TKX (Review of Administration)
[2016] TASGAB 14
•3 June 2016
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
TKX (Review of Administration) [2016] TASGAB 14
Reasons for Decision
Sandra Taglieri (Chair)
Carolyn Wallace
Mike Stoddart
Review Administration – need for an Administrator – disability – Public Trustee fees – suitability of family members rather than independent Administrator – wishes of the proposed represented person
Guardianship and Administration Act 1995 s. 51, 68
Introduction and background
By application dated 4 August 2016, HBQ applied to review an order made by the Board on the 3rd June 2016 appointing the Public Trustee as Administrator of TKX for 12 months (“the Administration Order”).
At the time the Administration order was made, TKX was 54 years old and the medical evidence before the Board demonstrated that he suffered from Wernicke’s/Korsakoff syndrome which caused disability. TKX’ siblings were all concerned about his wellbeing and the pattern of harmful behaviours caused by his disorder. There were some periods when TKX functioned satisfactorily with family support. However, he had frequent recurring bouts of dysfunctional behaviour often involving excessive alcohol consumption. This then further impaired cognition and capacity to care for himself and manage his financial affairs.
Medical evidence at the time suggested there was some small hope of improving cognition and capacity, but all the evidence[1] demonstrated compelling need for an Administrator. In recognition of the considerations to make orders that were least restrictive of freedom of decision and action,[2] the Board appointed an Administrator for a relatively short period of 12 months, the expectation being that shortly prior to expiry of the order, it would be reviewed and continued if required.
[1] Medical opinions and evidence of brother and sisters who participated in the hearing
[2] Section 51(4) of the Guardianship and Administration Act 1995 (“the Act”)
The siblings were concerned that TKX would not react well to others having control of his finances. They feared this would compromise their ability to emotionally support him should one of them be appointed as Administrator. Only one sibling lived in Tasmania where TKX, his property and finances were situated. Ultimately for all these reasons, there was no opposition to appointment of the Public Trustee.
Basis upon which review of Order sought
The Application for Review of the Administration Order sought in effect to substitute HBQ as Administrator in place of the Public Trustee. Given the powers of the Board[3] if the application was granted, the Board would have to revoke the existing Administration Order and make a fresh order appointing HBQ as Administrator.
[3] Section 68 of the Act
HBQ contended that he ought to be Administrator for TKX because the costs charged by the Public Trustee were an excessive impost and that he would undertake the role at no cost.
During the hearing conducted on 19 October 2016, HBQ told the Board that he considered the cost impost unnecessary and not in TKX’ interest because:
i) The Public Trustee unnecessarily sought a property valuation on the real estate TKX owned and that the cost of that was in the vicinity of $2000.
ii) That the Public Trustee would charge an unrealised assets commission on the value of the property TKX owned in the order of 2%. It was clear from his statements that he believed this sum was an ongoing recurring cost which was charged periodically.
iii) That the other fees charged by the Public Trustee, such as the transactions fee and monthly fee would over time be significant.
The representative of the Public Trustee informed the Board and HBQ of the actual fees and charges as follows:
i) Valuation of real estate is regularly undertaken when a represented person owns real property. This is to ensure that insurances are taken out for the appropriate level of cover and to have a benchmark value should it ever become necessary to sell. The valuation cost was in the order of $350.
ii) The unrealised assets commission is 2.2% of the capital value of the unrealised assets and only paid at the expiry of the Administration order appointing the Public Trustee. If the Board revoked the existing order upon HBQ’s application, then the approximate charge would be $1,000.
iii) The approximate annual costs and charges[4] applicable to TKX administration were likely to be:
a.Account keeping fee - $162;
b.Income commission fee (on pension) - $1,285.19;
c.Transaction fees - $108.80
[4] Which are statutory fees set by the Tasmanian Government
After HBQ heard this information at the hearing, he conceded that the fees were not as significant as he had understood. He also acknowledged that an unrealised assets commission of $1,000 would be raised only if the Board revoked the existing order, but not if the order continued and was further continued prior to its expiry. He stated that as the Public Trustee’s annual fees would be about $1,500 and that he was “quite happy that the Board decide what should occur and he would abide either way”.
TKX was invited to state his views to the Board. In essence he conveyed that he was happy for HBQ to be appointed Administrator, considered the Public Trustee appointment was costing him and involved too many people.
Consideration and determination
As there was no dispute that TKX had a disability and was in need of an Administrator, the issue to determine was whether the Public Trustee ought to remain as Administrator or whether HBQ should to be appointed to the role.
The impression given by TKX was that he may have preferred HBQ to be appointed, but he did not express strong opposition to the Public Trustee continuing, when directly asked.
Although the Board had no reason to conclude HBQ would not have the administrative and financial management skills needed, he does not reside in Tasmania which at times may impact on his ability to respond as required to meet TKX’ immediate needs.
The historical information available to the Board from the prior application and the investigations undertaken in regard to the application for review demonstrated that there was likelihood TKX would challenge the Administrator. The likely resulting conflict has potential to adversely impact on the family dynamics if HBQ were to be appointed. In turn, this may jeopardise the support family members could otherwise provide to TKX.
The Public Trustee is an independent, professional administrator and will dispassionately fulfil the required duties without jeopardising family relations. Although fees are associated with provision of the duties, the Board did not consider them excessive or unnecessary given the nature and size of the financial estate.
HBQ acknowledged that the costs issues that had triggered his application were not as concerning as he had initially believed. Revocation of the order will result in the unrealised asset commission being immediately imposed and this is undesirable. By contrast, as TKX is likely to require an Administrator indefinitely,[5] this commission may not be imposed for many years to come.
[5] Medical opinion of Dr Kenyon 17.10.16 and continuing acute periods of illness since original Order
Weighing the respective advantages and disadvantages of the Public Trustee or HBQ being appointed and absent strong opposition from TKX to the Public Trustee continuing as Administrator, the Board was not persuaded the existing order should be revoked or varied. The approach taken by the Board to arrive at this conclusion is consistent with the approach identified in Holt v Protective Commissioner (1993) 31 NSWLR 227, and applied in FHT (Administration) [2007] TASGAB 7 at [13].
The Board determines to continue the existing Administration Order. It also noted that the order ought to be reviewed of its own motion shortly prior to its expiry.
THE BOARD ORDERS
1. That the Administration Order made on 3 June 2016 continue.
Note: The Board will review the Order of its own motion shortly prior to its expiry on 2 June 2017.
Sandra Taglieri
Member
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