudent to promote the Represented Person’s best interest.  If not, then the Public Trustee can assume that the Represented Person as a middle aged man, might live for a significant number of years and it may be in the Represented Person’s best interest to hold back a sum of money for contingencies and to spend the funds in the estate conservatively.

14. The reason for the direction is that the Board with the limited evidence it has on matters pertaining to section 57 matters, considers it unlikely that it would be in the Represented Person’s best interest to die with close to $200,000.00 in his estate when those funds could be used throughout his lifetime to improve his quality and enjoyment of life.

15. The Public Trustee’s request then sets out the Public Trustee’s usual procedure for preparing an investment strategy and a budget for the Represented Person.  The Public Trustee asks:

    So is there anything over and above, from preparing and reviewing the budget, a prudent investment review and procedure, and speaking to [the Represented Person’s] support staff and NDIS co-ordinator that the Board requires us to do?

16. The Board’s direction requires the Public Trustee to do more than prepare a budget and an investment strategy, and speak generally to support staff.  The Board has directed that a plan for the administration of the estate should be prepared. 

17. Preparing the plan might include the following:

    a.Updating the budget and investment strategy for the Represented Person, and having regard to the person’s life expectancy, determine what funds might be made available from his estate over a particular period of time, leaving aside a prudent amount for contingencies having regard to the Represented Person’s life expectancy, over and above his current expenditure.

    b.Spending time with the Represented Person to assist him to understand the nature and extent of his estate, his current expenditure and the possibility of greater expenditure to improve his quality and enjoyment of life.

    c.Discussions with the Represented Person’s support providers and NDIS co-ordinator to assist them to understand the nature and extent of his estate, his current expenditure and the possibility of greater expenditure to improve his quality and enjoyment of life.

    d.Consultation with the Represented Person’s support providers and NDIS co-ordinator for advice as to possible expenditure that will improve his quality of life, focusing on matters that are not funded by the NDIS.

    e.Consultation directly with the Represented Person (or a third party briefed by the Administrator) to determine his wishes as to increased spending from his estate, particular expenditure that will improve his quality and enjoyment of life, his likes, dislikes, future plans, whether he does in fact wish to accumulate funds in his estate rather than to increase his expenditure and any other relevant matter.

    f.Consultation directly with the Represented Person (or a third party briefed by the Administrator) and with his support providers to determine how the Public Trustee can encourage and assist the Represented Person to become capable of managing his own estate.

    g.Taking into account all of the above, preparation of a plan.

    h.Consultation directly with the Represented Person (or a third party briefed by the Administrator) and his support providers as to his wishes in connection with the plan and the appropriateness of the plan to promote the Represented Person’s best interests.

18. Finally, the Public Trustee has asked the following:

    In reference to Order 3, the Public Trustee seeks advice and direction regarding what evidence it is seeking of [the Represented Person’s] wishes from the Public Trustee? For example, is it documented face-to face conversations with TKH, a doctor’s report, a report from TKH’s support workers, family, or something else?

19. The medical evidence before the Board at the time the Order was made was to the effect that the Represented Person has a mild intellectual disability. The Represented Person ought to be able to express relevant wishes with support and assistance from the administrator. Indeed, in order for the administrator to properly discharge its obligations under Section 57 of the Act, it is likely the administrator would need to spend time consulting directly with the Represented Person, and providing him with encouragement and assistance, or obtaining assistance from a third party (who has been briefed by the administrator) acting as a conduit between the Represented Person and the administrator. The best evidence of the Represented Person’s wishes would therefore likely come from the person having that direct contact with the Represented Person on behalf of the Public Trustee.

20. If it is difficult for the Represented Person to communicate with the administrator by electronic means, then those consultations and discussions should occur in person where possible, or by using a third party.

21. It would be appropriate for the Public Trustee to put evidence of those discussions before the Board in writing as part of the report the client account manager usually prepares for review applications or in the form of file notes.

22. The administrator could also appropriately encourage the Represented Person to attend the hearing of the next review application in order to also express those wishes directly to the Board.