UBT – Application for appointment of a guardian and an administrator by X Care Facility

[2015] TASGAB 8

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

UBT – Application for appointment of a guardian and an administrator by X Care Facility Presbyterian Care

REASONS FOR DECISION

Anita Smith (President)

Date of hearing 14 May 2015

Appointment of an administrator – nominated administrator’s actions had not reflected the prudent and active approach expected of a potential trustee - Board could not be satisfied that the nominee is not in a position where her interests conflict or may conflict with the interests of the proposed represented person

Guardianship and Administration Act 1995 – s. 54

1. UBT (the proposed represented person) is an 89 year old man who lives in an Aged Care Facility managed by Presbyterian CareX Care Facility (the applicant).   By application received 2 December 2014, the applicant sought the appointment of a guardian and an administrator for the proposed represented person.  The applicant sought the appointment of the Public Guardian as guardian and the Public Trustee as administrator. 

2. When the Board assesses an application for the appointment of a guardian and an administrator, it needs to be satisfied of the matters in sections 20 and 51 of the Guardianship and Administration Act 1995 (the Act), that the proposed represented person:

   (a) is a person with a disability, and

   (b) is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his person or circumstances, or in respect of matters relating to all or any part of his estate

   (c) is in need of a guardian and an administrator.

3. The application was heard on 14 May 2015.  The proposed represented person was given notice of the application and the hearing but did not attend the hearing.  The following persons attended the hearing:

   Ms. Jenny TuffinK U, X Care Facility Presbyterian Care (applicant)
   Ms. D G, the proposed represented person’s daughter
   Mr. NC, solicitor representing Ms. DG
   Ms. Elizabeth Dalgleish, GAB Investigator
   Mr. Edward Kempa and Ms. Lauren Harvey representing the Public Trustee
   Mr. Derek Harnwell representing the Public Guardian

Is the proposed represented person a person with a disability?

1. In respect of the proposed represented person Dr. Kon Exaharkos and Dr. Greg Booth provided Health Care Professional Reports for the Board.   Both reports concluded that the proposed represented person has dementia, Dr. Booth stating that his condition is severe.  This issue was not contested.  The Board was satisfied that the proposed represented person is a person with a disability within the meaning of the Act.

Is the proposed represented person incapable by reason of his disability of making reasonable judgements in respect of matters relating to all or any part of his estate and his person and circumstances?

1. Both reports noted above included conclusive opinions that the proposed represented person lacks capacity to make any financial decisions or to make decisions about his accommodation.   Again this issue was uncontested.   The Board is satisfied that the proposed represented person is unable by reason of his disability to reasonable judgements in respect of matters relating to all or any part of his estate and his person and circumstances. 

Is the proposed represented person in need of a guardian and an administrator?

6. The applicant seeks appointment of a guardian because the proposed represented person resides in a secure Aged Care Facility, meaning that his liberty is restricted and if he were to attempt to leave this facility, they would prevent him from doing so.  As discussed in the Board’s publication, Detention of people with dementia in secure facilities in State care in Tasmania 31 July 2012, there may be a defence of necessity for such a measure where the proposed represented person’s disability creates a risk of harm to himself, but such a defence is not absolute and does not protect the rights of the proposed represented person to have his detention monitored and supervised.  Accordingly, the applicant has adopted a policy of regularising the practice of housing residents in secure premises by applying for the appointment of a guardian to ensure that the resident’s rights are protected and monitored.  The only sense in which the proposed represented person is ‘in need of a guardian’ is to ensure that his detention in a secure facility promotes his personal safety and is applied in the least restrictive manner as is possible.    The Board was satisfied that he is so in need, but such a need is limited to decisions about where he lives temporarily or permanently.  The Board does not consider that the needs of the proposed represented person (or his best interests) could be met by other means less restrictive of his freedom of decision and action.

1. Since he has been admitted to the aged care facility six months ago, the proposed represented person has been paying full fees because an assessment of his assets (required as part of the process of admission to aged care) had not been completed.  Once completed, the fees payable by the proposed represented person will reduce to a rate commensurate with his assets and income.  (Ms. DG stated at the hearing that she had mailed the assessment form in the past day or so.)  The proposed represented person has a property which requires sale, rental or other management now that he no longer resides there.  An administrator is needed to ensure that the proposed represented person is appropriately assessed for his aged care fees and that his assets and income are applied towards his needs.  The Board is satisfied that the proposed represented person is in need of an administrator to complete the assets assessment and to deal with his assets in his best interests. 

Eligibility of potential guardian and administrator:

1. The applicant nominated the Public Guardian and the Public Trustee as the respective guardian and administrator for the proposed represented person.  Ms. FrancombeDG, through her solicitor, nominated for appointment to both roles.

2. Eligibility for appointment as a guardian is explained in section 21 of the Act:

   “21. Persons eligible as guardians

   (1) The Board may appoint as a full guardian or limited guardian any person who is of or over the age of 18 years and consents to act as guardian if the Board is satisfied that that person –

   (a) will act in the best interests of the proposed represented person; and

   (b) is not in a position where the person's interests conflict or may conflict with the interests of the proposed represented person; and

   (c) is a suitable person to act as guardian of the proposed represented person.

   (2) In determining whether a person is suitable to act as a guardian of a represented person, the Board must take into account –

   (a) the wishes of the proposed represented person so far as they can be ascertained; and

   (b) the desirability of preserving existing family relationships; and

   (c) the compatibility of the person proposed as guardian with the proposed represented person and with the administrator (if any) of his or her estate; and

   (d) whether the person proposed as guardian will be available and accessible to the proposed represented person so as to fulfil the requirements of guardianship of that person.”

3. As the need for a guardian is limited to the issue of approving his accommodation and there was no conflict amongst any of the parties that he is appropriately housed and should not leave the current facility, the Board was satisfied that Ms. DG meets these eligibility criteria. 

4. Eligibility for appointment as an administrator is explained in section 54 of the Act:

   “54. Persons eligible as administrators

   (1) The Board may appoint as an administrator of the estate of a proposed represented person –

   (a) The Public Trustee; or

   (b) the Public Guardian; or

   (c) a trustee company within the meaning of the Trustee Companies Act 1953; or

   (d) any other person, including the guardian of the proposed represented person, who consents to act as administrator if the Board is satisfied that –

   (i) the person will act in the best interests of the proposed represented person; and

   (ii) the person is not in a position where his or her interests conflict or may conflict with the interests of the proposed represented person; and

   (iii) the person is a suitable person to act as the administrator of the estate of the proposed represented person; and

   (iv) the person has sufficient expertise to administer the estate.

   (2) In determining whether a person is suitable to act as the administrator of the estate of a proposed represented person, the Board must take into account –

   (a) the wishes of the proposed represented person, so far as they can be ascertained; and

   (b) the compatibility of the person proposed as administrator with the proposed represented person and with his or her guardian, if any.

1. The Board has serious reservations about Ms. Francombe’s DG’s eligibility on the following grounds:

   1. The proposed represented person has been resident in the aged care facility for six months, paying the full fees (not a lower rate to which he was most likely entitled) because his assets had not been assessed in accordance with legislative requirements.  The assessment was a responsibility that Ms. DG had accepted but not fulfilled in the six month period prior to the hearing.  The Board had concerns that in failing to do so, Ms. DG had not acted in the interests of the proposed represented person.  Her representative explained that she was under the impression that the issue was not urgent and had been advised that any excess payments would be reimbursed.  Therefore, although he was paying excess fees, he would not be disadvantaged in the long run.  The Board accepts that there was no material disadvantage to the proposed represented person, but considers that a person who proposes to act in a trustee position (as an administrator is) ought to act promptly to secure the person’s entitlements and to ensure that costs charged to the person are not excessive.  In failing to attend to completing the assets assessment until very shortly prior to the hearing, Ms. DG had not reflected the prudent approach expected of a potential trustee. 
   2. Ms. DG’s son and the proposed represented person’s grandson is a tenant in the proposed represented person’s property, an arrangement that has subsisted since he was the proposed represented person’s live-in carer.  He pays for utilities and upkeep in lieu of rental. Ms. DG will have interests in seeing her son beneficially housed which may compete with her interests as an administrator for the owner of the property. 
   3. Ms. DG’s representative indicated that her understanding is that she will inherit the proposed represented person’s property and that the property ought to be retained to give effect to the proposed represented person’s wishes.  The property was described by him as ‘the family’s main asset.’ The solicitor urged the Board not to appoint the Public Trustee as ‘commercial considerations’ may demand the sale of the property which would override the family’s wishes including the proposed represented person’s wishes.  The Board only had Ms. DG’s report of his wishes in this respect.  In light of this issue and that described in paragraph 12(b) above the Board could not be satisfied that Ms. DG is not in a position where her interests conflict or may conflict with the interests of the proposed represented person.
   4. In respect of Ms. DG’s expertise, the Board noted that on one hand Ms. DG criticised the Board’s processes because she was ‘not consulted’ about the application and not given an opportunity to nominate for appointment as administrator.  On the other hand, through her solicitor, she defended her decision not to answer or return any of the numerous attempts by the Board’s investigator to contact her by telephone on the grounds that she perceived the attempts at contact as ‘harassment.’  He noted that she had been ‘overwhelmed’ by the processing of the application and therefore chose not to respond on legal advice (while simultaneously claiming a lack of consultation).  The Board was not impressed at this unusual and conflicting response to standard bureaucratic processes.  It may be an indicator of how she might interact with relevant agencies on behalf of her father in the future.  Taken together with her inaction with respect to the assets assessment, the Board gleaned an impression that Ms. DG has a passive approach to the administrative aspects of her father’s affairs which does not reflect the fiduciary responsibilities of a prudent and competent administrator.  

2. In light of the above, the Board did not consider that Ms. DG is eligible for appointment as administrator of the estate.  The Board considers that appointment of the Public Trustee does not automatically result in the sale of the property.  In addition the Public Trustee as administrator is still required by section 6 and section 57(2)(b) of the Act to take into account the  represented person’s wishes as far as possible. 

Conclusion:

After hearing an application for a guardianship and an administration order in respect of UBT (hereinafter called the ‘represented person’)

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 person and circumstances;

• is in need of a limited guardian; and

• is in need of an administrator

THE BOARD ORDERS

1. That DG be appointed as the represented person’s guardian.

2. That the powers and duties of the guardian are limited to decisions concerning where the represented person is to live whether permanently or temporarily.

3. That the order remains in effect to 13 May 2018.

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

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

6. That the order remains in effect to 13 May 2018.

Anita Smith
PRESIDENT